Exhibit 10.35
SECOND AMENDED AND RESTATED
SHAREHOLDERS AGREEMENT
among
CORPORACION DE INVERSIONES AEREAS, S.A.,
CONTINENTAL AIRLINES, INC.
and
COPA HOLDINGS, S.A.
June __, 2006
TABLE OF CONTENTS
PAGE
ARTICLE I MANAGEMENT OF THE COMPANY; BOARD OF DIRECTORS...........................................................2
Section 1.1. Board of Directors.....................................................................2
Section 1.2. Composition of Board of Directors......................................................2
Section 1.3. Meetings; Quorum; Required Vote........................................................3
Section 1.4. Removal; Vacancies.....................................................................3
ARTICLE II DISPOSITIONS, SALES AND TRANSFERS OF SHARES; RIGHT OF FIRST OFFER; TAG-ALONG RIGHTS....................4
Section 2.1. Transfers..............................................................................4
Section 2.2. Prohibited Transfers...................................................................5
Section 2.3. Right of First Offer...................................................................5
Section 2.4. Tag Along Rights.......................................................................7
Section 2.5. Continental Lockup.....................................................................9
ARTICLE III MISCELLANEOUS.........................................................................................9
Section 3.1. Termination............................................................................9
Section 3.2. Successors and Assigns................................................................10
Section 3.3. Entire Agreement......................................................................10
Section 3.4. Severability..........................................................................10
Section 3.5. Language..............................................................................10
Section 3.6. GOVERNING LAW.........................................................................10
Section 3.7. Arbitration...........................................................................10
Section 3.8. Notices...............................................................................11
Section 3.9. Headings..............................................................................12
Section 3.10. Modification, Amendment or Clarification..............................................12
Section 3.11. Counterparts..........................................................................12
Section 3.12. Constructive Termination..............................................................12
Section 3.13. Remedies..............................................................................12
Section 3.14. Shareholder Meeting...................................................................13
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SECOND AMENDED AND RESTATED SHAREHOLDERS AGREEMENT
This Second Amended and Restated Shareholders Agreement (this "Agreement")
of Copa Holdings, S.A., a corporation (sociedad anonima) duly organized and
validly existing under the laws of Panama (the "Company"), is made and entered
into as of June __, 2006, by and among the Company, Corporacion de Inversiones
Aereas, S.A., a corporation (sociedad anonima) duly organized and validly
existing under the laws of Panama ("CIASA"), and Continental Airlines, Inc., a
corporation duly organized and validly existing under the laws of the State of
Delaware ("Continental" and, together with CIASA, the "Shareholders").
RECITALS
WHEREAS, the Company owns, directly or indirectly, substantially all of the
issued and outstanding capital stock of Compania Panamena de Aviacion, S.A., a
corporation (sociedad anonima) duly organized and validly existing under the
laws of Panama ("COPA"), Oval Financial Leasing, Ltd., a corporation duly
organized and validly existing under the laws of the British Virgin Islands
("Oval"), AeroRepublica S.A., a corporation (sociedad anonima) duly organized
and validly existing under the laws of Colombia ("AeroRepublica"), and OPAC,
S.A., a corporation (sociedad anonima) duly organized and validly existing under
the laws of Panama ("OPAC" and, together with COPA, AeroRepublica, Oval and the
Company's other subsidiaries, the "Operating Companies");
WHEREAS, the Company and the Shareholders entered into a shareholders
agreement, dated May 12, 1998 (the "Old Shareholders Agreement"), in connection
with a Stock Purchase Agreement, dated as of May 8, 1998 (the "Stock Purchase
Agreement"), pursuant to which CIASA owned 76,500 shares of Class A common
stock, without par value (the "Old Class A Shares"), of the Company, and
Continental owned 73,500 shares of Class B common stock, without par value (the
"Old Class B Shares" and, together with the Class A Shares, the "Old Shares"),
of the Company;
WHEREAS, COPA and Continental have entered into an Amended and Restated
Services Agreement (the "Services Agreement") and an Amended and Restated
Alliance Agreement (the "Alliance Agreement"), each dated as of November 23,
2005, pursuant to which COPA and Continental agreed to cooperate with each other
in connection with certain aspects of COPA's and Continental's air
transportation business;
WHEREAS, in order to facilitate a public offering (the "Initial Public
Offering") of a portion of their Shares (hereinafter defined), in November 2005,
the Shareholders recapitalized the Company to, among other things, replace the
Old Shares with a new series of Class A shares, without par value (the "Class A
Shares"), which do not have voting rights except in certain circumstances
described in the Company's Pacto Social, as amended, and a new series of Class B
shares, without par value (the "Class B Shares" and, together with the Class A
Shares, the "Shares"), entitled to one vote per share;
WHEREAS, the Shareholders and the Company entered into an Amended and
Restated Shareholders Agreement, dated as of November 23, 2005 (the "Amended and
Restated Shareholders Agreement"), to modify certain provisions of the Old
Shareholders Agreement;
WHEREAS, on the date hereof the Shareholders are entering into an amended
and restated registration rights agreement, substantially in the form attached
as Exhibit A hereto (the "Registration Rights Agreement"), with respect to the
Class A Shares held by Continental and the Class B Shares held by CIASA; and
WHEREAS, the Shareholders believe it to be in the best interests of
themselves and the Company that the agreements contained herein be adopted in
order to amend and restate the Amended and Restated Shareholders Agreement and
promote the harmonious management of the Company;
NOW, THEREFORE, in consideration of the foregoing and of the mutual
agreements and covenants contained herein, and intending to be legally bound
hereby, the parties hereto agree as follows:
ARTICLE I
MANAGEMENT OF THE COMPANY; BOARD OF DIRECTORS
Section 1.1. Board of Directors. The business and affairs of the Company
shall be managed and controlled by the Board of Directors of the Company in a
manner consistent with this Agreement and the Company's Pacto Social.
