<PAGE>
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
SCHEDULE 13D
UNDER THE SECURITIES EXCHANGE ACT OF 1934
PAN AM CORPORATION
- -------------------------------------------------------------------------------
(NAME OF ISSUER)
COMMON STOCK, PAR VALUE $.0001 PER SHARE
- -------------------------------------------------------------------------------
(TITLE OF CLASS OF SECURITIES)
697758 10 0
- -------------------------------------------------------------------------------
(CUSIP NUMBER)
JAMES M. DUBIN, ESQ.
PAUL, WEISS, RIFKIND, WHARTON & GARRISON
1285 AVENUE OF THE AMERICAS
NEW YORK, NEW YORK 10019
(212) 373-3026
- -------------------------------------------------------------------------------
(NAME, ADDRESS AND TELEPHONE NUMBER OF PERSON
AUTHORIZED TO RECEIVE NOTICES AND COMMUNICATIONS)
SEPTEMBER 26, 1997
- -------------------------------------------------------------------------------
(DATE OF EVENT WHICH REQUIRES FILING OF THIS STATEMENT)
If the filing person has previously filed a statement on Schedule 13G to
report the acquisition which is the subject of this Schedule 13D, and is filing
this schedule because of Rule 13d-1(b)(3) or (4), check the following box [ ].
(Continued on following pages)
(Page 1 of 12 Pages)
<PAGE>
Page 2 of 12 Pages
CUSIP NO. 697758 10 0
(1) Name of Reporting Persons. S.S. or I.R.S. Identification Nos. of Above
Persons
THE MICKY ARISON 1995 AIR HOLDING TRUST
---------------------------------------------------------------------------
(2) Check the Appropriate Box if a Member of a Group
(a) (b) X
---------------------------- ---------------------------------------
(3) SEC Use Only
(4) Source of Funds OO
-----------------------------------------------------------
--------------------------------------------------------------------------
(5) Check if Disclosure of Legal Proceedings is Required Pursuant to Items 2(d)
or 2(e)
------
(6) Citizenship or Place of Organization DELAWARE
-------------------------------------
Number of (7) Sole Voting Power 0
Shares Bene- -------------------------------------
ficially (8) Shared Voting Power 8,928,571
Owned by Each --------------------------------------
Reporting (9) Sole Dispositive Power 0
Person With -----------------------------------
(10) Shared Dispositive Power 8,928,571
----------------------------------
(11) Aggregate Amount Beneficially Owned by Each Reporting Person
8,928,571
--------------------------------------------------------------------------
--------------------------------------------------------------------------
(12) Check if the Aggregate Amount in Row (11) Excludes Certain Shares
--------------------------------------------------------------------------
(13) Percent of Class Represented by Amount in Row (11) 42.6%
------------------
(14) Type of Reporting Person OO
---------------------------------------------------------------------------
2
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Page 3 of 12 Pages
CUSIP NO. 697758 10 0
(1) Name of Reporting Persons. S.S. or I.R.S. Identification Nos. of Above
Person
JMD DELAWARE, INC.
---------------------------------------------------------------------------
(2) Check the Appropriate Box if a Member of a Group
(a) (b) X
-------------------------- ------------------------------------------
(3) SEC Use Only
---------------------------------------------------------------------------
(4) Source of Funds OO
---------------------------------------------------------------------------
---------------------------------------------------------------------------
(5) Check Box if Disclosure of Legal Proceedings is Required Pursuant to Items
2(d) or 2(e)
---------------------------------------------------------------
(6) Citizenship or Place of Organization DELAWARE
---------------------------------------
Number of (7) Sole Voting Power 0
Shares Bene- ---------------------------------------
ficially (8) Shared Voting Power 8,928,571
Owned by Each ------------------------------------
Reporting (9) Sole Dispositive Power 0
Person With ----------------------------------
(10) Shared Dispositive Power 8,928,571
-----------------------------------
(11) Aggregate Amount Beneficially Owned by Each Reporting Person
8,928,571
---------------------------------------------------------------------------
---------------------------------------------------------------------------
(12) Check Box if the Aggregate Amount in Row (11) Excludes Certain Shares
---------------------------------------------------------------------------
(13) Percent of Class Represented by Amount in Row (11) 42.6%
----------------------
(14) Type of Reporting Person CO
-----------------------------------------------
3
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Page 4 of 12 Pages
CUSIP NO. 697758 10 0
(1) Name of Reporting Persons. S.S. or I.R.S. Identification Nos. of Above
Person
JAMES M. DUBIN
---------------------------------------------------------------------------
(2) Check the Appropriate Box if a Member of a Group
(a) (b) X
-------------------------- -----------------------------------------
(3) SEC Use Only
----------------------------------------------------------------
(4) Source of Funds OO
------------------------------------------------------------
---------------------------------------------------------------------------
(5) Check Box if Disclosure of Legal Proceedings is Required Pursuant to Items
2(d) or 2(e)
