SHAREHOLDERS AGREEMENT

EXHIBIT 10.1

 

 

 

 

 

 

 

 

 

 

 

 

 

Schedules

 

Schedule A – By-Laws

 

Schedule B - Corporate Structure

 

Schedule C – Transactions

 

Schedule D – Strategic Plan

 

Schedule E – Manager’s Duties

 

Schedule F – Competitors

 

Schedule G – Investor Observer Affidavit

 

Schedule H – English translation of the Shareholders Agreement

 

 

 

SHAREHOLDERS AGREEMENT

 

 

This Shareholders Agreement (“ Shareholders Agreement ”) is executed on May, 12, 2009 by and among,

 

 

 

 

 

 

and, as Intervening Party,

 

 

All above mentioned parties are hereinafter referred to, collectively, as the “Parties”, and, individually, as a “Party”.

 

RECITALS

 

WHEREAS pursuant to the terms of a certain Share Subscription and Purchase Agreement of even date herewith (“ Share Subscription and Purchase Agreement ”), the Company’s issued and outstanding Equity Securities as of the date hereof is composed of Common Shares and Preferred Shares, at no par value, distributed among the Controlling Shareholders and the Investor as disclosed in Schedule B attached hereto;

 

 

WHEREAS the Controlling Shareholders, Apel and Investor (by virtue of its ownership interest in the Company through Investor’s ownership of Apel) wish to specify the terms of their agreement as to matters relating to their relationship as direct or indirect Shareholders of the Company;

 

NOW, THEREFORE , the Parties have agreed to enter into this Shareholders Agreement to be governed by the following terms and conditions:

 

ARTICLE I - DEFINITIONS

 

1.1   Definitions.   As used in this Agreement, the following terms shall have the following respective meanings:

 

“ Adjusted Debt ” (a) means without duplication (i) all indebtedness of the Company Group for borrowed money, (ii) the net present value of all leases discounted at Prime Rate plus three percent (3%) per annum, whether operating or capital leases but excluding leases of aircraft from Investor and its Affiliates and leases related to managed aircraft, (iii) all obligations of the Company Group evidenced by bonds, notes, debentures or other similar arrangements, and (iv) all debt, whether or not of the type described in clauses (i) through (iii) above, exclusively to the extent secured by a lien on the property of any of the Company Group, (b) reduced by the amount of aircraft in inventory under “floorplan” finance, and (c) excluding any contract or agreement relating to aircraft acquisition that is cancellable (with or without deposit forfeiture) or deferrable without limit.

 

“ Affiliate ” means, with respect to any Person, any other Person that, directly or indirectly through one or more intermediaries, Controls, or is Controlled by, or is under common Control with such first Person.

 

“ Agreement ” means this Shareholders Agreement, together with all Schedules hereto, as amended, modified or supplemented from time to time in accordance with its terms.

 

“ ANAC ” has the meaning set forth in Section 3.2(a) below.

 

“ Apel ” has the meaning set forth in the Preamble hereto.

 

“ Bank ” has the meaning set forth in Section 9.1(e) below.

 

“ Board of Directors ” means the board of directors ( Conselho de Administração ) of the Company.

 

“ Board of Officers ” means the board of executive officers ( Diretoria ) of the Company.

 

“ BR GAAP ” means, in respect of any Person, Brazilian generally accepted accounting principles, consistently applied, and, if adopted by the Company in the future, IFRS, consistently applied for accounting purposes.

 

“ Brazil ” means the Federative Republic of Brazil.

 

“ Brazilian Civil Procedure Code ” means the Brazilian Law no. 5.869, of January 11, 1973, as amended from time to time.

 

“ Brazilian Corporate Law ” means the Brazilian Law no. 6.404, of December 15, 1976, as amended from time to time.

 

“ Business ” means any business related to air transportation services and sales of aircraft, products and aviation services related to air navigation.

