EXHIBIT 99.2
FORM OF INTERSYNDICATE AGREEMENT
[-] AMERICAN DEPOSITARY SHARES
EACH REPRESENTING [-] PREFERRED SHARES WITHOUT PAR VALUE
AND
[-] PREFERRED SHARES
GOL LINHAS AEREAS INTELIGENTES S.A.
INTERSYNDICATE AGREEMENT
Agreement dated [-], 2004 between (A) Morgan Stanley & Co. Incorporated,
as representative (the "Representative") of the underwriters (collectively, the
"International Underwriters") listed in Schedule II to the underwriting
agreement of even date herewith (the "International Underwriting Agreement")
among the International Underwriters, Gol Linhas Aereas Inteligentes S.A. and
Gol Transportes Aereos S.A. (collectively, the "Company") and the selling
shareholders listed in Schedule I to the International Underwriting Agreement
(the "Selling Shareholders") and (B) Banco Morgan Stanley Dean Witter S.A.,
Unibanco -- Uniao de Bancos Brasileiros S.A. and Banco Santander Brasil S.A.
(the "Coordinators") and any other Brazilian underwriters (collectively, the
"Brazilian Underwriters") under the Brazilian Underwriting Agreement of even
date herewith among the Brazilian Underwriters, the Company and the Selling
Shareholders (the "Brazilian Underwriting Agreement"). The International
Underwriting Agreement and the Brazilian Underwriting Agreement are together
referred to herein as the "Underwriting Agreements," and the International
Underwriters and the Brazilian Underwriters are together referred to herein as
the "Underwriters." Terms not defined herein are used as defined in the
International Underwriting Agreement.
The International Underwriters, pursuant to the International Underwriting
Agreement, have agreed to purchase the Firm ADSs and have been granted options
by the Company and Comporte Participacoes S.A. to purchase the Additional ADSs
to cover over-allotments. The Brazilian Underwriters, pursuant to the Brazilian
Underwriting Agreement, have agreed to purchase the Preferred Shares specified
therein. In connection with the foregoing, the International Underwriters and
the Brazilian Underwriters deem it necessary and advisable that certain of their
activities be coordinated pursuant to this Agreement.
SECTION 1 . The International Underwriters, acting through the
Representative, and the Brazilian Underwriters, acting through the Coordinators,
agree that they will consult each other as to the availability for sale of ADSs
and Preferred Shares purchased from the Company and the Selling Shareholders
pursuant to the Underwriting Agreements from time to time until the termination
of the selling restrictions applicable to the respective offerings involving the
International Underwriters and the Brazilian Underwriters.
(a) The Representative and the Coordinators, respectively, agree to
advise each other and the other Underwriters from time to time upon
request during the consultation period contemplated above of the
respective number of ADSs purchased pursuant to the International
Underwriting Agreement and Preferred Shares purchased pursuant to the
Brazilian Underwriting Agreement, in each case remaining unsold. From time
to time as mutually agreed upon among the Representative and the
Coordinators, (i) the Representative will sell, for the account of one or
more International Underwriters to the Coordinators, Preferred Shares
underlying the ADSs purchased pursuant to the International Underwriting
Agreement and remaining unsold and (ii) the Coordinators will sell, for
the account of one or more Brazilian Underwriters to the Representative,
Preferred Shares purchased pursuant to the Brazilian Underwriting
Agreement and remaining unsold.
(b) Unless otherwise determined by mutual agreement of the
Representative and the Coordinators, the price of any ADS or Preferred
Share so purchased or sold shall be the Public Offering Price, in U.S.
dollars or Brazilian reais, as applicable, minus the Selling Concession.
For purposes hereof:
(i) "Public Offering Price" means the price at which each ADS
or Preferred Share, as the case may be, was offered to the public;
(ii) "Selling Concession" means [-]% of the Gross Spread; and
(iii) "Gross Spread" means [-]% of the Public Offering
Price.
