EXHIBIT 10.37
REGISTRATION RIGHTS AGREEMENT
dated as of , 2005
among
COPA HOLDINGS, S.A.,
CORPORACION DE INVERSIONES AEREAS, S.A.
and
CONTINENTAL AIRLINES, INC.
TABLE OF CONTENTS
PAGE
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SECTION 1. DEFINITIONS.......................................................................1
1.1. Defined Terms.................................................................1
1.2. General Interpretive Principles...............................................4
SECTION 2. REGISTRATION RIGHTS...............................................................4
2.1. Demand Registrations..........................................................4
2.2. Piggyback Registrations.......................................................6
2.3. Sales by CIASA to Independent Panamanians.....................................8
2.4. Registered Offerings of CIASA Shares other than Registrable Securities........9
2.5. Black-out Periods.............................................................9
2.6. No Inconsistent Agreements...................................................10
2.7. Registration Procedures......................................................10
2.8. Underwritten Offerings.......................................................14
2.9. Registration Expenses........................................................15
2.10. Rules 144 and 144A...........................................................16
SECTION 3. MISCELLANEOUS....................................................................16
3.1. Indemnification..............................................................16
3.2. Remedies.....................................................................19
3.3. Notices......................................................................20
3.4. Successors, Assigns and Transferees..........................................21
3.5. Recapitalizations, Exchanges, etc., Affecting Registrable Securities.........21
3.6. Governing Law; Arbitration...................................................22
3.7. Headings.....................................................................22
3.8. Severability.................................................................22
3.9. Amendment; Waiver............................................................23
3.10. Counterparts.................................................................23
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REGISTRATION RIGHTS AGREEMENT
REGISTRATION RIGHTS AGREEMENT ("Agreement"), dated as of , 2005, by
and among Copa Holdings, S.A., a corporation (sociedad anonima) organized under
the laws of the Republic of Panama (the "Company"), Corporacion de Inversiones
Aereas, S.A., a corporation (sociedad anonima) organized under the laws of
Panama ("CIASA"), and Continental Airlines, Inc., a corporation organized under
the laws of the State of Delaware ("Continental"). Each of the Company, CIASA
and Continental may be referred to as a "Party" and collectively they may be
referred to as the "Parties".
W I T N E S S E T H:
WHEREAS, the Company, CIASA and Continental have entered into an
Underwriting Agreement, dated , 2005 (the "Underwriting Agreement"), among the
Company, CIASA, Continental, and Morgan Stanley & Co. Incorporated and Goldman,
Sachs & Co., as representatives of the underwriters named therein (collectively,
the "Underwriters"), pursuant to which the Underwriters are offering up to
8,050,000 Class A shares of the Company owned by Continental and 8,050,000 Class
A shares of the Company owned by CIASA to investors as described in a
registration statement on Form F-1 (File No. 333- ) filed by the Company with
the SEC (as defined below) (the "Initial Public Offering");
WHEREAS, in connection with the Initial Public Offering, the
Company, CIASA and Continental entered into an Amended and Restated Shareholders
Agreement, dated the date hereof (the "Shareholders Agreement");
WHEREAS, immediately after the Initial Public Offering, Continental
will continue to own up to 13,978,125 Class A shares of the Company and CIASA
will continue to own 13,784,375 Class B shares of the Company and up to
1,050,000 Class A shares of the Company; and
WHEREAS, in connection with the Amended and Restated Shareholders
Agreement, the Company has agreed to provide the rights set forth in this
Agreement;
NOW, THEREFORE, in consideration of the foregoing and the mutual
premises, covenants and agreements of the parties hereto, and for other good and
valuable consideration the receipt and sufficiency of which are hereby
acknowledged, the Parties hereto agree as follows:
SECTION 1. DEFINITIONS.
1.1. Defined Terms.
As used in this Agreement, the following terms shall have the following
meanings:
"Adverse Disclosure" means public disclosure of material non-public
information, disclosure of which, in the Board's good faith judgment, after
consultation with independent outside counsel to the Company, (i) would be
required to be made in any Registration Statement filed by the Company so that
such Registration Statement would not be
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false or misleading in any material respect; (ii) would not be required to be
made at such time but for the filing or publication of such Registration
Statement and (iii) the Company has a bona fide business purpose for not
disclosing publicly.
"Affiliates" has the meaning set forth in the Shareholders
Agreement.
"Agreement" has the meaning set forth in the preamble hereto.
"Board" means the Board of Directors or other supervisory committee
or body of the Company or any other entity, as applicable.
"Class A shares" means the Class A shares, no par value, of the
Company.
"Class B shares" means the Class B shares, no par value, of the
Company.
"Company" has the meaning set forth in the preamble hereto.
"Company Sale" has the meaning set forth in Section 2.2(a).
"Demand Notice" has the meaning set forth in Section 2.1(c).
"Demand Registration" has the meaning set forth in Section 2.1(a).
"Demand Registration Statement" has the meaning set forth in Section
2.1(a).
"Exchange Act" means the Securities Exchange Act of 1934, as
amended, and any successor thereto, and any rules and regulations promulgated
thereunder, all as the same shall be in effect from time to time.
"Holder" means any holder of Registrable Securities who is a party
hereto or who succeeds to rights hereunder pursuant to Section 3.4.
"Law" means, as applicable, any and all (i) U.S. and foreign
(including, without limitation, Panama) laws, ordinances, regulations, whether
federal, provincial, state or local, (ii) codes, standards, rules, requirements
and criteria issued under any U.S. or foreign (including, without limitation,
Panama) laws, ordinances or regulations, whether federal, provincial, state or
local and (iii) judgments.
"NASD" means the National Association of Securities Dealers, Inc.
"NYSE" means the New York Stock Exchange.
"Offer" means an offer to persons in the United States to acquire
Registrable Securities.
"Panama" means the Republic of Panama.
"Panamanian" means any person or entity constituting a "Panamanian"
within the meaning of Section __ of the Company's by-laws.
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"Panamanian Law" means any statute, act, order, rule or regulation
enacted by any Panamanian governmental authority or agency.
"Panamanian Listing Authority" means the Comision Nacional de
Valores of the Republic of Panama.
"Party" and "Parties" have the meaning set forth in the recitals.
"Permitted Transferees" or "Permitted Transfer" has the meaning set
forth in Section 2.1 of the Shareholders Agreement.
"Piggyback Registration" has the meaning set forth in Section
2.2(a).
"Prospectus" means the prospectus included in any Registration
Statement, including any preliminary Prospectus, all amendments and supplements
to such prospectus, including post-effective amendments and all other material
incorporated by reference in such prospectus.
"Registrable Securities" means (i) with respect to Continental, up
to 5,665,625 Class A shares of the Company held by Continental and by Holders
that are Permitted Transferees of Continental, (ii) with respect to CIASA, up to
6,521,875 Class A or Class B shares of the Company held by CIASA and by Holders
that are Permitted Transferees of CIASA and (iii) with respect to each of
Continental and CIASA and their respective Permitted Transferees, any securities
that may be issued or distributed or be issuable in respect of any Registrable
Securities by way of conversion, dividend, stock split or other distribution,
merger, consolidation, exchange, recapitalization or reclassification or similar
transaction; provided that (a) the number of Class A shares constituting
Registrable Securities shall be reduced by the number of Class A shares sold or
otherwise transferred to a person that is not a Permitted Transferee permitted
by Section 3.4, and the number of Class B shares constituting Registrable
Securities shall be reduced by the number of Class B shares sold or otherwise
transferred to a person that is not a Permitted Transferee permitted by Section
3.4; (b) the number of Registrable Securities shall be increased from time to
time in accordance with Section 2.3 and 2.4; and (c) that any such Registrable
Securities shall cease to be Registrable Securities to the extent (1) a
Registration Statement with respect to the sale of such Registrable Securities
has been declared effective under the Securities Act and such Registrable
Securities have been disposed of in accordance with the plan of distribution set
forth in such Registration Statement and/or Prospectus in each case in
accordance with applicable laws or (2) such Registrable Securities have been
distributed pursuant to Rule 144 (or any similar provisions then in force) under
the Securities Act or any other exemption from registration under applicable
Law.