Section 1.2. Composition of Board of Directors.
(a) The Shareholders agree that, effective as of the date hereof, the Board
of Directors of the Company (the "Board of Directors") shall consist of eleven
(11) members (each, a "Director") and shall have the following composition:
seven (7) Directors elected from candidates nominated by CIASA at its sole
option ("CIASA Directors"); one (1) Director elected from candidates nominated
by Continental at its sole option (the "Continental Director"); and three (3)
Directors who shall be "independent" (the "Independent Directors") under the
rules of the New York Stock Exchange (the "NYSE"); provided that the number of
Continental Directors shall be automatically decreased to zero at such time as
Continental, together with its Permitted Transferees, owns less than 19% of the
total outstanding shares and the Alliance Agreement has expired or been
terminated. Each of the Shareholders agrees to vote, or act by written consent
with respect to, any Shares beneficially owned by it that are entitled to vote,
at each annual or special meeting of stockholders of the Company at which
Directors are to be elected or to take all actions by written consent in lieu of
any such meeting as are necessary, to cause the CIASA Directors, the Continental
Director and the Independent Directors to be elected to the Board of Directors
as provided in this Section 1.2. Each of the Shareholders agrees to use its best
efforts to cause the election of each such designee to the Board of Directors,
including nominating such individuals to be elected as members of the Board of
Directors. Further, the Company agrees that, if at any time there is a vacancy
on the Board of Directors and as a result thereof the Board of Directors
includes fewer CIASA Directors or Continental Directors than CIASA or
Continental are entitled to nominate at such time, then the Company shall
nominate or appoint, as the case may be, the person designated by CIASA or
Continental, as the case may be, to fill such vacancy and, in the event of a
shareholders vote, shall recommend to shareholders such individual's election to
the Board. In addition, at any time when there is no Continental Director
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on the Board of Directors and Continental is entitled to appoint a member of the
Board of Directors, at Continental's request, the Company shall invite an
individual designated by Continental at such time to attend all board meetings
(including telephonic meetings) as a non-voting observer and review all actions
taken by the Board of Directors without a meeting, and shall provide such
individual, at the same time as provided to Directors, all materials provided to
Directors in connection with such meetings or actions taken without a meeting.
(b) The Shareholders shall, at CIASA's option, adjust the size of the Board
of Directors and/or replace one or more CIASA Directors with new Independent
Directors to the extent hereafter required to comply with applicable law or the
rules of the NYSE; provided that any such adjustments shall not impair
Continental's rights pursuant to Section 1.2(a) (it being understood that the
mere adjustment of the size of the board shall not be deemed an impairment of
Continental's rights).
Section 1.3. Meetings; Quorum; Required Vote.
(a) Meetings of the Board of Directors shall be held at least quarterly.
Unless a majority of Directors otherwise agrees, meetings of the Board of
Directors shall be held in Panama.
(b) Unless every Director otherwise agrees or waives such requirement or
unless a fixed date is established for regular meetings, notice in writing of
any meeting of the Board of Directors must be received by each Director no less
than fourteen (14) days prior to the date on which such meeting is scheduled to
occur.
(c) Attendance in person or by telephone of at least a majority of the
Directors or their respective alternate Directors shall be required to
constitute a quorum at a meeting of the Board of Directors, except where the
Pacto Social of the Company may require a greater number.
(d) Unless otherwise specified in this Agreement, all matters shall require
a simple majority vote of all Directors present at the meeting.
