Form of Intersyndicate Agreement for the Global Sale And Placement of 525,000,000 Units, Including Units in the Form of American Depositary Shares of Banco Santander (Brasil) S.A.
Exhibit 99.2
Form of Intersyndicate Agreement
for the Global Sale And Placement of
525,000,000 Units, Including Units in the Form of American Depositary Shares of
October 6, 2009
Banco Santander (Brasil) S.A. (the “Company”), a sociedade por ações (corporation),
incorporated under the laws of the Federative Republic of Brazil (“Brazil”) has entered into a
Brazilian underwriting agreement (the “Brazilian Underwriting Agreement”), dated as of the date
hereof, with Banco Santander (Brasil) S.A., Banco Credit Suisse (Brasil) S.A., Banco Xxxxxxx Xxxxx
de Investimentos S.A. and Banco BTG Pactual S.A. (each a “Brazilian Underwriter”, and together the
“Brazilian Underwriters”) for the sale by the Company of an aggregate of [•] units, each of which
represents initially 48.125 subscription receipts for common shares, 6.875 common shares, 43.750
subscription receipts for preferred shares and 6.250 preferred shares, and after the Capital
Increase Approval Date (as defined in the International Underwriting Agreement (as defined below))
55 common shares, without par value, and 50 preferred shares, without par value, to be issued by the Company (the “Firm Units”). In the Brazilian Underwriting Agreement, the
Company also granted an option to the Brazilian Underwriters to acquire additional units
(“Optional Units”, and, together with the Firm Units, the “Units”) to cover over-allotments, if
any. The Brazilian Underwriters are collectively referred to herein as a “Syndicate”.
Pursuant to an international underwriting and placement agreement (the “International
Underwriting Agreement”), dated the date hereof, among Santander Investment Securities Inc., Credit
Suisse Securities (USA) LLC, Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated and UBS Securities
LLC (the “Representatives”, and, together with the underwriters named in Schedule A to the
International Underwriting Agreement, the “International Underwriters”, and together with the
Brazilian Underwriters, the “Underwriters”) act as placement agents on behalf of the Brazilian
Underwriters with respect to the placement of the Units outside Brazil, subject to the terms and
conditions stated therein. The International Underwriters are collectively referred to herein as a
“Syndicate”.
Pursuant to the International Underwriting Agreement, the Company proposed, subject to the
terms and conditions stated therein, to sell to the International Underwriters, [•] Units in the
form of American depositary shares (the “Firm ADSs”), in the respective amounts set forth in
Schedule A thereto. Each ADS represents one Unit. The ADSs will be evidenced by American
depositary receipts (“ADRs”) to be issued under a deposit agreement, dated as of the First Closing
Date (as defined in the International Underwriting Agreement), among the Company, JPMorgan Chase
Bank, N.A. as depositary, and the registered holders and beneficial owners from time to time of the
ADSs issued hereunder. The ADSs are offered by the International Underwriters in the United States
and other countries outside of Brazil. In addition, the Company granted the International
Underwriters an option, exercisable by Credit Suisse Securities (USA) LLC, upon notification of the
other Representatives to purchase up to an additional 75,000,000 Units in the form of ADSs (less
the number of Optional Units acquired by the Brazilian Underwriters) within 30 days from the date
of the commencement of trading of ADSs on the New York
Stock Exchange (“Optional ADSs”, and, together with the Firm ADSs, the “ADSs”). The Units, together with ADSs, are hereinafter
collectively referred to as the “Offered Securities.”
The International Underwriters and the Brazilian Underwriters deem it necessary and advisable
that certain of the activities of the International Underwriters and the Brazilian Underwriters be
coordinated pursuant to this Agreement and hereby agree as follows:
1. Inter-syndicate Purchases and Sales. The International Underwriters and the Brazilian
Underwriters agree that they will consult with each other as to the availability for sale to the
public from time to time of Offered Securities placed on behalf of or purchased from the Company
pursuant to the International Underwriting Agreement and the Brazilian Underwriting Agreement,
respectively, until the earlier of (a) the completion of the distribution of the Offered Securities
offered by the International Underwriters outside Brazil and (b) the completion of the distribution
of the Offered Securities offered by the Brazilian Underwriters in Brazil. From time to time, the
International Underwriters and the Brazilian Underwriters, may purchase and sell between Syndicates
such number of ADSs or Units, as agreed upon among the International Underwriters and the Brazilian
Underwriters.