----------------------------------------------------------------
(6) Citizenship or Place of Organization UNITED STATES
--------------------------------------
Number of (7) Sole Voting Power 0
Shares Bene- -----------------------------------------
ficially (8) Shared Voting Power 8,928,571
Owned by Each --------------------------------------
Reporting (9) Sole Dispositive Power 0
Person With -------------------------------------
(10) Shared Dispositive Power 8,928,571
------------------------------------
(11) Aggregate Amount Beneficially Owned by Each Reporting Person
8,928,571
---------------------------------------------------------------------------
---------------------------------------------------------------------------
(12) Check Box if the Aggregate Amount in Row (11) Excludes Certain Shares
---------------------------------------------------------------------------
(13) Percent of Class Represented by Amount in Row (11) 42.6%
-----------------------
(14) Type of Reporting Person CO
------------------------------------------------
4
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Page 5 of 12 Pages
CUSIP NO. 697758 10 0
(1) Name of Reporting Persons. S.S. or I.R.S. Identification Nos. of Above
Person
MICKY ARISON
---------------------------------------------------------------------------
(2) Check the Appropriate Box if a Member of a Group
(a) (b) X
---------------------------- ------------------------------------------
(3) SEC Use Only
---------------------------------------------------------------
(4) Source of Funds OO
------------------------------------------------------------
---------------------------------------------------------------------------
(5) Check Box if Disclosure of Legal Proceedings is Required Pursuant to Items
2(d) or 2(e)
---------------------------------------------------------------
(6) Citizenship or Place of Organization UNITED STATES
--------------------------------------
Number of (7) Sole Voting Power 0
Shares Bene- ----------------------------------------
ficially (8) Shared Voting Power 8,928,571
Owned by Each ----------------------------------------
Reporting (9) Sole Dispositive Power 0
Person With ----------------------------------------
(10) Shared Dispositive Power 8,928,571
------------------------------------
(11) Aggregate Amount Beneficially Owned by Each Reporting Person
8,928,571
---------------------------------------------------------------------------
---------------------------------------------------------------------------
(12) Check Box if the Aggregate Amount in Row (11) Excludes Certain Shares
---------------------------------------------------------------------------
(13) Percent of Class Represented by Amount in Row (11) 42.6%
-------------------
(14) Type of Reporting Person IN
---------------------------------------------------------------------------
5
<PAGE>
Page 6 of 12 Pages
ITEM 1. SECURITY AND ISSUER.
(a) TITLE AND CLASS OF SECURITY: This statement relates to the shares of
common stock, par value $.0001 per share, of Pan Am Corporation, a
Florida corporation (the "Common Stock").
(b) ISSUER: Pan Am Corporation
9300 N.W. 36th Street
Miami, Florida 33178
ITEM 2. IDENTITY AND BACKGROUND.
I. THE MICKY ARISON 1995 AIR HOLDING TRUST
2(a) Name: The Micky Arison 1995 Air Holding Trust (the "Trust")
2(b) State or Place of Organization: Delaware
2(c)(i) Principal Business: The Trust is a Delaware trust that was
formed for the benefit of Micky Arison and his heirs.
2(c)(ii) Address of Principal Business: P.O. Box 1347, 1201 N.
Market Street, Wilmington, Delaware 19899-1347
2(c)(iii) Address of Principal Office: P.O. Box 1347, 1201 N. Market
Street, Wilmington, Delaware 19899-1347
2(d) The Trust has not, during the past five years, been convicted
in a criminal proceeding (excluding traffic violations or
similar misdemeanors).
2(e) The Trust was not, during the past five years, a party to a
civil proceeding of a judicial or administrative body of
competent jurisdiction and as a result of such proceeding was
or is subject to a judgment, decree or final order enjoining
future violations of, or prohibiting or mandating activities
subject to, Federal or state securities laws or finding any
violation with respect to such laws.
6
<PAGE>
Page 7 of 12 Pages
II. JMD DELAWARE, INC.
2(a) Name: JMD Delaware, Inc. ("JMD")
2(b) State or Place of Organization: Delaware
2(c)(i) Principal Business: JMD is a Delaware corporation
formed for the purpose of serving as trustee for certain
trusts established for the benefit of the Arison family.
The executive officers of JMD are: James M. Dubin,
Chairman, President and Trust Officer; Jonathan R. Bell,
Vice President, Treasurer and Trust Officer; Denison H.
Hatch, Jr., Vice President, Secretary and Trust Officer;
Johannes R. Krahmer, Vice President, Assistant Treasurer and
Trust Officer; and Walter C. Tuthill, Vice President and
Trust Officer. The directors of JMD are James M. Dubin,
Denison H. Hatch, Jr. and Walter C. Tuthill. The sole
stockholder of JMD Delaware is James M. Dubin. Each of
Messrs. Dubin and Bell is an Attorney-at-Law at Paul, Weiss,
Rifkind, Wharton & Garrison, 1285 Avenue of the Americas,
New York, New York 10019. Each of Messrs. Hatch, Krahmer
and Tuthill is an Attorney-at-Law at Morris, Nichols, Arsht
& Tunnell, P.O. Box 1347, 1201 N. Market Street, Wilmington,
Delaware 19899-1347. Each of Messrs. Dubin, Bell, Hatch,
Krahmer and Tuthill is a United States citizen.
