SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 6-K/A
REPORT OF FOREIGN ISSUER
PURSUANT TO RULE 13a-16 OR 15d-16 OF THE
SECURITIES EXCHANGE ACT OF 1934
For the month of February, 2017
(Commission File No. 001-33356),
Gafisa S.A.
(Translation of Registrant's name into English)
Av. Nações Unidas No. 8501, 19th floor
São Paulo, SP, 05425-070
Federative Republic of Brazil
(Address of principal executive office)
Indicate by check mark whether the registrant files or will file
annual reports under cover Form 20-F or Form 40-F.
Form 20-F ___X___ Form 40-F ______
Indicate by check mark if the registrant is submitting
the Form 6-K in paper as permitted by Regulation S-T Rule 101(b)(1)
Yes ______ No ___X___
Indicate by check mark if the registrant is submitting
the Form 6-K in paper as permitted by Regulation S-T Rule 101(b)(7):
Yes ______ No ___X___
Indicate by check mark whether by furnishing the information contained in this Form,
the Registrant is also thereby furnishing the information to the Commission pursuant
to Rule 12g3-2(b) under the Securities Exchange Act of 1934:
Yes ______ No ___X___
If “Yes” is marked, indicate below the file number assigned
to the registrant in connection with Rule 12g3-2(b):
N/A
GAFISA S.A.
Corporate Taxpayer’s ID (“CNPJ/MF”) No. 01.545.826/0001-07
Corporate Registry ID (“NIRE”) 35.300.147.952
MANAGEMENT PROPOSAL
EXTRAORDINARY SHAREHOLDERS’ MEETING
FEBRUARY 20, 2017
at 11 a.m.
INDEX
I. Preemptive Right for the Admission of Shareholders in Wholly-Owned Subsidiary
|
3
|
II. Gafisa’s Capital Stock Reduction
|
5
|
Exhibit A – Information related to amendment to the Company’s Bylaws
|
7
|
Exhibit B – Information related to the Company’s Capital Stock Reduction
|
55
|
GAFISA S.A.
CNPJ/MF No. 01.545.826/0001-07
NIRE 35.300.147.952
Publicly-held Company
MANAGEMENT PROPOSAL FOR THE EXTRAORDINARY SHAREHOLDERS’ MEETING TO BE HELD ON FEBRUARY 20, 2017
Dear Shareholders,
The management of Gafisa S.A. (“
Company
” or “
Gafisa
”), pursuant to CVM Instruction No. 481 of December 17, 2009 (“
CVM Instruction No. 481/09
”), hereby submits to the Company’s shareholders a proposal on the matters to be resolved at the Company’s extraordinary shareholders’ meeting to be held, on second call notice, on February 20, 2017, at 11 a.m. (“
Management Proposal
” and “
Extraordinary Shareholders’ Meeting
”, respectively), namely the:
(i)
offer to the Company’s shareholders the preemptive right, at the proportion of their respective equity interest in the Company’s capital stock, to acquire common shares representing up to 50% of the capital stock of its wholly-owned subsidiary Construtora Tenda S.A., a publicly-held company enrolled with CNPJ/MF No. 71.476.527/0001-35, NIRE 35.300.348.206 (“
Tenda
”), under the terms and for the purposes of Article 253, I of Law No. 6,404/76 (“
Preemptive Right
”), in view of the Company’s decision to sell part of the shares issued by Tenda to Jaguar Real Estate Partners, LP or one of its affiliates (“
Jaguar
”), as disclosed in the Material Fact dated as of December 14, 2016;
(ii)
reduction of the Company’s capital stock in the total amount of R$219,510,000.00, resulting in a reduction from R$2,740,661,187.74 to R$2,521,151,187.74, without cancellation of shares, pursuant to Article 173 of Law No. 6,404/76, for being deemed as excessive, with the delivery to the Company’s shareholders of 1 common share issued by Tenda for each 1 common share issued by Gafisa, owned by the shareholder, after the reverse split, excluding the treasury shares, totalizing 27,000,000 common shares issued by Tenda, representing the other 50% of its total capital stock (“
Gafisa’s Capital Stock Reduction
”); and
(iii)
restatement of the Company’s Bylaws in order to reflect the amendments resulting from the Gafisa’s Capital Stock Reduction.
I.
Preemptive Right for the Admission of Shareholders in Wholly-Owned Subsidiary
As disclosed in the material facts of February 7, 2014, April 29, 2015, August 16, 2016 and December 14, 2016, the Company’s management has been conducting studies and
analyzing opportunities to separate the business units of the Company and Tenda, its wholly-owned subsidiary, so that these entities become two publicly-held and independent companies (“
Separation
”).
After analyzing the available options during such period, the Company’s management decided to sell 50% of the shares representing Tenda’s total capital stock and deliver the remaining 50% of shares of Tenda’s total capital stock to Gafisa’s shareholders by means of the Gafisa’s Capital Stock Reduction.
Within the sale, and as released in the material fact of December 14, 2016, the Company entered into an agreement with Jaguar for the acquisition of, subject to compliance of certain conditions, shares representing, at least 20% and up to 30% of Tenda’s total capital stock, for the price of R$8.13 per share (“
Price per Share
”) (“
Jaguar Purchase and Sale
”). If, after the exercise of the Preemptive Right, less than 20% of Tenda’s shares remain available to be purchased, Jaguar may, at its sole discretion, acquire or not such remaining available shares.
Therefore, in compliance with provisions of Article 253, I, of Law No. 6,404/76, the Company will offer to its shareholders the Preemptive Right for the acquisition of shares representing up to 50% of Tenda’s capital stock, at the proportion of their respective equity interest in the Company’s capital, at the Price per Share, to be paid on spot, in cash, upon the exercise of the Preemptive Right.
The date for purposes of identifying the Company’s shareholders who will be entitled to acquire Tenda’s shares will be the business day immediately preceding the initial term for the exercise of the Preemptive Right (after market closes). This date will be informed in a notice to shareholders to be released upon the occurrence of the general shareholders’ meeting (“
Notice to Shareholders
”). Therefore, the Company’s shares will be traded ex-Preemptive Right starting on the first day of the term for the exercise of the Preemptive Right.
Once the term for the exercise of the Preemptive Right expires, the unsold shares (
sobras
) will be prorated between shareholders who expressed an interest in acquiring such unsold shares upon the exercise of their Preemptive Right, in the proportion of shares that such shareholders have acquired prior to prorating, being admissible the option for the acquisition of an additional amount, up to the limit of the unsold shares, and executing, additionally, as applicable, the other terms and conditions of Article 171 of Law No. 6,404/76.
The Jaguar Purchase and Sale and the sale of Tenda’s shares to Gafisa’s shareholders who exercise the Preemptive Right (“
Preemptive Right Purchase and Sale
”) are subject to the conclusion of: (
i
) Gafisa’s Capital Stock Reduction; and (
ii
) Tenda’s capital stock reduction, approved at the extraordinary shareholders’ meeting of Tenda held on December 14, 2016 (“
Tenda’s Capital Stock Reduction
”). In other words, the non-conclusion of Gafisa’s Capital Stock Reduction
AND/OR
Tenda’s Capital Stock Reduction for any reason, shall be deemed as a dissolving condition of the transaction
that are subject-matter to Jaguar Purchase and Sale and to the Preemptive Right Purchase and Sale, and accordingly, these transactions (Jaguar Purchase and Sale and the Preemptive Right Purchase and Sale) will no longer produce any effects if Gafisa’s Capital Stock Reduction and/or Tenda’s Capital Stock Reduction do not consummate.
Yet, the non-conclusion of the Jaguar Purchase and Sale does not, by itself, affect the consummation of the Preemptive Right Purchase and Sale, which will be implemented, by the delivery to Gafisa’s shareholders who exercise the Preemptive Right, on the date to be specified in the Notice to Shareholders, of Tenda’s shares they are entitled to receive.
The Company’s shareholders who intend to negotiate their Preemptive Rights may do so once the term for the exercise of the Preemptive Right has begun, by acting sufficiently in advance to allow the exercise of the assigned subscription rights assigned within such term.
Since the Preemptive Right may not be exercised by holders of the American Depositary Shares (“
ADSs
”) program, Citibank N.A., as the depositary institution for the Company’s ADSs program, was advised and agreed to endeavor commercially reasonable efforts to sell the Preemptive Rights attributable to, and on behalf of, the holders of ADSs.
The Company will initiate the process to list Tenda’s shares on the traditional segment of BM&FBOVESPA – Bolsa de Valores, Mercadorias e Futuros S.A., so that such shares are accepted for trading by the date of their delivery to shareholders of Gafisa and/or to Jaguar, as applicable.
Additional information on Tenda is available at its Investor Relations website (www.tenda.com/investidores/) and at the website of the Brazilian Securities and Exchange Commission (www.cvm.gov.br).
II.
Gafisa’s capital stock reduction
Also with the purpose of implementing the Separation, and for being deemed as excessive, we propose that the reduction of the Company’s capital stock, in the amount of R$219,510,000.00 be approved, pursuant to Article 173 of Law No. 6,404/76, without cancellation of shares, resulting in a reduction from R$2,740,661,187.74 to R$2,521,151,187.74, with the delivery to the Company’s shareholders, of
1 common share issued by Tenda for each 1 common share issued by Gafisa, owned by the shareholder, after reverse split, excluding the treasury shares, totalizing 27,000,000 common shares, issued by Tenda, representing 50% of its total capital stock, with the related amendment to the
caput
of
Article 5 of the Company’s Bylaws.
We propose that the effectiveness of Gafisa’s Capital Stock Reduction be subject to the completion of Tenda’s Capital Stock Reduction, in addition to the compliance with provisions of Article 174 of Law No. 6,404/76.
Gafisa’s shares will be traded ex-capital stock reduction on the business day following the last day of the 60-day term provided for in Article 174 of Law No. 6,404/76.
