Exhibit 1.1
33,050,000 PREFERRED SHARES
GOL LINHAS AEREAS INTELIGENTES S.A.
NON-VOTING PREFERRED SHARES, NO PAR VALUE
(IN THE FORM OF AMERICAN DEPOSITARY SHARES)
UNDERWRITING AGREEMENT
June 23, 2004
June 23, 2004
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated
▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
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"), BSSF Air Holdings LLC ("BSSF") and Comporte Participacoes S.A.
("COMPORTE" and, together with BSSF, the "SELLING SHAREHOLDERS") severally
propose to sell to the several International Underwriters, an aggregate of
33,050,000 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 Shareholders, each Selling
Shareholder selling the amount set forth opposite such Selling Shareholder's
name in Schedule I hereto. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated shall act as
representative (the "REPRESENTATIVE") of the several International Underwriters.
The Company and Comporte severally also propose to issue and sell to the
several International Underwriters not more than an additional 4,957,500
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 Shareholders 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 a Deposit Agreement (the "DEPOSIT AGREEMENT"),
to be dated as of the Closing Date (as defined below), to be entered into 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 Company has filed with the U. S. Securities and Exchange Commission
(the "COMMISSION") a registration statement, including a prospectus, relating to
the Securities. The
1
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 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 (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 Shareholders 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 have agreed to reserve a portion of the
Securities to be purchased by them under this Agreement for sale to the
Company's directors, officers, employees, business associates and related
persons (collectively, "PARTICIPANTS"), as set forth in the Prospectus under the
heading "Underwriters" (the "DIRECTED SHARE PROGRAM"). The Securities to be sold
by ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ and its affiliates pursuant to the Directed Share Program are
referred to hereinafter as the "DIRECTED SHARES." Any Securities not confirmed
for purchase in the Directed Share Program by the end of the business day on
which this Agreement is executed will be offered to the public by the
International Underwriters. 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
2
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 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 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.
(e) 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
3
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 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.
(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), 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
▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ (▇▇▇ "▇▇▇"), (▇▇▇) from the CVM relating to the
registration of the Company as a publicly-held company, 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 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 registration of the Company as a publicly-held company,
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
5
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 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., BSSF, BSSF
Air Holdings Ltd., ▇▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇ ▇▇.,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ and
the Company, dated as of March 29, 2004 (the "SHAREHOLDERS' AGREEMENT"),
which rights have been effectively waived, (ii) the
6
Subscription and Option Agreement dated January 20, 2003, by and among
▇▇▇▇▇ Administracao e Participacoes S.A., BSSF Air Holdings Ltd., BSSF II
Holdings Ltda. and Gol (the "SUBSCRIPTION AND OPTION AGREEMENT") and (iii)
the addendum to the Subscription and Option Agreement.
(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.
(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
7
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
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.
8
(cc) The Deposit Agreement has been duly authorized by the Company
and, when duly executed and delivered 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, will constitute 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 Shareholders
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 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 Shareholders with the Depositary and the issuance by
the Depositary of the ADRs evidencing the ADSs to be delivered by the
Selling
9
Shareholders, 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 15 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 15 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 has applied to list the Preferred Shares on the Sao
Paulo Stock Exchange (the "BOVESPA") and the ADSs on the New York Stock
Exchange (the "NYSE").
(ll) The audited consolidated financial statements as of December
31, 2003 and the unaudited consolidated financial statements as of March
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.
10
(mm) 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.
(nn) 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.
(oo) 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.
(pp) 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 withholding tax at the rate of 15% on
fees, commissions and expenses payable to the International Underwriters
and Contribution of Intervention in the Economic Order (Contribuicao de
Intervenicao no Dominio Economico) ("CIDE"), which may be payable at a
rate of 10% by the Brazilian payor on payments made in connection with the
provision of certain technical services, potentially including the fees,
commissions and expenses payable to the International Underwriters.
(qq) 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 withholding tax at the rate
of 15% on fees, commissions and expenses payable to the International
Underwriters and CIDE, which may be payable at a rate of 10% by the
Brazilian payor on payments made in connection with the provision of
certain technical services, potentially including the fees, commissions
and expenses payable to the International Underwriters.
