CARNIVAL PLC 10-Q for FY2022 Q1
CARNIVAL PLC (CUK)
10-Q
2022-03-28
For: 2022-02-28
View Original
Added on
April 11, 2026
About this 10-Q
CARNIVAL PLC filed this 10-Q on March 28, 2022, covering the quarter ended February 28, 2022 (FY2022 Q1).
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 10-Q
(Mark One)
| QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 | |||||
For the quarterly period ended February 28, 2022
OR
| TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 | |||||
For the transition period from to
Commission file number: | Commission file number: | |||||||||||||||||||
 | ||||||||||||||||||||
| (Exact name of registrant as specified in its charter) | (Exact name of registrant as specified in its charter) | |||||||||||||||||||
Republic of | ||||||||||||||||||||
| (State or other jurisdiction of incorporation or organization) | (State or other jurisdiction of incorporation or organization) | |||||||||||||||||||
| (I.R.S. Employer Identification No.) | (I.R.S. Employer Identification No.) | |||||||||||||||||||
| (Address of principal executive offices) (Zip Code) | (Address of principal executive offices) (Zip Code) | |||||||||||||||||||
| (Registrant’s telephone number, including area code) | (Registrant’s telephone number, including area code) | |||||||||||||
| None | None | |||||||||||||
| (Former name, former address and former fiscal year, if changed since last report) | (Former name, former address and former fiscal year, if changed since last report) | |||||||||||||
Securities registered pursuant to Section 12(b) of the Act:
| Title of each class | Trading Symbol(s) | Name of each exchange on which registered | ||||||
| Ordinary Shares each represented by American Depository Shares ($1.66 par value), Special Voting Share, GBP 1.00 par value and Trust Shares of beneficial interest in the P&O Princess Special Voting Trust | ||||||||
Indicate by check mark whether the registrants (1) have filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months (or for such shorter period that the registrants were required to file such reports), and (2) have been subject to such filing requirements for the past 90 days. Yes ☑ No ☐
Indicate by check mark whether the registrants have submitted electronically every Interactive Data File required to be submitted pursuant to Rule 405 of Regulation S-T (§ 232.405 of this chapter) during the preceding 12 months (or for such shorter period that the registrants were required to submit such files). Yes ☑ No ☐
Indicate by check mark whether the registrants are large accelerated filers, accelerated filers, non-accelerated filers, smaller reporting companies, or emerging growth companies. See the definitions of “large accelerated filer,” “accelerated filer,” “smaller reporting company” and “emerging growth company” in Rule 12b-2 of the Exchange Act.
| ☑ | Accelerated filers | ☐ | Non-accelerated filers | ☐ | Smaller reporting companies | Emerging growth companies | |||||||||||||||||||||||
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If emerging growth companies, indicate by check mark if the registrants have elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ☐
Indicate by check mark whether the registrants are shell companies (as defined in Rule 12b-2 of the Exchange Act). Yes ☐
At March 21, 2022, Carnival Corporation had outstanding | At March 21, 2022, Carnival plc had outstanding | |||||||
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CARNIVAL CORPORATION & PLC
TABLE OF CONTENTS
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| Item 2. | ||||||||||||||
| Item 3. | ||||||||||||||
| Item 4. | ||||||||||||||
| Item 1. | ||||||||||||||
| Item 1A. | ||||||||||||||
| Item 2. | ||||||||||||||
| Item 6. | ||||||||||||||
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PART I - FINANCIAL INFORMATION
Item 1. Financial Statements.
CARNIVAL CORPORATION & PLC
CONSOLIDATED STATEMENTS OF INCOME (LOSS)
(UNAUDITED)
(in millions, except per share data)
| Three Months Ended February 28, | |||||||||||||||||||||||
| 2022 | 2021 | ||||||||||||||||||||||
| Revenues | |||||||||||||||||||||||
| Passenger ticket | $ | $ | |||||||||||||||||||||
| Onboard and other | |||||||||||||||||||||||
| Operating Costs and Expenses | |||||||||||||||||||||||
| Commissions, transportation and other | |||||||||||||||||||||||
| Onboard and other | |||||||||||||||||||||||
| Payroll and related | |||||||||||||||||||||||
| Fuel | |||||||||||||||||||||||
| Food | |||||||||||||||||||||||
| Ship and other impairments | |||||||||||||||||||||||
| Other operating | |||||||||||||||||||||||
| Selling and administrative | |||||||||||||||||||||||
| Depreciation and amortization | |||||||||||||||||||||||
| Operating Income (Loss) | ( | ( | |||||||||||||||||||||
| Nonoperating Income (Expense) | |||||||||||||||||||||||
| Interest income | |||||||||||||||||||||||
| Interest expense, net of capitalized interest | ( | ( | |||||||||||||||||||||
| Gains (losses) on debt extinguishment, net | |||||||||||||||||||||||
| Other income (expense), net | ( | ( | |||||||||||||||||||||
| ( | ( | ||||||||||||||||||||||
| Income (Loss) Before Income Taxes | ( | ( | |||||||||||||||||||||
| Income Tax Benefit (Expense), Net | ( | ||||||||||||||||||||||
| Net Income (Loss) | $ | ( | $ | ( | |||||||||||||||||||
| Earnings Per Share | |||||||||||||||||||||||
| Basic | $ | ( | $ | ( | |||||||||||||||||||
| Diluted | $ | ( | $ | ( | |||||||||||||||||||
The accompanying notes are an integral part of these consolidated financial statements.
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CARNIVAL CORPORATION & PLC
CONSOLIDATED STATEMENTS OF COMPREHENSIVE INCOME (LOSS)
(UNAUDITED)
(in millions)
| Three Months Ended February 28, | |||||||||||||||||||||||
| 2022 | 2021 | ||||||||||||||||||||||
| Net Income (Loss) | $ | ( | $ | ( | |||||||||||||||||||
| Items Included in Other Comprehensive Income (Loss) | |||||||||||||||||||||||
| Change in foreign currency translation adjustment | |||||||||||||||||||||||
| Other | |||||||||||||||||||||||
| Other Comprehensive Income (Loss) | |||||||||||||||||||||||
| Total Comprehensive Income (Loss) | $ | ( | $ | ( | |||||||||||||||||||
The accompanying notes are an integral part of these consolidated financial statements.
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CARNIVAL CORPORATION & PLC
CONSOLIDATED BALANCE SHEETS
(UNAUDITED)
(in millions, except par values)
| February 28, 2022 | November 30, 2021 | ||||||||||
| ASSETS | |||||||||||
| Current Assets | |||||||||||
| Cash and cash equivalents | $ | $ | |||||||||
| Short-term investments | |||||||||||
| Trade and other receivables, net | |||||||||||
| Inventories | |||||||||||
| Prepaid expenses and other | |||||||||||
| Total current assets | |||||||||||
| Property and Equipment, Net | |||||||||||
| Operating Lease Right-of-Use Assets | |||||||||||
| Goodwill | |||||||||||
| Other Intangibles | |||||||||||
| Other Assets | |||||||||||
| $ | $ | ||||||||||
| LIABILITIES AND SHAREHOLDERS’ EQUITY | |||||||||||
| Current Liabilities | |||||||||||
| Short-term borrowings | $ | $ | |||||||||
| Current portion of long-term debt | |||||||||||
| Current portion of operating lease liabilities | |||||||||||
| Accounts payable | |||||||||||
| Accrued liabilities and other | |||||||||||
| Customer deposits | |||||||||||
| Total current liabilities | |||||||||||
| Long-Term Debt | |||||||||||
Long-Term Operating Lease Liabilities | |||||||||||
| Other Long-Term Liabilities | |||||||||||
| Contingencies and Commitments | |||||||||||
| Shareholders’ Equity | |||||||||||
Common stock of Carnival Corporation, $ | |||||||||||
Ordinary shares of Carnival plc, $ | |||||||||||
| Additional paid-in capital | |||||||||||
| Retained earnings | |||||||||||
| Accumulated other comprehensive income (loss) (“AOCI”) | ( | ( | |||||||||
Treasury stock, | ( | ( | |||||||||
| Total shareholders’ equity | |||||||||||
| $ | $ | ||||||||||
The accompanying notes are an integral part of these consolidated financial statements.
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CARNIVAL CORPORATION & PLC
CONSOLIDATED STATEMENTS OF CASH FLOWS
(UNAUDITED)
(in millions)
| Three Months Ended February 28, | |||||||||||
| 2022 | 2021 | ||||||||||
| OPERATING ACTIVITIES | |||||||||||
| Net income (loss) | $ | ( | $ | ( | |||||||
| Adjustments to reconcile net income (loss) to net cash provided by (used in) operating activities | |||||||||||
| Depreciation and amortization | |||||||||||
| Impairments | |||||||||||
| (Gain) loss on debt extinguishment | ( | ||||||||||
| (Income) loss from equity-method investments | |||||||||||
| Share-based compensation | |||||||||||
| Amortization of discounts and debt issue costs | |||||||||||
| Noncash lease expense | |||||||||||
| Other, net | |||||||||||
| ( | ( | ||||||||||
| Changes in operating assets and liabilities | |||||||||||
| Receivables | ( | ||||||||||
| Inventories | ( | ( | |||||||||
| Prepaid expenses and other | ( | ( | |||||||||
| Accounts payable | ( | ( | |||||||||
| Accrued liabilities and other | ( | ||||||||||
| Customer deposits | ( | ||||||||||
| Net cash provided by (used in) operating activities | ( | ( | |||||||||
| INVESTING ACTIVITIES | |||||||||||
| Purchases of property and equipment | ( | ( | |||||||||
| Proceeds from sales of ships and other | |||||||||||
| Purchase of short-term investments | ( | ( | |||||||||
| Derivative settlements and other, net | ( | ||||||||||
| Net cash provided by (used in) investing activities | ( | ( | |||||||||
| FINANCING ACTIVITIES | |||||||||||
| Proceeds from (repayments of) short-term borrowings, net | ( | ||||||||||
| Principal repayments of long-term debt | ( | ( | |||||||||
| Proceeds from issuance of long-term debt | |||||||||||
| Issuance of common stock, net | |||||||||||
| Issuance of common stock under the Stock Swap Program | |||||||||||
| Purchase of treasury stock under the Stock Swap Program | ( | ||||||||||
| Debt issue costs and other, net | ( | ( | |||||||||
| Net cash provided by (used in) financing activities | |||||||||||
| Effect of exchange rate changes on cash, cash equivalents and restricted cash | ( | ||||||||||
| Net increase (decrease) in cash, cash equivalents and restricted cash | ( | ||||||||||
| Cash, cash equivalents and restricted cash at beginning of period | |||||||||||
| Cash, cash equivalents and restricted cash at end of period | $ | $ | |||||||||
The accompanying notes are an integral part of these consolidated financial statements.
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CARNIVAL CORPORATION & PLC
CONSOLIDATED STATEMENTS OF SHAREHOLDERS’ EQUITY
(UNAUDITED)
(in millions)
| Common stock | Ordinary shares | Additional paid-in capital | Retained earnings | AOCI | Treasury stock | Total shareholders’ equity | |||||||||||||||||||||||||||||||||||
| At November 30, 2020 | $ | $ | $ | $ | $ | ( | $ | ( | $ | ||||||||||||||||||||||||||||||||
| Net income (loss) | — | — | — | ( | — | — | ( | ||||||||||||||||||||||||||||||||||
| Other comprehensive income (loss) | — | — | — | — | — | ||||||||||||||||||||||||||||||||||||
| Issuance of common stock, net | — | — | — | — | — | ||||||||||||||||||||||||||||||||||||
| Share-based compensation and other | — | — | — | — | — | ||||||||||||||||||||||||||||||||||||
| At February 28, 2021 | $ | $ | $ | $ | $ | ( | $ | ( | $ | ||||||||||||||||||||||||||||||||
| At November 30, 2021 | $ | $ | $ | $ | $ | ( | $ | ( | $ | ||||||||||||||||||||||||||||||||
| Net income (loss) | — | — | — | ( | — | — | ( | ||||||||||||||||||||||||||||||||||
| Other comprehensive income (loss) | — | — | — | — | — | ||||||||||||||||||||||||||||||||||||
| Issuances of common stock, net | — | ||||||||||||||||||||||||||||||||||||||||
| Purchases and issuances under the Stock Swap program, net | — | — | — | — | ( | ||||||||||||||||||||||||||||||||||||
| Issuance of treasury shares for vested share-based awards | — | — | — | ( | |||||||||||||||||||||||||||||||||||||
| Share-based compensation and other | — | — | — | ||||||||||||||||||||||||||||||||||||||
| At February 28, 2022 | $ | $ | $ | $ | $ | ( | $ | ( | $ | ||||||||||||||||||||||||||||||||
The accompanying notes are an integral part of these consolidated financial statements.
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CARNIVAL CORPORATION & PLC
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(UNAUDITED)
NOTE 1 – General
The consolidated financial statements include the accounts of Carnival Corporation and Carnival plc and their respective subsidiaries. Together with their consolidated subsidiaries, they are referred to collectively in these consolidated financial statements and elsewhere in this joint Quarterly Report on Form 10-Q as “Carnival Corporation & plc,” “our,” “us” and “we.”
Liquidity and Management’s Plans
In the face of the global impact of COVID-19, we paused our guest cruise operations in mid-March 2020. As of February 28, 2022, 71 % of our capacity had resumed guest cruise operations as part of our ongoing return to service. The extent of the effects of COVID-19 on our business are uncertain and will depend on future developments, including, but not limited to, the duration and continued severity of COVID-19 and the length of time it takes to return the company to profitability. The ongoing resumption of our guest cruise operations and the increased uncertainty given the current invasion of Ukraine, including its effect on the price of fuel, are collectively having a material negative impact on our business, including our liquidity, financial position and results of operations.
The estimation of our future liquidity requirements includes numerous assumptions that are subject to various risks and uncertainties. The principal assumptions used to estimate our future liquidity requirements consist of:
•Ongoing resumption of guest cruise operations, with each brand’s full fleet expected to be back in guest cruise operations for its respective summer season where we historically generate the largest share of our operating income
•Expected sustained increase in revenue per passenger cruise day through a combination of both passenger ticket and onboard revenue as compared to 2019
•Expected improvement in occupancy throughout 2022 until we return to historical occupancy levels in 2023
•Expected continued spend to maintain enhanced health and safety protocols and to support the ongoing resumption of guest cruise operations, including completing the return of crew members to our ships
•Fuel prices
•Maintaining collateral and reserves at reasonable levels
In addition, we make certain assumptions about new ship deliveries, improvements and removals, and consider the future export credit financings that are associated with the new ship deliveries.
We cannot make assurances that our assumptions used to estimate our liquidity requirements may not change because we have never previously experienced a complete cessation and subsequent ongoing resumption of our guest cruise operations, and as a consequence, our ability to be predictive is uncertain. In addition, the magnitude and duration of the global pandemic and the current invasion of Ukraine are uncertain. We have made reasonable estimates and judgments of the impact of these events within our consolidated financial statements and there may be changes to those estimates in future periods. We have taken actions to improve our liquidity, including completing various capital market transactions, capital expenditure and operating expense reductions and accelerating the removal of certain ships from our fleet. In addition, we expect to continue to pursue refinancing opportunities to reduce interest expense and extend maturities and if appropriate, obtain relevant financial covenant amendments.
Based on these actions and our assumptions regarding the impact of COVID-19, considering our $7.2 billion of liquidity including cash, short-term investments and borrowings available under our revolving facility at February 28, 2022, as well as our continued ongoing return to service, we have concluded that we have sufficient liquidity to satisfy our obligations for at least the next twelve months.
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NOTE 2 – Revenue and Expense Recognition
Guest cruise deposits are initially included in customer deposit liabilities when received. Customer deposits are subsequently recognized as cruise revenues, together with revenues from onboard and other activities, and all associated direct costs and expenses of a voyage are recognized as cruise costs and expenses, upon completion of voyages with durations of ten nights or less and on a pro rata basis for voyages in excess of ten nights. The impact of recognizing these shorter duration cruise revenues and costs and expenses on a completed voyage basis versus on a pro rata basis is not material. Certain of our product offerings are bundled and we allocate the value of the bundled services and goods between passenger ticket revenues and onboard and other revenues based upon the estimated standalone selling prices of those goods and services. Guest cancellation fees, when applicable, are recognized in passenger ticket revenues at the time of cancellation.
Our sales to guests of air and other transportation to and from airports near the home ports of our ships are included in passenger ticket revenues, and the related costs of purchasing these services are included in transportation costs. The proceeds that we collect from the sales of third-party shore excursions are included in onboard and other revenues and the related costs are included in onboard and other costs. The amounts collected on behalf of our onboard concessionaires, net of the amounts remitted to them, are included in onboard and other revenues as concession revenues. All of these amounts are recognized on a completed voyage or pro rata basis as discussed above.
Passenger ticket revenues include fees, taxes and charges collected by us from our guests. A portion of these fees, taxes and charges vary with guest head counts and are directly imposed on a revenue-producing arrangement. This portion of the fees, taxes and charges is expensed in commissions, transportation and other costs when the corresponding revenues are recognized. For the three months ended February 28, 2022 and 2021, fees, taxes, and charges included in commissions, transportation and other costs were $68 million and $41 million. The remaining portion of fees, taxes and charges are expensed in other operating expenses when the corresponding revenues are recognized.
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Customer Deposits
Our payment terms generally require an initial deposit to confirm a reservation, with the balance due prior to the voyage. Cash received from guests in advance of the cruise is recorded in customer deposits and in other long-term liabilities on our Consolidated Balance Sheets. These amounts include refundable deposits. We have provided flexibility to guests with bookings on sailings cancelled due to itinerary disruptions by allowing guests to rebook at a future date, receive enhanced future cruise credits (“FCC”) or elect to receive refunds in cash. Enhanced FCCs provide the guest with an additional credit value above the original cash deposit received, and the enhanced value is recognized as a discount applied to the future cruise in the period used. We have paid refunds of customer deposits with respect to a portion of cancelled cruises. The amount of any future cash refunds may depend on future cruise cancellations and guest rebookings. We record a liability for unexpired FCCs to the extent we have received and not refunded cash from guests for cancelled bookings. We had total customer deposits of $3.7 billion as of February 28, 2022 and $3.5 billion as of November 30, 2021. Refunds payable to guests who have elected cash refunds are recorded in accounts payable. During the three months ended February 28, 2022 and 2021, we recognized revenues of $1.0 billion and an immaterial amount related to our customer deposits as of November 30, 2021 and 2020. Historically, our customer deposits balance changes due to the seasonal nature of cash collections, the recognition of revenue, refunds of customer deposits and foreign currency translation.
Contract Receivables
Although we generally require full payment from our customers prior to or concurrently with their cruise, we grant credit terms to a relatively small portion of our revenue source. We also have receivables from credit card merchants for cruise ticket purchases and onboard revenue. These receivables are included within trade and other receivables, net. We have agreements with a number of credit card processors that transact customer deposits related to our cruise vacations. Certain of these agreements allow the credit card processors to request, under certain circumstances, that we provide a reserve fund in cash. These reserve funds are included in other assets.
Contract Assets
Contract assets are amounts paid prior to the start of a voyage, which we record as an asset within prepaid expenses and other and which are subsequently recognized as commissions, transportation and other at the time of revenue recognition or at the time of voyage cancellation. We had contract assets of $70 million as of February 28, 2022 and $55 million as of November 30, 2021.
NOTE 3 – Debt
Short-Term Borrowings
As of February 28, 2022 and November 30, 2021, our short-term borrowings consisted of $2.7 billion and $2.8 billion under our $1.7 billion, €1.0 billion and £0.2 billion revolving credit facility (the “Revolving Facility”).
Export Credit Facility Borrowings
During the first quarter of 2022, we borrowed $2.3 billion under export credit facilities due in semi-annual installments through 2034.
Covenant Compliance
As of February 28, 2022, our Revolving Facility, unsecured loans and export credit facilities contain certain covenants, the most restrictive of which require us to:
•Maintain minimum interest coverage (adjusted EBITDA to consolidated net interest charges) at the end of each fiscal quarter from February 28, 2023, at a ratio of not less than 2.0 to 1.0 for the February 28, 2023 and May 31, 2023 testing dates, 2.5 to 1.0 for the August 31, 2023 and November 30, 2023 testing dates, and 3.0 to 1.0 for the February 29, 2024 testing date onwards, or through their respective maturity dates
•Maintain minimum shareholders’ equity of $5.0 billion
•Limit our debt to capital (as defined) percentage from the November 30, 2021 testing date until the May 31, 2023 testing date, to a percentage not to exceed 75 %, following which it will be tested at levels which decline ratably to 65 % from the May 31, 2024 testing date onwards
•Maintain minimum liquidity of $1.5 billion through November 30, 2026
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•Adhere to certain restrictive covenants through November 30, 2024
•Limit the amounts of our secured assets as well as secured and other indebtedness
At February 28, 2022, we were in compliance with the applicable covenants under our debt agreements. Generally, if an event of default under any debt agreement occurs, then, pursuant to cross default acceleration clauses, substantially all of our outstanding debt and derivative contract payables could become due, and all debt and derivative contracts could be terminated. Any financial covenant amendment may lead to increased costs, increased interest rates, additional restrictive covenants and other available lender protections that would be applicable.
Carnival Corporation or Carnival plc and certain of our subsidiaries have guaranteed substantially all of our indebtedness.
As of February 28, 2022, the scheduled maturities of our debt are as follows:
| (in millions) | ||||||||
| Year | Principal Payments | |||||||
| 2Q 2022 | $ | |||||||
| 3Q 2022 | ||||||||
| 4Q 2022 | ||||||||
| 2023 | ||||||||
| 2024 (a) | ||||||||
| 2025 | ||||||||
| 2026 | ||||||||
| Thereafter | ||||||||
| Total | $ | |||||||
(a)Includes borrowings of $2.7 billion under our Revolving Facility. Amounts outstanding under our Revolving Facility were drawn in 2020 for an initial six-month term. We may continue to re-borrow or otherwise utilize available amounts under the Revolving Facility through August 2024, subject to satisfaction of the conditions in the facility. We had $0.3 billion available for borrowing under our Revolving Facility as of February 28, 2022. The Revolving Facility also includes an emissions linked margin adjustment whereby, after the initial applicable margin is set per the margin pricing grid, the margin may be adjusted based on performance in achieving certain agreed annual carbon emissions goals. We are required to pay a commitment fee on any unutilized portion.
NOTE 4 – Contingencies and Commitments
Litigation
We are routinely involved in legal proceedings, claims, disputes, regulatory matters and governmental inspections or investigations arising in the ordinary course of or incidental to our business, including those noted below. Additionally, as a result of the impact of COVID-19, litigation claims, enforcement actions, regulatory actions and investigations, including, but not limited to, those arising from personal injury and loss of life, have been and may, in the future, be asserted against us. We expect many of these claims and actions, or any settlement of these claims and actions, to be covered by insurance and historically the maximum amount of our liability, net of any insurance recoverables, has been limited to our self-insurance retention levels.
We record provisions in the consolidated financial statements for pending litigation when we determine that an unfavorable outcome is probable and the amount of the loss can be reasonably estimated.
Legal proceedings and government investigations are subject to inherent uncertainties, and unfavorable rulings or other events could occur. Unfavorable resolutions could involve substantial monetary damages. In addition, in matters for which conduct remedies are sought, unfavorable resolutions could include an injunction or other order prohibiting us from selling one or more products at all or in particular ways, precluding particular business practices or requiring other remedies. An unfavorable outcome might result in a material adverse impact on our business, results of operations, financial position or liquidity.
As previously disclosed, on May 2, 2019, two lawsuits were filed against Carnival Corporation in the U.S. District Court for the Southern District of Florida under Title III of the Cuban Liberty and Democratic Solidarity Act, also known as the Helms-Burton Act, alleging that Carnival Corporation “trafficked” in confiscated Cuban property when certain ships docked at certain ports in Cuba, and that this alleged “trafficking” entitles the plaintiffs to treble damages. In the matter filed by Havana Docks
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Corporation, the hearings on motions for summary judgment were concluded on January 18, 2022. On March 21, 2022, the court granted summary judgment in favor of Havana Docks Corporation as to liability. The amount of damages will be determined at the trial currently scheduled for May 23, 2022. We are assessing our options, including appealing this order. In the matter filed by Javier Bengochea, on October 4, 2021, the U.S. Court of Appeals for the Eleventh Circuit Court heard oral arguments and on December 20, 2021, the court issued an order inviting an amicus brief from the U.S. government on several issues involved in the appeal. We continue to believe we have a meritorious defense to these actions and we believe that any final liability which may arise as a result of these actions is unlikely to have a material impact on our consolidated financial statements.
As previously disclosed, on April 8, 2020, DeCurtis LLC (“DeCurtis”), a former vendor, filed an action against Carnival Corporation in the U.S. District Court for the Middle District of Florida seeking declaratory relief that DeCurtis is not infringing on several of Carnival Corporation’s patents in relation to its OCEAN Medallion systems and technology. The action also raises certain monopolization claims under The Sherman Antitrust Act of 1890, unfair competition and tortious interference, and seeks declaratory judgment that certain Carnival Corporation patents are unenforceable. DeCurtis seeks damages, including its fees and costs, and seeks declarations that it is not infringing and/or that Carnival Corporation’s patents are unenforceable. On April 10, 2020, Carnival Corporation filed an action against DeCurtis in the Southern District of Florida for breach of contract, trade secrets violations and patent infringement. Carnival Corporation seeks damages, including its fees and costs, as well as an order permanently enjoining DeCurtis from engaging in such activities. These two cases have now been consolidated in the Southern District of Florida. The parties’ motions to dismiss in both actions have been granted in part and denied in part. Answers have been filed by both parties. We believe the ultimate outcome will not have a material impact on our consolidated financial statements.
COVID-19 Actions
Private Actions
We have been named in a number of individual actions related to COVID-19. Private parties have brought approximately 73 individual lawsuits as of February 28, 2022 in several U.S. federal and state courts as well as in France, Italy and Brazil. These actions include tort claims based on a variety of theories, including negligence and failure to warn. The plaintiffs in these actions allege a variety of injuries: some plaintiffs confined their claim to emotional distress, while others allege injuries arising from testing positive for COVID-19. A smaller number of actions include wrongful death claims. As of February 28, 2022, 63 of these individual actions have now been dismissed or settled and ten remain. These actions were settled for immaterial amounts.
Additionally, as of February 28, 2022, ten purported class actions have been brought by former guests from Ruby Princess, Diamond Princess, Grand Princess, Coral Princess, Costa Luminosa or Zaandam in several U.S. federal courts and in the Federal Court of Australia. These actions include tort claims based on a variety of theories, including negligence, gross negligence and failure to warn, physical injuries and severe emotional distress associated with being exposed to and/or contracting COVID-19 onboard. As of February 28, 2022, nine of these class actions have either been settled individually or had their class allegations dismissed by the courts and one remains. These actions were settled for immaterial amounts.
All COVID-19 matters seek monetary damages and most seek additional punitive damages in unspecified amounts.
As previously disclosed, on December 15, 2020, a consolidated class action with lead plaintiffs, the New England Carpenters Pension and Guaranteed Annuity Fund and the Massachusetts Laborers’ Pension and Annuity Fund was filed in the U.S. District Court for the Southern District of Florida, alleging violations of Sections 10(b) and 20(a) of the U.S. Securities and Exchange Act of 1934 by making misrepresentations and omissions related to Carnival Corporation’s COVID-19 knowledge and response. Plaintiffs seek to recover unspecified damages and equitable relief for the alleged misstatements and omissions. The plaintiffs filed a second amended complaint on July 2, 2021 and on August 6, 2021, we filed a motion to dismiss, which has now been fully briefed.
We continue to take actions to defend against the above claims.
Governmental Inquiries and Investigations
Federal and non-U.S. governmental agencies and officials are investigating or otherwise seeking information, testimony and/or documents, regarding COVID-19 incidents and related matters. We are investigating these matters internally and are cooperating with all requests. The investigations could result in the imposition of civil and criminal penalties in the future.
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Other Regulatory or Governmental Inquiries and Investigations
We have been, and may continue to be, impacted by breaches in data security and lapses in data privacy, which occur from time to time. These can vary in scope and intent from inadvertent events to malicious motivated attacks.
We responded to a cybersecurity event in May 2019 related to our email accounts, and detected ransomware attacks in August 2020 and December 2020 which resulted in unauthorized access to our information technology systems. We engaged a major cybersecurity firm to investigate these matters and notified relevant law enforcement and regulators of these incidents.
•For the May 2019 and August 2020 events, the investigation, communication and reporting phases are complete. We determined that, for each event, an unauthorized third-party gained access to certain email accounts, which contained personal information relating to some guests, employees and crew for some of our operations.
•For the December 2020 event, the investigation, communication and reporting phases are complete. Regulators were notified, and several, including the primary regulatory authority in the European Union, have closed their files on this matter.
We have been contacted by various regulatory agencies regarding these and other cyber incidents. The New York Department of Financial Services (“NY DFS”) has notified us of their intent to commence proceedings seeking penalties if settlement cannot be reached in advance of litigation. To date, we have not been able to reach an agreement with NY DFS. In addition, State Attorneys General from a number of states have completed their investigation of a data security event announced in March 2020, and the Company is currently negotiating a settlement with the relevant State Attorneys General.
We continue to work with regulators regarding cyber incidents we have experienced. We have incurred legal and other costs in connection with cyber incidents that have impacted us. While at this time we do not believe that these incidents will have a material adverse effect on our business, operations or financial results, no assurances can be given about the future and we may be subject to future litigation, attacks or incidents that could have such a material adverse effect.