In compliance with provisions of CVM Instruction No. 481/09, we attach the following documents to this Management Proposal:
·
Exhibit A
– Information indicated in Article 11 of CVM Instruction No. 481/09 related to the amendment to the Company’s Bylaws; e
·
Exhibit B
– Information indicated in Exhibit 16 of CVM Instruction No. 481/09 related to the Company’s Capital Stock Reduction.
São Paulo, February 9, 2016.
The Management
Gafisa S.A.
Exhibit A – Information related to
amendment to the Company’s bylaws
Copy of the Company’s Bylaws with
Amendments Proposed
(Article 11, I of CVM Instruction No. 481/09)
|
Report including the Origin, Justification and Effects
of Amendments Proposed
(Article 11, II of CVM Instruction No. 481/09)
|
CHAPTER I
NAME, HEADQUARTERS, PURPOSE AND DURATION
Article 1.
Gafisa S.A. (the “
Company
”) is a publicly held
corporation, governed by these Bylaws, its Code of Ethics and Conduct and
applicable law and regulations.
Sole Paragraph
.
With the Company admission to the special securities
trading segment of the São Paulo Stock Exchange Commission (
BM&FBOVESPA
S.A. – Bolsa de Valores, Mercadorias e Futuros
) (hereinafter respectively
referred to as “Novo Mercado” and “BM&FBovespa”), the Company, its
shareholders, Managers, and members of the fiscal council, when installed,
shall be subject to the provisions of the BM&FBovespa New Market Listing
Regulation (hereinafter referred to as “Novo Mercado Rules”).
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Article 2.
The Company’s headquarters and forum are located in
the City of São Paulo, State of São Paulo. The Company may, by resolution
adopted either by the board of directors or the executive board, change the
address of its headquarters, and open, transfer and extinguish branches,
agencies, offices, warehouses, representation offices and any other
establishments anywhere within Brazilian territory or abroad.
|
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Article 3
. The Company’s purposes are: (i) to promote and
develop real estate projects of any kind, whether its own or those of third
parties, in the latter case as contractor and agent; (ii) to purchase and
sell real estate of any kind; (iii) to perform civil construction and provide
civil engineering services; and (iv) to develop and implement marketing
strategies for its own or third parties’ real estate projects.
Sole Paragraph
. The Company may hold interests in any other
companies, in Brazil or abroad, upon approval granted by means of a
resolution adopted by the board of directors, except in the situation
provided in Art. 32,
§1, in which case prior
approval of the board of directors will not be required
.
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Article 4
. The Company has an indefinite term of duration.
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|
CHAPTER II
CAPITAL AND SHARES
Article 5.
The capital of the Company is
R$2,521,151,187.74
2,740,661,187.74
, which is fully subscribed and
paid-in, divided into 28,040,162
common
shares, all registered, book-entry and without par value.
§1
. The cost of share transfer services
charged by the account agent shall be borne by the shareholders, subject to
such limits as may be imposed by applicable legislation.
§2
. Each common share carries the right to
one vote on resolutions at general meetings of shareholders.
§3
. The Company shall not issue preferred
shares or participation certificates (
partes beneficiárias
).
§4
. For purposes of reimbursement, the
value of the Company’s shares shall be based on the Company’s
economic value, as determined by an appraisal carried out by a specialized
firm appointed in the manner provided for in Article 45 of Corporation Law
.
|
Amendment to the capital stock in order to reflect the Capital Stock
Reduction There are no other legal or economic effects expected.
|
Article 6.
The capital of the Company may be
increased by resolution adopted by the board of directors, without need for
an amendment to these Bylaws. The resolution approving the increase shall fix
the terms and conditions for the issuance of shares, subject to a limit
of 44,500,405 common shares.
Sole Paragraph
. The Company may, within the
limit of its authorized capital and by resolution of the shareholders in a
general meeting, grant share purchase options to (i) its officers, directors
and employees, or (ii) individuals who provide services to it or to any
company under its control
.
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Article 7
. The Company may reduce or exclude the
time period for the exercise of preemptive rights on the issuance of shares,
debentures convertible into shares or subscription bonuses which are placed
by means of sale on a stock exchange, public subscription or share swap in a
public tender offer pursuant to articles 257 to 263 of Corporation Law.
Pursuant to article 171, §3 of Corporation Law, there shall be no preemptive rights
on the grant and exercise of the share purchase options
.
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CHAPTER III
GENERAL MEETING OF SHAREHOLDERS
Article 8
. A general meeting of shareholders
shall be held, on an ordinary basis, in the first four (4) months following
the end of the fiscal year and on an extraordinary basis whenever required by
law or the Company’s interests.
§1
.
G
eneral meetings of
shareholders shall be called in the manner provided for by law. Regardless of
the formalities for calling general shareholders’ meetings, any general
meeting attended by all shareholders shall be considered to have been
regularly called.
§2
.
G
eneral meetings of
shareholders shall be called to order and chaired by the chairman of the
board of directors or, in his absence, by a shareholder appointed by the
shareholders at the general meeting. The chairman of the general meeting
shall choose one of those present at the meeting to act as secretary.
§3.
Prior to the call to order, the
shareholders shall sign the “Book of Attendance” (
Livro de Presença de
Acionistas
), giving their name and residence and the number of shares
they hold.
§4.
The list of shareholders present at the
meeting shall be closed by the chairman immediately after the general meeting
is called to order.
§5.
Shareholders which appear at a general
meeting after the list of shareholders present at the meeting has been closed
may participate in the meeting but shall not have the right to vote on any
resolution.
§6.
The resolutions of the general meeting
shall be taken by the majority of affirmative votes of those present,
provided that the blank
votes shall not be counted, and with the
exception of the cases set forth by law and subject to the provisions set
forth in the main clause of Article 10.
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Article 9.
In addition to the
matters provided for by the law, the shareholders in general meeting shall:
(a)
decide on
the Company’s exit from the Novo Mercado of BM&FBovespa, which shall be
communicated to BM&FBovespa in writing, 30 (thirty) days in advance;
(b)
always
subject to the provisions of Article 11, choose, from among the three
qualified institutions indicated on a list prepared by the board of
directors, the institution which shall be responsible for the preparation of
an appraisal report for shares issued by the Company, for the purposes of
exiting the Novo Mercado, cancellation of the Company’s registration as a
publicly-held company or mandatory public tender offer; and
(c)
resolve
cases on which these Bylaws are silent, subject to the provisions of Corporation
Law
.
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Article 10.
The choice of the
specialized institution or firm responsible for the determination of the
Company’s Economic Value (as defined hereafter), referred to in Article 9 (b)
of these Bylaws,
shall be solely made by the shareholders’ general
meeting, from the submission, by the board of directors, of triple list, and
the respective resolution
shall be made by the
majority of votes cast by holders of Outstanding Shares present at the
general meeting in question, blank votes not being computed. The quorum for
the general meeting shall be shareholders representing at least 20% of the
total number of Outstanding Shares, at first call, and on second call,
shareholders representing any number of Outstanding Shares.
§1.
The appraisal reports mentioned in this
Article 10 shall be elaborated by a specialized firm or institution, with
proven experience and independent as to the power of decision of the Company,
its Managers and/or Controlling Shareholder, in addition to fulfilling the requirements
set forth in §1 of Article 8 of Corporation Law, and shall bear the
responsibility set forth in §6 of the same article.
§2
. For purposes of these Bylaws:
“
Controlling Shareholder
” means the shareholder(s)
or Shareholder Group that exercises Control of the Company;
“
Disposing Controlling Shareholder
” means the
Controlling Shareholder, when it causes a Disposal of Control of the Company;
“
Control Shares
” means the block of shares that
gives, either directly or indirectly, the holder(s) sole or shared Control of
the Company;
“
Outstanding Shares
” means all the shares issued
by the Company, with the exception of shares held by the Controlling
Shareholder, by persons related to the Controlling Shareholder or by the
Company’s Managers and treasury shares;
“Managers”, when appearing in the
singular form, the Company’s officers and members of the board of directors
individually referred, or, when in the plural form, the Company’s officers and
members of the board of directors collectively referred;
“
Purchaser
” means the person to whom the Disposing
Controlling Shareholder transfers Control in a Disposal of Company Control;
“
Disposal of Control
” means the transfer to a
third party, for value, of Control Shares;
“
Shareholder Group
” means a group that (a) are
bound by contracts or vote agreements of any nature, whether directly or
through controlled companies, controlling companies or companies under common
control; or (b) among whom there is a direct or indirect control
relationship; or (c) under common control;
“Corporation Law” the Law no. 6.404, of December 15, 1976, and all of
the subsequent amendments thereto;
“
Control
” means the power effectively used to
direct corporate activities and orient the functioning of the Company’s
corporate bodies, whether directly or indirectly and whether de facto or de
jure, regardless of the equity interest held. There is a relative presumption
that the person or Shareholder Group holding shares that gave it an absolute
majority of votes of the shareholders present at the last 3 (three) general
shareholders’ meetings holds Control, even if such person or Shareholder
Group does not hold an absolute majority of the Company’s voting capital;
“Statement of Consent from Managers” means the document by which the
Company Managers personally undertake to be subject to and act in accordance
with the Novo Mercado Agreement (
Contrato de Participação no Novo Mercado
),
the Novo Mercado Listing Rules, the Regulation of Sanctions and the
Arbitration Clause and the Arbitration Rules, which document shall also be
valid as Arbitration Clause,
in the form set out in
Exhibit A to the Novo Mercado Rules;
“
Statement of Consent from
Controlling Shareholders
” means the instrument by which the new
Controlling Shareholders, or shareholders which join the control group of the
Company, assume personal liability for complying with the Novo Mercado
Agreement (
Contrato de Participação no Novo Mercado
), the Novo Mercado
Rules, the Regulation of Sanctions, the Arbitration Clause and the
Arbitration Rules, in the form set out in Exhibit B to the Novo Mercado
Rules;
“Economic Value” the value of the Company and its shares to be
determined by specialized firm, availing of acknowledged methodology, or
based on another criterion to be established by the Brazilian Securities and
Exchange Commission (hereinafter referred to as “CVM”).
