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
GAFISA S.A.
CNPJ/MF n° 01.545.826/0001-07
NIRE 35.300.147.952
Publicly-held Company
MINUTES OF THE ANNUAL AND EXTRAORDINARY SHAREHOLDERS’ MEETINGS HELD ON APRIL 27, 2018
1.
Date, Time and Venue
: On April 27, 2018, at 10:00 a.m., at the headquarters of GAFISA S.A. (“
Company
”), in the City and State of São Paulo, at Avenida das Nações Unidas, 8.501, 19º andar.
2.
Call Notice
: Call notice published on March 27, 28 and 29, 2018, in the “Official Gazette of the State of São Paulo” on pages 280, 91 and 127 of the business section and in the newspaper “O Estado de São Paulo” on pages B7, B8 and B8, of the economy section, respectively.
3.
Attendances
: Shareholders representing over 72.06% of the Company’s voting capital, already considering the total remote voting forms directly sent to the Company’s or via the systems of B3 – Brazil, Stock Exchange, OTC (“
B3
”) and the bookkeeping agent, both those referring to the Annual General Meeting, and those referring to the Extraordinary General Meeting, considering that both meetings were held cumulatively. For the purposes of provisions in Article 134, Paragraph 1 of Law No. 6.404/76, Messrs. Sandro Rogério da Silva Gamba and Carlos Eduardo Moraes Calheiros, the Company’s Officers, Messrs. Olavo Fortes Campos Rodrigues Junior and Peter Edward Cortes Marsden Wilson, members of the Company’s Fiscal Council and Mr. Giuseppe Masi, representative of the Company’s independent auditor, KPMG Auditores Independentes S.S., also attended the meeting.
4.
Composition of the Board
: Mr. Odair Garcia Senra, Chairman of the Board of Directors and Chairman of the Meeting, pursuant to Paragraph 2, Article 8 of the Company’s Bylaws; and Monique Mavignier, Secretary.
5.
Agenda
:
At the Annual General Meeting
: (i) examine the Management’s accounts, analyze, discuss and vote on the financial statements for the fiscal year ended December 31, 2017; (ii) define the number of members to compose the Board of Directors; (iii) elect members of the Board of Directors; and (iv) define the annual overall Management’s compensation for the 2018 fiscal year.
At the Extraordinary General Meeting:
(vi) amend the Company’s Bylaws to: (a) restate
caput
of Article 5 in order to reflect the Company’s capital increase approved at the Extraordinary
Shareholders’ Meeting held on December 20, 2017, and
ratified by the Board of Directors on February 28, 2018 (“
Capital Increase
”);
(b) amend
caput
of Article 6 to increment the limit of authorization to
increase capital, regardless of the Bylaws restatement, since current limit has
been exceeded due to the Capital Increase, according to the Management Proposal;
(c) amend Article 8, Paragraph 2 to alter how the chairman of the meeting
will be appointed in the event of absence or impediment of the chairman of the
board of directors; (d) conform the Bylaws with the “Novo Mercado” New Rules of
B3 S.A. - Brazil, Stock Exchange, OTC (“
B3
”), as detailed in the
Management Proposal; (e) amend Article 57 to adjust the percentages indicated
therein to those indicated in
caput
of Article 53, amended at the
Extraordinary Shareholders’ Meeting on January 22, 2018, excluding item “a”
from Article 57, as it is incompatible with the percentage established in
caput
of Article 53; and (f) reflect overall wording improvements; and (vi) restate the
Company’s Bylaws in view of resolutions mentioned above.
6.
Reading of Documents
: Since not requested by any of the attending shareholders, the
reading of documents referred to in Article 133 of Law No. 6.404/76 was
exempted.
7.
Multiple Vote
: As per Notice to Shareholders released by the Company on April 23,
2018, shareholders owning over 5% of the Company’s voting capital requested to
adopt the multiple vote procedure to elect members of the Board of Directors,
as provided for in Article 141,
caput
of Law No. 6.404/76; the Chairman
of the Meeting informed to attending shareholders, along with the Shareholders’
Attendance Book and already excluding from calculation the votes of
shareholders who expressed, by means of their remote voting forms, their
intention to abstain from the multiple vote procedure and those who did not
physically attend the Meetings or did not request to exercise the on-site vote,
that the number of votes required to ensure the election of each member of the
Board of Directors, considering the potential votes of attending shareholders
and those who validly voted via the remote voting form is 25,963,918.
8.