We are subject to a court-ordered environmental compliance plan supervised by the U.S. District Court for the Southern District of Florida, which is operative until mid-April 2022 and subjects our operations to additional review and other obligations. Failure to comply with the requirements of this environmental compliance plan or other special conditions of probation could result in fines, which the court has imposed in the past, including during the three months ended February 28, 2022 as reported in the Form 10-K, and restrictions on our operations.
On March 14, 2022, the United States Department of Justice and the United States Environmental Protection Agency notified Carnival Corporation & plc of potential civil penalties and injunctive relief for alleged Clean Water Act violations by owned and operated vessels covered by the 2013 Vessel General Permit. Carnival Corporation & plc is working with these agencies to reach a resolution of this matter. We do not expect this matter to have a material effect on our financial results.
Other Contingent Obligations
Some of the debt contracts we enter into include indemnification provisions obligating us to make payments to the counterparty if certain events occur. These contingencies generally relate to changes in taxes or changes in laws which increase the lender’s costs. There are no stated or notional amounts included in the indemnification clauses, and we are not able to estimate the maximum potential amount of future payments, if any, under these indemnification clauses.
We have agreements with a number of credit card processors that transact customer deposits related to our cruise vacations. Certain of these agreements allow the credit card processors to request, under certain circumstances, that we provide a reserve fund in cash. Although the agreements vary, these requirements may generally be satisfied either through a withheld percentage of customer payments or providing cash funds directly to the credit card processor. As of February 28, 2022 and November 30, 2021, we had $1.1 30
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Ship Commitments
As of February 28, 2022, we expect the timing of our new ship growth capital commitments to be as follows:
(in millions) Year | ||||||||
| Remainder of 2022 | $ | |||||||
| 2023 | ||||||||
| 2024 | ||||||||
| 2025 | ||||||||
| 2026 | ||||||||
| Thereafter | ||||||||
| $ | ||||||||
NOTE 5 – Fair Value Measurements, Derivative Instruments and Hedging Activities and Financial Risks
Fair Value Measurements
Fair value is defined as the amount that would be received for selling an asset or paid to transfer a liability in an orderly transaction between market participants at the measurement date and is measured using inputs in one of the following three categories:
•Level 1 measurements are based on unadjusted quoted prices in active markets for identical assets or liabilities that we have the ability to access. Valuation of these items does not entail a significant amount of judgment.
•Level 2 measurements are based on quoted prices for similar assets or liabilities in active markets, quoted prices for identical or similar assets or liabilities in markets that are not active or market data other than quoted prices that are observable for the assets or liabilities.
•Level 3 measurements are based on unobservable data that are supported by little or no market activity and are significant to the fair value of the assets or liabilities.
Considerable judgment may be required in interpreting market data used to develop the estimates of fair value. Accordingly, certain estimates of fair value presented herein are not necessarily indicative of the amounts that could be realized in a current or future market exchange.
Financial Instruments that are not Measured at Fair Value on a Recurring Basis
| February 28, 2022 | November 30, 2021 | ||||||||||||||||||||||||||||||||||||||||||||||
| Carrying Value | Fair Value | Carrying Value | Fair Value | ||||||||||||||||||||||||||||||||||||||||||||
| (in millions) | Level 1 | Level 2 | Level 3 | Level 1 | Level 2 | Level 3 | |||||||||||||||||||||||||||||||||||||||||
| Liabilities | |||||||||||||||||||||||||||||||||||||||||||||||
| Fixed rate debt (a) | $ | $ | $ | $ | $ | $ | $ | $ | |||||||||||||||||||||||||||||||||||||||
| Floating rate debt (a) | |||||||||||||||||||||||||||||||||||||||||||||||
| Total | $ | $ | $ | $ | $ | $ | $ | $ | |||||||||||||||||||||||||||||||||||||||
(a)The debt amounts above do not include the impact of interest rate swaps or debt issuance costs. The fair values of our publicly-traded notes were based on their unadjusted quoted market prices in markets that are not sufficiently active to be Level 1 and, accordingly, are considered Level 2. The fair values of our other debt were estimated based on current market interest rates being applied to this debt.
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| February 28, 2022 | November 30, 2021 | ||||||||||||||||||||||||||||||||||
| (in millions) | Level 1 | Level 2 | Level 3 | Level 1 | Level 2 | Level 3 | |||||||||||||||||||||||||||||
| Assets | |||||||||||||||||||||||||||||||||||
| Cash and cash equivalents | $ | $ | — | $ | — | $ | $ | — | $ | — | |||||||||||||||||||||||||
| Short-term investments (a) | — | — | — | — | |||||||||||||||||||||||||||||||
| Derivative financial instruments | — | — | — | — | |||||||||||||||||||||||||||||||
| Total | $ | $ | $ | — | $ | $ | $ | — | |||||||||||||||||||||||||||
| Liabilities | |||||||||||||||||||||||||||||||||||
| Derivative financial instruments | $ | — | $ | $ | — | $ | — | $ | $ | — | |||||||||||||||||||||||||
| Total | $ | — | $ | $ | — | $ | — | $ | $ | — | |||||||||||||||||||||||||
Nonfinancial Instruments that are Measured at Fair Value on a Nonrecurring Basis
Valuation of Goodwill and Trademarks
The determination of the fair value of our reporting units’ goodwill and trademarks includes numerous estimates and underlying assumptions that are subject to various risks and uncertainties.
| Goodwill | |||||||||||||||||
| (in millions) | NAA Segment (a) | EA Segment (b) | Total | ||||||||||||||
| November 30, 2021 | $ | $ | — | $ | |||||||||||||
| Exchange movements | — | — | |||||||||||||||
| February 28, 2022 | $ | $ | — | $ | |||||||||||||
(a)North America and Australia (“NAA”)
(b)Europe and Asia (“EA”)
| Trademarks | |||||||||||||||||
| (in millions) | NAA Segment | EA Segment | Total | ||||||||||||||
| November 30, 2021 | $ | $ | $ | ||||||||||||||
| Exchange movements | $ | — | — | ||||||||||||||
| February 28, 2022 | $ | $ | $ | ||||||||||||||
Impairment of Ships
We review our long-lived assets for impairment whenever events or circumstances indicate potential impairment. As a result of the continued effect of COVID-19 on our business, and our updated expectations of the estimated selling values for certain of our ships, we determined that a ship had a net carrying value that exceeded its estimated discounted future cash flows. We compared the estimated selling value to the net carrying value and, as a result, recognized ship impairment charges as summarized in the table below. The principal assumption used in our cash flow analyses was the timing of the sale and its proceeds, which is considered a Level 3 input. We believe that we have made reasonable estimates and judgments as part of our assessment. A change in the principal assumptions, which influences the determination of fair value, may result in a need to perform additional impairment reviews.
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| (in millions) | February 28, 2022 | ||||
| NAA Segment | $ | ||||
| EA Segment | |||||
| Total ship impairments | $ | ||||
We did not recognize any ship impairment charges for the three months ended February 28, 2021.
Refer to Note 1 - “General, COVID-19 and the Use of Estimates and Risks and Uncertainty” for additional discussion.
Derivative Instruments and Hedging Activities
| (in millions) | Balance Sheet Location | February 28, 2022 | November 30, 2021 | ||||||||||||||
| Derivative assets | |||||||||||||||||
| Derivatives designated as hedging instruments | |||||||||||||||||
| Cross currency swaps (a) | Prepaid expenses and other | $ | $ | ||||||||||||||
| Total derivative assets | $ | $ | |||||||||||||||
| Derivative liabilities | |||||||||||||||||
| Derivatives designated as hedging instruments | |||||||||||||||||
| Cross currency swaps (a) | Other long-term liabilities | $ | $ | ||||||||||||||
| Interest rate swaps (b) | Accrued liabilities and other | ||||||||||||||||
| Other long-term liabilities | |||||||||||||||||
| Total derivative liabilities | $ | $ | |||||||||||||||
(a)At February 28, 2022, we had cross currency swaps totaling $598 million that are designated as hedges of our net investment in foreign operations with euro-denominated functional currencies. At February 28, 2022, these cross currency swaps settle through 2028.
(b)We have interest rate swaps designated as cash flow hedges whereby we receive floating interest rate payments in exchange for making fixed interest rate payments. These interest rate swap agreements effectively changed $147 million at February 28, 2022 and $160 million at November 30, 2021 of EURIBOR-based floating rate euro debt to fixed rate euro debt. At February 28, 2022, these interest rate swaps settle through 2025.
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Our derivative contracts include rights of offset with our counterparties. We have elected to net certain of our derivative assets and liabilities within counterparties.
| February 28, 2022 | ||||||||||||||||||||||||||||||||
| (in millions) | Gross Amounts | Gross Amounts Offset in the Balance Sheet | Total Net Amounts Presented in the Balance Sheet | Gross Amounts not Offset in the Balance Sheet | Net Amounts | |||||||||||||||||||||||||||
| Assets | $ | $ | $ | $ | $ | |||||||||||||||||||||||||||
| Liabilities | $ | $ | $ | $ | $ | |||||||||||||||||||||||||||
| November 30, 2021 | ||||||||||||||||||||||||||||||||
| (in millions) | Gross Amounts | Gross Amounts Offset in the Balance Sheet | Total Net Amounts Presented in the Balance Sheet | Gross Amounts not Offset in the Balance Sheet | Net Amounts | |||||||||||||||||||||||||||
| Assets | $ | $ | $ | $ | $ | |||||||||||||||||||||||||||
| Liabilities | $ | $ | $ | $ | $ | |||||||||||||||||||||||||||
| Three Months Ended February 28, | |||||||||||||||||||||||
| (in millions) | 2022 | 2021 | |||||||||||||||||||||
| Gains (losses) recognized in AOCI: | |||||||||||||||||||||||
| Cross currency swaps - net investment hedges - included component | $ | $ | |||||||||||||||||||||
| Cross currency swaps - net investment hedges - excluded component | $ | ( | $ | ||||||||||||||||||||
| Interest rate swaps - cash flow hedges | $ | $ | |||||||||||||||||||||
| Gains (losses) reclassified from AOCI - cash flow hedges: | |||||||||||||||||||||||
| Interest rate swaps - Interest expense, net of capitalized interest | $ | ( | $ | ( | |||||||||||||||||||
| Foreign currency zero cost collars - Depreciation and amortization | $ | $ | |||||||||||||||||||||
| Gains (losses) recognized on derivative instruments (amount excluded from effectiveness testing – net investment hedges) | |||||||||||||||||||||||
| Cross currency swaps - Interest expense, net of capitalized interest | $ | $ | |||||||||||||||||||||
The amount of estimated cash flow hedges’ unrealized gains and losses that are expected to be reclassified to earnings in the next twelve months is not material.
Financial Risks
Fuel Price Risks
We manage our exposure to fuel price risk by managing our consumption of fuel. Substantially all of our exposure to market risk for changes in fuel prices relates to the consumption of fuel on our ships. We manage fuel consumption through ship maintenance practices, modifying our itineraries and implementing innovative technologies.
Foreign Currency Exchange Rate Risks
Overall Strategy
We manage our exposure to fluctuations in foreign currency exchange rates through our normal operating and financing activities, including netting certain exposures to take advantage of any natural offsets and, when considered appropriate, through the use of derivative and non-derivative financial instruments. Our primary focus is to monitor our exposure to, and manage, the economic foreign currency exchange risks faced by our operations and realized if we exchange one currency for another. We consider hedging certain of our ship commitments and net investments in foreign operations. The financial impacts of our hedging instruments generally offset the changes in the underlying exposures being hedged.
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Operational Currency Risks
Our operations primarily utilize the U.S. dollar, Euro, Sterling or the Australian dollar as their functional currencies. Our operations also have revenue and expenses denominated in non-functional currencies. Movements in foreign currency exchange rates affect our financial statements.
Investment Currency Risks
We consider our investments in foreign operations to be denominated in stable currencies and of a long-term nature. We partially mitigate the currency exposure of our investments in foreign operations by designating a portion of our foreign currency debt and derivatives as hedges of these investments. As of February 28, 2022, we have designated $469 million of our sterling-denominated debt as non-derivative hedges of our net investments in foreign operations. For the three months ended February 28, 2022, we recognized $2 million of losses on these non-derivative net investment hedges in the cumulative translation adjustment section of other comprehensive income (loss). We also have euro-denominated debt, including the effect of cross currency swaps, which provides an economic offset for our operations with euro functional currency.
Newbuild Currency Risks
Our shipbuilding contracts are typically denominated in euros. Our decision to hedge a non-functional currency ship commitment for our cruise brands is made on a case-by-case basis, considering the amount and duration of the exposure, market volatility, economic trends, our overall expected net cash flows by currency and other offsetting risks.
At February 28, 2022, our remaining newbuild currency exchange rate risk primarily relates to euro-denominated newbuild contract payments to non-euro functional currency brands, which represent a total unhedged commitment of $6.1 billion for newbuilds scheduled to be delivered through 2025.
The cost of shipbuilding orders that we may place in the future that are denominated in a different currency than our cruise brands’ will be affected by foreign currency exchange rate fluctuations. These foreign currency exchange rate fluctuations may affect our decision to order new cruise ships.
Interest Rate Risks
We manage our exposure to fluctuations in interest rates through our debt portfolio management and investment strategies. We evaluate our debt portfolio to determine whether to make periodic adjustments to the mix of fixed and floating rate debt through the use of interest rate swaps and the issuance of new debt.
Concentrations of Credit Risk
As part of our ongoing control procedures, we monitor concentrations of credit risk associated with financial and other institutions with which we conduct significant business. We seek to manage these credit risk exposures, including counterparty nonperformance primarily associated with our cash equivalents, investments, notes receivables, reserve funds related to customer deposits, future financing facilities, contingent obligations, derivative instruments, insurance contracts, long-term ship charters and new ship progress payment guarantees, by:
•Conducting business with well-established financial institutions, insurance companies and export credit agencies
•Diversifying our counterparties
•Having guidelines regarding credit ratings and investment maturities that we follow to help safeguard liquidity and minimize risk
•Generally requiring collateral and/or guarantees to support notes receivable on significant asset sales, long-term ship charters and new ship progress payments to shipyards
At February 28, 2022, our exposures under derivative instruments were not material. We also monitor the creditworthiness of travel agencies and tour operators in Asia, Australia and Europe, which includes charter-hire agreements in Asia and credit and debit card providers to which we extend credit in the normal course of our business. Concentrations of credit risk associated with trade receivables and other receivables, charter-hire agreements and contingent obligations are not considered to be material, principally due to the large number of unrelated accounts, the nature of these contingent obligations and their short maturities. Normally, we have not required collateral or other security to support normal credit sales. Historically, we have not experienced significant credit losses, including counterparty nonperformance; however, because of the impact COVID-19 is having on economies, we have experienced, and may continue to experience, an increase in credit losses.
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NOTE 6 – Segment Information
Our operating segments are reported on the same basis as the internally reported information that is provided to our chief operating decision maker (“CODM”), who is the President, Chief Executive Officer and Chief Climate Officer of Carnival Corporation and Carnival plc. The CODM assesses performance and makes decisions to allocate resources for Carnival Corporation & plc based upon review of the results across all of our segments. Our four reportable segments are comprised of (1) NAA cruise operations, (2) EA cruise operations, (3) Cruise Support and (4) Tour and Other.
The operating segments within each of our NAA and EA reportable segments have been aggregated based on the similarity of their economic and other characteristics, including geographic guest sourcing. Our Cruise Support segment includes our portfolio of leading port destinations and other services, all of which are operated for the benefit of our cruise brands. Our Tour and Other segment represents the hotel and transportation operations of Holland America Princess Alaska Tours and other operations.
| Three Months Ended February 28, | ||||||||||||||||||||||||||||||||||||||
| (in millions) | Revenues | Operating costs and expenses | Selling and administrative | Depreciation and amortization | Operating income (loss) | |||||||||||||||||||||||||||||||||
| 2022 | ||||||||||||||||||||||||||||||||||||||
| NAA | $ | $ | $ | $ | $ | ( | ||||||||||||||||||||||||||||||||
| EA | ( | |||||||||||||||||||||||||||||||||||||
| Cruise Support | ( | |||||||||||||||||||||||||||||||||||||
| Tour and Other | ( | |||||||||||||||||||||||||||||||||||||
| $ | $ | $ | $ | $ | ( | |||||||||||||||||||||||||||||||||
| 2021 | ||||||||||||||||||||||||||||||||||||||
| NAA | $ | $ | $ | $ | $ | ( | ||||||||||||||||||||||||||||||||
| EA | ( | |||||||||||||||||||||||||||||||||||||
| Cruise Support | ( | |||||||||||||||||||||||||||||||||||||
| Tour and Other | ( | |||||||||||||||||||||||||||||||||||||
| $ | $ | $ | $ | $ | ( | |||||||||||||||||||||||||||||||||
| (in millions) | Three Months Ended February 28, 2022 | ||||||||||
| North America | $ | ||||||||||
| Europe | |||||||||||
| Australia and Asia | |||||||||||
| Other | |||||||||||
| $ | |||||||||||
As a result of the pause in our guest cruise operations, revenue data for the three months ended February 28, 2021 is not included in the table.
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NOTE 7 – Earnings Per Share
| Three Months Ended February 28, | |||||||||||||||||||||||
| (in millions, except per share data) | 2022 | 2021 | |||||||||||||||||||||
| Net income (loss) for basic and diluted earnings per share | $ | ( | $ | ( | |||||||||||||||||||
| Weighted-average shares outstanding | |||||||||||||||||||||||
| Dilutive effect of equity plans | |||||||||||||||||||||||
| Diluted weighted-average shares outstanding | |||||||||||||||||||||||
| Basic earnings per share | $ | ( | $ | ( | |||||||||||||||||||
| Diluted earnings per share | $ | ( | $ | ( | |||||||||||||||||||
Antidilutive shares excluded from diluted earnings per share computations were as follows:
| Three Months Ended February 28, | |||||||||||||||||||||||
| (in millions) | 2022 | 2021 | |||||||||||||||||||||
| Equity awards | |||||||||||||||||||||||
| Convertible Notes | |||||||||||||||||||||||
| Total antidilutive securities | |||||||||||||||||||||||
NOTE 8 – Supplemental Cash Flow Information
| (in millions) | February 28, 2022 | November 30, 2021 | |||||||||
| Cash and cash equivalents (Consolidated Balance Sheets) | $ | $ | |||||||||
| Restricted cash included in prepaid expenses and other and other assets | |||||||||||
| Total cash, cash equivalents and restricted cash (Consolidated Statements of Cash Flows) | $ | $ | |||||||||
NOTE 9 – Property and Equipment
Ship Sales
During 2022, we entered into agreements to sell two NAA segment ships and completed the sale of one EA segment ship, which represent a passenger-capacity reduction of 4,110 for our NAA segment and 1,410 for our EA segment.
Refer to Note 5 - “Fair Value Measurements, Derivative Instruments and Hedging Activities and Financial Risks, Nonfinancial Instruments that are Measured at Fair Value on a Nonrecurring Basis, Impairment of Ships” for additional discussion.
NOTE 10 – Shareholders’ Equity
We have a program that allows us to realize a net cash benefit when Carnival Corporation common stock is trading at a premium to the price of Carnival plc ordinary shares (the “Stock Swap Program”).
During the three months ended February 28, 2022, under the Stock Swap Program, we sold 1.3 2 million, which were used for general corporate purposes. During the three months ended February 28, 2021, there were no
Additionally, during the three months ended February 28, 2022, we sold 0.8 million shares of Carnival Corporation common stock at an average price per share of $20.18 , resulting in net proceeds of $15 million.
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Item 2. Management’s Discussion and Analysis of Financial Condition and Results of Operations.
Cautionary Note Concerning Factors That May Affect Future Results
Some of the statements, estimates or projections contained in this document are “forward-looking statements” that involve risks, uncertainties and assumptions with respect to us, including some statements concerning future results, operations, outlooks, plans, goals, reputation, cash flows, liquidity and other events which have not yet occurred. These statements are intended to qualify for the safe harbors from liability provided by Section 27A of the Securities Act of 1933 and Section 21E of the Securities Exchange Act of 1934, as amended. All statements other than statements of historical facts are statements that could be deemed forward-looking. These statements are based on current expectations, estimates, forecasts and projections about our business and the industry in which we operate and the beliefs and assumptions of our management. We have tried, whenever possible, to identify these statements by using words like “will,” “may,” “could,” “should,” “would,” “believe,” “depends,” “expect,” “goal,” “aspiration,” “anticipate,” “forecast,” “project,” “future,” “intend,” “plan,” “estimate,” “target,” “indicate,” “outlook,” and similar expressions of future intent or the negative of such terms.
Forward-looking statements include those statements that relate to our outlook and financial position including, but not limited to, statements regarding:
•Pricing | •Goodwill, ship and trademark fair values | ||||
•Booking levels | •Liquidity and credit ratings | ||||
•Occupancy | •Adjusted earnings per share | ||||
•Interest, tax and fuel expenses | •Return to guest cruise operations | ||||
•Currency exchange rates | •Impact of the COVID-19 coronavirus global pandemic on our financial condition and results of operations | ||||
•Estimates of ship depreciable lives and residual values | |||||
Because forward-looking statements involve risks and uncertainties, there are many factors that could cause our actual results, performance or achievements to differ materially from those expressed or implied by our forward-looking statements. This note contains important cautionary statements of the known factors that we consider could materially affect the accuracy of our forward-looking statements and adversely affect our business, results of operations and financial position. Additionally, many of these risks and uncertainties are currently amplified by and will continue to be amplified by, or in the future may be amplified by, COVID-19. It is not possible to predict or identify all such risks. There may be additional risks that we consider immaterial or which are unknown. These factors include, but are not limited to, the following:
•COVID-19 has had, and is expected to continue to have, a significant impact on our financial condition and operations. The current, and uncertain future, impact of COVID-19, including its effect on the ability or desire of people to travel (including on cruises), is expected to continue to impact our results, operations, outlooks, plans, goals, reputation, litigation, cash flows, liquidity, and stock price.
•Events and conditions around the world, including war and other military actions, such as the current invasion of Ukraine, and other general concerns impacting the ability or desire of people to travel have and may lead to a decline in demand for cruises.
•Incidents concerning our ships, guests or the cruise vacation industry have in the past and may, in the future, impact the satisfaction of our guests and crew and lead to reputational damage.
•Changes in and non-compliance with laws and regulations under which we operate, such as those relating to health, environment, safety and security, data privacy and protection, anti-corruption, economic sanctions, trade protection and tax have in the past and may, in the future, lead to litigation, enforcement actions, fines, penalties and reputational damage.
•Factors associated with climate change, including evolving and increasing regulations, increasing global concern about climate change and the shift in climate conscious consumerism and stakeholder scrutiny, and increasing frequency and/or severity of adverse weather conditions could adversely affect our business.
•Inability to meet or achieve our sustainability related goals, aspirations, initiatives, and our public statements and disclosures regarding them, may expose us to risks that may adversely impact our business.
•Breaches in data security and lapses in data privacy as well as disruptions and other damages to our principal offices, information technology operations and system networks and failure to keep pace with developments in technology may adversely impact our business operations, the satisfaction of our guests and crew and may lead to reputational damage.
•The loss of key employees, our inability to recruit or retain qualified shoreside and shipboard employees and increased labor costs could have an adverse effect on our business and results of operations.
•Increases in fuel prices, changes in the types of fuel consumed and availability of fuel supply may adversely impact our scheduled itineraries and costs.
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•We rely on supply chain vendors who are integral to the operations of our businesses. These vendors and service providers are also affected by COVID-19 and may be unable to deliver on their commitments which could impact our business.
•Fluctuations in foreign currency exchange rates may adversely impact our financial results.
•Overcapacity and competition in the cruise and land-based vacation industry may lead to a decline in our cruise sales, pricing and destination options.
•Inability to implement our shipbuilding programs and ship repairs, maintenance and refurbishments may adversely impact our business operations and the satisfaction of our guests.
The ordering of the risk factors set forth above is not intended to reflect our indication of priority or likelihood.
Forward-looking statements should not be relied upon as a prediction of actual results. Subject to any continuing obligations under applicable law or any relevant stock exchange rules, we expressly disclaim any obligation to disseminate, after the date of this document, any updates or revisions to any such forward-looking statements to reflect any change in expectations or events, conditions or circumstances on which any such statements are based. Forward-looking and other statements in this document may also address our sustainability progress, plans, and goals (including climate change and environmental-related matters). In addition, historical, current, and forward-looking sustainability-related statements may be based on standards for measuring progress that are still developing, internal controls and processes that continue to evolve, and assumptions that are subject to change in the future.
New Accounting Pronouncements
Refer to Note 1 - “General, Accounting Pronouncements” of the consolidated financial statements for additional discussion regarding accounting pronouncements.
Critical Accounting Estimates
For a discussion of our critical accounting estimates, see “Management’s Discussion and Analysis of Financial Condition and Results of Operations” that is included in the Form 10-K.
Seasonality
Our passenger ticket revenues are seasonal. Historically, demand for cruises has been greatest during our third quarter, which includes the Northern Hemisphere summer months. This higher demand during the third quarter results in higher ticket prices and occupancy levels and, accordingly, the largest share of our operating income is typically earned during this period. This historical trend was disrupted in 2020 by the pause and in 2021 by the ongoing resumption of guest cruise operations. In addition, substantially all of Holland America Princess Alaska Tours’ revenue and net income (loss) is generated from May through September in conjunction with Alaska’s cruise season.
Known Trends and Uncertainties
We believe the increasing cost of fuel, liquefied natural gas (LNG) and other related costs are reasonably likely to impact our profitability in both the short and long-term. This effect is increased in the shorter term by the current invasion of Ukraine, including its effect on the price of fuel. In addition, the increasing global focus on climate change, including the reduction of carbon emissions and new and evolving regulatory requirements, is reasonably likely to materially impact our future costs, capital expenditures and revenues and/or the relationship between them, if enacted. The full impact of climate change to our business is not yet known.
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Statistical Information
| Three Months Ended February 28, | |||||||||||
| 2022 | 2021 | ||||||||||
| Passenger Cruise Days (“PCDs”) (in thousands) (a) | 7,229 | 27 | |||||||||
| Available Lower Berth Days (“ALBDs”) (in thousands) (b) | 13,322 | 173 | |||||||||
| Occupancy percentage (c) | 54 | % | 16 | % | |||||||
| Passengers carried (in thousands) | 1,011 | 5 | |||||||||
| Fuel consumption in metric tons (in thousands) | 566 | 262 | |||||||||
| Fuel cost per metric ton consumed | $ | 648 | $ | 392 | |||||||
| Currencies (USD to 1) | |||||||||||
| AUD | $ | 0.72 | $ | 0.77 | |||||||
| CAD | $ | 0.79 | $ | 0.78 | |||||||
| EUR | $ | 1.13 | $ | 1.21 | |||||||
| GBP | $ | 1.35 | $ | 1.36 | |||||||
The ongoing resumption of guest cruise operations is continuing to have a material impact on all aspects of our business, including the above statistical information.
Notes to Statistical Information
(a)PCD represents the number of cruise passengers on a voyage multiplied by the number of revenue-producing ship operating days for that voyage.
(b)ALBD is a standard measure of passenger capacity for the period that we use to approximate rate and capacity variances, based on consistently applied formulas that we use to perform analyses to determine the main non-capacity driven factors that cause our cruise revenues and expenses to vary. ALBDs assume that each cabin we offer for sale accommodates two passengers and is computed by multiplying passenger capacity by revenue-producing ship operating days in the period.
(c)Occupancy, in accordance with cruise industry practice, is calculated using a numerator of PCDs and denominator of ALBDs, which assumes two passengers per cabin even though some cabins can accommodate three or more passengers. Percentages in excess of 100% indicate that on average more than two passengers occupied some cabins.
