Exhibit 1.1
14,700,000 PREFERRED SHARES
GOL LINHAS AEREAS INTELIGENTES S.A.
NON-VOTING PREFERRED SHARES, NO PAR VALUE
(IN THE FORM OF AMERICAN DEPOSITARY SHARES)
UNDERWRITING AGREEMENT
[ ], 2005
[ ], 2005
Xxxxxx Xxxxxxx & Co. Incorporated
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dear Sirs and Mesdames:
Gol Linhas Aereas Inteligentes S.A., a Brazilian corporation
(sociedade anonima) (the "COMPANY"), proposes to issue and sell to the several
International Underwriters named in Schedule II hereto (the "INTERNATIONAL
UNDERWRITERS") and BSSF Air Holdings LLC ("BSSF", or the "SELLING SHAREHOLDER")
proposes to sell to the several International Underwriters, an aggregate of
14,700,000 non-voting preferred shares (acoes preferenciais) of the Company, all
of which shall be deposited pursuant to the Deposit Agreement, as defined below,
and delivered in the form of American Depositary Shares as hereinafter provided
(the "FIRM ADSS"). [ ] Firm ADSs are to be issued and sold by the Company and [
] Firm ADSs are to be sold by the Selling Shareholder. Xxxxxx Xxxxxxx & Co.
Incorporated shall act as representative (the "REPRESENTATIVE") of the several
International Underwriters.
The Company also proposes to issue and sell to the several
International Underwriters not more than an additional 2,205,000 non-voting
preferred shares of the Company, all of which shall be deposited pursuant to the
Deposit Agreement and delivered in the form of American Depositary Shares (the
"ADDITIONAL ADSS"), if and to the extent that you, as Representative, shall have
determined to exercise, on behalf of the International Underwriters, the right
to purchase such Additional ADSs granted to the International Underwriters in
Section 3 hereof. The non-voting preferred shares of the Company to be
outstanding after giving effect to the sales contemplated hereby are hereinafter
referred to as the "PREFERRED SHARES." The Company and the Selling Shareholder
are hereinafter collectively referred to as the "SELLERS."
The Firm ADSs and the Additional ADSs are hereinafter collectively
referred to as the "ADSS" and the ADSs, together with the Preferred Shares
represented by such ADSs, shall be hereinafter referred to as the "SECURITIES."
Each ADS will represent two Preferred Shares. The ADSs purchased by the
International Underwriters will be evidenced by American Depositary Receipts
("ADRS") to be issued pursuant to the Deposit Agreement, dated as of June 23,
2004, among the Company, The Bank of New York, as depositary (the "DEPOSITARY"),
and all holders and beneficial owners from time to time of the ADRs (the
"DEPOSIT AGREEMENT").
The Company has filed with the U. S. Securities and Exchange
Commission (the "COMMISSION") a registration statement, including a prospectus,
relating to the Securities. The registration statement as amended at the time it
becomes effective, including the information (if any) deemed to be part of the
registration statement at the time of effectiveness pursuant to Rule 430A under
the Securities Act of 1933, as amended (the "SECURITIES ACT"), is hereinafter
referred to as the "REGISTRATION STATEMENT"; the prospectus in the form first
used to confirm sales of
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Securities is hereinafter referred to as the "PROSPECTUS." If the Company has
filed an abbreviated registration statement to register additional Securities
pursuant to Rule 462(b) under the Securities Act (the "RULE 462 REGISTRATION
STATEMENT"), then any reference herein to the term "REGISTRATION STATEMENT"
shall also be deemed to include such Rule 462 Registration Statement.
In addition to the Securities subject to this Agreement, [ ]
Preferred Shares, including [ ] Preferred Shares to cover over-allotments, if
any (collectively, the "BRAZILIAN SHARES"), will be sold to the underwriters set
forth in the Schedule (the "BRAZILIAN UNDERWRITERS") to the underwriting
agreement, dated as of the date hereof, among the Company, Gol Transportes
Aereos S.A. ("GOL"), Companhia Brasileira de Liquidacao e Custodia, [the Selling
Shareholder] and the Brazilian Underwriters in connection with the offering and
sale of the Brazilian Shares in Brazil (the "BRAZILIAN UNDERWRITING AGREEMENT").
The ADSs will be sold pursuant to the Prospectus, and the Brazilian Shares will
be sold pursuant to a registration statement, including a prospectus (the
"BRAZILIAN PROSPECTUS"), filed with and approved by the Brazilian Securities
Commission (Comissao de Valores Mobiliarios) (the "CVM"), with respect to the
offer and sale of the Brazilian Shares (the "BRAZILIAN REGISTRATION Statement").
The International Underwriters and the Brazilian Underwriters
simultaneously are entering into an agreement between their respective
syndicates (the "INTERSYNDICATE AGREEMENT"), which provides for, among other
things, the transfer of Securities between the two syndicates.
1. Representations and Warranties of the Company and Gol. Each of the
Company and Gol represents and warrants to and agrees with each of the
International Underwriters that:
(a) The Registration Statement has become effective, no stop order
suspending the effectiveness of the Registration Statement is in effect,
and no proceedings for such purpose are pending before or, to the best of
each of the Company's and Gol's knowledge, threatened by the Commission.
(b) A registration statement on Form F-6 (File No. 333-116181) in
respect of the ADSs has been filed with the Commission; such registration
statement, in the form heretofore delivered to the Representative and,
excluding exhibits, to the Representative for each of the other
International Underwriters, has been declared effective by the Commission
in such form; no other document with respect to such registration
statement has heretofore been filed with the Commission; no stop order
suspending the effectiveness of such registration statement has been
issued and, to the best of each of the Company's and Gol's knowledge, no
proceeding for that purpose has been initiated or threatened by the
Commission (the various parts of such registration statement, taken
together, including all exhibits thereto, each as amended at the time such
part of the registration statement became effective, are hereinafter
called the "ADS REGISTRATION STATEMENT").
(c) (i) The Registration Statement and the ADS Registration
Statement did not contain
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and, as amended or supplemented, if applicable, will not 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, (ii) the Registration Statement, the Prospectus and the
ADS Registration Statement comply and, as amended or supplemented, if
applicable, will comply in all material respects with the Securities Act
and the applicable rules and regulations of the Commission thereunder and
(iii) the Prospectus does not contain and, as amended or supplemented, if
applicable, will not contain any untrue statement of a material fact or
omit to state a material fact necessary to make the statements therein, in
the light of the circumstances under which they were made, not misleading,
except that the representations and warranties set forth in this paragraph
do not apply to statements or omissions in the Registration Statement, the
Prospectus or the ADS Registration Statement based upon information
relating to any International Underwriter furnished to the Company in
writing by such International Underwriter through you expressly for use
therein.
(d) The Company has been duly incorporated, is validly existing as a
corporation in good standing under the laws of Brazil, has the corporate
power and authority to own its property and to conduct its business as
described in the Prospectus and is duly qualified to transact business and
is in good standing in each jurisdiction in which the conduct of its
business or its ownership or leasing of property requires such
qualification, except to the extent that the failure to be so qualified or
be in good standing would not have a material adverse effect on the
Company.
(f) Gol has been duly incorporated, is validly existing as a
corporation in good standing under the laws of Brazil, has the corporate
power and authority to own its property and to conduct its business as
described in the Prospectus and is duly qualified to transact business and
is in good standing in each jurisdiction in which the conduct of its
business or its ownership or leasing of property requires such
qualification, except to the extent that the failure to be so qualified or
be in good standing would not have a material adverse effect on Gol; and
all of the issued shares of capital stock of Gol have been duly authorized
and are validly issued, fully paid and non-assessable, and (other than
shares held by directors of Gol, as described in the Prospectus) are owned
directly by the Company, free and clear of any security interests, claims,
liens, equities or other encumbrances.
(g) This Agreement has been duly authorized, executed and delivered
by each of the Company and Gol.
(h) The authorized capital stock of the Company conforms as to legal
matters in all material respects to the description thereof contained in
the Prospectus under the caption "Description of Capital Stock".
(i) The Company has no direct or indirect subsidiaries other than
Gol and Gol Finance LLP.
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(j) The non-voting preferred shares of the Company outstanding prior
to the issuance of the Securities to be sold by the Company have been duly
authorized and are validly issued, fully paid and non-assessable.
(k) The Securities to be sold by the Company (i) have been duly
authorized and, when issued and delivered in accordance with the terms of
this Agreement, will be validly issued, fully paid and non-assessable,
(ii) the issuance and sale thereof will not be subject to any preemptive
or similar rights that have not been effectively waived nor give rise to
any registration rights relating to the Preferred Shares or any other
securities of the Company or Gol (other than as described in the
Prospectus or paragraph (t) of this section), and (iii) are free and clear
of any security interests, claims, liens, equities or other encumbrances.
(l) The execution and delivery by the Company of, and the
performance by the Company of its obligations under, this Agreement, the
Brazilian Underwriting Agreement and the Deposit Agreement will not
contravene any provision of applicable law or the by-laws (estatuto
social) of the Company or any agreement or other instrument binding upon
the Company that is material to the Company, or any judgment, order or
decree of any governmental body, agency or court having jurisdiction over
the Company, and no consent, approval, authorization or order of, or
qualification with, any governmental body or agency is required for the
performance by the Company of its obligations under this Agreement, the
Brazilian Underwriting Agreement and the Deposit Agreement, except (i)
such as may be required by the securities or Blue Sky laws of the States
of the United States or securities laws of other jurisdictions in
connection with the offer and sale of the Securities, (ii) such as may be
required from the Brazilian Central Bank (Banco Central do Brasil) (the
"CENTRAL BANK") and the CVM relating to the Deposit Agreement under Annex
V to Resolution No. 1,289 of March 20, 1987, as amended, ("ANNEX V") of
the Conselho Monetario Nacional (the "CMN"), (iii) from the CVM relating
to the offering of the Brazilian Shares in Brazil (the "BRAZILIAN
OFFERING") and the offering of the Securities as provided for in this
Agreement and in the Brazilian Underwriting Agreement, (iv) from the
Central Bank relating to the payment of the fees, commissions and expenses
contemplated by this Agreement and the Deposit Agreement and (v) such as
may be required by the Brazilian Aviation Department (Departamento de
Aviacao Civil) (the "DAC"), all of which have been obtained or will be
duly obtained (except for those described in clause (i) and in clause
(iv), specifically with respect to any payment outside of Brazil pursuant
to Section 9 hereof)) prior to the Closing Date (as defined below).
(m) The execution and delivery by Gol of, and the performance by Gol
of its obligations under, this Agreement and the Brazilian Underwriting
Agreement will not contravene any provision of applicable law or the
by-laws (estatuto social) of Gol or any agreement or other instrument
binding upon Gol that is material to Gol, or any judgment, order or decree
of any governmental body, agency or court having jurisdiction over Gol,
and no consent, approval, authorization or order of, or qualification
with, any governmental body or agency
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is required for the performance by Gol of its obligations under this
Agreement and the Brazilian Underwriting Agreement, except (i) such as may
be required by the securities or Blue Sky laws of the States of the United
States or securities laws of other jurisdictions in connection with the
offer and sale of the Securities, (ii) such as may be required from the
Central Bank and the CVM relating to the Deposit Agreement under Annex V
of the CMN, (iii) from the CVM relating to the Brazilian Offering and the
offering of the Securities as provided for in this Agreement and in the
Brazilian Underwriting Agreement, (iv) from the Central Bank relating to
the payment of the fees, commissions and expenses contemplated by this
Agreement and the Deposit Agreement and (v) such as may be required by the
DAC, all of which have been obtained or will be duly obtained (except for
those described in clause (i) and in clause (iv), specifically with
respect to any payment outside of Brazil pursuant to Section 9 hereof))
prior to the Closing Date (as defined below).
(n) There has not occurred any material adverse change, or any
development involving a prospective material adverse change, in the
condition, financial or otherwise, or in the earnings, business or
operations of either the Company or Gol from that set forth in the
Prospectus.
(o) There are no legal, arbitration, or governmental proceedings
pending or, to the best of each of the Company's and Gol's knowledge,
threatened to which either of the Company or Gol is a party or to which
any of the properties of either the Company or Gol is subject that are
required to be described in the Registration Statement or the Prospectus
and are not so described nor are there any statutes, regulations,
contracts or other documents that are required to be described in the
Registration Statement or the Prospectus or to be filed as exhibits to the
Registration Statement that are not described or filed as required.
(p) Each preliminary prospectus filed as part of the registration
statement as originally filed or as part of any amendment thereto, or
filed pursuant to Rule 424 under the Securities Act, complied when so
filed in all material respects with the Securities Act and the applicable
rules and regulations of the Commission thereunder.