2(c)(ii) Address of Principal Business: P.O. Box 1347, 1201 N.
Market Street, Wilmington, Delaware 19899-1347.
2(c)(iii) Address of Principal Office: P.O. Box 1347, 1201 N. Market
Street, Wilmington, Delaware 19899-1347.
2(d) JMD has not, during the past five years, been convicted in a
criminal proceeding (excluding traffic violations or similar
misdemeanors).
2(e) JMD was not, during the past five years, a party to a civil
proceeding of a judicial or administrative body of competent
jurisdiction and as a result of such proceeding was or is
subject to a judgment, decree or final order enjoining
future violations of, or prohibiting or mandating activities
subject to, federal or state securities laws or finding any
violation with respect to such laws.
III. JAMES M. DUBIN
2(a) Name: James M. Dubin
2(b) Business Address: 1285 Avenue of the Americas, New York,
New York 10019.
7
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Page 8 of 12 Pages
2(c) Present Principal Employment: Mr. Dubin is an attorney at
Paul, Weiss, Rifkind, Wharton & Garrison, 1285 Avenue of the
Americas, New York, New York 10019. Mr. Dubin is also the
sole stockholder of JMD.
2(d) Mr. Dubin has not, during the past five years, been
convicted in a criminal proceeding (excluding traffic
violations or similar misdemeanors).
2(e) Mr. Dubin was not, during the past five years, a party to a
civil proceeding of a judicial or administrative body of
competent jurisdiction and as a result of such proceeding
was or is subject to a judgment, decree or final order
enjoining future violations of, or prohibiting or mandating
activities subject to, federal or state securities laws or
finding any violation with respect to such laws.
IV. MICKY ARISON
2(a) Name: Micky Arison
2(b) Business Address: 3655 N.W. 87th Avenue, Miami, Florida 33178
2(c)(i) Present Principal Employment: Chief Executive Officer and
Chairman of the Board of Carnival Corporation, a Panama
corporation.
2(c)(ii) Principal Business and Address of Mr. Arison: 3655 N.W.
87th Avenue, Miami, Florida 33178
2(d) Mr. Arison has not, during the past five years, been
convicted in a criminal proceeding (excluding traffic
violations or similar misdemeanors).
2(e) Mr. Arison was not, during the past five years, a party to a
civil proceeding of a judicial or administrative body of
competent jurisdiction and as a result of such proceeding was
or is subject to a judgment, decree or final order enjoining
future violations of, or prohibiting or mandating activities
subject to, federal or state securities laws or finding any
violation with respect to such laws.
2(f) Mr. Arison is a citizen of the United States.
8
<PAGE>
Page 9 of 12 Pages
ITEM 3. SOURCE AND AMOUNT OF FUNDS OR OTHER CONSIDERATION.
The securities were acquired pursuant to the terms of that certain
Acquisition Agreement, dated March 20, 1997, as amended (the "Agreement"),
between Pan Am Corporation, CAL Acquisition Corporation, a Florida corporation,
Air Holding Company, a Florida corporation and Carnival Air Lines, Inc., a
Florida corporation ("Carnival Air"), as a result of which shares of Carnival
Air held of record by the Trust were converted into 8,928,571 shares of Pan Am
Corporation and Carnival Air was merged with and became a wholly owned
subsidiary of Pan Am Corporation (the "Merger"). The Merger was consummated on
September 26, 1997.
ITEM 4. PURPOSE OF TRANSACTIONS.
The transaction described in Item 3 was for investment purposes only.
Upon the closing of the Merger, at Arison's request (and pursuant to a provision
in the Agreement), Mr. Howard Frank was appointed to the Board of Directors of
Pan Am Corporation. None of the Reporting Persons have any further plans to
change the management or operations of the Issuer.
ITEM 5. INTEREST IN SECURITIES OF THE ISSUER.
The Trust beneficially owns 8,928,571 shares of Common Stock of the
Issuer, which constitutes 42.6% of the outstanding Common Stock of the Issuer
(based upon 11,412,610 shares of Common Stock outstanding as reported in the
Issuer's Quarterly Report on Form 10-Q for the quarter ended June 30, 1997 and
an additional 9,523,810 shares of Common Stock issued in connection with the
Merger). The Trust has shared voting power and dispositive power with respect
to the 8,928,571 shares that it holds of record.
JMD beneficially owns 8,928,571 shares of Common Stock of the Issuer,
which constitutes 42.6% of the outstanding Common Stock of the Issuer (based
upon 11,412,610 shares of Common Stock outstanding as reported in the Issuer's
Quarterly Report on Form 10-Q for the quarter ended June 30, 1997 and an
additional 9,523,810 shares of Common Stock issued in connection with the
Merger), by virtue of being the trustee of the Trust. JMD may be deemed to
share voting and dispositive power with respect to the 8,928,571 shares that are
held of record by the Trust. JMD disclaims beneficial ownership of all of such
shares of Common Stock.