"Registration" means registration with the SEC with respect to the
Company's securities for offer and sale to the public under a Registration
Statement. The term "Register" shall have a correlative meaning.
"Registration Expenses" has the meaning set forth in Section 2.9.
"Registration Statement" means any registration statement of the
Company filed with, or to be filed with, the SEC under the rules and regulations
promulgated under the
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Securities Act, including the related Prospectus, amendments and supplements to
such registration statement, including post-effective amendments, and all
exhibits and all material incorporated by reference in such registration
statement.
"Restricted Securities" means any shares of the Company held by
CIASA or Continental that are not Registrable Securities.
"SEC" means the Securities and Exchange Commission.
"Securities Act" means the Securities Act of 1933, as amended, and
any successor thereto, and any rules and regulations promulgated thereunder, all
as the same shall be in effect from time to time.
"Shelf Registration Statement" means a "shelf" registration
statement of the Company that covers certain shares of the Company described in
Section 2.3 on an appropriate form under Rule 415 under the Securities Act, or
any similar rule that may be adopted by the SEC, and all amendments and
supplements to such registration statement, including post-effective amendments,
in each case including the Prospectus contained therein, all exhibits thereto
and any document incorporated by reference therein.
"Underwritten Offering" means a Registration in which Registrable
Securities of the Company are sold to an underwriter or underwriters for
reoffering to the public or in which an underwriter or underwriters commit to
acquire such securities if and to the extent they are not acquired by third
parties.
1.2. General Interpretive Principles. Whenever used in this
Agreement, except as otherwise expressly provided or unless the context
otherwise requires, any noun or pronoun shall be deemed to include the plural as
well as the singular and to cover all genders. The name assigned this Agreement
and the section captions used herein are for convenience of reference only and
shall not be construed to affect the meaning, construction or effect hereof.
Unless otherwise specified, the terms "hereof," "herein" and similar terms refer
to this Agreement as a whole (including the exhibits, schedules and disclosure
statements hereto), and references herein to Sections refer to Sections of this
Agreement.
SECTION 2. REGISTRATION RIGHTS.
2.1. Demand Registrations.
(a) Demand by Holders. Subject to the limitations set forth herein,
so long as either is a Holder, Continental or CIASA may make a written request
to the Company for Registration of all or part of the outstanding shares of
Registrable Securities held by such Holder and any other Holders of Registrable
Securities. Any such requested Registration shall hereinafter be referred to as
a "Demand Registration." A request for a Demand Registration shall specify the
aggregate amount of Registrable Securities to be Registered. The Company shall
file as expeditiously as reasonably possible a Registration Statement relating
to such
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Demand Registration (a "Demand Registration Statement") and shall use its
reasonable best efforts to file and effect the Registration under applicable
Law.
(b) Limitation on Demand Registrations. In no event shall the
Company be required to effect and complete (i) more than two (2) Demand
Registrations requested by each of Continental or CIASA pursuant to Section
2.1(a) (but subject to the Holders' right to request additional Demand
Registrations pursuant to Section 2.1(f), 2.3(b) and 2.3(c)(iii)), (ii) more
than one Demand Registration in any twelve-month period or (iii) any Demand
Registration that would register the lesser of $50 million of the Shares and 5%
of the total Shares of the Company; provided that if, subsequent to the last
sale by a Holder of its Registrable Securities, the Company issues any Shares
and, as a consequence of such issuance, such Holder's remaining Registrable
Securities cease to constitute at least 5% of the total Shares of the Company,
then the limitation set forth in this Section 2.1(b)(iii) shall not apply to one
further Demand Registration by such Holder if such Holder would otherwise
continue to have such right.
(c) Notice of Demand to Other Holders. Promptly upon receipt of any
request for a Demand Registration pursuant to Section 2.1(a) (but in no event
more than 15 business days thereafter), the Company shall deliver a written
notice of any such Registration request specifying the number of Registrable
Securities requested to be registered and the intended method of distribution of
the Registrable Securities (a "Demand Notice") to all other Holders of
Registrable Securities, and the Company shall include in such Demand
Registration all additional Registrable Securities of other Holders with respect
to which the Company has received written requests for inclusion therein within
20 days after the date on which the Demand Notice has been delivered. All
requests made pursuant to this Section 2.1(c) shall specify the class and
aggregate amount of Registrable Securities to be registered.
(d) Delay in Filing; Suspension of Registration. If the filing,
initial effectiveness, publication or continued use of a Demand Registration
Statement at any time would require the Company to make an Adverse Disclosure,
the Company may, upon giving prompt written notice of such action to the
Holders, delay the filing, publication or initial effectiveness of, or suspend
use of, the Demand Registration Statement (a "Demand Suspension"); provided that
such Demand Suspensions shall not extend for more than 90 days in any
twelve-month period. Any Demand Suspension pursuant to this Section 2.1(d) shall
not be effective unless each director and executive officer subject to Section
16(b) of the Exchange Act is prohibited from making purchases and sales during
such Demand Suspension by reason of the existence of material non-public
information that would trigger an Adverse Disclosure. In the case of a Demand
Suspension, the Holders agree to suspend use of the applicable Prospectus in
connection with any sale or purchase, or offer to sell or purchase, Registrable
Securities, upon receipt of the notice referred to above. The Company shall
immediately (i) notify the Holders upon the termination of any Demand
Suspension, (ii) amend or supplement the Prospectus, if necessary, so it does
not contain any untrue statement or omission therein and (iii) furnish to the
Holders such numbers of copies of the Prospectus as so amended or supplemented
as the Holders may reasonably request. The Company represents that, as of the
date hereof, it has no knowledge of any circumstance that would reasonably be
expected to cause it to exercise its rights under this Section 2.1(d).
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(e) Underwritten Offering. If the Holder requesting the Demand
Registration so elects, the offering of Registrable Securities pursuant to a
Demand Registration shall be in the form of an Underwritten Offering. If any
offering pursuant to a Demand Registration involves an Underwritten Offering,
such initiating Holder shall have the right to select the underwriter or
underwriters to administer the offering; provided that such underwriter or
underwriters shall be reasonably acceptable to the Company.
(f) Priority of Securities Registered Pursuant to Demand
Registrations. If the managing underwriter or underwriters of a proposed
Underwritten Offering of Registrable Securities included in a Demand
Registration informs the Company or the Holders of such Registrable Securities
that, in its or their opinion, the number of securities requested to be included
in such Demand Registration exceeds the number which can be sold in (or during
the time of) such offering without being likely to have a significant adverse
effect on the price, timing or distribution of the securities offered or on the
market for the securities offered, then the number of Registrable Securities to
be included in such Demand Registration shall be reduced and allocated as
follows: (i) first, any securities that the Company proposes to sell and (ii)
second, among the Holders in proportion to their respective equity ownership in
the Company at the time of the offering. If, as a consequence of any such
determination occurring during the final Demand Registration available to such
Holder pursuant to Section 2.1(b)(i), the initiating Holder sells fewer
Registrable Securities in such Demand Registration than such Holder requested to
be included, such Holder shall be entitled to one additional Demand
Registration.
