EXHIBIT 4.2
GOL LINHAS AEREAS INTELIGENTES S.A.
SHAREHOLDERS' AGREEMENT
This Shareholders' Agreement (hereinafter the "Agreement") is entered into in
the City of Sao Paulo on this 29th of March, 2004, by and among the following
parties (hereinafter the "Parties"):
(a) AEROPAR PARTICIPACOES S.A., a Brazilian corporation (sociedade anonima) with
head offices in the City of Sao Bernardo do Campo, State of Sao Paulo, at
Avenida Dom Jaime de Barros Camara 300, suite 08 - Bairro Planalto, and enrolled
in the National Registry of Legal Entities of the Ministry of Finance
("CNPJ/MF") under no. 06.076.478/0001-81, herein represented by its duly
authorized representatives (hereinafter referred individually as "AP");
(b) COMPORTE PARTICIPACOES S.A., a Brazilian corporation (sociedade anonima)
with head offices in the City of Sao Bernardo do Campo, State of Sao Paulo, at
Avenida Dom Jaime de Barros Camara 300, suite 08 - Bairro Planalto, and enrolled
in the National Registry of Legal Entities of the Ministry of Finance
("CNPJ/MF") under no.05.169.726/0001-76, herein represented by its duly
authorized representatives (hereinafter referred individually as "CP" and,
together with AP, "Aeropar");
(c) BSSF Air Holdings Ltd., a Cayman Islands company with head offices at Ugland
House, South Church Street, P.O. BOX 309 GT, George Town, Grand Cayman, herein
represented by its duly authorized representatives (hereinafter referred
individually as "BSSF Cayman");
(d) BSSF Air Holdings LLC, a Delaware limited liability company with head
offices at 599 Lexington Avenue, 24th Floor, New York, NY 10022, herein
represented by its duly authorized representatives (hereinafter referred
individually as "BSSF Delaware" and, together with BSSF Cayman, "BSSF");
(e) CONSTANTINO DE OLIVEIRA, Brazilian citizen, married, businessman, resident
and domiciled in the City and State of Sao Paulo, where he has offices at
Avenida Dom Jaime Barros Camara, 300, house 02, in the City of Sao Bernardo do
Campo, State of Sao Paulo, holder of the identity card ("RG") no.106.147 SSP/MG
and enrolled in the National Registry of Individuals of the Ministry of Finance
("CPF/MF") under no. 004.694.756-68 (herein referred individually as
"Constantino");
(f) CONSTANTINO DE OLIVEIRA JR., Brazilian citizen, married, businessman,
resident and domiciled in the City and State of Sao Paulo, where he has offices
at Avenida Dom Jaime Barros Camara, 300, house 02, in the City of Sao Bernardo
do Campo, State of Sao Paulo, holder of RG no. 929.100 SEP/DF and enrolled in
the CPF/MF under no. 417.942.901-25 (herein referred individually as
"Constantino Jr.");
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(g) HENRIQUE CONSTANTINO, Brazilian citizen, married, businessman, resident and
domiciled in the City and State of Sao Paulo, where he has offices at Avenida
Dom Jaime Barros Camara, 300, house 01, in the City of Sao Bernardo do Campo,
State of Sao Paulo , holder of RG no. 1.022.856 SEP/DF and enrolled in the
CPF/MF under no. 443.609.911-34 (herein referred individually as "Henrique");
(h) JOAQUIM CONSTANTINO NETO, Brazilian citizen, married, resident and domiciled
in the City and State of Sao Paulo, where he has offices at Avenida Dom Jaime
Barros Camara, 300, house 01, in the City of Sao Bernardo do Campo, State of Sao
Paulo, holder of RG no. 17.365.750 SSP/SP and enrolled in the CPF/MF under no.
084.864.028-40 (herein referred individually as "Joaquim");
(i) RICARDO CONSTANTINO, Brazilian citizen, married, businessman, resident and
domiciled in the City and State of Sao Paulo, where he has offices at Avenida
Dom Jaime Barros Camara, 300, house 02, in the City of Sao Bernardo do Campo,
State of Sao Paulo, holder of RG no. 671.071 SEP/DF, and enrolled in the CPF/MF
under no. 546.988.806-10 (herein referred individually as "Ricardo" and,
together with Constantino, Constantino Jr., Henrique and Joaquim, the "Aeropar
Shareholders");
(j) ANA VIGON TABAR, single, attorney-at-law, bearer of Passport No. 9201300,
resident and domiciled at 348 West 58th Street, in the City and State of New
York, United States of America (herein referred individually as "Ana");
(k) PETER MICHAEL YU, American, married, business administrator, bearer of
Passport No. 111481629, resident and domiciled at 29 East 64 Street, in the City
and State of New York, United States of America (herein referred individually as
"Peter");
(l) CLAUDIO EUGENIO STILER GALEAZZI, Brazilian, married, accountant, berare of
Identity Card R.G. No. 2.312.869-SSP/SP, enrolled with Brazilian Taxpayers'
Registry under No. 381.876.128-00, resident and domiciled at Avenida Engenheiro
Luiz Carlos Berrini, 1297, complex 121, in the City and State of Sao Paulo
(herein referred individually as "Claudio" and, together with Ana and Peter, the
"BSSF Directors"); And, furthermore, in the capacity of intervening party:
(m) GOL LINHAS AEREAS INTELIGENTES S.A., a Brazilian corporation (sociedade
anonima) with head offices in the City and State of Sao Paulo, at Rua Tamoios
246, ground floor - Jardim Aeroporto, enrolled in the CNPJ/MF under no.