James M. Dubin beneficially owns 8,928,571 shares of Common Stock of
the Issuer, which constitutes 42.6% of the outstanding Common Stock of the
Issuer (based upon 11,412,610 shares of Common Stock outstanding as reported in
the Issuer's Quarterly Report on Form 10-Q for the quarter ended June 30, 1997
and an additional 9,523,810 shares of Common Stock issued in connection with the
Merger), by virtue of being the sole shareholder of JMD. Mr. Dubin may be
deemed to share voting and dispositive power with respect to the 8,928,571
shares that are held of record by the Trust. Mr. Dubin disclaims beneficial
ownership of all of such shares of Common Stock.
9
<PAGE>
Page 10 of 12 Pages
Micky Arison beneficially owns 8,928,571 shares of Common Stock of the
Issuer, which constitutes 42.6% of the outstanding Common Stock of the Issuer
(based upon 11,412,610 shares of Common Stock outstanding as reported in the
Issuer's Quarterly Report on Form 10-Q for the quarter ended June 30, 1997 and
an additional 9,523,810 shares of Common Stock issued in connection with the
Merger). Mr. Arison shares voting and dispositive power with respect to the
8,928,571 shares that are held of record by the Trust.
As described in Item 3 above, the 8,928,571 shares held of record by
the Trust were acquired pursuant to the terms of the Agreement on September
26, 1997 as a result of the Merger of Carnival Air with a wholly owned
subsidiary of Pan Am Corporation. In connection with the Merger, each
outstanding share of Carnival Air was converted into approximately 1.88
shares of Pan Am Corporation. As a result, the Trust received an aggregate of
8,928,571 shares of the Issuer's Common Stock in exchange for the 4,750,000
shares of common stock of Carnival Air previously held of record by the Trust.
The Reporting Persons, as a group, beneficially own an aggregate of
8,928,571 shares of Common Stock of the Issuer, which constitutes 42.6% of
the outstanding Common Stock of the Issuer (based upon 11,412,610 shares of
Common Stock outstanding as reported in the Issuer's Quarterly Report on Form
10-Q for the quarter ended June 30, 1997 and an additional 9,523,810 shares
of Common Stock issued in connection with the Merger). The Reporting
Persons, as a group, have sole voting and dispositive power over such shares
of Common Stock.
Other than the Reporting Persons, no person has the right to receive
or the power to direct the receipt of dividends from, or the proceeds from
the sale of these shares of Common Stock.
ITEM 6. CONTRACTS, ARRANGEMENTS, UNDERSTANDINGS OR RELATIONSHIPS WITH RESPECT
TO SECURITIES OF THE ISSUER.
In connection with the Merger, JMD, as trustee of the Trust, and
Micky Arison entered into a Standstill Agreement with Pan Am Corporation.
Pursuant to the terms of the Standstill Agreement, Mr. Arison and the Trust
are prohibited from directly or indirectly acquiring in excess of 45% of the
outstanding voting securities of the Issuer (on a fully diluted basis) and
from directly or indirectly offering or seeking to control, in any manner,
the management, Board of Directors of policies of the Issuer, other than
through the director positions contemplated in the Agreement. Mr. Arison and
the Trust are also generally restricted in the amount and manner by which
they may transfer any Common Stock owned by them. For instance, in the event
Mr. Arison or the Trust wish to transfer a number of shares of Common Stock
representing more than 15% of the outstanding voting securities of the
Issuer, they must first provide written notice of such proposed transfer to
the Issuer and give the Issuer the opportunity to purchase such shares upon
the same terms and conditions.
10
<PAGE>
Page 11 of 12 Pages
ITEM 7. MATERIAL TO BE FILED AS EXHIBITS.
Exhibit 1 - Consent to Joint Filing
Exhibit 2 - Standstill Agreement, dated as of March 20, 1997, by and
among Pan Am Corporation, Micky Arison and JMD Delaware, Inc., as
trustee for the Micky Arison 1995 Air Holding Trust
11
<PAGE>
Page 12 of 12 Pages
SIGNATURE
After reasonable inquiry and to the best of my knowledge and belief, I
certify that the information set forth in this statement is true, complete and
correct.
THE MICKY ARISON 1995 AIR
HOLDING TRUST
By: JMD Delaware, Inc.
DATED: October 6, 1997 By: /s/ James M. Dubin
------------------------------------
Name: James M. Dubin
Title: Chairman, President and Trust
Officer
JMD DELAWARE, INC.
By: /s/ James M. Dubin
------------------------------------
Name: James M. Dubin
Title: Chairman, President and Trust
Officer
/s/ James M. Dubin
---------------------------------------
James M. Dubin
/s/ Micky Arison
---------------------------------------
Micky Arison
12
<PAGE>
EXHIBIT 1
CONSENT TO JOINT FILING
The Micky Arison 1995 Air Holding Trust, JMD Delaware, Inc., James M. Dubin
and Micky Arison hereby consent to the joint filing of this Schedule 13D with
respect to the common stock of Pan Am Corporation and agree that this Schedule
13D is filed on behalf of each of them.
THE MICKY ARISON 1995 AIR
HOLDING TRUST
By: JMD Delaware, Inc.
DATED: October 6, 1997 By: /s/ James M. Dubin
------------------------------------
Name: James M. Dubin
Title: Chairman, President and Trust
Officer
JMD DELAWARE, INC.