(rr) 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
11
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.
(ss) 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) 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.
(tt) No consent, approval, authorization or order of, or
qualification with, any governmental body or agency, other than those
obtained, is required in connection with the offering of the Directed
Shares in any jurisdiction where the Directed Shares are being offered.
(uu) Neither the Company nor Gol has offered, or caused ▇▇▇▇▇▇
▇▇▇▇▇▇▇ or its affiliates to offer, Securities to any person pursuant to
the Directed Share Program with the intent to influence unlawfully (i) a
customer or supplier of the Company or Gol to alter the customer's or
supplier's level or type of business with the Company or Gol, or (ii) a
trade journalist or publication to write or publish favorable information
about either the Company or Gol or its products and services.
2. Representations and Warranties of the Selling Shareholders. Each
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 such Selling Shareholder.
(b) The execution and delivery by such Selling Shareholder of, and
the performance by such 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 such Selling
12
Shareholder (if such Selling Shareholder is a legal entity), or any
agreement or other instrument binding upon such Selling Shareholder or any
judgment, order or decree of any governmental body, agency or court having
jurisdiction over such Selling Shareholder, and no consent, approval,
authorization or order of, or qualification with, any governmental body or
agency is required for the performance by such 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 registration of the Company as a
publicly-held company, 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.
(c) Such Selling Shareholder owns, and on the Closing Date will own,
the Securities to be sold by such Selling Shareholder 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 such
Selling Shareholder.
(d) Upon payment for the Securities to be sold by such 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, such 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
13
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 such Selling Shareholders 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) Such 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. Such 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, (ii) 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 (h) are
limited to statements or omissions made in reliance upon information
relating to such Selling Shareholder furnished to the Company in writing
by such 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, such Selling Shareholder has not taken and will not take any
action for the purpose of stabilizing or manipulating the price of the
Securities.
(i) Such 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 such Selling Shareholder, and the Preferred Shares may
be
14
deposited, without any restrictions on transfer, with the Depositary
against the issuance of ADRs evidencing ADSs as contemplated in the
Deposit Agreement.
(k) This Agreement and the Deposit Agreement are in proper legal
form under the laws of Brazil for the enforcement thereof in Brazil
against such Selling Shareholder, and it is not necessary in order to
ensure the legality, validity, enforcement or admissibility into evidence
of this Agreement and the Deposit Agreement in Brazil that this Agreement
and 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, except
that, to the extent applicable (i) the signatures of the parties thereto
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 a 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 in
Brazil, together with their sworn translations.
(l) Such Selling Shareholder has the power to submit, and pursuant
to Section 15 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 15 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 II 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 and Comporte
agree to sell to the International Underwriters the Additional ADSs, and the
International Underwriters shall have the right to purchase, severally and not
jointly, up to 2,478,750 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
15
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 II 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 (other than
those directors and executive officers who are also shareholders of Aeropar and
Comporte) and BSSF hereby agrees that, without the prior written consent of
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ on behalf of the International Underwriters, it will not, during
the period ending 180 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. Furthermore, BSSF
hereby confirms that it has agreed with the Company that, subject to certain
exceptions, it will not transfer any ADSs or Preferred Shares or issue any
options or warrants to purchase ADSs or Preferred Shares or securities
convertible into, or exchangeable for, or represent rights to receive, ADSs or
Preferred Shares after the expiration of the 180-day period described in the
preceding sentence unless such issuance or transfer is pursuant to an organized
sales process.
Each of Comporte and Aeropar (including their respective shareholders)
hereby agrees that, without the prior written consent of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ on
behalf of the International Underwriters, it will not, during the period ending
365 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; provided, however, that, solely with respect to Aeropar,
the restrictions provided in this paragraph shall not apply to the lending of
Securities by
16
Aeropar to the BOVESPA, which Securities will be subsequently deposited with a
broker, for the purpose of permitting one-day trading in the Brazilian stock
market.
Notwithstanding the foregoing, if (i) during the last 17 days of the
180-day or 365-day restricted period, as the case may be, the Company issues an
earnings release relating to the Company; or (ii) prior to the expiration of the
180-day or 365-day restricted period, as the case may be, the Company announces
that it will release earnings results during the 16-day period beginning on the
last day of the 180-day or 365-day period, as the case may be, 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.