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Article 11.
In the event the Company
exits the Novo Mercado or its registration as a publicly-held company is
cancelled, the costs incurred for the preparation of the appraisal report
referred to in Article 9 (b) shall be borne entirely by the Controlling
Shareholder or by the Company, if the Company is offeror, as applicable
.
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Article 12.
The general meeting may
suspend the exercise of rights, including the voting right, of the
shareholder or Shareholder Group that fails to comply with legal or
regulatory obligations, as well as those provided under these Bylaws.
§1.
The shareholders representing a minimum of
5% of the Company’s capital may call the general meeting referred to in the
main clause of this Article 12, when the board of directors does not respond,
within 8 days, to a request for calling it, indicating the violated obligation
and the identification of the shareholder or Shareholder Group in default.
§2.
The general meeting which approves the
suspension of the shareholder’s rights shall be incumbent of establishing,
among other aspects, the scope and the term of the suspension, provided that
the suspension of the right of supervision and the right to demand
information, as provided in law, may not be suspended.
§3.
The suspension of rights shall cease when
the violated obligation is performed
.
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CHAPTER IV
MANAGEMENT
SECTION IV.I. - GENERAL RULES
Article 13.
The Company is managed by
the board of directors (
Conselho de Administração
) and the executive
board (
Diretoria
)
.
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Article 14.
The members of the board
of directors and the executive board shall be invested in their respective
offices within thirty days from the date they were appointed, unless a
justification is accepted by the corporate body for which they have been
appointed, by signing an instrument of investiture in the appropriate book,
and shall remain in office until the investiture of the newly-elected members
of the Company’s management
.
Sole Paragraph.
The investiture of the
members of the board of directors and the board of executive officers in
their respective offices is conditional upon, without prejudice to the
compliance of legal requirements applicable, (i) the prior execution of the
Statement of Consent from Managers (
Termo de Anuência dos Administradores
)
provided for under the Novo Mercado Rules; and (ii) adherence to the Manual
for Disclosure and Use of Information and Policy for Trading in Securities
Issued by the Company (
Manual de Divulgação e Uso de Informações e
Política de Negociação de Valores Mobiliários de Emissão da Companhia
),
by executing an instrument to that effect
.
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Article 15.
The shareholders in
general meeting shall determine, on an individual or global basis, the
remuneration of the Company’s Managers and members of its advisory
committees. Where the remuneration is fixed on a global basis, the board of
directors shall determine the amounts to be paid to each individual. Where
applicable, the board of directors shall also distribute the share in profits
fixed by the shareholders in general meeting
.
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Art. 16.
In performing its attributions and as a parameter of
the performance of their duties and legal responsibilities, the Company’s
management bodies must rest, strictly on the observation of the following
principles and guidelines, without prejudice of others that may be suggested
by the Corporate Governance
and Compensation Committee and approved by the board of directors:
(a)
the Company’s management
shall be performed in a professional way, aligned with the shareholder’s
interests, but without association to any particular interests of any shareholder
or Shareholder Group individually considered;
(b)
the powers conferred, through
these Bylaws, to the management bodies, especially those related to the rules
for appointing the candidates for the board of directors and to the appraisal
of the terms of a public tender offer, will be exercised strictly according
with the Company’s and its shareholders’ best interests, and with the
principles set forth herein;
(c)
the existence of the powers
mentioned in the item (b) above is based on the shareholders’ interests as a
whole, and its only function is to attend and maximize such interests, in
case such becomes necessary in view of the Company’s continuity and
generation of long-term value;
(d)
the powers set forth in item
(b) above cannot be used, under any circumstances, for the private benefit of
any shareholder, Shareholder Group, director, officer or group of directors
and/or officers;
(e)
the powers mentioned above,
as well as its objectives, cannot be understood and have no function
whatsoever of serving as an obstacle to the development of Control by any
shareholder or Shareholder Group, and as such, the board of directors shall
exercise its competence set forth in Article
58
in such a way as to
allow that the eventual development of Control enables the creation of higher
value to the Company’s shareholders, within the time horizon it believes to
better serve the shareholders’ interests considered as a whole;
(f)
the
Company’s management shall be performed transparently, with extensive
internal and external provision of the information required by law,
regulations or by these Bylaws;
(g)
the strict enforcement of the
law and the accounting standards, and the most rigid ethics standards shall
be observed by all members of the Company’s management in performing their
functions, and they shall responsible for ensuring that the other employees
and collaborators of the Company and its controlled companies also observe
the same standards;
(h)
the compensation of the
members of the Company’s management and its senior employees must support,
above all, delivery of results and long-term value creation, as well as the
retention of talents, and it must be structured in a way as to prevent any
kind of privilege, distortion with respect to market standards or mechanism
that may hamper or impair the achievement of the corporate interest;
(i)
the
management shall be responsible for the development of internal politics and
practices to attract and retain the best talents and to cause the Company to
count with highly qualified human resources, also encouraging the
achievements of goals and promoting meritocracy; and
(j)
no member
of the management may have access to information, participate in meetings of
any other management body, exercise voting rights or in any way intervene in
matters that are, directly or indirectly, in situations of conflicting
interests with the interests of the Company or when it may be particularly
benefited in any way
.
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SECTION IV.II. - BOARD OF
DIRECTORS (CONSELHO DE ADMINISTRAÇÃO)
Composition
Article 17.
The board of directors is
composed of at least five (5) and no more than nine (9) effective members
(being permitted the election of alternates), all of whom shall be elected
and removable by the shareholders in general meeting, with a unified term of
office of two (2) years, re-election being permitted
.
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Article 18.
From the members of the board of directors, no less
than twenty percent (20%) shall be Independent Members, expressly declared as
such in the minutes of the shareholders’ general meeting electing them, and
the director(s) elected according to the faculty provided for by Article 141,
§§ 4 and 5, and Article 239, of the Corporation Law, shall be likewise deemed
independent director(s).
§1.
When,
due to
the
observance of
the percentage
referred
to
in the
main
clause of this Article
18
, the election results in
fractional number
of directors,
the
shareholders in general meeting
shall round it to
whole number
:
(
i)
immediately above,
when
the fraction is equal
to
or greater than
0
.
5
(five decimals)
,
or
(
ii) immediately below
when
the fraction is
less
than 0.5 (five decimals)
.
§2.
For purposes of these Bylaws, “Independent
Member” is one who: (i) has no relationship with the Company except for an
interest in its capital; (ii) is not a Controlling Shareholder, nor a spouse
or relative up to the second degree of the Controlling Shareholder, and is
not now and has not been, in the past three years, related to the company or
entity related to the Controlling Shareholder (persons related to public
institutions of education and/or research are excluded from this
restriction); (iii) has not been, in the past three years, an employee or
officer of the Company, the Controlling Shareholder or a company controlled
by the Company; (iv) is not a direct or indirect supplier or purchaser of the
Company’s services and/or products of the Company, in a degree that implies
loss of independence; (v) is not an employee or member of the management of
the Company or entity offering services and/products to, or requesting
services and/or products from, the Company, as material that will implicate
in loss of independence; (vi) is not a spouse, or relative up to the second
degree of any of the Company’s officers or directors; and (vii) does not
receive any other kind of remuneration from the Company
other than that arising from its term of office as board member (cash
earnings generated by holdings in the Company’s capital are excluded from
this restriction).
§3.
The position of chairman of the board of directors and chief
executive officer or main officer of the Company may not be accumulated by
the same person.
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Functioning
Article 19.
The board of directors
shall have a chairman, who shall be elected by the favorable vote of a
majority of the effective members. In the event of incapacity or temporary
absence of the chairman, the chairmanship shall be assumed by the member
previously designated by the chairman, or, in the absence of a previous
designation, by such member as the remaining members shall appoint
.
§1.
As set forth in Article 150 of Corporation Law, in case of vacancy
of a sitting member of the board of directors, not resulting in composition
lower than the majority of the offices of the body, in accordance with the
number of incumbent directors resolved by shareholders’ general meeting, the
remaining members of the board of directors, assisted by the Corporate Governance and Compensation
Committee shall (i) indicate
one substitute, who shall remain in the office until the next general meeting
to be held after that date, when a new board member shall be elected to
finish the mandate; (ii) opt
for leaving vacant the office of the vacating member, provided that the
number of members set forth in the
caput
of this Article is complied
with. An Independent Member, shall only be substituted by another Independent
Member.
§2.
In case of vacancy in the majority of positions of
the board of directors, a general meeting to elect the replacements, which
will complete the term of the replaced members, shall be called within 15
days of the event.
§3.
For the purposes of these Bylaws, vacancy will
occur in case of death, permanent incapacity, resignation, removal or
unjustified absence of the board member for more than three consecutive
meetings.
§4.
Respecting the provision of the
caput
of this Article in
relation to the chairman, in case of the temporary absence of any member of
the board of directors, such member shall be replaced by another board member
appointed by the absent member, holding a power-of-attorney with specific
powers. In this case, the substitute of the absent board member, besides his
own vote, shall state the vote of the absent board member. An Independent
Member shall only be substituted by another Independent
Member.
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Article 20.
The board of directors
shall meet at least bimonthly. Meetings of the board of directors shall be
called by the chairman, or by at least two effective members, by written
notice containing the agenda for the meeting, in addition to the place, date
and time of the meeting. Board of directors’ meetings shall be called at
least five days in advance. Regardless of the formalities for calling
meetings, any meeting attended by all members of the board of directors shall
be considered to have been regularly called
.
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Article 21.
The quorum for board of
directors’ meetings shall be four members. Resolutions shall be adopted by
the favorable vote of a majority of members present at the meeting, and the
chairman shall have, in addition to his own vote, a casting vote in the event
of a tie.