Section 1.4. Removal; Vacancies.
(a) Either Shareholder may dismiss its nominated directors with or without
cause, and, upon the occurrence of any such dismissal, the other Shareholders
shall vote accordingly in favor of, and shall use all reasonable efforts to
implement promptly, such dismissal. In addition, any Director may resign at any
time by giving written notice to the Shareholder that nominated such Director
and to the Secretary of the Board of Directors and filing such notice with the
Public Registry in Panama. The Secretary of the Board of Directors shall provide
notice of any such resignation to the other Shareholders and the other Directors
within two days of receiving such resignation. Such resignation shall take
effect on the date shown on or specified in such notice or, if such notice is
not dated, at the date of the receipt of such notice by the Secretary of the
Board of Directors. No acceptance of such resignation shall be necessary to make
it effective.
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(b) If the position of a CIASA Director or the Continental Director becomes
vacant for any reason (including dismissal by the Shareholder nominating such
Director), the remaining Directors shall vote (and if necessary the Shareholders
shall cause their Shares to be voted) to elect as Director a person nominated by
the Shareholder entitled to fill such vacant position and to replace the
departed Director on any Committees on which he served. Notwithstanding the
foregoing, if the position of the Continental Director becomes vacant as a
result of the provisions of Section 1.2(a) of this Agreement, the remaining
Directors shall vote (and if necessary the Shareholders shall cause their Shares
to be voted) to elect as Director a person nominated by a majority of the
remaining Directors to fill such vacant position and to replace the departed
Director on any Committees on which he or she served.
ARTICLE II
DISPOSITIONS, SALES AND TRANSFERS OF SHARES;
RIGHT OF FIRST OFFER; TAG-ALONG RIGHTS
Section 2.1. Transfers. No Shareholder shall directly or indirectly sell,
assign, transfer or otherwise dispose of, or pledge, mortgage, hypothecate,
give, create a security interest in or lien on, place in trust (voting or
otherwise), transfer by operation of law or in any way subject to any claims,
options, charges, whether or not voluntarily, any Shares (or any beneficial
interest in such Shares) to or with any other person or entity (including,
without limitation, by operation of law) (collectively, a "Transfer") without
complying with this Article II; provided that the restrictions of this Article
II shall not apply to any "Permitted Transfer" which shall be defined as any
sale, assignment or transfer (i) by a Shareholder to any wholly-owned subsidiary
of that Shareholder (provided the selling, assigning or transferring Shareholder
agrees in writing to remain bound by the terms of this Agreement and such
wholly-owned subsidiary agrees in writing to be bound by the terms of this
Agreement), (ii) to an Affiliate of CIASA (provided CIASA agrees in writing to
remain bound by the terms of this Agreement and such Affiliate agrees in writing
to be bound by the terms of this Agreement), (iii) to the shareholders of CIASA
as of the date hereof or any Affiliate or Family Member thereof (provided that
CIASA agrees in writing to remain bound by the terms of this Agreement and such
transferee agrees in writing to be bound by the terms of this Agreement) or (iv)
by Continental to a person owning a majority of the voting power of
Continental's capital stock (a "Controlling Continental Shareholder") (provided
Continental agrees in writing to remain bound by the terms of this Agreement and
such person agrees in writing to be bound by the terms of this Agreement). Each
person or entity referred to in sections (i) through (iv) of this Section 2.1
shall be a "Permitted Transferee"; provided that, for the avoidance of doubt,
any trust subject to the U.S. Employee Retirement Income Security Act of 1974,
as amended ("ERISA"), and established to fund retirement or pension benefits for
employees of corporations, trades, or business that are under common control
with Continental pursuant to sections 414(b) and 414(c) of the Internal Revenue
Code of 1986, as amended and/or the ERISA benefit plan associated with such
trust (any such trust or plan, a "Continental Plan") shall not be considered a
Permitted Transferee, and a Transfer to such Continental Plan shall not be
considered a Permitted Transfer. For purposes of this Agreement, an "Affiliate"
of a person means an entity controlled by such person where control means
ownership of a majority of both the economic interest in and voting power for
such entity.
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For purposes of this Agreement, a "Family Member" of a person is the spouse of
such person or a parent, sibling or descendent of such person (or a spouse
thereof) or a trust established for the benefit of any of the foregoing. Any
Shareholder making a Permitted Transfer must notify the other Shareholder in
writing prior to completing such Permitted Transfer.