(g) Registration Statement Form. Registrations under this Section
2.1 shall be on such appropriate form of the SEC, (i) as shall be selected by
the Company and as shall be deemed appropriate by counsel for the Company and
(ii) as shall permit the disposition of such Registrable Securities in
accordance with the intended method or methods of disposition specified in such
Holders' requests for such Registration. Notwithstanding the foregoing, if,
pursuant to a Demand Registration, (x) the Company proposes to effect
Registration by filing a Registration Statement on Form F-3 (or any successor or
similar short-form registration statement), (y) such Registration is in
connection with an Underwritten Offering and (z) the managing underwriter or
underwriters shall advise the Company in writing that, in its or their opinion,
the use of another form of registration statement is of material importance to
the success of such proposed offering, then such Registration shall be effected
on such other form.
2.2. Piggyback Registrations.
(a) Participation. If the Company at any time proposes to file or
publish a Registration Statement under the Securities Act with respect to any
offering of its securities for its own account or for the account of any other
Persons (other than (i) a Registration under Section 2.1(a) pursuant to which
notice is delivered pursuant to Section 2.1(c), (ii) pursuant to a registration
right granted by the Company as part of a bona fide financing by the Company
structured as a private placement of securities (other than common stock or
warrants to purchase common stock) to be followed, within 270 days of the
consummation thereof, by the filing of a registration statement with respect to
such securities or (iii) a Registration on Form F-4 or S-8 or any similar or
successor form to such Forms (such registration pursuant to clause (iii), a
"Company Sale")), then, as soon as practicable (but in no event less than 30
days prior to the proposed date of filing or publishing, as the case may be,
such Registration Statement), the
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Company shall give written notice of such proposed filing to all Holders of
Registrable Securities, and such notice shall offer the Holders of such
Registrable Securities the opportunity, subject to Section 2.2(b), to Register
under such Registration Statement such number of Registrable Securities as each
such Holder may request in writing (a "Piggyback Registration"). Pursuant and
subject to Section 2.2(b), the Company shall include in such Registration
Statement all such Registrable Securities with respect to which the Company has
received written requests for inclusion within 20 days after the date on which
the Company has delivered its written notice, including, if necessary, filing
with the SEC a post-effective amendment or a supplement to such Registration
Statement or the related Prospectus or any document incorporated therein by
reference or filing any other required document or otherwise supplementing or
amending such Registration Statement, if required by the rules, regulations or
instructions applicable to the registration form used by the Company for such
Registration Statement or by the Securities Act, any state securities or blue
sky laws, or any rules and regulations thereunder; provided that if at any time
after giving written notice of its intention to Register any securities and
prior to the effective date of the Registration Statement filed in connection
with such Registration, the Company shall determine for any reason not to
Register or to delay Registration of such securities, the Company may, at its
election, give written notice of such determination to each Holder of
Registrable Securities and, thereupon, (i) in the case of a determination not to
Register, shall be relieved of its obligation to Register any Registrable
Securities in connection with such Registration (but not from its obligation, if
any, under Section 2.9 to pay Registration Expenses in connection therewith) and
(ii) in the case of a determination to delay Registering, shall be permitted to
delay Registering any Registrable Securities, for the same period as the delay
in Registering such other securities. If the offering pursuant to such
Registration Statement is to be underwritten, then each Holder making a request
for a Piggyback Registration pursuant to this Section 2.2(a) must, and the
Company shall make such arrangements with the underwriters so that each such
Holder may, participate, subject to Section 2.2(b), in such Underwritten
Offering. If the offering pursuant to such Registration Statement is to be on
any other basis, then each Holder making a request for a Piggyback Registration
pursuant to this Section 2.2(a) must, and the Company will make such
arrangements so that each such Holder may, participate, subject to Section
2.2(b), in such offering on such basis. Each Holder of Registrable Securities
shall be permitted to withdraw all or part of such Holder's Registrable
Securities from a Piggyback Registration at any time prior to the Company's
request for acceleration of the effective date thereof.
(b) Priority of Piggyback Registration. If the managing underwriter
or underwriters of any proposed Underwritten Offering of a class of Registrable
Securities included in a Piggyback Registration informs the Company or the
Holders of such class of Registrable Securities that, in its or their opinion,
the number of securities of such class which such Holders and any other Persons
intend to include in such offering exceeds the number which can be sold in (or
during the time of) such offering without being likely to have a significant
adverse effect on the price, timing or distribution of the securities offered or
on the market for the securities offered, then the number of securities to be
included in such Registration as so determined by the managing underwriter or
underwriters (the "Included Securities") shall be allocated as follows: (i)
first, any securities that the Company proposes to sell; (ii) second, among the
Holders in proportion to their respective equity ownership in the Company at the
time of the offering.
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2.3. Sales by CIASA to Independent Panamanians. (a) If at any time
CIASA or Permitted Transferees of CIASA shall sell Class B shares to a
Panamanian who is not a Permitted Transferee (an "Independent Panamanian") and
immediately after giving effect thereto CIASA, together with its Permitted
Transferees, collectively beneficially own fewer than 19.0% but greater than
10.0% of the total outstanding shares of the Company, the number of Registrable
Securities held by Continental shall be increased by (i) if CIASA, together with
its Permitted Transferees, collectively beneficially owned 19.0% or more of the
total outstanding shares of the Company immediately before such sale to an
Independent Panamanian, a number of Class A shares equal to the difference
between the number of shares representing 19.0% of the total outstanding shares
of the Company and the number of Class B shares held by CIASA and its Permitted
Transferees after such sale and (ii) if CIASA, together with its Permitted
Transferees, collectively beneficially owned less than 19.0% of the total
outstanding shares of the Company immediately before such sale to an Independent
Panamanian, a number of Class A shares equal to the number of Class B shares
sold by CIASA or its Permitted Transferee to Independent Panamanians.
(b) If at any time CIASA or Permitted Transferees of CIASA shall
sell Class B shares to an Independent Panamanian and immediately after giving
effect thereto CIASA and Permitted Transferees of CIASA collectively
beneficially own less than 10.0% of the total outstanding shares of the Company,
(i) the total number of Registrable Securities held by Continental shall be
increased to include all Class A shares then owned by Continental, (ii)
Continental may sell any Shares that become Registrable Securities pursuant to
this Section 2.3(b) pursuant to the Shelf Registration Statement described in
Section 2.2(c) below and (iii) the number of Demand Registrations that
Continental has a right to request pursuant to Section 2.1 shall increase by
one.
(c) CIASA and the Company agree that:
(i) At such time as CIASA or a Permitted Transferee of CIASA
enters into serious negotiations to sell such number of Class B
shares to an Independent Panamanian that would result in CIASA and
Permitted Transferees of CIASA collectively beneficially owning less
than 19.0% of the total outstanding shares of the Company, CIASA
shall use its reasonable best efforts to cause the Company, and the
Company shall use its reasonable best efforts, to file as soon as
possible a Shelf Registration Statement providing for the
registration of a number of Registrable Securities held by
Continental equal to the increased number of Restricted Securities
that shall be become Registrable Securities pursuant to Sections
2.3(a) or (b), as the case may be, and such other securities as the
Company may deem appropriate and to have such Shelf Registration
Statement declared effective by the SEC.