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Results of Operations
| Consolidated | |||||||||||||||||||||||
| Three Months Ended February 28, | % increase (decrease) | ||||||||||||||||||||||
| (in millions) | 2022 | 2021 | Change | ||||||||||||||||||||
| Revenues | |||||||||||||||||||||||
| Passenger ticket | $ | 873 | $ | 3 | $ | 870 | 31,952 | % | |||||||||||||||
| Onboard and other | 750 | 23 | 727 | 3,193 | % | ||||||||||||||||||
| 1,623 | 26 | 1,598 | 6,263 | % | |||||||||||||||||||
| Operating Costs and Expenses | |||||||||||||||||||||||
| Commissions, transportation and other | 251 | 15 | 236 | 1,596 | % | ||||||||||||||||||
| Onboard and other | 209 | 7 | 202 | 2,884 | % | ||||||||||||||||||
| Payroll and related | 506 | 218 | 287 | 132 | % | ||||||||||||||||||
| Fuel | 365 | 103 | 262 | 256 | % | ||||||||||||||||||
| Food | 136 | 11 | 124 | 1,090 | % | ||||||||||||||||||
| Ship and other impairments | 8 | — | 8 | 100 | % | ||||||||||||||||||
| Other operating | 557 | 181 | 376 | 208 | % | ||||||||||||||||||
| 2,030 | 535 | 1,495 | 280 | % | |||||||||||||||||||
| Selling and administrative | 530 | 462 | 68 | 15 | % | ||||||||||||||||||
| Depreciation and amortization | 554 | 552 | 2 | — | % | ||||||||||||||||||
| 3,114 | 1,549 | 1,565 | 101 | % | |||||||||||||||||||
| Operating Income (Loss) | (1,491) | (1,524) | 32 | (2) | % | ||||||||||||||||||
| Nonoperating Income (Expense) | |||||||||||||||||||||||
| Interest income | 3 | 3 | — | 1 | % | ||||||||||||||||||
| Interest expense, net of capitalized interest | (368) | (398) | 30 | (7) | % | ||||||||||||||||||
| Gains (losses) on debt extinguishment, net | — | 2 | (2) | (100) | % | ||||||||||||||||||
| Other income (expense), net | (32) | (62) | 30 | (49) | % | ||||||||||||||||||
| (397) | (455) | 58 | (13) | % | |||||||||||||||||||
| Income (Loss) Before Income Taxes | $ | (1,888) | $ | (1,979) | $ | 91 | (5) | % | |||||||||||||||
| NAA | |||||||||||||||||||||||
| Three Months Ended February 28, | % increase (decrease) | ||||||||||||||||||||||
| (in millions) | 2022 | 2021 | Change | ||||||||||||||||||||
| Revenues | |||||||||||||||||||||||
| Passenger ticket | $ | 586 | $ | — | $ | 586 | 100 | % | |||||||||||||||
| Onboard and other | 540 | 11 | 529 | 4,894 | % | ||||||||||||||||||
| 1,126 | 10 | 1,115 | 10,747 | % | |||||||||||||||||||
| Operating Costs and Expenses | 1,288 | 316 | 972 | 308 | % | ||||||||||||||||||
| Selling and administrative | 344 | 220 | 124 | 56 | % | ||||||||||||||||||
| Depreciation and amortization | 334 | 334 | — | — | % | ||||||||||||||||||
| 1,966 | 870 | 1,096 | 126 | % | |||||||||||||||||||
| Operating Income (Loss) | $ | (840) | $ | (859) | $ | 19 | (2) | % | |||||||||||||||
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| EA | |||||||||||||||||||||||
| Three Months Ended February 28, | % increase (decrease) | ||||||||||||||||||||||
| (in millions) | 2022 | 2021 | Change | ||||||||||||||||||||
| Revenues | |||||||||||||||||||||||
| Passenger ticket | $ | 341 | $ | 3 | $ | 338 | 10,721 | % | |||||||||||||||
| Onboard and other | 116 | 5 | 111 | 2,237 | % | ||||||||||||||||||
| 457 | 8 | 449 | 5,542 | % | |||||||||||||||||||
| Operating Costs and Expenses | 698 | 198 | 500 | 253 | % | ||||||||||||||||||
| Selling and administrative | 176 | 108 | 68 | 63 | % | ||||||||||||||||||
| Depreciation and amortization | 181 | 184 | (3) | (2) | % | ||||||||||||||||||
| 1,055 | 490 | 565 | 115 | % | |||||||||||||||||||
| Operating Income (Loss) | $ | (598) | $ | (482) | $ | (116) | 24 | % | |||||||||||||||
We paused our guest cruise operations in March 2020. As of February 28, 2022, eight of our nine brands had resumed guest cruise operations as part of our ongoing return to service. The ongoing resumption of guest cruise operations and the increased uncertainty given the current invasion of Ukraine, including its effect on the price of fuel, are collectively having a material negative impact on all aspects of our business, including our liquidity, financial position and results of operations. The full extent of the impact will be determined by our ongoing return to service and the length of time COVID-19 influences travel decisions.
As of February 28, 2022, 71% of our capacity had resumed guest cruise operations and ALBDs increased to 13 million compared to February 28, 2021 when we had no ships operating with guests onboard. Revenues for the three months ended February 28, 2022 increased by $1.6 billion from the three months ended February 28, 2021, due to the resumption of guest cruise operations and the significant increase of ships returning to service. Occupancy for the three months ended February 28, 2022 was 54%.
Operating costs and expenses increased by $1.5 billion to $2.0 billion in 2022 from $0.5 billion in 2021. This was driven by our ongoing resumption of cruise operations and restart related expenses, including the cost of returning ships to guest cruise operations and returning crew members to our ships, higher number of dry-dock days, the cost of maintaining enhanced health and safety protocols and inflation. We anticipate that many of these costs and expenses will end in 2022 and will not reoccur in 2023.
Fuel costs increased by $262 million to $365 million in 2022 from $103 million in 2021. The increase was caused by higher fuel consumption of 304 thousand metric tons, due to the resumption of guest cruise operations, and an increase in fuel prices of $256 per metric ton consumed in 2022 compared to 2021.
We recognized ship impairment charges of $8 million for the three months ended February 28, 2022. There were no ship impairment charges for the three months ended February 28, 2021.
We continue to expect a net loss for the second quarter of 2022. However, we expect a profit for the third quarter of 2022. For the full year 2022, we expect a net loss.
Nonoperating Income (Expense)
Interest expense, net of capitalized interest, decreased by $30 million to $368 million in 2022 from $398 million in 2021. The decrease was caused by a lower average interest rate for the three months ended February 28, 2022 compared to the three months ended February 28, 2021 as a result of completed refinancing efforts.
Liquidity, Financial Condition and Capital Resources
As of February 28, 2022, we had $7.2 billion of liquidity including cash, short-term investments and borrowings available under our Revolving Facility. During 2022, we will continue to be focused on pursuing refinancing opportunities to reduce interest rates and extend maturities as well as entering into supplemental agreements to align our covenant compliance requirements.
26
We had a working capital deficit of $2.9 billion as of February 28, 2022 compared to working capital deficit of $0.3 billion as of November 30, 2021. The increase in working capital deficit was substantially all due to a decrease in cash. Historically, during our normal operations, we operate with a substantial working capital deficit. This deficit is mainly attributable to the fact that, under our business model, substantially all of our passenger ticket receipts are collected in advance of the applicable sailing date. These advance passenger receipts generally remain a current liability until the sailing date. The cash generated from these advance receipts is used interchangeably with cash on hand from other sources, such as our borrowings and other cash from operations. The cash received as advanced receipts can be used to fund operating expenses, pay down our debt, make long-term investments or any other use of cash. Included within our working capital are $3.4 billion and $3.1 billion of customer deposits as of February 28, 2022 and November 30, 2021, respectively. We have paid refunds of customer deposits with respect to a portion of cancelled cruises. The amount of any future cash refunds may depend on future cruise cancellations and guest rebookings. We have agreements with a number of credit card processors that transact customer deposits related to our cruise vacations. Certain of these agreements allow the credit card processors to request, under certain circumstances, that we provide a reserve fund in cash. In addition, we have a relatively low-level of accounts receivable and limited investment in inventories. We expect that we will have working capital deficits in the future once we return to normal guest cruise operations.
Refer to Note 1 - “General, Liquidity and Management’s Plans” of the consolidated financial statements for additional discussion regarding our liquidity.
Sources and Uses of Cash
Operating Activities
Our business used $1.2 billion of net cash flows in operating activities during the three months ended February 28, 2022, a decrease of $0.3 billion, compared to $1.5 billion of net cash flows used for the same period in 2021.
Investing Activities
During the three months ended February 28, 2022, net cash used in investing activities was $3.0 billion. This was driven by the following:
•Capital expenditures of $2.5 billion for our ongoing new shipbuilding program
•Capital expenditures of $221 million for ship improvements and replacements, information technology and buildings and improvements
•Proceeds from sale of ships and other of $18 million
•Purchases of short-term investments of $315 million
During the three months ended February 28, 2021, net cash used in investing activities was $3.6 billion. This was driven by the following:
•Capital expenditures of $1.7 billion for our ongoing new shipbuilding program
•Capital expenditures of $81 million for ship improvements and replacements, information technology and buildings and improvements
•Purchases of short-term investments of $1.8 billion
Financing Activities
During the three months ended February 28, 2022, net cash provided by financing activities of $1.7 billion was caused by the following:
•Issuances of $2.3 billion of long-term debt
•Repayments of $0.5 billion of long-term debt
•Payments of $85 million related to debt issuance costs
•Net repayments of short-term borrowings of $48 million
•Purchases of $23 million of Carnival plc ordinary shares and issuances of $27 million of Carnival Corporation common stock under our Stock Swap Program
During the three months ended February 28, 2021, net cash provided by financing activities of $5.2 billion was caused by the following:
•Repayments of $668 million of long-term debt
•Issuances of $5.0 billion of long-term debt, including net proceeds of $3.4 billion from the issuance of the 2027 Senior Unsecured Notes
•Net proceeds of $996 million from our public offering of Carnival Corporation common stock
27
Funding Sources
As of February 28, 2022, we had $7.2 billion of liquidity including cash, short-term investments and borrowings available under our revolving facility. In addition, we had $3.3 billion of undrawn export credit facilities to fund ship deliveries planned through 2024. We plan to use future cash flows from operations to fund our cash requirements including capital expenditures not funded by our export credit facilities.
| (in billions) | 2022 | 2023 | 2024 | |||||||||||||||||
Future export credit facilities at February 28, 2022 | $ | 0.9 | $ | 1.8 | $ | 0.6 | ||||||||||||||
Our export credit facilities contain various financial covenants as described in Note 3 - “Debt”. At February 28, 2022, we were in compliance with the applicable covenants under our debt agreements.
Off-Balance Sheet Arrangements
We are not a party to any off-balance sheet arrangements, including guarantee contracts, retained or contingent interests, certain derivative instruments and variable interest entities that either have, or are reasonably likely to have, a current or future material effect on our consolidated financial statements.
Item 3. Quantitative and Qualitative Disclosures About Market Risk.
For a discussion of our hedging strategies and market risks, see the discussion below and Note 10 - “Fair Value Measurements, Derivative Instruments and Hedging Activities and Financial Risks” in our consolidated financial statements and Management’s Discussion and Analysis of Financial Condition and Results of Operations within our Form 10-K.
Interest Rate Risks
The composition of our debt, including the effect of cross currency swaps and interest rate swaps, was as follows:
| February 28, 2022 | |||||
Fixed rate | 42 | % | |||
EUR fixed rate | 17 | % | |||
| Floating rate | 25 | % | |||
EUR floating rate | 15 | % | |||
GBP floating rate | 1 | % | |||
Item 4. Controls and Procedures.
A. Evaluation of Disclosure Controls and Procedures
Disclosure controls and procedures are designed to provide reasonable assurance that information required to be disclosed by us in the reports that we file or submit under the Securities Exchange Act of 1934, is recorded, processed, summarized and reported, within the time periods specified in the U.S. Securities and Exchange Commission’s rules and forms. Disclosure controls and procedures include, without limitation, controls and procedures designed to ensure that information required to be disclosed by us in our reports that we file or submit under the Securities Exchange Act of 1934 is accumulated and communicated to our management, including our principal executive and principal financial officers, or persons performing similar functions, as appropriate, to allow timely decisions regarding required disclosure.
Our President, Chief Executive Officer and Chief Climate Officer and our Chief Financial Officer and Chief Accounting Officer have evaluated our disclosure controls and procedures and have concluded, as of February 28, 2022, that they are effective at a reasonable level of assurance, as described above.
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B. Changes in Internal Control over Financial Reporting
There have been no changes in our internal control over financial reporting during the quarter ended February 28, 2022 that have materially affected or are reasonably likely to materially affect our internal control over financial reporting.
29
PART II - OTHER INFORMATION
Item 1. Legal Proceedings.
The legal proceedings described in Note 4 – “Contingencies and Commitments” of our consolidated financial statements, including those described under “COVID-19 Actions” and “Other Regulatory or Governmental Inquiries and Investigations,” are incorporated in this “Legal Proceedings” section by reference. Additionally, SEC rules require disclosure of certain environmental matters when a governmental authority is a party to the proceedings and such proceedings involve potential monetary sanctions that we believe will exceed $1 million for such proceedings.
Item 1A. Risk Factors.
The risk factors in this Form 10-Q below should be carefully considered, including the risk factors discussed in “Risk Factors” and other risks discussed in our Form 10-K. These risks could materially and adversely affect our results, operations, outlooks, plans, goals, growth, reputation, cash flows, liquidity, and stock price. Our business also could be affected by risks that we are not presently aware of or that we currently consider immaterial to our operations.
Operating Risk Factors
•Events and conditions around the world, including war and other military actions, such as the current invasion of Ukraine, and other general concerns impacting the ability or desire of people to travel have and may lead to a decline in demand for cruises.
We have been, and may continue to be, impacted by the public’s concerns regarding the health, safety and security of travel, including government travel advisories and travel restrictions, political instability and civil unrest, terrorist attacks, war and military action, most recently the current invasion of Ukraine, and other general concerns. To the extent the current invasion of Ukraine adversely affects our business, it may also have the effect of heightening many other risks disclosed in our Form 10-K, any of which could materially and adversely affect our business and results of operations. Additionally, we have been, and may continue to be, impacted by heightened regulations around customs and border control, travel bans to and from certain geographical areas, voluntary changes to our itineraries in light of geopolitical events, government policies increasing the difficulty of travel and limitations on issuing international travel visas. We may also be impacted by adverse changes in the perceived or actual economic climate, such as global or regional recessions, higher unemployment and underemployment rates and declines in income levels.
Item 2. Unregistered Sales of Equity Securities and Use of Proceeds.
I.Stock Swap Program
We have a program that allows us to realize a net cash benefit when Carnival Corporation common stock is trading at a premium to the price of Carnival plc ordinary shares. Under the Stock Swap Program, we may elect to offer and sell shares of Carnival Corporation common stock at prevailing market prices in ordinary brokers’ transactions and repurchase an equivalent number of Carnival plc ordinary shares in the UK market.
Under the Stock Swap Program effective June 2021, the Board of Directors authorized the sale of up to $500 million shares of Carnival Corporation common stock in the U.S. market and the purchase of Carnival plc ordinary shares on at least an equivalent basis.
We may in the future implement a program to allow us to obtain a net cash benefit when Carnival plc ordinary shares are trading at a premium to the price of Carnival Corporation common stock.
Any sales of Carnival Corporation common stock and Carnival plc ordinary shares have been or will be registered under the Securities Act of 1933, as amended. During the three months ended February 28, 2022, under the Stock Swap Program, we sold 1.3 million shares of Carnival Corporation’s common stock and repurchased the same amount of Carnival plc ordinary shares, resulting in net proceeds of $2 million, which were used for general corporate purposes. Since the beginning of the Stock Swap Program, first authorized in June 2021, we have sold 10.2 million shares of Carnival Corporation’s common stock and repurchased the same amount of Carnival plc ordinary shares, resulting in net proceeds of $21 million.
30
| Period | Total Number of Shares of Carnival plc Ordinary Shares Purchased (a) (in millions) | Average Price Paid per Share of Carnival plc Ordinary Share | Maximum Number of Carnival plc Ordinary Shares That May Yet Be Purchased Under the Carnival Corporation Stock Swap Program (in millions) | |||||||||||||||||
| December 1, 2021 through December 31, 2021 | — | $ | — | 9.5 | ||||||||||||||||
| January 1, 2022 through January 31, 2022 | — | $ | — | 9.5 | ||||||||||||||||
| February 1, 2022 through February 28, 2022 | 1.3 | $ | 19.57 | 8.2 | ||||||||||||||||
| Total | 1.3 | 19.57 | ||||||||||||||||||
(a) No ordinary shares of Carnival plc were purchased outside of publicly announced plans or programs.
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Item 6. Exhibits.
INDEX TO EXHIBITS | ||||||||||||||||||||||||||||||||
| Incorporated by Reference | Filed/ Furnished Herewith | |||||||||||||||||||||||||||||||
| Exhibit Number | Exhibit Description | Form | Exhibit | Filing Date | ||||||||||||||||||||||||||||
| Articles of incorporation and by-laws | ||||||||||||||||||||||||||||||||
| 3.1 | 8-K | 3.1 | 4/17/2003 | |||||||||||||||||||||||||||||
| 3.2 | 8-K | 3.1 | 4/20/2009 | |||||||||||||||||||||||||||||
| 3.3 | 8-K | 3.3 | 4/20/2009 | |||||||||||||||||||||||||||||
| Material Contracts | ||||||||||||||||||||||||||||||||
| 10.1 | X | |||||||||||||||||||||||||||||||
| 10.2** | Amendment Agreement dated February 11, 2022 to the Multicurrency Revolving Facilities Agreement originally dated May 18, 2011, as amended and restated on August 6, 2019 and as further amended on December 31, 2020, May 11, 2021 and September 30, 2021, among Carnival Corporation, Carnival plc and certain of Carnival Corporation and Carnival plc subsidiaries, Bank of America Europe Designated Activity Company as facilities agent and a syndicate of financial institutions. | X | ||||||||||||||||||||||||||||||
| 10.3 | X | |||||||||||||||||||||||||||||||
| 10.4 | X | |||||||||||||||||||||||||||||||
| 10.5 | X | |||||||||||||||||||||||||||||||
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INDEX TO EXHIBITS | ||||||||||||||||||||||||||||||||
| Incorporated by Reference | Filed/ Furnished Herewith | |||||||||||||||||||||||||||||||
| Exhibit Number | Exhibit Description | Form | Exhibit | Filing Date | ||||||||||||||||||||||||||||
| Rule 13a-14(a)/15d-14(a) certifications | ||||||||||||||||||||||||||||||||
| 31.1 | X | |||||||||||||||||||||||||||||||
| 31.2 | X | |||||||||||||||||||||||||||||||
| 31.3 | X | |||||||||||||||||||||||||||||||
| 31.4 | X | |||||||||||||||||||||||||||||||
| Section 1350 certifications | ||||||||||||||||||||||||||||||||
| 32.1* | X | |||||||||||||||||||||||||||||||
| 32.2* | X | |||||||||||||||||||||||||||||||
| 32.3* | X | |||||||||||||||||||||||||||||||
| 32.4* | X | |||||||||||||||||||||||||||||||
| Interactive Data File | ||||||||||||||||||||||||||||||||
| 101 | The consolidated financial statements from Carnival Corporation & plc’s joint Quarterly Report on Form 10-Q for the quarter ended February 28, 2022, as filed with the Securities and Exchange Commission on March 28, 2022, formatted in Inline XBRL, are as follows: | |||||||||||||||||||||||||||||||
(i) the Consolidated Statements of Income (Loss) for the three months ended February 28, 2022 and 2021; | X | |||||||||||||||||||||||||||||||
(ii) the Consolidated Statements of Comprehensive Income (Loss) for the three months ended February 28, 2022 and 2021; | X | |||||||||||||||||||||||||||||||
(iii) the Consolidated Balance Sheets at February 28, 2022 and November 30, 2021; | X | |||||||||||||||||||||||||||||||
(iv) the Consolidated Statements of Cash Flows for the three months ended February 28, 2022 and 2021; | X | |||||||||||||||||||||||||||||||
(v) the Consolidated Statements of Shareholders’ Equity for the three months ended February 28, 2022 and 2021; | X | |||||||||||||||||||||||||||||||
| (vi) the notes to the consolidated financial statements, tagged in summary and detail. | X | |||||||||||||||||||||||||||||||
33
INDEX TO EXHIBITS | ||||||||||||||||||||||||||||||||
| Incorporated by Reference | Filed/ Furnished Herewith | |||||||||||||||||||||||||||||||
| Exhibit Number | Exhibit Description | Form | Exhibit | Filing Date | ||||||||||||||||||||||||||||
| 104 | The cover page from Carnival Corporation & plc’s joint Quarterly Report on Form 10-Q for the quarter ended February 28, 2022, as filed with the Securities and Exchange Commission on March 28, 2022, formatted in Inline XBRL (included as Exhibit 101). | |||||||||||||||||||||||||||||||
| * | These items are furnished and not filed. | ||||
| ** | Certain portions of this exhibit have been omitted pursuant to Item 601(b)(10) of Regulation S-K. | ||||
34
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, each of the registrants has duly caused this report to be signed on its behalf by the undersigned thereunto duly authorized.
| CARNIVAL CORPORATION | CARNIVAL PLC | |||||||||||||
| By: | /s/ Arnold W. Donald | By: | /s/ Arnold W. Donald | |||||||||||
| Arnold W. Donald | Arnold W. Donald | |||||||||||||
| President, Chief Executive Officer and Chief Climate Officer | President, Chief Executive Officer and Chief Climate Officer | |||||||||||||
| By: | /s/ David Bernstein | By: | /s/ David Bernstein | |||||||||||
| David Bernstein | David Bernstein | |||||||||||||
| Chief Financial Officer and Chief Accounting Officer | Chief Financial Officer and Chief Accounting Officer | |||||||||||||
| Date: March 28, 2022 | Date: March 28, 2022 | |||||||||||||
35
EMPLOYMENT AGREEMENT
This EMPLOYMENT AGREEMENT (this "Agreement") is made and entered into as 28th day of June, 2019, by and between CARNIVAL CORPORATION (the "Company") with its principal place of business located at 3655 N.W. 87th Avenue, Doral, Florida 33178 and PETER ANDERSON, an individual (the "Executive") (collectively herein referred to as the "Parties" and individually referred to as the "Party").
RECITALS
WHEREAS, as of the Effective Date of this Agreement, the Company desires to employ the Executive as Chief Compliance Officer of the Company and the Executive desires to serve the Company as Chief Compliance Officer.
NOW, THEREFORE, in consideration of the foregoing, the mutual promises contained herein and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Parties, intending to be legally bound, agree as follows:
1.Term. The Company hereby agrees to employ the Executive, and the Executive hereby agrees to accept employment with the Company, upon the terms and subject to the conditions set forth herein, effective as of the Effective Date. Subject to the provisions for earlier termination set forth in Section 10, the term of employment under this Agreement shall be for a period of four (4) years commencing on August 12, 2019 (the "Effective Date"), (hereinafter referred to as the "Term"). The Executive and the Company agree that the Company is not obligated to offer subsequent contracts to the Executive, regardless of the number of years in which the Executive has worked for the Company.
2.Employment.
a.The Executive shall be employed as Chief Compliance Officer. The Executive shall devote his full working time, attention and the best of his abilities to performing the duties of a Chief Compliance Officer and engage in no other employment or occupation for any direct or indirect remuneration (other than charitable, educational or political activities or board service that do not materially interfere with the Executive's obligations with the Company) without the prior written notification to and approval of the Company's CEO. The Executive also shall exercise the authority customarily performed, undertaken, and exercised by persons situated in a similar executive capacity.
b.The Executive agrees to abide by any Employee handbook, policies, rules, regulations, or practices that the Company has with respect to its employees, which may be amended from time to time. The Executive acknowledges that all such policies (whether or not identified in this Agreement) are not contractual in nature and do not constitute terms or provisions of this Agreement.
c.During the Term, the Executive shall report directly to Arnold Donald, President and CEO, with dotted lines to the Health, Environment, Safety and Security ("HESS") and Audit Committees of the Board of Directors of Carnival Corporation (the "Board of Directors"). The dotted lines represent a secondary line of responsibility and some level of accountability, but not a direct report.
d.The Executive shall work at the Company's Miami offices located at 3655 NW 87 Avenue, Doral, Florida.
3.Base Salary. The Company shall pay to the Executive during the Term of this Agreement a base salary (the "Base Salary") at the rate of $600,000 per year, before deduction of applicable taxes, in accordance with the Company's customary payroll practices applicable to its senior executives. The Company retains the right to reduce the Executive's compensation for periods of unpaid leave or disciplinary suspensions and to deduct from the Executive's compensation any amounts owed by the Executive to the Company, or for which the Company is legally required to deduct, consistent with state and federal law.
4.Sign-On Bonus. The Company shall pay the Executive a one-time sign-on bonus of $50,000, before deduction of applicable taxes, payable within the first thirty (30) days of Executive's first day of employment.
5.Individual Annual Bonus Plan. During his employment, the Executive may receive a targeted incentive bonus (the "Incentive Bonus") for each fiscal year or portion thereof during which the Executive has been employed hereunder as determined at the end of the applicable fiscal year by the Company's CEO, in consultation with the Board of Director's HESS/Audit/Compensation Committees. The maximum amount of the Incentive Bonus shall for any one year is $600,000 and the target bonus for each year is $400,000, in each case subject to deduction of applicable taxes. For fiscal year 2019, the amount of Executive's Incentive Bonus shall be no less than $250,000, less applicable taxes. The Executive must be employed on the date on which the Incentive Bonus is paid to be entitled to payment of the Incentive Bonus. The Incentive Bonus shall, subject to all applicable laws and regulations, be paid in accordance with Company policy.
6.Long-Term Incentive Award. On or about January 2020 and subject to appropriate action and approval of the Company's Compensation Committee, the Executive shall be entitled to receive a time-based restricted share award grant under the Carnival Corporation 2011 Stock Plan (the "2011 Stock Plan") with a fair market value of $300,000 based on the closing price of a share of Company common stock on the date of grant, on vesting and other terms and conditions set forth in the 2011 Stock Plan and the associated award agreement: Future award grants shall be at a target grant value of up to $300,000 and the actual grant value shall be based on attainment of individual goals and such other factors as determined by the Company's CEO, in consultation with the Board of Director's HESS/Audit/Compensation Committees.
7.Employee Benefits. During the Term, the Executive shall be eligible to participate, on a basis generally consistent with other similarly situated executives, in any retirement plans, insurance programs, and other fringe benefit plans and programs as are from time to time established by the Company, subject to the provisions of such plans and programs.
8.Vacation and Sick Leave. During the Term, the Executive shall be entitled to annual vacation in any calendar year of 19 days, subject to the Company's vacation policies for executives in effect from time to time. The Executive also shall be entitled to 10 days of sick leave (without loss of pay) in accordance with the Company's sick leave policies for executives, in effect from time to time.
9.Termination. The Executive's employment and this Agreement may be terminated for the circumstances set forth below and will require approval by the Board of Director's HESS and Audit Committees. In such event, benefits will cease according to the terms of the applicable benefit plans or the Company's policies and procedures.
a.By The Company for Cause. The Company may suspend or terminate the employment of the Executive for "Cause" (defined below). Following termination of employment of the Executive for Cause, the Company shall have no further obligations under this Agreement. "Cause" shall be determined in the Company's sole discretion, and shall include but not be limited to: (1) dishonesty or other acts that adversely affect the Company; (2) a violation of the Company's policies or practices that justifies immediate termination; (3) arrest or conviction (including a plea of "no contest" or nolo contendere) of a felony or of any crime involving moral turpitude, embezzlement, misappropriation, fraud or misrepresentation (whether or not related to the Executive's employment with the Company); (4) the commission by the Executive of any act that could reasonably be expected to injure the reputation, business, or business relationships of the Company; (5) any material breach of this Agreement; (6) failure or refusal to follow a lawful, job-related instruction issued by the Company's CEO or the HESS or Audit Committees of the Boards of Directors; (7) use, possession, or being under the influence of illegal drugs on Company premises or at any Company-related event; (8) misappropriation of the Company's assets, theft, or embezzlement; (9) continued and excessive absences or tardiness (not including authorized leaves of absence under the Family and Medical Leave Act or absences that are a result of a reasonable accommodation offered by the Company under the ADA); (10) providing false or misleading information on Employment Application, or other Company-related documentation; (11) failure to cooperate in an internal investigation conducted by the Company or its representatives; (12) a violation of the Company's Code of Ethics; (13) breach of fiduciary duties and responsibilities as Chief Compliance Officer; and (14) the Executive's willful and knowing violation of any rules or regulations of any governmental or regulatory body, which is reasonably likely to be materially injurious to the interest of the Company or affiliate of the Company.
b.By the Company for Performance Reasons. The Company also may suspend or terminate the employment of the Executive for failure to perform his duties as Chief Compliance Officer, as contemplated by this Agreement, in a satisfactory manner, as determined in the sole discretion of the CEO and as approved by the Board of Director's HESS and Audit Committees. Following termination of employment of the Executive for performance under this subsection, the Executive shall be entitled to compensation as discussed below in Section 9.d.i.
c.Upon Death or Disability. This Agreement is automatically terminated upon the Executive's death. The Company reserves the right to terminate this Agreement upon the Executive's "disability" (as defined in the American with Disabilities Act, as amended ("ADA")) that renders the Executive unable to perform his essential job functions with or without reasonable accommodation, or if such disability cannot be reasonably accommodated without imposing an undue hardship on the Company. If the Executive is not eligible for leave under the Family and Medical Leave Act and is not "disabled" under the ADA, and has exhausted all of his available leave time, the Company may terminate this Agreement.
d.Compensation Upon Termination. Upon termination of the Executive's employment during the Term of this Agreement, the Executive shall be entitled to the following benefits:
i.If the Executive's employment is terminated by the Company for performance reasons only (subsection 9.b.), the Company shall (subject to the Executive's timely execution and non-revocation of a Confidential Separation Agreement and General Release of All Claims ("Release") within 21 days following termination prepared by and agreeable to the Company) pay the Executive one years' Base Salary and the Executive's target bonus for the fiscal year during which termination occurs. The aggregate amount due hereunder shall be paid, subject to deduction of applicable taxes, in equal installments beginning with the Company's first regularly scheduled pay date that occurs at least 10 days after the effective date of the Release, with future payments due on each of the Company's regularly scheduled pay dates thereafter for a total payment period of one year, subject to termination for Executive's failure to comply with all terms of the Release.
ii.If the Executive's employment with the Company is terminated by reason of his death or Disability, then, in addition to any Base Salary earned to the date of termination, the Company shall provide the Executive with benefits or payments under any applicable disability or 'life insurance benefit plans, programs or arrangements maintained by the Company, which benefits shall be provided and amounts shall be payable in accordance with the terms and conditions of such employee benefit plans, programs or arrangements. No other payments shall be owed to the Executive.
iii. If the Executive's employment with the Company is terminated for Cause (other than performance [subsection 9.b.]), the Executive shall be entitled only to his Base Salary earned to the date of termination.
e.Section 409A Tax Considerations. If and to the extent that any compensation or benefits provided under this Agreement constitute deferred compensation subject to Section 409A of the Internal Revenue Code of 1986, as amended (the "Code"), or any regulations and guideline issued thereunder ("Section 409A"), this Agreement is intended to comply, and shall be interpreted consistently, with Section 409A so as to not result in accelerated taxation and/or tax penalties under Section 409A. Notwithstanding anything in this Agreement to the contrary, if and to the extent required to avoid accelerated taxation and/or tax penalties under Section 409A, any payment required to be paid hereunder on account of termination of the Executive's employment shall be made only in connection with the Executive's "separation from service" within the meaning of Section 409A. Notwithstanding anything in this Agreement to the contrary, to the extent required to avoid accelerated taxation and/or tax penalties under Section 409A, if the Executive's separation from service occurs when the Executive is a "specified employee" (as defined under Section 409A), amounts that otherwise would be payable and benefits that otherwise would be provided pursuant to this Agreement or any other arrangement between the Executive and the Company during the six (6) month period immediately following the Executive's separation from service shall instead be paid on the first business day after the date that is six (6) months following the Executive's separation from service or, if earlier, the Executive's date of death. For purposes of Section 409A, the right to a series of installment payments under this Agreement shall be treated as a right to a series of separate payments. To the extent required to avoid accelerated taxation and/or tax penalties under Section 409A, amounts reimbursable to Executive under this Agreement shall be paid to the Executive on or before the last day of the year following the year in which the expense was incurred and the amount of expenses eligible for reimbursement (and in-kind benefits provided to the Executive) during a year may not affect amounts reimbursable or provided in a subsequent year. The timing of any payment under subparagraph 9(d) may be adjusted only in accordance with Section 409A. The Company makes no representation that any or all of the payments provided for in this Agreement will be exempt from or comply with Section 409A and makes no undertaking to preclude Section 409A from applying to any such payment. Executive
understands and agrees that the Executive shall be solely responsible for the payment of any taxes, penalties, interest or other expenses incurred by the Executive on account of noncompliance with Section 409A.
