EXHIBIT 10.3
SUBSCRIPTION AGREEMENT
among
SEABOURN CRUISE LINE LIMITED,
CARNIVAL CORPORATION
and
THE PERSONS NAMED HEREIN
Dated: May 27, 1998
_________________________
=================================================================
TABLE OF CONTENTS
Page
ARTICLE 1 DEFINITIONS 2
1.1 Definitions 2
ARTICLE 2 SUBSCRIPTION AND ISSUE OF THE SHARES 5
2.1 Subscription and Issue of the Shares. 5
2.2 The Closing 5
2.3 Post-Closing Adjustment 6
ARTICLE 3 REPRESENTATIONS AND WARRANTIES OF THE COMPANY 7
3.1 Due Incorporation 7
3.2 Qualification 7
3.3 Capital Stock 7
3.4 Authorization; No Contravention 8
3.5 Binding Effect 8
ARTICLE 4 REPRESENTATIONS AND WARRANTIES OF THE INVESTORS 8
4.1 Acquisition for Own Account. 9
4.2 Exemption 9
4.3 Non-Registration 9
4.4 Business Knowledge 9
4.5 Authorization; No Contravention 10
4.6 Binding Effect 10
4.7 Investment Limitation 10
ARTICLE 5 CONDITIONS TO THE OBLIGATION
OF THE COMPANY AND THE INVESTORS TO CLOSE 11
ARTICLE 6 LIMITATIONS ON TRANSFER 11
6.1 General Restrictions on Transfer 11
6.2 Void Transfers 12
6.3 Permitted Transfers 12
ARTICLE 7 TAG-ALONG AND BRING-ALONG RIGHTS 13
7.1 Tag-Along Rights 13
7.2 Bring-Along Rights 16
ARTICLE 8 CORPORATE GOVERNANCE AND CERTAIN OTHER ACTIONS 18
8.1 General 18
8.2 Election of Directors 18
8.3 Removal and Replacement 19
8.4 Company Name Change 19
ARTICLE 9 INITIAL PUBLIC OFFERING 19
9.1 Initial Public Offering 19
9.2 Initial Public Offering Procedure 20
9.3 Customary Agreements 20
9.4 Carnival Exchange 20
9.5 Put Option 21
9.6 No Fractional Shares 22
9.7 Closing of the Carnival Exchange and the Put Option 22
9.8 Exchange Ratio Adjustment 23
9.9 No Claims 24
ARTICLE 10 RIGHT TO PARTICIPATE IN CERTAIN ISSUANCE OF CAPITAL
SHARES 25
10.1 Right to Participate in New Issuance 25
10.2 Exercise of Right 25
10.3 Closing 26
ARTICLE 11 SHARES CERTIFICATE LEGEND 26
ARTICLE 12 AFTER-ACQUIRED SECURITIES 27
ARTICLE 13 TRANSACTIONS WITH AFFILIATES 28
13.1 Limitation on Transactions with Affiliates 28
13.2 Exceptions 28
ARTICLE 14 TERMINATION 29
14.1 General 29
14.2 Non-Consummation of Cunard Acquisition 29
14.3 Return of Shares and Purchase Price 29
14.4 Shareholder No Longer Holds Shares 29
14.5 No Liability 30
ARTICLE 15 CONFIDENTIALITY 30
ARTICLE 16 MISCELLANEOUS 31
16.1 Survival of Representations, Warranties,
Other Agreements and Undertakings 31
16.2 Notices 31
16.3 Fees and Expenses 33
16.4 Carnival Expenses. 33
16.5 Third Party Beneficiaries 33
16.6 Successors and Assigns 33
16.7 Amendment and Waiver 34
16.8 Counterparts 34
16.9 Headings 34
16.10 Governing Law 35
16.11 Arbitration 35
16.12 Severability 35
16.13 Entire Agreement 36
16.14 Further Assurances 36
SUBSCRIPTION AGREEMENT
SUBSCRIPTION AGREEMENT, dated as of May 27, 1998, among Seabourn Cruise
Lines Limited, a Bahamas International Business Corporation (the "Company"),
the persons set forth on the signature pages hereto (collectively, the
"Investors") and Carnival Corporation, a Panamanian corporation ("Carnival"
and, together with the Investors, the "Shareholders").
WHEREAS, pursuant to an Agreement for the Sale and Purchase of the
Business of Cunard, dated April 3, 1998, among Cunard Line Limited ("Cunard")
and others as sellers and Carnival as buyer and Kvaerner ASA as guarantor (the
"Sale and Purchase Agreement"), Carnival agreed to acquire the business carried
on by affiliates of Kvaerner ASA under the name Cunard.
WHEREAS, Carnival has assigned its rights and duties under the Sale and
Purchase Agreement to a newly-formed subsidiary ("Newco") of the Company.
WHEREAS, the Company intends to change its name to Cunard Line Limited.
WHEREAS, the parties hereto currently intend to consider an initial public
offering of equity securities of the Company prior to November 30, 1999 and, if
such an initial public offering is made, the parties also intend to consider
listing the equity securities of the Company on the Oslo Stock Exchange, either
as a primary or secondary listing (it being understood that any such decisions
concerning an initial public offering shall be made by Carnival in its sole
discretion).
WHEREAS, the Company desires to issue to the Investors ordinary shares of
the Company, par value $0.10 (the "Shares"), to fund a portion of the purchase
price under the Sale and Purchase Agreement.
WHEREAS, the Shareholders desire to set forth certain agreements among
them relating to the governance of the Company and the transfer of their
Shares.
NOW, THEREFORE, the parties hereto agree as follows:
ARTICLE 1.
DEFINITIONS
1.1 Definitions. As used in this Agreement, and unless the context
requires a different meaning, the following terms have the meanings indicated:
"Adjusted Cunard Price" means the purchase price under the Sale and
Purchase Agreement as adjusted under clause 4.2 thereof plus the actual amount
of fees and expenses of Christiania Markets ("Christiania") reimbursed under
Section 16.3 of this Agreement.
"Affiliate" means, with respect to any Person, any other Person
controlling, controlled by or under common control with, such Person. For
purposes of this definition, "control", when used with respect to any Person,
means the power to direct the management and policies of such Person, directly
or indirectly, whether through the ownership of voting securities, by contract
or otherwise; and the terms "controlling" and "controlled" have meanings
correlative to the foregoing.
"Assumed Cunard Price" means US $380,444,000.
"Assumed Investor Share Adjustment" means, with respect to each Investor,
the assumed Investor share adjustment as specified on Schedule 2.1.
"Agreement" means this Agreement as the same may be amended, supplemented
or modified in accordance with the terms hereof.
"Board of Directors" means the Board of Directors of the Company.
"Business Day" means any day other than a Saturday, Sunday or public
holiday in England, Wales, the Bahamas, Bermuda and the United States.
"Closing" has the meaning set forth in Section 2.2 of this Agreement.
"Closing Date" means the Business Day (as defined in the Sale and Purchase
Agreement) on which all of the conditions of Completion shall have been
fulfilled or waived by the parties to the Sale and Purchase Agreement.