Unless otherwise determined by agreement of the Representatives and the Brazilian
Underwriters, the price and currency settlement of any Offered Securities so purchased or sold
shall be the then effective public offering price, in the currency contemplated for the placement
and purchase of the Offered Securities in the International Underwriting Agreement and the
Brazilian Underwriting Agreement, as applicable, less (a) the selling concession that would
otherwise apply to such Offered Securities if such Offered Securities were not purchased and sold
under this Section 1 or (b) such lesser amount as the Representatives and the Brazilian
Underwriters may agree. Settlement with respect to any Offered Securities transferred hereunder
prior to the First Closing Date shall be made on the First Closing Date, if feasible, but in no
event later than three business days after the transfer date, and, in the case of purchases and
sales made after the First Closing Date, as promptly as practicable but in no event later than
three business days after the transfer date. Certificates representing the Units so placed or ADRs
so purchased, as the case may be, shall be delivered on the respective settlement dates. For
purposes of Rule 15c6-1 under the United States Securities Exchange Act of 1934, the settlement
dates set forth herein or established pursuant to the provisions hereof shall prevail if later than
the applicable settlement dates prescribed by or pursuant to such Rule. The liability for payment
to the Company of the purchase price of the Offered Securities being placed or purchased under the
International Underwriting Agreement and the liability for payment to the Company of the purchase
price of the Offered Securities being placed or purchased under the Brazilian Underwriting
Agreement shall not be affected by the provisions of this Agreement.
The proportionate share of any International Underwriter or Brazilian Underwriter in respect
of the obligation of International Underwriters or Brazilian Underwriters to place or purchase
Offered Securities under this Section 1 shall, unless such International Underwriter or Brazilian
Underwriter otherwise agrees, as the case may be, be no greater than the proportion of (a) the
total number of Firm ADSs or Firm Units (plus such additional Offered Securities as may be required
by the International Underwriting Agreement or the Brazilian Underwriting Agreement to be placed or
purchased by such International Underwriter or Brazilian Underwriter in the event of a default by
one or more of the International Underwriters or Brazilian Underwriters) that such International
Underwriter or Brazilian Underwriter is obligated to place or purchase under the International
Underwriting Agreement or the Brazilian Underwriting Agreement, respectively (hereinafter referred
to as such International Underwriter’s or Brazilian Underwriter’s “underwriting commitment”), to
(b) the total number of shares of Firm ADSs or Firm Units, as applicable. In making the foregoing
computation, or otherwise whenever computations are contemplated herein that involve both numbers
of ADSs and numbers of Units, such computations shall be made on a consistent basis, by first
converting the number of ADSs into the number of Units they represent.
2. Selling Restrictions. Each International Underwriter agrees that, except for (a)
placements,
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purchases and sales among Underwriters pursuant to this Agreement and (b) stabilization
transactions contemplated under Section 3 hereof, it has not offered, sold or delivered, and will
not offer, sell or deliver, directly or indirectly, Offered Securities or distribute any prospectus
relating to the Offered Securities to any person whom it believes to be a Brazilian Person (as such
term is defined below) or to any person whom it believes intends to reoffer, resell or deliver the
same, directly or indirectly, to any Brazilian Person, and any bank, broker or dealer to whom such
International Underwriters may sell the Offered Securities will agree that it will not offer,
resell or deliver the Offered Securities directly or indirectly to any person whom such bank,
broker or dealer believes to be a Brazilian Person.
Each Brazilian Underwriter agrees that, except for (a) placements, purchases and sales among
Underwriters pursuant to this Agreement and (b) stabilization transactions contemplated under
Section 3 hereof, it has offered, sold or delivered, and will offer, sell or deliver, directly or
indirectly, Offered Securities only to persons whom it believes to be Brazilian Persons or
Authorized Non-Brazilian Investors (as such term is defined below) and persons whom it believes
intend to reoffer, resell or deliver the same, directly or indirectly, only to Brazilian Persons or
Authorized Non-Brazilian Investors, and any bank, broker or dealer to whom such Brazilian
Underwriter may sell the Offered Securities will agree that it will only offer, resell and deliver
the Offered Securities directly or indirectly to persons whom such bank, broker or dealer believes
to be Brazilian Persons or Authorized Non-Brazilian Investors.