10. Confidentiality.
a.Confidential Information. During his employment, the Executive will obtain and have access to "Confidential Information" that is important to the Company's business, which is not generally available to third parties and which the Company considers confidential, including without limitation, the Company's customer, vendor, and supplier lists, internal policies, financial information, software and hardware products in both source code and object code form, technical information, sales data, pricing information, promotional or marketing plans, advertising campaigns, expansion plans, methods, products, processes, trade secrets and other information that is to be treated as confidential because of any duty of confidentiality owed by the Company to a third party (collectively, the "Confidential Information"). The Executive acknowledges that such Confidential Information is worthy of protection and is the sole property of the Company.
b.Non-Disclosure. The Executive agrees that during the Term of this Agreement and thereafter, the Executive shall (i) not use any of the Confidential Information for his own use or for any purpose outside of his employment duties with the Company; (ii) not disclose the Confidential Information to any person or entity, whether internal or external, including other employees of the Company unless they have a business reason to receive the Confidential Information; and (iii) take all reasonable measures to protect the secrecy of and avoid disclosure or use of the Confidential Information, including requiring third parties to sign an appropriate non disclosure agreement. The Executive agrees that it is reasonable and necessary for the protection of the goodwill and business of the Company that the Executive makes this covenant, and that this covenant is a material inducement for the Company to employ the Executive. The Executive also acknowledges that the obligation to maintain and safeguard the Confidential Information applies to the use of any laptop computer, portable communication or electronic devices, and/or other technological tools that may be provided by the Company.
c.Return of Confidential Information and Company Property. Upon termination of his employment, regardless of the reason, or upon request, the Executive agrees to immediately inventory and deliver to the Company's General Counsel, all property of the Company’s and Confidential Information in his possession or control and that relates to the Executive's employment or the activities of the Company. The Executive agrees upon request by the Company and, in any event, upon termination of his employment, that he will immediately delete all Confidential Information from his personal cellular telephone or other portable communication device, laptop computer, computer, electronic devices, and similar storage devices, and will do so under the supervision of the Company or its designee if so requested. Executive agrees that return of Confidential Information as contemplated by this Section is a material term of this Agreement and that time is of the essence with respect to the return of Confidential Information as required by this paragraph.
d.Exceptions to Confidentiality Provisions. Nothing in this Agreement prohibits the Executive
from:
i.Reporting possible violations of federal law or regulation to any governmental agency or entity, including but not limited to the Department of Justice, the Securities and Exchange Commission, Congress, the Occupational Safety and Health Administration, and any agency Inspector General, or making other disclosures that are protected under the whistleblower provisions of federal and state law or regulation, including the Defend Trade Secrets Act, which gives the Executive immunity from federal and state civil and criminal liability for disclosures of trade secrets. Under the Defend Trade Secrets Act, the Executive has the right to (a) disclose in confidence trade secrets to federal, state, and local government officials, or to an attorney, for the sole purpose of reporting or investigating a suspected violation of law, and (b) disclose trade secrets in a document filed in a lawsuit or other proceeding, but only if the filing is made under seal and protected from disclosure. The Executive does not need prior authorization from the Company to make any such reports or disclosures and is not required to notify the Company that he has made such report or disclosures;
ii.Filing a charge or complaint with or from participating in an investigation or proceeding conducted by the Equal Employment Opportunity Commission (EEOC), the U.S. Department of Labor (DOL), the Securities and Exchange Commission (SEC), or any other federal, state, or local agency or department and communicating with the EEOC, DOL, SEC, and comparable state or local agencies (whether such communication is initiated by the Executive or in response to the government); or
iii. Testifying truthfully pursuant to any government or regulatory investigation or pursuant to subpoena or other court order.
11.Avoidance of Unfair Competition.
a.Legitimate Business Interests. The Executive acknowledges that (i) the Company engages in the competitive cruise business; (ii) the Executive's services hereunder are of a special, unique, extraordinary and intellectual character; (iii) the Executive's position with the Company places him in a position of confidence and trust with the employees and customers of the Company; (iv) the Executive's position with the Company provides him with access to Confidential Information of the Company, which is valuable and material to the business and competitive position of the Company; and (v) during the Executive's employment with the Company, the Executive will continue to develop a personal relationship with the Company's employees and customers. Therefore, the Executive agrees that it is reasonable and necessary for the protection and goodwill and business of the Company that Executive make the covenants contained herein, that the covenants are a material inducement for the Company to enter into this Agreement, and that the covenants are given as an integral part of this Agreement.
b.During Employment and After Employment. The Executive agrees that during his employment and for a period of one year (12 months) after the termination or expiration of this Agreement or Executive's employment with the Company, for any reason (the "Restrictive Period"), the Executive shall not, directly or indirectly, as a principal, agent, partner, employee, owner, individual proprietor, officer, director, independent contractor, joint venture, stockholder (other than as a passive investor owning less than one percent of a publicly traded corporation), member, or consultant of another entity, wherever located, that engages or has announced its intent
to engage in multi-night passenger cruises that compete with the Company or any of its subsidiaries or divisions ("Competitor"). Any company within the Carnival group will not be considered a Competitor for purposes of this Agreement.
Non-Solicitation of Employees.
c.Legitimate Business Interests. The Executive recognizes that the Company's employees are of great value to the Company, and that the Company invests substantial time and expense in locating, recruiting, developing, training and retaining its employees. In addition, the Executive acknowledges that his position with the Company is such that he is privy to Confidential Information and the Company's employees (including specific information regarding the Company's employees not available outside the Company's business), all of which have great competitive value to the Company. The Executive also recognizes that any attempt to induce others to leave the Company's employ, or an effort by the Executive to interfere with the Company's relationships with other employees, would be harmful and damaging to the Company.
d.During Employment and After Employment. The Executive will not at any time during the Executive's employment by the Company and for a period of twelve (12) months following termination (for any reason), directly or indirectly, and whether or not for compensation:
i.hire, offer to hire, employ, engage, entice, solicit, seek to induce, influence, listen to discussions regarding, urge, conspire with, or otherwise attempt to induce or encourage any person or entity who is or was an employee of the Company or Carnival plc (within the prior six months), whether on behalf of the Executive or on behalf of others with whom Executive may become employed, to leave the Company's/Carnival plc's employ or terminate her/her relationship with the Company or Carnival plc (regardless of who first initiates the communication);
ii.help another person or entity evaluate a person (who is or was an employee of the Company or Carnival plc within the prior six months) as an employment candidate;
iii. hire, offer to hire, employ, engage, entice, solicit, seek to induce, influence, listen to discussions regarding, urge, conspire with, or otherwise attempt to induce or encourage any person or entity who is or was a consultant or independent contractor of the Company or Carnival plc, whether on behalf of the Executive or on behalf of others with whom the Executive may become employed or engaged, to terminate their provision of services on behalf of the Company/Carnival plc (regardless of who first initiates the communication); and
iv.disrupt, impair, damage or interfere with the Company's/Carnival plc's relationship with any employee, independent contractor, consultant, agent or other personnel of the Company or Carnival plc.
v.For purposes of this Section, the Executive acknowledges and agrees that "solicitation" covers all forms of oral, written, or electronic communication, including, but not limited to, communications by e mail, regular mail, express mail, telephone, fax, instant message, and social media including, but not limited to, Linkedln, Facebook,
Twitter, Instagram, and other social media/social networking accounts (collectively, "Social Media Accounts"). However, it will not be deemed a violation of this Agreement if the Executive merely updates his Linkedln profile/social media status to reflect the Executive's new employment, without engaging in any other substantive communication, by social media or otherwise, that is prohibited by Section 12.
12.Rights and Remedies upon Breach. If the Executive breaches, or threatens to breach, any provisions of this Agreement, the Company shall have the following rights and remedies, each of which shall be independent of the other and severally enforceable. All of these rights and remedies shall be in addition to, and not in lieu of, any other rights and remedies available to the Company under law or equity.
a.Tolling. The running of the time period specified in Sections 11 and 12 shall be tolled and suspended during such time as the Executive is in violation of such Section and shall begin to run again on the date upon which relief for such violation is granted to the Company.
b.Specific Performance. The Company and the Executive stipulate that, as between them, the restrictive covenants contained in Sections 10 through 12, are important and material, and gravely affect the successful conduct of the Company's business, and that a suit for damages upon violation or breach of any of the provisions of this Agreement will be inadequate. The Executive further acknowledges that a violation of the covenants contained in Sections 10 through 12 would cause irreparable injury to the Company. The Executive agrees that, in the event of any violation or breach, or threatened violation or breach, of all provisions of this Agreement, the Company shall have the right and remedy to have all provisions of this Agreement specifically enforced by a court of competent jurisdiction, including obtaining an injunction to prevent any continuing violation thereof, it being acknowledged and agreed by the Executive that any such breach or threatened breach will cause irreparable injury to the Company and that money damages will be difficult to ascertain and will not provide an adequate remedy to the Company.
c.Reasonableness. The Executive agrees that the covenants contained herein are reasonable and necessary to protect the goodwill and legitimate business interests of the Company. The Company and the Executive agree that the covenants contained herein are severable and separate, and the unenforceability of any specific covenant therein will not affect the validity of any other covenant. If the covenants contained in Sections 10 through 12 are held to be unenforceable, such covenants shall be interpreted to extend to the maximum time and scope for which it may be enforced as determined by a court making such determination, and such covenants shall only apply in its reduced form to the operation of such covenants in the particular jurisdiction in which such adjudication is made.
d.Independent Covenants. The Executive acknowledges and agrees that the provisions of this Agreement are construed as agreements independent of any other agreement or understanding regarding Executive's employment with the Company. The Executive further agrees that the existence or assertion of any other claim, cause of action, defense or dispute by the Executive against the Company, whether predicated on this Agreement or otherwise, shall not constitute a defense to enforcement of the Executive's promises and obligations in this Agreement. In addition, the restrictive covenants in this Agreement are independent of any other provision in any other agreement between the Executive and the Company, and independent of the existence of any claim or cause of action by the Executive against the Company. Therefore, an action unrelated to the restrictive covenant provisions shall not constitute a defense to the enforcement of this Agreement.
e.Accounting. The Executive acknowledges that the Company shall have the right and remedy to require the Executive to account for and pay over to the Company all compensation, profits, money, accruals, increments or other benefits derived or received by the Executive as a result of any transactions constituting a breach of the restrictive covenants in this Agreement.
f.Survival. The restrictive covenants in Sections 10, 11, and 12 shall survive the termination or expiration of this Agreement and any termination of the Executive's employment (regardless of the reason).
13.Agreements with Respect to Ownership of Work Product.
a.Ownership of Rights. Executive agrees and acknowledges that all: (i) Work Product (defined below) that is conceived, created, designed, developed or contributed by the Executive in his capacity as an employee of the Company is deemed to be within the scope of his employment; and (ii) "works made for hire" under the United States Copyright Act (or other applicable statute), and all worldwide rights, title, and interest in and to any and all Work Product, shall be and remain the exclusive property of the Company, free from any legal or equitable claim of right, title, or interest that the Executive might have in or with respect thereto. "Work Product" shall mean and include, without limitation, any and all products, designs, works, discoveries, inventions and improvements, and other results of the Executive's employment by the Company (including without limitation, any Programs), that may be conceived, developed, produced, prepared, created or contributed to (whether at the Company's premises or elsewhere) by the Executive, acting alone or with others, during the period of his employment by the Company (or at any time after the termination of the Executive's employment by the Company if derived from, based upon or relating to any Confidential Information).
b.Assignment of Rights. The Executive acknowledges that all Work Product that is not covered by subparagraph (a) above shall be deemed to have been specifically ordered or commissioned by the Company, and in consideration of the compensation and other benefits provided by the Company to the Executive, the Executive hereby assigns, transfers and conveys to the Company any and all worldwide right, title, and interest that he may have in or to the Work Product, including without limitation, any right, title and interest in or to the Work Product arising under trade secret, copyright, mask work, patent laws or any other laws. During and after the term of the Executive's engagement by the Company, the Executive shall from time to time and when requested by the Company and at the Company's expense, but without further consideration to the Executive: (i) execute all paper and documents and perform all other acts necessary or appropriate, in the sole discretion of the Company, to evidence or further document the Company's ownership of the Work Product and the above-mentioned proprietary rights therein, and (ii) assist the Company in obtaining, registering, maintaining and defending for the Company's benefit (which defense shall be at the Company's expense) all patents, copyrights, mask work rights, trade secret rights and other proprietary rights in and to the Work Product in any and all countries as the Company's may determine in their sole discretion. The Executive agrees that if for any reason he fails to fulfill such obligations, the Company may complete and execute any such documents in the Executive's name and on his behalf.
14.No Assignment. This Agreement requires the personal services of the Executive and cannot be assigned. The Executive agrees not to delegate his obligations hereunder or any portion hereof. The Company may assign this Agreement.
15.Reimbursement of Business Expenses. Reasonable business expenses incurred by the Executive in the ordinary course of business shall be approved and reimbursed as per the Company's policies and procedures and shall be included in and limited by the Company's annual budget. Reasonable business expenses include, but are not limited to, meals and entertainment, out of town travel, and professional development (subject to approval by the CEO and approved in the budget). The Executive is responsible for his personal commuting travel costs to the Miami office located at 3655 NW 87th Avenue, Doral, Florida.
16.Use of Photographs and Videos. The Executive agrees that any and all photographs or videos of the Executive (both individual and group photographs) may be used by the Company in any publication, written materials or website without any compensation.
17.Return of Company Property. The Executive agrees that, upon expiration or termination of his employment with the Company for any reason, or upon request at any time, the Executive shall immediately deliver or cause to be delivered to the Company's General Counsel any and all laptop computers, books, notebooks, manuals, keys, FOBs, codes, data and any other materials that are the property of the Company. If the Executive fails to return any Company property, the Company shall be entitled to deduct the value of such property from any accrued, unused vacation days owed to the Executive, or to pursue legal action for return of such property. The Executive agrees that the Company shall be entitled to collect their reasonable attorneys' fees and costs for pursuing a claim/lawsuit for return of Company property.
18.Withholding. All payments required to be made by Company hereunder to the Executive will be subject to withholding of such amounts relating to tax and/or other payroll deductions as may be required by law. All payments and benefits provided under this Agreement that are required pursuant to the Internal Revenue Code to be treated as taxable compensation will be reported on the Executive's Form W-2 for the year the payment or benefit is provided and as reasonably determined by the Company to be required by law. The Company will deduct Executive-level withholding taxes required with respect to such payments and benefits either from those payments or from other payments made to the Executive.
19.Severability. If any clause or provision of this Agreement shall be determined to be illegal, invalid or unenforceable by a court of competent jurisdiction or by operation of law, it shall not affect the validity of any other clause or provision.
20.Law Governing Jurisdiction and Venue. This Agreement, its interpretation, and all questions concerning the execution, validity, capacity of the parties and the performance of this Agreement, shall be governed solely by the laws of the State of Florida, without regard to any choice of law principles that might direct application of the laws of any other jurisdiction. The Parties agree that any and all actions arising out of, based upon or relating to this Agreement or the Executive's employment with the Company may be brought solely in the Circuit or County Court located in Miami-Dade County, Florida or, if federal jurisdiction is appropriate, the federal court located in Miami-Dade County, Florida. The Executive expressly and irrevocably: (i) consents to the exclusive jurisdiction of such Florida courts; (ii) agrees that this Agreement is entered into in the State of Florida and any breach of this Agreement shall be deemed a breach of a contract in the State of Florida pursuant to Florida Statutes Section 48.193(l)(a) or any similar statute or amendment enacted by the Florida legislature; (iii) agrees that he is subject to personal jurisdiction in such Florida courts, and that he has the requisite contacts with the State of Florida such that the exercise of personal jurisdiction complies with Florida's long arm statute and the requirements of due process; (iv) agrees that venue is appropriate in such courts; (v) waives any defense or objection
based on a lack of personal jurisdiction; (vi) waives any argument that such courts are an improper venue or an inconvenient forum; and (vii) agrees that in the event any action arising out of, based on or relating in any way to this Agreement or his employment with the Company is instituted in any court other than the state or federal courts located in Miami Dade County, Florida, that he will not object to, but rather will affirmatively consent to, the Company's efforts to have such action dismissed or, if appropriate, transferred to the appropriate state or federal court located in Miami Dade County, Florida.
21.JURY TRIAL WAIVER. EACH PARTY EXPRESSLY AND IRREVOCABLY WAIVES ANY RIGHT TO TRIAL BY JURY IN ANY ACTION ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE EXECUTIVE'S EMPLOYMENT WITH THE COMPANY.
22.Prevailing Party. The prevailing party to an action to enforce or defend this Agreement is entitled to reasonable attorney's fees and costs incurred in connection therewith, including, but not limited to, those incurred at the pre-litigation, pre-trial, trial, and appellate levels, and any hearing to determine entitlement to attorney's fees.
23.Notice. For the purposes of this Agreement, notices and all other communications provided for in this Agreement shall be in writing and shall be deemed to have been duly given when personally delivered or sent by certified mail, return receipt requested, postage prepaid or overnight delivery, addressed to the respective addresses last given by each Party to the other, provided that all notices to the Company shall be directed to the Company's General Counsel. All notices and communications shall be deemed to have been received on the date of delivery or on the third business day after the mailing thereof, except that notice of change of address shall be effective only upon receipt.
24.Complete Agreement. This Agreement supersedes all prior contracts and agreements between the Company and the Executive, whether oral or written. This Agreement may not be amended or modified, except in writing and duly executed on behalf of the Company and the Executive.
25.Time for Acceptance. This Agreement shall be rendered null and void unless the Executive returns an executed original of this Agreement to the Company by June.30, 2019.
IN WITNESS WHEREOF, the Company has caused this Agreement to be executed by its duly authorized officer and the Executive has executed this Agreement effective as of the Effective Date.
EXECUTIVE
/s/ Peter C. Anderson
Peter Anderson (Signature)
Date: 6/28/19
CARNIVAL CORPORATION
By: /s/ Jerry Montgomery
Date: 6/28/19
Certain portions of this document have been omitted pursuant to Item 601(b)(10) of Regulation S‑K and, where applicable, have been marked with “[***]” to indicate where omissions have been made. The marked information has been omitted because it is both (i) not material and (ii) is the type that the registrant treats as private or confidential.
11 February 2022
CARNIVAL CORPORATION
and
CARNIVAL PLC
and
CARNIVAL PLC
BANK OF AMERICA EUROPE DESIGNATED ACTIVITY COMPANY
(as Facilities Agent)
AMENDMENT AGREEMENT RELATING TO A MULTICURRENCY REVOLVING FACILITIES AGREEMENT ORIGINALLY DATED 18 MAY 2011 AS AMENDED FROM TIME TO TIME | ||
| LON58865842 | ||
THIS AGREEMENT is dated 11 February 2022 and made between:
(1) CARNIVAL CORPORATION (a Panamanian corporation having its principal place of business at Carnival Place, 3655 N.W. 87th Avenue, Miami, Florida, 33178-2428) (the Company);
(2) COSTA CROCIERE S.P.A. as an Obligor incorporated in Italy (Costa); and
(3) BANK OF AMERICA EUROPE DESIGNATED ACTIVITY COMPANY as facilities agent of the other Finance Parties (the Facilities Agent).
WHEREAS:
(1) This Agreement is supplemental to and amends the multicurrency facilities agreement (the Facilities Agreement) originally dated 18 May 2011 as amended and restated most recently on 6 August 2019 and as further amended on 31 December 2020, 11 May 2021 and 30 September 2021, between, among others, the Company, Carnival plc and Bank of America Europe Designated Activity Company (formerly known as Bank of America Merrill Lynch International Designated Activity Company) as successor in title to Bank of America Merrill Lynch International Limited.
(2) Pursuant to Clause 41 (Amendments and Waivers) of the Facilities Agreement, the Facilities Agent is authorised to effect, on behalf of any Finance Party, any amendment or waiver permitted by that Clause. The Majority Lenders have consented to the amendment of the Facilities Agreement as contemplated by this Agreement and, accordingly, the Facilities Agent is authorised and has been instructed to execute this Agreement on behalf of the Finance Parties.
(3) The Company is entering this Agreement as Obligors’ Agent in accordance with Clause 2.4 (Obligors’ Agent) of the Facilities Agreement. Costa is the only Obligor incorporated in Italy at the date of this Agreement.
it is agreed as follows:
1. INTERPRETATION
1.1 Definitions
In this Agreement:
Amended Facilities Agreement means the Facilities Agreement as amended by this Agreement.
1.2 Defined terms and construction
In this Agreement, unless the context otherwise requires:
(a) a reference to a term defined in any other Finance Document has the same meaning in this Agreement;
(b) references to Clauses are to Clauses of the Amended Facilities Agreement unless otherwise stated; and
(c) the provisions of Clause 1.2 (Construction) apply to this Agreement as though they were set out in full in this Agreement except that references to the Amended Facilities Agreement are to be construed as references to this Agreement.
LON58865842 | ||
2. AMENDMENT OF FACILITIES AGREEMENT
2.1 Amendment
With effect from (and including) the date of this Agreement, the Facilities Agreement shall be amended to incorporate the amendments set out in Schedule 1 (Amendments) to this Agreement.
3. REPRESENTATIONS
The Repeating Representations are confirmed to be true in all material respects by each Obligor (by reference to the facts and circumstances then existing) on the date of this Agreement, and in each case as if references to the Finance Documents in such Repeating Representations references to this Agreement and the Amended Facilities Agreement.
4. GUARANTEE
On the date of this Agreement, each Obligor:
(a) confirms its acceptance of the Amended Facilities Agreement;
(b) agrees that it is bound as an Obligor by the terms of the Amended Facilities Agreement; and
(c) if a Guarantor or a Subsidiary Guarantor, confirms that its guarantee provided under Clause 23 (Guarantee and Indemnity) of the Amended Facilities Agreement and the relevant Deed of Guarantee and/or the Subsidiary Deed of Guarantee:
(i) continues in full force and effect on the terms of the Amended Facilities Agreement and the relevant Deed of Guarantee and/or the Subsidiary Deed of Guarantee; and
(ii) extends to the obligations of the relevant Obligors under the Finance Documents (including the Amended Facilities Agreement and notwithstanding the imposition of any amended, additional or more onerous obligations).
5. EFFECT OF AMENDMENT
(a) In accordance with the Facilities Agreement, each of the Facilities Agent and Company designates each of this Agreement and the Amended Facilities Agreement as a Finance Document.
(b) The Facilities Agreement and this Agreement will, from the date of this Agreement, be read and construed as one document.
(c) Except as otherwise provided in this Agreement, the Finance Documents remain in full force and effect.
(d) Except to the extent expressly waived in this Agreement, no waiver is given by this Agreement and the Lenders expressly reserve all their rights and remedies in respect of any breach of, or other Default under, the Finance Documents.
6. AMENDMENT FEE
[***]
7. MISCELLANEOUS
7.1 Further assurance
Each Obligor shall, at the request of the Facilities Agent and at its own expense, do all such acts and things necessary or desirable to give effect to the amendments effected or to be effected pursuant to this Agreement.
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7.2 Incorporation of terms
The provisions of Clauses 37 (Notices), 39 (Partial invalidity), 46 (Governing law) and 47 (Enforcement) of the Facilities Agreement shall apply to this Agreement as though they were set out in full in this Agreement and as if references in those clauses to “this Agreement” are references to this Agreement.
7.3 Counterparts
This Agreement may be executed in any number of counterparts, and by each party on separate counterparts. Each counterpart is an original, but all counterparts shall together constitute one and the same instrument. Delivery of a counterpart of this Agreement by e-mail attachment or telecopy shall be an effective mode of delivery.
7.4 Italian transparency rules
Pursuant to and in accordance with the transparency rules (Disposizioni in materia di trasparenza delle operazioni e dei servizi bancari e finanziari. Correttezza delle relazioni tra intermediari e clienti) applicable to transactions and banking and financial services issued by Bank of Italy on 29 July 2009 and published in the Italian official gazette (Gazzetta Ufficiale) no. 217 on 18 September 2009 (as amended and supplemented from time to time) (the Transparency Rules), the Parties mutually acknowledge and declare that this Agreement and any of its terms and conditions have been negotiated, with the assistance of their respective legal counsels, on an individual basis and, as a result, this Agreement falls into the category of the agreements “che costituiscono oggetto di trattativa individuale” which are exempted from the application of Section II of the Transparency Rules.
IN WITNESS whereof the parties have caused this Agreement to be duly executed on the date first written above.
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SCHEDULE 1
Amendments
1. The definition of “Issued Capital and Consolidated Reserves” in Clause 26.1 (Definitions) shall be amended to replace the words “provided that non-cash charges incurred in the financial year ending 30 November 2021 shall not be deducted from the amounts above” in the hanging paragraph at the end of the definition with:
“excluding Accumulated Other Comprehensive Income (Loss), determined in accordance with GAAP and which shall:
(1) for the financial quarter ended 28 February 2023, also include the Convertible Notes in the amount of US$2,012,500,000 as reduced by (i) the value of the Convertible Notes that the Company has elected to settle in cash (rather than equity) in accordance with section 14.02 of the Convertible Notes indenture and (ii) the value of any new equity the Company issues in order to settle in equity that Convertible Notes obligation; and
(2) for the avoidance of doubt:
(A) for all periods starting after 30 November 2022, any outstanding Convertible Notes will be accounted for as equity at any time until the Maturity Date (and, in the case of the financial quarter ended 28 February 2023, in accordance with calculations set out in paragraph (1) above); and
(B) from the Maturity Date, only such part of the Convertible Notes as has actually been converted into equity securities by the Maturity Date shall be included in determining the level of Issued Capital and Consolidated Reserves;
(3) if the Convertible Notes are refinanced with other convertible debt such that the Maturity Date is extended or replaced, the financial periods in paragraphs (1) and (2) above shall be deemed amended to refer to the periods during which the revised maturity date occurs.
provided that:
(a) any non-cash charge to Issued Capital and Consolidated Reserves resulting (directly or indirectly) from a change after the date of this Agreement in GAAP or in the interpretation thereof shall be disregarded in the computation of Issued Capital and Consolidated Reserves such that the amount of any reduction thereof resulting from such change shall be added back to Issued Capital and Consolidated Reserves;
(b) any non-cash write-off to Issued Capital and Consolidated Reserves with respect to the financial year ended 30 November 2020 shall be disregarded in the computation of Issued Capital and Consolidated Reserves such that the amount of any reduction thereof resulting from such write-offs shall be added back to Issued Capital and Consolidated Reserves;
(c) any non-cash write-off to Issued Capital and Consolidated Reserves with respect to the financial year ended 30 November 2021 and 30 November 2022 (excluding any such write-offs to goodwill with respect to either such financial year) shall be disregarded in the computation of Issued Capital and Consolidated Reserves such that the amount of any reduction thereof resulting from such write-off shall be added back to Issued Capital and Consolidated Reserves; provided that the aggregate amount of such write-offs added back to Issued Capital and Consolidated Reserves pursuant to this paragraph (c) shall not exceed the greater of (i) 10% of the total assets of the Carnival Corporation & plc Group taken as
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a whole as determined in accordance with GAAP as at the last day of the most recently ended financial quarter and (ii) US$5,500,000,000;
(d) any non-cash write-off to such part of the Company and Carnival plc’s goodwill as existed on the balance sheet of the Company and Carnival plc as of 30 November 2020 (namely US$806,791,000) in respect of the financial years ended 30 November 2021 (such non-cash write off being US$225,547,000 with balance sheet goodwill as of 30 November 2021 being US$578,966,000), 30 November 2022, 30 November 2023 and 30 November 2024, shall be disregarded in the computation of Issued Capital and Consolidated Reserves such that the amount of any reduction thereof resulting from such write-offs shall be added back to Issued Capital and Consolidated Reserves; and
(e) Net Income (Loss) (but excluding any net loss associated with an impairment or write-off added back pursuant to paragraph (b), paragraph (c) or paragraph (d) above), determined in accordance with GAAP as shown in the Carnival Corporation & plc Group’s consolidated statement of comprehensive (loss) income, attributable to the financial years ending 30 November 2021 (namely US$9,501,333,000) and 30 November 2022 shall be added back to Issued Capital and Consolidated Reserves; provided that the aggregate amount added back to Issued Capital and Consolidated Reserves pursuant to paragraph (c) above and this paragraph (e) shall not exceed US$9,500,000,000.