(q) Neither the Company nor Gol is, and after giving effect to the
offering and sale of the Securities and the application of the proceeds
thereof as described in the Prospectus neither will be, required to
register as an "investment company" as such term is defined in the
Investment Company Act of 1940, as amended or a "passive foreign
investment company" or a "controlled foreign corporation" as such terms
are defined in the United States Internal Revenue Code.
(r) Each of the Company and Gol (i) is in compliance with all
applicable laws and regulations relating to the protection of human health
and safety, the environment or hazardous or toxic substances or wastes,
pollutants or contaminants ("ENVIRONMENTAL Laws"), (ii) has received all
permits, licenses or
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other approvals required of it under applicable Environmental Laws to
conduct its business and (iii) is in compliance with all terms and
conditions of any such permit, license or approval, except where such
noncompliance with Environmental Laws, failure to receive required
permits, licenses or other approvals or failure to comply with the terms
and conditions of such permits, licenses or approvals would not, singly or
in the aggregate, have a material adverse effect on either the Company or
Gol.
(s) There are no costs or known liabilities associated with
Environmental Laws (including, without limitation, any capital or
operating expenditures required for clean-up, closure of properties or
compliance with Environmental Laws or any permit, license or approval, any
related constraints on operating activities and any potential liabilities
to third parties) that would, singly or in the aggregate, have a material
adverse effect on either the Company or Gol.
(t) There are no contracts, agreements or understandings between
either the Company or Gol and any person granting such person the right to
require either the Company or Gol to file a registration statement under
the Securities Act with respect to any securities of either the Company or
Gol or to require the Company to include such securities within the
Securities registered pursuant to the Registration Statement, except as
contemplated in (i) the shareholders' agreement by and among Aeropar
Participacoes S.A. ("AEROPAR"), Comporte Participacoes S.A. ("COMPORTE"),
BSSF, BSSF Air Holdings Ltd., Xxxxxxxxxxx xx Xxxxxxxx, Xxxxxxxxxxx xx
Xxxxxxxx Xx., Xxxxxxxx Xxxxxxxxxxx, Xxxxxxx Xxxxxxxxxxx Xxxx, Xxxxxxx
Xxxxxxxxxxx and the Company, dated as of March 29, 2004 (the
"SHAREHOLDERS' AGREEMENT"), which rights do not apply in connection with
the offering contemplated hereby, (ii) the Subscription and Option
Agreement dated January 20, 2003, by and among Xxxxx Administracao e
Participacoes S.A., BSSF Air Holdings Ltd., BSSF II Holdings Ltda. and Gol
(the "SUBSCRIPTION AND OPTION AGREEMENT"), (iii) the addendum to the
Subscription and Option Agreement and (iv) the Letter Agreement between
the Company and the Selling Shareholder dated June 29, 2004.
(u) Subsequent to the respective dates as of which information is
given in the Registration Statement and the Prospectus, (i) neither the
Company nor Gol has incurred any material liability or obligation, direct
or contingent, nor entered into any material transaction, in each case,
not in the ordinary course of business or as described in the Prospectus;
(ii) neither the Company nor Gol has purchased any of its outstanding
capital stock, nor, except as disclosed in the Prospectus, declared, paid
or otherwise made any dividend or distribution of any kind on its capital
stock; (iii) there has not been any material change in the capital stock,
short-term debt or long-term debt of either the Company or Gol, or any
change in the terms of any aircraft leases, except in each case as
described in the Prospectus; and (iv) there has been no prohibition or
suspension of the operation of either the Company's or Gol's aircraft,
including, but not limited to, as a result of action taken by the DAC or
other applicable regulatory agencies or bodies.
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(v) Each of the Company and Gol has good and marketable title to all
real property and good and marketable title to all personal property owned
by it that is material to the business of the Company or Gol, as the case
may be, in each case free and clear of all liens, encumbrances and defects
except such as are described in the Prospectus or such as do not
materially affect the value of such property and do not interfere with the
use made and proposed to be made of such property by the Company or Gol,
as the case may be; and any real property, buildings, aircraft, aircraft
engines and other material personal property held under lease by either
the Company or Gol are held by it under valid, subsisting and enforceable
leases with such exceptions as are not material and do not interfere with
the use made and proposed to be made of such property and buildings by the
Company or Gol, as the case may be, in each case except as described in
the Prospectus.
(w) Each of the Company and Gol owns or possesses, or can acquire on
reasonable terms, all material patents, patent rights, licenses,
inventions, copyrights, know-how (including trade secrets and other
unpatented and/or unpatentable proprietary or confidential information,
systems or procedures), trademarks, service marks and trade names
currently employed by it in connection with the business now operated by
it, and neither the Company nor Gol has received any notice of
infringement of or conflict with asserted rights of others with respect to
any of the foregoing that, singly or in the aggregate, if the subject of
an unfavorable decision, ruling or finding, would have a material adverse
affect on either the Company or Gol, except as described in "Business --
Legal Matters and Administrative Proceedings -- Trademark" in the
Prospectus.
(x) To the best of each of the Company's and Gol's knowledge, (i) no
material labor dispute with the employees of either the Company or Gol
exists or is imminent; (ii) other than as described in the Prospectus, no
union organizing activities are currently taking place concerning the
employees of either the Company or Gol; (iii) there has been no violation
of any law or regulation relating to discrimination in the hiring,
promotion or pay of employees or any applicable wage or hour laws
concerning the employees of either the Company or Gol; and (iv) there is
no existing, threatened or imminent labor disturbance by the employees of
any of its principal suppliers, manufacturers or contractors that could,
singly or in the aggregate, have a material adverse effect on either the
Company or Gol.
(y) Each of the Company and Gol and its owned and leased properties
are insured by insurers of recognized financial responsibility against
such losses and risks and in such amounts as are prudent and customary in
the business in which it is engaged; neither the Company nor Gol has been
refused any insurance coverage sought or applied for; and neither the
Company nor Gol has any reason to believe that it will not be able to
renew its existing insurance coverage as and when such coverage expires or
to obtain similar coverage from similar insurers as may be necessary to
continue its business at a cost that would not, singly or in the
7
aggregate, have a material adverse effect on either the Company or Gol,
except as described in the Prospectus.
(z) Each of the Company and Gol possesses all certificates,
authorizations, approvals, licenses, concessions and permits issued by the
appropriate regulatory authorities necessary to conduct its business (the
"GOVERNMENT APPROVALS"), and neither the Company nor Gol has received any
notice of proceedings relating to the revocation or modification of any
Government Approvals that, if the subject of an unfavorable decision,
ruling or finding, would, singly or in the aggregate, have a material
adverse effect on either the Company or Gol, except as described in the
Prospectus.
(aa) Each of the Company and Gol maintains a system of internal
accounting controls sufficient to provide reasonable assurance that (i)
transactions are executed in accordance with management's general or
specific authorizations; (ii) transactions are recorded as necessary to
permit preparation of financial statements in conformity with generally
accepted accounting principles in the United States ("U.S. GAAP") and to
maintain asset accountability; (iii) access to assets is permitted only in
accordance with management's general or specific authorization; and (iv)
the recorded accountability for assets is compared with the existing
assets at reasonable intervals and appropriate action is taken with
respect to any differences.
(bb) The Securities are not subject to any restrictions on transfer
pursuant to the Company's or Gol's by-laws, Brazilian law or any agreement
or other instrument to which the Company or Gol is a party that have not
been effectively waived.
(cc) The Deposit Agreement has been duly authorized by the Company
and, assuming the Depositary has satisfied those legal requirements that
are applicable to it to the extent necessary to make the Deposit Agreement
enforceable against it, constitutes a valid, binding and enforceable
agreement of the Company, except as such enforceability may be limited by
applicable bankruptcy, insolvency, moratorium and other similar laws
affecting the rights of creditors generally and the application of general
equitable principles, and, assuming the accuracy and compliance with the
representations, warranties and covenants made by the Selling Shareholder
herein, upon issuance by the Depositary of ADRs evidencing ADSs against
the deposit of Preferred Shares in respect thereof in accordance with the
provisions of the Deposit Agreement, such ADRs will be duly and validly
issued and the persons in whose names the ADRs are registered will be
entitled to the rights specified therein and in the Deposit Agreement; and
the Deposit Agreement and the ADRs conform in all material respects to the
descriptions thereof contained in the Prospectus.
(dd) There are no contracts, agreements or understandings between
either the Company or Gol and any person that would give rise to a valid
claim against either the Company or Gol or any International Underwriter
for a
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brokerage commission, finder's fee or other like payment in connection
with this offering.
(ee) Except as disclosed in the Prospectus, under current, and to
the best of each of the Company's and Gol's knowledge, pending or
proposed, laws and regulations of Brazil and any political subdivision
thereof, all dividends and other distributions declared and payable on the
Securities, including those in the form of ADSs, may be paid by the
Company to the holder thereof in reais, so long as the ADR program remains
registered with the Central Bank and the CVM pursuant to Annex V of the
CMN, which may be converted into foreign currency and freely transferred
out of Brazil and all such payments made to holders thereof who are
non-residents of Brazil will not be subject to income, withholding or
other taxes under laws and regulations of Brazil or any political
subdivision or taxing authority thereof or therein and will otherwise be
free and clear of any other tax, duty, withholding or deduction in Brazil
or any political subdivision or taxing authority thereof or therein and
without the necessity of obtaining any governmental authorization in
Brazil or any political subdivision or taxing authority thereof or
therein.
(ff) In connection with the transactions contemplated by this
Agreement, neither the Company nor Gol has taken, nor will it take, any
action for the purpose of stabilizing or manipulating the price of the
Securities.
(gg) The Company has consented to the deposit of the Preferred
Shares by the Selling Shareholder with the Depositary and the issuance by
the Depositary of the ADRs evidencing the ADSs to be delivered by the
Selling Shareholder, acting through the Company as provided hereunder, to
the International Underwriters on the Closing Date.
(hh) The Company's and Gol's auditor and the Audit Committees of
their Boards of Directors have been advised of: (i) any significant
deficiencies in the design or operation of internal controls which could
adversely affect the Company's or Gol's ability to record, process,
summarize, and report financial data; and (ii) any fraud, whether or not
material, that involves management or other employees who have a role in
the Company's or Gol's internal controls; any material weaknesses in
internal controls have been identified for the Company's and Gol's
auditors; and since the date of the most recent evaluation of such
disclosure controls and procedures, there have been no significant changes
in internal controls or in other factors that could significantly affect
internal controls, including any corrective actions with regard to
significant deficiencies and material weaknesses.
(ii) The Company is a "foreign private issuer," as defined in Rule
3b-4 under the Exchange Act.
(jj) Each of the Company and Gol has the power to submit, and
pursuant to Section 14 of this Agreement has legally, validly, effectively
and
9
irrevocably submitted, to the jurisdiction of any New York State or United
States Federal court sitting in The City of New York, and has the power to
designate, appoint and empower, and pursuant to Section 14 of this
Agreement, has legally, validly and effectively designated, appointed and
empowered an agent for service of process in any suit or proceeding based
on or arising under this Agreement in any New York State or United States
Federal court sitting in The City of New York.
(kk) The Company is registered as a publicly-held company with the
CVM pursuant to art. 22 of Law No. 6385/76 and such registration is
updated and in full force as required by Instruction No. 202 of December
6, 1993 of the CVM.
(ll) The Preferred Shares have been approved for listing on the Sao
Paulo Stock Exchange (the "BOVESPA") and the ADSs have been approved for
listing on the New York Stock Exchange (the "NYSE").
(mm) The audited consolidated financial statements as of December
31, 2004, included in the Prospectus, together with the related notes and
schedules, present fairly the financial position of each of the Company
and its subsidiaries as at the dates indicated and the results of
operations and statement of changes in financial position of each of the
Company and its subsidiaries for the periods specified; such financial
statements have been prepared in conformity with U.S. GAAP applied on a
consistent basis during the periods involved; the other financial and
statistical data set forth in the Prospectus are accurately presented and
prepared, where applicable, on a basis consistent with the financial
statements and books and records of each of the Company and its
subsidiaries; and neither the Company nor its subsidiaries has any
material liabilities or obligations, direct or contingent (including any
off-balance sheet obligations), not disclosed in the Prospectus.
(nn) Neither the Company nor Gol has sustained, since the date of
the last audited financial statements, any loss or interference with its
business from fire, explosion, flood or other calamity, regardless of
whether covered by insurance.
(oo) Any statistical and market-related data included in the
Prospectus are based on or derived from sources that each of the Company
and Gol believes to be reasonably reliable and accurate, and the Company
or Gol has obtained the written consent to the use of such data from such
sources to the extent required.
(pp) All tax returns required to be filed by each of the Company and
Gol have been filed, and all taxes and other assessments of a similar
nature (whether imposed directly or through withholding) including any
interest, additions to tax or penalties applicable thereto due or claimed
to be due from either the Company or Gol have been paid, other than those
being contested in good faith and for which adequate reserves have been
provided, except as otherwise described in the Prospectus.