(ii) The Company agrees to use its reasonable best efforts to
keep any Shelf Registration Statement required under Section 2.3(c)
continuously effective until all the Registrable Securities covered
by the Shelf Registration Statement have been sold pursuant to the
Shelf Registration Statement (the "Shelf Effectiveness Period"). The
Company further agrees to supplement or amend the Shelf Registration
Statement and the related Prospectus if required by the rules,
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regulations or instructions applicable to the registration form used
by the Company for such Shelf Registration Statement or by the
Securities Act or by any other rules and regulations thereunder for
shelf registration or if reasonably requested by a Holder of
Registrable Securities with respect to information relating to such
Holder, and to use its reasonable best efforts to cause any such
amendment to become effective and such Shelf Registration Statement
and Prospectus to become usable as soon as thereafter practicable.
(iii) If any Shelf Registration Statement required by this
Section 2.3(c), (i) has not been declared effective within 75 days
of the consummation of the triggering sale to an Independent
Panamanian contemplated by Section 2.3(a) or 2.3(b) or (ii) becomes
effective and thereafter either ceases to be effective or the
Prospectus contained therein ceases to be usable, in each case
during the Shelf Effectiveness Period, and such failure to remain
effective or usable exists for more than 75 days (whether or not
consecutive) in any 12-month period, then the number of Demand
Registrations that Continental has a right to request pursuant to
Section 2.1 shall be increased by one.
(iv) If CIASA sells any of its Class B shares to an
Independent Panamanian under circumstances that require the Company
to file the Shelf Registration Statement pursuant to this Section
2.3, then Continental may use the Shelf Registration Statement at
any time to sell such increased number of Registrable Securities as
were granted pursuant to this Section 2.3.
2.4. Registered Offerings of CIASA Shares other than Registrable
Securities. In addition to the rights granted to Continental by Section 2.2, if
at any time the Company proposes to file a Registration Statement with respect
to Restricted Securities held by CIASA, then, as soon as practicable (but in no
event less than 20 days prior to the proposed date of filing such Registration
Statement), the Company shall give written notice of such proposed filing to
Continental and shall offer Continental the opportunity to register under such
Registration Statement such number of Restricted Securities held by Continental
equal to the number of CIASA's Restricted Securities that are proposed to be
registered under such Registration Statement. Continental may, however, in lieu
of exercising its rights to include Restricted Securities in the Registration
Statement described in the first sentence of this Section 2.4, elect in writing
(prior to the filing of the relevant Registration Statement) to increase the
number of Continental's Registrable Securities upon consummation of the proposed
sale of shares by CIASA by a number of Class A shares equal to the number of
shares which are actually sold by CIASA pursuant to such Registration Statement.
If Continental so elects to increase the number of Registrable Securities, such
Registrable Securities shall be subject to the procedures described in Section
2.3(d) of the Shareholders Agreement relating to Permitted Block Trades.
2.5. Black-out Periods.
(a) The Company shall not be obligated to file any Registration
Statement pursuant to Section 2.1 during the period (A) commencing with the date
on which either (1) the Company previously received a request to file a
Registration Statement pursuant to Section 2.1 or (2) the Company, pursuant to
Section 2.2 or 2.4, previously or simultaneously notified the
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Holders of Registrable Securities of its intention to file a Registration
Statement (in either case, such Registration Statement being hereinafter
referred to as the "Preceding Registration Statement") and (B) ending with the
earliest of (1) if such Preceding Registration Statement has not become
effective, 180 days following the filing of such Preceding Registration
Statement, (2) if such Preceding Registration Statement has not been filed, 270
days after notification of intention to file, (3) if such Preceding Registration
Statement has become effective, 180 days after such Preceding Registration
Statement has become effective (subject to any period (which shall not exceed
120 days) after such Preceding Registration Statement becomes effective, which
the managing Underwriter has designated as the minimum period during which the
Company and the Holders shall not engage in any new registered offerings) and
(4) the date of abandonment by the Company of its intention to file such
Preceding Registration Statement or the date of withdrawal of the request under
Section 2.1 by the Party making the request.
2.6. No Inconsistent Agreements. Except for the Underwriting
Agreement, the Company is not currently a party to any agreement with respect to
its securities which is inconsistent with the rights granted to the Holders of
Registrable Securities by this Agreement. No other registration rights have been
granted or will be granted in connection with the Initial Public Offering.
2.7. Registration Procedures.
(a) In connection with the Company's Registration obligations under
Sections 2.1, 2.2 and 2.3, the Company will use its reasonable best efforts to
effect such Registration to permit the sale of such Registrable Securities by
the Holders in accordance with the intended method or methods of distribution
thereof under the Securities Act, or other applicable Law, as expeditiously as
reasonably practicable, and in connection therewith the Company will:
(i) (A) prepare the required Registration Statement, Prospectus or
other applicable required registration and/or listing documents including all
exhibits and financial statements required under applicable law to be filed
therewith (such documents, collectively "Registration Documents"), and such
Registration Documents shall comply as to form with the requirements of the
applicable form and include all financial statements required by the SEC to be
filed therewith and all information reasonably requested by the lead managing
Underwriter or sole Underwriter, if applicable, to be included therein, (B) use
its reasonable best efforts to cause such Registration Statement to become
effective and remain effective, (C) use its reasonable best efforts to not take
any action that would cause a Registration Statement to contain a material
misstatement or omission or to be not effective and usable for resale of
Registrable Securities during the period that such Registration Statement is
required to be effective and usable, and (D) cause each Registration Statement
and the related Prospectus and any amendment or supplement thereto, as of the
effective date of such Registration Statement, amendment or supplement (x) to
comply in all material respects with any requirements of the Securities Act and
the rules and regulations of the SEC and (y) not to contain any untrue statement
of a material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading. Before
filing a Registration Statement or publishing a Prospectus or any other
applicable registration documents, or any amendments or supplements thereto,
furnish to the underwriters, if any, and to the Holders of the Registrable
Securities covered by such
11
Registration Statement, copies of all documents filed with an applicable
regulatory authority in conformity with the requirements of the Securities Act
or any other applicable Law;
(ii) prepare and file with the SEC such amendments and
post-effective amendments to such Registration Statement and supplements to the
Prospectus as may be necessary to keep such Registration effective for the
period of time required by this Agreement;
(iii) notify the participating Holders of Registrable Securities and
the managing underwriter or underwriters, if any, and furnish to each Holder of
Registrable Securities and to each underwriter of an Underwritten Offering of
Registrable Securities, if any, without charge, as many copies of the relevant
documents including the Prospectus, any amendment or supplement thereto and such
other documents as such Holder or underwriter may reasonably request in order to
facilitate the public sale or other disposition of the Registrable Securities;
(iv) use its reasonable best efforts to prevent or obtain the
withdrawal of any stop order or other order suspending the use of any
preliminary or final Prospectus;
(v) on or prior to the date on which the applicable Registration
Statement is declared effective or is published, use its reasonable best efforts
to register or qualify, and cooperate with the selling Holders of Registrable
Securities, the managing underwriter or underwriters, if any, and their
respective counsel, in connection with the registration or qualification of such
Registrable Securities for offer and sale under the securities or "Blue Sky"
laws of each state of the United States and other jurisdiction as any such
selling Holder or managing underwriter or underwriters, if any, or their
respective counsel reasonably request in writing and do any and all other acts
or things reasonably necessary or advisable to keep such registration or
qualification in effect for so long as such Registration Statement remains in