For the avoidance of doubt, no item added back to Issued Capital and Consolidated Reserves pursuant to paragraphs (b) to (e) above shall be added back pursuant to any other clause, section or paragraph of this Agreement.
For the purposes of this definition:
Convertible Notes has the meaning given to that term in Schedule 18 (Additional Restrictive Covenants);
Maturity Date has the meaning given to that term under the Convertible Notes (as modified by paragraph (3) above); and
non-cash write-off shall include losses on extinguishment of debt.”
2. Clause 26.4 (Interest cover) shall be deleted in its entirety and replaced with the following:
“Interest cover
The Company must ensure that on each Testing Date the ratio of EBITDA to Consolidated Net Interest Charges, for the Measurement Period ending on each Testing Date on and from 31 August 2023 set out below, is not less than the relevant ratio set out below:
| Testing Date | Ratio of EBITDA to Consolidated Net Interest Charges | ||||
| 31 August 2023 | 2.00 to 1 | ||||
| 30 November 2023 | 2.50 to 1 | ||||
| 29 February 2024 and thereafter | 3.00 to 1 | ||||
”
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3. Clause 26.5 (Minimum Available Liquidity) shall be deleted in its entirety and replaced with the following:
“Minimum Available Liquidity
The Company must ensure that on each Testing Date on (and including) 28 February 2021 to (and including) the earlier of (i) 30 November 2026 and (ii) the Termination Date (inclusive), the Available Liquidity is not less than USD 1,500,000,000.”
4. Clause 27.10 (Most favoured Lenders) shall be deleted in its entirety and replaced with the following:
“Most favoured Lenders
(a) If, on or before 11 August 2022, in order to obtain solely the amendment of financial covenants in any of the agreements governing Pre-COVID Unsecured Debt (each a Facility Agreement) in order to reflect the financial covenants set out in Clause 26 (Financial Covenants) of this Agreement, an Obligor agrees, in respect of any Facility Agreement, to:
(i) grant any increase in margin,
(ii) pay any waiver, amendment or other fee at a rate in excess of the rate of the amendment and waiver fee being paid to the Lenders in connection with the waiver of financial covenants under this Agreement,
(iii) amend a Facility Agreement to include any additional mandatory or other prepayment provision (including by way of amortisation instalments) or to prepay any facility provided under a Facility Agreement,
(iv) amend a Facility Agreement to include any additional covenant or event of default and/or to amend any existing covenant or event of default, or
(v) amend a Facility Agreement to add any obligor or guarantor or provide any additional guarantee from any member of the Carnival Corporation & plc Group (other than any amendment or extension of a guarantee from an existing obligor or guarantor under the relevant Facility Agreement),
(each a Relevant Provision) that would, in each case, be reasonably considered to be materially more beneficial to the lenders under such Facility Agreement than the equivalent provisions or fees that have been provided to paid to the Lenders in respect of this Agreement; or
(vi) any member of the Carnival Corporation & plc Group grants a Security Interest on its assets to secure a Facility Agreement,
then the Company shall promptly, and in any event within 10 Business Days after permitting the amendment of any relevant Facility Agreement, or payment of additional fee or grant of the Security Interest (as applicable), give notice accordingly to the Facilities Agent and:
(A) provide in respect of any Relevant Provision, reasonable details to the Facilities Agent of the Relevant Provision and offer to amend this Agreement to include terms (including payment of any additional fee) substantially equivalent to the Relevant Provision; or
(B) provide in respect of any Security Interest, reasonable details of the Security Interest to the Facilities Agent and offer to procure that the relevant Obligor and/or the relevant member of the Carnival Corporation & plc Group provides to the Lenders substantially similar Security Interests on the relevant assets to that granted under the Facility Agreement (the New Security).
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(b) If any Obligor and/or member of the Carnival Corporation & plc Group has granted a Relevant Provision or New Security, such Relevant Provision and/or New Security shall be deemed automatically to be incorporated in this Agreement. The relevant Obligor agrees to, and to procure any relevant member of the Carnival Corporation & plc Group to, execute and deliver at the request of the Facilities Agent any amendments or additions to the Finance Documents required to evidence the Relevant Provision under the Finance Documents or have the New Security granted by the relevant member of the Carnival Corporation & plc Group.”
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SIGNATORIES
CARNIVAL CORPORATION
By: /s/ Quinby Dobbins Quinby Dobbins, Treasurer
Place of execution: Miami, Florida
Place of execution: Miami, Florida
COSTA CROCIERE S.p.A.
By: /s/ David Bernstein David Bernstein, Director
Place of execution: Miami, Florida
Place of execution: Miami, Florida
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Facilities Agent
BANK OF AMERICA EUROPE DESIGNATED ACTIVITY COMPANY
By: /s/ Colin Gotts Colin Gotts, Vice President
Place of execution: 26 Elmfield Road
Place of execution: 26 Elmfield Road
Bromley
Kent
BR1 1WA
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FORM OF EARNINGS RECOVERY AWARD AGREEMENT
FOR THE CARNIVAL CORPORATION 2020 STOCK PLAN FOR THE CEO
THIS EARNINGS RECOVERY AWARD AGREEMENT (this “Agreement”), shall apply to the grant of Earnings Recovery Award performance cash and restricted stock units made to [NAME] by Carnival Corporation, a corporation organized under the laws of the Republic of Panama, (the “Company”) on [DATE] (the “Date of Grant”) under the Carnival Corporation 2020 Stock Plan (the “Plan”).
WHEREAS, the Company has adopted the Plan, pursuant to which performance cash awards and restricted stock units may be granted in respect of Shares; and
WHEREAS, the Company desires to grant to Participant earnings recovery award performance cash and restricted stock units pursuant to the terms of this Agreement and the Plan; and
WHEREAS, the Compensation Committee of the Board of Directors of the Company (the “Committee”) has determined that it is in the best interests of the Company and its shareholders to grant the earnings recovery award performance cash and restricted stock units provided for herein to the Participant subject to the terms set forth herein.
NOW, THEREFORE, for and in consideration of the premises and the covenants of the parties contained in this Agreement, and for other good and valuable consideration, the receipt of which is hereby acknowledged, the parties hereto, for themselves, their successors and assigns, hereby agree as follows:
1. Grant of Performance Cash and Restricted Stock Units.
(a) Grant. The Company hereby grants to Arnold W. Donald (the “Participant”) as of the Date of Grant, an Earnings Recovery Award target performance cash value of [TARGET CASH] (the “ERA Cash”) and a target number of [TARGET RSUs] restricted stock units (the “ERA RSUs”) (together the “Target Amount”), on the terms and conditions set forth in this Agreement and the Plan (together, the “ERA Award”).
(i) The ERA Cash represents the right to receive a cash payment as of the Settlement Date (as defined below), to the extent the Participant is vested in such ERA Cash as of the Settlement Date, subject to the terms of this Agreement and the Plan. The ERA Cash is subject to the restrictions described herein, including forfeiture under the circumstances described in Section 3 hereof (the “Restrictions”). The Restrictions shall lapse and the ERA Cash shall vest and become nonforfeitable in accordance with Section 2 and Section 3 hereof.
(ii) Each ERA RSU represents the right to receive payment in respect of one Share as of the Settlement Date (as defined below), to the extent the Participant is vested in such ERA RSUs as of the Settlement Date, subject to the terms of this Agreement and the Plan. The ERA RSUs are subject to the restrictions described herein, including forfeiture under the circumstances described in Section 3 hereof (the “Restrictions”). The Restrictions shall lapse and the ERA RSUs shall vest and become nonforfeitable in accordance with Section 2 and Section 3 hereof.
(b) Incorporation by Reference, Etc. The provisions of the Plan are hereby incorporated herein by reference. Except as otherwise expressly set forth herein, this Agreement shall be construed in accordance with the provisions of the Plan and any interpretations, amendments, rules and regulations promulgated by the Committee from time to time pursuant to the Plan. Any capitalized terms not otherwise defined in this Agreement shall have the definitions set forth in the Plan. The Committee shall have final authority to interpret and construe the Plan and this Agreement and to make any and all determinations under them, and its decision shall be binding and conclusive upon the Participant and his legal representative in respect of any questions arising under the Plan or this Agreement. In the event there is any
inconsistency between the provisions of the Plan and this Agreement, the provisions of the Plan shall govern.
(c) Acceptance of Agreement. Unless the Participant notifies the Company's Global Human Resources Department in writing to ownership@carnival.com within 10 days after delivery of this Agreement that the Participant does not wish to accept this Agreement, the Participant will be deemed to have accepted this Agreement and will be bound by the terms of this Agreement and the Plan.
2. Terms and Conditions of Vesting and Settlement.
(a) Performance and Service Conditions to Vesting.
(i) A specified percentage of the ERA Award shall vest if both (A) the Participant remains in continuous employment or continuous service with the Company or an Affiliate through the Settlement Date (defined in Section 2(b) below), except as provided in Section 3(b), and (B) the Company achieves the Performance Goals set forth on Exhibit A at a level equal to or above the threshold level of performance, also set forth on Exhibit A (the “Performance Goals”). Unless provided otherwise by the Committee, the Participant shall be deemed to not be in continuous employment or continuous service if the Participant's status changes from employee to non-employee, or vice-versa. The actual number of ERA RSUs or amount of ERA Cash that may vest ranges from zero to [MAX numerals]% of the Target Amount, based on the extent to which the Performance Goals are achieved, in accordance with the methodology set out on Exhibit A, subject to a maximum payout cap of [MAX numerals]%. Except as otherwise provided in Section 3(b), in no event shall any portion of the ERA Award vest unless and until (i) at least the threshold Performance Goal is achieved, (ii) the Committee certifies that the Performance Goals have been met and determines the level of attainment of the Performance Goals (the “Certification”), and (iii) the Participant has remained in the continuous employment or continuous service of the Company or an Affiliate through the Settlement Date. If the foregoing vesting requirements are not met, no portion of the ERA Award shall vest and this ERA Award shall be cancelled in its entirety.
(ii) At any time following the Date of Grant, the Committee shall make adjustments or modifications to the Performance Goals and the calculation of the Performance Goals as it determines, in its sole discretion, are necessary in order to avoid dilution or enlargement of the intended benefits to be provided to the Participant under this Agreement, to reflect the following events: (A) asset write-downs; (B) litigation or claim judgments or settlements; (C) the effect of changes in tax laws, accounting principles, or other laws or regulatory rules affecting reported results; (D) any reorganization and restructuring programs; (E) extraordinary nonrecurring items as described in Accounting Standards Codification Topic 225-20 (or any successor pronouncement thereto) and/or in management’s discussion and analysis of financial condition and results of operations appearing in the Company’s annual report to stockholders for the applicable year; (F) acquisitions or divestitures; (G) foreign exchange gains and losses; (H) discontinued operations and nonrecurring charges; (I) a change in the Company’s fiscal year; and/or (J) any other specific, unusual or nonrecurring events.
(b) Settlement. The obligation to make payments and distributions with respect to the ERA Award shall be satisfied through the issuance of one Share for each vested ERA RSU and a cash payment for the vested ERA Cash, less applicable withholding taxes (the “settlement”), and the settlement of the ERA Award may be subject to such conditions, restrictions and contingencies as the Committee shall determine. Except as otherwise provided in Section 3(b), Earned ERA RSUs and Earned ERA Cash (as defined in Exhibit A) shall vest and be settled as soon as practicable after the end of the performance cycle and Certification (the “Settlement Date”), but in no event later than March 15 of the year following the calendar year in which Certification occurs, except as otherwise specified in Section 4(a). Notwithstanding the foregoing, the payment dates set forth in this Section 2(b) have been specified for the purpose of complying with the provisions of Section 409A of the Code (“Section 409A”). To the extent payments are made during the periods permitted under Section 409A (including any applicable periods before or after the specified payment dates set forth in this Section 2(b)), the Company
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shall be deemed to have satisfied its obligations under the Plan and shall be deemed not to be in breach of its payments obligations hereunder.
(c) Dividends and Voting Rights. Subject to the limitation set forth in Exhibit A (8), each ERA RSU subject to this grant shall be credited with dividend equivalents equal to the dividends (including extraordinary dividends if so determined by the Committee) declared and paid to other shareholders of the Company in respect of one Share. Dividend equivalents shall not bear interest. On the Settlement Date, such dividend equivalents in respect of each vested ERA RSU shall be settled by delivery to the Participant of a number of Shares equal to the quotient obtained by dividing (i) the aggregate accumulated value of such dividend equivalents by (ii) the Fair Market Value of a Share on the date that is 30 days prior to the Settlement Date or other applicable vesting date set forth in Section 3(b), rounded down to the nearest whole share, less any applicable withholding taxes. No dividend equivalents shall be accrued for the benefit of the Participant with respect to record dates occurring prior to the Date of Grant, or with respect to record dates occurring on or after the date, if any, on which the Participant has forfeited the ERA RSUs. The Participant shall have no voting rights with respect to the ERA RSUs or any dividend equivalents.
3. Termination of Employment or Service with the Company.
(a) All Termination. If the Participant’s employment or service with the Company or an Affiliate terminates for any reason whether due to Cause, death, disability, voluntary termination, Retirement, termination by the Company without Cause or otherwise, then all outstanding ERA RSUs and ERA Cash shall immediately terminate on the date of termination of employment or service.
(b) Released ERA RSUs. Following Participant’s termination of employment or service with the Company or an Affiliate for any reason, the Participant (or the Participant's beneficiary, if applicable) must provide for all Shares underlying released ERA RSUs (including those issued under this Agreement as well as Shares underlying released ERA RSUs issued under any other similar agreement, whether on account of termination or previously released in connection with the vesting terms of such similar agreement) to be liquidated or transferred to a third party broker no later than six months following the later of (i) the Participant's date of termination or (ii) the latest Settlement Date or other applicable vesting or settlement date (whether under this Agreement or a similar agreement) occurring following the Participant's termination. If the Participant (or the Participant's beneficiary, as applicable) fails to liquidate or transfer the Shares prior to the end of the applicable six month period, the Company is hereby authorized and directed by the Participant either, in the Company's discretion: (i) to sell any such remaining Shares on the Participant's (or the Participant's beneficiary's) behalf on the first trading date following the end of such period on which the Company is not prohibited from selling such Shares; or (ii) to transfer such Shares to the Company's stock transfer agent for registration in the Participant's (or the Participant's beneficiary's) name. The Company will not be responsible for any gain or loss or taxes incurred with respect to the Shares underlying the released ERA RSUs in connection with such liquidation or transfer.
4. Share Ownership. The Participant shall not be deemed for any purpose to be the owner of any Shares subject to the ERA RSUs and shall not have any rights of a shareholder with respect to the ERA RSUs, including, but not limited to, voting or dividend rights, until delivery of the applicable Shares underlying the ERA RSUs on the Settlement Date. The Company shall not be required to set aside any fund for the payment of the ERA RSUs.
5. Miscellaneous.
(a) Compliance with Legal Requirements. The granting and settlement of the ERA Award, and any other obligations of the Company under this Agreement, shall be subject to all applicable federal, state, local and foreign laws, rules and regulations and to such approvals by any regulatory or governmental agency as may be required. If the settlement of the ERA Award would be prohibited by law or the Company’s dealing rules, the settlement shall be delayed until the earliest date on which the settlement would not be so prohibited.
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(b) Transferability. Unless otherwise provided by the Committee in writing, the ERA Award shall not be assigned, alienated, pledged, attached, sold or otherwise transferred or encumbered by the Participant other than by will or the laws of descent and distribution and any such purported assignment, alienation, pledge, attachment, sale, transfer or encumbrance shall be void and unenforceable against the Company; provided, that, the designation of a beneficiary shall not constitute an assignment, alienation, pledge, attachment, sale, transfer or encumbrance.
(c) Tax Withholding. The Participant acknowledges that, regardless of any action taken by the Company or, if different, the Participant's employer (the Employer), the ultimate liability for all income tax, social insurance, payroll tax, fringe benefits tax, payment on account or other tax-related items related to the Participant's participation in the Plan and legally applicable to the Participant (Tax-Related Items), is and remains the Participant's responsibility and may exceed the amount actually withheld by the Company or the Employer. The Participant further acknowledges that the Company and/or the Employer (1) make no representations or undertakings regarding the treatment of any Tax-Related Items in connection with any aspect of the ERA Award, including, but not limited to, the grant, vesting or settlement of the ERA RSUs, the subsequent sale of Shares acquired pursuant to such settlement and the receipt of any dividends; and (2) do not commit to and are under no obligation to structure the terms of the grant or any aspect of the ERA Award to reduce or eliminate the Participant's liability for Tax-Related Items or achieve any particular tax result. Further, if the Participant is subject to Tax-Related Items in more than one jurisdiction, the Participant acknowledges that the Company and/or the Employer (or former employer, as applicable) may be required to withhold or account for Tax-Related Items in more than one jurisdiction.
Prior to any relevant taxable or tax withholding event, as applicable, the Participant agrees to make adequate arrangements satisfactory to the Company and/or the Employer to satisfy all Tax-Related Items. In this regard, the Participant authorizes the Company or its agent to satisfy any applicable withholding obligations with regard to all Tax-Related Items by one or a combination of the following: (i) withholding from the Participant's ERA Cash, wages or other cash compensation paid to the Participant by the Company and/or the Employer; or (ii) withholding from proceeds of the sale of Shares acquired upon settlement of the ERA RSUs either through a voluntary sale or through a mandatory sale arranged by the Company (on the Participant's behalf pursuant to this authorization without further consent); or (iii) withholding in Shares to be issued upon settlement of the ERA RSUs.
Notwithstanding the foregoing, if the Participant is an officer subject to Section 16 of the Exchange Act, the Company will withhold in Shares only upon advance approval by the Committee or the Board.
Depending on the withholding method, the Company may withhold or account for Tax-Related Items by considering applicable minimum statutory withholding rates or other applicable withholding rates, including maximum applicable rates, in which case the Participant may receive a refund of any over-withheld amount in cash and will have no entitlement to the Share equivalent. If the obligation for Tax-Related Items is satisfied by withholding in Shares, for tax purposes, the Participant is deemed to have been issued the full number of Shares subject to the vested Grant, notwithstanding that a number of the Shares are held back solely for the purpose of paying the Tax-Related Items.
Finally, the Participant agrees to pay to the Company or the Employer any amount of Tax-Related Items that the Company or the Employer may be required to withhold or account for as a result of the Participant's participation in the Plan that cannot be satisfied by the means previously described. The Company may refuse to issue or deliver the Shares or the proceeds of the sale of Shares or ERA Cash, if the Participant fails to comply with the Participant's obligations in connection with the Tax-Related Items.
(d) Nature of Grant. In accepting the grant, the Participant acknowledges, understands and agrees that:
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(i) the Plan is established voluntarily by the Company, it is discretionary in nature and it may be modified, amended, suspended or terminated by the Company at any time, to the extent permitted by the Plan;
(ii) the grant of the ERA Award is exceptional, voluntary and occasional and does not create any contractual or other right to receive future grants of ERA Awards, or benefits in lieu of ERA Awards, even if ERA Awards have been granted in the past;
(iii) all decisions with respect to future awards or other grants, if any, will be at the sole discretion of the Company;
(iv) the Participant is voluntarily participating in the Plan;
(v) the ERA RSUs, ERA Cash and the Shares subject to the ERA RSUs, and the income from and value of same, are not intended to replace any pension rights or compensation;
(vi) the ERA RSUs, ERA Cash and the Shares subject to the ERA RSUs, and the income from and value of same, are not part of normal or expected compensation for purposes of, including, without limitation, calculating any severance, resignation, termination, redundancy, dismissal, end-of-service payments, bonuses, long-service awards, pension or retirement or welfare benefits or similar payments;
(vii) the future value of the underlying Shares is unknown, indeterminable and cannot be predicted with certainty;
(viii) no claim or entitlement to compensation or damages shall arise from forfeiture of the ERA Award resulting from the termination of the Participant's employment or other service relationship (for any reason whatsoever, whether or not later found to be invalid or in breach of employment laws in the jurisdiction where the Participant is employed or the terms of the Participant's employment agreement, if any);
(ix) unless otherwise agreed with the Company, the ERA Cash, ERA RSUs and the Shares, and the income from and value of same, are not granted as consideration for, or in connection with, the service the Participant may provide as a director of the Company or any member of the Combined Group and its Affiliates;
(x) unless otherwise provided in the Plan or by the Company in its discretion, the ERA Award and the benefits evidenced by this Agreement do not create any entitlement to have the ERA Awards or any such benefits transferred to, or assumed by, another company nor to be exchanged, cashed out or substituted for, in connection with any corporate transaction affecting the shares of the Company; and
(xi) if the Participant resides outside the United States or is otherwise subject to the laws of a country outside the United States:
(A) the ERA Cash, ERA RSUs and the Shares subject to the ERA RSUs, and the income and value of same, are not part of normal or expected compensation for any purpose; and
(B) neither the Company, the Employer or any member of the Combined Group or its Affiliates shall be liable for any foreign exchange rate fluctuation between the Participant's local currency and the United States Dollar that may affect the value of the ERA Award or of any amounts due to the Participant pursuant to the settlement of the ERA Award or the subsequent sale of any Shares acquired upon settlement.
(e) No Advice Regarding Grant. The Company is not providing any tax, legal or financial advice, nor is the Company making any recommendations regarding the Participant's
5
participation in the Plan, or the Participant's acquisition or sale of the underlying Shares. The Participant should consult with the Participant's own personal tax, legal and financial advisors regarding the Participant's participation in the Plan before taking any action related to the Plan.
(f) Clawback/Forfeiture.
(i) Notwithstanding anything to the contrary contained herein, in the event of a material restatement of the Company's issued financial statements, the Committee shall review the facts and circumstances underlying the restatement (including, without limitation any potential wrongdoing by the Participant and whether the restatement was the result of negligence or intentional or gross misconduct) and may in its sole discretion direct the Company to (A) cancel all outstanding ERA Award and/or (B) recover all or a portion of any income or gain realized on the settlement of the ERA Award or the subsequent sale of Shares acquired upon settlement of the ERA RSUs with respect to any fiscal year in which the Company's financial results are negatively impacted by such restatement. If the Committee directs the Company to recover any such amount from the Participant, then the Participant agrees to and shall be required to repay any such amount to the Company within 30 days after the Company demands repayment. In addition, if the Company is required by law to include an additional “clawback” or “forfeiture” provision to outstanding grants, under the Dodd-Frank Wall Street Reform and Consumer Protection Act or otherwise, then such clawback or forfeiture provision shall also apply to this Agreement as if it had been included on the Date of Grant and the Company shall promptly notify the Participant of such additional provision. In addition, if a Participant has engaged or is engaged in Detrimental Activity after the Participant's employment or service with the Company or its subsidiaries has ceased, then the Participant, within 30 days after written demand by the Company, shall return any income or gain realized on the settlement of the ERA Cash, ERA RSUs or the subsequent sale of Shares acquired upon settlement of the ERA RSUs.
(ii) For purposes of this Agreement, “Detrimental Activity” means any of the following: (i) unauthorized disclosure of any confidential or proprietary information of the Combined Group, (ii) any activity that would be grounds to terminate the Participant's employment or service with the Combined Group for Cause, (iii) whether in writing or orally, maligning, denigrating or disparaging the Combined Group or their respective predecessors and successors, or any of the current or former directors, officers, employees, shareholders, partners, members, agents or representatives of any of the foregoing, with respect to any of their respective past or present activities, or otherwise publishing (whether in writing or orally) statements that tend to portray any of the aforementioned persons or entities in an unfavorable light, or (iv) the breach of any noncompetition, nonsolicitation or other agreement containing restrictive covenants, with the Combined Group. For purposes of the preceding sentence the phrase “the Combined Group” shall mean “any member of the Combined Group or any Affiliate”. Notwithstanding the foregoing, nothing in this Agreement prohibits the Participant from voluntarily communicating, without notice to or approval by the Company, with any federal or state government agency about a potential violation of a federal or state law or regulation or to participate in investigations, testify in proceedings regarding the Company's or an Affiliate’s past or future conduct, or engage in any activities protected under whistle blower statutes. Further, pursuant to the Defend Trade Secrets Act of 2016, the Participant shall not be held criminally, or civilly, liable under any federal or state trade secret law for the disclosure of a trade secret that is made in confidence either directly or indirectly to a federal, state, or local government official, or an attorney, for the sole purpose of reporting, or investigating, a violation of law. Moreover, the Participant may disclose trade secrets in a complaint, or other document, filed in a lawsuit, or other proceeding, if such filing is made under seal. Finally, if the Participant files a lawsuit alleging retaliation by the Company or an Affiliate for reporting a suspected violation of the law, the Participant may disclose the trade secret to the Participant’s attorney and use the trade secret in the court proceeding, if the Participant files any document containing the trade secret under seal and does not disclose the trade secret, except pursuant to court order.
(g) Waiver. Any right of the Company contained in this Agreement may be waived in writing by the Committee. No waiver of any right hereunder by any party shall operate as a waiver of any other right, or as a waiver of the same right with respect to any subsequent occasion for its exercise, or as a waiver of any right to damages. No waiver by any party of any
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breach of this Agreement shall be held to constitute a waiver of any other breach or a waiver of the continuation of the same breach.
(h) Notices. Any written notices provided for in this Agreement or the Plan shall be in writing and shall be deemed sufficiently given if either hand delivered or if sent by fax or overnight courier, or by postage paid first class mail. Notices sent by mail shall be deemed received three business days after mailing but in no event later than the date of actual receipt. Notices shall be directed, if to the Participant, at the Participant's address indicated by the Company's records, or if to the Company, at the Company's principal executive office.
(i) Severability. The invalidity or unenforceability of any provision of this Agreement shall not affect the validity or enforceability of any other provision of this Agreement, and each other provision of this Agreement shall be severable and enforceable to the extent permitted by law.
(j) No Rights to Continued Employment. Nothing in the Plan or in this Agreement shall be construed as giving the Participant any right to be retained, in any position, as an employee, consultant or director of the Company or its Affiliates or shall interfere with or restrict in any way the right of the Company or its Affiliates, which are hereby expressly reserved, to remove, terminate or discharge the Participant at any time for any reason whatsoever. The rights and obligations of the Participant under the terms and conditions of the Participant's office or employment shall not be affected by this Agreement. The Participant waives all and any rights to compensation and damages in consequence of the termination of the Participant's office or employment with any member of the Combined Group or any of its Affiliates for any reason whatsoever (whether lawfully or unlawfully) insofar as those rights arise, or may arise, from the Participant's ceasing to have rights under or the Participant's entitlement to the ERA Award under this Agreement as a result of such termination or from the loss or diminution in value of such rights or entitlements. In the event of conflict between the terms of this Section 5(j) and the Participant's terms of employment, this Section will take precedence.
(k) Beneficiary. In the event of the Participant's death, any Shares that vest pursuant to Section 3(b) of this Agreement will be issued to the legal representative of the Participant’s estate.
(l) Successors. The terms of this Agreement shall be binding upon and inure to the benefit of the Company and its successors and assigns, and of the Participant and the beneficiaries, legal representatives, executors, administrators, heirs and successors of the Participant.
(m) Entire Agreement. This Agreement and the Plan contain the entire agreement and understanding of the parties hereto with respect to the subject matter contained herein and supersede all prior communications, representations and negotiations in respect thereto. No change, modification or waiver of any provision of this Agreement shall be valid unless the same shall be in writing and signed by the parties hereto, except for any changes permitted without consent of the Participant in accordance with the Plan.
(n) Governing Law; JURY TRIAL WAIVER. This Agreement shall be construed and interpreted in accordance with the laws of the State of Florida without regard to principles of conflicts of law thereof, or principles of conflicts of laws of any other jurisdiction which could cause the application of the laws of any jurisdiction other than the State of Florida. THE PARTIES EXPRESSLY AND KNOWINGLY WAIVE ANY RIGHT TO A JURY TRIAL IN THE EVENT ANY ACTION ARISING UNDER OR IN CONNECTION WITH THIS AGREEMENT IS LITIGATED OR HEARD IN ANY COURT.
(o) Data Protection. The Employer, the Company and any Affiliate may collect, use, process, transfer or disclose the Participant’s Personal Information for the purpose of implementing, administering and managing the Participant's participation in the Plan, in accordance with the Carnival Corporation & plc Equity Plans Participant Privacy Notice the Participant previously received. (The Participant should contact ownership@carnival.com if he or
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she would like to receive another copy of this notice.) For example, the Participant’s Personal Information may be directly or indirectly transferred to Equatex AG or any other third party stock plan service provider as may be selected by the Company, and any other third parties assisting the Company with the implementation, administration and management of the Plan.
(p) Insider Trading/Market Abuse Laws. The Participant may be subject to insider trading restrictions and/or market abuse laws in applicable jurisdictions, including the United States, the United Kingdom, and the Participant’s country, which may affect the Participant’s ability to directly or indirectly, for his- or her- self or a third party, acquire or sell, or attempt to sell, Shares under the Plan during such times as the Participant is considered to have “inside information” regarding the Company (as defined by the laws and regulations in the applicable jurisdiction, including the United States, the United Kingdom, and the Participant’s country), or may affect the trade in Shares or the trade in rights to Shares under the Plan. Local insider trading laws and regulations may prohibit the cancellation or amendment of orders the Participant placed before the Participant possessed inside information. Furthermore, the Participant could be prohibited from (i) disclosing the inside information to any third party, which may include fellow employees (other than on a “need to know” basis) and (ii) “tipping” third parties or causing them otherwise to buy or sell securities. Local insider trading laws and regulations may be the same or different from any Company insider trading policy. The Participant acknowledges that it is the Participant’s responsibility to be informed of and compliant with such regulations, and the Participant should speak to the Participant’s personal advisor on this matter.
(q) Headings. The headings of the Sections hereof are provided for convenience only and are not to serve as a basis for interpretation or construction, and shall not constitute a part, of this Agreement.