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(qq) Except as described in the Prospectus, there is no tax, duty,
levy, impost, deduction, charge or withholding imposed by Brazil or any
political subdivision thereof or taxing authority therein either (i) on or
by virtue of the Company's execution, delivery, performance or enforcement
of this Agreement or the Deposit Agreement or of any other document to be
furnished hereunder or thereunder, or (ii) on any payment to be made
pursuant to this Agreement and the Deposit Agreement, except (a)
withholding income tax at the rate of up to 25% on fees, commissions and
expenses payable to the International Underwriters, (b) Contribution of
Intervention in the Economic Order (Contribuicao de Intervenicao no
Dominio Economico) ("CIDE"), payable at a rate of 10% by the Brazilian
payor on payments made in connection with the fees, commissions and
expenses payable to the International Underwriters and (c) Social
Contributions on Revenues ("PIS" and "COFINS") at a rate of 1.65% and
7.6%, respectively, and Tax on Services ("ISS") at a rate up to 5%, on the
fees, commissions and expenses payable to the International Underwriters.
(rr) There is no tax, duty, levy, impost, deduction, charge or
withholding imposed by Brazil or any political subdivision thereof or
taxing authority therein either (i) on or by virtue of Gol's execution,
delivery, performance or enforcement of this Agreement or of any other
document to be furnished hereunder or thereunder, or (ii) on any payment
to be made pursuant to this Agreement, except (a) withholding income tax
at the rate of up to 25% on fees, commissions and expenses payable to the
International Underwriters, (b) CIDE, payable at a rate of 10% by the
Brazilian payor on payments made in connection with the fees, commissions
and expenses payable to the International Underwriters and (c) PIS and
COFINS at a rate of 1.65% and 7.6%, respectively, and ISS at a rate up to
5%, on the fees, commissions and expenses payable to the International
Underwriters.
(ss) Neither the Company nor Gol has sent or received any
communication regarding termination of, or intent not to renew, any of the
contracts or agreements referred to or described in the Prospectus, except
where such termination or non-renewal would not have a material adverse
effect on either the Company or Gol or either of their businesses, and no
such termination or non-renewal has been threatened by either the Company
or Gol, or, to the best of each of the Company's and Gol's knowledge, any
other party to any such contract or agreement.
(tt) This Agreement and the Deposit Agreement are in proper legal
form under the laws of Brazil for the enforcement thereof in Brazil
against the Company and Gol (solely with respect to this Agreement), and
it is not necessary in order to ensure the legality, validity, enforcement
or admissibility into evidence of this Agreement or the Deposit Agreement
in Brazil that this Agreement or the Deposit Agreement be filed or
recorded with any court or other authority in Brazil or that any tax or
fee be paid in Brazil on or in respect of this Agreement or the Deposit
Agreement or any other document, other than court costs, including
(without limitation) filing fees and deposits to secure judgments, except
that (i)
11
the signatures of the parties thereto signing outside Brazil shall have
been notarized by a notary public licensed as such under the law of the
place of signing and the signature of such notary public shall have been
legalized by the relevant Brazilian Consulate, (ii) this Agreement and the
Deposit Agreement shall have been translated into Portuguese by a sworn
translator, and (iii) this Agreement and the Deposit Agreement shall have
been registered with the appropriate Registry of Titles and Deeds
(Cartorio de Titulos e Documentos) in Brazil, together with their sworn
translations.
2. Representations and Warranties of the Selling Shareholder. The Selling
Shareholder represents and warrants to and agrees with each of the International
Underwriters that:
(a) This Agreement has been duly authorized, executed and delivered
by or on behalf of the Selling Shareholder.
(b) The execution and delivery by the Selling Shareholder of, and
the performance by the Selling Shareholder of its obligations under, this
Agreement and the Brazilian Underwriting Agreement do not and will not
contravene any provision of applicable law, or the organizational
documents of the Selling Shareholder (if the Selling Shareholder is a
legal entity), or any agreement or other instrument binding upon the
Selling Shareholder or any judgment, order or decree of any governmental
body, agency or court having jurisdiction over the Selling Shareholder,
and no consent, approval, authorization or order of, or qualification
with, any governmental body or agency is required for the performance by
the Selling Shareholder of its obligations under this Agreement, except
(i) such as may be required by the securities or Blue Sky laws of the
States of the United States or securities laws of other jurisdictions in
connection with the offer and sale of the Securities, (ii) such as may be
required from the Central Bank and the CVM relating to the Deposit
Agreement under Annex V of the CMN, (iii) from the CVM relating to the
Brazilian Offering and the offering of the Securities as provided for in
this Agreement and in the Brazilian Underwriting Agreement, (iv) from the
Central Bank with respect to the transfer of the foreign investment
registration relating to the Preferred Shares owned by the Selling
Shareholder to be deposited with the Depositary from a direct foreign
investment registered under Resolution No. 2997 of August 15, 2000 of the
CMN ("Resolution 2997") to a foreign investment registered under Annex V
of the CMN, pursuant to art. 7 of the regulation attached to Resolution
2997; (v) from the Central Bank relating to the payment of the fees,
commissions and expenses contemplated by this Agreement and the Deposit
Agreement and (vi) such as may be required by the DAC, all of which have
been obtained or will be duly obtained (except for those described in
clause (i) and in clause (v), specifically with respect to any payment
outside of Brazil pursuant to Section 9 hereof)) prior to the Closing
Date.
(c) The Selling Shareholder owns, and on the Closing Date will own,
the Securities to be sold by the Selling Shareholder free and clear of all
security interests, claims, liens, equities or other encumbrances and has,
and on the
12
Closing Date will have, the legal right and power, and all authorizations
and approvals required by law, to enter into this Agreement and to sell,
transfer and deliver the Securities to be sold by the Selling Shareholder.
(d) Upon payment for the Securities to be sold by the Selling
Shareholder pursuant to this Agreement, delivery of the Preferred Shares
in the form of ADSs, as directed by the International Underwriters, to
Cede & Co. ("CEDE") or such other nominee as may be designated by the
Depository Trust Company ("DTC"), registration of such ADSs in the name of
Cede or such other nominee and the crediting of such ADSs on the books of
DTC to securities accounts of the International Underwriters (assuming
that neither DTC nor any such International Underwriter has notice of any
adverse claim (within the meaning of Section 8-105 of the New York Uniform
Commercial Code (the "UCC")) to such ADSs), (A) DTC shall be a "protected
purchaser" of such ADSs within the meaning of Section 8-303 of the UCC,
(B) under Section 8-501 of the UCC, the International Underwriters will
acquire a valid security entitlement in respect of such ADSs and (C) no
action based on any "adverse claim," within the meaning of Section 8-102
of the UCC, to such ADSs may be asserted against the International
Underwriters with respect to such security entitlement. For purposes of
this representation, the Selling Shareholder may assume that when such
payment, delivery and crediting occur, (x) such ADSs will have been
registered in the name of Cede or another nominee designated by DTC, in
each case on the Depositary's ADS share registry in accordance with the
Deposit Agreement and applicable law, (y) DTC will be registered as a
"clearing corporation" within the meaning of Section 8-102 of the UCC and
(z) appropriate entries to the accounts of the several International
Underwriters on the records of DTC will have been made pursuant to the
UCC.
(e) Upon payment for the Securities to be sold to the International
Underwriters by the Selling Shareholder pursuant to this Agreement, all
right, title and interest in the Securities will be transferred to the
International Underwriters free and clear of all security interests,
claims, liens, equities or other encumbrances.
(f) The Selling Shareholder has no reason to believe that the
representations and warranties of the Company contained in Section 1 of
this Agreement are not true and correct, is familiar with the Registration
Statement and Prospectus and has no knowledge of any material fact,
condition or information not disclosed in the Prospectus that has had, or
may have, a material adverse effect on the Company. The Selling
Shareholder is not prompted by any information concerning the Company that
is not set forth in the Prospectus to sell its Securities pursuant to this
Agreement.
(g) (i) The Registration Statement, when it became effective, did
not contain and, as amended or supplemented, if applicable, will not
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, and (ii)
13
the Prospectus does not contain and, as amended or supplemented, if
applicable, will not contain any untrue statement of a material fact or
omit to state a material fact necessary to make the statements therein, in
the light of the circumstances under which they were made, not misleading,
provided that the representations and warranties set forth in this
paragraph 2(g) are limited to statements or omissions made in reliance
upon information relating to the Selling Shareholder furnished to the
Company in writing by the Selling Shareholder expressly for use in the
Registration Statement, the Prospectus or any amendments or supplements
thereto.
(h) In connection with the transactions contemplated by this
Agreement, the Selling Shareholder has not taken and will not take any
action for the purpose of stabilizing or manipulating the price of the
Securities.
(i) The Selling Shareholder has deposited, or will deposit prior to
the Closing Date, Preferred Shares with the Depositary against the
issuance of the ADRs evidencing the ADSs to be sold by it, acting through
the Company as provided hereunder, to the International Underwriters and
has instructed or will instruct the Depositary to deliver such ADSs to the
International Underwriters at the Closing Date.
(j) No persons are entitled to preemptive or other rights to acquire
the Securities from the Selling Shareholder, and the Preferred Shares may
be deposited, without any restrictions on transfer, with the Depositary
against the issuance of ADRs evidencing ADSs as contemplated in the
Deposit Agreement.
(k) The Selling Shareholder has the power to submit, and pursuant to
Section 14 of this Agreement, has legally, validly, effectively and
irrevocably submitted, to the jurisdiction of any New York State or United
States Federal court sitting in The City of New York, and has the power to
designate, appoint and empower, and pursuant to Section 14 of this
Agreement, has legally, validly and effectively designated, appointed and
empowered, an agent for service of process in any suit or proceeding based
on or arising under this Agreement in any New York State or United States
Federal court sitting in The City of New York.
3. Agreements to Sell and Purchase. Each Seller, severally and not
jointly, hereby agrees to sell to the several International Underwriters, and
each International Underwriter, upon the basis of the representations and
warranties herein contained, but subject to the conditions hereinafter stated,
agrees, severally and not jointly, to purchase from such Seller at $[ ] a
Preferred Share ($[ ] an ADS) (the "PURCHASE PRICE") the number of Firm ADSs
(subject to such adjustments to eliminate fractional shares as you may
determine) that bears the same proportion to the number of Firm ADSs to be sold
by such Seller as the number of Firm ADSs set forth in Schedule I hereto
opposite the name of such International Underwriter bears to the total number of
Firm ADSs.
On the basis of the representations and warranties contained in this
Agreement, and subject to its terms and conditions, the Company agrees to sell
to the International Underwriters
14
the Additional ADSs, and the International Underwriters shall have the right to
purchase, severally and not jointly, up to 1,102,500 Additional ADSs, at the
Purchase Price. You may exercise this right on behalf of the International
Underwriters in whole or from time to time in part by giving written notice of
each election to exercise the option not later than 30 days after the date of
this Agreement. Any exercise notice shall specify the number of Additional ADSs
to be purchased by the International Underwriters and the date on which such
Additional ADSs are to be purchased. Each purchase date must be at least one
business day after the written notice is given and may not be earlier than the
closing date for the Firm ADSs nor later than ten business days after the date
of such notice. Additional ADSs may be purchased as provided in Section 5 hereof
solely for the purpose of covering over-allotments made in connection with the
offering of the Firm ADSs. On each day, if any, that Additional ADSs are to be
purchased (an "OPTION CLOSING DATE"), each International Underwriter agrees,
severally and not jointly, to purchase the number of Additional ADSs (subject to
such adjustments to eliminate fractional shares as you may determine) that bears
the same proportion to the total number of Additional ADSs to be purchased on
such Option Closing Date as the number of Firm ADSs set forth in Schedule I
hereto opposite the name of such International Underwriter bears to the total
number of Firm Securities.
Each of the Company, its directors and executive officers, Aeropar,
Comporte and BSSF hereby agrees that, without the prior written consent of
Xxxxxx Xxxxxxx on behalf of the International Underwriters, it will not, during
the period ending 90 days after the date of the Prospectus (i) offer, pledge,
sell, contract to sell, sell any option or contract to purchase, purchase any
option or contract to sell, grant any option, right or warrant to purchase,
lend, or otherwise transfer or dispose of, directly or indirectly, any
Securities or any securities convertible into or exercisable or exchangeable for
Securities; (ii) file any registration statement with the Commission relating to
the offering of any Securities or any securities convertible into or exercisable
or exchangeable for Securities; or (iii) enter into any swap or other
arrangement that transfers to another, in whole or in part, any of the economic
consequences of ownership of the Securities, whether any such transaction
described in clause (i), (ii) or (iii) above is to be settled by delivery of
Securities or such other securities, in cash or otherwise.