§1.
The decisions of the
board of directors shall be recorded in minutes, which shall be signed by the
members present at the meeting.
§2.
Directors may take part
at meetings of the board of directors by telephone or videoconference, and,
in that event, shall be considered to be present at the meeting and shall
confirm their vote by written statement sent to the chairman by letter,
facsimile transmission or e-mail immediately after the end of the meeting.
Upon receipt of statement of confirmation, the chairman shall have full
powers to sign the minutes of the meeting on behalf of the member in
question.
§3.
The chief executive officer
shall
attend
all
m
eetings
of the
b
oard of directors
,
providing
clarification
as
needed.
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Powers
Article 22.
In addition to such other
powers and duties conferred on it by law and these Bylaws, the board of
directors shall have powers to:
(a)
fix the general direction of
the Company’s business;
(b)
define
the strategic directions that should
guide the preparation of the annual budget and business plan of the Company,
to be prepared by the executive board;
(c)
approve the Company’s annual
operating budget and business plan, and any changes thereto (provided,
however, that until such new budget or plan has been approved, the most
recently approved budget or plan shall prevail);
(d)
attribute, from the global
amount of remuneration fixed by the shareholders in general meeting, the
monthly remuneration of each of the members of the Company’s management and
advisory committees, in the manner provided for in Article 15 of these
Bylaws;
(e)
nominate a slate for the election of the
board of directors;
(f)
elect and
remove the Company’s officers and determine their powers and duties, in
accordance with the provisions of these Bylaws and ensuring
that
such
positions
are
always
occupied
by
trained people
,
familiar
with
the
activities of the Company and its controlled
companies
,
and also able
to
implement
its
business
plans
,
long-term goals
,
and
ensure
the
continuity
of
the Company;
(g)
supervise the officers’
management of the Company, examine at any time the Company’s books and
documents, and request information on contracts entered into or about to be
entered into by the Company and any other acts;
(h)
determine the general
remuneration criteria and the benefit policies (indirect benefits, shares in
profits and/or sales) for the senior management and those holding management
positions in the Company;
(i)
instruct
the votes related to the global remuneration of management to be cast by
Company’s representative at the general meeting of shareholders of the
companies where the Company holds an equity interest, except for the
wholly-owned subsidiaries or special purpose companies;
(j)
in
accordance with a plan approved by the shareholders in general meeting, grant
share purchase options to the Company’s officers, directors or employees, or
to individuals who rendered services to the Company or to any company under
its control, with the exclusion of shareholders’ pre-emptive rights over the
grant of such share purchase options or the subscription of the corresponding
shares;
(k)
call general shareholders’
meetings;
(l)
submit to
the shareholders in general meeting any proposed amendment to these Bylaws;
(m)
issue its opinion on the
executive board’s management report and accounts, and authorize the
distribution of interim dividends;
(n)
attribute to the Company’s
directors and officers their share in the profits shown on the Company’s
balance sheets, including interim balance sheets, subject always to the
limits and other provisions under the law and these Bylaws;
(o)
authorize any change in the
Company’s accounting or report presentation policies, unless such change is
required by the generally accepted accounting principles in the jurisdictions
in which the Company operates;
(p)
appoint and dismiss the
Company’s independent auditors;
(q)
approve the issue of shares
or subscription bonuses up to the limit of the Company’s authorized capital,
determining the issue price, the manner of subscription and payment and other
terms and conditions for the issuance, and determining also if preemptive
rights over the shares to be issued shall be granted to shareholders in the
case provided for in the Article 7 of these Bylaws;
(r)
approve
the issuance of debentures of any species and characteristics and with any
guarantees, provided that
,
in the case
of
debentures convertible into shares
, the
limit
authorized
for the issuance
of
common
shares,
provided
for
in
Article
6
hereof, is complied with
;
(s)
approve the Company’s
acquisition of its own shares, to be held in treasury or for cancellation;
(t)
approve
business transactions and contracts of any kind between the Company and its
shareholders, directors and/or officers, or between the Company and the
direct or indirect controlling shareholders of the Company’s shareholders,
except if provided in the annual budget or business plan then in effect;
(u)
authorize, in advance: (i)
the execution by the Company of any contract, including, for the purposes of
illustration, contracts for the acquisition of assets or interests in other
companies; or (ii) the grant, by the Company, of loans, financing or real or
personal security in favor of its controlled companies (with the exception of
special purpose companies in which the Company holds 90% or more of the total
and voting capital) or third parties, provided always, in the cases
contemplated in items (i) and (ii) above, that the contracts involve
transactions with a term greater than 48 (forty-eight) months (with the
exception of contracts with public utilities providers and other contracts
which have uniform terms and conditions, which shall not be subject to prior
approval by the board of directors) or an amount greater than R$15,000,000.00
or 1.5% of the Company’s total consolidated assets
(the “Reference Value”);
(v)
authorize
the acquisition, alienation, transfer, assignment, encumbrance or other form
of disposal, including contribution to the capital of another company, for
any reason, of a substantial part of the Company’s non-current assets,
non-current assets being understood to be the set of assets on which the
Company’s business is based, in amounts greater than the Reference Value (as
defined in item (u) above), when such transactions are not provided for in
the annual budget;
(w)
approve, in advance, any
application by the Company for a decree of bankruptcy or judicial or
extrajudicial recovery;
(x)
determine the list of three
companies specialized in economical valuation, to be submitted to the general
shareholders meeting for the purposes of Article 9, (b) of these Bylaws, for
the preparation of the appraisal report of the Company’s shares for purposes
of public offer of shares, cancellation of registration as a publicly-held
company registration, exiting the Novo Mercado or mandatory public tender
offer, in the cases provided under these Bylaws; and
(y)
issue its opinion in advance,
making it public and observing the rules laid out in Article 58 hereof, on
the terms of any public tender offer that having as purpose the acquisition
of shares of the Company, whether such an offer is made pursuant to law or
regulation in force, or in accordance with Article 53 hereof.
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SECTION
IV.III. - EXECUTIVE BOARD (
DIRETORIA
)
Article 23.
The executive board is the corporate body that
represents the Company, and is responsible for performing all acts of
management related to the Company’s business.
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Article 24.
The executive board is not a collegiate
body, but it may meet whenever necessary to deal with operational and
strategic matters, at the discretion of the chief executive officer, who
shall also chair the meeting.
Sole Paragraph.
The quorum for meetings of the executive board is a
majority of the Company’s officers.
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Article 25.
In the event of a vacancy on the executive board,
or incapacity of an officer, the board of directors shall elect a new officer
or appoint a substitute from among the remaining officers, and in both cases
shall fix the term of office and remuneration of the new officer or
substitute.
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Article 26.
The executive board is composed of at least two (2)
and no more than eight (8) officers, all resident in Brazil, who may but need
not be shareholders. The officers shall be elected by the board of directors
for a term of three (3) years, re-electing being permitted, and may be
removed by it at any time.
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Article 27.
The
officers of the Company shall be appointed as chief executive officer (
diretor
presidente
), investor relations officer (
diretor de relações com
investidores
), chief executive financial officer (
diretor executivo
financeiro
) and chief
executive operating officer (
diretor executivo operacional
).
Accumulation
of functions is allowed.
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Article 28
. The duties of the chief executive officer are:
(a)
to submit for approval by the
board of directors the annual and/or five-year work plans and budgets,
investment plans and new programs to expand the Company and companies
controlled by Company, causing the plans, budgets and programs to be carried
out on the approved terms;
(b)
to submit to the board of directors,
after the opinion of the Audit Committee and fiscal council, the latter when
installed, the management report and financial statements of the Company,
being responsible for their content;
(c)
to formulate the Company’s
operating strategies and directives based on the general orientation provided
by the board of directors;
(d)
to establish the criteria for
executing the resolutions adopted at the general shareholders’ meetings and
meetings of the board of directors, with the participation of the other
officers;
(e)
to coordinate and supervise
the work of the executive board, and to call and chair its meetings;
(f)
to
develop, together with the Corporate Governance and Compensation Committee,
the succession plans referred to in Article 38, item (l), hereof;
(g)
attend meetings of the board
of directors and the general meeting, as provided in these Bylaws and the
applicable law;
(h)
to represent the
Company towards
shareholders,
investors
,
customers
,
media
,
society
and
towards legal
,
business and government
agencies
,
protecting
the
interests
of the organization
as well as
its
image
; and
(i)
to supervise all the
Company’s activities, and also other powers conferred upon it by the board of directors.
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Article 29.
In addition to such other functions as may be
assigned by the board of directors, the investor relations officer is
responsible for providing information to investors, CVM and BM&FBovespa,
and for maintaining the Company’s registration, forms, records and other
documents, up to date, in accordance with the regulations issued by the CVM
and other regulatory or self-regulating agencies.
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Article 30.
The duties of the chief executive
financial officer are:
(a)
to be responsible for the Company’s
budget control and management, monitoring indicators and analyzing reports to
consolidate the budget, aiming to reach budget goals and to provide key
managerial information;
(b)
to submit to the board of directors,
after the opinion of the Audit Committee and fiscal council, the latter when
installed,
the management report and financial
statements of the Company, being responsible for their content;
(c)
to ensure that the Controller’s
department, including the control of management and of costs, provides
indicators for decision-making, detecting elements that may influence the
Company’s results;
(d)
to be responsible for the control of cash
flow and investments aiming to maximize the financial result, within risk
levels previously established by the Company;
(e)
to ensure the efficient control of the
bank loans operations of the customers (bank transfer) in the deadline
established, and be responsible for paying taxes and procedures supervision;
(f)
to perform
investments feasibility studies related to new business, mergers and acquisitions
in order to give support for decision-making;
(g)
to ensure proper management of the
Company’s financial resources, as well as the relation between assets and
liabilities through risk analysis of changes in the cost of liabilities in
order to ensure the financial health of the Company;
(h)
to define strategies and guidelines for
the Company, through annual planning of actions and elaboration of budget,
together with other officers, aiming the goals established by the Company;
(i)
to participate in the
executive board meetings (Article 24), in order to take decisions and define
strategies jointly with the other officers, aiming at the Company’s
development and success; and
(j)
to represent the
Company towards
shareholders,
investors
,
customers
,
media
,
corporations,
the society
and towards legal
,
corporate and governmental bodies
,
protecting
the
interests
of the
organization as well as its
image.