 

 

“ Business Day ” means any day in which banks are open for business in the cities of Belo Horizonte and São Paulo, Brazil.

 

“ CEO ” means the elected Chief Executive Officer ( Diretor Presidente ) of the Company.

 

“ Closing ” means the closing of the transaction corresponding to the issuance, subscription, sale, purchase and payment of the Shares purchased pursuant to the Share Subscription and Purchase Agreement.

 

“ Closing Date ” means the date of Closing provided for in the Share Subscription and Purchase Agreement.

 

“ Common Shares ” means all of the voting shares of the Company owned by the Shareholders.

 

“ Company ” has the meaning set forth in the Preamble to this Agreement.

 

“ Company FCPA Group ” has the meaning set forth in Section 9.1(a) below.

 

“ Company Group ” means the Company and each Subsidiary thereof.

 

“ Competitor ” means the Persons described on Schedule F to this Agreement.

 

“ Control ” (including the terms “ Controls ”, “ Controlled by ” and “ under common Control with ”) means, with respect to any Person or group of Persons (“ Controlling Person(s) ”), (a) the ownership of more than fifty percent (50%) of the common shares of such Person, (b) the ability, whether through the ownership of voting securities of another Person (“ Controlled Person ”), by contract or otherwise, to directly or indirectly (i) elect the majority of the Board of Directors or other similar managing body of such Controlled Person, or (ii) direct the management policies of such Controlled Person, or (c) the ownership of rights (whether through agreement or otherwise) that entitle the Controlling Person to have the majority of the votes in such Controlled Person’s general meetings.

 

“ Controlling Shareholders ” has the meaning set forth in the Preamble to this Agreement.

 

“ Corte ” has the meaning set forth in Section 8.2(a) below.

 

“ Director ” means each of the members of the Company’s Board of Directors.

 

“ Dispute ” has the meaning set forth in Section 8.2 below.

 

“ EBITDAR ” means income from continuing operations before financial income/expense plus depreciation, amortization and rentals (excluding rentals with Investor registered in the financial statements), derived from the audited consolidated financial statements of the Company prepared in accordance with BR GAAP.

 

“ Eligible Accounting Firm ” has the meaning set forth in Section 3.2(g)(ii) below.

 

“ EPV ” has the meaning set forth in the Preamble to this Agreement.

 

“ Equity Securities ” means, with respect to any Person, common shares ( ações ordinárias) , preferred shares ( ações preferenciais) , and any other equity securities of such Person, however described and whether voting or non-voting, including securities convertible or exchangeable into shares, and options, warrants ( bônus de subscrição) , preemptive rights, equity participation rights or other rights to acquire, subscribe for or receive any equity securities of such Person, or any other securities the yield on which is determined in whole or in part by reference to earnings, revenues or other financial performance of such Person.  Unless the context otherwise requires, references to Equity Securities without stating a specific issuer shall be deemed to refer to Equity Securities of the Company or any of its Subsidiaries.

 

“ Exempt Transferee ” has the meaning set forth in Section 5.1(c) below.

 

“ FCPA ” means the United States Foreign Corrupt Practices Act.

 

“ FCPA Group ” has the meaning set forth in Section 9.1(a) below.

 

“ Final Documents ” means this Agreement, the Share Subscription and Purchase Agreement, and any other documents entered into in connection with the foregoing.

 

“ First Refusal Commitment ” has the meaning set forth in Section 5.2(c) below.

 

“ First Refusal Shareholder ” has the meaning set forth in Section 5.2(b) below.

 

“ Fiscal Year ” means the year beginning on January 1 ^st and ending on December 31 ^st of each year.

 

“ Governmental Authority ” means any nation or government (in the federal, state, municipal or any other political subdivision); any entity, authority or body exercising executive, legislative, judicial, regulatory or administrative functions or pertaining to government, including any government authority, agency, department, board, commission or instrumentality in Brazil or, if relevant or appropriate, in any other country with jurisdiction over the Company or any of its Subsidiaries; any court, tribunal or arbitrators; and any stock exchanges or organized over-the-counter markets having jurisdiction over the Company or any of its Subsidiaries.