"Completion" has the meaning set forth in the Sale and Purchase Agreement.
"Initial Public Offering" means an initial public offering of equity
securities of the Company in the United States, the United Kingdom or Norway
and a related listing of such shares on a national securities exchange or
trading market in the United States, the London Stock Exchange or the Oslo
Stock Exchange, respectively.
"Investors" has the meaning set forth in the recitals to this Agreement.
"Investor Purchase Price Adjustment" means, with respect to each Investor,
the product of (i) the Purchase Price Adjustment Amount and (ii) the investment
percentage of such Investor as specified on Schedule 2.1.
"Investor Share Adjustment" means with respect to each Investor, the
Investor Purchase Price Adjustment divided by US $10.00 (the per share purchase
price of the Shares).
"Lien" means any mortgage, deed of trust, pledge, hypothecation,
assignment, encumbrance, lien (excluding those arising by operation of law) or
other security interest of any kind or nature whatsoever.
"Person" means any individual, firm, corporation, partnership, trust,
incorporated or unincorporated association, joint venture, joint stock company,
Governmental Authority or other entity of any kind, and shall include any
successor (by merger or otherwise) of such entity.
"Post-Closing Share Issuance Amount" means, with respect to each Investor,
either (i) the Assumed Investor Share Adjustment plus the Investor Share
Adjustment (if the Adjusted Cunard Price exceeds the Assumed Cunard Price) or
(ii) the Assumed Investor Share Adjustment minus the Investor Share Adjustment
otherwise.
"Purchase Price Adjustment Amount" means the product of (i) 0.3 and
(ii) either (a) the Adjusted Cunard Price minus the Assumed Cunard Price (if
the Adjusted Cunard Price exceeds the Assumed Cunard Price) or (b) the Assumed
Cunard Price minus the Adjusted Cunard Price otherwise.
"Recapitalization Agreement" means the Recapitalization Agreement, dated
as of May 27, 1998, among the Company, Carnival and CG Holding AS ("CG").
"US $" means United States dollars, the lawful currency of the United
States of America.
ARTICLE 2.
SUBSCRIPTION AND ISSUE OF THE SHARES
2.1 Subscription and Issue of the Shares. (a) At the Closing, subject
to the terms and conditions of this Agreement, the Company agrees to issue to
the Investors, and the Investors agree to subscribe for and accept from the
Company, the numbers of Shares set forth by each Investor's name on
Schedule 2.1 hereto. After the Closing, the Company shall issue additional
Shares to the Investors subject to the terms of Section 2.3.
(b) The purchase price payable by the Investors in the aggregate
shall be US $114,133,200, subject to adjustment in accordance with Section 2.3.
At the Closing, each Investor shall pay the amounts set forth by each
Investor's name on Schedule 2.1 hereto, which shall be held on account of the
purchase price payable hereunder.
2.2 The Closing (a) The subscription and issue of the Shares (other than
the additional Shares to be issued pursuant to Section 2.3) (the "Closing")
shall take place at the offices of ▇▇▇▇, Weiss, Rifkind, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ in
New York, at 10:00 a.m., local time, on the Closing Date or at such other time
as the parties may mutually agree.
(b) At the Closing, the Company shall deliver to each Investor
certificates evidencing the number of Shares to which such Investor is entitled
under Section 2.1(a) (other than the additional Shares to be issued pursuant to
Section 2.3) registered in such Investor's name, upon payment of the funds
payable by each Investor under Section 2.1(b). All amounts paid hereunder
shall be paid by wire transfer of immediately available funds to such account
or accounts as may be designated by the Company to the Investors. All Shares
issued hereunder shall be validly issued, fully paid and non-assessable and
free and clear from all Liens.
2.3 Post-Closing Adjustment. Upon completion of the adjustment of the
purchase price under clause 4.2 of the Sale and Purchase Agreement, the Company
shall notify, in writing, each Investor of its Investor Purchase Price
Adjustment. Within five Business Days thereafter, (i) either (a) if the
Adjusted Cunard Price does not exceed the Assumed Cunard Price, the Company
shall pay each Investor its Investor Purchase Price Adjustment (if any) by wire
transfer of immediately available funds to an account of Christiania on behalf
of such Investor as designated in writing by Christiania to the Company or (b)
otherwise, each Investor shall pay the Company its Investor Purchase Price
Adjustment by wire transfer of immediately available funds to the account
designated under Section 2.1(b), and (ii) subject to the receipt of any amounts
due under Section 2.3(i)(b), the Company shall issue to each Investor a number
of Shares equal to the Post-Closing Share Issuance Amount of such Investor.
ARTICLE 3.
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
The Company represents and warrants to the Investors on the date hereof
and on the Closing Date as follows:
3.1 Due Incorporation. The Company is an International Business
Corporation duly incorporated and validly existing under the laws of the
Bahamas and has all requisite corporate power and lawful authority to own,
lease and operate its properties and to carry on its business as now being
conducted.
3.2 Qualification. The Company is duly qualified or otherwise authorized
to transact business in each jurisdiction in which such qualification or
authorization is required by applicable law or in which the failure so to
qualify or be authorized would have a material adverse effect on the Company.
3.3 Capital Stock. (a) As of the date hereof, the authorized share
capital of the Company is US $5,000, made up of 5,000 shares. As of the date
hereof, 4,800 shares are issued and outstanding. Upon the Closing, the
authorized share capital of the Company will be US $15 million, made up of 150
million shares. Except for this Agreement and the Recapitalization Agreement,
the Company has no obligations to issue any of its Shares.
(b) Upon the payment of the Investors of the purchase price provided
for under Section 2, the Shares issuable hereunder will be duly authorized,
validly issued, fully paid and non-assessable and free and clear from all
Liens.
3.4 Authorization; No Contravention. The execution, delivery and
performance by the Company of this Agreement and the transactions contemplated
hereby, including, without limitation, the sale, issuance and delivery of the
Shares (i) are within the Company's corporate power and have been duly
authorized by all necessary corporate action of the Company; (ii) do not
contravene the terms of the Memorandum and Articles of Association, or any
amendment of either thereof, or any organizational or governing documents of
the Company; and (iii) do not violate, conflict with or result in any breach or
contravention of, or the creation of any Lien under any material agreement of
the Company.
3.5 Binding Effect. This Agreement has been duly authorized, executed
and delivered by the Company and constitutes a legal, valid and binding
obligation of the Company, enforceable against the Company in accordance with
its terms, except as enforceability may be limited by applicable bankruptcy,
insolvency, reorganization, fraudulent conveyance or transfer, moratorium or
similar laws affecting the enforcement of creditors' rights generally and by
general principles of equity relating to enforceability.
ARTICLE 4.
REPRESENTATIONS AND WARRANTIES OF THE INVESTORS
applicable (severally as to itself only and not jointly) to the Company on
the date hereof and on the Closing Date as follows:
4.1 Acquisition for Own Account. Such Investor is acquiring the Shares
for its own account, or an account with respect to which it exercises sole
investment discretion, solely for investment and not with a view to resale or
distribution thereof.