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Article 31.
The duties of chief executive operating officer, in
addition to such other functions as may be assigned by the board of
directors:
(a)
to promote the
development of Company’s activities, pursuant to its corporate purpose, in
addition to the activities of other officers;
(b)
to coordinate the Company’s and its
subsidiaries’ activities, observing the duties and responsibilities of other
officers;
(c)
to coordinate the performance of its area
and specific liabilities with those of the other officers;
(d)
ensure the execution of projects through
the planning, management and supervision of works, aiming at ensuring the
compliance with the physical and financial schedule, assuring the quality
standard established by the Company and within regulated environmental
guidelines;
(e)
attract and develop businesses, by means
of the identification, market studies and competitive intelligence and market
prospect, aiming at sustaining the Company’s competitiveness and
profitability;
(f)
be liable for the
domestic technical management by monitoring the entire technical assets
including projects, costs, logistics, planning, security and sustainability
aiming at ensuring the evolution of projects according to the physical and
financial schedule established;
(g)
be liable for market studies through the
identification of regional factors, economic and physical feasibility
analyses for the project development, with a view to subsidizing the land
acquisition;
(h)
submit the purchase of land and/or stake
in projects for approval by executive or advisory committees of the board of
directors, eventually created for such purpose;
(i)
monitor the progress
of projects and support to the works, involving from preliminary phase until
the delivery of work, aiming at cooperating to achieve the results
established in terms of quality, financial return and customer satisfaction;
(j)
ensure the correct
observance and compliance with the environmental laws and requirements in the
acquisition of land, interest or project launches;
(k)
ensure the correct delivery of projects
to clients, being liable for delivering entire related legal documentation,
complying with the guidelines set out by the Company;
(l)
be liable for
creating and developing new products nationwide through marketing analyses,
innovation, technical feasibility studies, interacting with other areas
involved in the process with a view to launching different products in the
market;
(m)
monitor the domestic and international
markets, especially competitors, with respect to the development of new
technologies and/or new practices or products, seeking to maintain the
Company’s competitiveness;
(n)
define the guidelines of new partnerships
or entities in order to make feasible new projects, complying with the
policies and strategies previously established by the Company;
(o)
define guidelines to approve new partners
in the building sector, being liable for monitoring the costs, terms and
quality of services rendered by these partners, as well as partner’s
environmental management and survey of entire related documentation to be
submitted;
(p)
conduct the budgetary management of the
Company’s areas under his responsibility and from time to time supervising
and monitoring management and costs, aiming at ensuring the compliance with
the budget established;
(q)
monitor and be liable for variations in
the success or failure of projects, results contracted and projected, through managerial reports, aiming at
conducting continued improvements to the Company’s processes;
(r)
be liable for keeping
the continued upgrade and technical evolution of his staff, besides promoting
the motivation of these professionals;
(s)
position the Company in the market by
developing and maintaining its image and its products, in order to keep its
visibility with its current and potential clients; and
(t)
to represent the
Company towards customers, media, the society and legal, business and
government bodies, protecting the interests of the organization and watching
over its image.
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Art. 32.
The
Company shall be represented, and shall only be considered to be validly
bound, by the act or signature of:
(a)
any two officers;
(b)
any officer acting jointly with an
attorney-in-fact with specific powers; or
(c)
two attorneys-in-fact with specific
powers.
§1.
The Company shall be represented in accordance with the immediately
preceding provisions of this Article 33 in the incorporation of, or
acquisition of interests in, special purpose companies (SPCs) and/or
consortiums which have as their corporate purpose the planning, promotion,
development, income generation and sale of real estate projects.
§2º.
The Company may be severally represented by only one Officer or
attorney-in-fact with specific powers, without the formalities provided for
in this Article 33, in the practice of the following acts:
(a)
for the purposes of
receiving service of process or notice, giving testimony or the Company
representation in court and in administrative proceedings;
(b)
the Company representation at general
meetings and partners’ meetings of entities in which it holds interest; and
(c)
the practice of administrative routines,
inclusive before public, state, federal agencies, and of the Federal
District, environmental, financial institutions, mixed-economy entities,
independent governmental agencies, boards of trade, labor court, INSS
(Brazilian Social Security Institute), Internal Revenue Service, Federal
Savings Bank, Caixa Seguros, FGTS (Government Severance Indemnity Fund for
Employees), payment banks and others of same nature and notary offices in general.
§3.
Powers of attorney shall always be granted or revoked by any two
officers, who shall establish the powers of the attorney-in-fact. Except in
the case of powers of attorney granted to represent the Company in legal
proceedings, powers of attorney shall not have a term of more than two (2) years.
§4.
The Board of Directors may authorize the practice of specific acts
binding the Company by the signature of only one Officer or an
attorney-in-fact regularly empowered, or also, establish the competence and
authority for the practice of acts by a single representative.
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SECTION IV. -
ADVISORY COMMITTEES
Article 33.
The board of directors shall have, as advisory
bodies, an Audit Committee and
a Corporate Governance and Compensation Committee, which shall, within their competence, provide subsidies
to the decisions of the board of directors and, if the latter so determine, assist
the executive board in implementing internal policies approved by the board of
directors.
§1.
Since these are advisory bodies, the committees’ decisions mean
recommendations to the board of directors, which shall be accompanied by
related grounds for the board of directors’ decision-making process.
§2.
The board of directors may determine the creation of other advisory
committees, defining its composition and specific powers.
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Art. 34.
The Advisory Committees shall meet regularly,
deciding by a simple majority of its members.
§1.
The meetings of the Advisory Committees
may be held jointly amongst committees, or with the board of directors,
should it be deemed necessary given the nature of matter.
§2.
Each Advisory Committee will have, among
its members, a chairman who will manage the tasks of the Committee,
organizing the agenda of its meetings, overseeing the drafting of the
correspondent minutes, informing the board of directors about the Committee's
work and acting along with the executive board in the necessary assistance to
the implementation of internal policies within the scope of its duties.
§3.
Resolutions and statements of each
Advisory Committee shall be drawn up in books to be open and kept by the
Company at its headquarters.
§4.
In performing their duties, the Advisory
Committees shall have full access to the information they need and shall have
the appropriate administrative structure and resources to hire independent
advice, at its discretion and under conditions, including those of
remuneration, that may be hired directly by the members of the Advisory
Committees.
§5.
Whenever necessary, the members of the executive board or of the
board of directors can be invited to participate in the meetings of the
Advisory Committees.
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Audit
Committee
Article 35.
The Audit Committee is permanent composed of, at
least, 3 members, all of them Independent Board Members.
§1.
In any case, members of the Audit
Committee shall meet the requirements set forth in §2 of Article 18 hereof,
as well as the other requirements of independence and experience in matters
relating to accounting, auditing, finance, taxation and internal controls
required by the Securities and Exchange Commission (“SEC”) and the New York
Stock Exchange (“NYSE”), and at least one of the members shall have vast
experience in accounting and financial management.
§2.
The members of the Audit Committee shall be appointed by the
Nominating and Corporate Governance Committee and elected by the board of
directors for a term of two years, with reelection being allowed.
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Art.
36.
It is incumbent on the Audit Committee,
amongst other functions that may be assigned to it by board of directors or
that are required by SEC and NYSE rules, always reporting to the board of
directors in the exercise of its functions, to:
(a)
recommend the
independent auditors to the preparation or publication of audit opinion or
other services related to audit, review and certification, approving their
remuneration and scope of contracted services;
(b)
supervise the work of
independent auditors;
(c)
review and approve
the scope(s) of the annual(s) audit plan(s) of independent auditors;
(d)
evaluate the
qualifications, performance and independence of auditors;
(e)
establish guidelines
for the hiring, by the Company, of employees or former employees of a company
that has provided audit services to the Company;
(f)
at least once a year,
evaluate performance, responsibilities, budget and staffing of the internal
audit function of the Company, as well as reviewing the internal audit plan
(including reviewing the responsibilities, budget and staff of internal audit
function of the Company together with its independent auditors);
(g)
review and discuss
with Company management and independent auditors, in separate or joint
meetings, the annual audited financial statements;
(h)
review, together with
management, the Company’s general policies on disclosure of results as well
as on guidance on the financial information and earnings provided to analysts
and credit risk rating agencies, including, in each case, the type of
information to be disclosed and the type of presentation to be made, with
special attention to usage of financial information not provided for in generally accepted accounting principles;
(i)
review, periodically,
together with the Company's management and independent auditors, in separate
or joint meetings: (i) any reviews or other written communications prepared
by management and/or by independent auditors, containing relevant questions
on the disclosure of financial information or understandings adopted in the
preparation of financial statements; (ii) the critical accounting policies
and practices of the Company; (iii) transactions with related parties, as
well as the operations and structures not reflected in financial statements;
(iv) any relevant issues regarding accounting principles and presentation of
financial statements, including any significant changes in the choice or
application of accounting principles by the Company, and (v) the effect of
initiatives or acts, applicable to the Company, by authorities of an
administrative nature or in charge of accounting rules;
(j)
review, together with
the chief executive officer and the chief executive financial officer, the
Company’s procedures and controls of disclosure, as well as internal controls
related to the financial reports, including the statement of any significant
deficiencies and relevant flaws in the design or operation of internal
controls related to the financial reports, which are reasonably likely to
affect the Company's ability to record, process, summarize and report
financial information, as well as any fraud involving members of management
or other employees who have significant role in the internal control related
to the financial reports;
(k)
consider and discuss
with the independent auditors any audit problems or difficulties, as well as
management's response to those, such as: (i) restrictions to the scope of
independent auditors activities, or to the access to required information;
(ii) accounting adjustments that were not subject to reservation notice or
proposal by the auditor, but that have been analyzed for its relevance or
other reason; (iii) communications between the audit team and the auditing
firm’s national office in respect to auditing or accounting issues raised by
contracting, and (iv) any opinion to the management or letter on internal
controls issued by the auditor, or intended to be issued by the auditor;
(l)
settle any
disagreements between management and any independent auditors, in relation to
the Company's financial reports;
(m)
review the Company’s
policies and practices for purpose of risk assessment and risk management,
including through discussion with management of the major financial risks to
which the Company is exposed, and the measures implemented to monitor and
control such exposures;
(n)
assist the board of
directors in carrying out oversight functions of the executive board;
(o)
review the Company's
Code of Ethics and Conduct, as well as the procedures adopted for monitoring
the conformity with it, including procedures for receiving, preserving and
treating complaints received by the Company regarding accounting matters,
auditing or internal accounting controls as well as procedures for
submission, by employees of the Company, on an anonymous and confidential
basis, of issues of concern regarding questionable accounting or auditing
matters;
(p)
review annually the
conformity with applicable law and Code of Ethics and Conduct, including
through a review of any reports prepared by lawyers representing the Company,
addressing the relevant law violation or breach of fiduciary duty;
(q)
analyze possible
conflicts of interest involving members of the board of directors, as well as
provide opinion on whether any such directors should vote in any matter that
may give rise to conflict of interests or not, and
(r)
analyze any
complaints regarding accounting, auditing and internal accounting controls
matters received in accordance with the procedures above.