 

“ Helicopter Blue Book ” means the Aircraft Bluebook - Price Digest, published by AC-U-KWIK line of aviation resources.

 

“ IFRS ” means, in respect of any Person, the International Financial Reporting Standards adopted by the International Accounting Standards Board, consistently applied.

 

“ Investor ” has the meaning set forth in the Preamble to this Agreement.

 

“ Investor Approval ” has the meaning set forth in Section 4.2 below.

 

“ Investor FCPA Group ” has the meaning set forth in Section 9.1(a) below.

 

“ Investor Observer ” has the meaning set forth in Section 3.2(a) below.

 

“ JAA ” has the meaning set forth in the Preamble to this Agreement.

 

“ Law ” means all applicable provisions of all (i) constitutions, treaties, statutes, laws, codes, rules, regulations, ordinances, approvals or orders of any Governmental Authority, and (ii) orders, decisions, injunction, judgments, awards and decrees of or agreements with any Governmental Authority by which the assets or properties of any Persons are bound.

 

“ Lease Right of First Refusal ” has the meaning set forth in Section 3.8(a) below.

 

“ Lien ” means any mortgage, pledge, deed of trust, right of others, claim, security interest, encumbrance, burden, title defect, title retention agreement, lease, sublease, license, right of survivorship (usufruto ), easement ( servidão ), covenant, condition, encroachment ( esbulho possessório) , voting trust agreement, interest, option, right of first offer, negotiation or refusal, proxy voting, lien, charge or other restrictions or limitations of any nature whatsoever, including but not limited to such Liens as may arise under any Law or contract.

 

“ Losses ” means any losses, damages, liabilities, obligations, claims, defaults, fees, penalties or related costs or expenses, including reasonable court costs and attorneys’ and accountants’ fees and disbursements to the extent effectively incurred.

 

“ Manager ” has the meaning set forth in Section 3.3 (c) below.

 

“ Net Debt ” means Adjusted Debt (as defined above) minus cash, cash equivalents, marketable securities and the net acquisition cost of any aircraft in inventory, for a period of twelve (12) months or less, free and clear of any debt or encumbrance, such aircraft being limited to an aggregate amount of USD$ 15,000,000.

 

“ New Helicopters ” has the meaning set forth in Section 3.8(b) below.

 

“ Offer Notice ” has the meaning set forth in Section 5.2(b) below.

 

“ Offer Period ” has the meaning set forth in Section 5.2(b) below.

 

“ Offered Shares ” has the meaning set forth in Section 5.2(a) below.

 

“ Officer ” has the meaning set forth in Section 3.3(a) below.

 

“ Organizational Documents ” means, as to any entity, the documents pursuant to which such entity was organized and the agreements governing the entity’s ongoing operations.  In the case of the Company, “Organizational Documents” means the Company’s by-laws ( Estatuto Social ), as amended from time to time.

 

“ Original Offer ” has the meaning set forth in Section 5.2(a) below.

 

“ Party ” or “ Parties ” has the meaning set forth in the Preamble to this Agreement.

 

“ Percentage Interest ” means the percentage of Shares held directly or indirectly by a Shareholder at any relevant time.

 

“ Permitted Transferee ” has the meaning set forth in Section 5.1(b) below.

 

“ Person ” means any individual, corporation, partnership, limited liability company, joint venture, association, joint stock company, trust, unincorporated organization, governmental or regulatory body or subdivision thereof, or any other entity.

 

“ Preferred Shares ” means all of the preferred shares ( ações preferenciais ) issued by the Company.

 

“ Prime Rate ” means the rate reported by the Wall Street Journal’s bank survey.

