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JOINT ACTION AGREEMENT

Joint Venture JV Agreement

JOINT ACTION AGREEMENT | Document Parties: Lan Airlines SA | Inversiones Costa Verde Limitada  | Inversiones Santa Cecilia S.A. | Mr. Rafael Ariztía Correa You are currently viewing:
This Joint Venture JV Agreement involves

Lan Airlines SA | Inversiones Costa Verde Limitada | Inversiones Santa Cecilia S.A. | Mr. Rafael Ariztía Correa

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Title: JOINT ACTION AGREEMENT
Date: 6/30/2005
Industry: Airline    

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Exhibit 2.6

 

THIS JOINT ACTION AGREEMENT (hereinafter “Joint Action Agreement”) is made July 5, 2004, by and between Inversiones Costa Verde Limitada y Compañía en Comandita por Acciones, a company limited by shares, incorporated and existing pursuant to the laws of the Republic of Chile, taxpayer identification number 96.810.370-9, represented by Mr. Juan José Cueto Plaza, national identity card number 6.694.240-6, and by Mr. Enrique Miguel Cueto Plaza, national identity card number 6.694.239-2, all domiciled, for these purposes, at Avda. Presidente Riesco 5711, Suite 1604, borough of Las Condes, Santiago (hereinafter also “Inversiones Costa Verde CPA”); Inversiones Santa Cecilia S.A., a corporation incorporated and existing pursuant to the laws of the Republic of Chile, taxpayer identification number 96.904.050-6, represented by Mr. Juan Luis Rivera Palma, national identity card number 8.514.511-8, and by Mr. Rafael Ariztía Correa, national identity card number 10.175.769-2, all domiciled, for these purposes, at Avda. Apoquindo 3000, 17th floor, borough of Las Condes, Santiago (hereinafter also “Inversiones Santa Cecilia”); and Axxion S.A., a corporation incorporated and existing pursuant to the laws of the Republic of Chile, taxpayer identification number 90.818.000-3, represented by Mr. Juan Luis Rivera Palma, national identity card number 8.514.511-8, and by Mr. Rafael Ariztía Correa, national identity card number 10.175.769-2, all domiciled, for these purposes, at Avda. Apoquindo 3000, 17th floor, borough of Las Condes, Santiago (hereinafter also “Axxion”).

 

WHEREAS

 

A. Lan Chile S.A. (hereinafter also “Lan Chile”) is an open corporation incorporated and existing pursuant to the laws of the Republic of Chile, registered under number 306 in the Securities Registry of the Superintendency of Securities and Insurance. Its capital is divided into 318,909,090 common shares in one same series and it is managed by a nine-member board of directors.

 

B. Inversiones Costa Verde CPA owns 101,419,931 shares in Lan Chile, representing 31.80% of the equity capital. Inversiones Costa Verde Limitada and Juan José Cueto Plaza, Ignacio Cueto Plaza and Enrique Cueto Plaza (hereinafter also the “Cueto Group”) hold an interest in Lan Chile through Inversiones Costa Verde CPA.

 

C. Inversiones Santa Cecilia owns 19,596,727 shares in Lan Chile, representing 6.14% of the equity capital while Axxion is the owner of 65,827,874 shares in Lan Chile,

 

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representing 20.64% of the shares in Lan Chile. Bancard S.A. and Inversiones Bancorp Limitada as well as Sebastián Piñera Echeñique, Magdalena María Piñera Morel, María Cecilia Piñera Morel, Sebastián Piñera Morel, Cristóbal Piñera Morel and Cecilia Morel Montes (hereinafter also the “Piñera Group”) hold an interest in Lan Chile through Inversiones Santa Cecilia and Axxion.

 

D. The Cueto Group, through Inversiones Costa Verde CPA, and the Piñera Group, through Inversiones Santa Cecilia and Axxion, wish to regulate the exercise of their rights as shareholders in Lan Chile in order to ensure the election of five of the nine directors in the company and thus control thereof. For these purposes, Inversiones Costa Verde CPA, on the one hand, and, on the other, Inversiones Santa Cecilia and Axxion collectively (all hereinafter the “Parties” and each a “Party”) hereby enter into this Joint Action Agreement in respect of 143,509,092 shares, equal to 45% of the shares in Lan Chile, which are distributed at the rate of 71,754,546 shares owned by Inversiones Costa Verde CPA, 5,926,672 shares owned by Inversiones Santa Cecilia, and 65,827,874 shares owned by Axxion (hereinafter also the “Committed Shares”). The remaining shares in Lan Chile owned by the Parties are not subject to this Joint Action Agreement.