Solely with respect to the Selling Shareholders, 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 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.
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, each Selling Shareholder agrees that, without the prior
written consent of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ on behalf of the International Underwriters,
it will not, during the period ending 180 days or 365 days after the date of the
Prospectus, as the case may be, 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.
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,
17
and that any International Underwriter may allow, and such dealers may reallow,
a concession, not in excess of $[-] a Preferred Share ($[-] an ADS), to any
International Underwriter or to certain other dealers.
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 [-], 2004, or at such other time on the same or such other date, not
later than [-], 2004, 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 and
Comporte 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 on such other date, in any event not
later than [-], 2004, 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 [-] (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;
18
(ii) the representations and warranties of the Company, Gol
and the Selling Shareholders 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 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 ▇▇▇▇▇▇ Filho, ▇▇▇▇▇ Filho, Marrey Jr. e ▇▇▇▇▇▇▇
Advogados, Brazilian outside counsel for each of the Company, Gol and
Comporte, 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 authorized capital stock of the Company conforms as
to legal matters to the description thereof contained in the
Prospectus;
(iii) the Preferred Shares (including those to be sold by the
Selling Shareholders) 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;
(iv) the Securities to be sold by the Company and Comporte
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
19
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;
(v) this Agreement has been duly authorized by each of the
Company, Gol and Comporte; and the Deposit Agreement has been duly
authorized by the Company;
(vi) the execution and delivery by each of the Company, Gol
and Comporte of, and the performance by each of the Company, Gol and
Comporte 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, Gol or
Comporte, or, to such counsel's knowledge, any agreement or other
instrument binding upon any of the Company, Gol or Comporte that is
material to any of the Company, Gol or Comporte, or, to such
counsel's knowledge, any judgment, order or decree of any
governmental body, agency or court having jurisdiction over any of
the Company, Gol or Comporte, and no consent, approval,
authorization or order of, or qualification with, any governmental
body or agency is required for the performance by any of the
Company, Gol or Comporte 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 registration of the Company as a publicly-held
company, 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;
(vii) 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
20
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 registration
of the Company as a publicly-held company, 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 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;
(ix) 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;
(x) to such counsel's knowledge, 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,
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;
(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
21
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 Shareholders
with the Depositary of Preferred Shares against the issuance of ADRs
evidencing the ADSs, (B) the sale and delivery by the Company on its
own behalf and on behalf of the Selling Shareholders to or for the
respective accounts of the International Underwriters of Securities,
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 Shareholders
for the Securities to be sold to the International Underwriters by
the Company and the Selling Shareholders, 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) each of the Company and Comporte 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.
(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;
22
(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 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 Shareholders 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, such ADRs will be duly issued and 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
23
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 15 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 15 hereof, and service of process
effected on such agent in the manner set forth in Section 15 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 Shareholders, 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
each of the Selling Shareholders;
(ii) the execution and delivery by each Selling Shareholder
of, and the performance by such Selling Shareholder 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 such
Selling Shareholder 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 such Selling Shareholder, 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 such Selling Shareholder 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) upon payment to the Selling Shareholders for the
Securities to be sold to the International Underwriters by the
Selling Shareholders pursuant to this
24
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 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 Shareholders 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.
(iv) upon payment to the Selling Shareholders for the Shares
to be sold to the International Underwriters by the Selling
Shareholders 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;
(v) nothing has come to the attention of such counsel that
causes such counsel to believe that (A) the statements, schedules
and data relating to the Selling Shareholders contained in the
Registration Statement or the Prospectus at the time the
Registration Statement became effective contained an untrue
statement of a material fact relating to the Selling Shareholders or
omitted to state a material fact relating to the Selling
Shareholders required to be stated therein or necessary to make the
statements therein not misleading or (B) the statements, schedules
and data relating to the Selling Shareholders contained in the
Prospectus as of its date or as of the Closing Date contained or
contains an untrue statement of a material fact relating to the
Selling Shareholders or omitted or omits to state a material fact
relating to the Selling Shareholders necessary in order to make the
statements therein, in the light of the circumstances under which
they were made, not misleading; and
(vi) under the laws of the State of New York relating to
submission to jurisdiction, each of the Selling Shareholders has,
pursuant to Section 15 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
25
appointed CT Corporation, as its authorized agent for the purpose
described in Section 15 hereof, and service of process effected on
such agent in the manner set forth in Section 15 hereof will be
effective to confer valid personal jurisdiction over such Selling
Shareholder in any such action; the waiver by each Selling
Shareholder pursuant to Section 15 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 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.
