SHAREHOLDERS AGREEMENT Between LAN AIRLINES S.A. and TEP CHILE S.A. Dated as of [•], 2011
Exhibit
99.6
|
FORM
OF EXECUTION VERSION
|
Between
LAN
AIRLINES S.A.
and
TEP
CHILE S.A.
Dated
as of [•], 2011
TABLE
OF CONTENTS
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Page
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ARTICLE
I
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||
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GOVERNANCE
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SECTION
1.01
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Scope
of the Agreement
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3
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SECTION
1.02
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Composition
of the LATAM Board
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3
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SECTION
1.03
|
Chairman
of LATAM Board
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3
|
|
SECTION
1.04
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LATAM
Committees
|
3
|
|
SECTION
1.05
|
Roles
of the LATAM CEO, the LATAM COO and the TAM CEO
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4
|
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SECTION
1.06
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Recommendations
to Shareholders of LATAM
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6
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SECTION
1.07
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Other
Key Executives of the LATAM Group
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6
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SECTION
1.08
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Group
Structure
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7
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SECTION
1.09
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Further
Action; Efforts
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7
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ARTICLE
II
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||
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GENERAL
PROVISIONS
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||
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SECTION
2.01
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Term
of Agreement
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7
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SECTION
2.02
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Fees
and Expenses
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7
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SECTION
2.03
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Governing
Law
|
7
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SECTION
2.04
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Definitions
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7
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SECTION
2.05
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Severability
|
9
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SECTION
2.06
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Amendment;
Waiver
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9
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SECTION
2.07
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Assignment
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9
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SECTION
2.08
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Entire
Agreement; No Third-Party Beneficiaries
|
10
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SECTION
2.09
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Notices
|
10
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SECTION
2.10
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Specific
Enforcement; Consent to Jurisdiction
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11
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SECTION
2.11
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WAIVER
OF JURY TRIAL
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12
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SECTION
2.12
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Counterparts
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12
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SECTION
2.13
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Interpretation
|
13
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SECTION
2.14
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Filing
Requirement.
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13
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Exhibit
A
LATAM Group Ownership Structure and Organizational
Structure
i
INDEX OF DEFINED
TERMS
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Page
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Affiliate
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7
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Agreed
Courts
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11
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Agreed
Issues
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11
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Agreement
|
1
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Xxxxx
Family
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1
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beneficial
ownership
|
8
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business
day
|
8
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Control
|
8
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Control
Group Shareholders Agreement
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2
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CVA
|
1
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Departure
|
3
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Effective
Time
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3
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Exchange
Offer
|
1
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Exchange
Offer Agreement
|
1
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Governmental
Entity
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8
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Holdco
1
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1
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Holdco
1 Board
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3
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Holdco
1 Group
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5
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Holdco
1 Group Boards
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3
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Holdco
1 Shareholders Agreement
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2
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IMDC
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1
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Implementation
Agreement
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1
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LATAM
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1
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LATAM
Board
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3
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LATAM
Board Committee
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3
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LATAM
CEO
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4
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LATAM
Chairman
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3
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LATAM
Common Stock
|
1
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LATAM
Controlling Shareholders
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1
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LATAM
COO
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5
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LATAM
Group
|
2
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|
Law
|
8
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Mergers
|
1
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|
Order
|
8
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Organizational
Documents
|
8
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Parties
|
1
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Person
|
8
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Second
Anniversary
|
3
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Shareholders
|
1
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2
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Subsidiary
|
8
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Supermajority
Action
|
6
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TAM
|
1
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TAM
Board
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3
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TAM
CEO
|
6
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2
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TEP
|
1
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TEP
Director
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3
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TEP
Parent
|
1
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Transaction
Agreements
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9
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U.S.
Exchange Act
|
9
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|
Voting
Securities
|
9
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ii
SHAREHOLDERS
AGREEMENT, dated as of ________, 2011 (this “Agreement”),
between LAN AIRLINES S.A., a company organized under the Law of Chile (“LATAM”),
and TEP Chile S.A., a company organized under the Law of Chile (“TEP” and
together with LATAM, the “Shareholders”
or the “Parties”).