 

“ Producer Price Index ” means the Producer Price Index (PPI), table 5, Aerospace products and parts manufacturing, industry code 3364, prepared by the Bureau of Labor Statistics of the United States Department of Labor.

 

“ Prohibited Group ” has the meaning set forth in Section 9.1(a) below.

 

“ Prohibited Payment ” has the meaning set forth in Section 9.1(a) below.

 

“ Prohibited Purposes ” has the meaning set forth in Section 9.1(a) below.

 

“ PTAX Exchange Rate ” means, as of any date, the average of the purchase and sale rates for U.S. Dollars published by the Central Bank of Brazil for the business day immediately preceding such date through the Central Bank of Brazil data system (SISBACEN) denominated rate PTAX 800.

 

“ Qualified Initial Public Offering ” has the meaning set forth in Section 6.1 of this Agreement.

 

“ Real ” , “ Reais ” and “ R$ ” mean the lawful currency of Brazil.

 

“ Related Parties ” means, with respect to any Party, (i) any Affiliate of such Party, (ii) any entity in which such a Party is, directly or indirectly, the owner or the beneficial owner of ten percent (10%) or more of the voting or total interest, (iii) any trust or other estate in which such a Party has a substantial beneficial ownership or for which such a Party serves as trustee or in a similar fiduciary capacity, (iv) a spouse, parent, grandparent, descendant or sibling of such party, and (vi) any other Person Controlled by the Affiliates of such Party.

 

“ Related Party Transaction ” means any transaction between the Company, on one side, and any Related Party, on the other side, or entered into by the Company for the benefit of a Related Party.

 

“ Representatives ” means, as to any Person, its accountants, counsel, consultants (including actuarial and industry consultants), directors, officers, employees, agents and other advisors or representatives.

 

“ Right of First Refusal ” has the meaning set forth in Section 5.2(a) below.

 

“ Rotorbrás ” has the meaning set forth in the Preamble of this Agreement.

 

“ Secondary Offering ” has the meaning set forth in Section 6.2 below.

 

“ Selling Shareholder ” has the meaning set forth in Section 5.2(a) below.

 

“ Shareholder ” means any Person holding Shares and Party to this Agreement, which for purposes of this Agreement shall include the Investor based on its indirect ownership of Shares through its ownership of Apel.

 

“ Share Subscription and Purchase Agreement ” has the meaning set forth in the Recitals above.

 

“ Shares ” means all Common Shares and Preferred Shares issued by the Company.

 

“ Strategic Plan ” has the meaning set forth in Section 3.2 (g) (viii) below.

 

“ Subject Price ” has the meaning set forth in Section 5.2(a) below.

 

“ Subsidiary ” means any Person of which the Company and Investor directly or indirectly holds fifty percent (50%) or more of the outstanding share capital (each a “ Subsidiary ” and collectively “ Subsidiaries ”).

 

“ Transfer ” (including the terms “ Transfer ”, “ Transferring ” and “ Transferred ”) means any direct or indirect transfer, sale, assignment (including assignment of pre-emptive rights), exchange (through the transfer of Equity Securities or otherwise), donation or other disposition of any kind, voluntary or involuntary, contingent or non-contingent, including any direct or indirect transfer, sale, assignment, exchange, donation or other disposition of any kind that results from the foreclosure of any pledge, mortgage, grant of security interest or lien, or in connection with any merger, consolidation, spin-off, reorganization, amalgamation, issuance of Equity Securities or other transactions having a similar effect.

 

“ U.S. ” or “ United States ” means the United States of America.

 

“ US$” or “U.S. Dollar ” means the lawful currency of the United States.

 

“ US GAAP ” means, in respect of any Person, U.S. generally accepted accounting principles adopted by Investor, consistently applied.