By: /s/ James M. Dubin
------------------------------------
Name: James M. Dubin
Title: Chairman, President and Trust
Officer
/s/ James M. Dubin
---------------------------------------
James M. Dubin
/s/ Micky Arison
---------------------------------------
Micky Arison
<PAGE>
EXHIBIT 2
THIS STANDSTILL AGREEMENT (this "Agreement") is made and entered into
as of March 20, 1997 by and among PAN AM CORPORATION, a Florida corporation
("Pan Am") MICKY ARISON ("Arison") and JDM DELAWARE, INC., as trustee for the
Micky Arison 1995 Air Holding Trust (the "Trust") (Arison and the Trust are
sometimes referred to herein collectively as the "Shareholders"). Capitalized
terms used herein without definition shall have the meanings ascribed to them in
that certain Acquisition Agreement (the "Acquisition Agreement"), dated as of
the date hereof, among Pan Am, CAL Acquisition Corporation, a Florida
corporation ("Acquisition"), Airline Holding Company, Inc., a Florida
corporation ("AHC") and Carnival Air Lines, Inc., a Florida corporation
("Carnival").
W I T N E S S E T H:
WHEREAS, Pan Am, Acquisition, AHC and Carnival have entered into the
Acquisition Agreement which contemplates the merger of Acquisition with and into
Carnival; and
WHEREAS, the Trust owns all of the issued and outstanding shares of
AHC Common Stock (the "AHC Shares") and, immediately prior to the Effective
Time, will own over 90% of the issued and outstanding shares of the Carnival
Common Stock (the "Carnival Shares" and, together with the AHC Shares, the
"Shares");
WHEREAS, upon the consummation of the transactions contemplated by the
Acquisition Agreement, each of the Carnival Shares will be converted into
approximately 1.8796991 shares of Common Stock (the "Exchange Shares"); and
WHEREAS, as a condition to the willingness of each of Pan Am and
Acquisition to enter into the Acquisition Agreement, Pan Am and Acquisition have
each requested that the Shareholders agree, and, in order to induce Pan Am and
Acquisition to enter into the Acquisition Agreement, the Shareholders have
agreed to certain limitations on their ownership of the Voting Securities (as
herein defined) of Pan Am and to certain other undertakings;
NOW, THEREFORE, in consideration of the mutual agreements and
covenants set forth herein, Pan Am and the Shareholder, intending to be legally
bound, hereby agree as follows:
1. LIMITATION ON OWNERSHIP OF VOTING SECURITIES; CERTAIN
UNDERTAKINGS. The Shareholders covenant and agree that, from and after the
Effective Date, they will not, and will cause each of their respective
Affiliates not to, singly or as part of a "partnership, limited partnership,
syndicate or other group" (as those terms are used within the meaning of Section
13(d)(3) of the Securities Exchange Act of 1934, as amended (the "Exchange
Act")), directly or indirectly, through one or more intermediaries or otherwise:
a. without the consent of the Board of Directors of Pan Am,
voluntarily acquire or offer, seek, propose or agree to acquire, beneficial
ownership (as such term is defined in regulations promulgated under the Exchange
Act) of the Voting Power (as hereinafter defined) an aggregate of more than 45%
of all Outstanding Voting Securities (as hereinafter defined);
<PAGE>
b. (i) solicit proxies within the meaning of Regulation 14A
promulgated under the Exchange Act with respect to the Common Stock or any other
securities of Pan Am, (ii) become a participant in a solicitation of proxies
with respect to the Common Stock or other securities of Pan Am, (iii) form, join
or in any way participate in a Group (as such term is used within the meaning of
Section 13(d)(3) of the Exchange Act, which meaning shall apply for all purposes
of this Agreement) which is soliciting or intends to solicit proxies with
respect to the Common Stock or other securities of Pan Am, or (iv) seek to
advise, encourage or influence any person or entity with respect to the voting
of any Outstanding Voting Securities;
c. form, join or in any way participate in a Group which has
acquired or plans to acquire shares of Common Stock or other securities of Pan
Am, other than as a Group composed of the Shareholders and their respective
Affiliates;
d. deposit any Common Stock or other Outstanding Voting
Securities in any voting trust or subject any Common Stock or other Outstanding
Voting Securities to a voting agreement or other arrangement with similar effect
that could reasonably be expected to result in any of the foregoing;
e. otherwise act, alone or in concert with others (including by
providing financing for another party), to seek or offer to control, in any
manner, the management, Board of Directors or policies of Pan Am other than
through the director positions contemplated by the Acquisition Agreement;
f. unless and until the Shareholders have received the prior
written invitation or approval of a majority of the disinterested Board of
Directors of Pan Am, the Shareholders will not, and will cause each of their
respective Affiliates not to, directly or indirectly, solicit, seek or offer to
effect, negotiate with or provide any information to any party, or make any
statement or proposal to any person with a view to forming a Group or make any
public announcement or proposal or offer whatsoever, with respect to (i) any
form of business combination or similar transaction involving Pan Am or any
Subsidiary thereof, including, without limitation, a merger, tender or exchange
offer or liquidation of assets or (ii) any form of restructuring,
recapitalization or similar transaction with respect to Pan Am or any Subsidiary
thereof; or
g. instigate, encourage or assist any third party to do any of
the foregoing, provided, however that, subject to the restrictions contained in
Section 4 hereof, nothing in this Agreement shall prohibit the Shareholders from
selling or otherwise disposing of all or a portion of the Exchange Shares to
unaffiliated person(s) or entity(ies) on the market or in negotiated
transactions.