WITNESSETH
WHEREAS,
as of the date of this Agreement Xxxxx Xxxxxxx Xxxxxxxx Xxxxx, Xxxxxxxx Xxxxx
Xxxxx, Xxxxx Xxxxxxx Xxxxxxxx Xxxxx and Xxxx Xxxxxxxxx Xxxxx (all such
individuals, collectively, the “Xxxxx
Family”)
collectively own 100% of the outstanding shares of TEP;
WHEREAS,
as of the date of this Agreement TAM Empreendimentos e Participações S.A., a
company organized under the Law of Brazil (“TEP
Parent”), is the controlling shareholder of XXX X.X., a company organized
under the Law of Brazil (“TAM”),
under the Law of Brazil and currently owns, directly or indirectly, ordinary
shares and preferred shares of TAM, which collectively constitute [•]% of the
issued and outstanding shares of capital stock of TAM and [•]% of the total
voting power of such capital stock;
WHEREAS,
LATAM, TAM, Costa Verde Aeronáutica S.A., a company organized under the Law of
Chile (“CVA”),
Inversiones Mineras del Cantábrico S.A., a company organized under the Law of
Chile (“IMDC”
and, together with CVA, the “LATAM
Controlling Shareholders”), TEP Parent and the Xxxxx
Family have entered into an Implementation Agreement, dated as of
January 18, 2011 (the “Implementation
Agreement”), and an Exchange Offer Agreement, dated as of January 18,
2011 (the “Exchange
Offer Agreement”), pursuant to which the outstanding shares of capital
stock of TAM will be acquired by LATAM and [Holdco 1], a newly formed company to
be organized under the Law of Chile (“Holdco
1”), pursuant to the contribution transaction, delisting exchange offer
(the “Exchange
Offer”) and the mergers described therein (collectively, the “Mergers”)
in exchange for shares of common stock, no par value (the “LATAM
Common Stock”), of LATAM;
WHEREAS,
after the Mergers, TEP will own at least 80% of the outstanding voting shares of
Holdco 1 and LATAM will own 100% of the outstanding non-voting shares of Holdco
1, no more than 20% of the outstanding voting shares of Holdco 1 and 100% of the
outstanding preferred shares of TAM;
WHEREAS,
immediately following the consummation of the transactions contemplated by the
Implementation Agreement and the Exchange Offer Agreement and assuming (only for
purposes of calculating the ownership percentages set forth therein) (i) all TAM
shareholders other than TEP fully participate in the Exchange Offer, (ii) none
of the holders of the outstanding shares of LATAM Common Stock exercise their
appraisal rights (derecho a
retiro) under the Law of Chile in respect of the Mergers and (iii) the
only shares of LATAM Common Stock and shares of TAM that will be outstanding
after such consummation are the shares issued in the Mergers and the shares
which are subscribed and fully paid for as of the date of the Implementation
Agreement (which excludes any shares issuable upon future exercises of stock
options), the ownership structure of LATAM, Holdco 1, TAM and their respective
Subsidiaries will be as set forth in Exhibit
A hereto;
WHEREAS,
the Parties desire to enter into this Agreement to set forth their agreements
with respect to governance, management and operation of, and the relationship
among, LATAM, Holdco 1, TAM and their respective Subsidiaries (collectively, the
“LATAM
Group”) and certain other matters;
WHEREAS,
concurrently with the execution and delivery of this Agreement, LATAM, TEP, TAM
and Holdco 1 are entering into a shareholders agreement, dated the date hereof
(the “TAM
Shareholders Agreement”), to set forth their agreement with respect to
the governance, management and operation of TAM and its
Subsidiaries;
WHEREAS,
concurrently with the execution and delivery of this Agreement, LATAM, TEP and
Holdco 1 are entering into a shareholders agreement, dated the date hereof (the
“Holdco 1
Shareholders Agreement”), to set forth their agreement with respect to
the governance, management and operation of Holdco 1;
WHEREAS,
contemporaneously with the execution and delivery of this Agreement, TEP and the
LATAM Controlling Shareholders are entering into a shareholders agreement, dated
the date hereof (the “Control
Group Shareholders Agreement,” and collectively with this Agreement, the
TAM Shareholders Agreement and the Holdco 1 Shareholders Agreement, the “Shareholders
Agreements”), pursuant to which the LATAM Controlling Shareholders, as
the continuing controlling shareholders of LATAM under the Law of Chile, will
make the concessions described therein to TEP;
WHEREAS,
the execution and delivery of this Agreement and the other Shareholders
Agreements are conditions to the commencement of the Exchange Offer and
consummation of the Mergers; and
WHEREAS,
LATAM has determined and declared that the execution and delivery of this
Agreement is in the best interests of LATAM, and the execution, delivery and
performance of this Agreement by LATAM have been duly authorized by the LATAM
Board and all other necessary corporate action on the part of
LATAM.