(g) The International Underwriters shall have received on the
Closing Date an opinion of [-], [in-house counsel] for BSSF, dated the
Closing Date, to the effect that
(i) 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 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
(ii) 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 Machado, Meyer, Sendacz e Opice, 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
26
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 Cleary, Gottlieb, ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, 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 letter covering the matters referred to in 6(d)(iii)
above.
With respect to Section 6(c)(ix) above, ▇▇▇▇▇▇ Filho, ▇▇▇▇▇
Filho, Marrey Jr. e ▇▇▇▇▇▇▇ Advogados and Machado, Meyer, Sendacz e Opice
Advogados, with respect to Section 6(d)(iii) above, Shearman & Sterling
LLP and Cleary, Gottlieb, ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ 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 any Selling Shareholders and, with respect to factual matters
and to the extent such counsel deems appropriate, upon the representations
of each Selling Shareholder contained herein and in other documents and
instruments; provided that (i) each such counsel for the Selling
Shareholders 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 each such other
opinion.
(j) The opinions of ▇▇▇▇▇▇ Filho, ▇▇▇▇▇ Filho, Marrey Jr. e ▇▇▇▇▇▇▇
Advogados and Shearman & Sterling LLP described in Sections 6(c), 6(d) and
6(e) above (and any opinions of counsel for any Selling Shareholder
referred to in the immediately preceding paragraph) shall be rendered to
the International Underwriters at the request of the Company or one or
more of the Selling Shareholders, as the case may be, and shall so state
therein.
(k) ▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇ 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
27
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 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, subject only to official notice of issuance.
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
28
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 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, 2005 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.
29
(g) To use its best efforts to effect 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 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 Shareholders 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
30
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 fees
and expenses in connection with the preparation and filing of the registration
statement on Form 8-A relating to the Preferred Shares and 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 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, the Deposit Agreement 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",
Section 10 entitled "Directed Share Program Indemnification" and Section 12(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
31
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) Each Selling Shareholder agrees, severally and not jointly, to
indemnify and hold harmless each International Underwriter, each person,
if any, who controls the Company, 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 such Selling Shareholder furnished in
writing to the Company by or on behalf of such Selling Shareholder
expressly for use in the Registration Statement, any preliminary
prospectus, the Prospectus or any amendments or supplements thereto. The
liability of each 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 such Selling Shareholder under this Agreement.
(c) Each International Underwriter agrees, severally and not
jointly, to indemnify and hold harmless the Company, the Selling
Shareholders, 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 any Selling Shareholder within the meaning of either
Section 15 of the Securities Act or Section 20 of the
32
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 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 all Selling Shareholders and all
persons, if any, who control any 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
33
Underwriters, such firm shall be designated in writing by ▇▇▇▇▇▇ ▇▇▇▇▇▇▇.
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 Shareholders and such control persons of any Selling Shareholders,
such firm shall be designated in writing by the persons named as
attorneys-in-fact for the Selling Shareholders 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 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
34
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 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.
(g) The indemnity and contribution provisions contained in this
Section 9 and the representations, warranties and other statements of the
Company, Gol and the Selling Shareholders 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, any Selling
Shareholder or any person controlling any 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. Directed Share Program Indemnification. (a) The Company and Gol,
jointly and severally, agree to indemnify and hold harmless ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ and
its affiliates, within the meaning of Rule 405 under the Securities Act, and
each person, if any, who controls ▇▇▇▇▇▇
35
▇▇▇▇▇▇▇ or its affiliates within the meaning of either Section 15 of the
Securities Act or Section 20 of the Exchange Act ("▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ENTITIES"),
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) (i) caused
by any untrue statement or alleged untrue statement of a material fact contained
in any material prepared by or with the consent of either the Company or Gol for
distribution to Participants in connection with the Directed Share Program, 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; (ii) caused by the failure of any Participant to pay for and accept
delivery of Directed Shares that the Participant has agreed to purchase; or
(iii) related to, arising out of, or in connection with the Directed Share
Program other than losses, claims, damages or liabilities (or expenses relating
thereto) that are finally judicially determined to have resulted from the bad
faith or gross negligence of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Entities.