4.2 Exemption. Such Investor is (a) a "qualified institutional buyer"
within the meaning of Rule 144A under the United States Securities Act of 1933,
as amended (the "Securities Act"), (b) an "accredited investor" within the
meaning of Regulation D under the Securities Act, or (c) not in the United
States, within the meaning of Regulation S ("Regulation S") promulgated under
the Securities Act, and is neither a U.S. person ("U.S. person"), within the
meaning of Regulation S, nor a person acquiring the Shares for the account or
benefit of a U.S. person.
4.3 Non-Registration. Such Investor acknowledges that the offering and
sale of the Shares has not been and will not be registered under the Securities
Act and may not be offered or sold within the United States or to or for the
account or benefit of, U.S. persons except pursuant to an exemption from
registration or under an effective registration statement under the Securities
Act.
4.4 Business Knowledge. Such Investor has such knowledge and experience
in financial and business matters that it is capable of evaluating the merits
and risks of its investment in the Company as contemplated by this Agreement,
and is able to bear the economic risk of such investment for an indefinite
period of time, including a complete loss of capital. It has been furnished
access to such information and documents as it has requested and has been
afforded the opportunity to ask questions of and receive answers from
representatives of the Company concerning the terms and conditions of this
Agreement and the proposed transactions and the purchase of the Shares
contemplated hereby.
4.5 Authorization; No Contravention. The execution, delivery and
performance by such Investor of this Agreement and the transactions
contemplated hereby, including, without limitation, the payment of the purchase
price (i) are within such Investor's corporate or other power and have been
duly authorized by all necessary action of such Investor; (ii) do not
contravene the terms of the certificate of incorporation and by-laws (or
comparable instruments), or any amendment of either thereof, or any
organizational or governing documents of such Investor, as applicable, and
(iii) do not violate, conflict with or result in any breach or contravention
of, or the creation of any Lien under any material agreement of such Investor.
4.6 Binding Effect. This Agreement has been duly authorized, executed
and delivered by such Investor and constitutes a legal, valid and binding
obligation of such Investor, enforceable against such Investor in accordance
with its terms, except as enforceability may be limited by applicable
bankruptcy, insolvency, reorganization, fraudulent conveyance or transfer,
moratorium or similar laws affecting the enforcement of creditors' rights
generally and by general principles of equity relating to enforceability.
4.7 Investment Limitation. Except as specifically agreed to by the
Company, as of the Closing, no Investor, its affiliates, or related persons
shall hold Shares with an aggregate purchase price in excess of US $15 million.
After the Closing, no Investor shall acquire more than 5% of the outstanding
Shares of the Company without the consent of the Company; provided however that
if any purchase by any Investor requires Carnival or the Company to make any
filing under the ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Antitrust Improvements Act of 1976, as
amended then such Investor shall reimburse Carnival or the Company, as the case
may be, for all of its out-of-pocket fees and expenses related to any such
filing.
ARTICLE 5.
CONDITIONS TO THE OBLIGATION
OF THE COMPANY AND THE INVESTORS TO CLOSE
The obligations of the Company to issue Shares on the Closing and the
Investors to pay the amounts under Section 2.1 shall be conditioned upon:
(i) the waiver or satisfaction of all conditions set forth in clause
5 of the Sale and Purchase Agreement; and
(ii) the execution and delivery by the parties thereto of the
Recapitalization Agreement, in the form attached hereto as Exhibit A.
ARTICLE 6.
LIMITATIONS ON TRANSFER
6.1 General Restrictions on Transfer. Each Shareholder agrees that such
Shareholder shall not, either directly or indirectly, offer, sell, transfer,
assign, mortgage, hypothecate, pledge, create a security interest in or Lien
upon, encumber, donate, contribute, place in trust, or otherwise voluntarily or
involuntarily dispose of (any of the foregoing actions, to "Transfer" and, any
offer, sale, transfer, assignment, mortgage, hypothecation, pledge, security
interest or Lien, encumbrance, donation, contribution, placing in trust or
other disposition, a "Transfer") any Shares, or any interest therein, except in
a transaction that is specifically permitted by this Agreement.
6.2 Void Transfers. Any attempt to Transfer any Shares, or any interest
therein, which is not in compliance with this Agreement shall be null and void
ab initio, and the Company shall not give any effect in the Company's stock
records to such attempted Transfer.
6.3 Permitted Transfers. Notwithstanding Sections 6.1 and 6.2, Transfers
(including, without limitation, pledges of Shares as collateral for loans) may
be made pursuant to this Agreement if:
(i) such Transfer complies in all respects with the applicable
provisions of this Agreement including, without limitation, Section 7 and
applicable federal and state securities laws;
(ii) the transferee agrees in writing with the Company and the other
Shareholders to be bound by the terms and conditions of this Agreement with
respect to the Shares Transferred to such transferee to the same extent as the
Shareholder who originally held such Shares is or was bound hereby (whereupon
such transferee shall be entitled to the same rights as such Shareholder who
originally held such Shares had with respect to such Shares and shall be deemed
to be a Shareholder for all purposes hereunder with respect to such Shares);
(iii) if requested by the Company, in its sole discretion, an
opinion of counsel to such transferring Shareholder shall be supplied to the
Company, at such transferring Shareholder's expense, to the effect that such
Transfer complies with applicable United States federal and state securities
laws; and
(iv) except for the parties to this Agreement, such transferee is
not (i) a Person engaged, directly or indirectly, in the cruise line business,
(ii) an owner, partner or shareholder holding more than 10% of the equity
interest in such a Person or (iii) an Affiliate of a Person described in
clauses (i) and (ii).
ARTICLE 7.
TAG-ALONG AND BRING-ALONG RIGHTS
7.1 Tag-Along Rights. (a) If one or more Shareholders (each a "Selling
Shareholder" and, the "Selling Shareholders") shall desire to sell Shares
representing a majority of all outstanding Shares (a "Proposed Sale") to any
Person other than another Shareholder or an Affiliate of such Shareholder (a
"Third Party Purchaser"), then such Selling Shareholders shall offer the other
Shareholders which are not Selling Shareholders (the "Tag-Along Shareholders")
the right to participate in the Proposed Sale with respect to a number of
Shares determined as provided in this Section 7.1 by sending written notice
(the "Tag-Along Notice") to the Company and the Tag-Along Shareholders, which
notice shall (i) state the number of Shares proposed to be sold in such
Proposed Sale by such Selling Shareholders (the "Proposed Sale Shares"),
(ii) state the proposed purchase price per Proposed Sale Share (the "Tag-Along
Price") and all other material terms and conditions of such Proposed Sale and
(iii) if applicable, be accompanied by any written offer from the Third Party
Purchaser; provided, however, that the Selling Shareholders shall not be
obligated to deliver a Tag-Along Notice if the Transfer (if consummated) is
made pursuant to Section 7.2.