06.164.253/0001-87, herein represented by its duly authorized representatives
(hereinafter referred to as "Company");
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WHEREAS, it is of the interest of the Shareholders to regulate certain aspects
of their relationship as shareholders of the Company, for the purposes and
effects of article 118 of the Brazilian Corporation Law (Lei das Sociedades
Anonimas), as amended;
NOW THEREFORE, the Parties resolve to enter into this Shareholders' Agreement,
which shall be governed by the following clauses and conditions:
CHAPTER I. DEFINITIONS
1 When written in capital letters, the following terms, in the singular or
plural form, shall have the meanings attributed thereto hereinbelow:
1.1 Affiliate means, in relation to any Shareholder, any entity
Controlled, directly or indirectly, by such Person, any entity that
Controls, directly or indirectly, such Shareholder or any entity
under common Control with such Shareholder, and, in the case of
BSSF, any limited partner of AIG Brazil Special Situations Fund;
1.2 Agreement shall have the meaning attributed thereto in the preamble
of this Agreement;
1.3 Annual Budget shall have the meaning attributed thereto in Section
41 of this Agreement;
1.4 Annual Business Plan shall have the meaning attributed thereto in
Section 41 of this Agreement;
1.5 Aeropar shall have the meaning attributed thereto in the preamble of
this Agreement;
1.6 Aeropar Directors shall have the meaning attributed thereto in the
preamble of this Agreement;
1.7 Board of Directors means the board of directors ("Conselho de
Administracao") of the Company;
1.8 BOVESPA means Bolsa de Valores de Sao Paulo, the Sao Paulo Stock
Exchange;
1.9 Brazilian Aeronautics Code means Law no. 7,565 of December 19, 1986,
as amended from time to time;
1.10 Brazilian GAAP means the Brazilian Generally Accepted Accounting
Principles;
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1.11 BSSF shall have the meaning attributed thereto in the preamble of
this Agreement;
1.12 BSSF Directors shall have the meaning attributed thereto in the
preamble of this Agreement;
1.13 BSSF Cayman shall have the meaning attributed thereto in the
preamble of this Agreement;
1.14 BSSF Delaware shall have the meaning attributed thereto in the
preamble of this Agreement;
1.15 BSSF Preferred A Stock shall have the meaning attributed thereto in
the Subscription Agreement;
1.16 BSSF Preferred B Stock shall have the meaning attributed thereto in
the Subscription Agreement;
1.17 BSSF II shall mean BSSF II Holdings Ltda.;
1.18 BSSF II Preferred A Stock shall have the meaning attributed thereto
in the Subscription Agreement;
1.19 By-laws means the By-laws of the Company currently in force;
1.20 Claimant shall have the meaning attributed thereto in Section 64 of
this Agreement;
1.21 Company shall have the meaning attributed thereto in the preamble of
this Agreement;
1.22 Constantino shall have the meaning attributed thereto in the
preamble of this Agreement;
1.23 Constantino Jr. shall have the meaning attributed thereto in the
preamble of this Agreement;
1.24 Control shall mean the ownership of fifty percent plus one of the
voting shares of the Company plus the power to elect the majority of
the members of the Board of Directors;
1.25 Corporation Law means Law no. 6,404 of December 15, 1976, as amended
from time to time;
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1.26 Drag Along Notice shall have the meaning attributed thereto in
Section 19.1 of this Agreement;
1.27 Exercise Term means the period of time beginning on the day
following receipt by all Shareholders other than Aeropar of the
Notice of Transfer and ending 30 days after the date thereof;
1.28 Henrique shall have the meaning attributed thereto in the preamble
of this Agreement;
1.29 Joaquim shall have the meaning attributed thereto in the preamble of
this Agreement;
1.30 Liquidation shall have the meaning attributed thereto in Section 29
of this Agreement;
1.31 Merger shall have the meaning attributed thereto in Section 30 of
this Agreement;
1.32 New Opportunity shall have the meaning attributed thereto in Section
32 of this Agreement;
1.33 Notice of Transfer shall have the meaning attributed thereto in
Section 12 of this Agreement;
1.34 Offerees shall have the meaning attributed thereto in Section 12 of
this Agreement;
1.35 Person means an individual, corporation (including a business
trust), partnership, limited liability company, joint venture,
association, joint stock company, trust (including any beneficiary
thereof), unincorporated association or government or any agency or
political subdivision thereof;
1.36 Public Offering means a good faith public offering of securities
underwritten by a leading international investment bank pursuant to
an effective registration statement under the Securities Act, other
than pursuant to a registration statement on Form S-4 or Form S-8 or
any similar or successor form or a public offering as defined by
Brazilian law or by the law of the jurisdiction in which the offer
is made, as the case may be;
1.37 Qualified Public Offering means a firm commitment underwritten
Public Offering of Shares or of shares of any of the Company's
Affiliate on the Nasdaq Stock Market, New York Stock Exchange, Bolsa
de Valores do Estado de Sao Paulo - BOVESPA or another major
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securities exchange, in which (i) aggregate net proceeds of at least
US$35,000,000.00 (or its equivalent in Brazilian currency at the
time of receipt of the proceeds by the Company or the relevant
Affiliate) are realized by the Company or the relevant Affiliate
(including net proceeds received by the Company upon exercise of any
over-allotment option by the underwriters); and (ii) the offering
price per share in such Public Offering exceeds at least four times
the Subscription Price;
1.38 Request shall have the meaning attributed thereto in Section 64 of
this Agreement;
1.39 Respondent shall have the meaning attributed thereto in Section 64
of this Agreement;
1.40 Ricardo shall have the meaning attributed thereto in the preamble of
this Agreement;
1.41 Senior Management means all professionals, now or in the future,
employed or by any other means engaged by and/or working for the
Company, holding and performing the responsibilities and
attributions held and performed on the date hereof by the President
(Presidente), Vice-Presidents (Vice-Presidentes) and officers
(diretores) of the Company;
1.42 Shareholders means Aeropar, Comporte, BSSF, the Aeropar Directors,
BSSF Directors and their successors or authorized assignees, as well
as the respective Affiliates that become parties to this Agreement;
1.43 Shares means (i) all shares issued by the Company, which are or may
be held by the Shareholders, (ii) securities convertible into shares
issued by the Company, which are or may be held by the Shareholders,
(iii) purchase options regarding shares issued by the Company, which
are or may be held by the Shareholders, and (iv) stock purchase
warrants and rights to subscribe for the Company shares, which are
or may be held by the Shareholders;
1.44 Strategic Investor means any airline company or any Person that
directly or indirectly has an equity interest in an airline company
or in any company that operates any business similar to any of the
businesses of the Company, including but not limited to the
transportation of passengers and/or cargo by any form of air, sea or
ground transportation.
1.45 Strategic Sale means any sale of Shares to a Strategic Investor.
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1.46 Subject Shares shall have the meaning attributed thereto in Section
12 of this Agreement;
1.47 Subscription Agreement shall mean the Subscription and Option
Agreement entered into by and among Aurea Administracao e
Participacoes S/A, BSSF Cayman, BSSF II, the Aeropar Directors, and
the Company on January 20, 2003;
1.48 Subscription Price shall mean the aggregate price paid by BSSF and
BSSF II for the BSSF Preferred A Stock, BSSF Preferred B Stock and
BSSF II Preferred A Stock, divided by the total number of such
shares, which number shall be adjusted pursuant to the Performance
Adjustment and shall apply to the successor shares received in
exchange for such shares;
1.49 Threshold Return shall mean in respect of a Transfer of Shares, an
amount of consideration per Share which is at least equal to the
Subscription Price, monetarily adjusted for inflation by the
variation of the Indice Geral de Precos - Mercado (IGP-M) calculated
by the Fundacao Getulio Vargas or other similar price variation
index in the event of its discontinuance;
1.50 Transfer means any direct or indirect sale, transfer, assignment,
pledge, hypothecation, or other form of disposition or encumbrance
of Shares, either voluntarily or involuntarily, with or without
consideration, including but not limited to, fiduciary disposition
("alienacao fiduciaria"), usufruct ("usufruto"), fidei commissum
("fideicomisso"), or barter transactions and "Transfers" and
"Transferred" shall be construed accordingly;
1.51 Transferor shall have the meaning attributed thereto in Section 12
of this Agreement.
1.52 US GAAP means the United States Generally Accepted Accounting
Principles;
2 Whenever the context of this Agreement shall require, the definitions in
the singular shall include the plural, and vice versa, and the masculine
gender shall include the feminine, and vice versa.
3 The headings and titles of this Agreement are only for convenience and
reference purposes, and shall not limit or affect in any way the
interpretation of the clauses, items or sub-items to which they apply.
4 Unless otherwise indicated, references made in this Agreement to any law,
document or other instrument shall also include the corresponding addenda,
laws, documents or instruments replacing them.
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5 All capitalized terms not defined herein shall have the meaning assigned
to them in the
Subscription Agreement.
CHAPTER II. UNDERTAKINGS OF THE SHAREHOLDERS
6 The Shareholders undertake, to the extent permitted by law: (i) to cast
their votes at the Shareholders' General Meetings and to instruct the
members appointed thereby to take part in the Board of Directors to cast
their votes in compliance with the provisions of this Agreement and the
Subscription Agreement so that this Agreement is fully performed in every
respect; and (ii) whenever necessary, to exercise their voting rights at
the Shareholders' General Meeting to ensure compliance with the provisions
of this Agreement, arranging for the prompt replacement of the members of
the Board of Directors that do not observe such orientation. In the event
the provisions of this Agreement shall conflict with, or modify the
provisions of the By-laws of the Company, then, as between the
Shareholders, this Agreement shall prevail and therefore the Shareholders,
to the extent permitted by law, shall take any required action to amend
the By-laws in order to remove such conflict.
7 The Shareholders undertake to cause their respective Affiliates and any
third party who acquires the ownership of shares issued by the Company
(except individuals designated as members of the Board of Directors by
each of the Parties) to adhere to this Agreement in writing and
unconditionally, as a condition precedent for the acquisition of such
ownership.
8 The Shareholders agree not to enter with other Company shareholders into
any other shareholders' agreements or other instruments providing for the
matters dealt with under this Agreement or which are directly or
indirectly related thereto, unless all Shareholders are parties to such
agreement or instrument with identical rights.
CHAPTER III. RESTRICTIONS ON THE TRANSFER OF SHARES
GENERAL PROVISIONS
9 Each Shareholder undertakes not to Transfer its Shares, in whole or in
part, unless the provisions set out in this Chapter III, its sections and
sub-sections have been observed.
9.1 Notwithstanding the provisions of this Section 9, the Shareholders
may create a lien on all or part of their Shares, pledging them as
security for a loan or a guarantee agreement, and creating a pledge,
encumbrance or lien on such Shares, provided that BSSF's tag along
rights provided for in this Chapter III are maintained in or out of
court, which rights shall be observed by the guaranteed party. In
order to ensure such observance, Aeropar undertakes, in the event it
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decides to create a lien on all or part of its Shares, to include in
any such guarantee agreement language to that effect.
9.2 The restrictions on the Transfer of Shares set forth in Chapter III
shall not apply: (i) to any Transfer of all or part of the Shares by
BSSF to any of its Affiliates, provided the assignee adheres in
writing to the provisions of this Agreement as a condition precedent
for implementation of the Transfer of the Shares; or (ii) to any
Transfer made in a Qualified Public Offering; or (iii) to any
Transfer of 1 (one) Share to an individual designated as member of
the Board of Directors of the Company by any Party.
10 Any Transfer of Shares as well as any direct or indirect Transfer of the
ownership thereof which are carried out in violation of the provisions of
this Agreement shall be considered null and void in relation to the
Company, the other Shareholders and third parties.
11 If any Shareholder other than BSSF wishes to Transfer all or part of its
Shares, it may only do so upon a consideration in cash or, if so provided
in the offer received by any Person, or cash plus deferred payments of
cash.
TAG ALONG RIGHTS
12 If any of Aeropar, any of the Aeropar Directors or any of their Affiliates
(collectively, the "Transferor") wishes to Transfer all or part of its
Shares, it may only do so provided that the proposed Transfer complies
with all applicable laws and regulations at the time of the Transfer,
specially with the Brazilian Aeronautics Code, and provided it has
received a written bona fide offer. In this case, it shall communicate in
writing (a "Notice of Transfer") to BSSF (the "Offerees") of its intent to
Transfer all or part of its Shares, name and address of the prospective
buyer, the number of shares involved (the "Subject Shares"), the offered
price and all other material terms of such Transfer. The Notice of
Transfer shall also be accompanied by a duly executed copy of such offer
and a statement of intention of the Transferor to Transfer the Subject
Shares to such prospective buyer.
13 During the Exercise Term, the Offerees shall notify the Transferor in
writing whether or not the Offerees wish to exercise their tag along
rights in accordance with Sections 12 through 18 hereof. The failure of
the Offerees to send such notices within the established time frame shall
mean a waiver of the rights to which they refer and assignment thereof
shall not be permitted in this specific case or in any other case.
14 At such time when the Transferor shall have Transferred or shall propose
to Transfer Shares, the Offerees shall be permitted to participate in the
Transfer of Shares to any
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prospective buyer, provided they have notified the Transferor of their
intention to exercise their tag along rights within the Exercise Term.
15 Subject to Section 14 above, the Offerees, provided they notify the
Transferor within the Exercise Term of their intention to exercise their
tag along rights shall have the right to sell, at the same price and under
the same terms and conditions applicable to the Transferor, an amount of
Shares representing the exact same percentage (vis-a-vis the Transferor's
own equity ownership in the Company) of the Shares being Transferred or
proposed to be Transferred by the Transferor. The Offerees shall give
notice of the proportion of each class of Shares they intend to include in
the Tag Along.
16 The purchase price per share for the Subject Shares shall be the price per
share offered to be paid by the prospective buyer described in the Notice
of Transfer, which price shall be paid in cash or, if so provided in the
offer of the prospective buyer, or cash plus deferred payments of cash in
the same proportions, and with the same terms of deferred payment as
therein set forth.
17 The Transferor may make a bona fide Transfer to the prospective buyer
named in the Notice of Transfer in case the tag along rights are not
exercised by BSSF, provided that such Transfer shall be made only in
strict accordance with the terms and conditions therein stated and in case
the transferee agrees, in writing, to be bound by the provisions of this
Agreement to which the Transferor is subject. If the Transferor shall fail
to make such Transfer within 60 days following the expiration of the
Exercise Term, such Shares shall again become subject to all the
restrictions of this Chapter III.
18 In the event of a transfer by Aeropar and/or by the Aeropar Directors to a
third party of (a) the ownership of any percentage of shares of the
Company that result in Aeropar and Aeropar Shareholders holding
collectively less than fifty percent plus one of the voting shares of the
Company or (b) the power to elect the majority of the members of the Board
of Directors of the Company, BSSF shall have the right to sell, at the
same price and under the same terms and conditions as the Transferor, all
its Shares to such third party. In the event this Transfer of Control is
made at a price per share that is less than the Subscription Price
(subject to adjustments for any stock split, reverse stock split,
recapitalization, stock issuance, extraordinary distribution or similar
event), monetarily adjusted for inflation by the variation of the IGP-M or
other similar price variation index in the event of its discontinuance,
Aeropar and Aeropar Directors shall pay or cause to be paid to BSSF the
Subscription Price (subject to adjustments for any stock split, reverse
stock split, recapitalization, stock issuance, extraordinary distribution
or similar event), monetarily adjusted for inflation by the variation of
the
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IGP-M or other similar price variation index in the event of its
discontinuance, multiplied by the number of shares held by BSSF.
DRAG ALONG RIGHTS
19 If at any time after December 31st, 2006, there has not been an initial
Public Offering of Shares of the Company resulting in proceeds to the
Company in excess of US$35,000,000.00 or the equivalent thereof in
Brazilian currency at the time of receipt of the proceeds by the Company,
BSSF shall have the right to force the other Shareholder(s) of the Company
to participate in any sale of Shares arranged by BSSF on the same price
and payment conditions as BSSF to an unaffiliated purchaser; provided,
however, that the consideration shall only include cash or cash plus
deferred payments of cash.
19.1 BSSF shall send to the other Shareholder(s) a written communication
of their intent to exercise their drag along rights, containing the
minimum requested price and any other material financial terms of
such proposed Transfer (the "Drag Along Notice").
20 Within 30 days as of receipt of the Drag Along Notice, Aeropar may opt to
purchase all Shares held by BSSF at the price per Share of the Drag Along
Notice and in accordance with the same terms and conditions as therein set
forth.
21 If BSSF shall fail to make the drag along Transfer within 180 days as of
receipt by Aeropar of the Drag Along Notice, such Shares shall again
become subject to all restrictions of Section 19 above and a new Drag
Along Notice shall be required.
LOSS SALES
22 Any sale of Shares by any Shareholder other than BSSF at a price per Share
lower than the Threshold Return shall require the prior written consent of
BSSF .
CHAPTER IV. OPTION TO PURCHASE SHARES
23 [Intentionally Left Blank]
24 [Intentionally Left Blank]
25 [Intentionally Left Blank]
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CHAPTER V. PREEMPTIVE RIGHTS
26 The Company undertakes to respect and to observe all preemptive rights
owned by the Shareholders by force of the Corporation Law in all issue of
Shares in accordance with the Corporation Law. The Shareholders shall have
a right of oversubscription such that if any other Shareholder fails to
subscribe its pro rata portion of Shares (sobras) in any given issue, all
Shareholders who have subscribed their pro rata portion of Shares shall,
among themselves, have the right to purchase up to the balance of the
unsubscribed Shares on a pro rata basis (based on the number of Shares
held by each such oversubscriber at the time the issue of Shares
commenced) unless they shall otherwise agree among themselves.
26.1 In the event of a Public Offering by the Company, the Shareholders
agree to cause the Company to respect and observe BSSF's preemptive
rights to subscribe for an amount of shares which will permit BSSF
to maintain the same percentage of equity ownership in the Company
after the Public Offering is completed and all the shares offered
therein have been subscribed. In case the exercise of such right by
BSSF would violate the restriction on voting stock ownership by
foreign investors in excess of 20% as contained in the Brazilian
Aeronautics Code, the Shareholders agree to cause the Company to
permit BSSF to subscribe for and the Company to issue non-voting
shares to permit BSSF to maintain its percentage of equity ownership
in the Company after the Public Offering is completed and all the
shares offered therein have been subscribed.
27 The preemptive rights for subscription of Shares issued by the Company in
accordance with the Corporation Law may be assigned by any Shareholder to
any Affiliate, which assignment will not be subject to the procedures
referred to in Chapter III, provided that any such Affiliate shall
formally adhere to this Agreement. The preemptive rights for subscription
of Shares issued by the Company in accordance with the Corporation Law may
be assigned by BSSF to a designated assignee approved by Aeropar, which
approval shall not be unreasonably withheld.
CHAPTER VI. LIQUIDITY EVENTS
28 In the event of a Public Offering of Shares or in the event of a sale of
Shares to a Strategic Investor, BSSF shall have preference to sell up to
100% of its Shares in any such Public Offering or Strategic Sale, as the
case may be, before each of the other Shareholders can sell any of its
Shares.
28.1 BSSF agrees that, in the case of a Qualified Public Offering of
Shares, BSSF shall agree with the relevant underwriters to be
"locked-up" for a period of six months following the date of the
Public Offering by executing a customary underwriting agreement or
lock-up agreement.
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28.2 Each of Aeropar and the Aeropar Directors agrees that, in the case
of a Qualified Public Offering of Shares, Aeropar and the Aeropar
Directors shall agree with the relevant underwriters to be
"locked-up" for a period of twelve months following the date of the
Public Offering by executing a customary underwriting agreement or
lock-up agreement.
28.3 BSSF agrees that, after the date on which BSSF is free to sell
additional shares pursuant to Section 28.1, if BSSF chooses to sell
its shares, unless such sale is in an organized manner, such sale
shall involve the assistance of an underwriter and the Company. For
the sake of clarity, the term "organized manner" (i) shall include
private negotiated block sales and (ii) shall not include sales on
the open market or through a broker to the stock market. The Parties
agree that they will, and will cause the Company to, assist in a
sale, including through participation in conference calls and a
"road-show". The Parties agree that this Section 28.3 is useful for
the Company and its shareholders to avoid disruption or inefficiency
from the sale of shares by BSSF.
CHAPTER VII. LIQUIDATION PREFERENCE
29 In the event that the Company shall be liquidated, dissolved or wound up
(each a "Liquidation"), the proceeds of the liquidation shall be
distributed among the Shareholders as follows: (i) BSSF shall receive
before any other shareholder of the Company an amount equivalent to the
Subscription Price (subject to adjustments for any stock split, reverse
stock split, recapitalization, stock issuance, extraordinary distribution
or similar event), monetarily adjusted for inflation by the variation of
the Indice Geral de Precos - Mercado (IGP-M) calculated by the Fundacao
Getulio Vargas or other similar price variation index in the event of its
discontinuance, multiplied by the number of shares held by BSSF at the
time of distribution of the proceeds of the Liquidation; (ii) the
remainder, if any, shall be subsequently distributed to Aeropar, up to an
amount equivalent to the Subscription Price (subject to adjustments for
any stock split, reverse stock split, recapitalization, stock issuance,
extraordinary distribution or similar event), monetarily adjusted for
inflation by the variation of the IGP-M or other similar price variation
index in the event of its discontinuance, multiplied by the number of
shares held by Aeropar at the time of distribution of the proceeds of the
Liquidation; (iii) the remainder, if any, shall be allocated among the
shareholders of the Company in proportion to their respective equity
interest in the Company.
30 In the event that the Company shall merge with or into another Person or
otherwise consolidate and as a result of any such merger or consolidation
the Shareholders will hold less than a majority of the outstanding voting
capital stock of the surviving entity
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(a "Merger"), BSSF shall have the right to receive from Aeropar, without
payment of any cash, shares of the surviving company equivalent to the
difference of (a) the Subscription Price (subject to adjustments for any
stock split, reverse stock split, recapitalization, stock issuance,
extraordinary distribution or similar event), monetarily adjusted for
inflation by the variation of the IGP-M or other similar price variation
index in the event of its discontinuance, multiplied by the number of
shares held by BSSF immediately before the Merger minus (b) the fair value
of the shares of the surviving company which BSSF have received as a
result of the Merger determined by an independent investment bank of
international standing; provided, however, that Aeropar shall not be
obliged to Transfer to BSSF more shares than it has received as a result
of the merger or consolidation.
CHAPTER VIII. NON-COMPETE
31 Aeropar and the Aeropar Directors hereby undertake, for the duration of
this Agreement, not to and to cause its Affiliates not to, directly or
indirectly, by means of an equity investment, business combination,
joint-venture, partnership or otherwise, create, invest, incorporate or
acquire any business which competes with the Business of the Company (a
"New Opportunity"), unless (i) expressly authorized by BSSF in writing;
and (ii) provided Aeropar, the Aeropar Directors and/or its Affiliates
offer to BSSF the chance to participate as an investor in any such New
Opportunity, with at least the same percentage BSSF holds in the capital
stock of the Company, which BSSF shall have the right, but not the
obligation, to accept.
CHAPTER IX. EXERCISE OF VOTING RIGHTS
32 The Shareholders shall exercise their respective voting rights in such a
manner that (i) Aeropar shall have the right to appoint and elect five of
the eight directors of the Company (with the absolute right to request the
dismissal of any them so elected, if Aeropar shall deem such dismissal
desirable), (ii) BSSF shall have the right to appoint and elect the three
remaining directors (with the absolute right to request the dismissal of
any them so elected, if BSSF shall deem such dismissal desirable).
32.1 In case the company becomes publicly held, the Parties shall
increase the number of members of the Board of Directors as
necessary (a) to include all designations legally required, and (b)
to assure Aeropar the appointment of the majority of the members of
the Board of Directors, and (c) to assure BSSF the right to appoint
at least three members of the Board of Directors.
32.2 In the event of a Qualified Public Offering where immediately
thereafter BSSF continues to be a shareholder of the Company, the
Shareholders shall exercise their respective voting rights in such a
manner that BSSF shall have the right to
15
appoint and elect one director of the Company (with the absolute
right to request the dismissal of such Board member so elected, if
BSSF shall deem such dismissal desirable), provided this right shall
prevail only to the extent that, in case of exercise by the minority
shareholders of the Company of any minority rights set forth under
the Corporation Law, Aeropar still retains the right to appoint the
majority of the Board of Directors, not counting the director so
appointed by BSSF. This provision shall survive the termination of
this Agreement for as long as BSSF continues to be a shareholder of
the Company with more than 5% (five percent) of the total capital of
the Company.
33 In case of vacancy in the Board of Directors the replacement director
shall be appointed by the Shareholder who had appointed the director being
replaced.
34 Each Shareholder shall vote all Shares owned by such Shareholder for the
removal (with or without cause) of any Director appointed and elected
pursuant to Section 33 above if the Shareholder or Shareholders entitled
to appoint such director pursuant to Section 33 above request(s) such
removal by written notice to the other Shareholder.
35 For the purposes of this Agreement, the qualifying Shares held by members
of the Board of Directors shall be deemed as property of the Shareholder
who appointed such director.
36 The directors will receive the minimum compensation required by the Board
of Trade from the Company for their serving as directors.
37 The Board of Directors shall meet, telephonically, by videoconference or
otherwise, at least monthly each year.
38 The Shareholders or the Board of Directors, as the case may be, shall not
decide, and shall cause the Company (including any of its subsidiaries)
not to implement, any of the actions listed below, without first obtaining
approval of BSSF:
38.1 any change in the capital structure of the Company or its
subsidiaries, including but not limited to, increase or reduction of
the capital stock of the Company, issuance of new securities of the
Company (except for Public Offerings of Shares of the Company
initiated as of April 2004), modification of the rights of existing
ones;
38.2 any merger, spin-off, restructuring, consolidation, sale, voluntary
filing for bankruptcy, Chapter 11 reorganization ("concordata"),
dissolution, liquidation, winding-up of the Company and/or its
subsidiaries;
16
38.3 the sale, Transfer, lease of assets or transfer of rights that: (i)
are not provided for under the Annual Business Plan or Budget of the
Company; or (ii) result in an obligation of US$200,000.00 or higher
or its equivalent in Brazilian currency, in a transaction
individually considered or in a series of them, over a period of
twelve months, except for replacement of spare parts in the ordinary
course of business;
38.4 any change to the By-laws of the Company or any of its subsidiaries,
including but not limited to, any modification to their corporate
purpose, except to comply with Section 6 of this Agreement;
38.5 any transaction outside the ordinary course of business of the
Company;
38.6 any transaction or the execution or amendment of any agreement
involving the Company and any one or more of its officers,
shareholders, directors, subsidiaries, any company comprising the
Aeropar Group of companies, the Aeropar Directors, any other
Shareholder or any other related party, except for transactions in
the ordinary course of business and in standard commercial terms;
38.7 any transfer or license of intellectual property rights of the
Company, except for transfers to a wholly-owned subsidiary of the
Company;
38.8 any allocation of net profits, distribution of dividends, interest
on equity ("juros sobre capital proprio") or any other kind of
remuneration relating to the equity of the Company or any of its
subsidiaries, except the minimum mandatory dividend;
38.9 The Annual Business Plan and the Annual Budget, as well as any
material modification to any of them during their execution;
38.10 approve any investments which, in the aggregate for the period of 12
months, exceed US$200,000.00 or its equivalent in Brazilian currency
other than investments which are included in the Annual Business
Plan and the Annual Budget, except for replacement of spare parts in
the ordinary course of business;
38.11 the appointment and/or dismissal of the outside independent auditors
of the Company and/or of its subsidiaries and/or any material change
(as defined by their auditors in accordance with Brazilian GAAP or
US GAAP, as the case may be) of their respective accounting
policies, practices or principles;
38.12 the creation, change and/or allocation of any stock option plan for
the Senior Management of the Company and/or of any of its
subsidiaries;
17
38.13 the incurrence of any indebtedness or obligation, including, without
limitation, the execution of new aircraft leases and the renewal of
existing ones, that individually considered or in the aggregate,
over a period of twelve months, exceeds US$200,000.00 or its
equivalent in Brazilian currency;
38.14 any registration or delisting of securities of the Company or its
subsidiaries for trading in a stock exchange or over the counter
trading system, either locally or abroad;
38.15 any repurchase or cancelling of any of the Company's securities by
the Company or its subsidiaries;
38.16 any equity investment by the Company or its subsidiaries in other
companies or the incorporation of any Affiliates, or entering into
joint venture, partnerships, or any other form of association, to
develop any kind of activity, involving the transfer of employees,
assets or amounts in excess of US$200,000.00 or its equivalent in
Brazilian currency;
38.17 the granting of any encumbrance, lien or security interest on the
Company's or any subsidiary's assets or properties other than in the
ordinary course of business as a guarantee of a financing;
38.18 any financial transactions or advances between the Company and its
subsidiaries other than in the ordinary course of business;
38.19 commencement of any legal proceedings or entering into settlements
exceeding, individually or in the aggregate, at least potentially,
US$200,000.00 or its equivalent in Brazilian currency;
38.20 the acquisition or Transfer of the Control in any other Person by
the Company or any of its subsidiaries;
38.21 the granting by the Company or its subsidiaries of any guarantees,
individually considered or in the aggregate, over a period of twelve
months, in the amount of US$200,000.00 or higher or its equivalent
in Brazilian currency;
38.22 any relevant change in the Company's business, including a change in
its fiscal year term;
38.23 the appointment and replacement of the chief financial officer of
the Company and/or of its subsidiaries;
18
38.24 any determination of employee's compensation and benefits, specially
that of Senior Management; and
38.25 any sale of assets by the Company to its subsidiaries which
individually considered or in the aggregate have a value of
US$200,000.00 or higher or its equivalent in Brazilian currency.
38.26 any asset acquisition with an aggregate value of US$200,000.00 or
higher or its equivalent in Brazilian currency.
39 Shareholders' General Meetings and Board of Directors' meetings shall
decide by a simple majority of votes, unless otherwise set forth by law,
the By-laws of the Company and/or the provisions contained in this
Agreement.
40 No later than December 1st of each year Aeropar shall cause the Senior
Management of the Company to prepare and present to the Board of
Directors, in relation to the then coming year, a business plan (the
"Annual Business Plan") and budget (the "Annual Budget") for each of the
Company and its subsidiaries, except for the Annual Business Plan and
Annual Budget related to the calendar year of 2003, which shall be
approved no later than 30 days from the Closing Date.
CHAPTER X. TRANSFER OF RIGHTS
41 In the event of a sale of all Shares held by BSSF to a third party, such
acquiror shall have the same rights originally provided to BSSF herein. In
the event of a sale of part of the Shares held by BSSF to a third party,
such acquiror and BSSF shall be deemed one single party for all purposes
of this Agreement and shall jointly exercise any and all rights of BSSF
under this Agreement.
CHAPTER XI. FREEDOM OF DEALING
42 Neither BSSF nor any of its Affiliates shall be prevented from making
investments in any entity that may be considered to be competing, directly
or indirectly, with the Company, its subsidiaries or Affiliates.
CHAPTER XII. AUDITING
43 The accounting, auditing and preparation of the Company's financial
statements and other corporate documents shall observe both the Brazilian
GAAP and the US GAAP and all audit reports of the Company shall be made in
accordance with Brazilian GAAP and US GAAP.