Section 2.2. Prohibited Transfers. For so long as CIASA and its Affiliates
own, directly or indirectly, more than 50% of the Company's voting stock,
neither Shareholder shall effect or agree to effect a Transfer (other than
pursuant to (i) a Widely Distributed Public Offering, (ii) a Transfer to a
Continental Plan, or (iii) a Permitted Block Trade (A) to the knowledge of the
Transferring Shareholder, has not been entered into directly or indirectly with
any airline or any subsidiary of an airline, (B) that has not otherwise been
structured for the purpose of avoiding this Section 2.2 and (C) in which any
underwriter or broker acknowledges that such underwriter or broker is familiar
with the restrictions of this Section 2.2) without the prior written consent of
the other Shareholder, which shall not be unreasonably withheld, if such
Transfer would result in any airline or an Affiliate of an airline that is not
as of the date of this Agreement a direct holder of Shares holding Shares. As
used in this Agreement, "Widely Distributed Public Offering" means any public
offering of Shares to five (5) or more purchasers, none of which are, to the
knowledge of Continental or any underwriters, directly or indirectly affiliated
with each other or any Shareholder and none of which are acting as a "group" (as
defined in Section 13(d) of the U.S. Securities Exchange Act of 1934, as
amended), in which no one purchaser acquires more than 20% of the total number
of Shares sold in such offering.
Section 2.3. Right of First Offer.
(a) In the event that Continental or a Permitted Transferee of Continental
(together, for purposes of this Section 2.3, the "Continental Seller") intends
to Transfer any Shares (other than pursuant to (i) a Permitted Transfer, (ii) a
public offering of shares registered with the U.S. Securities and Exchange
Commission pursuant to the Registration Rights Agreement or (iii) a Transfer
pursuant to Section 2.4), it shall first give written notice to CIASA stating
its intention to make such Transfer and the number of Shares proposed to be
Transferred (the "Offered Securities"). Notwithstanding the foregoing, the
Continental Seller shall not be required to give CIASA any such notice, and the
provisions of this Section 2.3 shall not be applicable, on any date on which
CIASA, together with its Permitted Transferees, owns less than 10.0% of the
total outstanding Shares.
(b) Unless the proposed Transfer is a Permitted Block Trade in accordance
with the terms of Section 2.3(d), upon receipt of the notice described in
Section 2.3(a), CIASA may elect to, and if CIASA so elects the Continental
Seller shall, negotiate in good faith, for a period of up to thirty (30) days
(such 30-day period, the "Offer Period") from the date of the receipt by CIASA
of such notice, the terms of a transaction in which CIASA will acquire all of
the Offered Securities. The Continental Seller shall be under no obligation to
accept any offer made by CIASA during the Offer Period. An offer made by CIASA
shall not be considered to be an offer for purposes of the remainder of this
Section 2.3 unless it is a bona fide offer made in good faith and subject only
to such conditions as are customary for offers of such type and, in the good
faith judgment of the Continental Seller, reasonably capable of being satisfied
and consummated within sixty (60) days of the date of such offer.
5
(c) If CIASA offers to purchase all of the Offered Securities and does not
reach a definitive agreement with the Continental Seller during the Offer Period
to purchase all of the Offered Securities, the Continental Seller shall have the
right, for a period of 180 days from the earlier of (i) the expiration of the
Offer Period and (ii) the date on which the Continental Seller shall have
received written notice from CIASA stating that CIASA does not intend to
exercise its right to offer to purchase all of the Offered Securities, to enter
into an agreement to transfer all (but not less than all) of the Offered
Securities to any third person at a price that is at least 10% greater than the
price offered by CIASA in its last offer. For purposes of this Section 2.3, in
any Transfer to a Continental Plan, including any contribution of Shares or any
beneficial interest in Shares, the purchase price per Share shall be deemed to
be the value set forth in a valuation report issued to an independent fiduciary
of the Continental Plan by an independent third party appraiser that includes a
reasonable level of detail regarding the valuation method used by such appraiser
to value such Shares or interests therein. If the Continental Seller intends to
accept during such period an offer to Transfer all of the Offered Securities to
any third person at a price that is not at least 10% greater than the price
offered by CIASA in its last offer, then the Continental Seller shall give
notice (the "Second Notice") in writing to CIASA specifying the number of
Offered Securities proposed to be Transferred, the proposed sale price, the name
and address of the proposed transferee as well as all other terms and conditions
in connection with the proposed Transfer and shall enclose a copy of the offer
received with respect thereto. During the three business days (such
three-business-day period, the "Second Offer Period") following receipt of the
Second Notice, CIASA shall have an irrevocable and exclusive option, but in no
way an obligation, to agree to purchase all (but not less than all) of such
Offered Securities on the same terms and subject to the same conditions as
specified in the Second Notice, except that the closing date of any such
agreement by CIASA to purchase shall occur no later than thirty (30) days after
the expiration of the Second Offer Period. In the event that CIASA elects to
exercise such option, the Continental Seller and CIASA shall promptly consummate
the purchase and sale of such Offered Securities. In the event that the Second
Offer Period has elapsed without CIASA having exercised such option, the
Continental Seller shall have the right to consummate the proposed Transfer on
the terms and conditions set forth in the Second Notice within thirty (30) days
from the earlier of (i) the expiration of the Second Offer Period and (ii) the
date on which the Continental Seller shall have received written notice from
CIASA stating that CIASA does not intend to exercise its option to purchase all
of such Offered Securities. If CIASA does not make an offer to purchase all of
the Offered Securities during the Offer Period, the Continental Seller shall
have the right, for a period of 180 days from the earlier of (i) the expiration
of the Offer Period and (ii) the date on which the Continental Seller shall have
received written notice from CIASA stating that CIASA does not intend to
exercise its right to offer to purchase all of the Offered Securities, to enter
into an agreement to transfer all (but not less than all) of the Offered
Securities to any third person.