As used herein, “Brazilian Person” shall mean any (i) individual who is resident in Brazil,
(ii) corporation, partnership, limited liability company, pension, profit-sharing or other trust,
or other entity organized under or governed by the laws of Brazil or any political subdivision
thereof (other than the foreign branch or office of any Brazilian Person), and shall include any
Brazilian branch or office of a person other than a Brazilian Person. “Brazil” shall mean the
Federative Republic of Brazil and all areas subject to its jurisdiction.
As used herein, “Authorized Non-Brazilian Investor” shall mean any U.S. or other international
investors, who are acting in Brazil through (a) foreign direct investments under Law No. 4,131/62,
or (b) foreign portfolio investments under Resolution No. 2,689 of the Conselho Monetário Nacional
(National Monetary Council) and Comissão de Valores Mobiliários (Brazilian Securities Commission,
or CVM) Instruction No. 325.
Each Brazilian Underwriter agrees for the benefit of the several International Underwriters to
comply with the provisions of the Brazilian Underwriting Agreement with respect to the Offered
Securities. Each International Underwriter agrees for the benefit of the several Brazilian
Underwriters to comply with the Credit Suisse Master Agreement Among Underwriters as in effect
(including any modification to the terms thereof by telex or other amendment) with respect to the
Offered Securities (the “Agreement Among International Underwriters”).
3. Stabilizing. The overall direction and planning of over-allotments under the Brazilian
Underwriting Agreement (after notification has been given to the other Brazilian Underwriters) and
the stabilization transactions on the BM&FBOVESPA contemplated herein shall be the responsibility
of Banco de Investimentos Credit Suisse (Brasil) S.A.. The overall direction and planning of
over-allotments under the International Underwriting Agreement (after notification has been given
to the other Representatives) and the stabilization transactions on the New York Stock Exchange
contemplated herein shall be the responsibility of Credit Suisse Securities (USA) LLC. All
stabilization transactions, whether in the United States or otherwise, shall be conducted in
compliance with any applicable laws and regulations.
All over-allotments, stabilization purchases, purchases to cover syndicate short positions,
exercises of the over-allotment options granted under the International Underwriting Agreement and
the Brazilian Underwriting Agreement and related expenses shall be for the accounts of the several
Underwriters in proportion to their respective underwriting commitments. In no event shall the net
commitment of any
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Underwriter, for either long or short account, resulting from the transactions
described in the previous sentence exceed 20% of its underwriting commitment. For the purposes of
the foregoing, an Underwriter’s net commitment for short account will be computed assuming that all
Optional Units or Optional ADSs, as the case may be, which may be purchased for such Underwriter’s
account pursuant to exercise of the over-allotment option are so acquired, whether or not the
over-allotment option is exercised, and are allocated on a pro rata basis between the
Syndicates as contemplated in Section 4 hereof.
4. Over-Allotment Option. As set forth in the International Underwriting Agreement and the
Brazilian Underwriting Agreement, any over-allotment option shall be exercised at the direction of
Credit Suisse Securities (USA) LLC and Banco de Investimento
Credit Suisse (Brasil) S.A. on behalf
of the respective Syndicates. The obligation of each Syndicate to place or purchase Optional ADSs
or Optional Units upon each exercise of the over-allotment option shall be in proportion to the
aggregate underwriting commitment of the Underwriters comprising such Syndicate. The obligations
of the Underwriters comprising a Syndicate to place or purchase Optional ADSs or Optional Units
upon exercise of the over-allotment option shall be in such proportions as are specified in or
determined pursuant to the International Underwriting Agreement or the Brazilian Underwriting
Agreement, as the case may be, and shall be several and not joint obligations of such Underwriters.
5. Expenses. To the extent not reimbursed by the Company, the payment of (a) legal fees and
disbursements of United States and foreign counsel to the International Underwriters and Brazilian
Underwriters incurred in connection with the placement and underwriting of the Offered Securities,
(b) advertising fees and (c) other expenses as agreed between the International Underwriters and
the Brazilian Underwriters, will be made on a pro rata basis by each of the Syndicates in
accordance with their respective underwriting commitments, or on such other basis as may be agreed
between the International Underwriters and the Brazilian Underwriters. Expenses in connection with
stabilization and over-allotment shall be allocated as contemplated in Section 3 hereof. Subject
to the previous two sentences, the International Underwriters will pay the aggregate expenses
incurred in connection with the placement, purchase, carrying or sale of the Offered Securities by
the International Underwriters, and the Brazilian Underwriters will pay the aggregate expenses
incurred in connection with the placement, purchase, carrying or sale of the Offered Securities by
the Brazilian Underwriters.