(b) Each Tag-Along Shareholder shall have the right to require the
Selling Shareholder to cause the Third Party Purchaser to purchase from such
Tag-Along Shareholder at the Tag-Along Price (and otherwise upon the same terms
and conditions as those set forth in the Tag-Along Notice) a number of Shares
owned by such Tag-Along Shareholder (such Tag-Along Shareholder's "Tag-Along
Shares") not in excess of the product of (i) the total number of Proposed Sale
Shares, times (ii) a fraction, the numerator of which is the total number of
Shares owned by such Tag-Along Shareholder and the denominator of which is
equal to the sum of the total number of Shares owned by the Selling
Shareholders and the Tag-Along Shareholders and any other Persons owning Shares
entitled to participate in such Sale. Such right of each Tag-Along Shareholder
shall be exercisable by written notice to the Selling Shareholders with copies
to the Company given within 10 Business Days after receipt of the Tag-Along
Notice (the "Tag-Along Notice Period"), which notice shall state the number of
Tag-Along Shares that such Tag-Along Shareholder elects to sell in the Proposed
Sale, if less than the maximum number of such Tag-Along Shareholder's Tag-Along
Shares; provided that, if such notice shall not state a number of Tag-Along
Shares, then such Tag-Along Shareholder will be deemed to have elected to sell
the maximum number of such Tag-Along Shareholder's Tag-Along Shares. Failure
by a Tag-Along Shareholder to respond within the Tag-Along Notice Period shall
be regarded as a rejection of the offer made pursuant to the Tag-Along Notice.
Each Tag-Along Shareholder that elects to sell any or all of such Tag-Along
Shareholder's Tag-Along Shares is referred to in this Section 7.1 as a
"Participating Tag-Along Shareholder" and the number of Tag-Along Shares
elected, or deemed to be elected, by such Tag-Along Shareholder to be sold as
provided above is referred to in this Section 7.1 as such Tag-Along
Shareholder's "Participating Tag-Along Shares". The number of Shares to be
sold by the Selling Shareholders in the Proposed Sale shall be reduced by the
aggregate number of Participating Tag-Along Shares to be sold pursuant to this
Section 7.1 by all Participating Tag-Along Shareholders.
(c) At the request of the Selling Shareholders made not less than
two Business Days prior to the proposed Transfer, a Participating Tag-Along
Shareholder shall deliver to the Selling Shareholders certificates representing
such Participating Tag-Along Shareholder's Participating Tag-Along Shares, duly
endorsed, in proper form for Transfer, together with a limited power-of-
attorney authorizing the Selling Shareholders to transfer such Participating
Tag-Along Shares to the Tag-Along Purchaser and to execute all other documents
required to be executed in connection with such transaction.
(d) If no Transfer of the Tag-Along Shares in accordance with the
provisions of this Section 7.1 shall have been completed within 70 Business
Days of the Tag-Along Notice, then the Selling Shareholders shall promptly
return to the Participating Tag-Along Shareholder, in proper form, all
certificates representing such Participating Tag-Along Shareholder's
Participating Tag-Along Shares and the limited power-of-attorney previously
delivered by such Participating Tag-Along Shareholder to the Selling
Shareholders.
(e) The closing of the sale of the Participating Tag-Along Shares by
the Participating Tag-Along Shareholders shall be held at the same place and
time as the closing of the sale by the Selling Shareholders in the Proposed
Sale. Promptly after the consummation of the Transfer of the Participating Tag-
Along Shares pursuant to this Section 7.1, each Participating Tag-Along
Shareholder shall receive (i) the consideration with respect to the
Participating Tag-Along Shares so Transferred and (ii) such other evidence of
the completion of such Transfer and the terms and conditions (if any) thereof
as may reasonably be requested by such Participating Tag-Along Shareholder.
(f) The provisions of this Section 7.1 shall remain in effect,
notwithstanding any return to any Participating Tag-Along Shareholder of
Participating Tag-Along Shares as provided in Section 7.1(d).
7.2 Bring-Along Rights. (a) In the event that one or more Selling
Shareholders owning at least 60% of the number of outstanding shares of the
Company receives a bona fide offer from a Third Party Purchaser (excluding
offers from Affiliates of any of the Shareholders) to purchase (including a
purchase by merger) at least a majority of the outstanding Shares, the Selling
Shareholders may send written notice (a "Buyout Notice") to the Company and the
other Shareholders notifying the other Shareholders that they will be required
to sell the same percentage of their Shares in such sale as the Selling
Shareholder propose to sell (which percentage shall be specified in such Buyout
Notice) (the "Designated Percentage").
(b) Upon receipt of a Buyout Notice, each Shareholder receiving such
notice shall be obligated:
(i) to sell the Designated Percentage of such Shareholder's
Shares in the transaction (including a sale or merger) contemplated by the
Buyout Notice on the same terms and conditions as the Selling Shareholders;
(ii) to provide for the payment by such Shareholder of such
shareholder's pro rata portion of all costs associated with such transaction,
in the proportion that the number of Shares owned by such Shareholder bears to
the number of outstanding Shares; and
(iii) otherwise to take all necessary action to cause the
consummation of such transaction, including voting its Shares in favor of such
transaction and not exercising any appraisal rights in connection therewith.
(c) Each Shareholder further agrees to (i) take all actions
(including executing documents) in connection with the consummation of the
proposed transaction as may reasonably be requested of it by the Selling
Shareholders and (ii) appoint the Selling Shareholders as its attorneys-in-fact
to do the same on its behalf.
(d) In the event a contract with respect to the transaction
contemplated by the Buyout Notice has not been entered into within the 90 days
after the date of delivery of the Buyout Notice, the obligations of the
Shareholders under this Section 7.2 with respect to such Buyout Notice shall
terminate, subject, however, to the right of the Selling Shareholders to
deliver a further Buyout Notice.
ARTICLE 8.
CORPORATE GOVERNANCE AND CERTAIN OTHER ACTIONS
8.1 General. Each Shareholder shall vote its Shares at any regular or
special meeting of Shareholders of the Company, or in any written consent
executed in lieu of such a meeting of Shareholders, and shall take all other
actions necessary, to give effect to the provisions of this Agreement
(including, without limitation, Section 8.2 hereof), and to ensure that the
Company's Memorandum and Articles of Association and By-Laws do not, at any
time hereafter, conflict in any respect with the provisions of this Agreement.
8.2 Election of Directors . Each Shareholder agrees that, except as the
Shareholders may otherwise agree in writing, the number of directors
constituting the entire Board of Directors shall be seven, comprised of the
following individuals:
(i) five individuals designated by Carnival; and
(ii) two individuals designated by the Investors holding a majority
of all Shares held by the Investors (the "Majority Investors").
The initial directors designated by Carnival shall be ▇▇▇▇ ▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ and ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ and the initial
directors designated by the Majority Investors shall be ▇▇▇▇▇▇ ▇▇▇▇ and Knut
Heje.
8.3 Removal and Replacement. Each of Carnival and the Majority Investors
shall be entitled at any time and for any reason (or for no reason) to
designate any or all of its designees on the Board of Directors for removal.