NOW,
THEREFORE, in consideration of the representations and warranties, covenants and
agreements contained herein and in the Implementation Agreement and the Exchange
Offer Agreement, and for other good and valuable consideration, the receipt of
which is hereby acknowledged, the Parties agree as follows:
2
ARTICLE
I
GOVERNANCE
SECTION
1.01 Scope of the
Agreement; Effective
Time. The Parties desire to set forth in this Agreement, their
agreements with respect to governance, management and operation of, and the
relationship among, LATAM and the other members of the LATAM Group and certain
other matters. In the event of any inconsistency or conflict between the
provisions of this Agreement and the Organizational Documents of Holdco 1,
TAM or any of their 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. The Parties agree that the specific provisions of this
Agreement shall not be limited by any inconsistent or conflicting provisions of
the by-laws of LATAM and accordingly, as between parties, such specific
provisions shall prevail over such provisions of the by-laws of LATAM.
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 ordinary shares of TAM
(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 Composition of the LATAM
Board.
TEP agrees that it will take all necessary action to ensure that at all times
any individual who is a member of the board of directors of LATAM (the “LATAM
Board”) and who was elected by it or designated to the LATAM Controlling
Shareholders by it for such election and elected by it and/or the LATAM
Controlling Shareholders (each, a “TEP
Director”) shall also be a member of the board of directors of each of
Holdco 1 and TAM. In the event of any vacancy on the board of directors of
Holdco 1 (the “Holdco 1
Board”) or the board of directors of TAM (the “TAM
Board” and, together with the Holdco 1 Board, the “Holdco 1
Group Boards”)”)
resulting from the resignation, incapacity, retirement, death or removal (each,
a “Departure”)
of any member of such Holdco 1 Group Board who is a TEP Director, TEP shall
cause such TEP Director to resign from the LATAM Board within five calendar days
after the occurrence of such Departure, and the LATAM Board shall replace such
TEP Director with an individual designated by TEP who shall serve on the LATAM
Board until the next annual meeting of the shareholders of LATAM.
SECTION
1.03 Chairman of LATAM
Board.
Until the second anniversary of the Effective Time (the “Second
Anniversary”), the chairman of the LATAM Board (the “LATAM
Chairman”) shall be Xxxxxxxx Xxxxx Xxxxx. If there is a Departure
of the LATAM Chairman prior to the Second Anniversary, then the LATAM Board
shall appoint another TEP Director selected by TEP to serve as the LATAM
Chairman. On and after the Second Anniversary, the LATAM Board shall
appoint any of its members as the LATAM Chairman from time to time in accordance
with the Organizational Documents of LATAM.
SECTION
1.04 LATAM
Committees.
