SHAREHOLDERS AGREEMENT Among LAN AIRLINES S.A., TAM S.A., TEP CHILE S.A. and [HOLDCO 1] Dated as of ______, 2011
Exhibit
99.8
FORM OF
EXECUTION VERSION
|
SHAREHOLDERS
AGREEMENT
Among
LAN
AIRLINES S.A.,
XXX
X.X.,
TEP
CHILE S.A.
and
[HOLDCO
1]
Dated
as of ______, 2011
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TABLE
OF CONTENTS
Page
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ARTICLE
I
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GOVERNANCE
OF TAM
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SECTION
1.01
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Scope of the Agreement
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1
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SECTION
1.02
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Role and Composition of the TAM
Board
|
2
|
|
SECTION
1.03
|
Removal and Vacancies
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2
|
|
SECTION
1.04
|
Enabling Provisions
|
3
|
|
SECTION
1.05
|
TAM Chairman
|
3
|
|
SECTION
1.06
|
Meetings of the TAM Board
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3
|
|
SECTION
1.07
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Quorum
|
4
|
|
SECTION
1.08
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TAM Board Voting
Requirements
|
4
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SECTION
1.09
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Board Supermajority Matters
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4
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SECTION
1.10
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Shareholder Required Vote
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6
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SECTION
1.11
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Shareholder Supermajority
Matters
|
6
|
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SECTION
1.12
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TAM Subsidiaries
|
7
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SECTION
1.13
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Required Actions
|
7
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ARTICLE
II
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TAM
GROUP DIRETORIA
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SECTION
2.01
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Role of Management
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8
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SECTION
2.02
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TAM Chief Executive Officer
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8
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SECTION
2.03
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TAM Chief Financial Officer
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9
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SECTION
2.04
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Other
Members of the TAM Diretoria
|
9
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SECTION
2.05
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TAM Linhas Aereas S.A.
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9
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ARTICLE
III
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ACCOUNTING,
BOOKS AND RECORDS
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SECTION
3.01
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Fiscal Year
|
10
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SECTION
3.02
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Accountants
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10
|
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SECTION
3.03
|
Financial Statements
|
10
|
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SECTION
3.04
|
Books and Records
|
10
|
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SECTION
3.05
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Access to Information, Audit and
Inspection
|
11
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SECTION
3.06
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Annual Budget and Business
Plan
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12
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ARTICLE
IV
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GENERAL
PROVISIONS
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SECTION
4.01
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Term of Agreement
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13
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- i
-
SECTION
4.02
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Fees and Expenses
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13
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SECTION
4.03
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Governing Law
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13
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SECTION
4.04
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Definitions
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13
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SECTION
4.05
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Severability
|
16
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SECTION
4.06
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Amendment; Waiver
|
16
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SECTION
4.07
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Assignment
|
16
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SECTION
4.08
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No Third-Party
Beneficiaries
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16
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SECTION
4.09
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Notices
|
16
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SECTION
4.10
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Specific Enforcement; Consent to
Jurisdiction
|
18
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SECTION
4.11
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WAIVER OF JURY TRIAL
|
18
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SECTION
4.12
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Counterparts
|
19
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SECTION
4.13
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Interpretation
|
19
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SECTION
4.14
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Filing Requirement.
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19
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|
Schedule
4.06
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Annual
Budget and Business Plan Requirements
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INDEX OF DEFINED
TERMS
Page
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Accountants
|
10
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Actions
|
13
|
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Affiliate
|
13
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Agreed
Courts
|
18
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Agreed
Issues
|
18
|
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Agreement
|
1
|
|
Airline
Subsidiaries
|
7
|
|
Annual
Budget and Business Plan
|
12
|
|
Approved
Plans
|
4
|
|
beneficial
ownership
|
14
|
|
board
member
|
14
|
|
Board
Representative Election Notice
|
2
|
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Board
Representatives
|
2
|
|
Board
Supermajority Matter
|
4
|
|
business
day
|
14
|
|
contract
|
14
|
|
Control
|
14
|
|
Convertible
Securities
|
14
|
|
Departure
|
2
|
|
Effective
Time
|
2
|
|
Equity
Securities
|
14
|
|
Fiscal
Year
|
10
|
|
Foreign
Ownership Control Laws
|
14
|
|
Governmental
Entity
|
14
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Holdco
1
|
1
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IFRS
|
10
|
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LATAM
|
1
|
|
LATAM
Group
|
14
|
|
Law
|
14
|
|
Majority
Board Vote
|
4
|
|
Multi-Year
Business Plan
|
12
|
|
Order
|
15
|
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Organizational
Documents
|
15
|
|
Parties
|
1
|
|
Person
|
15
|
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Related
Party
|
15
|
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Representatives
|
15
|
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Shareholder
Supermajority Matter
|
6
|
|
Shareholders
|
1
|
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Subsidiary
|
15
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Supermajority
Board Vote
|
4
|
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Supermajority
Shareholder Vote
|
6
|
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TAM
|
1
|
|
TAM
Board
|
2
|
|
TAM
CCO
|
9
|
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TAM
CEO
|
8
|
|
TAM
CFO
|
9
|
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TAM
Chairman
|
3
|
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TAM
Company
|
4
|
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TAM
COO
|
9
|
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TAM
Diretoria
|
8
|
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TAM
Group
|
8
|
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TAM
Ordinary Stock
|
1
|
|
TAM
Preferred Stock
|
1
|
|
TAM
Stock
|
1
|
|
Tax
Return
|
11
|
|
TEP
|
1
|
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U.S.
Exchange Act
|
15
|
|
Voting
Securities
|
|
15
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SHAREHOLDERS
AGREEMENT, dated as of ________, 2011 (this “Agreement”),
among LAN AIRLINES S.A., a company organized under the Law of Chile (“LATAM”),
[HOLDCO1], a company organized under the Law of Chile (“Holdco 1”
and, together with LATAM, the “Shareholders”),
TEP Chile S.A., a company organized under the Law of Chile (“TEP”), and XXX X.X., a company
organized under the Law of Brazil (“TAM”
and, together with the Shareholders and TEP, the “Parties”).
WITNESSETH
WHEREAS,
as of the Effective Time (as defined below), Holdco 1 will own 100%
of the shares of ordinary stock, no par value (the “TAM
Ordinary Stock”), of TAM and LATAM will own 100% of the shares of the
non-voting preferred stock, no par value (the “TAM
Preferred Stock” and, together with the TAM Ordinary Stock, the “TAM
Stock”), of TAM, which collectively will constitute all of the issued and
outstanding shares of capital stock of TAM;
WHEREAS,
as of the Effective Time, TEP and LATAM collectively will own 100% of the
outstanding voting shares of Holdco 1;
WHEREAS,
the Parties desire to enter into this Agreement to set forth the terms and
conditions upon which they have agreed to hold their shares of TAM Stock,
including with respect to the voting thereof, as well as their agreements with
respect to governance, management and operation of TAM and its Subsidiaries and
certain other matters; and
WHEREAS,
each of LATAM and Holdco 1 has determined and declared that the execution and
delivery of this Agreement is in its best interests, and the execution, delivery
and performance of this Agreement by it have been duly authorized by its board
of directors and all other necessary corporate action on the part of
it.