If at any time a vacancy is created on the Board of Directors by reason of the
death, removal or resignation of any director, then Carnival or the Majority
Investors shall, as soon as practicable thereafter, designate a replacement
director and, as soon as practicable thereafter, the Company and each of the
Shareholders shall take action, including, if necessary, the voting of its
Shares, to elect or cause the election by the Board of Directors of such
replacement director in accordance with Section 8.2(a)(i) or (ii), as the case
may be.
8.4 Company Name Change. Each Shareholder hereby agrees to approve the
change of the Company's name to Cunard Line Limited and to take all action
necessary, including the voting of its Shares, to effect the same.
ARTICLE 9.
INITIAL PUBLIC OFFERING
9.1 Initial Public Offering. It is the current intention of the parties
to complete the Initial Public Offering prior to November 30, 1999 (the "IPO
Deadline"); provided that, if market conditions do not permit the Initial Pubic
Offering prior to the IPO Deadline, the IPO Deadline may be extended at the
option of Carnival. If the Initial Public Offering is in the United States,
the Company and the Investors shall in good faith attempt to negotiate a
registration rights agreement with customary terms and provisions to provide
the Investors (as a group) with one demand registration right and with piggy-
back registration rights.
9.2 Initial Public Offering Procedure. Prior to the Initial Public
Offering, the Company shall provide the Investors with written information
regarding the Initial Public Offering process and, to the extent determined by
Carnival in its sole discretion, shall invite the Investors to participate in
such Initial Public Offering. Any Investor so invited which desires to sell
Shares in the Initial Public Offering shall, with a time limit set out by the
Company in writing, notify the Company in writing of its wish to sell and the
amount of Shares it desires to sell; provided that Carnival may require each
Investor to sell up to 50% of such Investor's Shares in the Initial Public
Offering and, upon written request from Carnival, the Investors shall sell such
Shares in the Initial Public Offering.
9.3 Customary Agreements. In connection with the Initial Public
Offering, each Investor agrees to enter into customary agreements (including,
without limitation, a lock-up agreement) with the Company and the
arrangers/underwriters of the Initial Public Offering.
9.4 Carnival Exchange. Notwithstanding Sections 9.1, 9.2 and 9.3, at the
option of Carnival, in its sole discretion, in lieu of an Initial Public
Offering, Carnival may at any time elect to purchase all of the Shares owned by
the Investors (the "Carnival Exchange") in exchange for shares of common stock
of Carnival (the "Carnival Common Stock"). Prior to effecting the Carnival
Exchange, Carnival shall, in its sole discretion, consider first whether to
effect the Initial Public Offering. In the Carnival Exchange, each Investor
shall be entitled to receive a number of shares equal to the product of (i) the
number of Shares owned by such Investor and (ii) the Exchange Ratio. The
Exchange Ratio shall initially be 0.14493 and shall be subject to adjustment as
provided in Section 9.7 below. If it elects to effect the Carnival Exchange,
Carnival shall notify each Investor in writing of the Carnival Exchange. Such
notice shall specify the Exchange Ratio and the place and time of the closing
of the Carnival Exchange (which shall be a date within 20 Business Days of the
calculation of the Exchange Ratio).
9.5 Put Option. Notwithstanding Sections 9.1, 9.2, 9.3 and 9.4, if on
the third anniversary of the Closing, the Company has not completed the Initial
Public Offering and the Carnival Exchange has not occurred, each Investor
shall, from and after the third anniversary of the Closing, have the option
(the "Put Option") to put all of such Investor's Shares to Carnival in exchange
for Carnival Common Stock. The Put Option shall be exercisable by each
Investor by delivery of written notice to Carnival (the "Put Option Notice")
within 10 Business Days after the third anniversary of the Closing. At the
closing of the Put Option, each Investor who has exercised the Put Option shall
be entitled to receive a number of shares of Carnival Common Stock equal to the
product of (i) the number of Shares owned by such Investor and (ii) the
Exchange Ratio. At the closing of the Put Option Carnival shall be obligated
to purchase all of the Shares owned by the Investors exercising the Put Option
in exchange for shares of Carnival Common Stock as determined in accordance
with the preceding sentence. Carnival shall provide notice in writing to each
Investor exercising the Put Option of the Exchange Ratio and the place and time
of the closing of the Put Option (which closing date shall be within 45
Business Days after the third anniversary of the Closing).
9.6 No Fractional Shares. No fraction of Carnival Shares will be issued
to the Investors in connection with the Carnival Exchange or the exercise of
the Put Option. In lieu thereof, Carnival shall pay to such Investors
otherwise entitled to a fractional share cash in an amount equal to the product
of such fraction and the closing price for the Carnival Common Stock on the New
York Stock Exchange Composite Tape on the last trading day prior to the closing
of either the Carnival Exchange or the Put Option.
9.7 Closing of the Carnival Exchange and the Put Option. The closing for
the purchase of the Shares pursuant to Sections 9.4 or 9.6 shall be held at
such place and time as Carnival shall designate in writing to the Investors.
At such closing, in exchange for all of the Shares held by each Investor
participating in the Carnival Exchange or the Put Option, as the case may be,
Carnival shall issue, sell and deliver to such Investor and such Investor shall
purchase, acquire and accept from Carnival, certificates evidencing the number
of Shares of Carnival Common Stock to which such Investor is entitled under
Sections 9.4 and 9.6, registered in such Investor's name, all of which, upon
issuance shall have been duly authorized, validly issued, fully paid and non-
assessable and free and clear from all Liens. All Shares delivered by each
Investor to Carnival under this Section 9.7 shall be free and clear from all
Liens.
9.8 Exchange Ratio Adjustment. If Carnival or the Company shall, at any
time or from time to time, (i) declare a dividend of shares of the Carnival
Common Stock or Shares payable in Carnival Common Stock or Shares,
respectively, (ii) subdivide the outstanding shares of Carnival Common Stock or
Shares, (iii) combine the outstanding Carnival Common Stock or Shares into a
smaller number of shares, or (iv) issue any shares of Carnival Common Stock or
Shares in a reclassification of Carnival Common Stock or Shares, respectively
(including any such reclassification in connection with a consolidation or
merger in which Carnival or the Company is the surviving corporation), then in
each such case, the Exchange Ratio in effect at the time of the record date for
such dividend or of the effective date of such subdivision, combination or
reclassification, shall be proportionately adjusted so that upon the Carnival
Exchange or the closing of the Put Option each Investor shall be entitled to
receive the same aggregate number of shares of Carnival Common Stock which, if
the Carnival Exchange or the closing of the Put Option had occurred immediately
prior to such date, such Investor would have owned upon such Carnival Exchange
or the closing of the Put Option and been entitled to receive by virtue of such
dividend, subdivision, combination or reclassification. If there occurs any
reclassification of the Carnival Common Stock, consolidation or merger of
Carnival with or into another Person (other than a merger or consolidation of
Carnival in which Carnival is the continuing corporation and which does not
result in any reclassification or change of outstanding shares of the Carnival
Common Stock) or the sale or conveyance of all or substantially all of the
assets of Carnival to another Person, then each Investor will thereafter be
entitled to receive, upon the Carnival Exchange or the closing of the Put
Option, the same kind and amounts of securities (including shares of stock) or
other assets, or both, which were issuable or distributable to the holders of
outstanding Carnival Common Stock upon such reclassification, consolidation,
merger, sale or conveyance, in respect of that number of shares of Carnival
Common Stock then deliverable upon the Carnival Exchange or the closing of the
Put Option if the Carnival Exchange or the Put Option had been exercised
immediately prior to such reclassification, consolidation, merger, sale or
conveyance. Any such adjustment of the Exchange Ratio shall become effective
immediately after the record date of such dividend or the effective date of
such subdivision, combination, reclassification, consolidation, merger, sale or
conveyance. Such adjustment of the Exchange Ratio shall be made successively
whenever any event listed above shall occur. If a stock dividend is declared
and such stock dividend is not paid, the Exchange Ratio shall again be adjusted
to be the Exchange Ratio in effect immediately prior to such record date.