(r) Language. The Participant acknowledges that he or she is proficient in the English language, or has consulted with an advisor who is sufficiently proficient, so as to allow the Participant to understand the terms and conditions of this Agreement. If the Participant has received this Agreement or any other document related to the Plan translated into a language other than English and if the meaning of the translated version is different than the English version, the English version will control.
(s) Electronic Delivery and Acceptance. The Company may, in its sole discretion, decide to deliver any documents related to current or future participation in the Plan by electronic means. The Participant hereby consents to receive such documents by electronic delivery and agrees to participate in the Plan through an on-line or electronic system established and maintained by the Company or a third party designated by the Company.
6. Change in Control. In the event of a Change in Control after the end of the Performance Cycle but prior to the vesting or settlement of the ERA Award, the level of attainment of the Performance Goals and the number of Earned ERA RSUs and Earned ERA Cash (if any) will be determined and certified by the Committee in the manner set forth on Exhibit A. If a Change in Control occurs prior to the end of the Performance Cycle, the Performance Cycle will end on the Accelerated End Date set forth on Exhibit A and the level of attainment of the Performance Goals and the number of Earned ERA RSUs and Earned ERA Cash (if any) will be determined and certified by the Committee in the manner set forth on Exhibit A. Any such Earned ERA RSUs and Earned ERA Cash will vest and be settled in accordance with Section 2(b) of this Agreement.
7. Imposition of Other Requirements. The Company reserves the right to impose other requirements on the Participant's participation in the Plan, on the ERA Cash, ERA RSUs and on any Shares acquired under the Plan, to the extent the Company determines it is necessary or advisable for legal or administrative reasons, and to require the Participant to sign any additional agreements or undertakings that may be necessary to accomplish the foregoing.
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IN WITNESS WHEREOF, the Company has executed this Agreement as of the day first written above.
CARNIVAL CORPORATION
By: ______________________________
[Authorized Signatory Name & Title]
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Exhibit A
Performance Goal Vesting Matrix
[PERFORMANCE CRITERIA FOR GRANT]
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FORM OF EARNINGS RECOVERY AWARD AGREEMENT
FOR THE CARNIVAL CORPORATION 2020 STOCK PLAN
FOR CERTAIN NAMED EXECUTIVE OFFICERS
THIS EARNINGS RECOVERY AWARD AGREEMENT (this “Agreement”), shall apply to the grant of Earnings Recovery Award made to employees by Carnival Corporation, a corporation organized under the laws of the Republic of Panama, (the “Company”) or employees of an Affiliate, on [DATE] (the “Date of Grant”) under the Carnival Corporation 2020 Stock Plan (the “Plan”).
WHEREAS, the Company has adopted the Plan, pursuant to which performance awards may be granted in respect of Shares; and
WHEREAS, the Company desires to grant to Participant an earnings recovery award pursuant to the terms of this Agreement and the Plan; and
WHEREAS, the Compensation Committee of the Board of Directors of the Company (the “Committee”) has determined that it is in the best interests of the Company and its shareholders to grant the earnings recovery award provided for herein to Participant subject to the terms set forth herein.
NOW, THEREFORE, for and in consideration of the premises and the covenants of the parties contained in this Agreement, and for other good and valuable consideration, the receipt of which is hereby acknowledged, the parties hereto, for themselves, their successors and assigns, hereby agree as follows:
1. Grant of Performance Award.
(a) Grant. The Company hereby grants to select employees (the “Participant”) as of the Date of Grant, an Earnings Recovery Award (the “ERA”) cash target (the “Target Amount”), on the terms and conditions set forth in this Agreement. Each ERA Target Amount represents the right to receive payment in respect of Shares as of the Settlement Date (as defined below), to the extent the Participant is vested in such ERA as of the Settlement Date, subject to the terms of this Agreement and the Plan. The ERA is subject to the restrictions described herein, including forfeiture under the circumstances described in Section 3 hereof (the “Restrictions”). The Restrictions shall lapse and the ERA shall vest and become nonforfeitable in accordance with Section 2 and Section 3 hereof.
(b) Incorporation by Reference, Etc. The provisions of the Plan are hereby incorporated herein by reference. Except as otherwise expressly set forth herein, this Agreement shall be construed in accordance with the provisions of the Plan and any interpretations, amendments, rules and regulations promulgated by the Committee from time to time pursuant to the Plan. Any capitalized terms not otherwise defined in this Agreement shall have the definitions set forth in the Plan. The Committee shall have final authority to interpret and construe the Plan and this Agreement and to make any and all determinations under them, and its decision shall be binding and conclusive upon the Participant and his legal representative in respect of any questions arising under the Plan or this Agreement. In the event there is any inconsistency between the provisions of the Plan and this Agreement, the provisions of the Plan shall govern.
(c) Acceptance of Agreement. Unless the Participant notifies the Company's Global Human Resources Department in writing to ownership@carnival.com within 10 days after delivery of this Agreement that the Participant does not wish to accept this Agreement, the Participant will be deemed to have accepted this Agreement and will be bound by the terms of this Agreement and the Plan.
2. Terms and Conditions of Vesting and Settlement.
(a) Performance and Service Conditions to Vesting.
(i) A specified percentage of the ERA shall vest if both (A) the Participant remains in continuous employment or continuous service with the Company or an Affiliate through the Settlement Date (defined in Section 2(b) below), except as provided in Section 3(b), and (B) the Company achieves the Performance Goals set forth on Exhibit A at a level equal to or above the threshold level of performance, also set forth on Exhibit A (the “Performance Goals”). Unless provided otherwise by the Committee, the Participant shall be deemed to not be in continuous employment or continuous service if the Participant's status changes from employee to non-employee, or vice-versa. The actual ERA value that may vest ranges from zero to [MAX numeral]% of the Target Amount, based on the extent to which the Performance Goals are achieved, in accordance with the methodology set out on Exhibit A. Except as otherwise provided in Section 3(b), in no event shall any portion of the ERA vest unless and until (i) at least the threshold Performance Goal is achieved, (ii) the Committee certifies that the Performance Goals have been met and determines the level of attainment of the Performance Goals (the “Certification”), and (iii) the Participant has remained in the continuous employment or continuous service of the Company or an Affiliate through the Settlement Date. If the foregoing vesting requirements are not met, no portion of the ERA Award shall vest and this ERA shall be cancelled in its entirety.
(ii) At any time following the Date of Grant, the Committee shall make adjustments or modifications to the Performance Goals and the calculation of the Performance Goals as it determines, in its sole discretion, are necessary in order to avoid dilution or enlargement of the intended benefits to be provided to the Participant under this Agreement, to reflect the following events: (A) asset write-downs; (B) litigation or claim judgments or settlements; (C) the effect of changes in tax laws, accounting principles, or other laws or regulatory rules affecting reported results; (D) any reorganization and restructuring programs; (E) extraordinary nonrecurring items as described in Accounting Standards Codification Topic 225-20 (or any successor pronouncement thereto) and/or in management’s discussion and analysis of financial condition and results of operations appearing in the Company’s annual report to stockholders for the applicable year; (F) acquisitions or divestitures; (G) foreign exchange gains and losses; (H) discontinued operations and nonrecurring charges; (I) a change in the Company’s fiscal year; and/or (J) any other specific, unusual or nonrecurring events.
(b) Settlement. The obligation to make payments and distributions with respect to the ERA shall be satisfied through the issuance of Shares equal to the earned ERA value on the certification date, less applicable withholding taxes (the “settlement”), and the settlement of the ERA may be subject to such conditions, restrictions and contingencies as the Committee shall determine. Except as otherwise provided in Section 3(b), Earned ERA Shares (as defined in Exhibit A) shall vest and be settled as soon as practicable after the end of the performance cycle and Certification (the “Settlement Date”), but in no event later than March 15 of the year following the calendar year in which Certification occurs, except as otherwise specified in Section 4(a). Notwithstanding the foregoing, the payment dates set forth in this Section 2(b) have been specified for the purpose of complying with the provisions of Section 409A of the Code (“Section 409A”). To the extent payments are made during the periods permitted under Section 409A (including any applicable periods before or after the specified payment dates set forth in this Section 2(b)), the Company shall be deemed to have satisfied its obligations under the Plan and shall be deemed not to be in breach of its payments obligations hereunder.
3. Termination of Employment or Service with the Company.
(a) All Termination. If the Participant’s employment or service with the Company or an Affiliate terminates for any reason whether due to Cause, death, disability, voluntary termination, Retirement, termination by the Company without Cause or otherwise, then the ERA shall immediately terminate on the date of termination of employment or service.
(b) Released ERA Shares. Following Participant’s termination of employment or service with the Company or an Affiliate for any reason, the Participant (or the Participant's beneficiary, if applicable) must provide for all Shares underlying released ERA (including those issued under this Agreement as well as Shares underlying released ERA issued under any other similar agreement, whether on account of termination or previously released in connection with the vesting terms of such similar agreement) to be liquidated or transferred to a third party
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broker no later than six months following the later of (i) the Participant's date of termination or (ii) the latest Settlement Date or other applicable vesting or settlement date (whether under this Agreement or a similar agreement) occurring following the Participant's termination. If the Participant (or the Participant's beneficiary, as applicable) fails to liquidate or transfer the Shares prior to the end of the applicable six month period, the Company is hereby authorized and directed by the Participant either, in the Company's discretion: (i) to sell any such remaining Shares on the Participant's (or the Participant's beneficiary's) behalf on the first trading date following the end of such period on which the Company is not prohibited from selling such Shares; or (ii) to transfer such Shares to the Company's stock transfer agent for registration in the Participant's (or the Participant's beneficiary's) name. The Company will not be responsible for any gain or loss or taxes incurred with respect to the Shares underlying the released ERA in connection with such liquidation or transfer.
4. Share Ownership. The Participant shall not be deemed for any purpose to be the owner of any Shares subject to the ERA and shall not have any rights of a shareholder with respect to the ERA, including, but not limited to, voting or dividend rights, until delivery of the applicable Shares underlying the ERA on the Settlement Date. The Company shall not be required to set aside any fund for the payment of the ERA.
5. Miscellaneous.
(a) Compliance with Legal Requirements. The granting and settlement of the ERA, and any other obligations of the Company under this Agreement, shall be subject to all applicable federal, state, local and foreign laws, rules and regulations and to such approvals by any regulatory or governmental agency as may be required. If the settlement of the ERA would be prohibited by law or the Company’s dealing rules, the settlement shall be delayed until the earliest date on which the settlement would not be so prohibited.
(b) Transferability. Unless otherwise provided by the Committee in writing, the ERA shall not be assigned, alienated, pledged, attached, sold or otherwise transferred or encumbered by the Participant other than by will or the laws of descent and distribution and any such purported assignment, alienation, pledge, attachment, sale, transfer or encumbrance shall be void and unenforceable against the Company; provided, that, the designation of a beneficiary shall not constitute an assignment, alienation, pledge, attachment, sale, transfer or encumbrance.
(c) Tax Withholding. The Participant acknowledges that, regardless of any action taken by the Company or, if different, the Participant's employer (the Employer), the ultimate liability for all income tax, social insurance, payroll tax, fringe benefits tax, payment on account or other tax-related items related to the Participant's participation in the Plan and legally applicable to the Participant (Tax-Related Items), is and remains the Participant's responsibility and may exceed the amount actually withheld by the Company or the Employer. The Participant further acknowledges that the Company and/or the Employer (1) make no representations or undertakings regarding the treatment of any Tax-Related Items in connection with any aspect of the ERA, including, but not limited to, the grant, vesting or settlement of the ERA, the subsequent sale of Shares acquired pursuant to such settlement and the receipt of any dividends; and (2) do not commit to and are under no obligation to structure the terms of the grant or any aspect of the ERA to reduce or eliminate the Participant's liability for Tax-Related Items or achieve any particular tax result. Further, if the Participant is subject to Tax-Related Items in more than one jurisdiction, the Participant acknowledges that the Company and/or the Employer (or former employer, as applicable) may be required to withhold or account for Tax-Related Items in more than one jurisdiction.
Prior to any relevant taxable or tax withholding event, as applicable, the Participant agrees to make adequate arrangements satisfactory to the Company and/or the Employer to satisfy all Tax-Related Items. In this regard, the Participant authorizes the Company or its agent to satisfy any applicable withholding obligations with regard to all Tax-Related Items by one or a combination of the following: (i) withholding from the Participant's wages or other cash compensation paid to the Participant by the Company and/or the Employer; or (ii) withholding from proceeds of the sale of Shares acquired upon settlement of the ERA either through a
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voluntary sale or through a mandatory sale arranged by the Company (on the Participant's behalf pursuant to this authorization without further consent); or (iii) withholding in Shares to be issued upon settlement of the ERA.
Notwithstanding the foregoing, if the Participant is an officer subject to Section 16 of the Exchange Act, the Company will withhold in Shares only upon advance approval by the Committee or the Board.
Depending on the withholding method, the Company may withhold or account for Tax-Related Items by considering applicable minimum statutory withholding rates or other applicable withholding rates, including maximum applicable rates, in which case the Participant may receive a refund of any over-withheld amount in cash and will have no entitlement to the Share equivalent. If the obligation for Tax-Related Items is satisfied by withholding in Shares, for tax purposes, the Participant is deemed to have been issued the full number of Shares subject to the vested Grant, notwithstanding that a number of the Shares are held back solely for the purpose of paying the Tax-Related Items.
Finally, the Participant agrees to pay to the Company or the Employer any amount of Tax-Related Items that the Company or the Employer may be required to withhold or account for as a result of the Participant's participation in the Plan that cannot be satisfied by the means previously described. The Company may refuse to issue or deliver the Shares or the proceeds of the sale of Shares, if the Participant fails to comply with the Participant's obligations in connection with the Tax-Related Items.
(d) Nature of Grant. In accepting the grant, the Participant acknowledges, understands and agrees that:
(i) the Plan is established voluntarily by the Company, it is discretionary in nature and it may be modified, amended, suspended or terminated by the Company at any time, to the extent permitted by the Plan;
(ii) the grant of the ERA is exceptional, voluntary and occasional and does not create any contractual or other right to receive future grants of ERA, or benefits in lieu of ERA, even if ERA have been granted in the past;
(iii) all decisions with respect to future awards or other grants, if any, will be at the sole discretion of the Company;
(iv) the Participant is voluntarily participating in the Plan;
(v) the ERA and the Shares subject to the ERA, and the income from and value of same, are not intended to replace any pension rights or compensation;
(vi) the ERA and the Shares subject to the ERA, and the income from and value of same, are not part of normal or expected compensation for purposes of, including, without limitation, calculating any severance, resignation, termination, redundancy, dismissal, end-of-service payments, bonuses, long-service awards, pension or retirement or welfare benefits or similar payments;
(vii) the future value of the underlying Shares is unknown, indeterminable and cannot be predicted with certainty;
(viii) no claim or entitlement to compensation or damages shall arise from forfeiture of the ERA resulting from the termination of the Participant's employment or other service relationship (for any reason whatsoever, whether or not later found to be invalid or in breach of employment laws in the jurisdiction where the Participant is employed or the terms of the Participant's employment agreement, if any);
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(ix) unless otherwise agreed with the Company, the ERA and the Shares, and the income from and value of same, are not granted as consideration for, or in connection with, the service the Participant may provide as a director of the Company or any member of the Combined Group and its Affiliates;
(x) unless otherwise provided in the Plan or by the Company in its discretion, the ERA and the benefits evidenced by this Agreement do not create any entitlement to have the ERA or any such benefits transferred to, or assumed by, another company nor to be exchanged, cashed out or substituted for, in connection with any corporate transaction affecting the shares of the Company; and
(xi) if the Participant resides outside the United States or is otherwise subject to the laws of a country outside the United States:
(A) the ERA and the Shares subject to the ERA, and the income and value of same, are not part of normal or expected compensation for any purpose; and
(B) neither the Company, the Employer or any member of the Combined Group or its Affiliates shall be liable for any foreign exchange rate fluctuation between the Participant's local currency and the United States Dollar that may affect the value of the ERA or of any amounts due to the Participant pursuant to the settlement of the ERA or the subsequent sale of any Shares acquired upon settlement.
(e) No Advice Regarding Grant. The Company is not providing any tax, legal or financial advice, nor is the Company making any recommendations regarding the Participant's participation in the Plan, or the Participant's acquisition or sale of the underlying Shares. The Participant should consult with the Participant's own personal tax, legal and financial advisors regarding the Participant's participation in the Plan before taking any action related to the Plan.
(f) Clawback/Forfeiture.
(i) Notwithstanding anything to the contrary contained herein, in the event of a material restatement of the Company's issued financial statements, the Committee shall review the facts and circumstances underlying the restatement (including, without limitation any potential wrongdoing by the Participant and whether the restatement was the result of negligence or intentional or gross misconduct) and may in its sole discretion direct the Company to (A) cancel all outstanding ERA and/or (B) recover all or a portion of any income or gain realized on the settlement of the ERA or the subsequent sale of Shares acquired upon settlement of the ERA with respect to any fiscal year in which the Company's financial results are negatively impacted by such restatement. If the Committee directs the Company to recover any such amount from the Participant, then the Participant agrees to and shall be required to repay any such amount to the Company within 30 days after the Company demands repayment. In addition, if the Company is required by law to include an additional “clawback” or “forfeiture” provision to outstanding grants, under the Dodd-Frank Wall Street Reform and Consumer Protection Act or otherwise, then such clawback or forfeiture provision shall also apply to this Agreement as if it had been included on the Date of Grant and the Company shall promptly notify the Participant of such additional provision. In addition, if a Participant has engaged or is engaged in Detrimental Activity after the Participant's employment or service with the Company or its subsidiaries has ceased, then the Participant, within 30 days after written demand by the Company, shall return any income or gain realized on the settlement of the ERA or the subsequent sale of Shares acquired upon settlement of the ERA.
(ii) For purposes of this Agreement, “Detrimental Activity” means any of the following: (i) unauthorized disclosure of any confidential or proprietary information of the Combined Group, (ii) any activity that would be grounds to terminate the Participant's employment or service with the Combined Group for Cause, (iii) whether in writing or orally, maligning, denigrating or disparaging the Combined Group or their respective predecessors and
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successors, or any of the current or former directors, officers, employees, shareholders, partners, members, agents or representatives of any of the foregoing, with respect to any of their respective past or present activities, or otherwise publishing (whether in writing or orally) statements that tend to portray any of the aforementioned persons or entities in an unfavorable light, or (iv) the breach of any noncompetition, nonsolicitation or other agreement containing restrictive covenants, with the Combined Group. For purposes of the preceding sentence the phrase “the Combined Group” shall mean “any member of the Combined Group or any Affiliate”. Notwithstanding the foregoing, nothing in this Agreement prohibits the Participant from voluntarily communicating, without notice to or approval by the Company, with any federal or state government agency about a potential violation of a federal or state law or regulation or to participate in investigations, testify in proceedings regarding the Company's or an Affiliate’s past or future conduct, or engage in any activities protected under whistle blower statutes. Further, pursuant to the Defend Trade Secrets Act of 2016, the Participant shall not be held criminally, or civilly, liable under any federal or state trade secret law for the disclosure of a trade secret that is made in confidence either directly or indirectly to a federal, state, or local government official, or an attorney, for the sole purpose of reporting, or investigating, a violation of law. Moreover, the Participant may disclose trade secrets in a complaint, or other document, filed in a lawsuit, or other proceeding, if such filing is made under seal. Finally, if the Participant files a lawsuit alleging retaliation by the Company or an Affiliate for reporting a suspected violation of the law, the Participant may disclose the trade secret to the Participant’s attorney and use the trade secret in the court proceeding, if the Participant files any document containing the trade secret under seal and does not disclose the trade secret, except pursuant to court order.
(g) Waiver. Any right of the Company contained in this Agreement may be waived in writing by the Committee. No waiver of any right hereunder by any party shall operate as a waiver of any other right, or as a waiver of the same right with respect to any subsequent occasion for its exercise, or as a waiver of any right to damages. No waiver by any party of any breach of this Agreement shall be held to constitute a waiver of any other breach or a waiver of the continuation of the same breach.
(h) Notices. Any written notices provided for in this Agreement or the Plan shall be in writing and shall be deemed sufficiently given if either hand delivered or if sent by fax or overnight courier, or by postage paid first class mail. Notices sent by mail shall be deemed received three business days after mailing but in no event later than the date of actual receipt. Notices shall be directed, if to the Participant, at the Participant's address indicated by the Company's records, or if to the Company, at the Company's principal executive office.
(i) Severability. The invalidity or unenforceability of any provision of this Agreement shall not affect the validity or enforceability of any other provision of this Agreement, and each other provision of this Agreement shall be severable and enforceable to the extent permitted by law.
(j) No Rights to Continued Employment. Nothing in the Plan or in this Agreement shall be construed as giving the Participant any right to be retained, in any position, as an employee, consultant or director of the Company or its Affiliates or shall interfere with or restrict in any way the right of the Company or its Affiliates, which are hereby expressly reserved, to remove, terminate or discharge the Participant at any time for any reason whatsoever. The rights and obligations of the Participant under the terms and conditions of the Participant's office or employment shall not be affected by this Agreement. The Participant waives all and any rights to compensation and damages in consequence of the termination of the Participant's office or employment with any member of the Combined Group or any of its Affiliates for any reason whatsoever (whether lawfully or unlawfully) insofar as those rights arise, or may arise, from the Participant's ceasing to have rights under or the Participant's entitlement to the ERA Award under this Agreement as a result of such termination or from the loss or diminution in value of such rights or entitlements. In the event of conflict between the terms of this Section 5(j) and the Participant's terms of employment, this Section will take precedence.
(k) Beneficiary. In the event of the Participant's death, any Shares that vest pursuant to Section 3(b) of this Agreement will be issued to the legal representative of the Participant’s estate.
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(l) Successors. The terms of this Agreement shall be binding upon and inure to the benefit of the Company and its successors and assigns, and of the Participant and the beneficiaries, legal representatives, executors, administrators, heirs and successors of the Participant.
(m) Entire Agreement. This Agreement and the Plan contain the entire agreement and understanding of the parties hereto with respect to the subject matter contained herein and supersede all prior communications, representations and negotiations in respect thereto. No change, modification or waiver of any provision of this Agreement shall be valid unless the same shall be in writing and signed by the parties hereto, except for any changes permitted without consent of the Participant in accordance with the Plan.
(n) Governing Law; JURY TRIAL WAIVER. This Agreement shall be construed and interpreted in accordance with the laws of the State of Florida without regard to principles of conflicts of law thereof, or principles of conflicts of laws of any other jurisdiction which could cause the application of the laws of any jurisdiction other than the State of Florida. THE PARTIES EXPRESSLY AND KNOWINGLY WAIVE ANY RIGHT TO A JURY TRIAL IN THE EVENT ANY ACTION ARISING UNDER OR IN CONNECTION WITH THIS AGREEMENT IS LITIGATED OR HEARD IN ANY COURT.
(o) Data Protection. The Employer, the Company and any Affiliate may collect, use, process, transfer or disclose the Participant’s Personal Information for the purpose of implementing, administering and managing the Participant's participation in the Plan, in accordance with the Carnival Corporation & plc Equity Plans Participant Privacy Notice the Participant previously received. (The Participant should contact ownership@carnival.com if he or she would like to receive another copy of this notice.) For example, the Participant’s Personal Information may be directly or indirectly transferred to Equatex AG or any other third party stock plan service provider as may be selected by the Company, and any other third parties assisting the Company with the implementation, administration and management of the Plan.
(p) Insider Trading/Market Abuse Laws. The Participant may be subject to insider trading restrictions and/or market abuse laws in applicable jurisdictions, including the United States, the United Kingdom, and the Participant’s country, which may affect the Participant’s ability to directly or indirectly, for his- or her- self or a third party, acquire or sell, or attempt to sell, Shares under the Plan during such times as the Participant is considered to have “inside information” regarding the Company (as defined by the laws and regulations in the applicable jurisdiction, including the United States, the United Kingdom, and the Participant’s country), or may affect the trade in Shares or the trade in rights to Shares under the Plan. Local insider trading laws and regulations may prohibit the cancellation or amendment of orders the Participant placed before the Participant possessed inside information. Furthermore, the Participant could be prohibited from (i) disclosing the inside information to any third party, which may include fellow employees (other than on a “need to know” basis) and (ii) “tipping” third parties or causing them otherwise to buy or sell securities. Local insider trading laws and regulations may be the same or different from any Company insider trading policy. The Participant acknowledges that it is the Participant’s responsibility to be informed of and compliant with such regulations, and the Participant should speak to the Participant’s personal advisor on this matter.
(q) Headings. The headings of the Sections hereof are provided for convenience only and are not to serve as a basis for interpretation or construction, and shall not constitute a part, of this Agreement.
(r) Language. The Participant acknowledges that he or she is proficient in the English language, or has consulted with an advisor who is sufficiently proficient, so as to allow the Participant to understand the terms and conditions of this Agreement. If the Participant has received this Agreement or any other document related to the Plan translated into a language other than English and if the meaning of the translated version is different than the English version, the English version will control.
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(s) Electronic Delivery and Acceptance. The Company may, in its sole discretion, decide to deliver any documents related to current or future participation in the Plan by electronic means. The Participant hereby consents to receive such documents by electronic delivery and agrees to participate in the Plan through an on-line or electronic system established and maintained by the Company or a third party designated by the Company.
6. Change in Control. In the event of a Change in Control after the end of the Performance Cycle but prior to the vesting or settlement of the ERA, the level of attainment of the Performance Goals and the number of Earned ERA Shares (if any) will be determined and certified by the Committee in the manner set forth on Exhibit A. If a Change in Control occurs prior to the end of the Performance Cycle, the Performance Cycle will end on the Accelerated End Date set forth on Exhibit A and the level of attainment of the Performance Goals and the number of Earned ERA Shares (if any) will be determined and certified by the Committee in the manner set forth on Exhibit A. Any such Earned ERA Shares will vest and be settled in accordance with Section 2(b) of this Agreement.
7. Imposition of Other Requirements. The Company reserves the right to impose other requirements on the Participant's participation in the Plan, on the ERA and on any Shares acquired under the Plan, to the extent the Company determines it is necessary or advisable for legal or administrative reasons, and to require the Participant to sign any additional agreements or undertakings that may be necessary to accomplish the foregoing.
IN WITNESS WHEREOF, the Company has executed this Agreement as of the day first written above.
CARNIVAL CORPORATION
By: ______________________________
[Authorized Signatory Name & Title]
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Exhibit A
Performance Goal Vesting Matrix
[PERFORMANCE CRITERIA]
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FORM OF TIME-BASED RESTRICTED STOCK UNIT AGREEMENT FOR THE CARNIVAL CORPORATION 2020 STOCK PLAN
FOR THE CHIEF ETHICS AND COMPLIANCE OFFICER
THIS TIME-BASED RESTRICTED STOCK UNIT AGREEMENT (this “Agreement”), shall apply to the grant of time-based Restricted Stock Units made to employees of Carnival Corporation, a corporation organized under the laws of the Republic of Panama, (the “Company”) or employees of an Affiliate, on [DATE] (the “Grant Date”) under the Carnival Corporation 2020 Stock Plan (the “Plan”).
1. Grant of Time-Base Restricted Stock Units.
(a) Grant. The Company hereby grants to select individuals (each a “Participant”) a time-based restricted stock unit award consisting of that number of time-based Restricted Stock Units (the “TBS RSUs”) set forth in the Participant’s EquatePlus portfolio, on the terms and conditions set forth in the Plan and this Agreement. Each TBS RSU represents the right to receive payment in respect of one Share as of the Settlement Date (as defined below), to the extent the Participant is vested in such TBS RSUs as of the Settlement Date, subject to the terms of this Agreement and the Plan. The TBS RSUs are subject to the restrictions described herein, including forfeiture under the circumstances described in Section 3 hereof (the “Restrictions”). The Restrictions shall lapse and the TBS RSUs shall vest and become nonforfeitable in accordance with Section 2 and Section 3 hereof.
(b) Incorporation by Reference, Etc. The provisions of the Plan are hereby incorporated herein by reference. Except as otherwise expressly set forth herein, this Agreement shall be construed in accordance with the provisions of the Plan and any interpretations, amendments, rules and regulations promulgated by the Committee from time to time pursuant to the Plan. Any capitalized terms not otherwise defined in this Agreement shall have the definitions set forth in the Plan. The Committee shall have final authority to interpret and construe the Plan and this Agreement, and to make any and all determinations under them, and its decision shall be binding and conclusive upon the Participant and his legal representative in respect of any questions arising under the Plan or this Agreement. In the event there is any inconsistency between the provisions of the Plan and this Agreement, the provisions of the Plan shall govern.
2. Terms and Conditions.
(a) Vesting. Except as otherwise provided in Section 3 hereof, the TBS RSUs shall vest and become non-restricted one-third each year on February 15th of [VESTING YEARS] or the next market trading day if February 15th falls on a holiday or weekend. Notwithstanding the foregoing, the Committee shall have the authority to remove the Restrictions on the TBS RSUs whenever it may determine that, by reason of changes in applicable laws or other changes in circumstances arising after the Grant Date, such action is appropriate.
(b) Settlement. The obligation to make payments and distributions with respect to TBS RSUs shall be satisfied through the issuance of one Share for each vested TBS RSU, less applicable withholding taxes (the “settlement”), and the settlement of the TBS RSUs may be subject to such conditions, restrictions and contingencies as the Committee shall determine. The TBS RSUs shall be settled on the first trading date occurring on or after the date that the TBS RSUs vest and become non-restricted (as applicable, the “Settlement Date”), except as otherwise provided in Sections 3 and 6(a).
