Exhibit 99.2
[ ] PREFERRED SHARES
(IN THE FORM OF AMERICAN DEPOSITARY SHARES OUTSIDE BRAZIL
AND IN THE FORM OF PREFERRED SHARES IN BRAZIL)
GOL LINHAS AEREAS INTELIGENTES S.A.
INTERSYNDICATE AGREEMENT
Agreement dated [ ], 2005 among (A) Xxxxxx Xxxxxxx & Co. Incorporated, as
representative (the "Representative") of the underwriters (collectively, the
"International Underwriters") listed in Schedule I to the underwriting agreement
of even date herewith (the "International Underwriting Agreement") among the
International Underwriters, Gol Linhas Aereas Inteligentes S.A. and Gol
Transportes Aereos S.A. (collectively, the "Company") and BSSF Air Holdings LLC
(the "Selling Shareholder"), and (B) Banco Xxxxxx Xxxxxxx Xxxx Xxxxxx X.X.,
Banco Santander Brasil S.A. and Banco Itau BBA S.A. (the "Brazilian
Coordinators") and any other Brazilian underwriters (collectively, the
"Brazilian Underwriters") under the Brazilian Underwriting Agreement of even
date herewith among the Brazilian Underwriters, the Company and the Selling
Shareholder (the "Brazilian Underwriting Agreement"). The International
Underwriting Agreement and the Brazilian Underwriting Agreement are together
referred to herein as the "Underwriting Agreements," and the International
Underwriters and the Brazilian Underwriters are together referred to herein as
the "Underwriters." Terms not defined herein are used as defined in the
International Underwriting Agreement.
The International Underwriters, pursuant to the International Underwriting
Agreement, have agreed to purchase the Firm ADSs and have been granted options
by the Company to purchase the Additional ADSs to cover over-allotments. The
Brazilian Underwriters, pursuant to the Brazilian Underwriting Agreement, have
agreed to purchase the Preferred Shares specified in the Brazilian Underwriting
Agreement and have been granted options by the Company to purchase additional
Preferred Shares to cover over-allotments. In connection with the foregoing, the
International Underwriters and the Brazilian Underwriters deem it necessary and
advisable that certain of their activities be coordinated pursuant to this
Agreement.
SECTION 1 . The International Underwriters, acting through the
Representative, and the Brazilian Underwriters, acting through the Brazilian
Coordinators, agree that they will consult each other as to the availability for
sale of ADSs and Preferred Shares purchased from the Company and the Selling
Shareholder pursuant to the Underwriting Agreements from time to time until the
termination of the selling restrictions applicable to the respective offerings
involving the International Underwriters and the Brazilian Underwriters.
(a) The Representative and the Brazilian Coordinators, respectively,
agree to advise each other and the other Underwriters from time to time
upon request during the consultation period contemplated above of the
respective number of ADSs purchased pursuant to the International
Underwriting Agreement and Preferred Shares purchased
pursuant to the Brazilian Underwriting Agreement, in each case remaining
unsold. From time to time as mutually agreed upon among the Representative
and the Brazilian Coordinators, (i) the Representative will sell, for the
account of one or more International Underwriters to the Brazilian
Coordinators, Preferred Shares underlying the ADSs purchased pursuant to
the International Underwriting Agreement and remaining unsold and (ii) the
Brazilian Coordinators will sell, for the account of one or more Brazilian
Underwriters to the Representative, Preferred Shares purchased pursuant to
the Brazilian Underwriting Agreement and remaining unsold.
(b) Unless otherwise determined by mutual agreement of the
Representative and the Brazilian Coordinators, the price of any ADS or
Preferred Share so purchased or sold shall be the Public Offering Price,
in U.S. dollars or Brazilian reais, as applicable, minus the Selling
Concession. For purposes hereof:
(i) "Public Offering Price" means the price at which each ADS
or Preferred Share, as the case may be, was offered to the public;
(ii) "Selling Concession" means [-]% of the Gross Spread; and
(iii) "Gross Spread" means [-]% of the Public Offering Price.