19
44 The Company's outside independent auditing firm shall be selected
preferably among the firms of Deloitte, Touche and Tohmatsu, Ernst &
Young, KPMG Peat Marwick, and PriceWaterhouseCoopers, and in any event by
mutual agreement between Aeropar and BSSF.
45 The Shareholders agree to cause the Company to comply with at least the
minimum standards of corporate governance required by the Bolsa de Valores
de Sao Paulo - BOVESPA and the New York Stock Exchange - NYSE as BSSF
determines is necessary to allow for a successful offering of the
Company's securities.
CHAPTER XIII. AUTHORIZATIONS
46 The Shareholders represent and warrant to their mutual benefit and to the
benefit of the Company that they have obtained all authorizations required
for the execution of this Agreement, in accordance with the respective
articles of association and other relevant corporate documents.
CHAPTER XIV. FILING
47 This Agreement and any subsequent amendments thereto shall be filed, under
the terms and for the purposes of article 118 of the Corporation Law, at
the headquarters of the Company, and any restrictions on the transfer of
Shares and on the voting rights shall be recorded in the Registered Shares
Registration Book ("Livro de Registro de Acoes Nominativas") and in the
share certificates, if issued.
48 For the purposes of paragraph 10 of article 118 of the Corporation Law
Aeropar hereby appoints as its representative Henrique Constantino, and
BSSF hereby appoints as its representative Fernando C. D. P. Borges.
CHAPTER XV. INSPECTION OF CORPORATE DOCUMENTS AND BOOKS; INFORMATION RIGHTS
49 The Shareholders, at their sole expense and through the Company's
independent accountants, during regular business hours and without
interfering with the performance of the Company's regular activities, may
inspect the books, records and other documents of the Company, as well as
request copies of the accountants work papers. Any additional cost
incurred by the independent accountant with the inspection requested, or
arising from any other information requested by a Shareholder shall be
borne by such requesting Shareholder.
50 BSSF and its appointed Board of Directors' members shall have the right to
receive from the Company with respect to the Company and/or its
subsidiaries: (i) interim unaudited monthly and quarterly financial
statements; (ii) audited annual reports,
20
including financial statements, within 90 days of fiscal year end; (iii)
monthly operating reports; (iv) the Annual Business Plan and the Annual
Budget as approved by the Board of Directors; (v) as soon as available,
information and data on any change in, or any event or condition which
could have a material adverse effect on, the Company's or any of its
subsidiaries' business, financial condition or operations; and (vi)
additional financial and other information as reasonably requested.
CHAPTER XVI. NOTICES
51 All communications under this Agreement shall be in writing and shall be
delivered by hand or facsimile or mailed by overnight courier or by
registered or certified mail, postage prepaid:
If to the Shareholders or Aeropar Directors, at such addresses set forth below
or at such other addresses as the Shareholders may have furnished the Company in
writing:
Aeropar and/or any and all of Aeropar Directors
Attention of Messrs. Constantino de Oliveira and Henrique Constantino
Rua Funchal, 551 - 10 th Floor
Sao Paulo - SP
Facsimile no.: (11) 3841-4690
With a copy to:
De Vivo, Whitaker e Gouveia Gioielli Advogados
Attention of Andre Alicke De Vivo, Esq.
Rua Joaquim Floriano, 10th Floor
04534-000 Sao Paulo - SP
Facsimile no.: (11) 3706-3277
BSSF
Care of AIG Capital Partners, Inc.
Attention of Mr. Peter Yu
599 Lexington Avenue, 24th Floor
New York, New York 10022
Facsimile no.: +1 (212) 458-2153
Care of AIG Capital Investments do Brasil S.A.
Attention of Mr. Marcelo Castro de Aguiar
Av. Eng. Luis Carlos Berrini 550 - 13th Floor
Sao Paulo - SP
Facsimile no.: (11) 5505-0313
21
With a copy to:
Veirano & Advogados Associados
Attention of Ian de Porto Alegre Muniz, Esq.
Av. das Nacoes Unidas 12995 - 18th Floor
04578-000 Sao Paulo - SP
Facsimile no.: (11) 5505-3990
If to the Company, at the address set forth below or at such other address as it
may have been furnished in writing to each of the Shareholders:
Gol Linhas Aereas Inteligentes S.A.
Attention of Mr. Constantino de Oliveira Jr.
Rua Tamoios 246 - Jardim Aeroporto
04630-000 Sao Paulo - SP
Facsimile no.: (11) 5033-4224
With a copy to:
De Vivo, Whitaker e Gouveia Gioielli Advogados
Attention of Andre Alicke De Vivo, Esq.
Rua Joaquim Floriano, 100, 10th Floor
04534-000 Sao Paulo - SP
Facsimile no.: (11) 3706-3277
52 Any notice so addressed shall be deemed to be given: if delivered by hand
or facsimile, on the date of such delivery; if mailed by courier, on the
third business day following the date of such mailing; and if mailed by
registered or certified mail, on the seventh business day after the date
of such mailing.
CHAPTER XVII. TERM
53 This Agreement shall take effect on the date it is signed by all the
Shareholders and shall remain valid until the earlier of the occurrence of
a Qualified Public Offering or a 20-year period, except for the rights
provided in Section 32.2 and the provisions of Chapter VI, renewable by
mutual agreement for an equal period.
CHAPTER XVIII. GENERAL PROVISIONS
54 This Agreement shall be binding upon and inure to the benefit of each of
the Shareholders and its successors and permitted assigns. This Agreement
shall be irrevocable and irreversible. The rights and obligations of the
Shareholders may not be
22
transferred or assigned in whole or in part, unless set forth in this
Agreement or upon the prior written consent of the other Shareholders.
55 This Agreement shall supersede and replace all previous understandings,
negotiations, commitments, statements, correspondences and discussions
between the Shareholders, related to the subject matter of this Agreement.
56 No addendum, amendment or modification to this Agreement shall be binding
on the Shareholders unless made in writing and executed by an authorized
representative of each of the Shareholders. Any such addendum, amendment
or modification shall be filed at the headquarters of the Company in
accordance with the provisions of Chapter XIV above.
57 Failure by any Shareholder to demand compliance at any time with the
provisions of this Agreement or to exercise any option, alternative or
right granted therein shall not mean waiver of any of its provisions nor
shall it affect the validity thereof, wholly or partially, or the right
assured to any Shareholder to demand subsequent compliance with any and
all provisions of this Agreement and to exercise such option, alternative
or right. No waiver of any provision of this Agreement shall be effective
as regards the other Shareholders unless made in writing by a duly
authorized officer or representative of the Shareholder.