effect and so as to permit the continuance of sales and dealings in such
jurisdictions for as long as may be necessary to complete the distribution of
the Registrable Securities covered by the Registration Statement; provided that
the Company will not be required to qualify generally to do business in any
jurisdiction where it is not then so qualified or to take any action which would
subject it to taxation or general service of process in any such jurisdiction
where it is not then so subject;
(vi) cooperate with the selling Holders of Registrable Securities
and the managing underwriter or underwriters, if any, to facilitate the timely
preparation and delivery of certificates representing Registrable Securities to
be sold and not bearing any restrictive legends;
(vii) use its reasonable best efforts to cause the Registrable
Securities covered by the applicable Registration Statement to be registered
with or approved by such other governmental agencies or authorities as may be
necessary to enable the seller or sellers thereof or the underwriter or
underwriters, if any, to consummate the disposition of such Registrable
Securities;
(viii) obtain for delivery to the Holders of Registrable Securities
being registered and to the underwriter or underwriters, if any, an opinion or
opinions from counsel for the Company dated the effective date of the
Registration Statement or, in the event of an
12
Underwritten Offering, the date of the closing under the underwriting agreement,
in customary form, scope and substance, which counsel and opinions shall be
reasonably satisfactory to such Holders or underwriters, as the case may be, and
their respective counsel;
(ix) in the case of an Underwritten Offering, obtain for delivery to
the Company and the managing underwriter or underwriters, with copies to the
Holders of Registrable Securities included in such Registration, a comfort
letter from the Company's independent certified public accountants in customary
form and covering such matters of the type customarily covered by cold comfort
letters as the managing underwriter or underwriters reasonably request, dated
the date of execution of the underwriting agreement and brought down to the
closing under the underwriting agreement;
(x) cooperate with each seller of Registrable Securities and each
underwriter, if any, participating in the disposition of such Registrable
Securities and their respective counsel in connection with any filings required
to be made with the NASD;
(xi) provide and cause to be maintained in the United States or
Panama, as applicable, a transfer agent and registrar for all Registrable
Securities covered by the applicable Registration Statement from and after a
date not later than the effective date of such Registration Statement;
(xii) cause all Registrable Securities covered by the applicable
Registration Statement to be listed on each securities exchange on which any of
the Company's securities are then listed or quoted and on each inter-dealer
quotation system on which any of the Company's securities are then quoted;
(xiii) make available upon reasonable notice at reasonable times and
for reasonable periods for inspection by a representative appointed by the
majority of the Holders of each class of Registrable Securities covered by the
applicable Registration Statement, by any underwriter participating in any
disposition to be effected pursuant to such Registration Statement and by any
attorney, accountant or other agent retained by such Holders or any such
underwriter, all pertinent financial and other records, pertinent corporate
documents and properties of the Company, and cause all of the Company's
officers, directors and employees and the independent public accountants who
have certified its financial statements to make themselves available to discuss
the business of the Company and to supply all information reasonably requested
by any such Person in connection with such Registration Statement as shall be
necessary to enable them to exercise their due diligence responsibility pursuant
to the requirements of applicable Law; and
(xiv) (A) within a reasonable time prior to the filing of any
Registration Statement, any Prospectus, any amendment to a Registration
Statement or amendment or supplement to a Prospectus, provide copies of such
document to the Holders of Registrable Securities and to counsel to such Holders
and to the underwriter or underwriters of an Underwritten Offering of
Registrable Securities, if any; and
(B) if reasonably requested by any Holder selling Registrable
Securities pursuant to a Registration Statement, as promptly as reasonably
practicable, incorporate in a
13
Prospectus supplement or post-effective amendment to such Registration Statement
such information as such Holder shall, on the basis of a written opinion of
nationally recognized counsel experienced in such matters, determine to be
required to be included therein by applicable law and make any required filings
of such Prospectus supplement or such post-effective amendment as required by
applicable law; provided that the Company shall not be required to take any
actions under this Section 2.7(xiv)(B) that are not, in the reasonable opinion
of counsel for the Company, required by applicable law; and fairly consider such
other reasonable changes in any such document prior to or after the filing
thereof as the counsel to the Holders or the underwriter or the underwriters may
request and not file any such document in a form to which Holders of a majority
of the Registrable Securities being sold by all Holders in such offering or any
underwriter shall reasonably object; and make such of the representatives of the
Company as shall be reasonably requested by the Holders of Registrable
Securities being registered or any underwriter available for discussion of such
document;
(C) within a reasonable time prior to the filing of any
document which is to be incorporated by reference into a Registration Statement
or a Prospectus, provide copies of such document to counsel for the Holders;
fairly consider such reasonable changes in such document prior to or after the
filing thereof as counsel for such Holders or such underwriter shall request;
and make such of the representatives of the Company as shall be reasonably
requested by such counsel available for discussion of such document; and
(xv) otherwise use its reasonable best efforts to comply with all
applicable rules and regulations of the SEC, and make available to its security
holders, as soon as reasonably practicable, an earnings statement covering the
period of at least twelve (12) months, but not more than eighteen (18) months,
beginning with the first month after the effective date of the Registration
Statement, which earnings statement shall meet the requirements of the
Securities Act.
(b) The Company may require each seller of Registrable Securities as
to which any Registration is being effected to furnish to the Company such
information regarding the distribution of such securities and such other
information relating to such Holder and its ownership of Registrable Securities
as the Company may from time to time reasonably request in writing. Each Holder
of Registrable Securities agrees to furnish such information to the Company and
to cooperate with the Company as reasonably necessary to enable the Company to
comply with the provisions of this Agreement.
(c) The Company shall advise each of the Holders and, if requested
by any such person, confirm such advice in writing (which advice pursuant to
clauses (ii) through (v) of this Section 2.7(c) shall be accompanied by an
instruction to suspend the use of the prospectus until the requisite changes
have been made):
(i) when any Registration Statement and any amendment thereto has
been filed with the Commission and when such Registration Statement or any
post-effective amendment thereto has become effective;
(ii) of any request by the Commission for amendments or supplements
to any Registration Statement or the prospectus included therein or for
additional information;
14
(iii) of the issuance by the Commission of any stop order suspending
the effectiveness of any Registration Statement or the initiation of any
proceedings for that purpose;
(iv) of the receipt by the Company of any notification with respect
to the suspension of the qualification of the Registrable Securities for sale in
any jurisdiction or the initiation or threatening of any proceeding for such
purpose; and
(v) of the happening of any event that requires the making of any
changes in any Registration Statement or the prospectus included therein in
order that the statements therein are not misleading and do not omit to state a
material fact required to be stated therein or necessary to make the statements
therein not misleading.
(d) Each Holder agrees that, upon receipt of any notice from the
Company pursuant to Section 2.7(c)(ii) through (v), such Holder will discontinue
disposition of any Registrable Securities until such Holder's receipt of copies
of a supplemental or amended prospectus or until advised in writing (the
"Advice") by the Company that the use of the applicable prospectus may be
resumed. In the event the Company shall give any such notice, the period during
which the applicable Registration Statement is required to be maintained
effective shall be extended by the number of days during the period from and
including the date of the giving of such notice to and including the date when
each seller of Registrable Securities covered by such Registration Statement
either receives the copies of the supplemented or amended Prospectus or receives
Advice.