(b) In case any proceeding (including any governmental
investigation) shall be instituted involving any ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Entity in
respect of which indemnity may be sought pursuant to Section 10(a), the
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Entity seeking indemnity shall promptly notify the Company
or Gol in writing, and the Company or Gol, upon request of the ▇▇▇▇▇▇
▇▇▇▇▇▇▇ Entity, shall retain counsel reasonably satisfactory to the ▇▇▇▇▇▇
▇▇▇▇▇▇▇ Entity to represent the ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Entity and any others the
Company or Gol may designate in such proceeding and shall pay the fees and
disbursements of such counsel related to such proceeding. In any such
proceeding, any ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Entity shall have the right to retain its
own counsel, but the fees and expenses of such counsel shall be at the
expense of such ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Entity unless (i) the Company or Gol shall
have agreed to the retention of such counsel or (ii) the named parties to
any such proceeding (including any impleaded parties) include the Company
or Gol on the one hand and the ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Entity on the other hand and
representation of both such parties by the same counsel would be
inappropriate due to actual or potential differing interests between them.
Neither the Company nor Gol shall, in respect of the legal expenses of the
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Entities in connection with any proceeding or related
proceedings in the same jurisdiction, be liable for the fees and expenses
of more than one separate firm (in addition to any local counsel) for all
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Entities. Any such firm for the ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Entities
shall be designated in writing by ▇▇▇▇▇▇ ▇▇▇▇▇▇▇. Neither the Company nor
Gol shall be liable for any settlement of any proceeding effected without
their written consent, but if settled with such consent or if there be a
final judgment for the plaintiff, the Company and Gol agree to indemnify
the ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Entities from and against any loss or liability by
reason of such settlement or judgment. Notwithstanding the foregoing
sentence, if at any time a ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Entity shall have requested
either the Company or Gol to reimburse it for fees and expenses of counsel
as contemplated by the second and third sentences of this paragraph, each
of the Company and Gol 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 the Company
or Gol of the aforesaid request and (ii) neither the Company nor Gol shall
have reimbursed the ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Entity in accordance with such request
prior to the date of such settlement. Neither the Company nor Gol shall,
without the prior written consent of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, effect any settlement
of any pending or threatened proceeding in respect of which any ▇▇▇▇▇▇
▇▇▇▇▇▇▇ Entity is or
36
could have been a party and indemnity could have been sought hereunder by
such ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Entity, unless such settlement includes an
unconditional release of the ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Entities from all liability on
claims that are the subject matter of such proceeding.
(c) To the extent the indemnification provided for in Section 10(a)
is unavailable to a ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Entity or insufficient in respect of
any losses, claims, damages or liabilities referred to therein, then each
of the Company and Gol, in lieu of indemnifying the ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Entity
thereunder, shall contribute to the amount paid or payable by the ▇▇▇▇▇▇
▇▇▇▇▇▇▇ Entity 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 Company and Gol on the one hand and the ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Entities on the other hand from the offering of the Directed Shares or
(ii) if the allocation provided by clause 10(c)(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 10(c)(i) above but also
the relative fault of the Company and Gol on the one hand and of the
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Entities 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 Company and Gol on the one hand and of
the ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Entities on the other hand in connection with the
offering of the Directed Shares shall be deemed to be in the same
respective proportions as the net proceeds from the offering of the
Directed Shares (before deducting expenses) and the total underwriting
discounts and commissions received by the ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Entities for the
Directed Shares bear to the aggregate Public Offering Price of the Shares.
If the loss, claim, damage or liability is caused by an untrue or alleged
untrue statement of a material fact, the relative fault of the Company and
Gol on the one hand and the ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Entities on the other hand
shall be determined by reference to, among other things, whether the
untrue or alleged untrue statement or the omission or alleged omission
relates to information supplied by the Company or Gol or by the ▇▇▇▇▇▇
▇▇▇▇▇▇▇ Entities and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or
omission.