NOW,
THEREFORE, in consideration of the covenants and agreements contained herein and
for other good and valuable consideration, the receipt of which is hereby
acknowledged, the Parties agree as follows:
ARTICLE
I
GOVERNANCE
OF TAM
SECTION
1.01 Scope of the
Agreement;
Effective Time. The Parties desire to set forth in this Agreement
certain terms and conditions upon which the shares of TAM Stock will be held,
including with respect to the voting thereof, as well as their agreements with
respect to governance, management and operation of TAM and its Subsidiaries and
certain other matters. In the event of any inconsistency or conflict
between the provisions of this Agreement and the other Organizational Documents
of TAM or any of its Subsidiaries, this Agreement shall control and the Parties
shall use their commercially reasonable efforts to amend any such Organizational
Documents to conform to the provisions of this Agreement and to exercise their
rights under such Organizational Documents to give effect to such
provisions. This Agreement shall become effective only if, and at that
time at which, Holdco 1 becomes a holder of at least 80% of the outstanding
shares of TAM Ordinary Stock (the “Effective
Time”). All actions required to be taken or performed under this
Agreement shall be taken or performed in accordance with applicable
Law.
SECTION
1.02 Role and Composition of the
TAM
Board. The business and affairs of TAM shall be managed under the
direction of the board of directors of TAM (the “TAM
Board”) in accordance with the applicable provisions of the
Organizational Documents of TAM. The TAM Board shall be comprised of six
board members to be elected by Holdco 1. Holdco 1 agrees to elect two
individuals selected by LATAM and four individuals selected by TEP as the six
board members of TAM (each person so selected by LATAM or TEP is referred to
herein as one of their “Board
Representatives”). The term of office for the board members of TAM
shall be two years. If at any time LATAM is permitted under applicable Law
to select more than two Board Representatives on the TAM Board, then LATAM shall
have the right, exercisable in its sole discretion, in whole or in part, at any
time or from time to time, to cause Holdco 1 to elect additional Board
Representatives to the TAM Board by providing written notice of such election to
Holdco 1 (each, a “Board
Representative Election Notice”); provided, however, that notwithstanding
the foregoing LATAM shall not have the right to deliver any Board Representative
Election Notice that would result in it selecting half or a majority of the
members of the TAM Board unless at such time LATAM is permitted under applicable
Law in Brazil and other applicable Law to own a majority of the outstanding
voting shares of Holdco 1. Promptly following delivery of any Board
Representative Election Notice to Holdco 1, Holdco 1 shall cooperate with LATAM
and shall take or cause to be taken all actions (including by calling a special
meeting of shareholders of TAM to elect the additional individuals selected by
LATAM for election to the TAM Board), and do or cause to be done all things
reasonably necessary, proper or advisable on its part under the other
Organizational Documents of TAM and applicable Law to permit LATAM to increase
its representation on the TAM Board pursuant to this Section 1.02. Without
limitation of the foregoing, Holdco 1 agrees to cause one or more of TEP’s Board
Representatives to resign from the TAM Board promptly following request therefor
from LATAM in order to effectuate the purpose of this Section 1.02.
SECTION
1.03 Removal and
Vacancies. In the event
of any vacancy on the TAM Board resulting from the resignation, incapacity,
retirement, death or removal (each, a “Departure”)
of any Board Representative of LATAM or TEP, such party shall have the right to
select another individual to replace such Board Representative on the TAM
Board. In such event, Holdco 1 shall cause a special meeting of the
shareholders of TAM to be held to elect such replacement to the TAM Board and at
such meeting shall elect such replacement to the TAM Board to serve until the
next annual meeting of the shareholders of TAM. If at any time any Board
Representative of LATAM or TEP ceases to be a board member of Holdco 1, Holdco 1
shall promptly cause him or her to resign or to be removed from the TAM Board
and Holdco 1 will replace such Board Representative on the TAM Board pursuant to
the foregoing procedures.
– 2
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SECTION
1.04 Enabling
Provisions.
(a) Holdco
1 agrees that it shall vote, or cause to be voted or execute written consents
for, as the case may be, all shares of TAM Ordinary Stock beneficially owned by
it, and shall take all other action reasonably necessary (including by causing
TAM to call a special meeting of shareholders or the TAM Chairman to call a
special meeting of the TAM Board, as applicable) so as to give effect to the
agreements with respect to representation on the TAM Board contained in this
Article I and to ensure that the by-laws of TAM (i) facilitate, enable and do
not at any time conflict with any provision of this Agreement and (ii) permit
each of LATAM and TEP to receive the full benefits to which it is entitled under
this Agreement. Holdco 1 further agrees that it shall not take any action
directly as a shareholder of TAM, and each of LATAM and TEP agree it shall not
take any action indirectly through any of its Board Representatives, or
otherwise that would contravene or frustrate the implementation of these
agreements. Each of LATAM and TEP shall cause all of its Board Representatives,
and Holdco 1 shall cause each board member of TAM, to act at all times in
conformity with, and to take such action as may reasonably be required of and
available to them to ensure the fulfillment of, the terms of this Agreement and
the by-laws of TAM. TAM agrees not to take any action that would conflict
with or subvert the operation or enforcement of any provision of this Agreement
or that would impede any party’s ability to receive the full benefits to which
such party is entitled under this Agreement.
(b) Holdco
1 shall cause any and all shares of TAM Ordinary Stock beneficially owned by it
and entitled to vote at any meeting of shareholders of TAM to be present in
person or represented by proxy at all annual and special meetings of
shareholders of TAM to the extent necessary so that all shares of TAM Ordinary
Stock beneficially owned by it shall be counted as present for the purpose of
determining the presence of a quorum at such meeting. Each party agrees to
execute from time to time in the future any document or documents required by
Law to keep the agreements contained in this Section 1.04 in full force and
effect at all times throughout the term of this Agreement.
SECTION
1.05 TAM Chairman.
For so long as TEP is entitled to select at least one individual to be elected
as a board member of TAM, TEP shall have the right to designate from time to
time one of its Board Representatives to serve as the chairman of the TAM Board
(the “TAM
Chairman”). After any such designation, Holdco 1 shall cause the
TAM Board to appoint such Board Representative as the TAM Chairman in accordance
with the Organizational Documents of TAM. From and after the Effective
Time until the second anniversary of the Effective Time, the TAM Chairman shall
be Xxxxx Xxxxxxx Xxxxxxxx Xxxxx. In no event shall the TAM Chairman have a
casting vote with respect to any matter before the TAM Board.