As used in this Agreement, (i) the term "Voting Securities" shall
mean the Common Stock and all other securities of Pan Am of any kind or class
having power to vote for the election of directors, (ii) the term "Outstanding
Voting Securities" shall at any time mean the then issued and outstanding Voting
Securities, other securities of Pan Am convertible or exchangeable into Voting
Securities (which shall be counted at the highest conversion or exchange rate at
which they can be converted or exchanged), and options or rights (whether or not
presently exercisable) to purchase Voting Securities or securities convertible
or exchangeable, and (iii) the term "Voting Power" shall mean, with respect to
Outstanding Voting Securities, the highest number of votes that the holders of
all such Outstanding Voting Securities
-2-
<PAGE>
would be entitled to cast for the election of directors or on any other matter
assuming, for purposes of this computation, the conversion or exchange into
Voting Securities of securities convertible into or exchangeable therefore, and
the exercise of options and rights (whether or not presently exercisable) to
purchase Voting Securities.
2. REPRESENTATIONS AND WARRANTIES OF PAN AM. Pan Am hereby
represents and warrants to the Shareholders as follows:
a. Each of Pan Am and its Subsidiaries is a corporation duly
organized, validly existing and in good standing under the laws of its state or
country of incorporation. Each of Pan Am and its Subsidiaries is duly qualified
to transact business as a foreign corporation in all jurisdictions where the
ownership or leasing of its properties or the conduct of its business requires
such qualification except where the failure to be so qualified would not have a
material adverse effect on the financial condition, results of operations,
assets, liabilities, prospects or business of Pan Am and its Subsidiaries on a
consolidated basis. Each of Pan Am and its Subsidiaries has the corporate
authority to (i) own or lease and operate its properties and (ii) conduct its
business as presently conducted.
b. Pan Am has the corporate authority to execute, deliver and
perform this Agreement. The execution, delivery and performance of this
Agreement by Pan Am and the consummation by Pan Am of the transactions
contemplated hereby have been duly authorized by all requisite corporate action
on the part of Pan Am. This Agreement has been duly executed and delivered by
Pan Am and constitutes the legal, valid and binding obligation of Pan Am,
enforceable against it in accordance with its terms, except to the extent that
such enforcement is limited by bankruptcy, insolvency, reorganization or other
laws relating to or affecting the enforcement of creditors' rights generally or
by general principles of equity.
c. The execution, delivery and performance by Pan Am of this
Agreement and the consummation by Pan Am of the transactions contemplated
hereby; (i) do not and will not violate or conflict with any provision of law or
regulation, or any writ, order, judgment or decree of any court or governmental
or regulatory authority specifically naming Pan Am, or any provision of Pan Am's
Articles of Incorporation or Bylaws; and (ii) do not and will not, with or
without the passage of time or the giving of notice, result in the breach of, or
constitute a default, cause the acceleration of performance, permit the
unilateral modification or termination of, or require any consent under, or
result in the creation of any lien, charge or encumbrance upon any property or
assets of Pan Am pursuant to, any material instrument or agreement to which Pan
Am is a party or by which Pan Am may be bound or affected.
3. REPRESENTATIONS AND WARRANTIES OF THE SHAREHOLDERS. The
Shareholders each hereby represent and warrant to Pan Am as follows:
a. Each Shareholder is authorized to execute and deliver this
Agreement. This Agreement has been duly executed and delivered by the
Shareholders and constitutes the legal, valid and binding obligation of each
Shareholder, enforceable against such Shareholder in accordance with its terms,
except to the extent that such enforcement is limited by bankruptcy, insolvency,
reorganization or other laws relating to or affecting the enforcement of
creditors' rights generally or by general principles of equity.
b. The execution, delivery and performance by the Shareholders,
of this Agreement, and the consummation by Shareholders of the transactions
contemplated hereby
-3-
<PAGE>
and thereby: (i) do not and will not violate or conflict with any provision of
law or regulation, or any writ, order, judgment or decree of any court or
governmental or regulatory authority specifically naming any Shareholder; and
(ii) do not and will not, with or without the passage of time or the giving of
notice, result in the breach of, or constitute a default, cause the acceleration
of performance, permit the unilateral modification or termination of, or require
any consent under, or result in the creation of any lien, charge or encumbrance
upon any property or assets of any Shareholder or of AHC or Carnival pursuant
to, any material instrument or agreement to which any Shareholder or AHC or
Carnival is a party or by which the Shareholder or AHC or Carnival or any of
their respective properties may be bound or affected.
c. The Shareholders are acquiring the Exchange Shares for
investment and not with a view to the sale or distribution thereof, are
acquiring the Exchange Shares for their own account and not on behalf of others
and have not granted any other person any right or option or any participation
or beneficial interest in any of the Exchange Shares. Each Shareholder
acknowledges his respective understanding that none of the Exchange Shares may
be sold except (i) pursuant to paragraph (d) of Rule 145 under the Securities
Act, (ii) pursuant to an effective registration statement under the Securities
Act or (iii) in a transaction exempt from registration under the Act, and
acknowledges that he understands the meaning and effect of such restrictions.
d. The AHC Shares are, and the Carnival Shares will be, owned
by the Shareholders, free and clear of any liens, encumbrances, security
interests, options or claims whatsoever, including, without limitation, claims
or rights under "buy-sell" or other shareholder or voting agreements.
