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
Consolidated Bylaws
As approved in the Extraordinary Shareholders´ Meeting held
on February 20, 2017 at 11:00 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 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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Gafisa (PK) (USOTC:GFASY)
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