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 April, 2018
(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
Consolidated Bylaws
As approved in the Extraordinary Shareholders´ Meeting held
on April 27, 2018 at 10:00 a.m.
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’s inclusion in the Novo Mercado of B3 S.A. – Brazil, Stock Exchange, OTC (“B3”), the Company, its shareholders, including controlling shareholders, managers, and members of the fiscal council, when installed, shall be subject to the provisions of the Novo Mercado Rules.
Article 2
. The Company’s headquarters and forum are 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. 30, §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$ 2,521,318,365.26 which is fully subscribed and paid-in, divided into 44,757,914 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 Law No. 6.404 of December 15, 1976 (“Brazilian Corporation Law”).
Article 6.
The capital of the Company may be increased, irrespective of Bylaws restatement, by resolution adopted by the board of directors. The board of directors shall fix the terms and conditions for the issuance of shares, subject to a limit of 71,031,876 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 the Brazilian
Corporation Law. Pursuant to Article 171, §3 of the Brazilian 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 or impediment, installed and chaired by another
board member, officer or shareholder appointed by the chairman of the board of
directors. 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 9, sole paragraph.
Article 9
. In addition to the
matters provided for by the law, the shareholders in general meeting shall:
(a) waive
the public tender offer as requirement for the Company’s delisting from the
Novo Mercado;
(b) resolve
on the cases not mentioned in these Bylaws, pursuant to the provisions of the Brazilian
Corporation Law, observing the provisions of the Novo Mercado Rules.
Sole
Paragraph
– The resolution to which item (b) of this Article refers shall be taken by
majority vote of shareholders holding outstanding shares attending the meeting,
not computing the absentees’ votes, if installed on first call, it shall rely
on the attendance of shareholders representing, at least, two thirds (2/3) of
total outstanding shares, or, if installed on second call, it may rely on the
attendance of any number of shareholders holding outstanding shares.
Article
10
.
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 10, 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 11
. The Company is
managed by the board of directors (Conselho de Administração) and the executive
board (Diretoria).
Article 12
. 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, which
shall include their submission to the arbitration clause referred to in Article
54 hereof 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, the 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 13
. 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 14
. 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 power of control
by any shareholder or shareholder group, and as such, the board of directors
shall exercise its competence set forth in Article 51 in such a way as to allow
that the eventual power 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 15.
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 16.
From the members of
the board of directors, at least, two (2) or twenty percent (20%) whichever is
higher, shall be independent members, as per definition of the Novo Mercado
Rules, and the characterization of nominees to the board of directors as
independent members to be resolved in the minutes electing them, in the assumption
of existing controlling shareholder, the board member(s) elected according to
the faculty provided for by Article 141, §§ 4 and 5, and Article 239, of the Brazilian
Corporation Law, shall be likewise deemed independent member(s).
§1
. When, due to the
observance of the percentage referred to in the main clause of this Article 16,
the election results in fractional number of directors, the shareholders in
general meeting shall round it to the immediately above whole number.
§2
. The positions 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 17
. 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 the Brazilian 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. The vacancy of 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 18
. 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 19
. 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 20
. 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 13 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) issue
its opinion in advance, making it public and observing the rules laid out in
Article 51 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 46
hereof.
(y) analyze,
at least, yearly, the summarized report prepared by the Company’s Audit
Committee;
SECTION IV.III. - EXECUTIVE
BOARD (DIRETORIA)
Article 21
. 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
22
.
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 23
. 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 24.
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 25
. 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 26
. 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 36, 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 27
. 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 B3, 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 28
. 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 22), 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 29
. 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 30
. 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 30 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 30, 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 31
. 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 32
. 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 33
. The Audit
Committee, an advisory body linked to the board of directors, is permanent
composed of, at least, 3 (three) members, all of them Independent Board Members,
at least, one (1) of them shall have renowned experience in corporate
accounting, pursuant to the rules issued by CVM, which provide for the registry
and performance of independent audit within the scope of the securities market
and set forth the duties and the responsibilities of managers of entities
audited in their relationship with independent auditors.
§1
. In any case,
members of the Audit Committee shall meet the requirements set forth in Article
16 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.
§3
. The attendance of
the Company’s officers, officers of its subsidiaries, its controlling
shareholder, associated companies or entities under common control as members
of the Audit Committee shall be forbidden.