 

E. On December 14, 2000, companies related to the Cueto Group and to the Piñera Group signed a Shareholders Agreement (hereinafter also the “Shareholders Agreement”) regulating the transfer of shares in Lan Chile controlled thereby and stipulating the obligation of the shareholder wishing to sell its shares, either spontaneously or because it has received an offer from a third party, to grant a right of first refusal (hereinafter the “Right of First Refusal”) to purchase such shares to the other shareholders who are parties to the Shareholders Agreement

 

THEREFORE, the Parties agree to the following:

 

ARTICLE FIRST

JOINT ACTION

 

1.1 Joint Action.

 

(a) The Parties agree to exercise control of Lan Chile jointly, thus ensuring a majority of votes at shareholders meeting and at board meetings. For these purposes, the

 

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parties undertake to act in coordination and by mutual consent in all matters and decisions relating to the management and administration of Lan Chile, whether such matters and decisions must be decided by the shareholders meeting or by the company’s board of directors.

 

(b) If the Parties are unable to agree on how to act, they undertake to respect the mandate granted to the third party indicated in Section 1.2(b) below in order not to hinder the management and administration of Lan Chile. This obligation of respect for the mandate will be ongoing and permanent as long as there is a disagreement among the parties until this Joint Action Agreement is terminated in the manner stipulated in Article Fourth below.

 

1.2 Shareholders Meetings.

 

(a) The Parties shall appoint a common representative to attend shareholders meetings and vote the Committed Shares in terms agreed upon by the Parties. The appointment of the common representative shall be made prior to each shareholders meeting through the grant of the respective powers of attorney in the terms indicated in Articles 63 and 64 of the Companies Regulations.

 

(b) If the Parties do not agree on how to vote the Committed Shares five days prior to a shareholders meeting, Mr. Sergio Urrejola Monckeberg shall be appointed common representative and if he is unable or unwilling to accept the position, Mr. Juan Claro González; and if he is unable or unwilling to accept the position, Mr. Arturo Yrarrázaval Covarrubias; and if he is unable or unwilling to accept the position, Mr. Felipe Larraín Bascuñan; and if he is unable or unwilling to accept the position, Mr. Enrique Barros Bourie. Once the common representative that has been appointed has accepted the position, the Parties shall grant the respective powers of attorney thereto in the terms indicated in Articles 63 and 64 of the Companies Regulations. The common representative thus appointed shall vote the Committed Shares as he deems pertinent.

 

(c) Notwithstanding the stipulations in Section 1.2(b) above, if the shareholders meeting must decide on the election of directors and there is no agreement among the Parties on the five directors to be elected with the Committed Shares, each Party shall have the right to propose two directors and to instruct the common representative to vote the

 

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Committed Shares in order to elect the candidates thereof. The fifth director will be decided by the common representative and such appointment shall fall upon his person or upon any of the following independent third parties: Sergio Urrejola Monckeberg, Juan Claro González, Arturo Yrarrázaval Covarrubias, Felipe Larraín Bascuñán or Enrique Barros Bourie. For these purposes, the Parties shall grant the common representative the respective powers of attorney in the terms indicated in Articles 63 and 64 of the Companies Regulations.

 

1.3 Board of Directors.

 

(a) The Parties shall endeavor for the directors elected with the Committed Shares to always act together and vote for resolutions of the board so as to constitute the majority necessary to adopt them. For these purposes, the Parties shall ensure that the meeting agenda is distributed sufficiently in advance in order to allow them to analyze and agree upon each item contained in such agenda prior to the board meeting and to undertake to recommend and persuade such directors how to vote.

 

(b) If the Parties do not reach an agreement on the items contained in the agenda five days prior to a board meeting, the Parties shall resort to the common representative indicated in Section 1.2 (b) above and undertake to recommend and persuade the directors elected with the Committed Shares to vote in the terms decided by such common representative.

 

(c) Notwithstanding the stipulations in Sections 1.3(a) and (b) above, the Parties shall endeavor to meet as soon as possible when there are urgent matters or items arising at the same board meeting on which a decision cannot be postponed without seriously affecting the management and administration of Lan Chile and, if necessary, to cause the directors elected with the Committed Shares to leave the meeting temporarily in order for the Parties to analyze and agree on how to proceed and recommend and persuade such directors how to vote. If circumstances warrant, the Parties shall resort to the common representative indicated in Section 1.2(b) above and they undertake to recommend and persuade the directors elected with the Committed Shares to vote in the terms decided by such common representative.

 

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(d) If the mechanism established in Section 1.2(c) above must be used for the election of the board of directors, each Party undertakes to recommend and persuade the directors nominated thereby to vote in the terms decided by the director nominated by the common representative.

 

(e) If at any time any of the directors elected with the Committed Shares votes against the agreements of the Parties, the Parties shall endeavor to secure the voluntary resignation thereof and appointment of his replacement by the board in office for the period until the next regular shareholders meeting in the terms of Article 32 of the Companies Law. If it were impossible to secure the voluntary resignation of the dissident director or to ensure the appointment of the replacement thereof in the aforesaid terms, any of the Parties may require that the board of directors convene a special shareholders meeting in order to revoke th


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