2.8. Underwritten Offerings.
(a) Underwriting Agreements. If requested by the underwriters for
any Underwritten Offering, the Company shall enter into an underwriting
agreement with such underwriters for such offering, such agreement to be
reasonably satisfactory in substance and form to the Company, and the
underwriters. Such agreement shall contain such representations and warranties
by the Company and such other terms as are generally prevailing in agreements of
that type, including, without limitation, indemnities generally to the effect
and to the extent of those provided in Section 3.1. The Holders of any
Registrable Securities to be included in any Underwritten Offering by such
underwriters shall enter into such underwriting agreement at the request of the
Company. The Holders of Registrable Securities to be distributed by such
Underwriters shall be parties to such Underwriting Agreement and may, at their
option, require that all of the representations and warranties by, and the other
agreements on the part of, the Company to and for the benefit of such
underwriters also be made to and for the benefit of such Holders and any or all
of the conditions precedent to the obligations of such underwriters under such
underwriting agreement be conditions precedent to the obligations of such
Holders. No Holder shall be required in any such underwriting agreement to make
any representations or warranties to, or agreements with, the Company or the
underwriters other than representations, warranties or agreements regarding such
Holder, such Holder's Registrable Securities, such Holder's intended method of
distribution and any representations required by law.
(b) Participation in Underwritten Registrations. No Person may
participate in any Underwritten Offering hereunder unless such Person (i) agrees
to sell such Person's securities on the basis provided in any underwriting
arrangements approved by the Persons
15
entitled to approve such arrangements and (ii) completes and executes all
questionnaires, powers of attorney, indemnities, underwriting agreements and
other documents required under the terms of such underwriting arrangements.
(c) Piggyback by Holders in Underwritten Primary Offerings. If the
Company at any time proposes to register any of its securities under the
Securities Act as contemplated by Section 2.2 and such securities are to be
distributed by or through one or more Underwriters, then the Holders of
Registrable Securities to be distributed by such Underwriters pursuant to
Piggyback Rights shall be parties to the Underwriting Agreement between the
Company and such Underwriters and may, at their option, require that any or all
of the representations and warranties by, and the other agreements on the part
of, the Company to and for the benefit of such Underwriters shall also be made
to and for the benefit of such holders of Registrable Securities and that any or
all of the conditions precedent to the obligations of such Underwriters under
such underwriting agreement be conditions precedent to the obligations of such
holders of Registrable Securities. Any such Holder of Registrable Securities
shall not be required to make any representations or warranties to or agreements
with the Company or the Underwriters other than representations, warranties or
agreements regarding such Holder, such Holder's Registrable Securities and such
Holder's intended method of distribution and any other representation required
by law.
(d) Holdback Agreements. (i) Each Holder of Registrable Securities
agrees, if so required by the managing Underwriter, that it will agree to
"Holdbacks" to the extent that (A) such Holdbacks apply to the Company and
Holders of all other Registrable Securities on equal or more restrictive terms
and (B) such Holdbacks were limited to one hundred eighty (180) days after any
underwritten registration pursuant to Section 2.1 or 2.2 has become effective or
after any sale under a Registration Statement required by Section 2.3. For the
purpose of this Agreement, to "Holdback" is to refrain from selling, making any
short sale of, loaning, granting any option for the purchase of, effecting any
public sale or distribution of or otherwise disposing of any securities of the
Company, except as part of such underwritten registration, whether or not such
holder participates in such registration. Each Holder of Registrable Securities
agrees that the Company may instruct its transfer agent to place stop transfer
notations in its records to enforce such Holdbacks.
(i) The Company agrees (A) if so required by the managing
Underwriter, that it would be subject to the same Holdbacks as the holders of
Registrable Securities, except pursuant to registrations on Form F-4, S-8, S-14
or S-15 or any successor or similar forms thereto, and (B) to cause each holder
of its securities or any securities convertible into or exchangeable or
exercisable for any of such securities, in each case purchased from the Company
at any time after the date of this Agreement (other than in a public offering)
to agree to such Holdbacks.
2.9. Registration Expenses. In the case of the first two Demand
Registrations under this Agreement, 50% of the Company's expenses incident to
the Company's performance of or compliance with this Agreement will be paid by
the Company and the remaining 50% will be paid ratably by all Holders in
proportion to the number of their respective Registrable or Restricted
Securities, as the case may be, that are included in such Registration; provided
that Continental shall have initiated at least one of such Registrations. In the
case of all Registrations
16
other than the first two Demand Registrations, all such expenses shall be paid
ratably by all Holders (including the Company) in proportion to the number of
their respective Registrable or Restricted Securities, as the case may be, that
are included in such Registration. The expenses incident to the Company's
performance of or compliance with this Agreement, include, without limitation,
(i) all fees and expenses (other than registration and filing fees) associated
with filings required to be made with the SEC, the NASD, the NYSE or the
Panamanian Listing Authority, (ii) all fees and expenses in connection with
compliance with state securities or "Blue Sky" laws, (iii) all translating,
printing, duplicating, word processing, messenger, telephone, facsimile and
delivery expenses (including expenses of printing certificates for the
Registrable Securities in a form eligible for deposit with The Depository Trust
Company or other similar depository institution and of printing prospectuses),
(iv) all fees and disbursements of counsel for the Company and of all
independent certified public accountants of the Company (including the expenses
of any special audit and cold comfort letters required by or incident to such
performance); (v) Securities Act liability insurance or similar insurance if the
Company so desires or the underwriters so require in accordance with
then-customary underwriting practice, (vi) all fees and expenses (other than
listing fees) incurred in connection with the listing of the Registrable
Securities on any securities exchange or quotation of the Registrable Securities
on any inter-dealer quotation system, (vii) all applicable rating agency fees
with respect to the Registrable Securities and (viii) all fees and expenses of
any special experts or other Persons retained by the Company in connection with
any Registration. Notwithstanding the foregoing, the Company shall not be
required to pay, or reimburse any person for, any (i) registration or filing
fees associated with filings required to be made with any governmental or
listing authority or (ii) fees and disbursements of underwriters or the Holders
(including the fees of their respective counsel). Any expenses not payable by
the Company shall be paid by the Holders of Registrable Securities in proportion
to their number of Registrable Securities included in such Registration.
2.10. Rules 144 and 144A.
The Company shall timely file the reports required to be filed by it
under the Securities Act and the Exchange Act (including but not limited to the
reports under Sections 13 and 15(d) of the Exchange Act referred to in
subparagraph (c) of Rule 144 adopted by the Commission under the Securities Act)
and the rules and regulations adopted by the Commission thereunder (or, if the
Company is not required to file such reports, will, upon the request of any
holder of Registrable Securities, make publicly available other information) and
will take such further action as any holder of Registrable Securities may
reasonably request, all to the extent required from time to time to enable such
holder to sell Registrable Securities without registration under the Securities
Act within the limitation of the exemptions provided by (a) Rule 144 under the
Securities Act, as such Rule may be amended from time to time, or (b) any
similar rule or regulation hereafter adopted by the Commission. Upon the request
of any holder of Registrable Securities, the Company will deliver to such holder
a written statement as to whether it has complied with the requirements of this
Section 2.10.
SECTION 3. MISCELLANEOUS.
