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