4. TRANSFER OF STOCK. No Shareholder may transfer, assign, sell or
otherwise dispose of (a "Transfer") any Common Stock owned by it to any
Person which is an Affiliate of the Shareholder. If any Shareholder shall
propose to Transfer, in any transaction or series of related transactions
(which shall include a series of transactions to the same Person or its
Affiliates), any Common Stock that represents greater than 15% of the
Outstanding Voting Securities, then the Shareholder shall provide Pan Am with
prior written notice of the proposed transfer (the "Transfer Notice"). The
Transfer Notice shall set forth all of the material terms of the proposed
Transfer. Pan Am shall have the right, exercisable by written notice within
30 days of receipt of the Transfer Notice (the "Exercise Notice") to purchase
all of the Common Stock which is the subject of the proposed Transfer upon
the terms set forth in the Transfer Notice (it being agreed that Pan Am may,
at its option substitute cash in an amount equal to the fair market value of
any assets reflected in the Transfer Notice). Upon delivery of the Exercise
Notice, Pan Am shall be obligated to consummate the purchase contemplated
thereby, which purchase shall be consummated not less than 10 business days
following the Shareholders receipt of the Exercise Notice. If Pan Am
defaults in its obligation to purchase all of the Common Stock it is
obligated to purchase pursuant to an Exercise Notice, then this Agreement
shall automatically terminate and shall cease to have any force or effect.
If Pan Am shall not timely deliver an Exercise Notice, then the Shareholder
may thereafter Transfer the Common Stock owned by it upon terms no less
favorable than those set forth in the Transfer Notice; PROVIDED, HOWEVER,
that if the Transfer shall not be consummated within 45 business days
following Pan Am's failure timely to deliver the Exercise Notice, then Pan Am
shall have the right of first offer set forth above with respect to any
subsequent Transfer by the Shareholder of any Common Stock that represents
greater than 15% of the Outstanding Voting Securities.
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5. TERMINATION. This Agreement shall, unless otherwise agreed to by
the Shareholder and Pan Am, terminate on the earliest of the following dates or
events, whereupon the foregoing provisions of this Agreement shall cease to have
any force or effect:
a. June 30, 1997, if the Closing shall not have occurred by
such date, PROVIDED, HOWEVER, that if the basis for any such termination is the
failure of the Merger to be consummated by June 30, 1997 (the "Termination
Date"), and the parties to the Acquisition Agreement agree to extend the
Termination Date to any subsequent date on one or more occasions, then no party
shall be permitted to terminate this Agreement until such subsequent date;
b. The Closing Date, if the acquisition of Carnival by Pan Am
shall qualify for treatment as a "pooling of interests" for accounting purposes;
or
c. The date which is three years from the Closing Date.
6. NOTICES. Any notice or other communication under this
Agreement shall be in writing and shall be delivered personally or sent by
registered mail, return receipt requested, postage prepaid, by prepaid
overnight courier or by telecopier, facsimile or other electronic means (with
a confirming copy by registered or certified mail, postage prepaid) to the
parties at the addresses set forth below their names on the signature pages
of this Agreement (or at such other addresses as shall be specified by the
parties by like notice). Such notices, demands, claims and other
communications shall be deemed given when actually received or (i) in the
case of delivery by overnight service with guaranteed next day delivery, the
next day or the day designated for delivery or (ii) in the case of registered
U.S. mail, five days after deposit in the U.S. mail. A copy of any notices
delivered to the Shareholder shall also be sent to Arnaldo Perez, Esq., 3655
N.W. 36th Street, Miami, Florida 33178 and to Bruce Macdonough, Esq.,
Greenberg Traurig Hoffman Lipoff Rosen & Quentel, P.A., 1221 Brickell Avenue,
Suite 2100, Miami, Florida 33131. A copy of any notices delivered to Pan Am
shall also be sent to John J. Ogilby, Jr., Esq., 9300 N.W. 36th Street,
Miami, Florida, 33178 and to Teddy D. Klinghoffer, Esq., Stearns Weaver
Miller Weissler Alhadeff & Sitterson, P.A., Suite 2200, 150 West Flagler
Street, Miami, Florida, 33130.