SECTION
1.06 Meetings of the TAM
Board. Regular meetings of the TAM Board shall be held on a monthly
basis. Special meetings of the TAM Board may be called by the TAM Chairman
on not less than 48 hours’ notice to each board member of TAM, and such meetings
shall be called by the TAM Chairman with like notice and like manner promptly
after receipt of a written request for a special meeting of the TAM Board by any
one board member of TAM; provided, however, that
notwithstanding the foregoing a special meeting of the TAM Board may be so
called on any shorter notice permitted by applicable Law if necessary or
desirable in the particular circumstances.
– 3
–
SECTION
1.07 Quorum. The
quorum for any meeting of the TAM Board to be validly held shall be five board
members of TAM.
SECTION
1.08 TAM Board Voting
Requirements. Each board member of TAM shall have one vote on all
matters before the TAM Board. Any action by the TAM Board concerning a
Board Supermajority Matter as well as any other action required by applicable
Law or this Agreement to be approved by board members of TAM constituting more
than a simple majority of the board members of TAM must be approved by the
affirmative vote of five board members of TAM at a duly called meeting of the
TAM Board at which a quorum is present and acting throughout (each, a “Supermajority
Board Vote”). All actions by the TAM Board other than with respect
to Board Supermajority Matters must be approved by the affirmative vote of a
simple majority of the board members of TAM at a duly called meeting of the TAM
Board at which a quorum is present and acting throughout (each, a “Majority
Board Vote”).
SECTION
1.09 Board Supermajority
Matters. Notwithstanding any provision of this Agreement or the
other Organizational Documents of TAM or any of its Subsidiaries to the
contrary, neither TAM nor any of its Subsidiaries shall, and TAM shall not
permit any of its Subsidiaries to, engage in or take, directly or indirectly,
any of the following actions (each, a “Board
Supermajority Matter”), unless approved by a Supermajority Board
Vote:
(i) to
approve the Annual Budget and Business Plan and the Multi-Year Business Plan as
well as any amendment to any of the foregoing (collectively, to the extent so
approved, the “Approved
Plans”);
(ii) take
any action or agree to take any action that, individually or in the aggregate,
causes or is reasonably likely to cause any capital, operating or other
expense of TAM or any of its Subsidiaries (TAM and each such Subsidiary, a
“TAM
Company”) to be greater than (A) with respect to any action that would
affect the profit and loss statement, the lesser of 1% of revenue or 10% of
profit as set forth in the Approved Plans then in effect or (B) with respect to
any action that affects the cash flow statement, the lesser of 2% of assets or
10% of cash and cash equivalents (as defined by IFRS) as set forth in the
Approved Plans then in effect;
(iii) to
create (including by the acquisition of shares), dispose of or admit new
shareholders to any Subsidiary of any TAM Company, except to the extent
expressly contemplated in the Approved Plans then in effect;
(iv) to
approve the acquisition, disposal, modification or encumbrance by any TAM
Company of (a) any Equity Securities or Convertible Securities of any TAM
Company or any other companies, consortia, joint ventures or group of companies,
or (b) any other asset with a value greater than US$15,000,000, in each case
except to the extent expressly contemplated in the Approved Plans then in
effect;
– 4
–
(v) to
approve investments in any assets not related to the corporate purpose of any
TAM Company, except to the extent expressly contemplated in the Approved Plans
then in effect;
(vi) to
execute any kind of agreement or to enter into any kind of transaction in an
amount greater than US$15,000,000, or that may cause a material impact to any
TAM Company and/or its results, except to the extent expressly contemplated in
the Approved Plans then in effect;
(vii) to
execute any kind of agreement or to enter into any kind of transaction,
agreement or arrangement related to revenue or profit sharing agreements and any
other agreement for the implementation of joint ventures or business
collaborations, alliance memberships, codesharing agreements or other
arrangements of such nature whatsoever, except to the extent expressly
contemplated in the Approved Plans then in effect;
(viii) to
terminate, modify or waive any rights or claims of any TAM Company under
contracts or other arrangements in any amount greater than US$15,000,000, or
that may cause a material impact to any TAM Company and/or its results, except
to the extent expressly contemplated in the Approved Plans then in
effect;
(ix) to
commence, participate in, compromise or settle any material action with respect
to any litigation, judicial, administrative or arbitration proceeding relating
to any TAM Company, in an amount greater than US$15,000,000 or that could
reasonably be expected to cause a material impact to any TAM Company and/or its
results, except to the extent expressly contemplated in the Approved Plans then
in effect;
(x) to
approve the execution, amendment, termination or ratification of acts or
agreements with Related Parties, except to the extent expressly contemplated in
the Approved Plans then in effect;
(xi) to
approve the financial statements of any TAM Company or any amendments thereto or
any dividend, accounting and tax policy or principles of any TAM Company, as
well as the appointment and removal of the Accountants;
(xii) to
approve the grant of any kind of security interest or guarantees to secure
obligations of third parties (including Related Parties);
(xiii) to
appoint any executive other than the TAM Diretoria or to re-elect the
then current TAM CEO or TAM CFO; and
(xiv) approve
any vote to be cast by any TAM Company in the shareholders meetings, quotaholder
meetings and board meetings of its Subsidiaries, including approval of any of
the matters set forth in Section 1.11 involving any Subsidiary of TAM (being any
reference to TAM thereunder applicable to the respective TAM
Company).
– 5
–
SECTION
1.10 Shareholder Required
Vote. Any action by the shareholders of TAM concerning a
Shareholder Supermajority Matter as well as any other action required by
applicable Law or this Agreement to be approved by more than a simple majority
of the holders of the then issued and outstanding shares of TAM Ordinary Stock
or TAM Stock must be approved by the affirmative vote of the holders of shares
representing at least 85% of the total number of shares of TAM Ordinary Stock or
TAM Stock, as the case may be, then issued and outstanding at a duly called
meeting of the shareholders of TAM at which a quorum is present and acting
(each, a “Supermajority
Shareholder Vote”). All actions other than Shareholder
Supermajority Matters must be approved by the affirmative vote of the holders of
shares constituting a simple majority of the issued and outstanding shares of
TAM Ordinary Stock at a duly called meeting of the shareholders of TAM at which
a quorum is present and acting throughout.