 

1.2   Terms Generally .  The words “hereby”, “herein”, “hereof”, “hereunder” and words of similar import refer to this Agreement as a whole (including any Schedules hereto) and not merely to the specific article, section, paragraph or clause in which such word appears.  All references herein to Articles, Sections and Schedules shall be deemed references to Articles and Sections of, and Schedules to, this Agreement unless the context shall otherwise require.  The words “include”, “includes” and “including” shall be deemed to be followed by the phrase “without limitation”.  The definitions given for terms in this Article I and elsewhere in this Agreement shall apply equally to both the singular and plural forms of the terms defined.

 

1.3   Headings .  The section headings of this Agreement are for reference purposes only and are to be given no effect in the construction or interpretation of this Agreement.

 

1.4   Severability .  Each provision of this Agreement shall be interpreted in such manner as to be effective and valid under applicable Law, but if any provision of this Agreement shall be prohibited by or invalid under applicable Law, such provision shall be ineffective to the extent of such prohibition or invalidity, without invalidating the remainder of such provision or the remaining provisions of this Agreement.

 

1.5   Ordinary Course of Business .  A reference to an action by a Person in the “ordinary course of business” (or the business of a Person “conducted in the ordinary course”) will be deemed to have been taken by such Person only if such action is consistent with the past practices of such Person and is taken in the ordinary course of the normal day-to-day operations of such Person, and such action is not required to be authorized by the board of directors of such Person (or by any Person or group of Persons exercising similar authority).

 

1.6   Currency Matters .  Except as otherwise expressly provided herein, all Reais amounts to be translated to U.S. Dollars under this Agreement, and all U.S. Dollar amounts to be translated to Reais under this Agreement, shall be translated at the PTAX Exchange Rate.

 

1.7   Governing Language .  This Agreement is executed in the Portuguese language, which shall be the only version to prevail and to be adopted for any purpose of interpretation or otherwise.  For greater convenience only, the Parties have agreed on one single translation of this Agreement into English, which is attached hereto as Schedule H .

 

ARTICLE II - CORPORATE STRUCTURE

 

2.1   Corporate Status of the Company .  The Company is a “ sociedade por ações ” under the laws of Brazil.  The Company is a pure holding company and observes its corporate purpose set forth in its By-laws a copy of which is attached as Schedule A .

 

2.2   Capital .  The total capital stock of the Company consist of 298,306,060 Shares, being 149,153,030 Common Shares and 149,153,030 Preferred Shares.  The ownership interest of each Shareholder is specified in Schedule B to this Agreement.  All of the Company’s Shares at any time owned directly or indirectly by the Parties hereto, whether currently existing or issued in the future, are and will be subject to the provisions of this Agreement regardless of any amendments.

 

2.3   Voting Rights .  Each Common Share of the Company shall be entitled to one (1) vote at any general meeting of the Shareholders.

 

2.4   Organizational Documents .  The Parties agree to maintain the Organizational Documents of the Company consistent with the provisions of this Agreement.  In the event of any discrepancy between this Agreement and the Organizational Documents, the provisions of this Agreement shall always prevail.

 

ARTICLE III - GOVERNANCE

 

3.1   Corporate Governance Policies .  The Shareholders shall use their voting rights to implement and follow strict corporate governance policies in accordance with the applicable Law.  The Company shall be managed by a Board of Directors and a Board of Officers.  The members of the Board of Directors and Board of Officers of the Company shall ensure that the Company complies with all applicable Law, regulations and best business practices, which shall be monitored and evaluated on a regular basis by the Board of Directors and Board of Officers (as applicable).

 

3.2   Board .

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

3.3   Officers .

 

 

 

 

3.4   Access to Properties, Records .  During the term of this Agreement, each Party (as well as its Representatives) shall be afforded access, which shall be coordinated in advance with the Company and which shall not disrupt the general course of the Company Group’s operation, at such Party’s sole expense, during normal business hours and subject to the Company Group’s normal security procedures, to the facilities, properties, books, records, personnel and files of the Company Group, as may be necessary from time to time for purposes reasonably related to such Party’s investment in the Company Group and this Agreement, including the right of Investor to