(c) Dividends and Voting Rights. Each outstanding TBS RSU shall be credited with dividend equivalents equal to the dividends (including extraordinary dividends if so determined by the Committee) declared and paid to shareholders of the
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Company in respect of one Share. Dividend equivalents shall not bear interest and shall be subject to the same Restrictions as the TBS RSUs to which they are attributable. On the Settlement Date, such dividend equivalents in respect of each vested TBS RSU shall be settled by delivery to the Participant of a number of Shares equal to the quotient obtained by dividing (i) the aggregate accumulated value of such dividend equivalents by (ii) the Fair Market Value of a Share on the date that is 30 days prior to the applicable vesting date, rounded down to the nearest whole Share, less any applicable withholding taxes. No dividend equivalents shall be accrued for the benefit of the Participant with respect to record dates occurring prior to the Grant Date, or with respect to record dates occurring on or after the date, if any, on which the Participant has forfeited the TBS RSUs. The Participant shall have no voting rights with respect to the TBS RSUs or any dividend equivalents.
(d) The dates set forth in this Section 2 (which include by reference Sections 3 and 6(a)) and disregarding any discretionary early release of restrictions in Section 2 for amounts which would not be a short term deferral pursuant to Section 409A, have been specified for the purpose of complying with Section 409A of the Code. To the extent payments are made during the periods permitted under Section 409A of the Code, the Company shall be deemed to have satisfied its obligations under the Plan and shall not be in breach of its payment obligations hereunder.
3. Termination of Employment or Service with the Company.
(a) Termination by the Company for Cause. If the Participant’s employment or service with the Company or an Affiliate terminates for Cause, then all outstanding TBS RSUs shall immediately terminate on the date of termination of employment or service.
(b) Death or Disability. If the Participant’s employment or service with the Company or an Affiliate terminates by reason of his or her death or Disability, the Restrictions shall lapse as to 100% of the TBS RSUs and the TBS RSUs shall fully vest and become non-restricted on the date of termination and shall be settled on a date selected by the Company provided such date falls within permitted section 409A and section 457A short-term deferral periods.
(c) Termination Upon Attaining Retirement Age for US Taxpayers. With respect to a termination to occur on or after attaining Retirement Age, if (i) the Participant provides three months advance notice of resignation in writing via email to ownership@carnival.com (or by other means deemed acceptable by the Company) and completes such service or (ii) is involuntarily terminated without cause, then the TBS RSUs shall be fully vested on the date of termination and shall become non-restricted and be settled on a date selected by the Company provided such date falls within permitted section 409A and section 457A short-term deferral periods. If notice of resignation and applicable service is not provided, then the TBS RSUs shall be governed by 3(f) below.
(d) Termination Upon Attaining Retirement Age for Non-US Taxpayers. The TBS RSUs shall become non-forfeitable upon the Participant’s attainment of Retirement Age while in the employ of the Company or an Affiliate but shall remain subject to all other Restrictions.
(e) Termination After Change in Control. In accordance with Section 13(a) of the Plan, if the Participant’s employment is terminated by the Combined Group and its Affiliates other than for Cause upon or within 12 months following a Change in Control, the Restrictions shall lapse as to 100% of the TBS RSUs and the TBS RSUs shall fully vest on the date of termination and shall be settled in accordance with Section 2(b) without regard to Section 2(a).
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(f) Other Termination. If the Participant’s employment or service with the Company terminates for any reason other than as otherwise described in the foregoing provisions of this Section 3 (whether due to voluntary termination, termination by the Company without Cause, or otherwise), then all outstanding TBS RSUs shall immediately terminate on the date of termination of employment or service.
(g) Breach of Restrictive Covenants. Notwithstanding anything herein to the contrary, no release of TBS RSUs shall be made, and all unreleased TBS RSUs issued hereunder and all rights under this Agreement shall be forfeited, if (i) the Participant shall engage in competition, as more particularly described in Section 4, or (ii) the Participant violates the nondisclosure provisions set forth in Section 5.
(h) Released TBS RSUs. Following Participant’s termination of employment or service with the Company or an Affiliate for any reason, the Participant (or the Participant’s beneficiary or legal representative, if applicable) must provide for all Shares underlying released TBS RSUs (including those issued under this Agreement as well as Shares underlying released TBS RSUs issued under any other similar agreement, whether on account of termination or previously released in connection with the vesting terms of such similar agreement) to be liquidated or transferred to a third party broker no later than six months following the later of (i) Participant’s date of termination or (ii) the latest Settlement Date or other applicable vesting or settlement date (whether under this Agreement or a similar agreement) occurring following the Participant’s termination. If the Participant (or the Participant’s beneficiary, as applicable) fails to liquidate or transfer the Shares prior to the end of the applicable six month period, the Company is hereby authorized and directed by the Participant either, in the Company’s discretion: (i) to sell any such remaining Shares on the Participant’s (or the Participant’s beneficiary’s) behalf on the first trading date following the end of such period on which the Company is not prohibited from selling such Shares; or (ii) to transfer such Shares to the Company’s stock transfer agent for registration in the Participant’s (or the Participant’s beneficiary’s) name. The Company will not be responsible for any gain or loss or taxes incurred with respect to the Shares underlying the released TBS RSUs in connection with such liquidation or transfer.
4. Non-Competition. The services of the Participant are unique, extraordinary and essential to the business of the Combined Group and its Affiliates. Accordingly, in consideration of the TBS RSUs awarded hereunder, the Participant agrees that he/she will not, without the prior written approval of the Board, at any time during the term of his/her employment with the Combined Group or its Affiliates and (except as provided below) for the then remaining duration of the Restrictions on the TBS RSUs, if any, following the date on which the Participant’s employment with the Combined Group or its Affiliates terminates, directly or indirectly, within the cruise industry wherever located, engage in any business activity directly or indirectly competitive with the business of the Combined Group or its Affiliates, or serve as an officer, director, owner, consultant, or employee of any organization then in competition with the Combined Group or its Affiliates. In addition, the Participant agrees that during such restricted period following his/her employment with the Combined Group or its Affiliates, he/she will not solicit, either directly or indirectly, any employee of the Combined Group or its Affiliates, its subsidiaries or division, who was such at the time of the Participant’s separation from employment hereunder. In the event that the provisions of this Section 4 should ever be adjudicated to exceed the time, geographic or other limitations permitted by applicable law in any jurisdiction, then such provisions shall be deemed reformed in such jurisdiction to the maximum time, geographic or other limitations permitted by applicable law.
5. Non-Disclosure. The Participant expressly agrees and understands that the Combined Group or its Affiliates own and/or control information and material which is not generally available to third parties and which the Combined Group or its Affiliates consider confidential, including, without limitation, methods, products, processes, customer lists, trade secrets and other information applicable to its business and that it
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may from time to time acquire, improve or produce additional methods, products, processes, customers lists, trade secrets and other information (collectively, the ”Confidential Information”). The Participant hereby acknowledges that each element of the Confidential Information constitutes a unique and valuable asset of the Combined Group or its Affiliates, and that certain items of the Confidential Information have been acquired from third parties upon the express condition that such items would not be disclosed to the Combined Group or its Affiliates and its officers and agents other than in the ordinary course of business. The Participant hereby acknowledges that disclosure of the Combined Group or its Affiliates’ Confidential Information to and/or use by anyone other than in the Combined Group or its Affiliates’ ordinary course of business would result in irreparable and continuing damage to the Combined Group or its Affiliates. Accordingly, the Participant agrees to hold the Confidential Information in the strictest secrecy, and covenants that, during the term of his/her employment with the Combined Group or its Affiliates (or any member of the Combined Group or its Affiliates) or at any time thereafter, he/she will not, without the prior written consent of the Board, directly or indirectly, allow any element of the Confidential Information to be disclosed, published or used, nor permit the Confidential Information to be discussed, published or used, either by himself or by any third parties, except in effecting the Participant’s duties for the Combined Group or its Affiliates in the ordinary course of business. The Participant agrees to keep all such records in connection with the Participant’s employment as the Combined Group or its Affiliates may direct, and all such records shall be the sole and absolute property of the Combined Group or its Affiliates. The Participant further agrees that, within five (5) days of the Combined Group or its Affiliates’ request, he/she shall surrender to the Combined Group or its Affiliates any and all documents, memoranda, books, papers, letters, price lists, notebooks, reports, logbooks, code books, salesmen records, customer lists, activity reports, video or audio recordings, computer programs and any and all other data and information and any and all copies thereof relating to the Combined Group or its Affiliates’ business or any Confidential Information.
Notwithstanding the foregoing, nothing in this Agreement prohibits the Participant from voluntarily communicating, without notice to or approval by the Company, with any federal or state government agency about a potential violation of a federal or state law or regulation or to participate in investigations, testify in proceedings regarding the Company's or an Affiliate’s past or future conduct, or engage in any activities protected under whistle blower statutes. Further, pursuant to the Defend Trade Secrets Act of 2016, the Participant shall not be held criminally, or civilly, liable under any federal or state trade secret law for the disclosure of a trade secret that is made in confidence either directly or indirectly to a federal, state, or local government official, or an attorney, for the sole purpose of reporting, or investigating, a violation of law. Moreover, the Participant may disclose trade secrets in a complaint, or other document, filed in a lawsuit, or other proceeding, if such filing is made under seal. Finally, if the Participant files a lawsuit alleging retaliation by the Company or an Affiliate for reporting a suspected violation of the law, the Participant may disclose the trade secret to the Participant’s attorney and use the trade secret in the court proceeding, if the Participant files any document containing the trade secret under seal and does not disclose the trade secret, except pursuant to court order.
6. Miscellaneous.
(a) Compliance with Legal Requirements. The granting and settlement of the TBS RSUs, and any other obligations of the Company under this Agreement, shall be subject to all applicable federal, state, local and foreign laws, rules and regulations and to such approvals by any regulatory or governmental agency as may be required. If the settlement of the TBS RSUs would be prohibited by law, the settlement shall be delayed until the earliest date on which the settlement would not be so prohibited.
(b) Transferability. Unless otherwise provided by the Committee in writing, the TBS RSUs shall not be assigned, alienated, pledged, attached, sold or otherwise transferred or encumbered by the Participant other than by will or the laws of descent
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and distribution and any such purported assignment, alienation, pledge, attachment, sale, transfer or encumbrance shall be void and unenforceable against the Company; provided, that, the designation of a beneficiary shall not constitute an assignment, alienation, pledge, attachment, sale, transfer or encumbrance.
(c) Tax Withholding. The Participant acknowledges that, regardless of any action taken by the Company or, if different, the Participant’s employer (the “Employer”), the ultimate liability for all income tax, social insurance, payroll tax, fringe benefits tax, payment on account or other tax-related items related to the Participant’s participation in the Plan and legally applicable to the Participant (“Tax-Related Items”), is and remains the Participant’s responsibility and may exceed the amount, if any, actually withheld by the Company or the Employer. The Participant further acknowledges that the Company and/or the Employer (1) make no representations or undertakings regarding the treatment of any Tax-Related Items in connection with any aspect of the TBS RSUs, including, but not limited to, the grant, vesting or settlement of the TBS RSUs, the subsequent sale of Shares acquired pursuant to such settlement and the receipt of any dividends and/or dividend equivalents; and (2) do not commit to and are under no obligation to structure the terms of the grant or any aspect of the TBS RSUs to reduce or eliminate the Participant’s liability for Tax-Related Items or achieve any particular tax result. Further, if the Participant is subject to Tax-Related Items in more than one jurisdiction, the Participant acknowledges that the Company and/or the Employer (or former employer, as applicable) may be required to withhold or account for Tax-Related Items in more than one jurisdiction.
Prior to any relevant taxable or tax withholding event, as applicable, the Participant agrees to make adequate arrangements satisfactory to the Company and/or the Employer to satisfy all Tax-Related Items. In this regard, the Participant authorizes the Company or its agent to satisfy any applicable withholding obligations with regard to all Tax-Related Items by one or a combination of the following: (i) withholding from the Participant’s wages or other cash compensation paid to the Participant by the Company and/or the Employer; or (ii) withholding from proceeds of the sale of Shares acquired upon settlement of the TBS RSUs either through a voluntary sale or through a mandatory sale arranged by the Company (on the Participant’s behalf pursuant to this authorization without further consent); or (iii) withholding in Shares to be issued upon settlement of the TBS RSUs. Further, notwithstanding anything herein to the contrary, the Company may cause a portion of the TBS RSUs to vest prior to the applicable date set forth in Sections 2 or 3 of this Agreement in order to satisfy any Tax-Related Items that arise prior to the date of settlement of the TBS RSUs; provided that to the extent necessary to avoid a prohibited distribution under Section 409A of the Code, the number of TBS RSUs so accelerated and settled shall be with respect to a number of Shares with a value that does not exceed the liability for such Tax-Related Items.
Notwithstanding the foregoing, if the Participant is an officer subject to Section 16 of the Exchange Act, the Company will not withhold in Shares upon the relevant taxable or tax withholding event other than where U.S. federal tax withholding is required upon lapse of the forfeiture restrictions pursuant to Sections 3(c) of this Agreement, or if otherwise approved in advance by the Committee or the Board.
Depending on the withholding method, the Company may withhold or account for Tax-Related Items by considering applicable minimum statutory withholding rates or other applicable withholding rates, including maximum applicable rates, in which case the Participant may receive a refund of any over-withheld amount in cash and will have no entitlement to the Stock equivalent. If the obligation for Tax-Related Items is satisfied by withholding in Shares, for tax purposes, the Participant is deemed to have been issued the full number of Shares subject to the vested Award, notwithstanding that a number of the Shares are held back solely for the purpose of paying the Tax-Related Items.
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Finally, the Participant agrees to pay to the Company or the Employer any amount of Tax-Related Items that the Company or the Employer may be required to withhold or account for as a result of the Participant’s participation in the Plan that cannot be satisfied by the means previously described. The Company may refuse to issue or deliver the Shares or the proceeds of the sale of Shares, if the Participant fails to comply with the Participant’s obligations in connection with the Tax-Related Items.
(d) Nature of Grant. In accepting the grant, the Participant acknowledges, understands and agrees that:
(i) the Plan is established voluntarily by the Company, it is discretionary in nature and it may be modified, amended, suspended or terminated by the Company at any time, to the extent permitted by the Plan;
(ii) the grant of the TBS RSUs is exceptional, voluntary and occasional and does not create any contractual or other right to receive future grants of TBS RSUs, or benefits in lieu of TBS RSUs, even if TBS RSUs have been granted in the past;
(iii) all decisions with respect to future awards or other grants, if any, will be at the sole discretion of the Company;
(iv) the Participant is voluntarily participating in the Plan;
(v) the TBS RSUs and the Shares subject to the TBS RSUs, and the income from and value of same, are not intended to replace any pension rights or compensation;
(vi) the TBS RSUs and the Shares subject to the TBS RSUs, and the income from and value of same, are not part of normal or expected compensation for purposes of, including, without limitation, calculating any severance, resignation, termination, redundancy, dismissal, end-of-service payments, bonuses, holiday pay, long-service awards, pension or retirement or welfare benefits or similar payments;
(vii) the future value of the underlying Shares is unknown, indeterminable and cannot be predicted with certainty;
(viii) no claim or entitlement to compensation or damages shall arise from forfeiture of the TBS RSUs resulting from the termination of the Participant’s employment or other service relationship (for any reason whatsoever, whether or not later found to be invalid or in breach of employment laws in the jurisdiction where the Participant is employed or the terms of the Participant’s employment agreement, if any);
(ix) unless otherwise agreed with the Company, the TBS RSUs and the Shares, and the income from and value of same, are not granted as consideration for, or in connection with, the service the Participant may provide as a director of the Company or any member of the Combined Group and its Affiliates;
(x) unless otherwise provided in the Plan or by the Company in its discretion, the TBS RSUs and the benefits evidenced by this Agreement do not create any entitlement to have the TBS RSUs or any such benefits transferred to, or assumed by, another company nor to be exchanged, cashed out or substituted for, in connection with any corporate transaction affecting the shares of the Company; and
(xi) if the Participant resides outside the United States or is otherwise subject to the laws of a country outside the United States:
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(A) the TBS RSUs and the Shares subject to the TBS RSUs, and the income from and value of same, are not part of normal or expected compensation for any purpose; and
(B) neither the Company, the Employer or any member of the Combined Group or its Affiliates shall be liable for any foreign exchange rate fluctuation between the Participant’s local currency and the United States Dollar that may affect the value of the TBS RSUs or of any amounts due to the Participant pursuant to the settlement of the TBS RSUs or the subsequent sale of any Shares acquired upon settlement.
(e) No Advice Regarding Grant. The Company is not providing any tax, legal or financial advice, nor is the Company making any recommendations regarding the Participant’s participation in the Plan, or the Participant’s acquisition or sale of the underlying Shares. The Participant should consult with the Participant’s own personal tax, legal and financial advisors regarding the Participant’s participation in the Plan before taking any action related to the Plan.
(f) Clawback/Forfeiture. Notwithstanding anything to the contrary contained herein, in the case of fraud, negligence, intentional or gross misconduct or other wrongdoing on the part of Participant (or any other event or circumstance set forth in any clawback policy implemented by the Company, including, without limitation, any clawback policy adopted to comply with the requirements of the Dodd-Frank Wall Street Reform and Consumer Protection Act and any rules or regulations promulgated thereunder) that results in a material restatement of the Company’s issued financial statements, such Participant will (i) forfeit any unvested TBS RSUs and (ii) be required to reimburse the Company for all or a portion, as determined by the Committee in its sole discretion, of any income or gain realized on the settlement of the TBS RSUs or the subsequent sale of Shares acquired upon settlement of the TBS RSUs with respect to any fiscal year in which the Company’s financial results are negatively impacted by such restatement. The Participant agrees to and shall be required to repay any such amount to the Company within 30 days after the Company demands repayment. In addition, if the Company is required by law to include an additional “clawback” or “forfeiture” provision to outstanding awards, under the Dodd-Frank Wall Street Reform and Consumer Protection Act or otherwise, then such clawback or forfeiture provision shall also apply to this Agreement as if it had been included on the Grant Date and the Company shall promptly notify the Participant of such additional provision. In addition, if a Participant has engaged or is engaged in Detrimental Activity after the Participant’s employment or service with the Company or its subsidiaries has ceased, then the Participant, within 30 days after written demand by the Company, shall return any income or gain realized on the settlement of the TBS RSUs or the subsequent sale of Shares acquired upon settlement of the TBS RSUs.
(g) Code Section 409A. To the extent that the Participant is subject to U.S. federal tax and the TBS RSUs are considered “nonqualified deferred compensation” subject to Section 409A of the Code: (i) references in this Agreement to “termination of employment” or “termination of service” (and substantially similar phrases) shall mean “separation from service” within the meaning of Section 409A of the Code; and (ii) if the Participant is a “specified employee” within the meaning of Section 409A(a)(2)(B)(i) of the Code, any settlement of the TBS RSUs upon the Participant’s separation from service shall be made to the Participant on the first trading date following the date that is six months after the date of the Participant’s separation from service or, if earlier, the Participant’s date of death. For purposes of Section 409A of the Code, each payment that may be made in respect of the TBS RSUs is designated as a separate payment.
(h) No Rights as Stockholder. The Participant shall not be deemed for any purpose to be the owner of any Shares subject to the TBS RSUs. The Company shall not be required to set aside any fund for the payment of the TBS RSUs.
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(i) Waiver. Any right of the Company contained in this Agreement may be waived in writing by the Committee. No waiver of any right hereunder by any party shall operate as a waiver of any other right, or as a waiver of the same right with respect to any subsequent occasion for its exercise, or as a waiver of any right to damages. No waiver by any party of any breach of this Agreement shall be held to constitute a waiver of any other breach or a waiver of the continuation of the same breach.
(j) Notices. Any written notices provided for in this Agreement or the Plan shall be in writing and shall be deemed sufficiently given if either hand delivered or if sent by fax or overnight courier, or by postage paid first class mail. Notices sent by mail shall be deemed received three business days after mailing but in no event later than the date of actual receipt. Notices shall be directed, if to the Participant, at the Participant’s address indicated by the Company’s records, or if to the Company, at the Company’s principal executive office.
(k) Severability. The invalidity or unenforceability of any provision of this Agreement shall not affect the validity or enforceability of any other provision of this Agreement, and each other provision of this Agreement shall be severable and enforceable to the extent permitted by law.
(l) No Rights to Continued Employment. Nothing in the Plan or in this Agreement shall be construed as giving the Participant any right to be retained, in any position, as an employee, consultant or director of the Company or its Affiliates or shall interfere with or restrict in any way the right of the Company or its Affiliates, which are hereby expressly reserved, to remove, terminate or discharge the Participant at any time for any reason whatsoever. The rights and obligations of the Participant under the terms and conditions of the Participant’s office or employment shall not be affected by this Agreement. The Participant waives all and any rights to compensation and damages in consequence of the termination of the Participant’s office or employment with any member of the Combined Group or any of its Affiliates for any reason whatsoever (whether lawfully or unlawfully) insofar as those rights arise, or may arise, from the Participant’s ceasing to have rights under or the Participant’s entitlement to the TBS RSUs under this Agreement as a result of such termination or from the loss or diminution in value of such rights or entitlements. In the event of conflict between the terms of this Section 6(l) and the Participant’s terms of employment, this Section will take precedence.
(m) Beneficiary. In the event of the Participant’s death, any Shares that vest pursuant to Section 3(b) of this Agreement will be issued to the legal representative of the Participant’s estate.
(n) Successors. The terms of this Agreement shall be binding upon and inure to the benefit of the Company and its successors and assigns, and of the Participant and the beneficiaries, legal representatives, executors, administrators, heirs and successors of the Participant.
(o) Entire Agreement. This Agreement and the Plan contain the entire agreement and understanding of the parties hereto with respect to the subject matter contained herein and supersede all prior communications, representations and negotiations in respect thereto. No change, modification or waiver of any provision of this Agreement shall be valid unless the same be in writing and signed by the parties hereto, except for any changes permitted without consent of the Participant in accordance with the Plan.
(p) Governing Law; JURY TRIAL WAIVER. This Agreement shall be construed and interpreted in accordance with the laws of the State of Florida without regard to principles of conflicts of law thereof, or principles of conflicts of laws of any other jurisdiction which could cause the application of the laws of any jurisdiction other
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than the State of Florida. THE PARTIES EXPRESSLY AND KNOWINGLY WAIVE ANY RIGHT TO A JURY TRIAL IN THE EVENT ANY ACTION ARISING UNDER OR IN CONNECTION WITH THIS AGREEMENT IS LITIGATED OR HEARD IN ANY COURT.
(q) Data Protection. The Employer, the Company and any Affiliate may collect, use, process, transfer or disclose the Participant’s Personal Information for the purpose of implementing, administering and managing your participation in the Plan, in accordance with the Carnival Corporation & plc Equity Plans Participant Privacy Notice the Participant previously received. (The Participant should contact ownership@carnival.com if he or she would like to receive another copy of this notice.) For example, the Participant’s Personal Information may be directly or indirectly transferred to Equatex AG or any other third party stock plan service provider as may be selected by the Company, and any other third parties assisting the Company with the implementation, administration and management of the Plan.
(r) Insider Trading/Market Abuse Laws. The Participant may be subject to insider trading restrictions and/or market abuse laws in applicable jurisdictions, including the United States, the United Kingdom, and the Participant’s country, which may affect the Participant’s ability to directly or indirectly, for his- or her- self or a third party, acquire or sell, or attempt to sell, Shares under the Plan during such times as the Participant is considered to have “inside information” regarding the Company (as defined by the laws and regulations in the applicable jurisdiction, including the United States, the United Kingdom, and the Participant’s country), or may affect the trade in Shares or the trade in rights to Shares under the Plan. Local insider trading laws and regulations may prohibit the cancellation or amendment of orders the Participant placed before the Participant possessed inside information. Furthermore, the Participant could be prohibited from (i) disclosing the inside information to any third party, which may include fellow employees (other than on a “need to know” basis) and (ii) “tipping” third parties or causing them otherwise to buy or sell securities. Local insider trading laws and regulations may be the same or different from any Company insider trading policy. The Participant acknowledges that it is the Participant’s responsibility to be informed of and compliant with such regulations, and the Participant should speak to the Participant’s personal advisor on this matter.
(s) Foreign Asset/Account, Exchange Control and Tax Reporting. The Participant may be subject to foreign asset/account, exchange control and/or tax reporting requirements as a result of the acquisition, holding and/or transfer of Shares or cash (including dividends, dividend equivalents and the proceeds arising from the sale of Shares) derived from the Participant’s participation in the Plan, to and/or from a brokerage/bank account or legal entity located outside the Participant’s country. The applicable laws of the Participant’s country may require that the Participant report such accounts, assets, the balances therein, the value thereof and/or the transactions related thereto to the applicable authorities in such country. The Participant may also be required to repatriate sale proceeds or other funds received as a result of the Participant’s participation in the Plan to the Participant’s country through a designated bank or broker within a certain time after receipt. The Participant acknowledges that the Participant is responsible for ensuring compliance with any applicable foreign asset/account, exchange control and tax reporting requirements and should consult the Participant’s personal legal advisor on this matter.
(t) Headings. The headings of the Sections hereof are provided for convenience only and are not to serve as a basis for interpretation or construction, and shall not constitute a part, of this Agreement.
(u) Language. The Participant acknowledges that he or she proficient in the English language, or has consulted with an advisor who is sufficiently proficient, so as to allow the Participant to understand the terms and conditions of this Agreement. If the Participant has received this Agreement or any other document related to the Plan
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translated into a language other than English and if the meaning of the translated version is different than the English version, the English version will control.
(v) Electronic Delivery and Acceptance. The Company may, in its sole discretion, decide to deliver any documents related to current or future participation in the Plan by electronic means. The Participant hereby consents to receive such documents by electronic delivery and agrees to participate in the Plan through an on-line or electronic system established and maintained by the Company or a third party designated by the Company.
7. Country-Specific Provisions. The TBS RSUs shall be subject to the additional terms and conditions set forth in Appendix A to this Agreement for the Participant’s country, if any. Moreover, if the Participant relocates to one of the countries included in Appendix A, the terms and conditions for such country will apply to the Participant, to the extent the Company determines that the application of such terms and conditions is necessary or advisable for legal or administrative reasons.
8. Imposition of Other Requirements. The Company reserves the right to impose other requirements on the Participant’s participation in the Plan, on the TBS RSUs and on any Shares acquired under the Plan, to the extent the Company determines it is necessary or advisable for legal or administrative reasons, and to require the Participant to sign any additional agreements or undertakings that may be necessary to accomplish the foregoing.
IN WITNESS WHEREOF, the Company has executed this Agreement as of the day first written above.
CARNIVAL CORPORATION
By:
[Authorized Signatory Name & Title]
APPENDIX A
Country Specific Information
TERMS AND CONDITIONS
This Appendix A includes additional terms and conditions that govern the Award granted to the Participant if the Participant resides in one of the countries listed herein. This Appendix A forms part of the Agreement. These terms and conditions are in addition to, or if so indicated, in place of, the terms and conditions in the Agreement.
If the Participant is a citizen or resident of a country other than the one in which the Participant is currently working, is considered a resident of another country for local law purposes or transfers employment and/or residency between countries after the Grant Date, the Company shall, in its sole discretion, determine to what extent the additional terms and conditions included herein will apply to the Participant under these circumstances.
NOTIFICATIONS
This Appendix A also includes information regarding exchange controls, securities laws and certain other issues of which the Participant should be aware with respect to the Participant's participation in the Plan. The information is based on the exchange control, securities laws and other laws in effect in the respective countries as of December 2018. Such laws are often complex and change frequently. As a result, the Company strongly recommends that the Participant not rely on the information noted herein as the only source of information relating to the consequences of the Participant's participation in the Plan because the information may be out of date at the time the Participant vests in the Award or when the Participant sell the Shares acquired under the Plan.
In addition, the information contained herein is general in nature and may not apply to the Participant's particular situation, and the Company is not in a position to assure the Participant of any particular result. Accordingly, the Participant is advised to seek appropriate professional advice as to how the relevant laws in the Participant's country may apply to the Participant's situation.
Finally, if the Participant is a citizen or resident of a country other than the one in which the Participant is currently working, is considered a resident of another country for local law purposes or transfers employment and/or residency between countries after the Grant Date, the information contained herein may not be applicable in the same manner to the Participant.
Capitalized terms not explicitly defined in this Appendix A but defined in the Agreement or Plan shall have the same definitions as in the Plan and/or the Agreement.
ARGENTINA
TERMS AND CONDITIONS
Nature of Grant. This provision supplements Section 6(d) - Nature of Grant of the Agreement:
In accepting the grant of the Award, the Participant acknowledges and agrees that the grant of the Award is made by the Company (not the Employer) in its sole discretion and that the value of any Awards or Shares acquired under the Plan shall not constitute salary or wages for any purpose under Argentine labor law, including the calculation of (i) any labor benefits including, but not limited to, vacation pay, thirteenth salary, compensation in lieu of notice, annual bonus, disability, and leave of absence payments, or (ii) any termination or severance indemnities.
If, notwithstanding the foregoing, any benefits under the Plan are considered for purposes of calculating any termination or severance indemnities, the Participant acknowledges and agrees that such benefits shall not accrue more frequently than on an annual basis.
NOTIFICATIONS
Securities Law Information. Neither the Participant's Award nor the underlying Shares are publicly offered or listed on any stock exchange in Argentina and, as a result, have not been and will not be registered with the Argentine Securities Commission (Comisión Nacional de Valores, CNV). The offer is private and not subject to the supervision of any Argentine governmental authority. Neither this nor any other offering material related to the TBS RSUs, nor the underlying Shares, may be utilized in connection with any general offering to the public in Argentina. Argentine residents who acquire TBS RSUs under the Plan do so according to the terms of a private offering made from outside Argentina.