Article 34
. 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)
issue opinion on the
hiring and removal of independent auditing services;
(b)
assess quarterly
information, interim statements and financial statements;
(c)
monitor the internal
audit activities and the Company’s internal controls area;
(d)
assess and monitor
the Company’s risk exposures;
(e)
assess, monitor and
advise Management on the correction or improvement of the Company’s internal
policies, including the related party transactions;
(f)
seek
means to receive and treat information about the non-compliance with legal and
normative provisions applicable to the Company, besides internal codes and
regulations, inclusive providing for specific procedures to protect service
provider and confidentiality of information;
(g)
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;
(h)
supervise the work
of independent auditors;
(i)
review
and approve the scope(s) of the annual(s) audit plan(s) of independent
auditors;
(j)
evaluate
the qualifications, performance and independence of auditors;
(k)
establish guidelines
for the hiring, by the Company, of employees or former employees of a company
that has provided audit services to the Company;
(l)
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);
(m)
review and discuss
with Company management and independent auditors, in separate or joint
meetings, the annual audited financial statements;
(n)
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;
(o)
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;
(p)
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;
(q)
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;
(r)
settle
any disagreements between management and any independent auditors, in relation
to the Company's financial reports;
(s)
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;
(t)
assist
the board of directors in carrying out oversight functions of the executive
board;
(u)
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;
(v)
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;
(w)
yearly, monitor the
compliance with applicable laws and the Code of Ethics and Conduct, inclusive
by means of review of any reports issued by attorneys representing the Company,
including relevant breach of law or breach of fiduciary duty;
(x)
analyze
possible conflicts of interest involving members of the board of directors, as
well as provide opinion on whether any such board members should vote in any
matter that may give rise to conflict of interests or not, and
(y)
analyze any
complaints regarding accounting, auditing and internal accounting controls
matters received in accordance with the procedures above.
Corporate Governance and Compensation
Committee
Article 35
. 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 36
. 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 20, item (i);
(d) recommend
for approval by the board of directors, the allocation of the overall amount of
the compensation fixed by the shareholders’ general meeting, of the monthly
fees for each of the members of the management, the advisory committees, and
other advisory bodies of the Company;
(e) review
and recommend, to the approval of the board of directors, in regard to each
officer of the Company, its: (i) annual salary level; (ii) annual compensation
incentive and long-term compensation incentive; (iii) conditions applicable for
its hiring, resignation and change of position; and (iv) any other type of
compensation, indemnification and benefits;
(f) recommend,
to the approval of the board of directors, the prior approval of
implementation, change in conditions or granting made in accordance with the
long-term compensation incentive plan of the officers and employees, including
the granting of stock options to officers and employees or persons providing
services to the Company and to companies controlled by the Company;
(g) recommend,
to the approval of the board of directors, the allocation, to the Company's
officers, of their profit-sharing compensation, as based in the earnings stated
in the balance sheets drafted by the Company, including interim balance sheets,
respecting the limitations and provisions provided by law and in these Bylaws;
and
(h) review,
and submit to the board of directors, the goals and aims related to the
officers and senior employees’ compensation plan, monitoring its implementation
and performing the
evaluation of performance of such
officers and senior employees in the face of such goals and aims;
(i) identify
qualified persons to become members of the board of directors and board of
executive officers and appoint these candidates to the board of directors,
observing the legal, regulatory rules hereof in relation to requirements and
impediments and Management election;
(j) identify
qualified persons for other senior executive positions at the Company and its
subsidiaries, appointing them to the board of directors;
(k) recommend
the appointment of members of the Audit Committee and other advisory
committees;
(l) develop
jointly with the chief executive officer, succession plans so that to ensure
that positions at the Management bodies are always held by qualified persons,
acquainted with the activities of the Company and its subsidiaries, and
competent to implement its business plans, its objectives in the long term and
ensure the continuity of the Company;
(m) develop,
review and advise the board of directors on the wording of the Manual for
Disclosure and Use of Information and Policy for Trading in Securities Issued
by the Company, as well as other in-company’s policies related to corporate
governance deemed necessary;
(n) periodically
review the responsibilities of all advisory committees and other advisory
bodies and advise on any amendment proposal to the board of directors;
(o) continuously
monitor and ensure the compliance with the Company’s corporate governance
guidelines and principles, proposing improvements and alterations;
(p) prepare
an annual report related to the performance of its duties, evaluating the
performance of members of the board of directors and board of executive
officers, the compliance with the Company’s corporate governance guidelines and
other matters the Nominating and Corporate Governance Committee deems relevant,
as well making recommendations as to the number of members, composition and
operation of the Company’s bodies; and
(q) propose
actions related to corporate sustainability and social responsibility, as well
as develop strategies to maintain or add value to the Company’s institutional
image.
CHAPTER V
FISCAL COUNCIL (CONSELHO
FISCAL)
Article 37
. 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 38
. 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 instrument of investiture, which shall comprise their
submission to the arbitration clause referred to in Article 54 hereof, pursuant
to provisions under the Novo Mercado Rules, as well as the compliance with
applicable legal requirements.
Article 39
. 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 40
. 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 41
. 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 41
shall be attributed to the mandatory dividend.