(d) Notwithstanding Sections 2.3(b) and (c) above, if (i) immediately after
giving effect to any proposed Transfer by a Continental Seller described in
Section 2.3(a), Continental and its Permitted Transferees would continue to own
Registrable Securities (as defined in the Registration Rights Agreement) and
(ii) the proposed Transfer will be a Permitted Block Trade (as defined below) in
accordance with this Section 2.3(d), the Continental Seller shall provide the
written notice referred to in Section 2.3(a) no fewer than fourteen (14) days
prior to the date on which the Continental Seller desires to sell the Offered
Securities (the "Proposed Sale Date") and this Section 2.3(d) shall apply to the
proposed Transfer of the Offered
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Securities in lieu of Sections 2.3(b) and (c). In such event, at least four days
but not more than seven days prior to the Proposed Sale Date, the Continental
Seller shall invite CIASA in writing to make a written offer to purchase all of
the Offered Securities (the "CIASA Bid"). The Continental Seller must receive
the written CIASA Bid by 6:00 p.m., Central Standard Time, on the second full
business day following the date of CIASA's receipt of Continental's written
invitation to make an offer. If the Continental Seller accepts the CIASA Bid,
CIASA shall purchase the Offered Securities pursuant to the CIASA Bid no more
than thirty (30) days following the Continental Seller's acceptance of the CIASA
Bid or on such other date as the Continental Seller and CIASA may agree. If the
Continental Seller wishes to reject the CIASA Bid it shall do so in writing and,
if it does so by 6:00 p.m., Central Standard Time, on the second full business
day following its receipt of the CIASA Bid, the Continental Seller may sell no
less than 70% of the Offered Securities in a block trade or similar transaction
(a "Permitted Block Trade"); provided that (i) the Permitted Block Trade is
consummated within seven (7) days of the Continental Seller's rejection of the
CIASA Bid, (ii) the Offered Securities are purchased by at least four (4)
purchasers that are not, to the knowledge of Continental or any underwriters,
directly or indirectly affiliated with one another or with Continental or the
Continental Seller and none of which are acting as a "group" (as defined in
Section 13(d) of the U.S. Securities Exchange Act of 1934, as amended)
("Unaffiliated Purchasers"), (iii) no single Unaffiliated Purchaser directly or
indirectly acquires or will beneficially own as a result of the Permitted Block
Trade more than the lesser of 50% of the Offered Securities and 5% of the total
outstanding Shares, (iv) the purchase price paid by each of the Unaffiliated
Purchasers for the Offered Securities is at least 95% of the price offered by
CIASA pursuant to the CIASA Bid and (v) the other terms and conditions relating
to the timing or value of consideration of the Permitted Block Trade are not
more favorable in any material respect to any of the Unaffiliated Purchasers
than the terms and conditions relating to the timing or value of consideration
offered by CIASA in the written CIASA bid. Any Transfer that does not satisfy
each of the requirements described in (i) through (v) of this Section 2.3(d)
shall not constitute a Permitted Block Trade and shall remain subject to the
offer procedures set forth in Sections 2.3(b) and (c).
(e) If any portion of a price offered by CIASA or another purchaser for the
Offered Securities is proposed to be paid in a form other than cash, such
portion shall be deemed to consist of the amount of cash equal to the fair
market value of such non-cash consideration as reasonably determined by the
Continental Seller, in the case of non-cash consideration offered by CIASA, and
by CIASA, in the case of non-cash consideration offered by another person;
provided that the Continental Seller may specify in any notice described in
Section 2.3(a) that the Offered Securities shall only be available to CIASA or
another purchaser for cash. Any transfer to a Continental Plan shall be deemed
to be a Transfer for cash.