Exchange Control Information. Exchange control regulations in Argentina are subject to frequent change. The Participant is solely responsible for complying with any applicable exchange control restrictions, approvals, and reporting requirements in connection with the TBS RSUs. The Participant should consult with the Participant's personal legal advisor to ensure compliance with the applicable requirements.
Foreign Asset/Account Reporting Information. If the Participant is an Argentine tax resident, the Participant must report any Shares acquired under the Plan and held by the Participant on December 31 of each year on the Participant's annual tax return for that year.
AUSTRALIA
NOTIFICATIONS
Tax Information. The Plan is a plan to which Subdivision 83A-C of the Income Tax Assessment Act of 1997 (Cth) (the “Act”) applies (subject to the conditions of the Act).
Securities Law Information. If the Participant acquires Shares under the Plan and offers the Shares for sale to a person or entity resident in Australia, the offer may be subject to disclosure requirements under Australian law. The Participant should consult with the Participant’s legal advisor before making any such offer in Australia.
AUSTRIA
NOTIFICATIONS
Exchange Control Information. If the Participant holds Shares obtained through the Plan outside Austria, the Participant must submit a report to the Austrian National Bank. An exemption applies if the value of the Shares as of any given quarter does not meet or exceed €30,000,000 or as of December 31 does not meet or exceed €5,000,000. If the former threshold is exceeded, quarterly obligations are imposed, whereas if the latter threshold is exceeded, annual reports are required. The quarterly reporting deadline is the fifteenth day of the month following the last day of the respective quarter. The annual reporting date is December 31 and the deadline for filing the annual report is January 31 of the following year.
When Shares are sold, there may be exchange control obligations if the cash received is held outside Austria. If the transaction volume of all the Participant's accounts abroad meets or exceeds €10,000,000, the movements and balances of all accounts must be reported monthly, as of the last day of the month, on or before the fifteenth day of the following month.
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BELGIUM
NOTIFICATIONS
Foreign Asset/Account Reporting Information. The Participant is required to report any security (e.g., Shares under the Plan) or bank accounts (including brokerage accounts) opened and maintained outside Belgium on the Participant's annual tax return. In a separate report, the Participant is required to report to the National Bank of Belgium any bank accounts opened and maintained outside Belgium. This report, as well as additional information on how to complete it, can be found on the website of the National Bank of Belgium, www.nbe.be, under the Kredietcentrales / Centrales des crédits caption.
Stock Exchange Tax Information. A stock exchange tax applies to transactions executed by a Belgian resident through a non-Belgian financial intermediary, such as a U.S. broker. The stock exchange tax likely will apply when Shares acquired under the Plan are sold. The Participant should consult with the Participant’s tax or financial advisor for additional details on the Participant’s obligations with respect to the stock exchange tax.
BRAZIL
TERMS AND CONDITIONS
Compliance with Law. By accepting the Award, the Participant agrees to comply with applicable Brazilian laws and to report and pay applicable Tax-Related Items associated with the settlement of the Award or the subsequent sale of the Shares acquired under the Plan.
Nature of Grant. This provision supplements Section 6(d) - Nature of Grant of the Agreement:
By accepting the Award, the Participant agrees that the Participant is making an investment decision, the Shares will be issued to the Participant only if the vesting conditions are met and any necessary services are rendered by the Participant over the vesting period, and the value of the underlying Shares is not fixed and may increase or decrease in value over the vesting period without compensation to the Participant.
NOTIFICATIONS
Exchange Control Information. If the Participant is resident or domiciled in Brazil, the Participant will be required to submit an annual declaration of assets and rights held outside Brazil to the Central Bank of Brazil if the aggregate value of such assets and rights is equal to or greater than US$100,000. Assets and rights that must be reported include Shares acquired under the Plan.
Tax on Financial Transaction (IOF). Cross-border financial transactions relating to the Award may be subject to the IOF (tax on financial transactions). The Participant is solely responsible for complying with any applicable IOF arising from the Participant's participation in the Plan. The Participant should consult with the Participant's personal tax advisor for additional details.
CANADA
TERMS AND CONDITIONS
Form of Settlement. Notwithstanding any discretion contained in Section 9(e) of the Plan, the Award is payable in Shares only.
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NOTIFICATIONS
Securities Law Information. The Participant is permitted to sell Shares acquired under the Plan through the designated broker appointed under the Plan, if any, provided the sale of the Shares takes place outside Canada through the facilities of a stock exchange on which the Shares are listed (i.e., the New York Stock Exchange).
Foreign Asset/Account Reporting Information. The Participant is required to report any specified foreign property (including TBS RSUs and Shares) on form T1135 (Foreign Income Verification Statement) if the total cost of the specified foreign property exceeds C$100,000 at any time in the year. The form must be filed by April 30 of the following year. TBS RSUs must be reported – generally at a nil cost – if the C$100,000 cost threshold is exceeded because of other specified foreign property the Participant holds. When Shares are acquired, their cost generally is the adjusted cost base (“ACB”) of the Shares. The ACB would ordinarily equal the fair market value of the Shares at the time of acquisition, but if the Participant owns other shares, this ACB may have to be averaged with the ACB of the other shares. It is the Participant's responsibility to comply with applicable reporting obligations. The Participant should consult with the Participant's personal legal advisor to ensure compliance with applicable reporting obligations.
CHINA
TERMS AND CONDITIONS
The following terms and conditions will be applicable to the Participant to the extent that the Company, in its sole discretion, determines that the Participant's participation in the Plan will be subject to exchange control restrictions in the People’s Republic of China (“PRC”), as implemented by the PRC State Administration of Foreign Exchange (“SAFE”):
Vesting. This provision supplements Section 2(a) - Vesting of the Agreement:
Notwithstanding anything to the contrary in the Agreement, the Award will not vest and no Shares will be issued to the Participant unless and until all necessary exchange control or other approvals with respect to the Award under the Plan are obtained from SAFE or its local counterpart (“SAFE Approval”), as determined by the Company in its sole discretion. In the event that SAFE Approval has not been obtained, or the Company is unable to maintain its SAFE Approval, prior to any date(s) on which the Award is scheduled to vest, the Award will not vest until the seventh day of the month following the month in which SAFE Approval is obtained or reinstated (the “Actual Vesting Date”). If the Participant's employment terminates prior to the Actual Vesting Date, the Participant shall not be entitled to vest in any portion of the Award and the Award shall be forfeited without any liability to the Company, the Employer or any member of the Combined Group and its Affiliates.
If or to the extent the Company is unable to obtain or maintain SAFE Approval, no Shares subject to the TBS RSUs for which SAFE Approval has not been obtained or maintained shall be issued. In this case, the Company retains the discretion to settle any TBS RSUs in cash paid through local payroll in an amount equal to the market value of the Shares subject to the TBS RSUs less any Tax-Related Items; provided, however, that in case the Company is able to obtain or reinstated its SAFE Approval with respect to any TBS RSUs, the cash payment for TBS RSUs not covered by the SAFE Approval shall not be made until the SAFE Approval has been obtained or reinstated.
Settlement of TBS RSUs and Sale of Shares. This provision supplements Section 2(b) - Settlement of the Agreement:
Notwithstanding anything to the contrary in the Plan or the Agreement, to facilitate compliance with PRC exchange control restrictions the Participant agrees that any Shares acquired at settlement of the Award may be immediately sold at settlement or, at the Company’s discretion, at a later time (including when the Participant's employment
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terminates for any reason). If, however, the sale of the Shares is not permissible under the Company’s insider trading policy, the Company retains the discretion to postpone the issuance of the Shares subject to the vested Award until such time that the sale is again permissible and to then immediately sell the Shares subject to the Award. The Participant further agrees that the Company is authorized to instruct its designated broker to assist with the mandatory sale of the Shares (on the Participant's behalf pursuant to this authorization), and the Participant expressly authorizes such broker to complete the sale of the Shares. The Participant acknowledges that the Company’s designated broker is under no obligation to arrange for the sale of Shares at any particular price. Upon the sale of the Shares, the Company agrees to pay the cash proceeds from the sale, less any brokerage fees or commissions, to the Participant in accordance with applicable exchange control laws and regulations and provided any liability for Tax-Related Items has been satisfied. Due to fluctuations in the share price and/or the United States Dollar exchange rate between the settlement date and (if later) the date on which the Shares are sold, the sale proceeds may be more or less than the fair market value of the Shares on the settlement date (which is the amount relevant to determining the Participant's tax liability). The Participant understands and agrees that the Company is not responsible for the amount of any loss the Participant may incur and that the Company assumes no liability for any fluctuation in the share price and/or United States Dollar exchange rate.
The Participant further agrees that any Shares to be issued to the Participant shall be deposited directly into an account with the Company’s designated broker. The deposited shares shall not be transferable (either electronically or in certificate form) from the brokerage account. This limitation shall apply both to transfers to different accounts with the same broker and to transfers to other brokerage firms. The limitation shall apply to all Shares issued to the Participant under the Plan, whether or not the Participant continues to be employed by the Company, the Combined Group or one of its Affiliates.
Exchange Control Restrictions. By accepting the Award, the Participant understands and agrees that the Participant will be required to immediately repatriate to China the proceeds from the sale of any Shares acquired under the Plan or from any cash dividends paid on such Shares. The Participant further understands that such repatriation of the proceeds may need to be effected through a special exchange control account established by the Company or any Affiliate, and the Participant hereby consents and agrees that the proceeds may be transferred to such account by the Company (or its designated broker) on the Participant's behalf prior to being delivered to the Participant. The Participant also acknowledges and understands that there may be a delay between the date the Shares are sold and the date the cash proceeds are distributed to the Participant. The Participant further agrees to sign any agreements, forms and/or consents that may be reasonably requested by the Company (or the Company’s designated broker) to effectuate such transfers.
The proceeds may be paid to the Participant in United States Dollars or local currency, at the Company’s discretion. If the proceeds are paid to the Participant in United States Dollars, the Participant understands that the Participant will be required to set up a United States Dollar bank account in China so that the proceeds may be deposited into this account. If the proceeds are paid to the Participant in local currency, (i) the Participant acknowledges that the Company is under no obligation to secure any particular exchange conversion rate and that the Company may face delays in converting the proceeds to local currency due to exchange control restrictions, and (ii) the Participant agrees to bear any currency fluctuation risk between the time the Shares are sold or dividends are paid and the time the proceeds are converted to local currency and distributed to the Participant. The Participant agrees to comply with any other requirements that may be imposed by the Company in the future in order to facilitate compliance with exchange control requirements in China.
FRANCE
TERMS AND CONDITIONS
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Consent to Receive Information in English. By accepting the grant, the Participant confirms having read and understood the documents relating to this grant (the Plan and the Agreement) which were provided in the English language. The Participant accepts the terms of these documents accordingly.
Consentement relatif à l’utilisation de la langue anglaise. En acceptant les termes et conditions de cette attribution, le Participant confirme avoir lu et compris les documents relatifs à cette attribution (le Plan et ce Contrat) qui ont été communiqués au Participant en langue anglaise. Le Participant en accepte les termes en connaissance de cause.
NOTIFICATIONS
Foreign Asset/Account Reporting Information. If the Participant retains Shares acquired under the Plan outside France or maintains a foreign bank account, the Participant must report such to the French tax authorities when filing the Participant's annual tax return. Failure to comply could trigger significant penalties.
GERMANY
NOTIFICATIONS
Exchange Control Information. Cross-border payments in excess of €12,500 (including transactions made in connection with the sale of securities) must be reported monthly to the German Federal Bank (“Bundesbank”). If the Participant makes or receives a payment in excess of this amount, the Participant must report the payment to Bundesbank electronically using the “General Statistics Reporting Portal” (Allgemeines Meldeportal Statistik) available via Bundesbank’s website (www.bundesbank.de).
Foreign Asset/Account Reporting Information. If the Participant’s acquisition of Shares under the Plan leads to a so-called qualified participation at any point during the calendar year, the Participant will need to report the acquisition when the Participant files his or her tax return for the relevant year. A qualified participation is attained if (i) the value of the Shares acquired exceeds EUR 150,000 or (ii) in the unlikely event the Participant holds Shares exceeding 10% of the of the Company’s Common Stock.
HONG KONG
TERMS AND CONDITIONS
Sale Restriction. Shares received at vesting are accepted as a personal investment. In the event that the Award vests and Shares are issued to the Participant (or the Participant's legal representatives) within six months of the Grant Date, the Participant (or the Participant's legal representatives) agrees that the Shares will not be offered to the public or otherwise disposed of prior to the six-month anniversary of the Grant Date.
NOTIFICATIONS
Securities Law Information. WARNING: The contents of this document have not been reviewed by any regulatory authority in Hong Kong. The Participant is advised to exercise caution in relation to the offer. If the Participant is in any doubt about any of the contents of the Agreement, including this Appendix A, or the Plan, the Participant should obtain independent professional advice. Neither the grant of the Award nor the issuance of Shares upon settlement of the Award constitutes a public offering of securities under Hong Kong law and is available only to employees of the Company and members of the Combined Group and its Affiliates. The Agreement, the Plan and other incidental communication materials distributed in connection with the Award have not been prepared in accordance with and are not intended to constitute a “prospectus” for a public offering of securities under the applicable securities legislation in Hong Kong and are intended only for the personal use of each eligible employee of the Company or
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members of the Combined Group and its Affiliates and may not be distributed to any other person.
Nature of Scheme. The Plan is not intended to be an occupational retirement scheme for purposes of the Occupational Retirement Schemes Ordinance.
ITALY
TERMS AND CONDITIONS
Plan Document Acknowledgment. In accepting the Award, the Participant acknowledges that the Participant has received a copy of the Plan and the Agreement, has reviewed the Plan and the Agreement in their entirety and fully understands and accepts all provisions of the Plan and the Agreement.
The Participant acknowledges that the Participant has read and specifically and expressly approves the following sections of the Agreement: Section 2 - Terms and Conditions; Section 3 - Termination of Employment or Service with the Company; Section 6(c) - Tax Withholding; Section 6(d) - Nature of Grant; Section 6(p) - Governing Law; JURY TRIAL WAIVER; and Section 6(u) - Language.
NOTIFICATIONS
Foreign Asset/Account Reporting Information. If the Participant is an Italian resident and holds investments or financial assets outside Italy (e.g., cash, TBS RSUs, Shares) during any fiscal year which may generate income taxable in Italy (or if the Participant is the beneficial owner of such an investment or asset even if the Participant does not directly hold the investment or asset), the Participant is required to report such investments or assets on the Participant's annual tax return for such fiscal year (on UNICO Form, RW Schedule, or on a special form if the Participant is not required to file a tax return).
JAPAN
NOTIFICATIONS
Foreign Asset/Account Reporting Information. The Participant is required to report details of any assets held outside Japan as of December 31 (including Shares acquired under the Plan), to the extent such assets have a total net fair market value exceeding ¥50 million. Such report will be due by March 15 each year. The Participant should consult with the Participant's personal tax advisor to determine if the reporting obligation applies to the Participant and whether the Participant will be required to include details of the Participant's outstanding TBS RSUs, as well as Shares, in the report.
KOREA
NOTIFICATIONS
Foreign Asset/Account Reporting Information. If the Participant is a Korean resident, the Participant must declare all of the Participant's foreign financial accounts (i.e., non-Korean bank accounts, brokerage accounts, etc.) to the Korean tax authority and file a report with respect to such accounts if the monthly balance of such accounts exceeds KRW 500 million (or an equivalent amount in foreign currency) on any month-end date during a calendar year. The Participant should consult with the Participant's personal tax advisor to determine how to value the Participant’s foreign accounts for such purposes and the Participant's personal reporting obligations.
NETHERLANDS
There are no country specific provisions.
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SINGAPORE
TERMS AND CONDITIONS
Restrictions on Sale. The Participant agrees that, in the event that any portion of the Award vests prior to the six-month anniversary of the Grant Date, the Participant will not sell any Shares acquired at vesting prior to the six-month anniversary of the Grant Date, unless such sale or offer is made pursuant to the exemptions under Part XIII Division (1) Subdivision (4) (other than section 280) of the Securities and Futures Act (Chapter 289, 2006 Ed.) (“SFA”).
NOTIFICATIONS
Securities Law Information. The grant of the Award is being made pursuant to the “Qualifying Person” exemption under section 273(1)(f) of the SFA under which it is exempt from the prospectus and registration requirements under the SFA and is not made to the Participant with a view to the Shares being subsequently offered for sale to any other party. The Plan has not been lodged or registered as a prospectus with the Monetary Authority of Singapore.
Chief Executive Officer and Director Notification Requirement. The Chief Executive Officer (“CEO”) and the directors, associate directors or shadow directors1 of a Singapore Subsidiary or Affiliate are subject to certain notification requirements under the Singapore Companies Act. Specifically, the CEO and directors must notify the Singapore Subsidiary or Affiliate in writing of an interest (e.g., TBS RSUs, Shares, etc.) in the Company or any related company within two business days of (i) its acquisition or disposal, (ii) any change in a previously-disclosed interest (e.g., upon vesting / settlement of the Award or when Shares acquired under the Plan are subsequently sold), or (iii) becoming the CEO or a director.
SPAIN
TERMS AND CONDITIONS
Nature of Grant. The following provision supplements Section 6(d) - Nature of Grant of the Agreement:
In accepting the Award, the Participant consents to participation in the Plan and acknowledges that the Participant has received a copy of the Plan.
The Participant understands that the Company has unilaterally, gratuitously and in its sole discretion decided to grant Awards under the Plan to individuals who may be employees of the Company, the Employer, or any member of the Combined Group and its Affiliates throughout the world. This decision is a limited decision that is entered into upon the express assumption and condition that any grant will not bind the Company, the Employer, or any member of the Combined Group and its Affiliates. Consequently, the Participant understands that the Award is granted on the assumption and condition that the Award and any Shares issued upon settlement of the Award are not a part of any employment contract (either with the Company or any member of the Combined Group and its Affiliates) and shall not be considered a mandatory benefit, salary for any purposes (including severance compensation) or any other right whatsoever.
Further, the Participant understands and agrees that, unless otherwise expressly provided for by the Company or set forth in the Agreement, the Award will be cancelled without entitlement to any Shares if the Participant ceases to be an eligible Participant for any reason, including, but not limited to: resignation, disciplinary dismissal adjudged
1 A shadow director is an individual who is not on the board of directors of the Singapore Subsidiary or Affiliate, but who has sufficient control so that the board of directors of the Singapore Subsidiary or Affiliate acts in accordance with the directions or instructions of the individual.
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to be with cause, disciplinary dismissal adjudged or recognized to be without cause (i.e., subject to a “despido improcedente”), material modification of the terms of employment under Article 41 of the Workers’ Statute, relocation under Article 40 of the Workers’ Statute, Article 50 of the Workers’ Statute, or under Article 10.3 of Royal Decree 1382/1985. The Committee, in its sole discretion, shall determine the date when the Participant's status as an eligible Participant has terminated for purposes of the Award.
In addition, the Participant understands that this grant would not be made to the Participant but for the assumptions and conditions referred to above; thus, the Participant acknowledges and freely accepts that should any or all of the assumptions be mistaken or should any of the conditions not be met for any reason, then any grant of, or right to, the Award shall be null and void.
NOTIFICATIONS
Securities Law Information. No “offer of securities to the public,” as defined under Spanish law, has taken place or will take place in the Spanish territory in connection with the Award. The Agreement has not been, nor will it be, registered with the Comisión Nacional del Mercado de Valores, and does not constitute a public offering prospectus.
Exchange Control Information. The Participant must declare the acquisition, ownership and disposition of Shares to the Spanish Dirección General de Comercio e Inversiones (the “DGCI”) of the Ministry of Economy and Competitiveness on a Form D-6. Generally, the declaration must be made in January for Shares owned as of December 31 of the prior year and/or Shares acquired or disposed of during the prior year; however, if the value of Shares acquired or disposed of or the amount of the sale proceeds exceeds €1,502,530 (or if the Participant holds 10% or more of the share capital of the Company or other such amount that would entitle the Participant to join the Company’s Board of Directors), the declaration must be filed within one month of the acquisition or disposition, as applicable.
In addition, the Participant may be required to electronically declare to the Bank of Spain any foreign accounts (including brokerage accounts held abroad), any foreign instruments (including Shares acquired under the Plan), and any transactions with non-Spanish residents (including any payments of Shares made pursuant to the Plan), depending on the balances in such accounts together with the value of such instruments as of December 31 of the relevant year, or the volume of transactions with non-Spanish residents during the relevant year.
Foreign Asset/Account Reporting Information. To the extent that the Participant holds rights or assets (e.g., cash or Shares held in a bank or brokerage account) outside Spain with a value in excess of €50,000 per type of right or asset (e.g., Shares, cash, etc.) as of December 31 each year, the Participant is required to report information on such rights and assets on the Participant's tax return for such year. After such rights or assets are initially reported, the reporting obligation will only apply for subsequent years if the value of any previously-reported rights or assets increases by more than €20,000 or if the Participant transfers or disposes of any previously-reported rights or assets. The reporting must be completed by March 31. Failure to comply with this reporting requirement may result in penalties. Accordingly, the Participant should consult with the Participant's personal tax and legal advisors to ensure that the Participant is properly complying with the Participant's reporting obligations.
SWITZERLAND
NOTIFICATIONS
Securities Law Information. The offer of TBS RSUs is considered a private offering in Switzerland; therefore, it is not subject to registration in Switzerland. Neither this document nor any other materials relating to the TBS RSUs (i) constitutes a prospectus as such term is understood pursuant to article 652a of the Swiss Code of Obligations, (ii)
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may be publicly distributed nor otherwise made publicly available in Switzerland or (iii) have been or will be filed with, approved or supervised by any Swiss regulatory authority, including the Swiss Financial Market Supervisory Authority (“FINMA”).
TAIWAN
NOTIFICATIONS
Securities Law Information. The offer of participation in the Plan is available only for employees of the Company and members of the Combined Group and its Affiliates. The offer of participation in the Plan is not a public offer of securities by a Taiwanese company.
Exchange Control Information. The Participant may acquire and remit foreign currency (including cash dividends, dividend equivalents, proceeds from the sale of Shares) into and out of Taiwan up to US$5,000,000 per year. If the transaction amount is TWD 500,000 or more in a single transaction, the Participant must submit a Foreign Exchange Transaction Form and also provide supporting documentation to the satisfaction of the remitting bank.
UNITED KINGDOM
TERMS AND CONDITIONS
This provision supplements Section 6(c) - Tax Withholding of the Agreement:
Tax Withholding. Without limitation to Section 6(c) of the Agreement, the Participant agrees that the Participant is liable for all Tax-Related Items and hereby covenants to pay all such Tax-Related Items as and when requested by the Company or any Affiliate or by Her Majesty's Revenue and Customs (“HMRC”) (or any other tax authority or any other relevant authority). The Participant also agrees to indemnify and keep indemnified the Company and any Affiliate against any Tax-Related Items that they are required to pay or withhold or have paid or will pay on the Participant’s behalf to HMRC (or any other tax authority or any other relevant authority).
Notwithstanding the foregoing, if the Participant is a director or executive officer of the Company (within the meaning of Section 13(k) of the Exchange Act), the Participant understands that he or she may not be able to indemnify the Company for the amount of any income tax not collected from or paid by the Participant, in case the indemnification could be considered a loan. In this case, the income tax not collected or paid may constitute a benefit to the Participant on which additional income tax and National Insurance contributions may be payable. The Participant will be responsible for reporting and paying any income tax due on this additional benefit directly to HMRC under the self-assessment regime and for paying the Company or the Employer, as applicable, for the value of any employee National Insurance contributions due on this additional benefit, which the Company or the Employer may recover from the Participant by any of the means referred to in this Agreement.
In addition, the Participant agrees that the Company and/or the Employer may calculate the income tax to be withheld and accounted for by reference to the maximum applicable rates, without prejudice to any right the Participant may have to recover any overpayment from HMRC or any applicable tax authority.
10
Exhibit 31.1
I, Arnold W. Donald, certify that:
1. I have reviewed this quarterly report on Form 10-Q of Carnival Corporation;
2. Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report;
3. Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report;
4. The registrant’s other certifying officer and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d–15(f)) for the registrant and have:
(a) Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared;
(b) Designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles;
(c) Evaluated the effectiveness of the registrant’s disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and
(d) Disclosed in this report any change in the registrant’s internal control over financial reporting that occurred during the registrant’s most recent fiscal quarter (the registrant’s fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the registrant’s internal control over financial reporting; and
5. The registrant’s other certifying officer and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrant’s auditors and the audit committee of the registrant’s board of directors (or persons performing the equivalent functions):
(a) All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrant’s ability to record, process, summarize and report financial information; and
(b) Any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant’s internal control over financial reporting.
Date: March 28, 2022
By:/s/ Arnold W. Donald
Arnold W. Donald
President, Chief Executive Officer and Chief Climate Officer
Exhibit 31.2
I, David Bernstein, certify that:
1. I have reviewed this quarterly report on Form 10-Q of Carnival Corporation;
2. Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report;
3. Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report;
4. The registrant’s other certifying officer and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d–15(f)) for the registrant and have:
(a) Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared;
(b) Designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles;
(c) Evaluated the effectiveness of the registrant’s disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and
(d) Disclosed in this report any change in the registrant’s internal control over financial reporting that occurred during the registrant’s most recent fiscal quarter (the registrant’s fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the registrant’s internal control over financial reporting; and
5. The registrant’s other certifying officer and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrant’s auditors and the audit committee of the registrant’s board of directors (or persons performing the equivalent functions):
(a) All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrant’s ability to record, process, summarize and report financial information; and
(b) Any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant’s internal control over financial reporting.
Date: March 28, 2022
By:/s/ David Bernstein
David Bernstein
Chief Financial Officer and Chief Accounting Officer
Exhibit 31.3
I, Arnold W. Donald, certify that:
1. I have reviewed this quarterly report on Form 10-Q of Carnival plc;
2. Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report;
3. Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report;
4. The registrant’s other certifying officer and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the registrant and have:
(a) Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared;
(b) Designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles;
(c) Evaluated the effectiveness of the registrant’s disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and
(d) Disclosed in this report any change in the registrant’s internal control over financial reporting that occurred during the registrant’s most recent fiscal quarter (the registrant’s fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the registrant’s internal control over financial reporting; and
5. The registrant’s other certifying officer and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrant’s auditors and the audit committee of the registrant’s board of directors (or persons performing the equivalent functions):
(a) All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrant’s ability to record, process, summarize and report financial information; and
(b) Any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant’s internal control over financial reporting.
Date: March 28, 2022
By:/s/ Arnold W. Donald
Arnold W. Donald
President, Chief Executive Officer and Chief Climate Officer
Exhibit 31.4
I, David Bernstein, certify that:
1. I have reviewed this quarterly report on Form 10-Q of Carnival plc;
2. Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report;
3. Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report;
4. The registrant’s other certifying officer and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the registrant and have:
(a) Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared;
(b) Designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles;
(c) Evaluated the effectiveness of the registrant’s disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and
(d) Disclosed in this report any change in the registrant’s internal control over financial reporting that occurred during the registrant’s most recent fiscal quarter (the registrant’s fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the registrant’s internal control over financial reporting; and
5. The registrant’s other certifying officer and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrant’s auditors and the audit committee of the registrant’s board of directors (or persons performing the equivalent functions):
(a) All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrant’s ability to record, process, summarize and report financial information; and
(b) Any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant’s internal control over financial reporting.
Date: March 28, 2022
By:/s/ David Bernstein
David Bernstein
Chief Financial Officer and Chief Accounting Officer
Exhibit 32.1
In connection with the Quarterly Report on Form 10-Q for the quarter ended February 28, 2022 as filed by Carnival Corporation with the Securities and Exchange Commission on the date hereof (the “Report”), I certify pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002, that:
(1)The Report fully complies with the requirements of Section 13(a) or 15(d) of the Securities Exchange Act of 1934; and
(2)The information contained in the Report fairly presents, in all material respects, the financial condition and results of operations of Carnival Corporation.
Date: March 28, 2022
By:/s/ Arnold W. Donald
Arnold W. Donald
President, Chief Executive Officer and Chief Climate Officer
Exhibit 32.2
In connection with the Quarterly Report on Form 10-Q for the quarter ended February 28, 2022 as filed by Carnival Corporation with the Securities and Exchange Commission on the date hereof (the “Report”), I certify pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002, that:
(1)The Report fully complies with the requirements of Section 13(a) or 15(d) of the Securities Exchange Act of 1934; and
(2)The information contained in the Report fairly presents, in all material respects, the financial condition and results of operations of Carnival Corporation.
Date: March 28, 2022
By:/s/ David Bernstein
David Bernstein
Chief Financial Officer and Chief Accounting Officer
Exhibit 32.3
In connection with the Quarterly Report on Form 10-Q for the quarter ended February 28, 2022 as filed by Carnival plc with the Securities and Exchange Commission on the date hereof (the “Report”), I certify pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002, that:
(1) The Report fully complies with the requirements of Section 13(a) or 15(d) of the Securities Exchange Act of 1934; and
(2) The information contained in the Report fairly presents, in all material respects, the financial condition and results of operations of Carnival plc.
Date: March 28, 2022
By:/s/ Arnold W. Donald
Arnold W. Donald
President, Chief Executive Officer and Chief Climate Officer
Exhibit 32.4
In connection with the Quarterly Report on Form 10-Q for the quarter ended February 28, 2022 as filed by Carnival plc with the Securities and Exchange Commission on the date hereof (the “Report”), I certify pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002, that:
(1) The Report fully complies with the requirements of Section 13(a) or 15(d) of the Securities Exchange Act of 1934; and
(2) The information contained in the Report fairly presents, in all material respects, the financial condition and results of operations of Carnival plc.
Date: March 28, 2022
By:/s/ David Bernstein
David Bernstein
Chief Financial Officer and Chief Accounting Officer