6. Public Offering. Changes in the respective public offering price per Offered Security or
in the respective concessions and reallowances to dealers per Offered Security will be made only
upon the agreement of the International Underwriters and the Brazilian Underwriters during the
period referred to in the first sentence of Section 1 hereof. Any such change shall be made
concurrently in the offering by the International Underwriters and the offering by the Brazilian
Underwriters, and shall take into account the ratio of Units to ADSs, in each case as determined in
the sole discretion of the Representatives and the Brazilian Underwriters.
7. Additional Undertakings. Each of the International Underwriters and the Brazilian
Underwriters agrees that: (i) they will keep each other informed of the progress of the offering
and distribution of the Offered Securities; and (ii) any press or public announcement, public
comment or advertising with respect to the offering of the Offered Securities shall be as agreed
upon by the Underwriters, including press or public announcements, public comments or advertising
permitted by applicable law to be made in the manner in which it is made.
Each Underwriter hereby represents that its participation in the offering of the Offered
Securities does not contravene any U.S. or state banking law restricting the exercise of securities
powers in the United States.
Each Brazilian Underwriter confirms that it is a dealer actually engaged in the investment
banking or securities business and that it is a dealer with its principal place of business located
outside the United
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States and not registered with the U.S. Securities and Exchange Commission under
the U.S. Securities Exchange Act of 1934, as amended. Each Brazilian Underwriter hereby agrees to
comply with (i) the provisions of Rules 2730, 2740 and 2750 of the FINRA Conduct Rules as though it
were a member of the Financial Industry Regulatory Authority, Inc. (“FINRA”), (ii) Rule 2420 of
such Conduct Rules as such Rule applies to non-member foreign dealers, and (iii) FINRA Rule 2790 to
the extent it acts as a “conduit” (within the meaning of the Rule) for a FINRA member with respect
to the disposition of the Offered Securities, as applicable.
8. Closing Date; Termination of the International Underwriting Agreement or the Brazilian
Underwriting Agreement. If any closing date is not on the day provided in the International
Underwriting Agreement and in the Brazilian Underwriting Agreement (the “Closing Date”), the
Representatives and the Brazilian Underwriters will mutually agree on a postponed date within the
time permitted by such agreements and the settlement dates herein provided shall be adjusted
accordingly.
The Representatives shall not terminate the International Underwriting Agreement pursuant to
the conditions set forth therein, except after consultation with the Brazilian Underwriters, and
the Brazilian Underwriters shall not terminate the Brazilian Underwriting Agreement pursuant to the
conditions set forth therein, except after consultation with the Representatives.
9. Counterparts. This Agreement may be signed in various counterparts, which together shall
constitute one and the same instrument.
10. Termination of Syndicate Restrictions. The obligations of the Underwriters set forth in
Section 2 hereof shall terminate upon the earlier of (a) the agreement of the Representatives and
the Brazilian Underwriters, or (b) 45 days after the date hereof, unless the Representatives and
the Brazilian Underwriters shall have given notice to the other parties hereto that the sale of
Offered Securities by the Representatives or the Brazilian Underwriters, as the case may be, has
not yet been completed. The Representatives and the Brazilian Underwriters may agree pursuant to
clause (a) to terminate the obligations of the Underwriters set forth in Section 2 hereof other
than the last paragraph of Section 4(a) or the Agreement among Representatives, which shall
survive until separately terminated pursuant to clause (a) or (b) of this Section 10. If the
notice referred to in clause (b) is given, the obligations set forth in Section 2 hereof shall
survive until the expiration of an additional 15 days from the date of such notice.
11. Position of the International Underwriters and the Brazilian Underwriters. None of the
International Underwriters nor the Brazilian Underwriters will be under any liability to any
Underwriter for any act or omission except for obligations expressly assumed by the International
Underwriters and the Brazilian Underwriters, respectively, herein, and no obligations on part of
the International Underwriters and the Brazilian Underwriters will be implied hereby or inferred
herefrom. The rights and liabilities of the Underwriters are several and not joint and nothing
herein contained shall constitute or be deemed to constitute the Underwriters as partners with each
other or render any Underwriters liable for the obligations of any other Underwriter. No
Underwriter shall be bound in any way by the acts of any other Underwriter in respect of the issue
of the Offered Securities except as expressly provided. The duties of the International
Underwriters and the Brazilian Underwriters shall be administrative and not fiduciary in nature.