(d) Each of the Company and Gol and the ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Entities
agree that it would not be just or equitable if contribution pursuant to
this Section 10 were determined by pro rata allocation (even if the ▇▇▇▇▇▇
▇▇▇▇▇▇▇ Entities 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 10(c). The amount paid or payable by
the ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Entities 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 the ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Entities in
connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this Section 10, no ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Entity shall be required to contribute any amount in excess of the amount
by which the total price at which the Directed Shares distributed to the
public were offered to the public exceeds the amount of any damages that
such ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Entity 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
37
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 10 are not exclusive and shall not limit any rights or
remedies that may otherwise be available to any ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Entity at
law or in equity.
(e) The indemnity and contribution provisions contained in this
Section 10 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 ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Entity or the Company or Gol, the
officers or directors of the Company or Gol or any person controlling the
Company or Gol and (iii) acceptance of and payment for any of the Directed
Shares.
11. 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 New York Stock Exchange, the American Stock Exchange, the Nasdaq
National Market or the Sao Paulo Stock Exchange, (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.
12. 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 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 II 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 12 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
38
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, and arrangements satisfactory to you, the
Company and the Selling Shareholders 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 Shareholders. 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.
13. 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.
14. Applicable Law. This Agreement shall be governed by and construed in
accordance with the internal laws of the State of New York.
15. Submission to Jurisdiction; Appointment of Agent for Service. (a) Each
of the Company and the Selling Shareholders 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
39
of the Preferred Shares or the ADSs. Each of the Company and the Selling
Shareholders 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 any 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 any such 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 Shareholders hereby
irrevocably appoints CT Corporation, with offices at ▇▇▇ ▇▇▇▇▇▇ ▇▇▇., ▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ 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
Shareholders 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 Shareholders represents
and warrants that such agent has agreed to act as the Company's, Gol's and
the Selling Shareholders' agent for service of process, and each of the
Company, Gol and the Selling Shareholders agrees to take any and 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.
16. 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 Shareholders, 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
40
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 Shareholders agrees 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 any 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.
17. Taxes. All payments to be made by the Company, Gol and the Selling
Shareholders 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 Shareholders will increase the amount
paid so that the full amount of such payment is received by the International
Underwriters.
18. 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.
41
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:
Comporte Participacoes S.A.
By:
----------------------------------
Name:
Title:
Accepted as of the date hereof
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated
Acting on behalf of itself and the
several International Underwriters
name in Schedule II hereto.
By: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated
By:
-----------------------------
Name:
Title:
42
SCHEDULE I
NUMBER OF FIRM ADSS TO
SELLING SHAREHOLDER BE SOLD
BSSF Air Holdings LLC...................
Comporte Participacoes S.A..............
----------------------
----------------------
Total:..................................
I-1
SCHEDULE II
NUMBER OF
FIRM ADSS
INTERNATIONAL UNDERWRITER PURCHASED
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated
▇.▇. ▇▇▇▇▇▇ Securities Inc.
▇▇▇▇▇▇▇ ▇▇▇▇▇ & Associates, Inc.
UBS Securities LLC
----------------------
----------------------
Total:..................................
II-1
EXHIBIT A
[FORM OF LOCK-UP LETTER]
________________, 2004
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated
▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Dear Sirs and Mesdames:
The undersigned understands that ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated
("▇▇▇▇▇▇ ▇▇▇▇▇▇▇") 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 ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ (the "International
Underwriters"), of 33,050,000 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 ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ on behalf of the International Underwriters, it will not,
during the period commencing on the date hereof and ending [180/365] 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
A-1
lock-up letter 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 ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ on behalf of the International Underwriters, it will
not, during the period commencing on the date hereof and ending [180/365] 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 [180/365]-day restricted period the
Company issues a earnings release; or
(2) prior to the expiration of the [180/365]-day restricted period, the
Company announces that it will release earnings results during the 16-day
period beginning on the last day of the [180/365]-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 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 letters for the Selling Shareholders 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