9.9 No Claims. Each Investor understands and agrees that it shall have
no claim against the Company, Newco, Carnival or any of their directors,
officers or affiliates if the Initial Public Offering shall not occur or if
Carnival elects to effect the Carnival Exchange and to the fullest extent
permitted by law, waives any such claim.
ARTICLE 10.
RIGHT TO PARTICIPATE IN CERTAIN ISSUANCE OF CAPITAL SHARES
10.1 Right to Participate in New Issuance. If the Company determines to
issue any Shares or any security convertible into or exercisable or
exchangeable for Shares, to any shareholder of the Company (including a
Shareholder) (other than capital shares to be issued (i) in connection with an
employee stock option plan or other bona fide employment compensation
arrangement that is approved by the Company's Board of Directors, (ii) pursuant
to a stock split or stock dividend, (iii) pursuant to the exercise of any
option, warrant or convertible security theretofore issued, (iv) as
consideration in connection with a bona fide acquisition by the Company or any
of its subsidiaries or (v) pursuant to the Initial Public Offering) (each such
issuance not excluded by the immediately preceding parenthetical being herein
referred to as a "New Issuance"), then the Company shall notify the
Shareholders of the proposed New Issuance. Such notice shall specify the
number and class of securities to be issued, the rights, terms and privileges
thereof and the estimated price at which such securities will be issued.
10.2 Exercise of Right. By written notice to the Company given within 15
Business Days of being notified of such New Issuance, each Shareholder shall be
entitled to purchase that percentage of New Issuance determined by dividing (a)
the total number of Shares owned by such Shareholder by (b) the total number of
all outstanding Shares. Such right shall be exercisable within 15 Business
Days following the receipt of the notice delivered pursuant to the previous
sentence. To the extent the Shareholders do not elect to purchase all of the
securities proposed to be offered and sold in the New Issuance, the Company may
issue those securities not so subscribed for to the shareholders participating
in such issuance, provided that such sales are consummated within 120 Business
Days after the Shareholders? rights hereunder have expired or been waived.
10.3 Closing. The closing of the New Issuance shall be held at such time
as the Company shall designate in writing to the Shareholders that elect to
purchase securities in the new Issuance pursuant to this Article 10 not fewer
than five Business Days prior to the date of such closing, at the Company's
principal offices, or at another place designated by the Company in writing to
such Shareholders in such notice.
ARTICLE 11.
SHARES CERTIFICATE LEGEND
The Company and Shareholders agree that each certificate representing the
Shares now or hereafter held by a Shareholder shall be endorsed with a legend
in substantially the following form:
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR THE
SECURITIES LAWS OF ANY STATE. THE SECURITIES MAY NOT BE OFFERED FOR
SALE, SOLD OR OTHERWISE TRANSFERRED EXCEPT PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT UNDER SUCH ACT AND APPLICABLE STATE SECURITIES
LAWS OR PURSUANT TO AN APPLICABLE EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF SUCH ACT AND SUCH LAWS.
THE SALE, ASSIGNMENT, HYPOTHECATION, PLEDGE, ENCUMBRANCE OR OTHER
DISPOSITION (EACH A "TRANSFER" AND VOTING OF ANY OF THE SECURITIES
REPRESENTED BY THIS CERTIFICATE ARE RESTRICTED BY THE TERMS OF THE
SUBSCRIPTION AGREEMENT, DATED AS OF MAY 27, 1998 (THE "SUBSCRIPTION
AGREEMENT", AMONG SEABOURN CRUISE LINE LIMITED, (THE "COMPANY",
CARNIVAL CORPORATION AND THE PERSONS NAMED THEREIN, A COPY OF WHICH
MAY BE INSPECTED AT THE COMPANY'S PRINCIPAL OFFICE. THE COMPANY WILL
NOT REGISTER THE TRANSFER OF SUCH SECURITIES ON THE BOOKS OF THE
COMPANY UNLESS AND UNTIL THE TRANSFER HAS BEEN MADE IN COMPLIANCE
WITH THE TERMS OF THE SUBSCRIPTION' AGREEMENT."
ARTICLE 12.
AFTER-ACQUIRED SECURITIES
Except as otherwise provided in Article 14, all of the provisions of this
Agreement shall apply to all of the Shares now owned or that may be issued or
transferred hereafter to a Shareholder in consequence of any additional
issuance, purchase, exchange or reclassification of any of the Shares
(including without limitation, upon the exercise of any option or warrant),
corporate reorganization, or any other form of recapitalization, consolidation,
merger, share split or share dividend, or that are acquired by a Shareholder in
any other manner, and, in the case of any such event, appropriate adjustment
shall be made to any number of Shares hereunder to take account of such event
provided, however, that, with respect to CG, only (i) Shares issued pursuant to
this Agreement and (ii) Shares issued as a result of a recapitalization,
reclassification, combination, stock dividend or otherwise with respect to
Shares issued pursuant to this Agreement shall be subject to the terms of this
Agreement.
ARTICLE 13.
TRANSACTIONS WITH AFFILIATES
13.1 Limitation on Transactions with Affiliates. From and after the
Closing, the Company will not sell, lease, transfer or otherwise dispose of any
of its properties or assets to, or purchase any property or assets from, or
enter into or make any contract, agreement, loan, advance or guarantee with, or
for the benefit of, any Affiliate (each of the foregoing, an "Affiliate
Transaction"), unless such Affiliate Transaction is on terms no less favorable
to the Company than those that could be obtained an arm's length basis with a
third party.
13.2 Exceptions. The limitation under Section 13.1 does not limit, and
shall not apply to (i) any transaction or series of transactions approved by a
majority of the disinterested members of the Board of Directors; (ii) any
transaction between the Company and a wholly-owned subsidiary; (iii) the
payment of reasonable compensation to directors and officers of the Company;
(iv) reasonable loans made by the Company to its officers and directors as
approved by the Board of Directors; (v) any employment agreement with officers
entered into by the Company in the ordinary course of business of the Company.