SECTION
1.11 Shareholder Supermajority
Matters. Notwithstanding any provision of this Agreement or the
Organizational Documents of TAM or any of its Subsidiaries to the contrary,
neither TAM nor any of its Subsidiaries shall, and TAM shall not permit any of
its Subsidiaries to, engage in or take, directly or indirectly, any of the
following actions unless approved by a Supermajority Shareholder Vote (each, a
“Shareholder
Supermajority Matter”):
(i) to
approve any amendments to the by-laws of any TAM Company in respect of the
following matters: (A) the corporate purpose, (B) the corporate capital,
(C) the rights inherent to each class of shares and to the shareholders of
any TAM Company, (D) the attributions of the shareholders regular meetings or
any limitation to attributions of the board of directors of any TAM Company, (E)
increase or decrease in the number of board members and officers of any TAM
Company, (F) the term of any TAM Company, (G) the change of the corporate
headquarters of any TAM Company, (H) preemptive rights, (I) the
composition, attributions and liabilities of the management of any TAM Company,
and (J) dividends and other distributions;
(ii) to
approve the dissolution, liquidation and winding up of TAM;
(iii) to
approve the transformation, merger, spin-up, or any kind of corporate
reorganization of TAM;
(iv) to
pay or distribute dividends or any other kind of distributions, including
interest on capital, to the shareholders of TAM; and
(v) to
approve the issuance, redemption or amortization of any debt securities, Equity
Securities or Convertible Securities into shares of TAM.
– 6
–
SECTION
1.12 TAM
Subsidiaries.
(a) Airline
Subsidiaries. With respect to each Subsidiary of TAM that is
subject to the Foreign Ownership Control Laws (collectively, “Airline
Subsidiaries”), all provisions relating to the governance and operations
of such Subsidiary shall be identical to the provisions contained herein
relating to the governance and operations of TAM, including, in the case of any
such Subsidiaries that are managed by a board of directors, the provisions
governing the composition and operation of such boards of directors (excluding
those provisions relating to the dates for and frequency of meetings and actions
requiring a Supermajority Board Vote or a Supermajority Shareholder
Vote).
(b) Other
Subsidiaries. Except as otherwise specified in this Section
1.12(b), with respect to each Subsidiary of TAM other than an Airline
Subsidiary, the provisions relating to the governance and operations of such
Subsidiary shall be identical to the provisions contained herein relating to the
governance and operations of TAM, including, in the case of any such
Subsidiaries that are managed by a board of directors, the provisions governing
the composition and operation of such boards of directors (excluding those
provisions relating to the dates for and frequency of meetings and actions
requiring a Supermajority Board Vote or a Supermajority Shareholder Vote).
With respect to any such Subsidiaries that are wholly-owned by TAM, the board of
directors of any such Subsidiary shall be comprised of an equal number of board
members of such Subsidiary selected by each of LATAM and TEP and all actions of
the board of directors of any such Subsidiary must be approved by the
affirmative vote of a majority of the board members of such Subsidiary thereof
at a duly called meeting of such board of directors at which a quorum is present
and acting throughout. With respect to any such Subsidiary that is not
wholly owned by TAM, each of LATAM and TEP shall have the right to elect an
equal number of board members of any such Subsidiary (unless TAM and/or its
Subsidiaries have the right to elect an odd number of board members of such
Subsidiary, in which case LATAM shall have the right to select the last board
member), and the board members elected to any such Subsidiary shall not take any
action unless and until all of such board members selected by LATAM and TEP have
been elected and agree to take such action.
(c) Notwithstanding
the foregoing provisions of this Section 1.12, if any requirement in clause (a)
or (b) in this Section 1.12 would conflict with applicable Law as it applies to
any Subsidiary of TAM or materially limit the business or operations of any such
Subsidiary, then the Shareholders shall discuss and agree how to modify such
requirements in respect of such Subsidiary in order to comply with Law or avoid
such material limitation.
SECTION
1.13 Required
Actions. Each of TAM and each of its Subsidiaries shall exercise
all rights it has as a shareholder of each of its respective Subsidiaries in an
effort to cause such Subsidiary to comply with the requirements of this
Agreement; provided,
however, that the
foregoing sentence shall not be construed to require TAM or any of its
Subsidiaries to take, and in exercising such rights none of them will take, any
action that would cause any board member of each such respective Subsidiary to
breach his or her fiduciary duties.
– 7
–
ARTICLE
II
TAM
GROUP DIRETORIA
SECTION
2.01 Role of
Management.
(a) Management of
TAM. The day-to-day business and affairs of TAM shall be
managed by the TAM Diretoria (as defined below)
under the oversight of the TAM Board. The Diretoria of TAM shall be
comprised of the TAM CEO, the TAM CFO, the TAM COO and the TAM CCO
(collectively, the “TAM
Diretoria”).
The term of office for each of the members of the TAM Diretoria shall be two
years.
SECTION
2.02 TAM Chief Executive
Officer. As of the Effective Time, Xxxxx Xxxxxxx will be the chief
executive officer (Diretor
Presidente) of TAM and its Subsidiaries (collectively, the “TAM
Group”, and such chief executive officer, the “TAM
CEO”). The TAM CEO shall have general supervision, direction and
control of the business and operations of the TAM Group and shall carry out all
orders and resolutions of the TAM Board. Without limitation of the
foregoing, the TAM CEO shall have the following responsibilities:
(i) conducting
the day-to-day management of the TAM Group;
(ii) serving
as the company officer of the TAM Group and as the representative of the LATAM
Group before all Governmental Entities in Brazil, including the Brazilian
government and National Civil Aviation Agency of Brazil (Agência Nacional de
Aviação, or ANAC);
(iii) together
with the chief executive officer (Vice Presidente Ejecutivo) of
LATAM and the chief operating officer (Gerente General) of LATAM,
implementing the integration of LATAM and its Subsidiaries and TAM and its
Subsidiaries; and
(iv) serving
as a senior participant in all business unit and function committees of the
LATAM Group.
The term
of the TAM CEO shall be two years. Subject to Section 1.09(xiii), the
TAM CEO shall be reelected at the end of his or her current term unless a
Departure of the TAM CEO occurs prior to the end of such current term. In
the case of any election other than a re-election of the then current TAM CEO,
TEP shall recommend to LATAM in writing three potential candidates for
appointment by the TAM Board as the TAM CEO. Any potential candidates for
the office of the TAM CEO shall be recommended by, or shall have received a
favorable evaluation from, one of the three then-leading executive search
companies in Brazil. Prior to the next regular meeting of the TAM Board,
LATAM shall notify TEP and Holdco 1 in writing of its selection of one
individual from among the list of three potential candidates provided by TEP for
appointment as the TAM CEO, and promptly thereafter TEP and LATAM shall each
cause their respective Board Representatives, and Holdco 1 shall cause the board
members of TAM, to approve the candidate as the next TAM CEO.