12. Qualified Independent Underwriter. Each International Underwriter other than Credit
Suisse Securities (USA) LLC will pay to Credit Suisse Securities (USA) LLC upon its request, as
contribution, such Underwriter’s proportionate share, based upon such Underwriter’s underwriting
commitment, of any losses, claims, damages or liabilities, joint or several, paid or incurred by
Credit Suisse Securities (USA) LLC to any person, arising out of or based upon Credit Suisse
Securities (USA) LLC S.A.’s acting (or alleged failing to act) in the capacity of “qualified
independent underwriter” (in such capacity, the “QIU”) within the meaning of Rule 2720 of the
Conduct Rules of the FINRA in connection with the offering of the Offered Securities; and will pay
such proportionate share of any legal or other expenses reasonably incurred
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by the QIU in connection with investigating or defending any such loss, claim, damage or liability, or any action
in respect thereof. In determining the amount of any Underwriter’s obligation under this Section
12, appropriate adjustment may be made by the QIU to reflect any amounts received by the QIU in
respect of such claim from the Company or any other person (other than an Underwriter) pursuant to
the International Underwriting Agreement, the Brazilian Underwriting Agreement or otherwise. If
any such claim is contested, the QIU may take such action in connection therewith as the XXX xxxxx
necessary or desirable, including retention of separate counsel for itself, and the fees and
disbursements of any counsel so retained by it shall be included in amounts payable pursuant
to this Section 12. In determining amounts payable pursuant
to this Section, any loss, claim, damage, liability or expense incurred by any person controlling
the QIU within the meaning of Section 15 of the United States Securities Act of 1933 which has been
incurred by reason of such control relationship shall be deemed to have been incurred by the QIU.
The QIU may settle or consent to the settlement of any such claim, on advice of counsel retained by
it. Whenever the QIU receives notice of the assertion of any claim to which the provisions of this
Section would be applicable, it will give prompt notice thereof to each Underwriter. If any
Underwriter or Underwriters default in their obligation to make payments under this Section, each
non-defaulting Underwriter shall be obligated to pay its proportionate share of all defaulted
payments, based upon such Underwriter’s underwriting obligation as related to the underwriting
obligations of all non-defaulting Underwriters.
13. Applicable Law; Jurisdiction. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York, without regard to principles of conflicts of
laws.
The parties hereby submit to the non-exclusive jurisdiction of the Federal and state courts in
the Borough of Manhattan in The City of New York in any suit or proceeding arising out of or
relating to this Agreement or the transactions contemplated hereby.
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IN WITNESS WHEREOF, this Agreement has been executed as of the date and year first above
written by the undersigned for themselves and for the Underwriters as set forth herein.
| The Representatives Santander Investment Securities INC. |
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| By: | ||||
| [Name] | ||||
| [Insert title] | ||||
| Credit Suisse Securities (USA) LLC |
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| By: | ||||
| [Name] | ||||
| [Insert title] | ||||
| Xxxxxxx Lynch,
Pierce, Xxxxxx & Xxxxx Incorporated |
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| By: | ||||
| [Name] | ||||
| [Insert title] | ||||
| Ubs Securities LLC |
||||
| By: | ||||
| [Name] | ||||
| [Insert title] | ||||
| By: | ||||
| [Name] | ||||
| [Insert title] | ||||
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(Signature page of the Intersyndicate Agreement for the Global Sale and Placement of up to
525,000,000 Units, including in the form of the American Depositary Shares between Santander
Investment Securities Inc., Credit Suisse Securities (USA) LLC, Xxxxxxx Lynch, Pierce, Xxxxxx &
Xxxxx Incorporated and UBS Securities LLC, and Banco Santander (Brasil) S.A., Banco de
Investimentos Credit Suisse (Brasil) S.A., Banco Xxxxxxx Xxxxx de Investimentos S.A. and Banco BTG
Pactual S.A.)
| The Brazilian Underwriters Banco Santander (brasil) S.A. |
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| By: | ||||
| [Name] | ||||
| [Insert title] | ||||
| Banco De
INVESTIMENTOS Credit Suisse (Brasil) S.A. |
||||
| By: | ||||
| [Name] | ||||
| [Insert title] | ||||
| Banco Xxxxxxx Xxxxx de Investimentos S.A. |
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| By: | ||||
| [Name] | ||||
| [Insert title] | ||||
| Banco BTG Pactual S.A. |
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| By: | ||||
| [Name] | ||||
| [Insert title] | ||||
| By: | ||||
| [Name] | ||||
| [Insert title] | ||||
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