3.1. Indemnification.
17
(a) Indemnification by Company. The Company agrees to indemnify and
hold harmless, to the full extent permitted by law, each Holder of Registrable
Securities, its Affiliates and their respective partners, officers, directors,
shareholders, employees and advisors and each Person who controls (within the
meaning of the Securities Act or the Exchange Act) such Persons from and against
any and all losses, claims, damages, liabilities, judgments (or actions or
proceedings in respect thereof, whether or not such indemnified party is a party
thereto) and expenses, joint or several (including reasonable costs of
investigation and legal expenses) (each, a "Loss" and collectively "Losses")
arising out of or based upon (A) any untrue or alleged untrue statement of a
material fact contained in any Registration Statement under which such
Registrable Securities were Registered under the Securities Act (including any
final, preliminary or summary Prospectus contained therein or any amendment
thereof or supplement thereto or any documents incorporated by reference
therein), (B) any omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein (in
the case of a Prospectus or preliminary Prospectus, in light of the
circumstances under which they were made) not misleading, (C) any other
violation by the Company of the Securities Act, the Exchange Act or any state
securities law or of any rule or regulation promulgated under the Securities
Act, the Exchange Act or any state securities law applicable to the Company and
relating to any action or inaction required of the Company in connection with
any registration of Registrable Shares, or (D) any violation or alleged
violation of the securities Law of Panama; provided that the Company shall not
be liable to any particular indemnified party in any such case to the extent
that any such Loss arises out of or is based upon an untrue statement or alleged
untrue statement of a material fact or omission or alleged omission of a
material fact necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading, in any such case made
in any such Registration Statement in reliance upon and in conformity with
written information furnished to the Company by such indemnified party expressly
for use in the preparation thereof, provided further that the Company shall not
be liable to any Person who participates as an Underwriter in the offering or
sale of Registrable Securities or to any other Person, if any, who controls such
Underwriter within the meaning of the Securities Act, in any such case to the
extent that any such Losses arise out of such Person's failure to send or give a
copy of the final Offering Document, as the same may be then supplemented or
amended, within the time required by the Securities Act or other applicable
foreign securities Laws to the Person asserting the existence of an untrue
statement or alleged untrue statement or omission or alleged omission at or
prior to the written confirmation of the sale of Registrable Securities to such
Person if such statement or omission was corrected in such final Offering
Document. This indemnity shall be in addition to any liability the Company may
otherwise have. Such indemnity shall remain in full force and effect regardless
of any investigation made by or on behalf of such Holder or any indemnified
party and shall survive the transfer of such securities by such Holder.
(b) Indemnification by the Selling Holder of Registrable Securities.
Each selling Holder of Registrable Securities agrees (severally and not jointly)
to indemnify and hold harmless, to the full extent permitted by law, the
Company, its directors and officers and each Person who controls the Company
(within the meaning of the Securities Act and the Exchange Act) from and against
any Losses resulting from any untrue statement of a material fact or any
omission of a material fact required to be stated in the Registration Statement
under which such Registrable Securities were Registered under the Securities Act
(including any final, preliminary or summary Prospectus contained therein or any
amendment thereof or supplement thereto or
18
any documents incorporated by reference therein), or necessary to make the
statements therein (in the case of a Prospectus or preliminary Prospectus, in
light of the circumstances under which they were made) not misleading, to the
extent, but only to the extent, that such untrue statement or omission is made
in reliance upon and in conformity with information furnished in writing by such
selling Holder to the Company specifically for inclusion in such Registration
Statement and has not been corrected in a subsequent writing prior to or
concurrently with the sale of the Registrable Securities to the Person asserting
such loss, claim, damage, liability or expense. In no event shall the liability
of any selling Holder of Registrable Securities hereunder be greater in amount
than the dollar amount of the proceeds received by such Holder under the sale of
the Registrable Securities giving rise to such indemnification obligation. Each
Holder also shall indemnify any underwriters of the Registrable Securities,
their officers and directors and each person who controls such underwriters
(within the meaning of the Securities Act) to the same extent as provided above
with respect to the indemnification of the Company.
(c) Conduct of Indemnification Proceedings. Any Person entitled to
indemnification hereunder will (i) give prompt written notice to the
indemnifying party of any claim with respect to which it seeks indemnification
(provided that any delay or failure to so notify the indemnifying party shall
relieve the indemnifying party of its obligations hereunder only to the extent,
if at all, that it is actually and materially prejudiced by reason of such delay
or failure) and (ii) permit such indemnifying party to assume the defense of
such claim with counsel reasonably satisfactory to the indemnified party;
provided that any Person entitled to indemnification hereunder shall have the
right to select and employ separate counsel and to participate in the defense of
such claim, but the fees and expenses of such counsel shall be at the expense of
such Person unless (i) the indemnifying party has agreed in writing to pay such
fees or expenses, (ii) the indemnifying party shall have failed to assume the
defense of such claim within a reasonable time after receipt of notice of such
claim from the Person entitled to indemnification hereunder and employ counsel
reasonably satisfactory to such Person, (iii) the indemnified party has
reasonably concluded (based on advice of counsel) that there may be legal
defenses available to it or other indemnified parties that are different from or
in addition to those available to the indemnifying party, or (iv) in the
reasonable judgment of any such Person, based upon advice of its counsel, a
conflict of interest may exist between such Person and the indemnifying party
with respect to such claims (in which case, if the Person notifies the
indemnifying party in writing that such Person elects to employ separate counsel
at the expense of the indemnifying party, the indemnifying party shall not have
the right to assume the defense of such claim on behalf of such Person). If such
defense is not assumed by the indemnifying party, the indemnifying party will
not be subject to any liability for any settlement made without its consent, but
such consent may not be unreasonably withheld; provided that an indemnifying
party shall not be required to consent to any settlement involving the
imposition of equitable remedies or involving the imposition of any material
obligations on such indemnifying party other than financial obligations for
which such indemnified party will be indemnified hereunder. If the indemnifying
party assumes the defense, the indemnifying party shall not have the right to
settle such action without the consent of the indemnified party. No indemnifying
party shall consent to entry of any judgment or enter into any settlement which
does not include as an unconditional term thereof the giving by the claimant or
plaintiff to such indemnified party of an unconditional release from all
liability in respect to such claim or litigation. It is understood that the
indemnifying party or parties shall not, in connection with any proceeding or
related proceedings in the same jurisdiction, be liable for the reasonable fees,
disbursements and other
19
charges of more than one separate firm admitted to practice in such jurisdiction
at any one time from all such indemnified party or parties unless (x) the
employment of more than one counsel has been authorized in writing by the
indemnified party or parties, (y) an indemnified party has reasonably concluded
(based on advice of counsel) that there may be legal defenses available to it
that are different from or in addition to those available to the other
indemnified parties or (z) a conflict or potential conflict exists or may exist
(based on advice of counsel to an indemnified party) between such indemnified
party and the other indemnified parties, in each of which cases the indemnifying
party shall be obligated to pay the reasonable fees and expenses of such
additional counsel or counsels.
(d) Contribution. The indemnification provided for under this
Agreement shall remain in full force and effect regardless of any investigation
made by or on behalf of the indemnified party or any officer, director or
controlling Person of such indemnified party and shall survive the transfer of
securities. If for any reason the indemnification provided for in paragraphs (a)
and (b) of this Section 3.1 is unavailable to an indemnified party or
insufficient to hold it harmless as contemplated by paragraphs (a) and (b) of
this Section 3.1, then the indemnifying party shall contribute to the amount
paid or payable by the indemnified party as a result of such Loss in such
proportion as is appropriate to reflect the relative fault of the indemnifying
party on the one hand and the indemnified party on the other. The relative fault
shall be determined by reference to, among other things, whether the untrue or
alleged untrue statement of a material fact or the omission or alleged omission
to state a material fact relates to information supplied by the indemnifying
party or the indemnified party and the parties' relative intent, knowledge,
access to information concerning the matter with respect to which the claim was
asserted and opportunity to correct or prevent such untrue statement or
omission. Notwithstanding anything in this Section 3.1(d) to the contrary, no
indemnifying party (other than the Company) shall be required pursuant to this
Section 3.1(d) to contribute any amount in excess of the amount by which the net
proceeds received by such indemnifying party from the sale of Registrable
Securities in the offering to which the Losses of the indemnified parties relate
exceeds the amount of any damages which such indemnifying party has otherwise
been required to pay by reason of such untrue statement or omission. The parties
hereto agree that it would not be just and equitable if contribution pursuant to
this Section 3.1(d) were determined by pro rata allocation or by any other
method of allocation that does not take account of the equitable considerations
referred to in the immediately preceding paragraph. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any Person who was not
guilty of such fraudulent misrepresentation. If indemnification is available
under this Section 3.1, the indemnifying parties shall indemnify each
indemnified party to the full extent provided in Sections 3.1(a) and 3.1(b)
without regard to the relative fault of said indemnifying parties or indemnified
party.