Settlement between the Representative and the Coordinators with respect to
any ADSs or Preferred Shares transferred hereunder at least three business days
prior to the Closing Date shall be made on the Closing Date and, in the case of
purchases and sales made thereafter, shall be made as promptly as practicable
but in no event later than three business days after the transfer date. ADSs and
Preferred Shares so purchased shall be delivered on or about the respective
settlement dates.
The liability for payment to the Company and the Selling Shareholders of
the purchase price of the ADSs and Preferred Shares being purchased by the
International Underwriters and the Brazilian Underwriters under the Underwriting
Agreements shall not be affected by the provisions of this Agreement.
Each International Underwriter, acting through the Representative, agrees
that, except for purchases and sales pursuant to this Agreement and
stabilization transactions conducted through the Representative, as contemplated
hereunder, it has not offered, sold or delivered and will not offer, sell or
deliver ADSs, directly or indirectly, to any person whom it believes to be a
Brazilian Person (as such term is defined below) or to any person whom it
believes intends to reoffer, resell or deliver the same, directly or indirectly,
to any Brazilian Person, and any bank, broker or dealer to whom such
International Underwriter may sell ADSs will agree that it will not offer,
resell or deliver ADSs directly or indirectly to any person whom such bank,
broker or
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dealer believes to be a Brazilian Person or in connection with a reallowance to
any bank, broker or dealer which does not so agree.
Each Brazilian Underwriter, acting through the Coordinators, agrees that,
except for purchases and sales pursuant to this Agreement and stabilization
transactions conducted through the Coordinators, as contemplated hereunder, it
has offered and sold and will offer, sell and deliver Preferred Shares, directly
or indirectly, only to persons whom it believes to be Brazilian Persons and
persons whom it believes intend to reoffer, resell or deliver the same, directly
or indirectly, to Brazilian Persons, and any bank, broker or dealer to whom such
Brazilian Underwriter may sell Preferred Shares will agree that it will only
offer, resell and deliver Preferred Shares directly or indirectly to persons
whom such bank, broker or dealer believes to be Brazilian Persons or in
connection with a reallowance to any bank, broker or dealer which so agrees.
As used herein, "Brazilian Person" shall mean any (i) individual who is
resident in Brazil, (ii) corporation, partnership, limited liability company,
pension, profit-sharing or other trust or other entity organized under or
governed by the laws of Brazil or any political subdivision thereof (other than
the foreign branch or office of any Brazilian Person), and shall include any
Brazilian branch or office of a person other than a Brazilian Person, and (iii)
custody account (including sub-accounts thereof) maintained under Annex IV to
Resolution No. 1,289 or Resolution No. 2,689 of the National Monetary Council,
which accounts or sub-accounts are (A) held or managed by one of the
institutions designated by and between the Representative and the Coordinators
and (B) managed by an entity located in Brazil that has ultimate discretionary
decision over the assets of such accounts or sub-accounts. "Brazil" shall mean
the Federative Republic of Brazil and all areas subject to its jurisdiction.
SECTION 2 . All stabilization transactions shall be conducted at the
direction and subject to the control of the Representative and the Coordinators
as hereinafter provided, so that stabilization activities worldwide shall be
coordinated and conducted in compliance with any applicable laws and
regulations. The Representative shall have sole responsibility with respect to
any action that it may take to make over-allotments in arranging for sales of
Additional ADSs and shall have direction and control of any action taken for
stabilizing the market price of the ADSs outside Brazil. The Coordinators shall
have sole direction and control of any action taken for stabilizing the market
price of the Preferred Shares in Brazil. All such stabilization transactions
undertaken by the Representative shall be for the account of the several
International Underwriters, and all such stabilization transactions undertaken
by the Coordinators shall be for the account of the several Brazilian
Underwriters.