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Corporate
Governance and Compensation Committee
Article 37.
The Corporate Governance and Compensation Committee is
permanent, composed of, at least, 3 members, all of whom shall be Independent
Members.
§1.
It is desirable that at least one (1) of the members of the
Corporate Governance and Compensation Committee have previous experience with management of human
resources, and with the development of functions related to the establishment
of compensation policies, corporate goals and with personnel recruitment and
retention.
§2.
The Corporate Governance and Compensation Committee shall be elected by the Board of Directors for a
term of two years, with reelection being allowed.
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Article
38.
It is incumbent upon
the Corporate Governance and Compensation Committee, amongst other functions
that may be assigned to it by board of directors, to:
(a)
propose to the board
of directors, and annually review, the parameters and guidelines and the
consequent policy of compensation and other benefits to be granted to the
Company's officers, members of the Advisory Committees and other advisory
bodies of the board of directors, as well as to senior employees of the
Company and its controlled companies;
(b)
annually propose to
the board of directors the compensation of the Company's officers, to be
submitted to the general meeting of shareholders;
(c)
propose to the board
of directors the orientation of votes to be cast as provided in Article 22,
item (i);
(d)
recommend for
approval by the board of directors, the allocation of the overall amount of
the compensation fixed by the shareholders’ general meeting, of the monthly
fees for each of the members of the management, the Advisory Committees, and
other advisory bodies of the Company;
(e)
review and recommend,
to the approval of the board of directors, in regard to each officer of the
Company, its: (i) annual salary level; (ii) annual compensation incentive and
long term compensation incentive; (iii) conditions applicable for its hiring,
resignation and change of position; and (iv) any other type of compensation,
indemnification and benefits;
(f)
recommend, to the
approval of the board of directors, the prior approval of implementation,
change in conditions or granting made in accordance with the long-term
compensation incentive plan of the officers and employees, including the
granting of stock options to officers and employees or persons providing
services to the Company and to companies controlled by the Company;
(g)
recommend, to the
approval of the board of directors, the allocation, to the Company's
officers, of their profit-sharing compensation, as based in the earnings
stated in the balance sheets drafted by the Company, including interim
balance sheets, respecting the limitations and provisions provided by law and
in these Bylaws; and
(h)
review, and submit to
the board of directors, the goals and aims related to the officers and senior
employees compensation plan, monitoring its implementation and performing the
evaluation of performance of such officers and senior employees in the face
of such goals and aims;
(i)
identify qualified
persons to become members of the board of directors and board of executive
officers and appoint these candidates to the board of directors, observing
the legal, regulatory rules hereof in relation to requirements and
impediments and Management election;
(j)
identify qualified
persons for other senior executive positions at the Company and its
subsidiaries, appointing them to the board of directors;
(k)
recommend the
appointment of members of the Audit Committee and other advisory committees;
(l)
develop jointly with
the chief executive officer, succession plans so that to ensure that
positions at the Management bodies are always held by qualified persons,
acquainted with the activities of the Company and its subsidiaries, and
competent to implement its business plans, its objectives in the long term
and ensure the continuity of the Company;
(m)
develop, review and
advise the board of directors on the wording of the Manual for Disclosure and
Use of Information and Policy for Trading in Securities Issued by the
Company, as well as other in-company’s policies related to corporate
governance deemed necessary;
(n)
periodically review the responsibilities
of all Advisory Committees and other advisory bodies and advise on any
amendment proposal to the board of directors;
(o)
continuously monitor
and ensure the compliance with the Company’s corporate governance guidelines
and principles, proposing improvements and alterations;
(p)
prepare an annual
report related to the performance of its duties, evaluating the performance
of members of the board of directors and board of executive officers, the
compliance with the Company’s corporate governance guidelines and other
matters the Nominating and Corporate Governance Committee deems relevant, as
well making recommendations as to the number of members, composition and
operation of the Company’s bodies; and
(q)
propose actions
related to corporate sustainability and social responsibility, as well as
develop strategies to maintain or add value to the Company’s institutional
image.
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CHAPTER V
FISCAL COUNCIL (
CONSELHO FISCAL
)
Art. 39.
The fiscal council shall not be permanent,
being installed at the request of shareholders and shall have the powers,
duties and responsibilities established by law. The fiscal council shall
cease functioning at the first general shareholders’ meeting following its
formation, and its members may be re-elected
.
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Art. 40.
The fiscal council is composed of at least three (3)
and up to five (5) effective members, with an equal number of alternates, all
elected by the shareholders in general meeting.
§1.
The remuneration of the members of the fiscal council shall be fixed
at the general shareholders’ meeting at which they are elected.
§2.
The investiture of the members of the fiscal council members is
conditional upon their execution of the Statement of Consent from Fiscal
Council Members (
Termo de Anuência dos Membros do Conselho Fiscal
)
provided for under the Novo Mercado Rules.
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Art. 41.
The fiscal council shall meet whenever necessary, at
the call of any of its members, and its resolutions shall be recorded in minutes.
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CHAPTER VI
FISCAL YEAR, BALANCE SHEET AND RESULTS
Art. 42.
The fiscal year shall begin on January
1st and end on December 31st of each year. At the end of each fiscal year and
each calendar quarter, the financial statements provided for by law shall be
prepared
.
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Art. 43.
The
Company, by resolution of the board of directors, may draw up half-yearly,
quarterly or monthly balance sheets, and declare dividends on account of the
profits shown on such balance sheets. The Company, by resolution of the board
of directors, may also declare interim dividends on account of accumulated
profits or profit reserves shown on the last annual or half-yearly balance
sheet.
§1.
The Company may pay interest on its own capital, to be credited to
annual or interim dividends.
§2.
The dividends and interest on its own capital distributed under the
terms of this Article 43 shall be attributed to the mandatory dividend.
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Art. 44.
Prior to any distribution, any accumulated losses
and provision for income tax shall be deducted from the profits for the year.
§1.
From the amount calculated in accordance with this Article, the
profit shares of the members of the Company’s management shall be calculated,
subject to the legal maximum, to be distributed according to the rules
established by the board of directors.
§2.
After the deduction referred to in the preceding paragraph, the
following allocations shall be made from the net profits for the year:
(a) 5% (five percent) to the legal reserve, until the legal reserve
is equal to 20% (twenty percent) of the paid-up capital or attains the limit
established in Article 193, §1 of Corporation Law;
(b) from the
remaining net profits for the year, after the deduction referred to in item
(a) of this Article 44 and the adjustment provided for in
Article 202 of Corporation Law, 25% (twenty-five percent) shall be allocated
to payment of the mandatory dividend to all shareholders; and
(c) an amount not
greater than 71.25% (seventy-one and twenty-five one-hundredths percent) of
the net profits shall be allocated to the creation of an Investment Reserve,
for the purpose of financing the expansion of Company’s and of its controlled
companies’ business, through subscribing for capital increases, creating new projects
or participating in consortiums or other types of association, among other
means of achieving the Company’s corporate purpose.
§3.
The reserve established in item (c) of §2 of this Article 44
47
may not exceed 80% (eighty percent) of the Company’s capital. Should the
reserve reach such limit, the shareholders in general meeting decide on the
allocation of the excess, either distributing it to the shareholders or using
it to increase the capital of the Company.
§4.
After the distribution provided for in the previous paragraphs, the
shareholders in general meeting shall determine the
allocation of the remaining balance of the net profits for the year, after
hearing the board of directors and subject to applicable law.
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CHAPTER VII
CONTROL AND ABSENCE OF CONTROL
Art. 45.
Any Disposal of Control of the Company, in either a single
transaction or a series of transactions, shall be contracted subject to a
condition, either precedent or subsequent, under which the Acquirer of
Control undertakes to make a public tender offer for the shares of the
remaining shareholders in accordance with applicable law and the Novo Mercado
Rules and on terms that ensure equal treatment with the Disposing Controlling
Shareholder
.
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Article 46.
The public tender offer referred to in Article 45
shall also be made
(a) in
the event of an assignment for value of rights to subscribe for shares or
other securities or rights convertible into shares, which assignment results
in a Disposal of Control of the Company; or
(b) in
the event of the disposal of control of a company that holds Control of the
Company, in which case the Disposing Controlling Shareholder shall be
obligated to declare to BM&FBovespa the value attributed to the Company
in the disposal and to submit documentation to prove the declared value.