– 8
–
SECTION
2.03 TAM Chief Financial
Officer. The TAM CFO shall be in charge of all financial matters
pertaining to TAM and its Subsidiaries and shall have such other duties as may
be determined, from time to time, by the TAM Board or the TAM CEO. The TAM
CFO shall report directly to the TAM CEO. Prior to the Effective Time,
LATAM and TEP shall agree upon the individual to serve as the initial chief
financial officer of TAM (the “TAM
CFO”). The term of the TAM CFO shall be two years. Subject to
Section 1.09(xiii), the TAM CFO shall be reelected at the end of his or her
current term unless a Departure of the TAM CFO occurs prior to the end of such
current term. In the case of any election other than the re-election of
the then current TAM CFO, LATAM shall recommend to TEP in writing three
potential candidates for appointment by the TAM Board as the TAM CFO. Any
potential candidates for the office of the TAM CFO shall be recommended by, or
shall have received a favorable evaluation from, one of the three then-leading
executive search companies in Brazil and in selecting such candidates, LATAM
shall be guided by the following principles: (a) alignment with the
strongest performing leader, i.e., the best of breed;
(b) maximization of synergy value capture; (c) conforming to local
regulations and culture; and (d) simplest and easiest execution. Prior to
the next regular meeting of the TAM Board, TEP shall notify Holdco 1 and LATAM
in writing of its selection of one individual from among the list of three
potential candidates provided by LATAM for appointment as the TAM CFO, and
promptly thereafter each of LATAM and TEP shall each cause their respective
Board Representatives, and Holdco 1 shall cause the board members of TAM, to
vote to approve the candidate as the next TAM CFO.
SECTION
2.04 Other Members of the TAM
Diretoria.
Prior to the Effective Time, LATAM and TEP shall agree upon the individuals to
serve as the initial chief operating officer of TAM (“TAM
COO”) and the chief commercial officer of TAM (“TAM
CCO”). From and after the Effective Time, potential candidates for
offices of each of the TAM COO and TAM CCO shall be jointly selected and
recommended to the TAM Board by the TAM CEO and the TAM CFO and shall be
approved by a Majority Board Vote of the TAM Board. LATAM and TEP each
agrees to cause their respective Board Representatives, and Holdco 1 agrees to
cause the board members of TAM, to act through the relevant governing body to
vote to approve the candidates for the offices of TAM COO and TAM CCO selected
jointly by the TAM CEO and the TAM CFO.
SECTION
2.05 TAM Linhas Aereas
S.A.
The Diretoria of
TAM Linhas Aereas S.A. shall be comprised of the same individuals who comprise
the TAM Diretoria and
two other officers who shall be selected and appointed in accordance with
Section 2.04, mutatis
mutandis.
– 9
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ARTICLE
III
ACCOUNTING,
BOOKS AND RECORDS
SECTION
3.01 Fiscal Year.
The fiscal year of TAM and its Subsidiaries shall end on December 31 in each
year (the “Fiscal
Year”).
SECTION
3.02 Accountants.
Unless and until removed or changed by Supermajority Board Vote, the independent
public accountants for the TAM Group shall be PricewaterhouseCoopers LLP (the
“Accountants”).
SECTION
3.03 Financial
Statements. From and after the Effective Time, TAM shall prepare
and deliver (or cause to be prepared and delivered) to each Shareholder the
following financial reports with respect to TAM and its Subsidiaries on a
consolidated basis and for Multiplus S.A. on a stand-alone basis:
(i) within
five business days after the end of each calendar month, monthly management
reports in a format approved by the TAM Board;
(ii) within
ten business days after the end of any of the first three fiscal quarters of
each Fiscal Year, an unaudited balance sheet as of the end of such fiscal
quarter and the related unaudited statements of operations, changes in
stockholders’ equity and cash flows for the fiscal quarter then ended and for
the period from the beginning of the then-current Fiscal Year to the end of such
fiscal quarter, in each case with comparative statements for the prior Fiscal
Year; and
(iii) within
thirty business days after the end of each Fiscal Year, an annual report,
including (x) a balance sheet as of the end of such Fiscal Year and the related
consolidated statements of operations, changes in stockholders’ equity and cash
flows for the Fiscal Year then-ended and audited in accordance with
International Financial Reporting Standards issued by the International
Accounting Standards Board (“IFRS”)
or such other accounting principles as the TAM Board may approve, in each case
with comparative statements for the prior Fiscal Year, and (y) a discussion of
the implementation of the Approved Plans as it relates to business strategy,
achievement of basic goals, revenues, expenses, executive compensation, capital
expenditures, financing, insurance, cash flows, appointment of agents or
advisers and strategic alliances.
SECTION
3.04 Books and
Records.
(a) TAM
shall keep, and shall cause each of its Subsidiaries to keep, in all material
respects, at their respective principal offices, full, complete and accurate
books and records with respect to the business and affairs of the TAM
Group. The books and records shall be maintained in a manner that provides
Shareholders with sufficient information so as to permit (i) the preparation of
consolidated financial statements for TAM and its Subsidiaries and financial
statements for Multiplus S.A. on a stand-alone basis, in each case in accordance
with IFRS, (ii) the Shareholders to account for their interests
in TAM and its Subsidiaries in their respective financial statements
in accordance with IFRS, and (iii) the preparation of all required tax returns
of TAM and its Subsidiaries and of the Shareholders.
– 10
–
(b) TAM
shall, as and when reasonably requested by any Shareholder, prepare and furnish
(or cause to be prepared and furnished) to such Shareholder, at the expense of
TAM, such financial and other data concerning the business and affairs of the
TAM Group as may be reasonably required by such Shareholder for tax, accounting,
reporting, oversight, or other legitimate business purposes of such Shareholder,
such information to be prepared on the basis and in the format that such
Shareholder may reasonably request in order to meet the requirements of its
accounting, tax and oversight and reporting systems or the requirements of
Law.
(c) TAM
shall, and shall cause each of its Subsidiaries to, retain for not less than ten
years and for such longer period as required by Law, all of their respective
books and records (including the books and records of predecessor businesses,
including those relating to periods prior to the Effective Time).
SECTION
3.05 Access to Information, Audit
and Inspection.
(a) Each
Shareholder and its Representatives shall have (and TAM shall cause its
Subsidiaries to provide such Shareholder and its Representatives with) full
access at reasonable times and during normal business hours to all books and
records for the TAM Group and their respective businesses (including those books
and records pertaining to periods prior to the Effective Time), including the
right to examine and audit any of such books and records and to make copies and
extracts therefrom. Each Shareholder shall bear all expenses incurred by
it and its Representatives in making any such examination on its behalf.