3.2. Remedies. It is hereby agreed and acknowledged that it will be
impossible to measure in money the damage that would be suffered if the parties
fail to comply with any of the obligations herein imposed on them and that in
the event of any such failure, an aggrieved Person will be irreparably damaged
and will not have an adequate remedy at law. Any such Person shall, therefore,
be entitled (in addition to any other remedy to which it may be entitled in law
or in equity) to injunctive relief, including, without limitation, specific
performance, to enforce such obligations, and if any action should be brought in
equity to enforce any of the provisions of this Agreement, none of the parties
hereto shall raise the defense that there is an
20
adequate remedy at law. In addition, in the case of a material breach of this
Agreement, CIASA or Continental, as applicable, shall have the rights to
terminate the Alliance Agreement or the Services Agreement as described in and
in accordance with those agreements.
3.3. Notices. All notices, other communications or documents
provided for or permitted to be given hereunder, shall be made in writing and
shall be given either personally by hand-delivery, by facsimile transmission, or
by air courier guaranteeing overnight delivery:
(a) if to the Company or to CIASA:
Copa Holdings, S.A.
Avenida Justo Arosmena y Calle 39
Panama 1
Panama
Facsimile: +507 227-1952
Attention: Pedro Heilbron
with copies to:
Galindo, Arias y Lopez
Edif. Omanco
Apartado 8629
Panama 5
Panama
Facsimile: +507 263-5335
Attention: Jaime A. Arias C.
and to:
Simpson Thacher & Bartlett LLP
725 Lexington Ave.
New York, New York 10017
United States of America
Facsimile: (212) 445-2502
Attention: David L. Williams
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(b) if to Continental:
Continental Airlines, Inc.
1600 Smith Street
Houston, Texas 77002
United States of America
Facsimile: (713) 324-3099
Attention: Senior Vice President - Asia/Pacific and
Corporate Development
with copies to:
Continental Airlines, Inc.
1600 Smith Street
Houston, Texas 77002
United States of America
Facsimile: (713) 324-5161
Attention: Senior Vice President and General Counsel
Each Holder, by written notice given to the Company in accordance
with this Section 3.3 may change the address to which notices, other
communications or documents are to be sent to such Holder. All notices, other
communications or documents shall be deemed to have been duly given: (i) at the
time delivered by hand, if personally delivered; (ii) when receipt is
acknowledged in writing by addressee, if by facsimile transmission and (iii) on
the first business day with respect to which a reputable air courier guarantees
delivery; provided that notices of a change of address shall be effective only
upon receipt.
3.4. Successors, Assigns and Transferees.
The provisions of this Agreement shall be binding upon, and shall
inure to the benefit of, the respective successors and assigns of Continental
and CIASA; provided that the benefit of this Agreement may not be assigned or
transferred in whole or in part by Continental or CIASA without the prior
written consent of the other Party unless such assignment or transfer is by a
Party to a Permitted Transferee and such Permitted Transfer is made in
accordance with the terms of Section 2.1 of the Shareholders Agreement; and
provided, further, that no such assignment shall be binding upon or obligate the
Company to any such Permitted Transferee unless and until the Company shall have
received (i) notice of such assignment as herein provided, (ii) a written
agreement by the assigning or transferring party, in form and substance
reasonably satisfactory to the Company, to remain bound by the terms of this
Agreement and (iii) a written agreement of the Permitted Transferee, in form and
substance reasonably satisfactory to the Company, to be bound by the terms of
this Agreement.
3.5. Recapitalizations, Exchanges, etc., Affecting Registrable
Securities. The provisions of this Agreement shall apply, to the full extent set
forth herein with respect to the Registrable Securities, to any and all
securities or capital stock of the Company or any successor or assign of the
Company (whether by merger, consolidation, sale of assets or otherwise) which
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may be issued in respect of, in exchange for, or in substitution of such
Registrable Securities, by reason of any dividend, split, issuance, reverse
split, combination, recapitalization, reclassification, merger, consolidation or
otherwise.
3.6. Governing Law; Arbitration.
(a) THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO AGREEMENTS MADE AND TO BE
PERFORMED WITHIN THE STATE.
(b) (i) Any controversy or claim arising out of or relating to this
Agreement, or the breach thereof, shall be settled by arbitration administered
in accordance with the International Arbitration Rules of the International
Chamber of Commerce Court of International Arbitration (the "ICC"). Judgment on
the award rendered by the arbitrators may be entered in any court having
jurisdiction thereof.
(ii) 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 Miami, Florida. The language of the arbitration shall be English, but
documents or testimony may be submitted in any other language if a translation
is provided.
(iii) 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.
(iv) 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.
3.7. Headings. The section and paragraph headings contained in this
Agreement are for reference purposes only and shall not in any way affect the
meaning or interpretation of this Agreement.
3.8. Severability. Whenever possible, each provision or portion of
any provision of this Agreement will be interpreted in such manner as to be
effective and valid under applicable law but if any provision or portion of any
provision of this Agreement is held to be invalid, illegal or unenforceable in
any respect under any applicable law in any jurisdiction, such invalidity,
illegality or unenforceability will not affect any other provision or portion of
any provision in such jurisdiction, and this agreement will be reformed,
construed and enforced in such jurisdiction as if such invalid, illegal or
unenforceable provision or portion of any provision had never been contained
therein.
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3.9. Amendment; Waiver.
(a) This Agreement may not be amended or modified and waivers and
consents to departures from the provisions hereof may not be given, except by an
instrument or instruments in writing making specific reference to this Agreement
and signed by the Company, the Holders of a majority of Registrable Securities
then outstanding and, so long as they are Holders, Continental and CIASA. Each
Holder of any Registrable Securities at the time or thereafter outstanding shall
be bound by any amendment, modification, waiver or consent authorized by this
Section 3.9(a), whether or not such Registrable Securities shall have been
marked accordingly.
(b) The waiver by any party hereto of a breach of any provision of
this Agreement shall not operate or be construed as a further or continuing
waiver of such breach or as a waiver of any other or subsequent breach. Except
as otherwise expressly provided herein, no failure on the part of any party to
exercise, and no delay in exercising, any right, power or remedy hereunder, or
otherwise available in respect hereof at law or in equity, shall operate as a
waiver thereof, nor shall any single or partial exercise of such right, power or
remedy by such party preclude any other or further exercise thereof or the
exercise of any other right, power or remedy.
3.10. Counterparts. This Agreement may be executed in any number of
separate counterparts and by the parties hereto in separate counterparts each of
which when so executed shall be deemed to be an original and all of which
together shall constitute one and the same agreement.
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IN WITNESS WHEREOF, the parties hereto have caused this instrument
to be duly executed as of the date first written above.
COPA HOLDINGS, S.A.
By:
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Name:
Title:
CORPORACION DE INVERSIONES AEREAS, S.A.
By:
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Name:
Title:
CONTINENTAL AIRLINES, INC.
By:
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Name:
Title: