SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 6-K
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.
CNPJ/MF n
°
01.545.826/0001-07
NIRE 35.300.147.952
Publicly-held Company
MINUTES OF THE EXTRAORDINARY SHAREHOLDERS’ MEETING
HELD ON FEBRUARY 20, 2017, AT 10:00 A.M.
1.
Date, time and place
. On February 20, 2017, at 10:00 a.m., at the headquarters of Gafisa S.A. (“
Company
”), in the City of São Paulo, State of São Paulo, at Avenida das Nações Unidas, 8.501, 19º andar.
2.
Call Notice
. Second call notice published on February 10, 11 and 14, 2017, in the newspaper “
Diário Oficial do Estado de São Paulo
” on pages 46, 21 and 51, respectively, and in the newspaper “
O Estado de São Paulo
” on pages B12, B8 and B4, respectively.
3.
Attendance
. Shareholders representing 55.07% of the Company’s voting capital, as verified in the “Shareholders Attendance Book” signatures. Messrs. Sandro Rogério da Silva Gamba and André Bergstein, the Company’s officers and Mr. Olavo Fortes Rodrigues Junior, member of the Company’s Fiscal Council also attended the meeting.
4.
Composition of the Board
. Mr. Odair Garcia Senra, Chairman of the Board of Directors and Chairman of the Board, pursuant to Paragraph 2, Article 8 of the Company’s Bylaws; and Renata de Carvalho Fidale, Secretary.
5.
Agenda
. (i) Amendment to Article 5 of the Company’s Bylaws in order to reflect the capital increases and cancellations of shares approved by the Board of Directors until the date of this Extraordinary Shareholders’ Meeting; (ii) reverse split of common shares issued by the Company, at the ratio of 13.483023074 to 1, and proportional adjustment to the limit of authorized capital; and (iii) restatement of the Company’s Bylaws to improve the governance structures and reflect the alterations purpose of items (i) and (ii) above, as detailed in the Management Proposal released on January 9, 2017.
6.
Resolutions
: The following resolutions were taken, with abstentions and dissenting votes registered in each case, authorizing the drawing up of these minutes in the summary format and publication by omitting shareholders’ signature, as authorized by Article 130, Paragraphs 1 and 2 of Law No. 6.404/76:
(i)
Approve by majority vote, computing 128,714,118 favorable votes, 141,772 dissenting votes and 79,333,320 abstentions, the amendment to Article 5 of the Company’s Bylaws, in order to reflect the amendments promoted by the Board of Directors in the capital stock, within the scope of its responsibilities, as described below, referred Bylaws amendment differing from other resolutions:
·
capital stock increase, within the limit of authorized capital of R$1,635,174.14, resulting in the issue of 357,494 common shares, approved at the Board of Directors’ Meeting held on December 17, 2012;
·
capital stock increase, within the limit of authorized capital of R$887.56, resulting in the issue of 88,756 common shares, approved at the Board of Directors’ Meeting held on April 15, 2013;
·
capital stock increase, within the limit of authorized capital of R$4,862,130.00, resulting in the issue of 1,781,000 common shares, approved at the Board of Directors’ Meeting held on May 21, 2013;
·
capital stock increase, within the limit of authorized capital of R$2,808.72, resulting in the issue of 280,872 common shares, approved at the Board of Directors’ Meeting held on July 15, 2013;
·
capital stock increase, within the limit of authorized capital of R$1,787.94, resulting in the issue of 178,794 common shares, approved at the Board of Directors’ Meeting held on December 17, 2013;
·
cancellation of 11,993,039 treasury common shares approved at the Board of Directors’ Meeting held on November 18, 2014;
·
cancellation of 15,500,000 treasury common shares, approved at the Board of Directors’ Meeting held on December 3, 2014; and
·
cancellation of 30,000,000 treasury common shares, approved at the Board of Directors’ Meeting held on February 2, 2015.
(ii)
Approve by majority vote, computing 128,696,966 favorable votes, 167,400 dissenting votes and 79,324,844 abstentions, and referred Bylaws amendment differing from other resolutions, the reverse split of all common shares issued by the Company, pursuant to Article 12 of Law No. 6.404/76, at the ratio of 13.483023074 to 1 (“
Reverse Split
”), then the 378,066,162 common shares issued by the Company now represent 28,040,162 common, registered and non-par shares. Also, as a result of the Reverse Split approved herein the following is resolved:
(a) to adjust, at the same ratio (rounding down), the number of shares the Company’s Board of Directors is authorized to issue, regardless of the Bylaws amendment, from 600,000,000 to 44,500,405 common shares; and
(b) to conduct the reserve split, at the same ratio, of the Company’s common shares deposit certificate issued within the scope of the American Depositary Shares program sponsored by the Company (“
ADSs
”) (so that the proportion between ADSs and common shares remain unaltered). The ADRs reverse split procedures will be processed by Citibank, N.A., in the capacity of depositary institution of the Company’s ADS program, and referred Bylaws amendment differing from resolution referred to by item (iii) below.
Finally, a 30-day term will be granted, to initiate on February 21, 2017, so that shareholders owning common shares may adjust their respective positions in multiple lots of 13.483023074 shares, by means of negotiation at
BM&FBOVESPA. Once elapsed
the 30-day term to the Company’s shareholders adjust their position, the share
fractions resulting from reverse split will be grouped in whole numbers and
sold in as much auctions as necessary, to be appropriately held at BM&FBOVESPA,
and the amounts resulting from the sale of share fractions made available to respective
shareholders after sale financial settlement.
(iii)
Approve
by majority vote, computing 128,725,710 favorable votes, 120,960 dissenting
votes and 79,342,540 abstentions, the amendment and restatement of the
Company’s Bylaws, which now are an integral part of these minutes of the
Meeting as
Exhibit II
, for the purposes mentioned below, amongst other
formal adjustments to the wording, renumbering and cross reference:
(a)
amend
the wording of Article 5 in view of resolutions taken in items (i) and
(ii) above,
so that the Company’s capital stock amount R$2,740,661,187.74, fully subscribed
and paid-up, divided into 28,040,162 common, registered, book-entry, non-par
shares;
(b)
amend
the wording of Article 6 in view of the Reverse Split approved under the terms
of item (ii) above;
(c)
amend
the wording of Articles 16, 19 and 28, alter and renumber former Articles 34,
38 and 39, exclude former Articles 40 and 41, aiming at (1) simplifying
the Company’s administrative structure, by joining the Compensation Committee
and the Nomination and Corporate Governance Committee, and restate their
related responsibilities; (2) include a requirement that committees’
recommendations should be accompanied by respective grounds, so that to allow
the decision-making process by the Board of Directors; and (3) include a requirement
that the Company’s Corporate Governance and Compensation Committee shall be
permanent;
(d)
amend
Articles 27, 31, 32 and 33, in order to (1) reflect current split of
positions and responsibilities of the Company and (2) allow the Company’s
isolated representation in cases of smaller complexity; and
(e)
alter
and renumber former Article 36, in order to expressly declare that the
Company’s audit committee shall be permanent.
7.
Approval
and Closing
. With no further matters to be discussed, these
minutes were prepared and, after revised and unanimously approved by members of
the Board and by attending shareholders.
Signatures
:
Chairman
:
Odair Garcia Senra;
Secretary
: Renata de Carvalho Fidale;
Company’s
Officers
: Sandro Rogério da Silva Gamba and André Bergstein;
Fiscal
Council member
: Olavo Campos Rodrigues Junior;
Shareholders
: (i)
ODAIR GARCIA SENRA; (ii) SANDRO ROGÉRIO DA SILVA GAMBA; (iii) ANDRÉ BERGSTEIN;
(iv) RENATA DE CARVALHO FIDALE; (v) GERSON COHEN; (vi) ADRIANA FARHAT;
(vii) TEOREMA FUNDO DE INVESTIMENTO DE AÇÕES and TEOREMA GAFISA FUNDO DE INVESTIMENTO
EM AÇÕES, represented by Mr. André Bergstein, (viii) PATRIA PIPE MASTER FUNDO
DE INVESTIMENTO EM AÇÕES, BRAZILIAN EQUITY I, LLC, PADOVA FUNDO DE INVESTIMENTO
MULTIMERCADO INV EXT – CRD PRV, represented by Mr. Flávio
Uchôa Teles de Menezes; (ix) FATOR MASTER FIA, FUNDO FATOR SINERGIA V FIA, AMP
FUNDO DE INVESTIMENTO EM AÇÕES, CUCAÇÃO FUNDO DE INVESTIMENTO EM AÇÕES, MOPYATA
FUNDO DE INVESTIMENTO EM AÇÕES, CLUBE DE INVESTIMENTOS RHINO, CLUBE DE
INVESTIMENTOS GALP, CLUBE DE INVESTIMENTO ESCALADA, CLUBE DE INVESTIMENTO G60,
represented by Mr. Demian Heringer de Almeida; (x) CITIBANK N A ADR DEPARTMENT,
OPTIMIX WHOLESALE GLOBAL SMALLER COMPANIES SHARE TRUST, PUBLIC EMPLOYEES
RETIREMENT SYSTEM OF OHIO, RETIREMENT PLAN FOR EMPLOYEES OF AETNA INC,
STICHTING PENSIOENFONDS VOOR HUISARTSEN, VANGUARD TOTAL INTERNATIONAL STOCK
INDEX FD, A S O V STAR F, NEON LIBERTY EMERGING MARKTS FUND LP, ADVANCED SERIES
TRUST - AST GOLDMAN SACHS MULTI-ASSET PORTF, ALPINE EMERGING MARKETS REAL
ESTATE FUND, AXA IM GLOBAL EMERGING MARKETS SMALL CAP FUND, LLC, CALIFORNIA
PUBLIC EMPLOYEES RETIREMENT SYSTEM, CASEY FAMILY PROGRAMS, CITY OF EDMONTON
EQUITY UNIT TRUST, CITY OF NEW YORK GROUP TRUST, DIGNITY HEALTH RETIREMENT PLAN
TRUST, EMERGING MARKETS SMALL CAPITALIZATION EQUITY INDEX FUND, EMERGING
MARKETS SMALL CAPITALIZATION EQUITY INDEX NON-LND F, EMERGING MARKETS SMALL
CAPITALIZATION EQUITY INDEX N-LEND F B, FIDELITY ADVISOR SERIES VIII: FIDELITY
ADVISOR GLOBAL-CAPITAL AP F, FLORIDA RETIREMENT SYSTEM TRUST FUND, FORD MOTOR
COMPANY DEFINED BENEFIT MASTER TRUST, IBM 401 (K) PLUS PLAN, INTERNATIONAL BANK
FOR RECON AND DEVELOP, ATFSRPAT/RSBPAT, ISHARES III PUBLIC LIMITED COMPANY,
ISHARES MSCI BRAZIL SMALL-CAP ETF, ISHARES MSCI EMERGING MARKETS SMALL-CAP ETF,
KAISER PERMANENT GROUP TRUST, LOCKHEED MARTIN CORPORATION MASTER RETIREMENT
TRUST, NORGES BANK, NORTHERN TRUST COLLECTIVE EAFE SMALL CAP INDEX FUN-NON
LEND, NORTHERN TRUST COLLECTIVE GLOBAL REAL ESTATE INDEX FUND-LEN, NORTHERN
TRUST COLLECTIVE GLOBAL REAL ESTATE INDEX F- NO LEN, ORBIS SICAV INTERNATIONAL
EQUITY FUND, OREGON PUBLIC EMPLOYEES RETIREMENT SYSTEM, PARAMETRIC EMERGING
MARKETS FUND, PARAMETRIC TAX-MANAGED EMERGING MARKETS FUND, SPDR S&P
EMERGING MARKETS ETF, SPDR S&P EMERGING MARKETS SMALL CAP ETF, STATE STREET
BANK AND TRUST COMPANY INV FD F TAX EX RET PLAN, STATE STREET BK & TR CO
INV FD F TAX EX RET PL - MSCI EM MSCISLF, TESCO PLC PENSION SCHEME, THE BANK OF
NEW YORK MELLON EMPLOYEE BENEFIT COLLEC INV F PL, THE BOARD OF ADMINISTRATION
OF THE LOS ANGELES CITY EMPL RT S, THE GE UK PENSION COMMON INVESTMENT FUND, UPS
GROUP TRUST, VANGUARD EMERGING MARKETS STOCK INDEX FUND, VANGUARD TOTAL WORLD
STOCK INDEX FD, A SRS OF VG INT EQ IDX FD, VIRGINIA RETIREMENT SYSTEM, WASHINGTON
STATE INVESTMENT BOARD, XEROX CORPORATION RETIREMENT & SAVINGS PLAN, POLO
AÇÕES FUNDO DE INVESTIMENTO EM AÇÕES, POLO FUNDO DE INVESTIMENTO EM AÇÕES, POLO
MACRO FUNDO DE INVESTIMENTO MULTIMERCADO, POLO NORTE MASTER FUNDO DE
INVESTIMENTO MULTIMERCADO, ROSS ICE SHELF, VINSON FUND LLC, ITAU HEDGE
MULTIMERCADO FI, ITAU HEDGE
PLUS MULTIMERCADO FUNDO DE
INVESTIMENTO, ITAU LONG AND SHORT PLUS MULTIMERCADO FUNDO DE INVESTIMENTO, ITAU
MOMENTO AÇÕES FUNDO DE INVESTIMENTO, ITAU MULTIMERCADO GLOBAL EQUITY HEDGE FI
and ITAU MULTIMERCADO LONG AND SHORT FI, represented by Anderson Carlos Koch.