7. MISCELLANEOUS.
a. ENTIRE AGREEMENT. This Agreement contains every obligation
and understanding between the parties relating to the subject matter hereof and
merge all prior discussions, negotiations and agreements, if any, between them,
and none of the parties shall be bound by any representations, warranties,
covenants, or other understandings, other than as expressly provided or referred
to herein.
b. ASSIGNMENT. This Agreement may not be assigned by any party
without the written consent of the other party. Subject to the preceding
sentence, this Agreement shall be binding upon and inure to the benefit of the
parties hereto and their respective successors, heirs, personal representatives,
legal representatives, and permitted assigns.
c. WAIVER AND AMENDMENT. Any representation, warranty,
covenant, term or condition of this Agreement which may legally be waived, may
be waived, or the time of performance thereof extended, at any time by the party
hereto entitled to the benefit thereof,
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<PAGE>
and any term, condition or covenant hereof may be amended by the parties hereto
at any time. Any such waiver, extension or amendment shall be evidenced by an
instrument in writing executed on behalf of the appropriate party and, in the
case of Pan Am, by a person who has been authorized by Pan Am's Board of
Directors to execute waivers, extensions or amendments on its behalf. No waiver
by any party hereto, whether express or implied, of its rights under any
provision of this Agreement shall constitute a waiver of such party's rights
under such provisions at any other time or a waiver of such party's rights under
any other provision of this Agreement. No failure by any party hereto to take
any action against any breach of this Agreement or default by another party
shall constitute a waiver of the former party's right to enforce any provision
of this Agreement or to take action against such breach or default or any
subsequent breach or default by such other party.
d. NO THIRD PARTY BENEFICIARY. Nothing expressed or implied in
this Agreement is intended, or shall be construed, to confer upon or give any
Person other than the parties hereto and their respective successors and
permitted assigns, any rights or remedies under or by reason of this Agreement.
e. SEVERABILITY. In the event that any one or more of the
provisions contained in this Agreement shall be declared invalid, void or
unenforceable, the remainder of the provisions of this Agreement shall remain in
full force and effect, and such invalid, void or unenforceable provision shall
be interpreted as closely as possible to the manner in which it was written.
f. HEADINGS. The section and other headings contained in this
Agreement are for reference purposes only and shall not affect the meaning or
interpretation of any provisions of this Agreement.
g. COUNTERPARTS. This Agreement may be executed in any number
of counterparts, each of which shall be deemed an original but all of which
together shall constitute one and the same instrument. Any telecopied version
of any manually executed signature page shall be deemed a manually executed
original.
h. LITIGATION; PREVAILING PARTY. In the event of any
litigation with regard to this Agreement, the prevailing party shall be entitled
to receive from the non-prevailing party and the non-prevailing party shall pay
upon demand all reasonable fees and expenses of counsel for the prevailing
party.
i. INJUNCTIVE RELIEF. It is possible that remedies at law may
be inadequate and, therefore, the parties hereto shall be entitled to equitable
relief including, without limitation, injunctive relief, specific performance or
other equitable remedies in addition to all other remedies provided hereunder or
available to the parties hereto at law or in equity.
j. REMEDIES CUMULATIVE. No remedy made available by any of the
provisions of this Agreement is intended to be exclusive of any other remedy,
and each and every remedy shall be cumulative and shall be in addition to every
other remedy given hereunder or now or hereafter existing at law or in equity.
k. PARTICIPATION OF PARTIES; CONSTRUCTION. The parties hereto
acknowledge that this Agreement and all matters contemplated herein, have been
negotiated among all parties hereto and their respective legal counsel and that
all such parties have
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participated in the drafting and preparation of this Agreement from the
commencement of negotiations at all times through the execution hereof. This
Agreement shall be construed and interpreted without regard to presumption or
other rule or interpretation against the party who may have had primary
responsibility for drafting this Agreement.
l. GOVERNING LAW. This Agreement has been entered into and
shall be construed and enforced in accordance with the laws of the State of
Florida without reference to the choice of law principles thereof.
m. JURISDICTION AND VENUE. This Agreement shall be subject to
the exclusive jurisdiction of the courts of Dade County, Florida, which shall be
the exclusive jurisdiction and venue for disputes, actions or lawsuits arising
out of or relating to this Agreement or the transactions contemplated hereby.
The parties to this Agreement agree that any breach of any term or condition of
this Agreement shall be deemed to be a breach occurring in the State of Florida
by virtue of a failure to perform an act required to be performed in the State
of Florida and irrevocably and expressly agree to submit to the jurisdiction of
the courts of the State of Florida for the purpose of resolving any disputes
among the parties relating to this Agreement or the transactions contemplated
hereby. The parties irrevocably waive, to the fullest extent permitted by law,
any objection which they may now or hereafter have to the laying of venue of any
suit, action or proceeding arising out of or relating to this Agreement, or any
judgment entered by any court in respect hereof brought in the State of Florida,
and further irrevocably waive any claim that any suit, action or proceeding
brought in the State of Florida has been brought in an inconvenient forum.
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IN WITNESS WHEREOF, the parties hereto have each executed and delivered
this Agreement as of the day and year first above written.
PAN AM CORPORATION
By:________________________________
SHAREHOLDERS:
___________________________________
MICKY ARISON
THE MICKY ARISON 1995
AIR HOLDING TRUST
By: JMD Delaware, Inc., as trustee
By:________________________________
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