SECTION 3 . The Representative and the Coordinators shall agree as to the
expenses that will constitute expenses of the underwriting and distribution of
the ADSs and Preferred Shares common to the International Underwriters and the
Brazilian Underwriters, including any expenses the International Underwriters
and the Brazilian Underwriters have agreed to reimburse to the Company and the
Selling Shareholders, which expenses shall be allocated among the International
Underwriters and the Brazilian Underwriters in the same proportion (expressed in
number of Preferred Shares) as the number of ADSs purchased under the
International
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Underwriting Agreement and the number of Preferred Shares purchased under the
Brazilian Underwriting Agreement bear to the aggregate number of ADSs and
Preferred Shares purchased under the Underwriting Agreements. Except with
respect to such common expenses, the International Underwriters will pay the
aggregate expenses incurred in connection with the purchase, carrying or sale of
the ADSs purchased by the International Underwriters from the Company and the
Selling Shareholders, and the Brazilian Underwriters will pay the aggregate
expenses incurred in connection with the purchase, carrying or sale of the
Preferred Shares purchased by the Brazilian Underwriters from the Company and
the Selling Shareholders.
SECTION 4 . The Representative and the Coordinators agree that:
(a) if the Closing Date is not on the day provided in the
Underwriting Agreements, the Representative and the Coordinators will
mutually agree on a postponed date within the time permitted by the
Underwriting Agreements and the settlement dates herein provided shall be
adjusted accordingly;
(b) changes in the public offering price or in the concession and
reallowance to banks, brokers or dealers will be made only after
consultation, but in accordance with the direction of the Representative
and the Coordinators, during the consultation period specified in the
first sentence of Section 1 hereof;
(c) the Representative and the Coordinators will keep each other
fully informed of the progress of the offering and distribution of the
ADSs and Preferred Shares, respectively; and
(d) advertising with respect to the offering shall be as mutually
agreed upon by the Representative and the Coordinators.
SECTION 5 . Each Brazilian Underwriter confirms that it is a dealer
actually engaged in the investment banking or securities business and that it is
a dealer with its principal place of business located outside the United States
and not registered under the U.S. Securities Exchange Act of 1934, as amended.
Each Brazilian Underwriter hereby agrees to comply (i) with the provisions of
Rules 2730, 2740 and 2750 of the NASD Conduct Rules as though it were a member
of the NASD, Inc., (ii) with Rule 2420 of such Conduct Rules as such Rule
applies to non-member foreign dealers, and (iii) with NASD Rule 2790 to the
extent it acts as a "conduit" (within the meaning of the Rule) for an NASD
member with respect to the disposition of the Securities.
SECTION 6 . This Agreement may be amended prior to the Closing Date only
by mutual written consent of the parties hereto.
SECTION 7 . This Agreement may be signed in various counterparts, which
together shall constitute one and the same instrument.
SECTION 8 . This Agreement shall be governed by and construed in
accordance with the laws of the State of New York.
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SECTION 9 . Any legal suit, action or proceeding arising out of or
relating to this Agreement, any of the transactions contemplated hereby or any
document referred to herein may be instituted in any state or federal court of
competent jurisdiction located in the Borough of Manhattan of The City of New
York, New York, and by execution and delivery of this Agreement, each of the
Underwriters accepts for itself and in connection with its properties, generally
and unconditionally, the nonexclusive jurisdiction of the aforementioned courts,
and irrevocably agrees to be bound by any final judgment rendered thereby in
connection with this Agreement from which no appeal has been taken or is
available. Each of the Underwriters irrevocably waives, to the fullest extent
permitted by applicable law, any objection, including, without limitation, any
objection to the laying of venue or based upon the grounds of forum non
conveniens, that it may now or hereafter have to the bringing of any such action
or proceeding in any jurisdiction set forth above. Nothing herein shall limit
the right of the Representative and the Coordinators to bring proceedings
against any Underwriter in the courts of any other competent jurisdiction.
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IN WITNESS WHEREOF, this Agreement has been executed as of the date and
year first above written.
Acting on behalf of itself and the
other International Underwriters:
MORGAN STANLEY & CO. INCORPORATED
By:
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Name:
Title:
Acting on behalf of itself and the
other Brazilian Underwriters:
BANCO MORGAN STANLEY DEAN WITTER S.A.
By:
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Name:
Title:
UNIBANCO - UNIAO DE BANCOS BRASILEIROS
S.A.
By:
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Name:
Title:
BANCO SANTANDER BRASIL S.A.
By:
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Name:
Title:
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