I
certify that this is a true copy of the minutes drawn up in the appropriate
book.
Renata de
Carvalho Fidale
Secretary
|
GAFISA S.A.
CNPJ/MF n
°
01.545.826/0001-07
NIRE 35.300.147.952
Publicly-held
Company
EXHIBIT
I TO THE MINUTES OF THE EXTRAORDINARY SHAREHOLDERS’ MEETING HELD ON FEBRUARY 20,
2017 AT 10:00 A.M.
Final summarized
voting map
Resolution
|
Favorable
|
Against
|
Abstention
|
|
|
|
|
Amendment to Article 5 of the Company’s Bylaws
|
128,714,118
|
141,772
|
79,333,320
|
Reverse split and proportional adjustment to the
limit of authorized capital
|
128,696,966
|
167,400
|
79,324,844
|
Restatement of the Company’s
Bylaws to improve the governance structure and reflect the changes purpose of
other resolutions, as detailed in the Management Proposal released on January
9, 2017.
|
128,725,710
|
120,960
|
79,342,540
|
GAFISA S.A.
CNPJ/MF n
°
01.545.826/0001-07
NIRE 35.300.147.952
Publicly-held
Company
EXHIBIT
II TO THE MINUTES OF THE EXTRAORDINARY SHAREHOLDERS’ MEETING HELD ON FEBRUARY
20, 2017 AT 10:00 A.M.
Restated
Bylaws
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”).
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.
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.
Article 4
. The Company has an indefinite
term of duration.
CHAPTER II
CAPITAL AND SHARES
Article 5
. The capital of the Company is
R$ 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.
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 board of directors 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.
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 stock call options.
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
. General 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
. General 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.
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.
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”).
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.
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.
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).
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.
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.
Article 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 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.
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.
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.
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
absent Independent Member shall only be substituted by another Independent
Member.
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.
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
meetings of the board of directors, providing clarification as needed.
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 not 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 stock
call 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.
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.
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.
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.
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.
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
financial officer (
diretor executivo financeiro
) and chief operating
officer (
diretor executivo operacional
). Accumulation of functions is
allowed.
Article 28
. The duties of the chief
executive officer are to:
(a) 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) 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) formulate the Company’s
operating strategies and directives based on the general orientation provided
by the board of directors;
(d) 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) coordinate and
supervise the work of the executive board, and to call and chair its meetings;
(f) 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) 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) supervise all the
Company’s activities, and also other powers conferred upon it by the board of
directors.
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.
Article 30
. The duties of the chief
financial officer are to:
(a) 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) 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) 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) 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) 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) perform investments
feasibility studies related to new business, mergers and acquisitions in order
to give support for decision-making;
(g) 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) 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) 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) 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.
Article 31
. The duties of chief operating
officer, in addition to such other functions as may be assigned by the board of
directors, are to:
(a) promote the development
of Company’s activities, pursuant to its corporate purpose, in addition to the
activities of other officers;
(b) coordinate the Company’s
and its subsidiaries’ activities, observing the duties and responsibilities of
other officers;
(c) 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) 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.
Article 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 32 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.
§2
. 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 32, 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.
SECTION IV.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.
Article 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.
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.
Article 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 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.
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
. At least one (1) of the members of the Corporate
Governance and Compensation Committee shall 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.
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 Corporate
Governance and Compensation 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.
CHAPTER V
FISCAL COUNCIL (CONSELHO
FISCAL)
Article 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.
Article 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.
Article 41
. The fiscal council shall meet
whenever necessary, at the call of any of its members, and its resolutions
shall be recorded in minutes.
CHAPTER VI
FISCAL YEAR, BALANCE SHEET AND
RESULTS
Article 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.
Article 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.
Article
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 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.
CHAPTER VII
CONTROL AND ABSENCE OF CONTROL
Article 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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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 offers provided for in these Bylaws are intended to.
** ** **
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 20, 2017
Gafisa S.A.
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By:
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Name: Sandro Gamba
Title: Chief Executive Officer
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