Notwithstanding the foregoing, if (i) during the last 17 days of the
90-day restricted period, the Company issues an earnings release relating to the
Company; or (ii) prior to the expiration of the 90-day restricted period, the
Company announces that it will release earnings results during the 16-day period
beginning on the last day of the 90-day period, the restrictions imposed by this
letter shall continue to apply until the expiration of the 18-day period
beginning on the issuance of the earnings release. The Company shall promptly
notify Xxxxxx Xxxxxxx & Co. Incorporated of any earnings release, news or event
that may give rise to an extension of the initial 90-day restricted period.
Solely with respect to the Selling Shareholder, Aeropar and
Comporte, the restrictions provided in the third paragraph of this Section 3
shall not apply to (A) offers, sales, assignments or transfers of Securities
made to corporations, partnerships, limited liability companies or other
entities to the extent such entities are wholly-owned by the Selling
Shareholder, Aeropar or Comporte, so long as each transferee agrees in writing
to be bound by the restrictions set forth herein, (B) the pledge of Securities
to third parties in connection with financing arrangements, so
15
long as any such third party agrees in writing to be bound by the restrictions
set forth herein; and (C) the distribution of Securities by the Selling
Shareholder, Aeropar or Comporte, as the case may be, to its owners of record as
of the date hereof, so long as each transferee agrees in writing to be bound by
the restrictions set forth herein.
The restrictions contained in the third paragraph of this Section 3
shall not apply to (A) the Securities to be sold hereunder or under the
Brazilian Registration Statement, (B) the issuance by the Company of ADSs or
Preferred Shares upon the exercise of an option or warrant or the conversion of
a security outstanding on the date hereof of which the International
Underwriters have been advised in writing, (C) transactions by any person or
entity other than the Company relating to ADSs or Preferred Shares or other
securities acquired in open market transactions after the completion of the
offering of the Securities, (D) the issuance by the Company of options to
acquire securities of the Company as described in the Prospectus under
"Management and Corporate Governance -- Executive Stock Options" and "Management
and Corporate Governance -- Stock Option Plan" or (E) the exchange of the
Preferred Shares for ADRs, so long as the holder thereof remains the owner of
such ADSs and the ADRs evidenced thereby. In addition, the Selling Shareholder
agrees that, without the prior written consent of Xxxxxx Xxxxxxx on behalf of
the International Underwriters, it will not, during the period ending 180 days
after the date of the Prospectus, make any demand for, or exercise any right
with respect to, the registration of any Securities or any security convertible
into or exercisable or exchangeable for Securities. The Selling Shareholder
consents to the entry of stop transfer instructions with the Company's transfer
agent and registrar against the transfer of any Securities held by the Selling
Shareholder except in compliance with the foregoing restrictions.
4. Terms of Public Offering. The Sellers are advised by you that the
International Underwriters propose to make a public offering of their respective
portions of the Securities as soon after the Registration Statement, the ADS
Registration Statement and this Agreement have become effective as in your
judgment is advisable. The Sellers are further advised by you that the
Securities are to be offered to the public initially at $[ ] a Preferred Share
($[ ] an ADS) (the "PUBLIC OFFERING PRICE") and to certain dealers selected by
you at a price that represents a concession not in excess of $[ ] a Preferred
Share ($[ ] an ADS) under the Public Offering Price.
5. Payment and Delivery. Payment for the Firm ADSs to be sold by each
Seller shall be made to such Seller in federal or other funds immediately
available in New York City against delivery of such Firm ADSs for the respective
accounts of the several International Underwriters at 10:00 a.m., New York City
time, on [ ], 2005, or at such other time on the same or such other date, not
later than [ ], 2005, as shall be designated in writing by you. The time and
date of such payment are hereinafter referred to as the "CLOSING DATE."
(a) Payment for any Additional ADSs shall be made to the Company in
federal or other funds immediately available in New York City against
delivery of such Additional ADSs for the respective accounts of the
several International Underwriters at 10:00 a.m., New York City time, on
the date specified in the corresponding notice described in Section 3 or
at such other time on the same or
16
on such other date, in any event not later than [ ], 2005, as shall be
designated in writing by you.
(b) The Firm ADSs and Additional ADSs shall be registered in such
names and in such denominations as you shall request in writing not later
than one full business day prior to the Closing Date or the applicable
Option Closing Date, as the case may be. The Firm ADSs and Additional ADSs
shall be delivered to you on the Closing Date or an Option Closing Date,
as the case may be, for the respective accounts of the several
International Underwriters, with any transfer taxes payable in connection
with the transfer of the Securities to the International Underwriters duly
paid, against payment of the Purchase Price therefor.
6. Conditions to the International Underwriters' Obligations. The
obligations of the Sellers to sell the Securities to the International
Underwriters and the several obligations of the International Underwriters to
purchase and pay for the Securities on the Closing Date are subject to the
condition that the Registration Statement and the ADS Registration Statement
shall have become effective not later than 5:30 p.m. (New York City time) on the
date hereof.
The several obligations of the International Underwriters are
subject to the following further conditions:
(a) Subsequent to the execution and delivery of this Agreement and
prior to the Closing Date:
(i) there shall not have occurred any downgrading, nor shall
any notice have been given of any intended or potential downgrading
or of any review for a possible change that does not indicate the
direction of the possible change, in the rating accorded any of the
Company's or Gol's securities by any "nationally recognized
statistical rating organization," as such term is defined for
purposes of Rule 436(g)(2) under the Securities Act;
(ii) the representations and warranties of the Company, Gol
and the Selling Shareholder contained in this Agreement shall remain
true and correct; and
(iii) there shall not have occurred any change, or any
development involving a prospective change, in the condition,
financial or otherwise, or in the earnings, business or operations
of either the Company or Gol, from that set forth in the Prospectus
that, in your judgment, is material and adverse and that makes it,
in your judgment, impracticable to market the Securities on the
terms and in the manner contemplated in the Prospectus.
(b) The International Underwriters shall have received on the
Closing Date a certificate, dated the Closing Date and signed by an
executive officer of each of the Company and Gol, to the effect set forth
in Section 6(a)(i) and (with respect to the Company and Gol) (ii) above
and that each of the Company and Gol has complied in all material respects
with all of the agreements and satisfied in all material respects all of
the conditions on its part to be performed or satisfied
17
hereunder on or before the Closing Date. Each of the officers signing and
delivering such certificate may rely upon the best of his or her knowledge
as to proceedings threatened.
(c) The International Underwriters shall have received on the
Closing Date an opinion of Xxxxxx Filho, Xxxxx Filho, Marrey Jr. e Xxxxxxx
Advogados, Brazilian special outside counsel for each of the Company and
Gol, dated the Closing Date, to the effect that:
(i) each of the Company and Gol has been duly incorporated, is
validly existing as a corporation in good standing under the laws of
Brazil, has the corporate power and authority to own, lease and
operate its property and to conduct its business as described in the
Prospectus and is duly qualified to transact business and in good
standing in each jurisdiction in which the conduct of its business
or its ownership or leasing of property requires such qualification,
except to the extent that the failure to be so qualified or in good
standing would not, singly or in the aggregate, have a material
adverse effect on either the Company or Gol;
(ii) the Company is duly registered with the CVM as a
publicly-held company pursuant to art. 22 of Law No. 6385/76;
(iii) the authorized capital stock of the Company conforms as
to legal matters to the description thereof contained in the
Prospectus;
(iv) the Preferred Shares (including those to be sold by the
Selling Shareholder) outstanding prior to the issuance of the
Securities to be sold by the Company have been duly authorized and
are validly issued, fully paid and non-assessable;
(v) the Securities to be sold by the Company have been duly
authorized and, when issued, paid for and delivered in accordance
with the terms of this Agreement and the Brazilian Underwriting
Agreement, will be validly issued, fully paid and non-assessable,
the issuance of such Securities will not be subject to any
preemptive or similar rights that have not been effectively waived,
or give rise to any registration rights relating to the Securities
or any other securities of the Company other than as described in
the Prospectus, and there are no restrictions on transfers of the
Securities;
(vi) this Agreement has been duly authorized by each of the
Company and Gol; and the Deposit Agreement has been duly authorized
by the Company;
(vii) the execution and delivery by each of the Company and
Gol of, and the performance by each of the Company and Gol of its
obligations under, this Agreement and the Brazilian Underwriting
Agreement will not contravene any provision of applicable law or the
by-laws of either the Company or Gol, or, to such counsel's
knowledge, any agreement or other instrument binding upon the
Company or Gol that is material to the Company or Gol, or, to such
counsel's
18
knowledge, any judgment, order or decree of any governmental body,
agency or court having jurisdiction over the Company or Gol, and no
consent, approval, authorization or order of, or qualification with,
any governmental body or agency is required for the performance by
the Company or Gol of its obligations under this Agreement and the
Brazilian Underwriting Agreement, except (i) such as may be required
by the securities or Blue Sky laws of the States of the United
States or securities laws of other jurisdictions in connection with
the offer and sale of the Securities, (ii) such as may be required
from the Central Bank and the CVM relating to the Deposit Agreement
under Annex V of the CMN, (iii) from the CVM relating to the
Brazilian Offering and the offering of the Securities as provided
for in this Agreement and in the Brazilian Underwriting Agreement,
(iv) from the Central Bank relating to the payment of the fees,
commissions and expenses contemplated by this Agreement and the
Deposit Agreement and (v) such as may be required by the DAC, all of
which have been obtained or will be duly obtained (except for those
described in clause (i) and in clause (iv), specifically with
respect to any payment outside of Brazil pursuant to Section 9
hereof)) prior to the Closing Date;
(viii) the execution and delivery by the Company of, and the
performance by the Company of its obligations under, the Deposit
Agreement will not contravene any provision of applicable law or the
by-laws of the Company, or, to such counsel's knowledge, any
agreement or other instrument binding upon the Company that is
material to the Company or, to such counsel's knowledge, any
judgment, order or decree of any governmental body, agency or court
having jurisdiction over the Company, and no consent, approval,
authorization or order of, or qualification with, any governmental
body or agency is required for the performance by the Company of its
obligations under the Deposit Agreement, except (i) such as may be
required by the securities or Blue Sky laws of the States of the
United States or securities laws of other jurisdictions in
connection with the offer and sale of the Securities, (ii) such as
may be required from the Central Bank and the CVM relating to the
Deposit Agreement under Annex V of the CMN, (iii) from the CVM
relating to the Brazilian Offering and the offering of the
Securities as provided for in this Agreement and in the Brazilian
Underwriting Agreement, (iv) from the Central Bank relating to the
payment of the fees, commissions and expenses contemplated by this
Agreement and the Deposit Agreement and (v) such as may be required
by the DAC, all of which have been obtained or will be duly obtained
(except for those described in clause (i) and in clause (iv),
specifically with respect to any payment outside of Brazil pursuant
to Section 9 hereof)) prior to the Closing Date;
(ix) the statements relating to legal matters, documents or
proceedings included in the Prospectus under the captions "Legal
Matters and Administrative Proceedings," "Description of Capital
Stock" and "Underwriters" and (B) the Registration Statement in
Items 6 and 7 to the extent such statements constitute summaries of
legal matters, documents or proceedings referred to therein, in each
case fairly summarize in all material respects such matters,
documents or proceedings;
19
(x) nothing has come to the attention of such counsel that
causes such counsel to believe that (A) the Registration Statement
or the Prospectus (except for the financial statements and financial
schedules and other financial and statistical data included therein,
as to which such counsel need not express any belief) at the time
the Registration Statement became effective contained an untrue
statement of a material fact or omitted to state a material fact
required to be stated therein or necessary to make the statements
therein not misleading or (B) the Prospectus (except for the
financial statements and financial schedules and other financial and
statistical data included therein, as to which such counsel need not
express any belief) as of its date or as of the Closing Date
contained or contains an untrue statement of a material fact or
omitted or omits to state a material fact necessary in order to make
the statements therein, in the light of the circumstances under
which they were made, not misleading;
(xi) assuming that this Agreement is not executed and
delivered in Brazil, no stamp or other issuance or transfer taxes or
duties, and no capital gains, income, withholding or other taxes,
are payable to Brazil or any political subdivision or taxing
authority hereof or therein (other than Brazilian tax payable by
reason of the fact that its income generally is subject to tax in
Brazil) by or on behalf of the International Underwriters in
connection with (A) the deposit by the Company on its own behalf and
on behalf of the Selling Shareholder with the Depositary of
Preferred Shares against the issuance of ADRs evidencing the ADSs,
(B) the sale and delivery by the Company of the Securities on its
own behalf and on behalf of the Selling Shareholder to or for the
respective accounts of the International Underwriters, or (C) the
sale and delivery outside Brazil by the International Underwriters
of the Securities to the initial purchasers thereof in the manner
contemplated herein, in each case except as described in the
Prospectus;
(xii) upon payment to the Company and the Selling Shareholder
for the Securities to be sold to the International Underwriters by
the Company and the Selling Shareholder, respectively, pursuant to
this Agreement, all right, title and interest in the Securities will
be transferred to the International Underwriters free and clear of
all security interests, claims, liens, equities or other
encumbrances;
(xiii) to the best of such counsel's knowledge after
discussions with the appropriate officers of each of the Company and
Gol, there are no legal, arbitration or governmental proceedings
pending or threatened to which either the Company or Gol is a party
or to which any of the properties of either the Company or Gol is
subject that could reasonably be expected to, singly or in the
aggregate, have a material adverse effect on either the Company or
Gol, except as described in the Prospectus; and
(xiv) the Company owns, and on the Closing Date will own, the
Securities to be sold by it free and clear of all security
interests, claims, liens, equities or other encumbrances and has,
and on the Closing Date will have, the legal right and power, and
all authorizations and approvals required by law, to
20
enter into this Agreement and to sell, transfer and deliver the
Securities to be sold by it.
(d) The International Underwriters shall have received on the
Closing Date an opinion of Shearman & Sterling LLP, outside counsel for
the Company and Gol, dated the Closing Date, to the effect that:
(i) the statements relating to legal matters, documents or
proceedings included in the Prospectus under the caption
"Description of American Depositary Shares," in so far as such
statements constitute summaries of legal matters, documents or
proceedings, fairly summarize in all material respects such matters,
documents or proceedings;
(ii) neither the Company nor Gol is, and after giving effect
to the offering and sale of the Securities and the application of
the proceeds thereof as described in the Prospectus neither will be,
required to register as an investment company, under the Investment
Company Act of 1940, as amended;
(iii) (A) the Registration Statement and the Prospectus
(except for the financial statements and financial schedules and
other financial and statistical data included therein, as to which
such counsel need not express any belief) appear on their face to be
appropriately responsive in all material respects to the
requirements of the Securities Act and the applicable rules and
regulations of the Commission thereunder, (B) no facts have come to
such counsel's attention which gave such counsel reason to believe
that the Registration Statement or the Prospectus (except for the
financial statements and financial schedules and other financial and
statistical data included therein, as to which such counsel need not
express any belief) at the time the Registration Statement became
effective contained an untrue statement of a material fact or
omitted to state a material fact required to be stated therein or
necessary to make the statements therein not misleading or (C) no
facts have come to such counsel's attention which gave such counsel
reason to believe that the Prospectus (except for the financial
statements and financial schedules and other financial and
statistical data included therein, as to which such counsel need not
express any belief) as of its date or as of the Closing Date
contained or contains an untrue statement of a material fact or
omitted or omits to state a material fact necessary in order to make
the statements therein, in the light of the circumstances under
which they were made, not misleading;
(iv) this Agreement has been duly executed and delivered by
each of the Company and Gol; and the Deposit Agreement has been duly
executed and delivered by the Company;
(v) assuming the Deposit Agreement has been duly authorized by
the Company and duly authorized, executed and delivered by the
Depositary, the Deposit Agreement is a valid and binding obligation
of the Company, enforceable against the Company in accordance with
its terms, except as such enforceability
21
may be limited by applicable bankruptcy, insolvency (including,
without limitation, all laws relating to fraudulent transfers),
reorganization, moratorium or other similar laws affecting the
rights of creditors generally and the application of general
principles of equity (regardless of whether enforcement is
considered in a proceeding in equity or at law) and, assuming the
accuracy of, and compliance with, the representations, warranties
and covenants made by the Selling Shareholder herein, upon due and
authorized issuance by the Depositary of ADRs (including any master
ADR issued in connection therewith) evidencing ADSs against the
deposit of the Preferred Shares in respect thereof in accordance
with the provisions of the Deposit Agreement, the persons in whose
names the ADRs are registered will be entitled to the rights
specified therein and in the Deposit Agreement;
(vi) the deposit of the Preferred Shares, the issuance and
sale of the ADRs being delivered on the Closing Date in respect
thereof pursuant to the Deposit Agreement and the performance by the
Company of its obligations in this Agreement and the Deposit
Agreement, do not require any consent, approval, authorization,
registration or qualification of or with any court or governmental
agency of the United States or the State of New York except such as
have been obtained or effected under the Securities Act or Exchange
Act or in connection with the listing of the ADSs on the NYSE or as
may be required under the Blue Sky laws of any jurisdiction in the
United States in connection with the purchase and distribution of
the ADRs by the International Underwriters (as to which such counsel
need not express any comment or opinion); and
(vii) under the laws of the State of New York relating to
submission to personal jurisdiction, each of the Company and Gol
has, pursuant to Section 14 of this Agreement, submitted to the
personal jurisdiction of any New York State or United States Federal
court sitting in The City of New York in any action arising out of
or relating to this Agreement, has to the fullest extent permitted
by law waived any objection to the venue of a proceeding in any such
court, and has appointed CT Corporation as its authorized agent for
the purpose described in Section 14 hereof, and service of process
effected on such agent in the manner set forth in Section 14 hereof
will be effective to confer valid personal jurisdiction over the
Company in any such action.
(e) The International Underwriters shall have received on the
Closing Date an opinion of Shearman & Sterling LLP, counsel for the
Selling Shareholder, dated the Closing Date, to the effect that:
(i) upon payment to the Selling Shareholder for the Securities
to be sold to the International Underwriters by the Selling
Shareholder pursuant to this Agreement, delivery of the Preferred
Shares in the form of ADSs, as directed by the International
Underwriters, to Cede or such other nominee as may be designated by
DTC, registration of such ADSs in the name of Cede or such other
nominee and the crediting of such ADSs on the books of DTC to
securities accounts of the International Underwriters (assuming that
neither DTC nor any
22
such International Underwriter has notice of any adverse claim
within the meaning of Section 8-105 of the UCC to such ADSs), (A)
DTC shall be a "protected purchaser" of such ADSs within the meaning
of Section 8-303 of the UCC, (B) under Section 8-501 of the UCC, the
International Underwriters will acquire a valid security entitlement
in respect of such ADSs and (C) no action based on any "adverse
claim" (within the meaning of Section 8-102 of the UCC) to such ADSs
may be asserted against the International Underwriters with respect
to such security entitlement; in giving this opinion, counsel for
the Selling Shareholder may assume that when such payment, delivery
and crediting occur, (x) such ADSs will have been registered in the
name of Cede or another nominee designated by DTC, in each case on
the Depositary's ADS share registry in accordance with the Deposit
Agreement, by-laws and applicable law, (y) DTC will be registered as
a "clearing corporation" within the meaning of Section 8-102 of the
UCC and (z) appropriate entries to the accounts of the several
International Underwriters on the records of DTC will have been made
pursuant to the UCC; and
(ii) under the laws of the State of New York relating to
submission to jurisdiction, the Selling Shareholder has, pursuant to
Section 14 of this Agreement, submitted to the personal jurisdiction
of any New York State or United States Federal court sitting in The
City of New York in any action arising out of or relating to this
Agreement, has to the fullest extent permitted by law waived any
objection to the venue of a proceeding in any such court, and has
appointed CT Corporation, as its authorized agent for the purpose
described in Section 14 hereof, and service of process effected on
such agent in the manner set forth in Section 14 hereof will be
effective to confer valid personal jurisdiction over the Selling
Shareholder in any such action; the waiver by the Selling
Shareholder pursuant to Section 14 hereof of any immunity to
jurisdiction to which they may otherwise be entitled (including
sovereign immunity and immunity from pre-judgment attachment,
post-judgment attachment and execution) is legal, valid and binding
under New York and federal law, subject to the limitations provided
by the United States Foreign Sovereign Immunities Act of 1976.
(f) The International Underwriters shall have received on the
Closing Date an opinion of General Counsel for the Company and Gol, dated
the Closing Date, to the effect that
(i) there are no legal, arbitration or governmental
proceedings pending or threatened to which either the Company or Gol
is a party or to which any of the properties of either the Company
or Gol is subject that could reasonably be expected to, singly or in
the aggregate, have a material adverse effect on either the Company
or Gol, except as described in the Prospectus; and
(ii) Gol possesses the governmental licenses necessary to
conduct its commercial airline operations as described in the
Prospectus and Gol is in compliance with the terms and conditions of
all such governmental licenses,
23
except where the failure to so comply would not, singly or in the
aggregate, have a material adverse effect on either the Company or
Gol; and all of the governmental licenses are valid and in full
force and effect, except where the invalidity of such governmental
licenses or the failure of such governmental licenses to be in full
force and effect would not, singly or in the aggregate, have a
material adverse effect on either the Company or Gol;
(g) The International Underwriters shall have received on the
Closing Date an opinion of Xxxx Xxxx, in-house counsel for BSSF, dated the
Closing Date, to the effect that:
(i) this Agreement and the Deposit Agreement have been duly
authorized by BSSF, and each of this Agreement and the Deposit
Agreement has been duly executed and delivered by or on behalf of
BSSF;
(ii) the execution and delivery by BSSF of, and the
performance by BSSF of its obligations under, this Agreement and the
Deposit Agreement will not contravene any provision of the laws of
the State of New York or the federal laws of the United States or,
to the best of such counsel's knowledge, any agreement or other
instrument binding upon BSSF that is governed by the laws of the
State of New York or the federal law of the United States or, to
such counsel's knowledge, any judgment, order or decree of any U.S.
Federal or New York State governmental body, agency or court having
jurisdiction over BSSF, and no consent, approval, authorization or
order of, or qualification with, any U.S. Federal or New York State
governmental body or agency is required for the performance by BSSF
of its obligations under this Agreement, except such as may be
required by the securities or Blue Sky laws of the States of the
United States or securities laws of other jurisdictions in
connection with the offer and sale of the Securities (as to which
such counsel expresses no comment or opinion) or have been obtained
or effected under the Securities Act or Exchange Act or in
connection with the listing of the ADSs on the NYSE;
(iii) the performance by BSSF of its obligations in this
Agreement and the Deposit Agreement do not require any consent,
approval, authorization, registration or qualification of or with
any court or governmental agency of the United States or the State
of New York, except such as have been obtained or effected under the
Securities Act or Exchange Act or in connection with the listing of
the ADSs on the NYSE;
(iv) the execution and delivery by BSSF of, and the
performance by BSSF of its obligations under, this Agreement will
not contravene any provision of the organizational documents of BSSF
or any agreement or other instrument binding upon BSSF or any
judgment, order or decree of any governmental body, agency or court
having jurisdiction over BSSF, and no consent, approval,
authorization or order of, or qualification with, any governmental
body or agency is required for the performance by BSSF of its
obligations under this Agreement, except such as may be required by
the securities or Blue Sky laws of the States of
24
the United States or securities laws of other jurisdictions in
connection with the offer and sale of the Securities (as to which
such counsel expresses no comment or opinion) or have been obtained
or effected under the Securities Act or Exchange Act or in
connection with the listing of the ADSs on the NYSE; and
(v) BSSF owns, and on the Closing Date will own, the
Securities to be sold by it free and clear of all security
interests, claims, liens, equities or other encumbrances and has,
and on the Closing Date will have, the legal right and power, and
all authorizations and approvals required by law, to enter into this
Agreement and to sell, transfer and deliver the Securities to be
sold by it.
(h) The International Underwriters shall have received on the
Closing Date an opinion of Xxxxx, Cescon Xxxxxxxxxx, Barrieu e Xxxxxx
Advogados, Brazilian counsel for the International Underwriters, dated the
Closing Date, covering the matters referred to in Sections 6(c)(iv),
6(c)(v), 6(c)(viii) (but only as to the statements in the Prospectus under
"Description of Capital Stock" and "Underwriters") and 6(c)(ix) above.
(i) The International Underwriters shall have received on the
Closing Date an opinion of Xxxxxx Xxxxxxxx Xxxxx & Xxxxxxxx LLP, counsel
for the International Underwriters, dated the Closing Date, covering the
matters referred to in Sections 6(c)(viii) (but only as to the statements
in the Prospectus under "Description of American Depositary Shares" and
"Underwriters") and a letter covering the matters referred to in 6(d)(iii)
above.
With respect to Section 6(c)(ix) above, Xxxxxx Filho, Xxxxx
Filho, Marrey Jr. e Xxxxxxx Advogados and Xxxxx, Cescon Xxxxxxxxxx,
Barrieu e Xxxxxx Advogados, with respect to Section 6(d)(iii) above,
Shearman & Sterling LLP and Xxxxxx Xxxxxxxx Xxxxx & Xxxxxxxx LLP may state
that their beliefs are based upon their participation in the preparation
of the Registration Statement and Prospectus and any amendments or
supplements thereto and review and discussion of the contents thereof, but
are without independent check or verification, except as specified. With
respect to Section 6(e) above, Shearman & Sterling LLP may rely upon an
opinion or opinions of counsel for the Selling Shareholder and, with
respect to factual matters and to the extent such counsel deems
appropriate, upon the representations of the Selling Shareholder contained
herein and in other documents and instruments; provided that (i) such
counsel for the Selling Shareholder is satisfactory to your counsel, (ii)
a copy of each opinion so relied upon is delivered to you and is in form
and substance satisfactory to your counsel, (iii) copies of any such other
documents and instruments shall be delivered to you and shall be in form
and substance satisfactory to your counsel and (iv) Shearman & Sterling
LLP shall state in their opinion that they are justified in relying on
such other opinion.
(j) The opinions of Xxxxxx Filho, Xxxxx Filho, Marrey Jr. e Xxxxxxx
Advogados and Shearman & Sterling LLP described in Sections 6(c), 6(d) and
6(e) above (and any opinions of counsel for the Selling Shareholder
referred to in
25
the immediately preceding paragraph) shall be rendered to the
International Underwriters at the request of the Company or the Selling
Shareholder, as the case may be, and shall so state therein.
(k) Xxxxx, Xxxxxx & Xxxxxx LLP, counsel for the Depositary, shall
have furnished to the Representative their written opinion, dated the
Closing Date, in form and substance satisfactory to the Representative, to
the effect that:
(i) The Deposit Agreement has been duly and validly
authorized, executed and delivered by the Depositary and, assuming
due authorization, execution and delivery by the Company,
constitutes a legal, valid, binding and enforceable agreement of the
Depositary, except as such enforceability may be limited by
applicable bankruptcy, insolvency, moratorium and other similar laws
affecting the rights of creditors generally and the application of
general equitable principles (regardless of whether enforcement is
sought in a proceeding in equity or at law);
(ii) When executed and delivered by the Depositary against the
deposit of duly authorized, validly issued, fully paid and
nonassessable Preferred Shares in accordance with the terms of the
Deposit Agreement, the ADRs will be duly and validly issued and will
entitle the registered holders thereof to the rights specified
therein and in the Deposit Agreement; and
(iii) In rendering such opinion, such counsel may state that
they express no opinion as to the laws of any jurisdiction outside
the United States.
(l) The International Underwriters shall have received, on each of
the date hereof and the Closing Date, a letter dated the date hereof or
the Closing Date, as the case may be, in form and substance satisfactory
to the International Underwriters, from Ernst & Young Auditores
Independentes S.S., independent public accountants, containing statements
and information of the type ordinarily included in accountants' "comfort
letters" to underwriters with respect to the financial statements and
certain financial information contained in the Registration Statement and
the Prospectus; provided that the letter delivered on the Closing Date
shall use a "cut-off date" not earlier than the date hereof.
(m) The "lock-up" agreements, each substantially (including Aeropar,
Comporte and BSSF) in the form of Exhibit A hereto, between you and
certain shareholders, officers and directors of the Company relating to
sales and certain other dispositions of Securities or certain other
securities, delivered to you on or before the date hereof, shall be in
full force and effect on the Closing Date.
(n) The ADSs shall have been approved for listing on the NYSE,
subject only to official notice of issuance.
(o) The Preferred Shares shall have been approved for listing on the
BOVESPA.
26
(p) The Brazilian Registration Statement, which has been filed by
the Company with the CVM with respect to the concurrent Brazilian offering
pursuant to Instrucao CVM No. 400 of 29/12/2003 ("BRAZILIAN SECURITIES
LAW"), as well as the Brazilian Prospectus, has been prepared in
accordance with the Brazilian Securities Law and the regulations and rules
promulgated thereunder, and does not 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.
The several obligations of the International Underwriters to
purchase Additional ADSs hereunder are subject to the delivery to you on the
applicable Option Closing Date of such documents as you may reasonably request
with respect to the good standing of the Company, the due authorization and
issuance of the Additional ADSs to be sold on such Option Closing Date and other
matters related to the issuance of such Additional ADSs.
7. Covenants of the Company. In further consideration of the agreements of
the International Underwriters herein contained, the Company covenants with each
International Underwriter as follows:
(a) To furnish to you, without charge, five signed copies of the
Registration Statement (including exhibits thereto) and the ADS
Registration Statement (including exhibits thereto) and for delivery to
each other International Underwriter a conformed copy of the Registration
Statement (without exhibits thereto) and the ADS Registration Statement
(without exhibits thereto) and to furnish to you in New York City, without
charge, prior to 10:00 a.m. New York City time on the business day next
succeeding the date of this Agreement and during the period mentioned in
Section 7(c) below, as many copies of the Prospectus and any supplements
and amendments thereto or to the Registration Statement or the ADS
Registration Statement as you may reasonably request.
(b) Before amending or supplementing the Registration Statement, the
ADS Registration Statement, or the Prospectus, to furnish to you a copy of
each such proposed amendment or supplement and not to file any such
proposed amendment or supplement to which you reasonably object, and to
file with the Commission within the applicable period specified in Rule
424(b) under the Securities Act any prospectus required to be filed
pursuant to such Rule.
(c) If, during such period after the first date of the public
offering of the Securities, in the opinion of counsel for the
International Underwriters, the Prospectus is required by law to be
delivered in connection with sales by an International Underwriter or
dealer, any event shall occur or condition exist as a result of which it
is necessary to amend or supplement the Prospectus in order to make the
statements therein, in the light of the circumstances when the Prospectus
is delivered to a purchaser, not misleading, or if, in the opinion of
counsel for the International Underwriters, it is necessary to amend or
supplement the Prospectus to comply with applicable law, forthwith to
prepare, file with the Commission and
27
furnish, at its own expense, to the International Underwriters and to the
dealers (whose names and addresses you will furnish to the Company) to
which Securities may have been sold by you on behalf of the International
Underwriters and to any other dealers upon request, either amendments or
supplements to the Prospectus so that the statements in the Prospectus as
so amended or supplemented will not, in the light of the circumstances
when the Prospectus is delivered to a purchaser, be misleading or so that
the Prospectus, as amended or supplemented, will comply with law.
(d) To endeavor to qualify the Securities for offer and sale under
the securities or Blue Sky laws of such jurisdictions as you shall
reasonably request.
(e) To make generally available to the Company's security holders
and to you as soon as practicable an earning statement covering the
twelve-month period ending June 30, 2006 that satisfies the provisions of
Section 11(a) of the Securities Act and the rules and regulations of the
Commission thereunder.
(f) To use its best efforts to effect and maintain the listing of
the Preferred Shares on the BOVESPA, to maintain the registration of the
Company with the CVM and to maintain the registration of the ADR program
with the Central Bank and the CVM.
(g) To use its best efforts to effect and maintain the listing of
the ADSs on the NYSE, including the filing with the NYSE of all required
documents and notices for non-U.S. companies that have securities that are
traded on the NYSE.
(h) To file any documents or reports with respect to the Securities
required to be filed with the CVM and the BOVESPA in the time period
required for such filing.
(i) To use the net proceeds received by it from the sale of the
Securities in the manner specified in the Prospectus under the caption
"Use of Proceeds".
(j) To furnish to the holders of the ADSs, directly or through the
Depositary, with a copy to the Representative, (A) after the end of each
fiscal year, an annual report (in English) that will include a review of
operations and annual audited consolidated financial statements (including
consolidated balance sheets, statements of income, statements of change in
shareholders' equity and statements of cash flow) with an opinion by an
independent accountant and prepared in conformity with U.S. GAAP; and (B)
after the end of each of the first three quarterly periods of each fiscal
year, unaudited consolidated financial information prepared in accordance
with U.S. GAAP, equivalent in substance to
28
the information that would be required to be filed on Form 10-Q, if the
Company were required to file quarterly reports on Form 10-Q.
(k) To publish an earnings release reporting financial results
prepared in accordance with U.S. GAAP (i) no later than the publishing of
an earnings release reporting financial results for the corresponding
period prepared in accordance with generally accepted accounting
principles in Brazil and (ii) that has a level of detail substantially
similar to such earnings release prepared in accordance with generally
accepted accounting principles in Brazil.
8. Expenses. Regardless of whether the transactions contemplated in this
Agreement are consummated or this Agreement is terminated, the Company and Gol
agree to pay or cause to be paid all expenses incident to the performance of the
Sellers' obligations under this Agreement, including: (i) the fees,
disbursements and expenses of the Company's and Gol's counsel, the Company's and
Gol's accountants and counsel for the Selling Shareholder in connection with the
registration and delivery of the Securities under the Securities Act and all
other fees or expenses in connection with the preparation and filing of the
Registration Statement, the ADS Registration Statement, any preliminary
prospectus, the Prospectus and amendments and supplements to any of the
foregoing, including all printing costs associated therewith, and the mailing
and delivering of copies thereof to the Underwriters and dealers, in the
quantities hereinabove specified, (ii) all costs and expenses related to the
transfer and delivery of the Securities to the Underwriters, (iii) all expenses
and taxes incident to (A) the deposit by the Sellers of the Preferred Shares
with the Depositary and the issuance and delivery of the ADRs evidencing the
ADSs in exchange therefor by the Depositary to the Sellers, (B) the sale and
delivery of the ADSs by the Sellers to or for the account of the International
Underwriters and (C) the sale and delivery outside Brazil of the ADSs by the
International Underwriters to each other and the initial purchasers thereof in
the manner contemplated herein, including, in any such case, any Brazilian
income, capital gains, withholding transfer or other tax (but excluding any
brokerage fee and any Brazilian income tax on capital gains from the sale of the
Securities and on the income of any International Underwriter whose net income
is subject to tax by Brazil) asserted against an International Underwriter by
reason of the purchase and sale of any Securities pursuant to this Agreement or
the Agreement Between Underwriters, including without limitation any taxes
referred to in Section 1(pp) above, (iv) the cost of printing or producing any
Blue Sky or Legal Investment memorandum in connection with the offer and sale of
the Securities under state securities laws and all expenses in connection with
the qualification of the Securities for offer and sale under securities laws of
various jurisdictions as provided in Section 7(d) hereof, including filing fees
and the reasonable fees and disbursements of counsel for the Underwriters in
connection with such qualification and in connection with the Blue Sky or Legal
Investment memorandum, (v) all filing fees incurred in connection with the
review and qualification of the offering of the Securities by the NASD, Inc.,
(vi) all costs and expenses incident to listing the Securities on the NYSE and
other national securities exchanges and the BOVESPA and other foreign stock
exchanges and the registration of the Securities with the CVM, (vii) the cost of
printing certificates representing the Securities, (viii) the costs and charges
of any transfer agent, registrar or depositary, including the fees and expenses
(including fees and disbursements of counsel), if any, of the Depositary and any
custodian appointed under the Deposit Agreement, other than the fees and
expenses to be paid by holders of ADRs (other than the International
Underwriters in connection with the initial purchase of the Securities), (ix)
the costs and expenses of the
29
Company and Gol relating to travel and lodging expenses of the representatives
and officers of the Company and Gol and one-half of the cost of any aircraft
chartered in connection with the road show, (x) the document production charges
and expenses associated with preparing this Agreement, the Agreement Between
Underwriters and any other documents in connection with the offering, purchase
and sale of the Securities and (xi) all other costs and expenses incident to the
performance of the obligations of the Company and Gol hereunder for which
provision is not otherwise made in this Section. It is understood, however, that
except as provided in this Section, Section 9 entitled "Indemnity and
Contribution" and Section 11(b) below, the Underwriters will pay all of their
costs and expenses, including fees and disbursements of their counsel, stock
transfer taxes payable on resale of any of the Securities by them and any
advertising expenses connected with any offers they may make.
The provisions of this Section shall not supersede or otherwise
affect any agreement that the Sellers may otherwise have for the allocation of
such expenses among themselves.
9. Indemnity and Contribution. (a) The Company and Gol, jointly and
severally, agree to indemnify and hold harmless each International Underwriter,
each person, if any, who controls any International Underwriter within the
meaning of either Section 15 of the Securities Act or Section 20 of the Exchange
Act, and each affiliate of any International Underwriter within the meaning of
Rule 405 under the Securities Act, from and against any and all losses, claims,
damages and liabilities (including, without limitation, any legal or other
expenses reasonably incurred in connection with defending or investigating any
such action or claim) caused by any untrue statement or alleged untrue
statement of a material fact contained in the Registration Statement, the ADS
Registration Statement or any amendments thereto, any preliminary prospectus or
the Prospectus (as amended or supplemented if the Company or Gol shall have
furnished any amendments or supplements thereto), or caused by any omission or
alleged omission to state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading, except insofar as
such losses, claims, damages or liabilities are caused by any such untrue
statement or omission or alleged untrue statement or omission based upon
information relating to any International Underwriter furnished to the Company
or Gol in writing by such International Underwriter through you expressly for
use therein; provided however, that the foregoing indemnity agreement with
respect to any preliminary prospectus shall not inure to the benefit of any
International Underwriter from whom the person asserting any such losses,
claims, damages or liabilities purchased Securities, or any person controlling
such International Underwriter, if a copy of the Prospectus (as then amended or
supplemented if the Company shall have furnished any amendments or supplements
thereto) was not sent or given by or on behalf of such International Underwriter
to such person, if required by law so to have been delivered, at or prior to the
written confirmation of the sale of the Securities to such person, and if the
Prospectus (as so amended or supplemented) would have cured the defect giving
rise to such losses, claims, damages or liabilities, unless such failure is the
result of noncompliance by the Company or Gol with Section 7(a) hereof.