TAM shall, and shall cause each of its Subsidiaries to, make arrangements for
each Shareholder and its Representatives to have prompt access at reasonable
times and during normal business hours to its officers, board members and
employees to discuss the business and affairs of the TAM Group and the books and
records pertaining thereto. The provisions of this Section 3.05(a) shall
survive any termination of this Agreement and shall continue to apply to TAM and
its Subsidiaries and be enforceable by any Shareholder regardless of whether
such Shareholder ceases to beneficially own any shares of TAM Stock but only to
the extent that such books and records and such access to officers, board
members and other employees are reasonably requested by a Shareholder in
connection with any pending Action involving such Shareholder or any of its
Affiliates insofar as such matter relates to the business or affairs of TAM and
its Subsidiaries (including any matters relating to the business and affairs of
any predecessor businesses, including matters relating to periods prior to the
Effective Time).
– 11
–
(b) TAM
shall provide each Shareholder with copies of each completed annual tax return
required by Law to be filed by TAM or any of its Subsidiaries (each, a “Tax
Return”) at least twenty business days prior to the due date (including
any extensions of such due date) of the filing of such Tax Return, and each
Shareholder may review any such Tax Return prior to its filing with the
appropriate Governmental Entity. TAM shall consult with the Shareholders
and negotiate in good faith to resolve any issues arising as a result of the
Shareholders’ review of any such Tax Return. The Shareholders and TAM and
its Subsidiaries shall use all reasonable good faith efforts to resolve any
issue in dispute as promptly as practicable but in any event prior to the due
date for the filing of any such Tax Return. In the event that an issue
resulting from the review by a Shareholder of any such Tax Return remains in
dispute as of the due date for the filing of such Tax Return, such Tax Return
shall be filed with the appropriate Governmental Entity in accordance with the
recommendation of the Accountants.
SECTION
3.06 Annual Budget and Business
Plan.
(a) On
or prior to October 31st of each
calendar year, the TAM CEO and the TAM CFO shall prepare or cause to be
prepared, and shall submit for approval of the TAM Board, (i) a proposed
annual budget and business plan (each, an “Annual
Budget and Business Plan”) for the upcoming Fiscal Year and (ii) a
proposed five-year business plan for the next five Fiscal Years (each, a “Multi-Year
Business Plan”), in each case for TAM and its Subsidiaries on a
consolidated basis and for Multiplus S.A. on a stand-alone basis. Each of
the proposed Annual Budget and Business Plan and Multi-Year Business Plan shall
include all of the applicable items set forth in Schedule 3.06 and be in a
format acceptable to the TAM Board.
(b) The
TAM Board shall convene a meeting within fifteen business days after receipt of
the proposed Annual Budget and Business Plan and Multi-Year Business Plan for
the upcoming Fiscal Year from the TAM CEO to discuss whether and to what extent
to approve each of the foregoing for the upcoming Fiscal Year. If all or
any portion of any of the proposed Annual Budget and Business Plan or Multi-Year
Business Plan is not approved in all respects by a Supermajority Board Vote of
the TAM Board at any such meeting of the TAM Board or any adjournment thereof,
the TAM Chairman shall notify the TAM CEO in reasonable detail of the TAM
Board’s objections to the proposed Annual Budget and Business Plan and/or
Multi-Year Business Plan, as the case may be, and within thirty days following
the TAM CEO’s receipt of such notice, the TAM CEO and the TAM CFO shall
collaborate with two board members of TAM, one selected by TEP and another
selected by LATAM, to modify such Annual Budget and Business Plan and/or
Multi-Year Business Plan to address the comments and concerns of the TAM
Board. Within ten business days after receipt of any revised Annual Budget
and Business Plan and/or Multi-Year Business Plan from the TAM CEO, the TAM
Board shall convene a second meeting to discuss whether or not to approve the
same. If the TAM Board does not approve the adoption of any such proposed
Annual Budget and Business Plan and/or Multi-Year Business Plan in its entirety
because of disagreement on one or more line items set forth in the proposed
Annual Budget and Business Plan and/or Multi-Year Business Plan, as the case may
be, then the Multi-Year Business Plan for the current Fiscal Year shall be
deemed adopted as the Annual Budget and Business Plan for the upcoming Fiscal
Year.
(c) The
TAM Board shall cause TAM and its Subsidiaries to operate in accordance with,
and the officers and employees of TAM and its Subsidiaries to implement, any
Annual Budget and Business Plan and Multi-Year Business Plan for the
then-upcoming Fiscal Year approved by a Supermajority Board Vote of the TAM
Board and shall conduct, or cause to be conducted, the business of TAM and its
Subsidiaries in accordance with any such Annual Budget and Business Plan and/or
Multi-Year Business Plan, as the case may be.
– 12
–
ARTICLE
IV
GENERAL
PROVISIONS
SECTION
4.01 Term of
Agreement. Except as otherwise provided under applicable Law, this
Agreement shall continue in effect as to each of the Parties until (i) it is
terminated as to any Party by the written consent of all the Parties or (ii)
with respect to any Shareholder, the first day on which such Shareholder no
longer beneficially owns any shares of TAM Stock, whichever is sooner to
occur. The termination of this Agreement as to any Shareholder shall not
affect any of the rights and obligations of any of the other Parties with
respect to each other. In the event that this Agreement terminates as to
any Shareholder, thereafter such Shareholder shall have no further liability to
the other Parties or to any of their respective shareholders, board members,
officers, employees or other Affiliates and such other Parties shall have no
further liability to such Shareholder, in each case solely in respect of this
Agreement; provided,
however, that the
foregoing shall not apply to any provisions hereof that expressly survive the
termination of this Agreement (including Sections 3.05 and 4.02); and provided, further, that nothing herein
shall relieve any Party of any liability for any breach of this Agreement that
occurred prior to such termination.
SECTION
4.02 Fees and
Expenses. All fees and expenses incurred in connection with this
Agreement shall be paid by the Party incurring such fees or expenses. The
provisions of this Section 4.02 shall survive any termination of this
Agreement.
SECTION
4.03 Governing Law.
THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS
OF THE STATE OF NEW YORK WITHOUT REGARD TO THE CONFLICTS OF LAW PRINCIPLES
THEREOF; PROVIDED, HOWEVER, THAT NOTWITHSTANDING
THE FOREGOING THE AUTHORIZATION AND EXECUTION OF THIS AGREEMENT BY EACH PARTY
SHALL BE GOVERNED BY THE LAW OF ITS JURISDICTION OF INCORPORATION.
SECTION
4.04 Definitions.
For the purposes of this Agreement, the following terms shall have the meanings
assigned below:
(a) “Actions”
means any actions, suits, claims, allegations, hearings, proceedings,
arbitrations, mediations, audits, inquiries or investigations (whether civil,
criminal, administrative or otherwise).
(b) “Affiliate”
shall have the meaning assigned to such term in Rule 12b-2 under the U.S.