Resolutions
: The following resolutions were taken with the abstentions and the
dissenting votes registered in each case, and authorizing the drawing up of
these minutes in the summary format and their publication omitting the
shareholders’ signatures, as authorized by Article 130, Paragraphs 1 and 2 of
Law No. 6.404/76:
At
the Annual Shareholders’ Meeting
:
8.1. Approve by majority vote,
computing 20,372,962 votes in favor, 1,388 votes against and 11,204,423 abstentions
and after receiving the request for clarification and protest of shareholders
indicated in respective request, after analysis and discussion, the Company’s
Management accounts and the Financial Statements for the fiscal year ended
December 31, 2017, which accompanied by the Notes to the Financial Statements
and the Independent Auditor’s Report were fully published on March 9, 2018, in
the
newspaper “Official Gazette of the State of São
Paulo”, pages 6 to 14 of the business section 2, and in newspaper “O Estado de
São Paulo”, pages 1 to 6 of the economy section.
8.1.1. It is hereby declared
that no dividends will be distributed since the Company recorded losses in the
fiscal year ended December 31, 2017.
8.2. In view of the expiration
of term office, to unanimously approve, computing 24,747,367 votes in favor, 3,334
votes against and 6,828,072 abstentions, defining at 7 the number of members to
compose the Company’s Board of Directors, pursuant to Article 17 of the
Company’s Bylaws, which shall operate until the 2020 Annual Shareholders’
Meeting.
8.3. Elect by means of the multiple
vote process, to compose the Company’s Board of Directors,
all of them in
the capacity of independent board members
:
(i)
with 26,000,000 votes,
Ana Maria Loureiro
Recart
, Brazilian citizen, attorney, married, bearer of the identity card (RG)
No. 240.800-2, issued by SSP/DF, and individual taxpayer’s register (CPF/MF)
No. 261.320.138-06, residing and domiciled in the City and State of São Paulo, with
office at Avenida Brigadeiro Faria Lima 3900, 6º andar;
(ii)
with 26,000,000 votes,
Karen Sanchez
Guimarães
, Brazilian citizen, attorney, single, bearer of the identity card
(RG) No. 30.271.707-9, and individual taxpayer’s register (CPMF) No.
324.302.698-99, residing and domiciled in the City and State of São Paulo, with
office at Avenida Brigadeiro Faria Lima 3900, 6º andar;
(iii)
with 18,786,959 votes,
Odair Garcia Senra
,
Brazilian citizen, civil engineer, widower, bearer of the identity card (RG)
No. 3.259.126, issued by SSP/SP and individual taxpayer’s register (CPMF) No. 380.915.938,72,
with office in the City and State of São Paulo, Avenida das Nações Unidas, nº
8.501, 19º andar, Pinheiros, CEP 05425-070;
(iv)
with 18,637,999 votes,
Tomás Rocha Awad
, Brazilian
citizen, business administrator, married, bearer of the identity card (RG) No.
10.595.772-0, issued by SSP/SP, and individual taxpayer’s register (CPMF) No. 145.527.458-59,
residing and domiciled in the City and State of São Paulo, at Avenida Hélio
Pelegrino, No. 720, apto. 31B, Vila Nova Conceição, CEP 04513-100;
(v)
with 18,637,999 votes,
Eric Alexandre Alencar
,
Brazilian citizen, mechanical engineer, married, bearer of the identity card
(RG) No. 26.370.576-6, and individual taxpayer’s register (CPMF) No.
258.232.758-94, residing and domiciled in the City and State of São Paulo, at
Rua Coronel Artur de Paula Ferreira, nº 132/31, Vila Nova Conceição, CEP 04511-060;
(vi)
with 18,637,999 votes,
Rodolpho Amboss
, Brazilian
citizen, civil engineer, married, bearer of the identity card (RG) No. 355.703,
issued by SPTC/ES, and individual taxpayer’s register (CPMF) No.
742.664.117-15, residing in the United States of America, with business address
at 40 West 57th Street, 29th floor, New York, NY, 10019; and
(vii)
with 18,011,475 votes,
Guilherme Vilazante
,
Brazilian citizen, mathematician, single, bearer of the identity card (RG) No. 1.408.882,
issued by SSP/DF, and individual taxpayer’s register (CPMF) No. 769.608.461-53,
residing and domiciled in the City and State of São Paulo, at Rua Gararu, 202,
CEP 04513-060.
8.3.1. Besides the candidates
elected, 13,426,445 votes were cast in other candidates who did not receive
sufficient votes to be elected and abstentions corresponding to 62,912,535 votes.
8.3.2. Register that the
curricula of the board members elected herein are included in the Management
Proposal or submitted to this Annual General Meeting by shareholders who
appointed them, and shareholders declare that these candidates have conditions
to sign the respective instrument of investiture, as provided for in Articles 2
and 3 of CVM Instruction No. 367/02 to be drawn up in the Company’s records. By
means of the signature of the referred instrument, the board members elected
herein shall take office in their respective positions and shall be subject to
the arbitration clause provided for in Article 61 of the Company’s Bylaws, in
accordance with the rules contained in B3’s Novo Mercado Rules.