(f) If CIASA and the Continental Seller do not reach an agreement to
transfer the Offered Securities to CIASA in accordance with the provisions of
this Section 2.3 and the Continental Seller shall not have transferred the
Offered Securities to a third person in accordance with the provisions of this
Section 2.3, the provisions of this Article II shall again apply in connection
with any subsequent Transfer of all or any portion of such Offered Securities.
Section 2.4. Tag Along Rights. (a) Continental shall have the rights set
out in Sections 2.4(b) and 2.4(c) only with respect to a sale of Shares by CIASA
or a Permitted
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Transferee of CIASA (other than (i) Permitted Transfers, (ii) Transfers in a
public offering of shares registered with the U.S. Securities and Exchange
Commission pursuant to the Registration Rights Agreement or (iii) Transfers of
Class B Shares to a Panamanian (as defined in the Registration Rights Agreement)
(a "Triggering Sale") pursuant to a bona fide offer (the "Bona Fide Offer") to
acquire such Shares made by one or more third-parties (the "Offeror") that would
result in CIASA, together with its Permitted Transferees, beneficially owning a
percentage of the total outstanding Shares lower than the percentage of the
total outstanding Shares beneficially owned at such time by Continental.
(b) In the event of a Triggering Sale by CIASA or a Permitted Transferee of
CIASA (together, for purposes of this Section 2.4, the "CIASA Seller"), the
CIASA Seller shall provide Continental with written notice of its election to
accept the Bona Fide Offer, which notice shall set forth the name and address of
the Offeror and the principal terms of the Bona Fide Offer. Upon receipt of such
notice, Continental shall have thirty (30) days to irrevocably elect to sell a
certain number of its Class A Shares to the Offeror on the terms and subject to
the conditions set forth in Section 2.4(c) hereof; provided that the sale
contemplated by the Bona Fide Offer closes. The number of Class A Shares that
Continental shall have the right to sell to the Offeror shall be equal to the
number of Shares being sold by the CIASA Seller; provided that if CIASA,
together with its Permitted Transferees, beneficially owns more than the number
of Shares beneficially owned at such time by Continental immediately prior to
the Triggering Sale, Continental shall have the right to sell the number of
Shares being sold by the CIASA Seller minus the number of Shares held by CIASA
and Permitted Transferees of CIASA in excess of the number of Shares
beneficially owned at such time by Continental. If the sale contemplated by the
Bona Fide Offer does not close, or the CIASA Seller does not sell enough of its
Shares to cause a Triggering Sale, the notice provided pursuant to this Section
2.4(b) shall be deemed to have been withdrawn and the rights and obligations of
Continental shall continue to be governed by this Section 2.4. Failure by
Continental to make an election pursuant to this Section 2.4(b) within the
30-day election period shall constitute an election to decline to sell pursuant
to Section 2.4(c).
(c) If Continental elects to sell its Class A Shares pursuant to Section
2.4(b), it shall take all lawful action reasonably requested by the Offeror to
complete the sale contemplated by the Bona Fide Offer, including, without
limitation, the surrender to the Offeror of any stock certificates representing
such shares properly endorsed for transfer to the Offeror against payment of the
sale price for such shares, and if so reasonably requested by the Offeror, the
execution of all sale and other agreements in the form requested; provided that
Continental shall not be required to make any representation, warranty, or
commitment in any such agreement except representations and warranties as to
Continental's power and authority to transfer such shares free and clear of all
liens and encumbrances, Continental's unencumbered title to such shares, and the
absence of any litigation, laws or agreements which would impede the transfer of
such shares. The consideration to be paid for Continental's Shares to be sold
pursuant to the Bona Fide Offer shall be greater than or equal value to the
consideration to be paid for CIASA's Shares sold pursuant to the Bona Fide Offer
(in both cases, expressed on a per share basis).
(d) In addition to the rights described in this Section 2.4, Continental
shall have the registration rights described in Section 2.3 of the Registration
Rights Agreement at any
8
time that a CIASA Seller sells any Shares to a Panamanian (as defined in the
Registration Rights Agreement).