Exchange Act; provided,
however, that no
Shareholder shall be deemed to be an Affiliate of any other Shareholder or any
of its Affiliates solely by reason of this Agreement.
– 13
–
(c) “beneficial
ownership” (and its correlative phrases) shall have the meanings assigned
to such phrases in Rule 13d-3 promulgated under the U.S. Exchange Act (without
taking into account any rights of such Person or any of its Affiliates under
Section 1.04 hereof) if the references to “within 60 days” in Rule
13d-3(d)(1)(i) were omitted.
(d) “board
member” shall mean, with respect to any Person, any member of the board
of directors (or comparable governing body) of such Person.
(e) “business
day” shall mean any day that is not a Saturday, Sunday or a day on which
banking institutions are required or authorized by Law or executive order to be
closed in Santiago, Chile or São Paulo, Brazil.
(f) “contract”
shall mean any loan, credit agreement, bond, debenture, note, mortgage,
indenture, lease, supply agreement, license agreement, development agreement or
other contract, agreement, obligation, commitment or instrument or other legally
binding arrangement or understanding, whether written or oral.
(g) “Control” (and its correlative
terms) shall have the meanings assigned to such terms in Rule 12b-2
promulgated under the U.S. Exchange Act.
(h) “Convertible
Securities” means, with respect to any Person, any securities, options,
warrants or other rights of, or granted by, such Person or any of its Affiliates
that are, directly or indirectly, convertible into, or exercisable or
exchangeable for, any Equity Securities of such Person or any of its
Affiliates.
(i)
“Equity
Securities” means, with respect to any Person, any capital stock of, or
other equity interests in such Person.
(j)
“Foreign
Ownership Control Laws” shall mean any Law of Brazil or of any other
applicable jurisdiction that establishes limitations on equity ownership or
control by foreign nationals in respect of a Brazilian carrier or a foreign
airline which is a subsidiary of a Brazilian carrier.
(k) “Governmental
Entity” means any governmental, quasi-governmental or regulatory
authority, body, department, commission, board, bureau, agency, division, court,
organized securities exchange or other legislative, executive or judicial
governmental entity or instrumentality of any country, nation, republic,
federation or similar entity or any state, county, parish or municipality,
jurisdiction or other political subdivision thereof.
(l)
“LATAM
Group” means LATAM, Holdco 1, TAM and their respective
Subsidiaries.
(m) “Law”
means any statute, common law, ordinance, rule, regulation, agency requirement
or Order of, or issued, promulgated or entered into by or with, any Governmental
Entity.
– 14
–
(n) “Order”
means any order, decision, writ, injunction, decree, judgment, legal or
arbitration award, stipulation, license, permit or agreement issued, promulgated
or entered into by or with (or settlement or consent agreement subject to) any
Governmental Entity.
(o) “Organizational
Documents” shall mean, with respect to TAM and its Subsidiaries, this
Agreement and the by-laws or other comparable governing documents of such
Persons.
(p) “Person”
means any natural person, firm, corporation, partnership, company, limited
liability company, joint venture, association, trust, unincorporated
organization, Governmental Entity or other entity.
(q) “Related
Party” means (a) any Person that, individually or jointly with
other(s), directly or indirectly (i) controls TAM or any of its Subsidiaries;
(ii) is controlled by TAM or any of its Subsidiaries; or (iii) is controlled by
any Person that controls, individually or jointly with other(s), TAM or any of
its Subsidiaries; (b) any successor of the controlling shareholder of TAM or any
of its Subsidiaries, in the event of dissolution, capital decrease by the
delivery of shares to shareholders, spin-off and any other corporate
transaction; and (c) any board member, officer or manager of the companies
mentioned above.
(r) “Representatives,”
with respect to any Person, shall mean the board members, officers, employees,
auditors, accountants, legal counsel, financial advisors and other agents or
representatives of or to such Person and its Subsidiaries.
(s) “Subsidiary”
means, with respect to any Person, (i) a corporation in which such Person,
together with its Subsidiaries, beneficially owns Voting Securities of such
corporation which entitle them, collectively, to cast more than 50% of all the
votes entitled to be cast by the holders of all Voting Securities of such
corporation then outstanding in a general election of board members of such
corporation or (ii) any Person that is not a corporation in which such Person,
and/or one or more other Subsidiaries of such Person, directly or indirectly,
has a majority equity or voting interest or the power to direct the policies,
management and affairs thereof.
(t)
“U.S.
Exchange Act” shall mean the U.S. Securities Exchange Act of
1934.
(u) “Voting
Securities” means, with respect to any Person, any securities or other
equity or ownership interests in such Person which are entitled to vote
generally in the election of board members of such Person (or, if such Person is
not a corporation, the individuals who perform a similar function for such
Person).
– 15
–
SECTION
4.05 Severability.
The provisions of this Agreement shall be deemed severable and the invalidity or
unenforceability of any provision shall not affect the validity or
enforceability of the other provisions of this Agreement. If any provision
of this Agreement, or the application of such provision to any Person or any
circumstance, is invalid or unenforceable, (a) a suitable and equitable
provision shall be substituted therefor in order to carry out, so far as may be
valid and enforceable, the intent and purpose of such invalid or unenforceable
provision and (b) the remainder of this Agreement and the application of such
provision to other Persons or circumstances shall not be affected by such
invalidity or unenforceability, nor shall such invalidity or unenforceability
affect the validity or enforceability of such provision, or the application of
such provision, in any other jurisdiction.
SECTION
4.06 Amendment;
Waiver. This Agreement may be amended and any performance, term or
condition waived in whole or in part only by a writing signed by all Parties
affected by the amendment (in the case of an amendment) or by the Party against
whom the waiver is to be effective (in the case of a waiver). No failure
or delay by any Party in exercising any right, power or privilege hereunder
shall operate as a waiver thereof, nor shall any singular partial exercise of
such right, power or privilege preclude any other or further exercise thereof or
the exercise of any other right, power or privilege. Waiver by any Party
of any breach or failure to comply with any provision of this Agreement by
another Party shall not be construed as, nor shall constitute, a continuing
waiver of such provisions, or a waiver of any other breach of or failure to
comply with any other provisions of this Agreement.
SECTION
4.07 Assignment.
Neither this Agreement nor any of the rights, interests or obligations hereunder
shall be assigned, in whole or in part, by operation of Law or otherwise by any
of the Parties without the prior written consent of the other Parties, and any
purported assignment without such consent shall be null and void and of no force
or effect. Subject to the preceding sentence, this Agreement will be
binding upon, inure to the benefit of, and be enforceable by, the Parties and
their respective successors and permitted assigns.