(a) Promptly following the Effective Time, the LATAM Board shall
establish the following four committees to review, discuss and make
recommendations to the LATAM Board (each, a “LATAM
Board Committee”):
(i) A
Strategy Committee, which shall focus on (A) corporate strategy (e.g., vision, mission, business
portfolio and relative priorities/resource allocation, mergers, acquisitions and
divestures); (B) current strategic issues (e.g., global crisis and
short-term capacity strategy, acquisitions of direct competitors, etc.); and (C)
the three-year plans and budgets for the main business units and functional
areas and high-level competitive strategy reviews;
3
(ii) a
Leadership Committee, which shall focus on (A) culture and values; (B) people
policies; (C) high-level organizational structure; (D) appointment of the
chief executive officer (Vice
Presidente Ejecutivo) of LATAM (the “LATAM
CEO”) and his or her other reports; (E) corporate compensation philosophy
(e.g., role of variable
compensations, scope of stock option/grant program, etc.); (F) compensation
structures and levels for the LATAM CEO and other key executives; (G) annual
variable compensation structure and targets for the LATAM CEO and other key
executives; (H) succession or contingency planning for the LATAM CEO; and (I)
performance assessment of the LATAM CEO;
(iii) a
Finance Committee, which shall focus on (A) financial policies and strategy; (B)
capital structure; (C) monitoring policy compliance; (D) tax optimization
strategy; and (E) the quality and reliability of financial information;
and
(iv) a
Brand, Product and Frequent Flyer Program Committee, which shall focus on
(A) brands strategies and brand building initiatives for the corporate and
main business unit brands (e.g., imaging, key messages and
brand voice); (B) the main characteristics of products and services for each of
the main business units; (C) Frequent Flyer Program strategy and key program
features; and (D) regular audit of brand performance.
(b) Each
of the LATAM Board Committees shall be comprised of two or more members of the
LATAM Board, at least one of whom shall be a TEP Director at all times when TEP
is entitled to elect, and elects, at least one TEP Director. No LATAM
Board Committee shall have authority to approve any matters required to be
approved by the LATAM Board pursuant to the Organizational Documents of LATAM or
under applicable Law, which approval authority shall rest solely with the LATAM
Board, unless and to the extent such authority is expressly delegated by it as
permitted by applicable Law.
SECTION
1.05 Roles of the LATAM CEO, the
LATAM COO and the TAM CEO.
(a) LATAM CEO. The
LATAM CEO shall be Xxxxxxx Xxxxx as of the Effective Time. After any
departure of the LATAM CEO and receipt of the recommendation of the Leadership
Committee, the LATAM Board shall appoint a new LATAM CEO in accordance with the
Organizational Documents of LATAM. The LATAM CEO will be the highest
ranked officer of the LATAM Group and shall report directly to the LATAM
Board. The LATAM CEO shall have general supervision, direction and control
of the business of the LATAM Group; provided that the LATAM COO
and the TAM CEO shall have the responsibilities set forth in Sections 1.05(b)
and (c), respectively. The LATAM CEO shall carry out all orders and
resolutions of the LATAM Board. Without limitation of the foregoing, the
LATAM CEO shall have the following responsibilities:
4
(i) conducting
the day-to-day management of the LATAM Group;
(ii) leading
LATAM’s efforts to combine LATAM and its Subsidiaries and TAM and its
Subsidiaries and to achieve synergies among them;
(iii) defining
and proposing strategies for the LATAM Group and ensuring due execution of
business plans;
(iv) ensuring
performance of the LATAM Group executive teams;
(v) together
with the LATAM Chairman and the chief financial officer of LATAM representing
the LATAM Group before all major external stakeholders, all Governmental
Entities, the International Air Transport Association (IATA), alliances and
investors; and
(vi) serving
as a senior participant in all business unit and function committees of the
LATAM Group.
(b) LATAM COO. The
president and chief operating officer (Gerente General) of LATAM
(the “LATAM
COO”) shall be Xxxxxxx Xxxxx as of the Effective Time. After any
Departure of the LATAM COO, a new LATAM COO shall be appointed by the LATAM
CEO. The LATAM COO shall report directly to the LATAM CEO and shall have
general supervision, direction and control of the passenger and cargo operations
of the LATAM Group, excluding those conducted by (x) Holdco 1, TAM and their
Subsidiaries, excluding the international passenger business of the LATAM Group
(collectively, the “Holdco 1
Group”) and (y) the international passenger business of the LATAM
Group. Without limitation of the foregoing, the LATAM COO shall have the
following responsibilities:
(i) conducting
the day-to-day management of all cargo operations and operations of the LATAM
Group;
(ii) together
with the TAM CEO, recommending a candidate to the LATAM CEO to serve as the head
of the international passenger business of the LATAM Group (including both long
haul and regional operations), who shall report jointly to the LATAM
COO and the TAM CEO;
(iii) coordinating
between cargo and international;
(iv) together
with the TAM CEO and the LATAM CEO, implementing the integration of LATAM and
its Subsidiaries and TAM and its Subsidiaries; and
5
(v) serving
as a senior participant in all business unit and function committees of the
LATAM Group.