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Article 47.
Any
person which acquires Control by reason of a private purchase agreement made
with the Controlling Shareholder involving any number of shares is required
to:
(a) make
the public tender offer referred to in Article 45;
(b) pay,
as set forth herein, the amount equivalent to the difference between the
price paid on the public tender offer and the amount paid by share eventually
acquired in the stock exchange for a six-month period prior to the
acquisition of Control, duly adjusted for inflation until date of payment.
Said amount shall be distributed amongst all people who sold Company’s shares
on the trading days the Acquirer of Control carried out the acquisitions, in
the proportion of daily net selling balance for each of them, and
BM&FBovespa shall be responsible for operating the distribution,
according to its regulations; and
(c) take
such action as may be necessary to restore the Minimum Free Float of the
Company’s Shares within the six (6) months following the acquisition of
Control. For the purposes of this item, “Minimum Free Float of the Company’s
Shares” means the Shares of the Company under negotiation, necessary for the
Company to be admitted in the Novo Mercado, a percentage that shall be kept
during the whole period that Company’s securities are registered for trading
in Novo Mercado, which should be at least 25% (twenty-five percent) of the
total outstanding shares of the Company.
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Article 48.
The Company shall not record (i) any transfer of
shares to the Purchaser, or to any other person(s) which acquire Control
until such time as they have executed the Statement of Consent from
Controlling Shareholders (
Termo de Anuência dos Controladores
)
referred to in the Novo Mercado Rules; or (ii) in its headquarters, no
shareholders’ agreement that provides for the exercise of Control, until the
signatories to the agreement have executed the Statement of Consent from
Controlling Shareholders.
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Article 49.
In
the event of cancellation of the Company’s registration as a publicly-held
company or its exit from the Novo Mercado, due to listing of the Company’s
shares for trading off the Novo Mercado or in virtue of a corporate
reorganization in which the resulting company’s securities are not admitted
for trading on the Novo Mercado within the term of one hundred and twenty
(120) days counted from the general meeting which approves the
reorganization, the public tender offer to be made by the Controlling
Shareholder, or the Company, or by the shareholders referred to in Article 51
(b), items “i” and “ii”, as applicable, shall do a public tender offer for
the acquisition of shares of the remaining shareholders, offering at least
the Economic Value determined in the appraisal report drafted in accordance
to Article 9, item (b), and in observance of applicable law and regulations.
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Article 50.
In
case there is no Controlling Shareholder:
(a) whenever
the shareholders in general meeting approve cancellation of the Company’s
registration as a publicly-held company, the public tender offer shall be
made by the Company itself, by the minimum price correspondent to the
Economic Value determined in the appraisal report drafted in accordance to
Article 9, item (b), and in observance of applicable law and regulations,
provided, however, that the Company may acquire shares held by shareholders
which voted in favor of cancellation of the Company’s registration at the
general meeting at which the cancellation was approved only after it has
acquired the shares held by the shareholders which did not vote in favor of
cancellation and which accept the public tender offer; and
(b) in
case it is approved the Company’s exit from the Novo Mercado, due to listing
of the Company’s shares for trading off the Novo Mercado or in virtue of a
corporate reorganization in which the resulting company’s securities are not
admitted for trading on the Novo Mercado within the term of one hundred and
twenty (120) days counted from the general meeting which approves the
reorganization, the Company’s exit from Novo Mercado shall be conditioned to
the public tender offer in the same conditions as described in Article 49 above;
i. Said
shareholders’ general meeting shall determine the person(s) in charge of
making the public offer for the acquisition of shares, which (who), present
at the meeting, shall expressly assume the obligation to make the offer;
ii. In
the event that the persons in charge of making the public offer for the
acquisition of shares cannot be determined, in the case of the operation or
corporate reorganization, in which the company resulting from such
reorganization does not have its securities admitted to trading in the Novo
Mercado, the shareholders which / who voted for the corporate reorganization
shall make said offer.
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Article 51.
In
case the Company has no Controlling Shareholder and BM&FBovespa
determines that the price of securities issued by the Company shall be quoted
separately, or that trading in securities issued by the Company on the Novo
Mercado shall be suspended by reason of non-compliance with obligations under
the Novo Mercado Rules, the chairman of the board of directors shall call,
within the two (2) days following the determination (counting only the days
on which the newspapers habitually used by the Company are issued), an
extraordinary general shareholders’ meeting to replace the entire board of directors.
§1
In the event the extraordinary general shareholders’ meeting referred
to in this Article 51 is not called by the chairman of the
board of directors within the two-day time period, the meeting may be called
by any shareholder of the Company.
§2.
The new board of directors elected at the extraordinary general
shareholders’ meeting referred to in the preceding provisions of this Article 51 shall cure the non-compliance with the obligations
under the Novo Mercado Rules in the shortest period of time possible or
within the new time period granted by BM&FBovespa for this purpose,
whichever is shorter.
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Article 52.
The
Company’s exit from the Novo Mercado due to the noncompliance with the
liabilities contained in the Novo Mercado Rules is subject to the making of
public offer for the acquisition of shares, at least, for the Economic Value
of the shares, determined in the appraisal report drafted in accordance to
Article 9, item (b), and in observance of applicable law and regulations.
§1.
The Controlling Shareholder shall make the public offer for the
acquisition of shares provided for in the
caput
of this Article 52.
§2.
In case the Company has no Controlling Shareholder, where the
Company exits the Novo Mercado by the reason referred to in the
caput
of this Article 52 resulting
from:
(a)
a resolution adopted at a general meeting
of shareholders, the public tender offer shall be made by the shareholders
which voted in favor of the resolution that resulted in non-compliance; and
(b) an
act or event of Management, the Management shall call a general meeting to
decide on the manner of solving the non-compliance and on the possible exit
of the Company from Novo Mercado. In case the general meeting decides that
the Company shall exit the Novo Mercado, the general meeting shall determine
the person(s) in charge of making the public offer for the acquisition of
shares as set forth in
caput
, which (who), present at the meeting,
shall expressly assume the obligation to make the offer.
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CHAPTER VIII
PUBLIC TENDER OFFER FOR PURCHASE OF SHARES IN CASE OF
OBTAINING A RELEVANT EQUITY STAKE
Article 53.
Any
shareholder or Group of Shareholders (“Relevant Shareholder”) who comes to
obtain: (a) a direct or indirect equity stake equal to or higher than 30% of
the total shares issued by the Company; or (b) title to any other partners’
or equity rights, including by way of usufruct, that enables it to have
voting rights pertaining to shares issued by the Company and which represent
30% or more of its corporate capital, shall (i) give immediate notice, by
means of a statement to the investors relations officer, in accordance with
CVM Instruction No. 358/02, of such acquisition; and (ii) make a public
tender offer for acquisition of the shares held by the remaining shareholders
of the Company.
§1.
The Relevant Shareholder shall, within the final deadline of 45 days
counted from the date of the statement mentioned in Article 53, promote the publication of a tender offer
announcement for the acquisition of the totality of the shares issued by the
Company and held by the other shareholders, in accordance with the provisions
of Corporation Law, the regulations enacted by CVM and stock exchanges in
which the securities issued by the Company are traded, and with the rules
established in these Bylaws.
§2.
The Relevant Shareholder shall comply with any requests or demands
by the CVM within the terms established under the applicable regulation.
§3.
The price to be offered for the shares issued by the Company subject
to the tender offer (“
Offer Price
”) shall be equivalent, at least, to
the Economic Value, determined in accordance with an appraisal report made
pursuant to the provisions of Article 9, item (c), and of Article 10.
§4.
The tender offer must necessarily comply with the following
principles and procedures, together with others, whether applicable, and as
expressly established in Article 4 of CVM Instruction No. 361/02 or any other
regulation that comes to replace it:
(a) it
shall be directed equally to all shareholders of the Company;
(b) it shall be effected by an auction
to be held on BM&FBovespa;
(c) it shall be performed in a manner
as to assure equal treatment to all recipients, allowing them to obtain
adequate information about the Company and the offeror and providing them
with the elements required for taking an informed and independent decision in
regard of tendering their shares;
(d) it shall be immutable and
irrevocable after the publication of the tender offer announcement, in
accordance with CVM Instruction No. 361/02, except for what provided in
Article 54, §2;
(e) it shall be launched at the price
determined in accordance with the provisions of this Article 53 and settled
in cash, in national currency; and
(f) it shall be instructed with the appraisal report of
the Company referred to in §3 above.
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Article 54.
The shareholders with title to at least 10% of the
shares issued by the Company, excluding from such total the shares held by
the Relevant Shareholder, may request to the management of the Company that a
special general meeting is called to decide on the performance of a new
appraisal of the Company for means of reviewing the Offer Price, so that a
report is drafted also in accordance with the appraisal report referred to in
Article 53, §4, item (f), and pursuant to the procedures provided under
Article 4-A of Corporation Law and subject to the provisions of the
applicable regulations enacted by CVM and of this Chapter.
§1.
In the special general meeting referred to in Article 54, all shareholders, except for the Relevant Shareholder,
shall be entitled to vote.
§2.
In case the special general meeting referred to in this Article 54 decides that a new appraisal shall be performed and
such new report comes to establish a value higher than that initially applied
to the tender offer, the Relevant Shareholder may withdraw the public tender
offer, and in this case it shall comply, if applicable, with the procedure
set forth in Article 28 of CVM Instruction No. 361/02, or any other rule that
comes to replace it, and also dispose of the excess shares within a term of 3
months counted from the date of said special general meeting.
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Article 55.
The requirement to make a mandatory tender offer under
Article 53 does not exclude the possibility of
another shareholder of the Company or, if the case, of the Company itself to
make another offer, whether competing or isolated, and in accordance with
applicable regulations.
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Article 56.