Settlement between the Representative and the Brazilian Coordinators with
respect to any ADSs or Preferred Shares transferred hereunder at least three
business days prior to the Closing Date shall be made on the Closing Date and,
in the case of purchases and sales made thereafter, shall be made as promptly as
practicable but in no event later than three business days after the transfer
date. ADSs and Preferred Shares so purchased shall be delivered on or about the
respective settlement dates.
The liability for payment to the Company and the Selling Shareholder of
the purchase price of the ADSs and Preferred Shares being purchased by the
International Underwriters and the Brazilian Underwriters under the Underwriting
Agreements shall not be affected by the provisions of this Agreement.
Each International Underwriter, acting through the Representative, agrees
that, except for purchases and sales pursuant to this Agreement and
stabilization transactions conducted through the Representative, as contemplated
hereunder, it has not offered, sold or delivered and will not offer, sell or
deliver ADSs, directly or indirectly, to any person whom it believes to be a
Brazilian Person (as such term is defined below) or to any person whom it
believes intends to reoffer, resell or deliver the same, directly or indirectly,
to any Brazilian Person, and any bank, broker or dealer to whom such
International Underwriter may sell ADSs will agree that it will not offer,
resell or deliver ADSs directly or indirectly to any person whom such bank,
broker or dealer believes to be a Brazilian Person or in connection with a
reallowance to any bank, broker or dealer which does not so agree.
Each Brazilian Underwriter, acting through the Brazilian Coordinators,
agrees that, except for purchases and sales pursuant to this Agreement and
stabilization transactions conducted through Banco Xxxxxx Xxxxxxx Xxxx Xxxxxx
X.X. (the "Local Representative") as
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contemplated hereunder, it has offered and sold and will offer, sell and deliver
Preferred Shares, directly or indirectly, only to persons whom it believes to be
Brazilian Persons and persons whom it believes intend to reoffer, resell or
deliver the same, directly or indirectly, to Brazilian Persons, and any bank,
broker or dealer to whom such Brazilian Underwriter may sell Preferred Shares
will agree that it will only offer, resell and deliver Preferred Shares directly
or indirectly to persons whom such bank, broker or dealer believes to be
Brazilian Persons or in connection with a reallowance to any bank, broker or
dealer which so agrees.
As used herein, "Brazilian Person" shall mean any (i) individual who is
resident in Brazil, (ii) corporation, partnership, limited liability company,
pension, profit-sharing or other trust or other entity organized under or
governed by the laws of Brazil or any political subdivision thereof (other than
the foreign branch or office of any Brazilian Person), and shall include any
Brazilian branch or office of a person other than a Brazilian Person, and (iii)
custody account (including sub-accounts thereof) maintained under Annex IV to
Resolution No. 1,289 or Resolution No. 2,689 of the National Monetary Council,
which accounts or sub-accounts are (A) held or managed by one of the
institutions designated by and between the Representative and the Brazilian
Coordinators and (B) managed by an entity located in Brazil that has ultimate
discretionary decision over the assets of such accounts or sub-accounts.
"Brazil" shall mean the Federative Republic of Brazil and all areas subject to
its jurisdiction.
SECTION 2 . All stabilization transactions shall be conducted at the
direction and subject to the control of the Representative and the Local
Representative as hereinafter provided, so that stabilization activities
worldwide shall be coordinated and conducted in compliance with any applicable
laws and regulations. The Representative and the Local Representative shall have
sole responsibility with respect to any action that it may take to make
over-allotments in arranging for sales of Additional ADSs or Preferred Shares,
respectively, and shall have direction and control of any action taken for
stabilizing the market price of the ADSs outside Brazil and the Preferred Shares
in Brazil. All such stabilization transactions undertaken by the Representative
and the Local Representative shall be for the account of the several
International Underwriters and the several Brazilian underwriters, respectively.