(c) TAM CEO. As of
the Effective Time, Xxxxx Xxxxxxx will be the chief executive officer (Diretor Presidente) of the
Holdco 1 Group (the “TAM
CEO”). The TAM CEO shall have general supervision, direction and
control of the business and operations of Holdco 1 Group and shall carry out all
orders and resolutions of the Holdco 1 Board and 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 Holdco 1 Group;
(ii) serving
as the company officer of the Holdco 1 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 LATAM COO, recommending a candidate to the LATAM CEO for appointment as
the head of international passenger business of the LATAM Group (including both
long haul and regional operations), who shall report jointly to the LATAM COO
and the TAM CEO;
(iv) together
with the LATAM CEO and the LATAM COO, implementing the integration of LATAM and
its Subsidiaries and TAM and its Subsidiaries; and
(v) serving
as a senior participant in all business unit and function committees of the
LATAM Group.
SECTION
1.06 Recommendations to
Shareholders of LATAM.
If (a) TEP and the LATAM Controlling Shareholders cannot reach agreement on any
matter to be submitted to a vote of the shareholders of LATAM at any meeting of
the shareholders of LATAM (other than an action that would require the approval
of two-thirds of the shareholders of LATAM under Article 67 of the Chilean
Corporations Act (Ley Sobre
Sociedades Anónimas) (each, a “Supermajority
Action”) prior to such meeting
of the shareholders of LATAM or (b) any shareholder of LATAM (other than TEP and
the LATAM Controlling Shareholders) requests that any matter other than a
Supermajority Action be submitted to a vote of the shareholders of LATAM at any
meeting of the shareholders of LATAM, then, in either such case, upon written
request of TEP or the LATAM Controlling Shareholders (which shall be third-party
beneficiaries for purposes of this Section 1.06), the LATAM Board will consider
and make a proposal to the shareholders of LATAM with respect to such matter
prior to such shareholder meeting.
SECTION
1.07 Other Key Executives of the
LATAM Group.
The key executives of the LATAM Group (excluding the LATAM CEO and those in the
Holdco 1 Group) shall be appointed by, and shall report, directly or indirectly,
to the LATAM CEO. In making such appointments, the LATAM CEO 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.
6
SECTION
1.08 Group
Structure.
The organizational structure of the LATAM Group shall be in substantially the
form set forth in Exhibit
A attached hereto, as it may be amended or modified by the Parties from
time to time.
SECTION
1.09 Further Action;
Efforts.
For the benefit of TEP, LATAM agrees to take all necessary action to implement
the agreements with respect to the management and governance of LATAM set forth
in Sections 1.03 through 1.08.
ARTICLE
II
GENERAL
PROVISIONS
SECTION
2.01 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 LATAM Common 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, directors, 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 Section 2.02); 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
2.02 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 2.02 shall survive any termination of this Agreement.
SECTION
2.03 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
2.04 Definitions.
For the purposes of this Agreement, the following terms shall have the meanings
assigned below:
(a)
“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.
7
(b) “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 2.04 hereof) if the references to “within 60 days” in Rule
13d-3(d)(1)(i) were omitted. For all purposes of this Agreement, a
Shareholder shall be deemed to beneficially own all shares of LATAM Common Stock
beneficially owned by it and its Affiliates, including the beneficial owners of
such Shareholder.
(c) “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.
(d)
“Control” (and its correlative
terms) shall have the meanings assigned to such terms in Rule 12b-2
promulgated under the U.S. Exchange Act.
(e) “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.
(f) “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.
(g) “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.