58 Each Shareholder hereto represents and warrants that neither it nor any of
its Affiliates, nor any shareholder, officer, representative, employee or
agent thereof, has made or will make, or cause to be made, in connection
with this Agreement, the Subscription Agreement and the course of action
contemplated by them, including without limitation the obtaining of
approvals, any payments, loans or gifts or promises or offers of payments,
loans or gifts of any money or anything of value, directly or indirectly
(i) to or for the use or benefit of any officer or employee of any
government, (ii) to any political party or official candidate thereof,
(iii) to any other Person either for an advance or reimbursement if it
knows that any part of such payment, loan or gift was or will be directly
or indirectly given or paid by such other Person, was or will reimburse
such other Person for payments, gifts or loans previously made to any
governmental official or political party, or official candidate thereof,
or (iv) to any other Person, the payment of which would violate the laws
or regulations having the force of law, of Brazil or the United States of
America, including but not limited to the legislation commonly known in
the United States of America as the Foreign Corrupt Practices Act.
23
CHAPTER XIX. OBLIGATION TO INDEMNIFY
59 Irrespective of the rights of the Parties to enforce the obligations
contained hereunder, the Shareholder who causes any damage to another
Shareholder shall hold the damaged Shareholder harmless from, and shall
promptly indemnify such Shareholder, as the case may be, against any
claim, loss, liability, damage or expense, including, but not limited to,
court and arbitration costs and reasonable attorneys' fees, resulting from
any inaccuracy in or breach of any obligation assumed by them in
accordance with this Agreement.
CHAPTER XX. SPECIFIC PERFORMANCE
60 The Shareholders agree that the attribution of losses and damages,
although due and ascertained pursuant to law, shall not constitute an
appropriate or sufficient redress for default on the obligations set out
in this Agreement, and any Shareholder may claim in court the specific
performance of the defaulted obligation, by means of a jurisdictional
granting, under the terms of article 118 of the Corporation Law and
subsequent amendments thereto, as well as of articles 461, 632, 639 et
seq. of the Brazilian Code of Civil Procedure. This Agreement, which is
signed by two witnesses, constitutes an extra-judicial execution
instrument ("titulo executivo extra-judicial") for all purposes and
effects of article 585, item II of the Brazilian Code of Civil Procedure.
CHAPTER XXI. GOVERNING LAW AND ARBITRATION
61 This Agreement shall be governed by and construed in accordance with the
laws of the Federative Republic of Brazil.
62 Any dispute, controversy or claim arising out of, relating to, or in
connection with, this Agreement, or the breach, termination or validity
thereof, shall be finally settled by arbitration. The arbitration shall be
conducted in accordance with the Rules of BOVESPA in effect at the time of
the arbitration, except as they may be modified herein or by mutual
agreement of the Parties. The seat of the arbitration shall be Sao Paulo,
Brazil and it shall be conducted in the English language, provided that
either party may submit testimony or documentary evidence in any language
if it furnishes, upon the request of the other party, a translation into
English of any such testimony or documentary evidence.
63 The arbitration shall be conducted by three arbitrators. The party
initiating arbitration (the "Claimant") shall appoint an arbitrator in its
request for arbitration (the "Request"). The other party (the
"Respondent") shall appoint an arbitrator within 30 days of receipt of the
Request and shall notify the Claimant of such appointment in writing. If
within 30 days of receipt of the Request by the Respondent, either party
has
24
not appointed an arbitrator, then that arbitrator shall be appointed by
BOVESPA. The first two arbitrators appointed in accordance with this
provision shall appoint a third arbitrator within 30 days after the
Respondent has notified Claimant of the appointment of the Respondent's
arbitrator or, in the event of a failure by a party to appoint, within 30
days after BOVESPA has notified the parties and any arbitrator already
appointed of its appointment of an arbitrator on behalf of the party
failing to appoint. When the third arbitrator has accepted the
appointment, the two arbitrators making the appointment shall promptly
notify the parties of the appointment. If the first two arbitrators
appointed fail to appoint a third arbitrator or so to notify the parties
within the time period prescribed above, then BOVESPA shall appoint the
third arbitrator and shall promptly notify the parties of the appointment.
The third arbitrator shall act as Chair of the tribunal.
64 The arbitral award shall be in writing, state the reasons for the award,
and be final and binding on the parties. The award may include an award of
costs, including reasonable attorneys' fees and disbursements. Judgment
upon the award may be entered by any court having jurisdiction thereof or
having jurisdiction over the relevant party or its assets.
65 This Agreement is executed in the Portuguese and English languages. In the
event of conflict between the two languages, the English language shall
prevail.
IN WITNESS WHEREOF, the Shareholders executed this Agreement in three
counterparts of identical form and content, in the presence of the two
undersigned witnesses.
[ILLEGIBLE SIGNATURE]
Aeropar Participacoes S/A
[ILLEGIBLE SIGNATURE]
Comporte Participacoes S/A
[ILLEGIBLE SIGNATURE]
BSSF Air Holdings Ltd.
25
[ILLEGIBLE SIGNATURE]
BSSF Air Holdings LLC
Fernando C. D. P. Borges
Attorney-in-fact
CONSTANTINO DE OLIVEIRA CONSTANTINO DE OLIVEIRA JUNIOR
/s/ Constantino de Oliveira /s/ Constantino de Oliveira Junior
- ----------------------------- ----------------------------------
HENRIQUE CONSTANTINO JOAQUIM CONSTANTINO NETO
/s/ Henrique Constantino /s/ Joaquim Constantino Neto
- ----------------------------- --------------------------------
RICARDO CONSTANTINO
/s/ Ricardo Constantino
- -----------------------------
ANA VIGON TABAR PETER MICHAEL YU
/s/ Ana Vigon Tabar /s/ Peter Michael Yu
- ----------------------------- ------------------------------------
26
Acknowledged and Agreed:
[ILLEGIBLE SIGNATURE]
GOL Linhas Aereas Inteligentes S.A.
/s/ Constantino de Oliveira Jr.
Constantino de Oliveira Jr.
Chairman
Witnesses:
- -------------------------------- -----------------------------
Name: Name:
CPF/MF: CPF/MF: