SUPPLEMENTAL AGREEMENT
EXHIBIT 10.1
This
Supplemental Agreement (this “Agreement”) dated as of
May 13, 2008, by and among Copa
Holdings, S.A., a corporation (sociedad anonima) duly organized and validly existing under the laws
of Panama (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 “Current Shareholders”). Each of the Company,
CIASA and Continental may be referred to as a “Party,” and collectively, the “Parties.”
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”) and AeroRepublica S.A., a corporation (sociedad anonima) duly organized and
validly existing under the laws of Colombia (“AeroRepublica”);
WHEREAS, as of the date hereof, Continental owns 4,375,000 Class A Shares of the Company (the
“Continental Shares”), which do not have voting rights except in certain circumstances described in
the Company’s Pacto Social, as amended, and CIASA owns 12,778,125 Class B shares, entitled to one
vote per share (the “CIASA Shares” and together with the Continental Shares, the “Shares”);
WHEREAS, the Parties entered into a Second Amended and Restated Shareholders Agreement (the
“Shareholders Agreement”) and an Amended and Restated Registration Rights Agreement with respect to
the Class A Shares held by Continental and the Class B Shares held by CIASA (the “Registration
Rights Agreement”), each dated as of June 28, 2006;
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 businesses;
WHEREAS, the Current Shareholders believe it to be in the best interests of themselves and the
Company that the agreements contained herein be adopted in order to supplement and amend the
Shareholders Agreement and the Registration Rights Agreement to facilitate a potential sale of up
to all of the Continental Shares in a single underwritten offering registered with the U.S.
Securities and Exchange Commission and the Comision Nacional de Valores of the Republic of Panama
(the “Continental Offering”) with sales pursuant to Rule 144 of the Securities Act of 1933, as
amended, of Continental Shares that are not sold in the Continental Offering;
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 agree as follows:
SECTION 1. GOVERNANCE AND REGISTRATION RIGHTS.
1.1. Definitions. Each capitalized term used and not otherwise defined herein shall have the
meaning assigned to such term in the Registration Rights Agreement.
1.2. Waiver of Continental Lock-Up. CIASA hereby waives the restrictions set forth in Section
2.5 of the Shareholders Agreement with respect to (i) a Continental Offering and (ii) any sales
pursuant to Rule 144 of the Securities Act of 1933, as amended, of Continental Shares that are not
sold in the Continental Offering, in each case occurring during the remainder of the two-year
period set forth therein (the “Waiver Period”).
1.3. Termination of the Shareholders Agreement. The Shareholders Agreement shall terminate in
accordance with its terms upon a sale by Continental of all of the Continental Shares.
1.4. Board of Directors. (a) Notwithstanding any termination of the Shareholders Agreement,
Continental shall be entitled to nominate a member of its senior management team to the Board of
Directors of the Company (the “Continental Director”) in accordance with this Section 1.4 until
such time as the Alliance Agreement has expired or has been terminated. Each of the Current
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 Continental Director to be elected to the Board of
Directors as provided in this Section 1.4, for so long as Continental is entitled to appoint a
member of the Board of Directors. Each of the Current Shareholders agrees to use its best efforts
to cause the election of each such designee to the Board of Directors, including nominating such
individual to be elected as members of the Board of Directors, for so long as Continental is
entitled to appoint a member of the Board of Directors. Further, the Company agrees that, for so
long as Continental is entitled to appoint a member of the Board of Directors, if at any time there
is a vacancy on the Board of Directors and as a result thereof the Board of Directors does not
contain a Continental Director, then the Company shall nominate or appoint, as the case may be, the
person designated by Continental, to fill such vacancy and, in the event of a shareholders vote,
shall recommend to shareholders such individual’s election to the Board for so long as Continental
is entitled to appoint a member of the Board of Directors. In addition, at any time when there is
no Continental Director 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 a member of
Continental’s senior management 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.
2
(b) Unless the Continental 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 the Continental Director no less than fourteen (14) days prior to the
date on which such meeting is scheduled (or to the extent the Company determines that it is
necessary to provide a shorter period notice, such shorter period as shall be practicable in light
of the circumstances) to occur for so long as Continental is entitled to appoint a member of the
Board of Directors.
(c) Continental may dismiss the Continental Director with or without
cause, and, upon the occurrence of any such dismissal, the Current Shareholders shall vote
accordingly in favor of, and shall use all reasonable efforts to implement promptly, such
dismissal. In addition, the Continental Director may resign at any time by giving written notice to
Continental 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 Current 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.
(d) If the position of the Continental Director becomes vacant for any reason (including
dismissal by the Current Shareholder nominating such director), for so long as Continental is
entitled to appoint a member of the Board of Directors, the Current Shareholders shall exercise
commercially reasonable efforts to cause the remaining directors designated by them to vote (and if
necessary the Current Shareholders shall cause their Shares to be voted) to elect as Director a
person nominated by Continental entitled to fill such vacant position and to replace the departed
director on any committees on which he served.
1.5. Registrable Securities. Notwithstanding the provisions of the Registration Rights
Agreement, during the Waiver Period, the Continental Shares shall constitute Registrable Securities
and Continental shall be entitled to its demand right pursuant to Section 2.1(b) of the
Registration Rights Agreement with respect thereto. Upon the consummation of the Continental
Offering, Continental shall not have any rights and the Company and CIASA shall not have any
obligations, in each case with respect to the Continental Shares under the Registration Rights
Agreement except with respect to the indemnification and contribution rights and obligations set
forth therein and other rights provided therein that survive the consummation of a sale of all of
the Continental Shares by Continental. The demand right is hereby exercised by Continental in
connection with the Continental Offering.
1.6. Registration Expenses. Continental shall pay the Company’s reasonable out of pocket
expenses incident to the Company’s performance of, or compliance with, this Agreement and the
Registration Rights Agreement in connection with the Continental Offering (but not with respect to
the indemnification or contribution obligations related thereto). For the avoidance of doubt, the
expenses incident to the Company’s obligations include, without limitation, (i) all of the expenses
listed in the third sentence of Section 2.9 of the Registration Rights Agreement the payment of
which is requested by the Company in writing, (ii) the underwriting discount on the Continental
Shares sold in the Continental Offering and (iii) the reasonable costs and expenses of
3
the Company relating to investor presentations on any “road show” undertaken in connection
with the marketing of the offering of the Shares, including, without limitation, reasonable
expenses associated with the preparation or dissemination of any electronic road show, reasonable
expenses associated with the production of road show slides and graphics, fees and reasonable
expenses of any consultants engaged in connection with the road show presentations with the prior
approval of Continental, reasonable lodging expenses of the representatives and officers of the
Company and any such consultants, and the Company’s reasonable travel expenses. The Company shall
have no responsibility for any fees or disbursements of the Underwriters.
SECTION 2. MISCELLANEOUS.
2.1. Termination. This Agreement shall terminate without further action: (i) on the
dissolution and liquidation of the Company; (ii) by mutual written consent of CIASA and
Continental; and (iii) at the option of the Company following any Change of Control (as defined
below) involving Continental. For purposes of the foregoing sentence “Change of Control” shall
have the meaning set forth in the Alliance Agreement, except that, notwithstanding the definition
set forth in the Alliance Agreement, “Competing Carrier” shall mean any air carrier and any Person
that is a Holding Company or Subsidiary of any air carrier (with each of Person, Holding Company
and Subsidiary defined as set forth in the Alliance Agreement).
2.2. 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 Parties; provided that the
benefit of this Agreement may not be assigned or transferred in whole or in part by any Party
without the prior written consent of the other Parties except by Continental to a person owning a
majority of the voting power of Continental’s capital stock; provided that 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. Nothing in this Agreement, express or implied, is
intended to confer upon any person other than the Parties and their respective permitted successors
and assigns any rights, remedies or obligations under or by reason of this Agreement.
2.3. Entire Agreement. This Agreement, taken together with the Pacto Social of the Company,
the Services Agreement, the Alliance Agreement, the Shareholders Agreement and the Registration
Rights Agreement embodies the entire agreement and understanding between the Parties with respect
to the subject matter hereof and thereof and supersedes all prior agreements and understandings
relating to such subject matter.
2.4. 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.
4
2.5. Language. The English language version of this Agreement shall be the official version
thereof.
2.6. Governing Law. This Agreement shall be construed and enforced in accordance with, and
governed by, the laws of Panama.
2.7. 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.
(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.
2.8. 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. x/x Xxxxxxxx Xxxxxxxx xx Xxxxxxxx, X.X. Complejo Business Park, Torre Norte Urbanización Costa del Este Parque Xxxxxxx |
5
Panama City, Panama Attention: Xxxxx Xxxxxxxx Facsimile No.: x000 000-0000 |
with copies to: |
Xxxxxxx, Xxxxx x Xxxxx Xxxx. Xxxxxx Plaza, Pisos 9-11 Ave. Xxxxxxxx Xxxx Xx.00 x Xxxxx 00 Xxxxxx Xxxx, Xxxxxx Attention: Xxxxx X. Xxxxx C. Facsimile No.: + 000 000-0000 |
and |
Xxxxxx Xxxxxxxx Xxxxx & Xxxxxxxx LLP Xxx Xxxxxxx Xxxxx Xxx Xxxx, Xxx Xxxx 00000 Xxxxxx Xxxxxx of America Attn: Xxxxx XxXxxxxxxx, Xxxxxxxxx X. Xxxxx Facsimile No.: (000) 000-0000 |
(ii) | If to Continental: |
Continental Airlines, Inc. 0000 Xxxxx Xxxxxx Xxxxxxx, Xxxxx 00000 Xxxxxx Xxxxxx of America Attn: Senior Vice President — Asia/Pacific and Corporate Development Facsimile No.: (000) 000-0000 |
with copies to: |
Continental Airlines, Inc. 0000 Xxxxx Xxxxxx Xxxxxxx, Xxxxx 00000 Xxxxxx Xxxxxx of America Attn: Senior Vice President and General Counsel Facsimile No.: (000) 000-0000 |
2.9. Headings. The 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.
6
2.10. Modification, Amendment or Clarification. At any time, the Parties may modify, amend or
clarify the intent of this Agreement, by written agreement executed and delivered by duly
authorized officers of the respective Parties.
2.11. Counterparts. For the convenience of the Parties, 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.
7
IN WITNESS WHEREOF, the Parties have duly executed the Agreement as of the date first written
above.
COPA HOLDINGS, S.A. |
||||
By: | /s/ Xxxxx Xxxxxxxx | |||
Name: | Xxxxx Xxxxxxxx | |||
Title: | Chief Executive Officer | |||
CORPORACION DE INVERSIONES AEREAS, S.A. |
||||
By: | /s/ Xxxxxxx Xxxxx | |||
Name: | Xxxxxxx Xxxxx | |||
Title: | Director | |||
CONTINENTAL AIRLINES, INC. |
||||
By: | /s/ Xxxxxx Xxxxxxxx | |||
Name: | Xxxxxx Xxxxxxxx | |||
Title: | Senior Vice President | |||
On the ___day of ___, 2008, before me the undersigned, personally appeared
___, personally known to me or proved to me on the basis of satisfactory evidence
to be the individual whose name is subscribed to the within instrument and acknowledged to me that
he/she executed the same in his/her capacity, and that by his/her signature the individual executed
the instrument.
Notary Public | ||
My Commission Expires: _____________________ |
Supplemental Agreement
Signature Page
Signature Page