Section 2.5. Continental Lockup. Continental has requested that the Company
enter into an underwriting agreement, dated as of June __, 2006 (the
"Underwriting Agreement"), with ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated ("▇▇▇▇▇▇
▇▇▇▇▇▇▇") and ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated ("▇▇▇▇▇▇▇
▇▇▇▇▇") providing for the public offering (the "Public Offering") by the several
Underwriters, including ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇ ▇▇▇▇▇ (the "Underwriters") as
the representatives of the several Underwriters, of 7,546,875 shares (the
"Shares") of Class A Common Stock, without par value, of the Company, which
includes an additional 984,375 shares to cover any over-allotments (the
"Over-allotment Shares" and, together, the "Common Stock"). To induce CIASA to
continue its efforts in connection with the Public Offering, Continental hereby
agrees that, without the prior written consent of CIASA, it will not, during the
period commencing on the date hereof and ending two years (or 90 days solely in
the case of the Over-Alloment Shares if the over-allotment is not exercised)
after the date of the final prospectus relating to the Public Offering (the
"Prospectus"), (1) offer, pledge, sell, contract to sell, sell any option or
contract to purchase, purchase any option or contract to sell, grant any option,
right or warrant to purchase, lend, or otherwise transfer or dispose of,
directly or indirectly, any Shares or any securities convertible into or
exercisable or exchangeable for Shares, or (2) enter into any swap or other
arrangement that transfers to another, in whole or in part, any of the economic
consequences of ownership of the Shares, whether any such transaction described
in clause (1) or (2) above is to be settled by delivery of Shares or such other
securities, in cash or otherwise. The foregoing sentence shall not apply to (a)
transactions relating to Shares or other securities acquired in open market
transactions after the completion of the Public Offering, provided that no
filing under Section 16(a) of the Exchange Act shall be required or shall be
voluntarily made in connection with subsequent sales of Shares or other
securities acquired in such open market transactions and (ii) no filing under
Section 16(a) of the Exchange Act, reporting a reduction in beneficial ownership
of Shares, shall be required or shall be voluntarily made during the restricted
period referred to in the foregoing sentence. In addition, the undersigned
agrees that, without the prior written consent of CIASA, it will not, during the
period commencing on the date hereof and ending two years after the date of the
Prospectus, make any demand for or exercise any right with respect to, the
registration of any Shares or any security convertible into or exercisable or
exchangeable for Shares. Continental also agrees and consents to the entry of
stop transfer instructions with the Company's transfer agent and registrar
against the transfer of Continental's shares of Common Stock except in
compliance with the foregoing restrictions. Notwithstanding the foregoing, the
provisions of this Section 2.5 shall not apply to any sale, transfer or other
disposition of shares by Continental pursuant to Section 2.4 above.
ARTICLE III
MISCELLANEOUS
Section 3.1. Termination. This Agreement shall terminate without further
action: (i) on the dissolution and liquidation of the Company; (ii) by mutual
consent of CIASA and Continental; and (iii) at such time as either Shareholder
(including any Permitted Transferee) shall cease to own any Shares. This
Agreement shall terminate at the option of CIASA upon written notice to
Continental if a significant competitor of COPA, foreign or domestic, other than
9
Northwest Airlines or its affiliates, acquires majority ownership of, or
majority voting control of, Continental.
Section 3.2. Successors and Assigns. The provisions of this Agreement shall
be binding upon, and shall inure to the benefit of, the respective successors
and assigns of the Shareholders; provided that the benefit of this Agreement may
not be assigned or transferred in whole or in part by any Shareholder without
the prior written consent of the other Shareholder except to a Controlling
Continental Shareholder (subject to Section 2.1(iv) and provided the Controlling
Continental Shareholder agrees in writing to be bound by the terms of this
Agreement). Nothing in this Agreement, express or implied, is intended to confer
upon any person other than the parties hereto and their respective permitted
successors and assigns any rights, remedies or obligations under or by reason of
this Agreement.
Section 3.3. Entire Agreement. This Agreement, taken together with the
Pacto Social of the Company, the Services Agreement, the Alliance Agreement and
the Registration Rights Agreement between COPA and Continental, and the
Contingency Agreement, dated the date hereof, among the parties hereto, embodies
the entire agreement and understanding between the parties hereto with respect
to the subject matter hereof and thereof and supersedes all prior agreements and
understandings relating to such subject matter.
Section 3.4. Severability. Should any part of this Agreement for any reason
be declared invalid, such decision shall not affect the validity of any
remaining portion, which remaining portion shall remain in full force and effect
as if this Agreement had been executed with the invalid portion thereof
eliminated, and it is hereby declared the intention of the parties hereto that
they would have executed, or agreed to abide or be governed by, the remaining
portion of the Agreement without including therein any such part, parts, or
portion which may, for any reason, be hereafter declared invalid.
Section 3.5. Language. The English language version of this Agreement shall
be the official version thereof.
Section 3.6. GOVERNING LAW. This Agreement shall be construed and enforced
in accordance with, and governed by, the laws of Panama.
Section 3.7. Arbitration. (a) Any controversy or claim arising out of or
relating to this Agreement, or the breach thereof, shall be settled by
arbitration administered by the International Chamber of Commerce Court of
International Arbitration (the "ICC") in accordance with the International
Arbitration Rules of the ICC. Judgment on the award rendered by the arbitrators
may be entered in any court having jurisdiction thereof.