The
obligations applicable under Article 254-A of Corporation Law and under
Article 45 do not exclude the need for the Relevant
Shareholder to comply with the obligations applicable under this Chapter.
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Article 57.
The
requirement to make a mandatory tender offer under Article 53 shall not be applicable in the
following cases:
(a) when
a Controlling Shareholder, who held more than fifty percent (50%) of the
Company’s capital immediately prior to the obtaining of the 30% equity stake
by the Relevant Shareholder, remains in the Company;
(b) if
the 30% equity stake is obtained by the Relevant Shareholder as a result of
purchases made under another public tender offer for the acquisition of
shares, made in accordance with the Novo Mercado Rules or with the applicable
law, and which had as purpose the acquisition of all the shares issued by the
Company, provided that such tender offer shall have been effected for a price
at least equal to the Offer Price;
(c) if
the 30% equity stake is obtained by the Relevant Shareholder (i)
involuntarily, as a result of any cancellation of shares in treasury, share
redemption or capital reduction of the Company with cancellation of shares;
or (ii) by a subscription of shares made under a primary offer and in reason
of the fact that such amount was not fully subscribed by the ones entitled to
preemptive rights or of the fact that there was not a sufficient number of
interested parties for the public distribution; or (iii) as a result of a
merger, consolidation or share exchange merger (
incorporação de ações
)
involving the Company; and
(d) in
the case of a Disposal of Control of the Company, in which case the rules
provided under Chapter VII of these Bylaws shall be observed.
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Article 58.
If any announcement of a public tender offer for
acquisition of all shares issued by the Company is published, whether made in
accordance with this Chapter VIII or in accordance with the applicable law
and regulations, and whether settled in cash or by an exchange of securities
issued by a publicly-held company, the board of directors shall meet within
10 days to assess the terms and conditions of the offer is made, and
complying with the following principles:
(a) the board of directors may hire
specialized external advisors, meeting the requirements of Article 10, §1,
with the purpose of providing advice in the analysis of the convenience and
opportunity of the offer, in consideration of the general interest of the
shareholders and of the economic industry of the Company and its controlled
companies, and of the liquidity of the securities offered, if the case;
(b) the board of directors shall
pronounce for or against the terms of the public offer in analysis, which
shall be made through prior grounded opinion disclosed no later than fifteen
(15) days upon the publication of the notice of the public offer for the
acquisition of shares, which shall include, at least, (i) the convenience and
timely nature of the public offer for the acquisition of shares as to the
interest of the group of shareholders, and in relation to the liquidity of
the securities held thereby; (ii) the repercussions of the public offer for
the acquisition of shares on the Company’s interests; (iii) the strategic
plans disclosed by the offeror in relation to the Company; (iv) other points
the board of directors deem relevant, as well as the information required by
the applicable rules set forth by the Brazilian Securities and Exchange
Commission (“CVM”); and
(c) the public tender offer shall be immutable and
irrevocable, but it may conditioned by the offeror, in case of a voluntary
offer, upon the minimum acceptance of shareholders that hold at least 2/3 of
the Company’s shares, excluding those in treasury.
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Article 59.
In
case the Relevant Shareholder does not comply with the obligations required
under this Chapter, including in regard of compliance with the deadlines (i)
for making the statement referred to in Article 53; (ii)
for making or requesting registration of the public tender offer; or (iii)
for complying with any requests or demands by the CVM, then the board of directors
of the Company shall call an extraordinary general meeting, in which the
Relevant Shareholder shall not be entitled to vote, to decide on the
suspension of exercise of the Relevant Shareholder rights, in accordance with
Article 120 of Corporation Law.
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CHAPTER IX
LIQUIDATION
Article 60.
The Company shall be dissolved and enter into liquidation in the
cases provided for by law, and the shareholders in general meeting shall
establish the manner of liquidation and install the fiscal council, which
shall function during the period of liquidation. The board of directors shall
appoint the liquidator or liquidators and establish their powers and
remuneration
.
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CHAPTER X
ARBITRATION
Article 61.
The Company and its shareholders, Managers and members of the
fiscal council are obligated to resolve by arbitration before the Arbitration
Chamber of Market, any and all dispute or controversy which may arise between
or among them arising out of or connection with, in particular, the application,
validity, effectiveness, interpretation or violation (and the effects
thereof) of the provisions of Corporate Law, these Bylaws, rules and
regulations issued by the National Monetary Council, the Central Bank of
Brazil, CVM or the Securities and Exchange Commission, and any laws, rules or
regulations applicable to the operation of the securities market in general,
in addition to the provisions of the Novo Mercado Rules, the Arbitration
Rules, the Regulation of Sanctions and the Novo Mercado Participation
Agreement
.
Sole Paragraph.
For the purposes of the provisions in the
caput
of this Article 61, the terms “Arbitration Rules” and
“Regulation of Sanctions” employed above shall have the meanings assigned
thereto as follows:
“Arbitration Rules” means the Rules of the Arbitration Chamber of the
Market, including its later alterations, which rule the arbitration procedure
to which all conflicts set forth in the arbitration clause set forth in the
caput
of Article 61 of these Bylaws and contained in the
Managers’ Consent, Majority Shareholders’ Consent, and that of the members of
the fiscal council, shall be conducted; and
“Regulation of Sanctions” means the Regulation for Application of
Pecuniary Sanctions of the Novo Mercado, including later amendments thereto,
which rule the application of sanctions in the cases of total or partial
noncompliance with the liabilities arising out of the Novo Mercado Rules.
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CHAPTER XI
GENERAL PROVISIONS
Article 62.
The Company shall comply with Shareholders’ Agreements registered in accordance with Article 118 of Corporation Law. The Company’s management shall refrain from recording the transfer of shares made contrary to such Shareholders’ Agreements and the chairman of general shareholders’ meetings and board of directors meetings shall not count votes cast in violation of such Shareholders’ Agreements
.
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Article 63.
The provisions of the Novo Mercado Rules shall supersede the provisions in the Bylaws in the hypotheses of loss to the rights of those the public offer provided for in these Bylaws are intended to.
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Exhibit B – Information Related To The Company’s Capital Stock Reduction
1. Inform the reduction amount and the new capital stock
·
Reduction amount: R$219,510,000.00
·
New capital stock:
R$2,521,151,187.74
2. Explain, in details, the reasons, the form and reduction outcome
As disclosed in the material facts of February 7, 2014, April 29, 2015, August 16, 2016 and December 14, 2016, the Company’s management has been conducting studies and analyzing opportunities to separate the business units of the Company and Tenda, its wholly-owned subsidiary, so that these entities become two publicly-held and independent companies.
After analyzing the available options during such period, the Company’s management decided to sell 50% of the shares representing Tenda’s total capital stock and deliver the remaining 50% of shares representing Tenda’s total capital stock to Gafisa’s shareholders by means of the Gafisa’s Capital Stock Reduction.
We propose that Gafisa’s Capital Stock Reduction is made without cancellation of Gafisa’s shares, in consideration, the Company’s shareholders, will receive
1 common share issued by Tenda for each 1 common share issued by Gafisa, owned by the shareholder, after the reverse split (subject-matter of the agenda of the extraordinary shareholders’ meeting summoned for 10 a.m. of February 20, 2017), excluding the treasury shares, totalizing 27,000,000 common shares issued by Tenda, representing 50% of its total capital stock
.
Once Gafisa’s Capital Stock Reduction and the sale are completed, Tenda will no longer be a wholly-owned subsidiary of Gafisa and will have its shares listed on the traditional segment of BM&FBOVESPA – Bolsa de Valores, Mercadorias e Futuros S.A.
3. Provide a copy of the fiscal council’s report, if operational, when the proposal to reduce capital stock is an initiative of management
The effective members of the Company’s Fiscal Council, in the exercise of their duties pursuant to item III of Article 163 of the Law No. 6,404/76 and, within the scope of its authority, analyzed the proposal to reduce the Company’s capital stock in the total amount of R$219,510,000.00, resulting in a reduction from R$2,740,661,187.74 to R$2,521,151,187.74, without cancellation of shares, pursuant to Article 173 of Law No. 6,404/76, for being deemed as excessive in relation to the Company’s purpose, with the delivery to the Company’s shareholders, at the proportion of their equity interest in the Company’s capital stock, of 27,000,000 common shares representing 50% of the total capital stock of Construtora Tenda S.A., a publicly-held company enrolled with
CNPJ/MF under No. 71.476.527/0001-35, NIRE 35.300.348.206 (“
Reduction of Capital Stock
”), issued their favorable opinion for the approval of the Reduction of Capital Stock by the Company’s shareholders convened at the Extraordinary Shareholders’ Meeting, under the terms of the Management Proposal.
The Fiscal Council Opinion was executed by Olavo Fortes Campos Rodrigues Júnior, Peter Edward Cortes Marsden Wilson and Laiza Fabiola Martins de Santa Rosa, current sitting member of Gafisa’s Fiscal Council, on January 9, 2017.
4. Inform, if applicable: (a) the refund amount per share; (b) the decrease amount of share value to the relevance of inflows, in case of unpaid capital; or (c) the number of shares, purpose of reduction.
(a) the refund amount per share:
We propose that the Gafisa’s Capital Stock Reduction is made without cancellation of Gafisa’s shares, in consideration, the Company’s shareholders will receive
1 common share issued by Tenda for each 1 common share issued by Gafisa, owned by the shareholder, after reverse split (subject-matter of the agenda of the extraordinary shareholders’ meeting summoned for 10 a.m. of February 20, 2017), excluding treasury shares, totalizing 27,000,000 common shares, issued by Tenda, representing 50% of its total capital stock
.
(b) the decrease amount of share value to the relevance of inflows, in case of unpaid capital:
Not applicable.
(c) the number of shares, purpose of reduction.
Not applicable.
** ** **
SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned, thereunto duly authorized.
Date: February 10, 2017
Gafisa S.A.
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By:
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Name: Sandro Gamba
Title: Chief Executive Officer
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