SECTION 3 . The Representative and the Brazilian Coordinators shall agree
as to the expenses that will constitute expenses of the underwriting and
distribution of the ADSs and Preferred Shares common to the International
Underwriters and the Brazilian Underwriters, including any expenses the
International Underwriters and the Brazilian Underwriters have agreed to
reimburse to the Company and the Selling Shareholder, which expenses shall be
allocated among the International Underwriters and the Brazilian Underwriters in
the same proportion (expressed in number of Preferred Shares) as the number of
ADSs purchased under the International Underwriting Agreement and the number of
Preferred Shares purchased under the Brazilian Underwriting Agreement bear to
the aggregate number of ADSs and Preferred Shares purchased under the
Underwriting Agreements. Except with respect to such common expenses, the
International Underwriters will pay the aggregate expenses incurred in
connection with the purchase, carrying or sale of the ADSs purchased by the
International Underwriters from the Company and the Selling Shareholder, and the
Brazilian Underwriters will pay the aggregate expenses incurred in connection
with the purchase, carrying or sale of the Preferred Shares purchased by the
Brazilian Underwriters from the Company and the Selling Shareholder.
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SECTION 4 . The Representative and the Brazilian Coordinators agree that:
(a) if the Closing Date is not on the day provided in the
Underwriting Agreements, the Representative and the Brazilian Coordinators
will mutually agree on a postponed date within the time permitted by the
Underwriting Agreements and the settlement dates herein provided shall be
adjusted accordingly;
(b) changes in the public offering price or in the concession and
reallowance to banks, brokers or dealers will be made only after
consultation, but in accordance with the direction of the Representative
and the Brazilian Coordinators, during the consultation period specified
in the first sentence of Section 1 hereof;
(c) the Representative and the Brazilian Coordinators will keep each
other fully informed of the progress of the offering and distribution of
the ADSs and Preferred Shares, respectively; and
(d) advertising with respect to the offering shall be as mutually
agreed upon by the Representative and the Brazilian Coordinators.
SECTION 5. Each Brazilian Underwriter confirms that it is a dealer
actually engaged in the investment banking or securities business and that it is
a dealer with its principal place of business located outside the United States
and not registered under the U.S. Securities Exchange Act of 1934, as amended.
Each Brazilian Underwriter hereby agrees to comply (i) with the provisions of
Rules 2730, 2740 and 2750 of the NASD Conduct Rules as though it were a member
of the NASD, Inc., (ii) with Rule 2420 of such Conduct Rules as such Rule
applies to non-member foreign dealers, and (iii) with NASD Rule 2790 to the
extent it acts as a "conduit" (within the meaning of the Rule) for an NASD
member with respect to the disposition of the Securities.
SECTION 6. This Agreement may be amended prior to the Closing Date only by
mutual written consent of the parties hereto.
SECTION 7. This Agreement may be signed in various counterparts, which
together shall constitute one and the same instrument.
SECTION 8. This Agreement shall be governed by and construed in accordance
with the laws of the State of New York.
SECTION 9. Any legal suit, action or proceeding arising out of or relating
to this Agreement, any of the transactions contemplated hereby or any document
referred to herein may be instituted in any state or federal court of competent
jurisdiction located in the Borough of Manhattan of The City of New York, New
York, and by execution and delivery of this Agreement, each of the Underwriters
accepts for itself and in connection with its properties, generally and
unconditionally, the nonexclusive jurisdiction of the aforementioned courts, and
irrevocably agrees to be bound by any final judgment rendered thereby in
connection with this Agreement from which no appeal has been taken or is
available. Each of the Underwriters irrevocably waives, to the fullest extent
permitted by applicable law, any objection, including,
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without limitation, any objection to the laying of venue or based upon the
grounds of forum non conveniens, that it may now or hereafter have to the
bringing of any such action or proceeding in any jurisdiction set forth above.
Nothing herein shall limit the right of the Representative and the Brazilian
Coordinators to bring proceedings against any Underwriter in the courts of any
other competent jurisdiction.
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IN WITNESS WHEREOF, this Agreement has been executed as of the date and
year first above written.
Acting on behalf of itself and the
other International Underwriters:
XXXXXX XXXXXXX & CO. INCORPORATED
By: _________________________________
Name:
Title:
Acting on behalf of itself and the
other Brazilian Underwriters:
BANCO XXXXXX XXXXXXX XXXX XXXXXX X.X.
By: _________________________________
Name:
Title:
BANCO SANTANDER BRASIL S.A.
By: _________________________________
Name:
Title:
BANCO ITAU BBA S.A.
By: _________________________________
Name:
Title:
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