Article
42. 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 the Brazilian Corporation Law;
(b) from
the remaining net profits for the year, after the deduction referred to in item
(a) of this Article 42 and the adjustment provided for in Article 202 of the
Brazilian 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 42 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, NO POWER OF CONTROL
AND DELISTING FROM THE NOVO MERCADO
Article
43
.
The direct or indirect sale of the Company’s control, in either a single
transaction or a series of transactions, shall be contracted subject to a condition
that the acquirer of control undertakes to make a public tender offer for the
shares aiming the shares issued by the Company held by other shareholders in
accordance with laws, regulations in force in the Novo Mercado Rules and on
terms that ensure equal treatment with the seller.
Article 44
. The voluntary
delisting from the Novo Mercado may occur: (i) irrespective of public tender
offer, in the assumption of waiver approved at the Company’s general meeting,
pursuant to Article 9, item (a) hereof or (ii) if there is no such waiver, if
preceded by a public tender offer which observes the procedures provided for in
the rules issued by CVM on public tender offers for deregistering as a
publicly-held company and the following requirements: (a) the price offered
shall be fair, therefore, being possible the request of new evaluation of the
Company, as provided for in Article 4-A of the Brazilian Corporation Law; and
(b) shareholders holding more than one third (1/3) of the outstanding shares
shall accept the public tender offer or expressly agree with the company’s
delisting from the segment without selling shares.
§1.
For the purposes of
this Article, outstanding shares are only those shares whose holders expressly
agree with the Company’s delisting from the Novo Mercado or are qualified for
the auction of the public tender offer, pursuant to the rules issued by CVM
applicable to public tender offers of publicly-held company for deregistering.
§2.
If the quorum
mentioned in Article 44, item “ii”, subitem (b) is reached: (i) those who
accepted the public tender offer cannot be submitted to apportionment upon sale
of their interest, in compliance with the exemption procedures of the limits
provided for in CVM’s rules applicable to the public tender offers, and (ii)
the offeror shall be required to acquire remaining outstanding shares for
one-(1) month term, as of the date of the auction, by the final price of the
public tender offer, updated until the date of effective payment, pursuant to
the notice and prevailing rules, which shall occur, within no later than
fifteen (15) days as of the date of shareholder’s exercise of such right.
Article 45.
The compulsory
delisting from the Novo Mercado is subject to a public tender offer with same
characteristics of the public tender offer due to the voluntary delisting from
the Novo Mercado, pursuant to previous Article.
CHAPTER VIII
PUBLIC TENDER OFFER FOR
PURCHASE OF SHARES IN CASE OF OBTAINING
A RELEVANT EQUITY STAKE
Article 46
. Any shareholder or
group of shareholders (“Relevant Shareholder”) who comes to obtain: (a) a
direct or indirect equity stake equal to or higher than 50% 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 50% 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 46, 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 the Brazilian 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 fair value, determined in
accordance with an appraisal report made as set forth in applicable rules.
§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 B3;
(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;
(e) it
shall be launched at the price determined 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 47
. 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 pursuant to the procedures provided
under Article 4-A of the Brazilian 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 this Article, all shareholders, except for the
Relevant Shareholder, shall be entitled to vote.
§2
. In case the
special general meeting referred to in the
caput
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 48
. The requirement to
make a mandatory tender offer under Article 46 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 49
. The obligations
applicable under Article 254-A of the Brazilian Corporation Law and under
Article 43 do not exclude the need for the acquiring shareholder to comply with
the obligations applicable under this Chapter.
Article 50
. The requirement to
make a mandatory tender offer under Article 46 shall not be applicable in the
following cases:
(a) if
the 50% 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;
(b) if
the 50% 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
(c) in
the case of sale of control of the Company, in which case the rules provided
under Chapter VII of these Bylaws shall be observed.
Article 51
. 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, 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
also in relation to the price and potential impacts on 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 alternatives to
the acceptance of tender offer in analysis available in the market; and (v)
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 have
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 52
. 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 46; (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 the Brazilian Corporation
Law.
CHAPTER IX
LIQUIDATION
Article 53
. 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 54
. The Company and its shareholders, managers and sitting and alternate members of the fiscal council undertake to resolve by means of arbitration before the Arbitration Chamber of Market, pursuant to its rules, any and all controversy which may arise between or among them arising out of or connection with its condition of issuer, shareholders, managers and members of the Fiscal Council, in particular, deriving from the provisions contained in Law No. 6.385/76, the Brazilian Corporation Law, the Company’s 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, other B3 Rules and Novo Mercado Listing Agreement.
GENERAL PROVISIONS
Article 55
. The Company shall comply with Shareholders’ Agreements registered in accordance with Article 118 of the Brazilian 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 56
. 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: April 30, 2018
Gafisa S.A.
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By:
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Name: Sandro Gamba
Title: Chief Executive Officer
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