(h) “Organizational
Documents” shall mean (i) with respect to Holdco 1, this Agreement, the
Holdco 1 Shareholders Agreement and the by-laws of Holdco 1, (ii) with
respect to LATAM, this Agreement, the Control Group Shareholders Agreement and
the by-laws or other comparable governing documents of LATAM and (iii) with
respect to TAM and its Subsidiaries, this Agreement, the TAM Shareholders
Agreement, the Holdco 1 Shareholders Agreements and the by-laws or other
comparable governing documents of such Persons.
(i) “Person”
means any natural person, firm, corporation, partnership, company, limited
liability company, joint venture, association, trust, unincorporated
organization, Governmental Entity or other entity.
8
(j)
“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 directors 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.
(k) “Transaction
Agreements” means this Agreement, the Implementation Agreement, the
Exchange Offer Agreement and the other Shareholders Agreements.
(l) “U.S.
Exchange Act” shall mean the U.S. Securities Exchange Act of
1934.
(m) “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 directors of such Person (or, if such Person is not
a corporation, the individuals who perform a similar function for such
Person).
SECTION
2.05 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
2.06 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
2.07 Assignment.
Subject to the provisions of the Holdco 1 Shareholders Agreement and the Control
Group Shareholders Agreement, 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.
9
SECTION
2.08 Entire Agreement; No
Third-Party Beneficiaries.
(a) This
Agreement and the other Transaction Agreements, including the Exhibits and
Schedules hereto and thereto, constitute the entire agreement, and supersede all
prior agreements and understandings, both written and oral, among the Parties
with respect to the subject matter hereof and thereof.
(b) 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
2.09 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):
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
10
If to TEP
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.
SECTION
2.10 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 2.09 or in such other manner as may be permitted
by Law shall be valid and sufficient service thereof.
11
SECTION
2.11 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 2.11.
SECTION
2.12 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.
12
SECTION
2.13 Interpretation.
When a reference is made in this Agreement to an Article, Section, Exhibit or
Schedule, such reference shall be to an Article of, a Section of, or an Exhibit
or Schedule to this Agreement unless otherwise indicated. The table of
contents and headings contained in this Agreement are for reference purposes
only and shall not affect in any way the meaning or interpretation of this
Agreement. Whenever the words “include,” “includes” or “including” are
used in this Agreement, they shall be deemed to be followed by the words
“without limitation”. The words “hereof,” “herein” and “hereunder” and
words of similar import when used in this Agreement shall refer to this
Agreement as a whole and not to any particular provision of this
Agreement. All terms defined in this Agreement shall have the defined
meanings when used in any certificate or other document made or delivered
pursuant hereto unless otherwise defined therein. The definitions
contained in this Agreement are applicable to the singular as well as the plural
forms of such terms and to the masculine as well as to the feminine and neuter
genders of such terms. Any contract, instrument or Law defined or referred
to herein or in any contract or instrument that is referred to herein means such
contract, instrument or Law as from time to time amended, modified or
supplemented, including (in the case of contracts or instruments) by waiver or
consent and (in the case of Laws) by succession of comparable successor Law and
references to all attachments thereto and instruments incorporated
therein. References to a Person are also to its permitted successors and
assigns. Except as otherwise expressly provided herein, all remedies
provided herein shall be in addition to any other remedies that the Parties may
otherwise have under applicable Law. Any reference in this Agreement to a
“day” or a number of “days” (without the explicit qualification of “business”)
shall be interpreted as a reference to a calendar day or number of calendar
days. This Agreement is the product of negotiation by the Parties having
the assistance of counsel and other advisers, and the Parties and their counsel
and other advisers having participated jointly in negotiating and drafting this
Agreement. If an ambiguity or a question of intent or interpretation
arises, this Agreement shall be construed as if drafted jointly by the Parties,
and no presumption or burden of proof shall arise favoring or disfavoring any
Party by virtue of the authorship of any provision of this
Agreement.
SECTION
2.14 Filing
Requirement. A
copy of this Agreement shall be filed at the headquarters of LATAM for all
purposes of applicable Law.
13
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.
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LAN
AIRLINES S.A.
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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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EXHIBIT
A
LATAM
Group Ownership Structure and Organizational Structure
A-1