ARTICLE 14.
TERMINATION
14.1 General. This Agreement shall become effective upon the execution
hereof and shall terminate upon the earlier of:
(i) the consummation by the Company of the Initial Public Offering
or the consummation of the Carnival Exchange; and
(ii) such earlier date as the Shareholders shall unanimously agree
in writing to terminate this Agreement.
14.2 Non-Consummation of Cunard Acquisition. This Agreement shall
terminate (i) upon the termination of the Sale and Purchase Agreement or
(ii) if acquisition of the business of Cunard is not consummated for any
reason.
14.3 Return of Shares and Purchase Price. If this Agreement is
terminated pursuant to Section 14.2 and the Company has issued the Shares to
the Investors under Section 2.1(a) and the Investors have paid to the Company
the purchase price under Section 2.1(b), then the Investors shall surrender to
the Company the certificates representing the Shares and upon the receipt of
such Shares, the Company shall repay to each Investor such amount as such
Investor paid under Section 2.1(b) by wire transfer of immediately available
funds to such account as may be designated by each Investor to the Company.
14.4 Shareholder No Longer Holds Shares. Notwithstanding Section 14.1,
this Agreement shall terminate permanently as to any Shareholder at such time
as such Shareholder no longer owns any Shares; provided that any other Person
that holds any Shares previously held by a Shareholder and has agreed to be
bound hereby in accordance with the terms hereof in connection with the
Transfer to such other Person shall continue to be bound hereby as a
Shareholder with respect to such Shares.
14.5 No Liability. If this Agreement is terminated as provided in
Section 14.2, no party shall have any liability or further obligation to any
other party under this Agreement.
ARTICLE 15.
CONFIDENTIALITY
All information relating to the Company provided to any Investor shall be
kept confidential and shall not be disclosed to any third party except (a) as
has become generally available to the public (other than through disclosure by
such Investor in contravention of this Agreement), (b) to such Investor's
directors, officers, trustees, partners, employees, agents and professional
consultants on a need-to-know basis, (c) to any other Shareholder, (d) to any
Person to which such Investor offers to sell or transfer any Shares, provided
that the prospective transferee shall agree to be bound by the provisions of
this Article 15, or (e) in order to comply with any law, rule, regulation or
order applicable to such Investor.
ARTICLE 16.
MISCELLANEOUS
16.1 Survival of Representations, Warranties, Other Agreements and
Undertakings. All of the representations and warranties, as well as those
other agreements and undertakings made herein to be performed after the Closing
Date, shall survive the execution and delivery of this Agreement, any
investigation by or on behalf of the Investors or acceptance of the Shares.
16.2 Notices. All notices, demands and other communications provided for
or permitted hereunder shall be made in writing and shall be by registered or
certified first-class mail, return receipt requested, telecopier, courier
service, overnight mail or personal delivery:
(a) if to the Company:
▇▇▇▇ ▇.▇. ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: General Counsel
with a copy to:
Thommessen ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇ ▇▇▇'▇ ▇▇▇▇ ▇▇, ▇.▇. ▇▇▇ ▇▇▇▇
▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇
Telecopier No.: (▇▇) ▇▇ ▇▇ ▇▇ ▇▇
(b) if to Carnival:
Carnival Corporation
▇▇▇▇ ▇.▇. ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: General Counsel
with a copy to:
▇▇▇▇, Weiss, Rifkind, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
(c) if to the Investors:
Christiania Markets
▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇
Telecopy: (▇▇) ▇▇ ▇▇ ▇▇ ▇▇
with a copy to:
Haight, Gardner, Holland & Knight
▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Telcopy: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Esq.
All such notices and communications shall be deemed to have been duly
given when delivered by hand, if personally delivered; when delivered by
courier, if delivered by commercial courier service; five (5) Business Days
after being deposited in the mail, postage prepaid, if mailed by airmail; and
when receipt is mechanically acknowledged, if telecopied.
16.3 Fees and Expenses. The Company agrees (i) to pay to Christiania a
fee equal to 2% of the purchase price paid by the Investors, under this
Agreement (up to a maximum amount of US $2,000,000) with US $1,600,000 to be
paid on the Closing Date and the remainder to be paid on the date on which the
additional Shares are issued under Section 2.3 and (ii) to reimburse
Christiania for the reasonable third-party fees and expenses incurred by
Christiania in connection with the negotiation, execution and delivery of the
Sale and Purchase Agreement and this Agreement (up to a maximum amount of US
$350,000) on the Closing Date.
16.4 Carnival Expenses. The Company agrees to reimburse Carnival for all
out-of-pocket expenses incurred by Carnival in connection with the transactions
contemplated by the Sale and Purchase Agreement and this Agreement and the
transactions contemplated thereby and hereby (including, without limitation,
travel, expenses and legal and accounting fees and expenses).
16.5 Third Party Beneficiaries. Nothing herein expressed or implied is
intended to or shall be construed to confer upon or give any person or entity,
other than the parties hereto, and their respective successors, permitted
assigns and affiliates, any rights or remedies under or by reason of this
Agreement.
16.6 Successors and Assigns. This Agreement shall inure to the benefit
of and be binding upon the successors and permitted assigns of the parties
hereto. The Company may not assign any of its rights or obligations under this
Agreement, except to a successor-in-interest to the Company, without the
written consent of the Majority Investors and no Shareholder may assign any of
its rights or obligations without the consent of the Company (except for an
assignment pursuant to Section 6.3).
16.7 Amendment and Waiver.
(a) Any amendment, supplement or modification of or to any provision
of this Agreement, any waiver of any provision of this Agreement, and any
consent to any departure by the parties from the terms of any provision of this
Agreement, shall be effective (i) only if it is made or given in writing and
signed by the Company, Carnival and the Majority Investors, and (ii) only in
the specific instance and for the specific purpose for which made or given.
(b) No failure or delay on the part of the parties in exercising any
right, power or remedy hereunder shall operate as a waiver thereof, nor shall
any single or partial exercise of any such right, power or remedy preclude any
other or further exercise thereof or the exercise of any other right, power or
remedy. The remedies provided for herein are cumulative and are not exclusive
of any remedies that may be available to the parties at law, in equity or
otherwise.
16.8 Counterparts. This Agreement may be executed in any number of
counterparts and by the parties hereto in separate counterparts, each of which
when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
16.9 Headings. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
16.10 Governing Law. This Agreement shall be governed by and construed
in accordance with the laws of the State of New York applicable to agreements
made and to be performed entirely within such State.
16.11 Arbitration. (i) After the Closing, any dispute, controversy, or
claim arising out of or relating to any provision of this Agreement or the
interpretation, enforceability, performance, breach, termination, or validity
hereof, including, without limitation, this Section 16.11 shall be solely and
finally settled by arbitration in New York City, the State of New York in
accordance with the Commercial Arbitration Rules and Supplementary Procedures
for International Commercial Arbitration of the American Arbitration
Association as modified by the provisions of this Article. An award rendered
in connection with an arbitration pursuant to this Section 16.11 shall be final
and binding upon the parties, and any judgment upon such an award may be
entered and enforced in any court of competent jurisdiction.