(b) The Selling Shareholder agrees to indemnify and hold harmless
each International Underwriter, each person, if any, who controls the
Company,
30
Gol or any International Underwriter within the meaning of either Section
15 of the Securities Act or Section 20 of the Exchange Act and each
affiliate of any International Underwriter within the meaning of Rule 405
under the Securities Act, from and against any and all losses, claims,
damages and liabilities (including, without limitation, any legal or other
expenses reasonably incurred in connection with defending or investigating
any such action or claim) caused by any untrue statement or alleged untrue
statement of a material fact contained in the Registration Statement, the
ADS Registration Statement or any amendment thereto, any preliminary
prospectus or the Prospectus (as amended or supplemented if the Company or
Gol shall have furnished any amendments or supplements thereto), or caused
by any omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein
not misleading, but only with reference to information relating to the
Selling Shareholder furnished in writing to the Company by or on behalf of
the Selling Shareholder expressly for use in the Registration Statement,
any preliminary prospectus, the Prospectus or any amendments or
supplements thereto. The liability of the Selling Shareholder under the
indemnity agreement contained in this paragraph shall be limited to an
amount equal to the aggregate Public Offering Price (less any concession
under Section 4) of the Shares sold by the Selling Shareholder under this
Agreement.
(c) Each International Underwriter agrees, severally and not
jointly, to indemnify and hold harmless the Company, the Selling
Shareholder, the directors of the Company, the officers of the Company who
sign the Registration Statement and each person, if any, who controls the
Company or the Selling Shareholder within the meaning of either Section 15
of the Securities Act or Section 20 of the Exchange Act from and against
any and all losses, claims, damages and liabilities (including, without
limitation, any legal or other expenses reasonably incurred in connection
with defending or investigating any such action or claim) caused by any
untrue statement or alleged untrue statement of a material fact contained
in the Registration Statement or any amendment thereto, any preliminary
prospectus or the Prospectus (as amended or supplemented if the Company
shall have furnished any amendments or supplements thereto), or caused by
any omission or alleged omission to state therein a material fact required
to be stated therein or necessary to make the statements therein not
misleading, but only with reference to information relating to such
International Underwriter furnished to the Company in writing by such
International Underwriter through you expressly for use in the
Registration Statement, any preliminary prospectus, the Prospectus or any
amendments or supplements thereto.
(d) In case any proceeding (including any governmental
investigation) shall be instituted involving any person in respect of
which indemnity may be sought pursuant to Section 9(a), 9(b) or 9(c) such
person (the "INDEMNIFIED PARTY") shall promptly notify the person against
whom such indemnity may be sought (the "INDEMNIFYING PARTY") in writing
and the indemnifying party, upon request of the indemnified party, shall
retain counsel reasonably satisfactory to the indemnified party to
represent the indemnified party and any others the
31
indemnifying party may designate in such proceeding and shall pay the fees
and disbursements of such counsel related to such proceeding. In any such
proceeding, any indemnified party shall have the right to retain its own
counsel, but the fees and expenses of such counsel shall be at the expense
of such indemnified party unless (i) the indemnifying party and the
indemnified party shall have mutually agreed to the retention of such
counsel or (ii) the named parties to any such proceeding (including any
impleaded parties) include both the indemnifying party and the indemnified
party and representation of both parties by the same counsel would be
inappropriate due to actual or potential differing interests between them.
It is understood that the indemnifying party shall not, in respect of the
legal expenses of any indemnified party in connection with any proceeding
or related proceedings in the same jurisdiction, be liable for (i) the
fees and expenses of more than one separate firm (in addition to any local
counsel) for all International Underwriters and all persons, if any, who
control any International Underwriter within the meaning of either Section
15 of the Securities Act or Section 20 of the Exchange Act or who are
affiliates of any International Underwriter within the meaning of Rule 405
under the Securities Act, (ii) the fees and expenses of more than one
separate firm (in addition to any local counsel) for the Company, its
directors, its officers who sign the Registration Statement and each
person, if any, who controls the Company within the meaning of either such
Section and (iii) the fees and expenses of more than one separate firm (in
addition to any local counsel) for the Selling Shareholder and all
persons, if any, who control the Selling Shareholder within the meaning of
either such Section, and that all such fees and expenses shall be
reimbursed as they are incurred. In the case of any such separate firm for
the International Underwriters and such control persons and affiliates of
any International Underwriters, such firm shall be designated in writing
by Xxxxxx Xxxxxxx. In the case of any such separate firm for the Company,
and such directors, officers and control persons of the Company, such firm
shall be designated in writing by the Company. In the case of any such
separate firm for the Selling Shareholder and such control persons of the
Selling Shareholder, such firm shall be designated in writing by the
persons named as attorneys-in-fact for the Selling Shareholder under the
Powers of Attorney. The indemnifying party shall not be liable for any
settlement of any proceeding effected without its written consent, but if
settled with such consent or if there be a final judgment for the
plaintiff, the indemnifying party agrees to indemnify the indemnified
party from and against any loss or liability by reason of such settlement
or judgment. Notwithstanding the foregoing sentence, if at any time an
indemnified party shall have requested an indemnifying party to reimburse
the indemnified party for fees and expenses of counsel as contemplated by
the second and third sentences of this paragraph, the indemnifying party
agrees that it shall be liable for any settlement of any proceeding
effected without its written consent if (i) such settlement is entered
into more than 30 days after receipt by such indemnifying party of the
aforesaid request and (ii) such indemnifying party shall not have
reimbursed the indemnified party in accordance with such request prior to
the date of such settlement. No indemnifying party shall, without the
prior written consent of the
32
indemnified party, effect any settlement of any pending or threatened
proceeding in respect of which any indemnified party is or could have been
a party and indemnity could have been sought hereunder by such indemnified
party, unless such settlement includes an unconditional release of such
indemnified party from all liability on claims that are the subject matter
of such proceeding.
(e) To the extent the indemnification provided for in Section 9(a),
9(b) or 9(c) is unavailable to an indemnified party or insufficient in
respect of any losses, claims, damages or liabilities referred to therein,
then each indemnifying party under such paragraph, in lieu of indemnifying
such indemnified party thereunder, shall contribute to the amount paid or
payable by such indemnified party as a result of such losses, claims,
damages or liabilities (i) in such proportion as is appropriate to reflect
the relative benefits received by the indemnifying party or parties on the
one hand and the indemnified party or parties on the other hand from the
offering of the Securities or (ii) if the allocation provided by clause
9(e)(i) above is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to in
clause 9(e)(i) above but also the relative fault of the indemnifying party
or parties on the one hand and of the indemnified party or parties on the
other hand in connection with the statements or omissions that resulted in
such losses, claims, damages or liabilities, as well as any other relevant
equitable considerations. The relative benefits received by the Sellers on
the one hand and the International Underwriters on the other hand in
connection with the offering of the Securities shall be deemed to be in
the same respective proportions as the net proceeds from the offering of
the Securities (before deducting expenses) received by each Seller and the
total underwriting discounts and commissions received by the International
Underwriters, in each case as set forth in the table on the cover of the
Prospectus, bear to the aggregate Public Offering Price of the Securities.
The relative fault of the Sellers on the one hand and the International
Underwriters on the other hand 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 Sellers or by the International
Underwriters and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or
omission. The International Underwriters' respective obligations to
contribute pursuant to this Section 9 are several in proportion to the
respective number of Securities they have purchased hereunder, and not
joint.
(f) The Sellers, Gol and the International Underwriters agree that
it would not be just or equitable if contribution pursuant to this Section
9 were determined by pro rata allocation (even if the International
Underwriters were treated as one entity for such purpose) or by any other
method of allocation that does not take account of the equitable
considerations referred to in Section 9(e). The amount paid or payable by
an indemnified party as a result of the losses, claims, damages and
liabilities referred to in the immediately preceding paragraph shall be
deemed to include, subject to the limitations set forth above, any legal
or other expenses reasonably incurred by such indemnified party in
connection with
33
investigating or defending any such action or claim. Notwithstanding the
provisions of this Section 9, no International Underwriter shall be
required to contribute any amount in excess of the amount by which the
total price at which the Securities underwritten by it and distributed to
the public were offered to the public exceeds the amount of any damages
that such International Underwriter has otherwise been required to pay by
reason of such untrue or alleged untrue statement or omission or alleged
omission. 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. The remedies provided for in this Section 9 are not
exclusive and shall not limit any rights or remedies that may otherwise be
available to any indemnified party at law or in equity.
The indemnity and contribution provisions contained in this Section
9 and the representations, warranties and other statements of the Company,
Gol and the Selling Shareholder contained in this Agreement shall remain
operative and in full force and effect regardless of (i) any termination
of this Agreement, (ii) any investigation made by or on behalf of any
International Underwriter, any person controlling any International
Underwriter or any affiliate of any International Underwriter, the Selling
Shareholder or any person controlling the Selling Shareholder, or the
Company, its officers or directors or any person controlling the Company
and (iii) acceptance of and payment for any of the Securities.
10. Termination. The International Underwriters may terminate this
Agreement by notice given by you to the Company, if after the execution and
delivery of this Agreement and prior to the Closing Date (i) trading generally
shall have been suspended or materially limited on, or by, as the case may be,
any of the NYSE, the American Stock Exchange, the Nasdaq National Market or the
BOVESPA, (ii) trading of any securities of the Company shall have been suspended
on any exchange or in any over-the-counter market, (iii) a material disruption
in securities settlement, payment or clearance services in the United States or
Brazil shall have occurred, (iv) any moratorium on commercial banking activities
shall have been declared by U. S. Federal, New York State or Brazilian
authorities or (v) there shall have occurred any outbreak or escalation of
hostilities, or any change in financial markets, currency exchange rates or
controls or any calamity or crisis that, in your judgment, is material and
adverse and which, singly or together with any other event specified in this
clause (v), makes it, in your judgment, impracticable or inadvisable to proceed
with the offer, sale or delivery of the Securities on the terms and in the
manner contemplated in the Prospectus.
11. Effectiveness; Defaulting International Underwriters. This Agreement
shall become effective upon the execution and delivery hereof by the parties
hereto.
(a) If, on the Closing Date or an Option Closing Date, as the case
may be, any one or more of the International Underwriters shall fail or
refuse to purchase Securities that it has or they have agreed to purchase
hereunder on such date, and the aggregate number of Securities that such
defaulting International Underwriter or International Underwriters agreed
but failed or refused to purchase is not more than one-tenth of the
aggregate number of the Securities to be
34
purchased on such date, the other International Underwriters shall be
obligated severally in the proportions that the number of Firm ADSs set
forth opposite their respective names in Schedule I bears to the aggregate
number of Firm ADSs set forth opposite the names of all such
non-defaulting International Underwriters, or in such other proportions as
you may specify, to purchase the Securities which such defaulting
International Underwriter or International Underwriters agreed but failed
or refused to purchase on such date; provided that in no event shall the
number of Securities that any International Underwriter has agreed to
purchase pursuant to this Agreement be increased pursuant to this Section
11 by an amount in excess of one-ninth of such number of Securities
without the written consent of such International Underwriter. If, on the
Closing Date, any International Underwriter or International Underwriters
shall fail or refuse to purchase Firm Securities and the aggregate number
of Firm ADSs with respect to which such default occurs is more than
one-tenth of the aggregate number of Firm ADSs to be purchased on such
date, and arrangements satisfactory to you, the Company and the Selling
Shareholder for the purchase of such Firm ADSs are not made within 36
hours after such default, this Agreement shall terminate without liability
on the part of any non-defaulting International Underwriter, the Company
or the Selling Shareholder. In any such case either you or the relevant
Sellers shall have the right to postpone the Closing Date, but in no event
for longer than seven days, in order that the required changes, if any, in
the Registration Statement and in the Prospectus or in any other documents
or arrangements may be effected. If, on an Option Closing Date, any
International Underwriter or International Underwriters shall fail or
refuse to purchase Additional ADSs and the aggregate number of Additional
ADSs with respect to which such default occurs is more than one-tenth of
the aggregate number of Additional Securities to be purchased on such
Option Closing Date, the non-defaulting International Underwriters shall
have the option to (i) terminate their obligation hereunder to purchase
the Additional ADSs to be sold on such Option Closing Date or (ii)
purchase not less than the number of Additional ADSs that such
non-defaulting International Underwriters would have been obligated to
purchase in the absence of such default. Any action taken under this
paragraph shall not relieve any defaulting International Underwriter from
liability in respect of any default of such International Underwriter
under this Agreement.