SECTION
4.08 No Third-Party
Beneficiaries. Except as otherwise expressly stated herein, the
Parties hereby agree that the agreements and covenants set forth herein are
solely for the benefit of the other Parties in accordance with, and subject to
the terms of, this Agreement and that this Agreement is not intended to, and
does not, confer upon any Person other than the Parties any rights or remedies
hereunder, including the right to rely upon the representations and warranties
set forth herein.
SECTION
4.09 Notices. All
notices, requests, claims, demands, instructions and other communications or
documents given hereunder shall be in writing and shall be delivered personally
or sent by registered or certified mail (postage prepaid), facsimile or
overnight courier to the Parties at the following addresses (or at such other
address for a Party as shall be specified by like notice):
– 16
–
If to
LATAM, to:
Claro y
Cia.
Xxxxxxxxx
0000, xxxx 00,
Xxxxxxxx,
Xxxxx
Attention:
Xxxx Xxxxx Xxxxxxxxxx B.
Fax: x00
0 000 0000
xxxxxxxxxxxx@xxxxx.xx
with
copies (which shall not constitute notice) to:
Xxxxxxxx
& Xxxxxxxx LLP
000 Xxxxx
Xxxxxx
Xxx Xxxx,
XX 00000
Xxxxxx
Xxxxxx of America
Attention:
Xxxxxx Xxxxxx and Xxxxxx XxXxxxxxx
Fax: x0
000 000 0000
xxxxxxx@xxxxxxxx.xxx
xxxxxxxxxx@xxxxxxxx.xxx
If to TAM
or Holdco 1 to:
Turci
Advogados
Rua Xx.
Xxxxxx Xxxx xx Xxxxxx, 778
-1◦ andar
– cj.12
04530-0001
São Paulo
– SP
Brasil
Attention:
Xxxxxx Xxxxx
Fax: x00
00 0000 0000
xxxxx@xxxxx.xxx
with a
copy (which shall not constitute notice) to:
Xxxxxxxx
Chance US LLP
00 Xxxx
00xx Xxxxxx
Xxx Xxxx,
XX 00000
Attention:
Xxxxx Xxxxx and Xxxxx Xxxx
Fax: x0
000 000 0000
Xxxxx.Xxxxx@XxxxxxxxXxxxxx.xxx
Xxxxx.Xxxx@XxxxxxxxXxxxxx.xxx
Any
notice, request, claim, instruction or other communication or document given as
provided above shall be deemed given to the receiving party (i) if delivered
personally, upon actual receipt, (ii) if sent by registered or certified mail,
three business days after deposit in the mail, (iii) if sent by facsimile, upon
confirmation of successful transmission if within one business day after such
facsimile has been sent such notice, request, claim, instruction or other
communication or document is also given by one of the other methods described
above and (iv) if sent by overnight courier, on the next business day after
deposit with the overnight courier.
– 17
–
SECTION
4.10 Specific Enforcement;
Consent to Jurisdiction. The Parties agree that irreparable damage
would occur and that the Parties would not have any adequate remedy at Law in
the event that any of the provisions of this Agreement were not performed in
accordance with their specific terms or were otherwise breached. It is
accordingly agreed that the Parties shall be entitled to an injunction or
injunctions to prevent breaches of this Agreement and to enforce specifically
the terms and provisions of this Agreement, this being in addition to any other
remedy to which they are entitled at Law or in equity, without the necessity of
proving the inadequacy of monetary damages or of posting bond or other
undertaking, as a remedy and to obtain injunctive relief against any breach or
threatened breach hereof. In the event that any Action is brought in
equity to enforce the provisions of this Agreement, no Party shall allege, and
each Party waives the defense or counterclaim that there is an adequate remedy
at Law. Each of the Parties hereby irrevocably consents and submits itself
to the personal jurisdiction of the courts of the State of New York and the
federal courts of the United States of America located in the Borough of
Manhattan, The City of New York (collectively, the “Agreed
Courts”) solely in respect of the interpretation and enforcement of the
provisions of this Agreement, and the documents referred to herein and the
transactions contemplated by this Agreement (collectively, the “Agreed
Issues”), waives, and agrees not to assert, as a defense in any Action,
suit or proceeding in an Agreed Court with respect to the Agreed Issues that
such Party is not subject thereto or that such Action, suit or proceeding may
not be brought or is not maintainable in such Agreed Court or that the venue
thereof may not be appropriate or that this Agreement or any such document may
not be enforced in or by such Agreed Court, and the Parties irrevocably agree
that all claims with respect to any Action, suit or proceeding with respect to
the Agreed Issues shall be heard and determined only in an Agreed Court.
The Parties hereby consent to and grant to each Agreed Court jurisdiction over
the Person of such parties and, to the extent permitted by Law, over the subject
matter of any dispute with respect to the Agreed Issues and agree that mailing
of process or other papers in connection with any such Action or proceeding in
the manner provided in Section 4.09 or in such other manner as may be permitted
by Law shall be valid and sufficient service thereof.
SECTION
4.11 WAIVER OF JURY
TRIAL. EACH PARTY ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY
WHICH MAY ARISE UNDER THIS AGREEMENT IS LIKELY TO INVOLVE COMPLICATED AND
DIFFICULT ISSUES, AND THEREFORE EACH SUCH PARTY HEREBY IRREVOCABLY AND
UNCONDITIONALLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY
RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY SUIT, ACTION OR OTHER
PROCEEDING ARISING OUT OF THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED
HEREBY. EACH PARTY HERETO (I) CERTIFIES THAT IT HAS CONSIDERED THE
IMPLICATIONS OF THIS WAIVER AND MADE IT VOLUNTARILY AND THAT NO REPRESENTATIVE,
AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE,
THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF ANY ACTION, SUIT OR PROCEEDING,
SEEK TO ENFORCE THE FOREGOING WAIVER AND (II) ACKNOWLEDGES THAT IT AND THE
OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG
OTHER THINGS, THE MUTUAL WAIVER AND CERTIFICATIONS IN THIS
SECTION 4.11.
– 18
–
SECTION
4.12 Counterparts.
This Agreement may be executed in one or more counterparts (including by
facsimile), each of which shall be considered an original instrument and all of
which shall together constitute the same agreement. This Agreement shall
become effective when one or more counterparts have been signed by each of the
Parties and delivered to the other Parties.
SECTION
4.14 Filing
Requirement. A copy of this Agreement shall be filed at the
headquarters of TAM for all purposes of applicable Law.
– 19
–
IN
WITNESS WHEREOF, the Parties have caused this Agreement to be duly executed by
their respective officers thereunto duly authorized as of the date first above
written.
LAN
AIRLINES S.A.
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By:
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Name:
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Title:
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XXX
X.X.
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By:
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Name:
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Title:
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TEP
CHILE S. A.
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By:
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Name:
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Title:
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[HOLDCO
1]
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By:
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Name:
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Title:
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