(b) The number of arbitrators shall be three, one of whom shall be
appointed by each of the parties and the third of whom shall be selected by
mutual agreement, if possible, within 30 days of the selection of the second
arbitrator and thereafter by the ICC (in which case the third arbitrator shall
not be a citizen of Panama or the United States) and the place of arbitration
shall be Panama City, Panama. The language of the arbitration shall be English,
but documents or testimony may be submitted in any other language if a
translation is provided.
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(c) The arbitrators will have no authority to award punitive damages or any
other damages not measured by the prevailing party's actual damages, and may
not, in any event, make any ruling, finding or award that does not conform to
the terms of the Agreement.
(d) Either party may make an application to the arbitrators seeking
injunctive relief to maintain the status quo until such time as the arbitration
award is rendered or the controversy is otherwise resolved. Either party may
apply to any court having jurisdiction hereof and seek injunctive relief in
order to maintain the status quo until such time as the arbitration award is
rendered or the controversy is otherwise resolved.
Section 3.8. Notices. Any notice, request, instruction or other document to
be given hereunder by any party to the other shall be in writing and shall be
deemed to have been duly given on the date of delivery (i) if delivered
personally, (ii) if delivered by Federal Express or other next-day courier
service, (iii) if delivered by registered or certified mail, return receipt
requested, postage prepaid, or (iv) if sent by telecopier (with written
confirmation of receipt) or electronic mail; provided that a copy is mailed by
next-day courier, registered or certified mail, return receipt requested,
postage prepaid. All notices hereunder shall be delivered as set forth below, or
to such other person or at such other address and telecopier numbers as may be
designated in writing by the party to receive such notice.
(i) If to the Company or CIASA:
Corporacion de Inversiones Aereas, S.A.
c/o Campania Panamena de Aviacion, S.A.
Ave. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ y Calle 39 Apdo
Panama 1, Panama
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Facsimile No.: ▇▇▇▇ ▇▇▇-▇▇▇▇
with copies to:
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇ ▇▇▇▇▇
▇▇▇▇. ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇
Panama 5, Panama
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇ C.
Facsimile No.: + ▇▇▇ ▇▇▇-▇▇▇▇
and
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇ of America
Attn: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
11
(ii) If to Continental:
Continental Airlines, Inc.
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇ of America
Attn: Senior Vice President - Asia/Pacific and Corporate Development
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
with copies to:
Continental Airlines, Inc.
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇ of America
Attn: Senior Vice President and General Counsel
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Section 3.9. Headings. The Article, Section and paragraph headings herein
and table of contents hereto are for convenience of reference only, do not
constitute part of this Agreement and shall not be deemed to limit or otherwise
affect any of the provisions hereof.
Section 3.10. Modification, Amendment or Clarification. At any time, the
parties hereto may modify, amend or clarify the intent of this Agreement, by
written agreement executed and delivered by duly authorized officers of the
respective parties.
Section 3.11. Counterparts. For the convenience of the parties hereto, this
Agreement may be executed in any number of counterparts, each such counterpart
being deemed to be an original instrument, and all such counterparts shall
together constitute the same agreement. Each party hereto shall adhere any
necessary stamp taxes to its respective counterpart.
Section 3.12. Constructive Termination. To the extent permitted by
applicable law, a Shareholder and the Permitted Transferees of such Shareholder
shall be relieved of their obligations, but shall retain their rights, under
this Agreement after giving the other Shareholder sixty-days' written notice of
the occurrence of a material breach by such other Shareholder of a material
provision of this Agreement that remains uncured during such sixty (60)-day
notice period.
Section 3.13. Remedies. Subject to Section 3.7, any Shareholder having any
rights under any provision of this Agreement shall be entitled to enforce such
rights specifically, to recover damages by reason of any breach of any provision
of this Agreement and to exercise all other rights granted by law. In addition,
in the case of a material breach of this Agreement, the Shareholders shall have
the rights to terminate the Alliance Agreement or the Services Agreement as
described in and in accordance with those agreements.
12
Section 3.14. Shareholder Meeting. The Company shall provide Continental
with notice of each meeting of shareholders of the Company, as if Continental
were a shareholder entitled to vote at such meeting.
13
IN WITNESS WHEREOF, the parties hereto have duly executed the Agreement as
of the date first written above.
COPA HOLDINGS, S.A.
By:
----------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Chief Executive Officer
CORPORACION DE INVERSIONES AEREAS, S.A.
By:
-----------------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇
Title: Director
CONTINENTAL AIRLINES, INC.
By:
-----------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Senior Vice President - Finance and Treasurer