(ii) Proceedings in the arbitration shall be conducted in the
English language, and all documents not in English submitted by either party
must be accompanied by a translation to English.
16.12 Severability. If any one or more of the provisions contained
herein, or the application thereof in any circumstance, is held invalid,
illegal or unenforceable in any respect for any reason, the validity, legality
and enforceability of any such provision in every other respect and of the
remaining provisions hereof shall not be in any way impaired, unless the
provisions held invalid, illegal or unenforceable shall substantially impair
the benefits of the remaining provisions hereof.
16.13 Entire Agreement. This Agreement, together with the schedules
hereto is intended by the parties as a final expression of their agreement and
intended to be a complete and exclusive statement of the agreement and
understanding of the parties hereto in respect of the subject matter contained
herein and therein.
16.14 Further Assurances. Each of the parties shall execute such
documents and perform such further acts (including, without limitation,
obtaining any consents, exemptions, authorizations or other actions by, or
giving any notices to, or making any filings with, any governmental authority
or any other Person) as may be reasonably required or desirable to carry out or
to perform the provisions of this Agreement.
IN WITNESS WHEREOF, each of the parties hereto has executed this Agreement
as of the date first above written.
SEABOURN CRUISE LINE LIMITED
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇
Name: ▇▇▇▇▇▇ ▇▇▇▇
Title: Director
CARNIVAL CORPORATION
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇
Title: Vice President
STOREBRAND
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Portfolio Manager
VITAL
By: : /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Investment Director
VESTA FORSIKRING
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Portfolio Manager
AVANSE
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Inv. Director
INDUSTRIFINANS
By: /s/Bengt Losnedal
Name: Bengt Losnedal
Title: Portfolio Manager
POSTBANKEN VERDIPAPIRFOND
By: /s/ Dagfin Hopsdal
Name: Dagfin Hopsdal
Title: Inv. Director
STATOIL
By: /s/ Terje Moi
Name: Terje Moi
Title: Senior Manager
K-HOLDING
By: /s/ Birger Harneshaug
Name: Birger Harneshaug
Title: Adm. Director
TOLUMA (WILH.WILHELMSEN)
By: /s/ ▇▇▇▇ ▇▇▇▇
Name: ▇▇▇▇ ▇▇▇▇
Title: Managing Director
K-FONDENE
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇
Name: ▇▇▇▇▇▇ ▇▇▇▇▇
Title:
VESTA FORVALTNING
By: /s/ Hogne Tyssoy
Name: Hogne Tyssoy
Title: Investment Director
GJENSIDIGE FORSLKRING
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
Title: Portfolio Manager
HAFSLUND INVEST
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇
Name: ▇▇▇▇▇▇ ▇▇▇▇
Title:
▇▇ ▇▇▇▇▇▇ INVEST AS
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇
Name: ▇▇▇▇▇▇ ▇▇▇▇
Title: Attorney-in-fact
CHRISTIANIA BANK OG KREDITKASSE ASA
By: /s/ ▇▇▇ ▇▇▇▇▇
Name: ▇▇▇ ▇▇▇▇▇
Title:
Christiania irrevocably and unconditionally guarantees the due and punctual
payment of the purchase price by each Investor under Section 2.1(b) and any
Investor Purchase Price Adjustment owed by any Investor under Section 2.3.
CHRISTIANIA MARKETS
By: /s/ ▇▇▇ ▇▇▇▇▇
Name: ▇▇▇ ▇▇▇▇▇
Title:
Schedule 2.1
Subscription for Shares
Initial
Subscription
Price To Be Shares Assumed
Paid At To Be Investor Investment
Closing Issued at Share Percentage
(US$) Closing Adjustment ( % )
Storebrand
Storebrand Liv 12,912,241 1,032,979 258,245 11.31
Helikopeterservice PK fund 53,790 4,303 1,076 0.05
Wilh.▇▇▇▇▇▇▇▇▇▇ ▇▇ fund 63,751 5,100 1,275 0.06
Bergens Tidende PK fund 11,289 903 226 0.01
▇▇▇▇▇▇▇▇ ▇.▇. PK fund 40,110 3,209 802 0.04
IBM konsern PK fund 358,601 28,688 7,172 0.31
▇▇▇▇▇ ▇▇▇▇▇ PK fund 46,485 3,719 930 0.04
Kvinherad Kom Kraft fund 80,619 6,450 1,612 0.07
Sparebankenes Sikrings fund 73,978 5,918 1,480 0.06
Forretningsbankenes Sikrings 55,118 4,409 1,102 0.05
fund
▇▇▇▇▇
Vital Forsikring 9,130,656 730,452 182,613 8.00
Vesta Forsikring
Vesta Forsikring 3,968,858 317,509 79,377 3.48
Vesta Liv 2,432,526 194,602 48,651 2.13
Avanse
Avanse Vekst 2,282,664 182,613 45,653 2.00
Avanse Shipping 913,066 73,045 18,261 0.80
Avanse Kapital 5,934,926 474,794 118,699 5.20
Industrifinans
Industrifinans Aktiv 3,245,353 259,628 64,907 2.84
Industrifinans Aksje Norge 2,342,212 187,377 46,844 2.05
Industrifinans Stor ▇▇▇▇▇ 1,310,051 104,804 26,201 1.15
Postbanken Verdipapirfond
Postbanken Aksjespar 5,441,176 435,294 108,824 4.77
Postbanken Aksjevekst 960,208 76,817 19,204 0.84
Statoil
Statoil 6,401,384 512,111 128,028 5.61
K-Holding
K-Holding 2,580,403 206,432 51,608 2.26
Toluma (Wilh. Wilhelmsen)
Skips AS Tudor 2,647,890 211,831 52,958 2.32
AS Wingana 913,066 73,045 18,261 0.80
Katten Invest DA 91,307 7,305 1,826 0.08
K-fondene
K-Avkastning 5,972,640 477,811 119,453 5.23
K-Kapital 2,328,317 186,265 46,566 2.04
K-Vekst 1,822,161 145,773 36,443 1.60
Vesta forvaltning
Vesta AMS 2,257,852 180,628 45,157 1.98
Vesta Horisont 922,990 73,839 18,460 0.81
Vesta 2010 248,116 19,849 4,962 0.22
Vesta 2020 129,020 10,322 2,580 0.11
Vesta 2030 94,284 7,543 1,886 0.08
Gjensidige Forslkring
Gjensidige Skade 913,066 73,045 18,261 0.80
Gjensidige Liv 3,652,262 292,181 73,045 3.20
Hafslund Invest 2,719,348 217,548 54,387 2.38
▇▇ ▇▇▇▇▇▇ Invest AS
▇▇ ▇▇▇▇▇▇ Invest AS 26,796,490 2,143,719 535,930 23.48
Christiania Bank ASA
Christiania Bank ASA 1,984,925 158,794 39,699 1.74
TOTAL 114,133,199 9,130,656 2,282,664 100.0