(b) If this Agreement shall be terminated by the International
Underwriters, or any of them, because of any failure or refusal on the
part of any Seller to comply with the terms or to fulfill any of the
conditions of this Agreement, or if for any reason any Seller shall be
unable to perform its obligations under this Agreement, the Sellers will
reimburse the International Underwriters or such International
Underwriters as have so terminated this Agreement with respect to
themselves, severally, for all out-of-pocket expenses (including the fees
and disbursements of their counsel) reasonably incurred by such
International Underwriters in connection with this Agreement or the
offering contemplated hereunder.
35
12. Counterparts. This Agreement may be signed in two or more
counterparts, each of which shall be an original, with the same effect as if the
signatures thereto and hereto were upon the same instrument.
13. Applicable Law. This Agreement shall be governed by and construed in
accordance with the internal laws of the State of New York.
14. Submission to Jurisdiction; Appointment of Agent for Service. (a) Each
of the Company and the Selling Shareholder irrevocably submits to the
non-exclusive jurisdiction of any New York State or United States Federal court
sitting in The City of New York over any suit, action or proceeding arising out
of or relating to this Agreement, the Prospectus, the Registration Statement,
the Deposit Agreement, the ADS Registration Statement or the offering of the
Preferred Shares or the ADSs. Each of the Company and the Selling Shareholder
irrevocably waives, to the fullest extent permitted by law, any objection which
it may now or hereafter have to the laying of venue of any such suit, action or
proceeding brought in such a court and any claim that any such suit, action or
proceeding brought in such a court has been brought in an inconvenient forum. To
the extent that the Company or the Selling Shareholder has or hereafter may
acquire any immunity (on the grounds of sovereignty or otherwise) from the
jurisdiction of any court or from any legal process with respect to itself or
its property, the Company or the Selling Shareholder, as applicable, irrevocably
waives, to the fullest extent permitted by law, such immunity in respect of any
such suit, action or proceeding.
(b) Gol irrevocably submits to the non-exclusive jurisdiction of any
New York State or United States Federal court sitting in The City of New
York over any suit, action or proceeding arising out of or relating to
this Agreement and irrevocably waives, to the fullest extent permitted by
law, any objection which it may now or hereafter have to the laying of
venue of any such suit, action or proceeding brought in such a court and
any claim that any such suit, action or proceeding brought in such a court
has been brought in an inconvenient forum. To the extent that Gol has or
hereafter may acquire any immunity (on the grounds of sovereignty or
otherwise) from the jurisdiction of any court or from any legal process
with respect to itself or its property, Gol irrevocably waives, to the
fullest extent permitted by law, such immunity in respect of any such
suit, action or proceeding.
(c) Each of the Company, Gol and the Selling Shareholder hereby
irrevocably appoints CT Corporation, with offices at 000 Xxxxxx Xxx., Xxx
Xxxx, Xxx Xxxx 00000 as its agent for service of process in any suit,
action or proceeding described in the preceding paragraph and agrees that
service of process in any such suit, action or proceeding may be made upon
it at the office of such agent. Each of the Company, Gol and the Selling
Shareholder waives, to the fullest extent permitted by law, any other
requirements of or objections to personal jurisdiction with respect
thereto. Each of the Company, Gol and the Selling Shareholder represents
and warrants that such agent has agreed to act as the Company's, Gol's and
the Selling Shareholder's agent for service of process, and each of the
Company, Gol and the Selling Shareholder agrees to take any and
36
all action, including the filing of any and all documents and instruments,
that may be necessary to continue such appointment in full force and
effect.
15. Judgment Currency. If for the purposes of obtaining judgment in any
court it is necessary to convert a sum due hereunder into any currency other
than United States dollars, the parties hereto agree, to the fullest extent
permitted by law, that the rate of exchange used shall be the rate at which in
accordance with normal banking procedures the International Underwriters could
purchase United States dollars with such other currency in The City of New York
on the business day preceding that on which final judgment is given. The
obligation of the Company, Gol or the Selling Shareholder, as the case may be,
with respect to any sum due from it to any International Underwriter or any
person controlling any International Underwriter shall, notwithstanding any
judgment in a currency other than United States dollars, not be discharged until
the first business day following receipt by such International Underwriter or
controlling person of any sum in such other currency, and only to the extent
that such International Underwriter or controlling person may in accordance with
normal banking procedures purchase United States dollars with such other
currency. If the United States dollars so purchased are less than the sum
originally due to such International Underwriter or controlling person
hereunder, the Company, Gol and the Selling Shareholder agree as a separate
obligation and notwithstanding any such judgment, to indemnify such
International Underwriter or controlling person against such loss. If the United
States dollars so purchased are greater than the sum originally due to such
International Underwriter or controlling person hereunder, such International
Underwriter or controlling person agrees to pay to the Company, Gol or the
Selling Shareholder, as the case may be, an amount equal to the excess of the
dollars so purchased over the sum originally due to such International
Underwriter or controlling person hereunder.
16. Taxes. All payments to be made by the Company, Gol and the Selling
Shareholder under this Agreement shall be paid free and clear of and without
deduction or withholding for or on account of, any present or future taxes,
levies or imposts by Brazil or by any department, agency or other political
subdivision or taxing authority thereof or therein, and all interest, penalties
or similar liabilities with respect thereto (collectively, "TAXES"). If any
Taxes are required by law to be deducted or withheld in connection with such
payments, the Company, Gol and the Selling Shareholder will increase the amount
paid so that the full amount of such payment is received by the International
Underwriters.
17. Headings. The headings of the sections of this Agreement have been
inserted for convenience of reference only and shall not be deemed a part of
this Agreement.
18. Notices. All communications hereunder shall be in writing and
effective only upon receipt and if to the Underwriters shall be delivered,
mailed or sent to you in care of Xxxxxx Xxxxxxx & Co. Incorporated, 0000
Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: [ ]; if to the Company shall be
delivered, mailed or sent to Xxx Xxxxxxx, 000 Jardim Aeroporto 04630-000
Sao Paulo - SP Brazil, Attention: Chief Financial Officer and if to the
Selling Shareholder shall be delivered, mailed or sent to c/o AIG Capital
Partners, 000 Xxxxxxxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, XX 00000.
37
Very truly yours,
Gol Linhas Aereas Inteligentes S.A.
By: __________________________________
Name:
Title:
Gol Transportes Aereos S.A.
By: __________________________________
Name:
Title:
BSSF Air Holdings LLC
By: __________________________________
Name:
Title:
Accepted as of the date hereof
Xxxxxx Xxxxxxx & Co. Incorporated
Acting on behalf of itself and the
several International Underwriters
name in Schedule II hereto.
By: Xxxxxx Xxxxxxx & Co. Incorporated
By: __________________________________
Name:
Title:
38
SCHEDULE I
NUMBER OF FIRM
INTERNATIONAL UNDERWRITER ADSS PURCHASED
------------------------- --------------
Xxxxxx Xxxxxxx & Co. Incorporated [ ]
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated [ ]
Xxxxxxx Xxxxx & Associates, Inc. [ ]
Santander Investment Limited [ ]
--------------
Total:.......................................... [ ]
==============
I-1
EXHIBIT A
[FORM OF LOCK-UP LETTER]
________________, 2005
Xxxxxx Xxxxxxx & Co. Incorporated
0000 Xxxxxxxx
Xxx Xxxx, XX 00000
Dear Sirs and Mesdames:
The undersigned understands that Xxxxxx Xxxxxxx & Co. Incorporated
("Xxxxxx Xxxxxxx") proposes to enter into an Underwriting Agreement (the
"Underwriting Agreement") with Gol Linhas Aereas Inteligentes S.A., a Brazilian
corporation (sociedade anonima) (the "Company") and Gol Transportes Aereos S.A.
("Gol"), providing for the public offering (the "Public Offering") by the
several International Underwriters, including Xxxxxx Xxxxxxx (the "International
Underwriters"), of 14,700,000 non-voting preferred shares (acoes preferenciais)
of the Company, all of which shall be deposited and delivered in the form of
American Depositary Shares as provided in the Underwriting Agreement (the
"Securities").
To induce the International Underwriters that may participate in the
Public Offering to continue their efforts in connection with the Public
Offering, the undersigned hereby agrees that, without the prior written consent
of Xxxxxx Xxxxxxx on behalf of the International Underwriters, it will not,
during the period commencing on the date hereof and ending 90 days after the
date of the final prospectus relating to the Public Offering (the "Prospectus"),
(1) offer, pledge, sell, contract to sell, sell any option or contract to
purchase, purchase any option or contract to sell, grant any option, right or
warrant to purchase, lend, or otherwise transfer or dispose of, directly or
indirectly, any Securities or any securities convertible into or exercisable or
exchangeable for Securities or (2) enter into any swap or other arrangement that
transfers to another, in whole or in part, any of the economic consequences of
ownership of Securities, whether any such transaction described in clause (1) or
(2) above is to be settled by delivery of Securities or such other securities,
in cash or otherwise. The foregoing sentence shall not apply to (a) transactions
relating to shares of Securities or other securities acquired in open market
transactions after the completion of the Public Offering, (b) transfers of
shares of Securities or any security convertible into Securities as a bona fide
gift or gifts, (c) distributions of shares of Securities or any security
convertible into Securities to limited partners or stockholders of the
undersigned, (d) the Securities to be sold hereunder or under the Brazilian
Registration Statement or (e) the exchange of the Preferred Shares for ADRs, so
long as the holder thereof remains the owner of such ADSs and the ADRs evidenced
thereby; provided that in the case of any transfer or distribution pursuant to
clause (b) or (c), (i) each donee or distributee shall sign and deliver a
lock-up letter
A-1
substantially in the form of this letter and (ii) the undersigned shall not be
required to, and shall not voluntarily, file a report under Section 16(a) of the
Securities Exchange Act of 1934, reporting a reduction in beneficial ownership
of shares of Securities during the restricted period referred to in the
foregoing sentence. [In addition, the foregoing restrictions shall not apply to
(A) offers, sales, assignments or transfers of Securities made to corporations,
partnerships, limited liability companies or other entities to the extent such
entities are wholly-owned by such Seller, so long as each transferee agrees in
writing to be bound by the restrictions set forth herein, (B) the pledge of
Securities to third parties in connection with financing arrangements, so long
as any such third party agrees in writing to be bound by the restrictions set
forth herein; and (C) the distribution of Securities by such Seller to its
owners of record as of the date hereof, so long as each transferee agrees in
writing to be bound by the restrictions set forth herein.](1) In addition, the
undersigned agrees that, without the prior written consent of Xxxxxx Xxxxxxx on
behalf of the International Underwriters, it will not, during the period
commencing on the date hereof and ending 90 days after the date of the
Prospectus, make any demand for or exercise any right with respect to, the
registration of any shares of Securities or any security convertible into or
exercisable or exchangeable for Securities. The undersigned also agrees and
consents to the entry of stop transfer instructions with the Company's transfer
agent and registrar against the transfer of the undersigned's shares of
Securities except in compliance with the foregoing restrictions.
If:
(1) during the last 17 days of the 90-day restricted period the Company
issues a earnings release; or
(2) prior to the expiration of the 90-day restricted period, the Company
announces that it will release earnings results during the 16-day period
beginning on the last day of the 90-day period,
the restrictions imposed by this letter shall continue to apply until the
expiration of the 18-day period beginning on the issuance of the earnings
release.
The undersigned shall not engage in any transaction that may be restricted
by this agreement during the 34-day period beginning on the last day of the
initial 90-day restricted period unless the undersigned requests and receives
prior written confirmation from the Company or Xxxxxx Xxxxxxx that the
restrictions imposed by this agreement have expired.
The undersigned understands that the Company and the International
Underwriters are relying upon this agreement in proceeding toward consummation
of the Public Offering. The undersigned further understands that this agreement
is irrevocable and shall be binding upon the undersigned's heirs, legal
representatives, successors and assigns.
--------
1 For lock-up letter for the Selling Shareholder, Comporte and Aeropar only.
A-2
Whether or not the Public Offering actually occurs depends on a number of
factors, including market conditions. Any Public Offering will only be made
pursuant to an Underwriting Agreement, the terms of which are subject to
negotiation among the Company, Gol and the International Underwriters.
Very truly yours,
--------------------------------------
(Name)
--------------------------------------
(Address)
A-3