8.4. Define, by majority vote,
computing 15,660,263 votes in favor, 9,090,070 votes against and 6,828,440
abstentions and after receiving the protest of shareholders indicated in the respective
request, within the limit of up to R$23,598,871.46, the overall amount to be
distributed amongst the Company’s Management from January to December 2018.
8.5. In view of request made
by shareholders representing more than two percent (2%) of the capital stock,
to unanimously approve, computing 21,964,747 votes in favor and 9,614,026
abstentions, the installation of the Fiscal Council with three sitting members
and respective alternates, pursuant to Article 40 of the Company’s Bylaws, to
operate until the 2019 Annual General Meeting.
8.6. Approve by majority vote,
computing 12,848,561 votes in favor, 9,098,126 votes against and 9,632,086 abstentions,
and after receiving the protest of shareholders indicated in the respective
request, that the Fiscal Council installation shall occur by means of slate
voting.
8.7. Elect by majority vote,
with 12,691,925 votes, the slate of the Fiscal Council composed of: (i.a)
José
Écio Pereira da Costa Júnior
, Brazilian citizen, married,
business administrator and accountant, bearer of the
identity card (RG) No. 4.762.308, issued by SSP/SP, and individual taxpayer’s
register (CPMF) No. 359.920.858-15, residing and domiciled in the city of
Curitiba, state of Paraná, with office at Av. República Argentina, 665, cjs.
906/907, CEP 80240-210; and as his alternate, (i.b)
Marcello Mascotto
Iannalfo
, Brazilian citizen, economist, married, bearer of the identity
card (RG) No. 16.994.226-0, issued by SSP/SP, and individual taxpayer’s
register (CPMF) No. 101.947.028-39, residing and domiciled in the city of Campinas,
State of São Paulo, at Rua Bacabá, 48, Alphaville Campinas - CEP 13098-339;
(ii.a)
Peter Edward Cortes Marsden Wilson
, Brazilian citizen,
economist, married, bearer of the identity card (RG) No. 08.424.379-9, issued
by IFP/RJ, and individual taxpayer’s register (CPMF) No. 168.126.648-20, residing
and domiciled in the City and State of São Paulo, at Rua Princesa Isabel, nº
347, apto 92, Campo Belo, CEP 04601-001; and as his alternate, (ii.b)
Marcelo
Martins Louro
, Brazilian citizen, administrator, married, bearer of the
identity card (RG) No. 19.994.703, issued by SSP/SP, and individual taxpayer’s
register (CPMF) No. 118.319.918-02, residing and domiciled in the City and
State of São Paulo, at Rua Iaiá 127, CEP 04542-060; and (iii.a)
Olavo
Fortes Campos Rodrigues Junior
, Brazilian citizen, business administrator, married,
bearer of the identity card (RG) No. 9.369.027, issued by SSP/SP, and individual
taxpayer’s register (CPMF) No. 769.488.977-20, residing and domiciled in the City
and State of São Paulo, at Rua Jesuíno Arruda, nº 541, apto 1, CEP 04553-081; and
as his deputy member, (iii.b)
Ademir José Scarpin
, Brazilian
citizen, married, accountant, bearer of the identity card (RG) No. 4.958.308-6,
issued by SSP-SP, individual taxpayer’s register (CPMF) No. 479.407.518-91, domiciled
in the City and State of São Paulo, at Rua Iguatemi, 192, 16º andar, conjunto
164, Itaim Bibi, CEP 01451-010.
8.7.1. Besides the slate
elected, 9,098,126 votes were cast in another slate, which, therefore, did not
receive sufficient votes to be elected with 9,788,722 abstentions.
8.7.2. Register that the
investiture of the fiscal council members elected herein and their respective
alternates shall be subject to the signature of respective instrument of
investiture in the Company’s records, in accordance with the rules contained in
B3’s “Novo Mercado” Rules, when they shall make the clearance statement
provided for by laws and their submission to the arbitration clause provided
for in Article 61 of the Company’s Bylaws.
8.8. Unanimously define,
computing 21,964,747 votes in favor and 9,614,026 abstentions, the individual
monthly compensation of the Fiscal Council’s members at 10% of the average
compensation assigned to each officer of the Company, excluding benefits, representation
allowances, and profit sharing.
At
the Extraordinary Shareholders’ Meeting
:
8.9. Approve,
by majority vote, computing 22,843,169 votes in favor, 9,834 votes against and 8,725,770
abstentions, pursuant to Management Proposal, the restatement of
caput
of
Article 5 of the Company’s Bylaws to reflect the Capital Increase;
8.10. Approve, by majority
vote, computing 22,816,555 votes in favor, 36,448 votes against and 8,725,770
abstentions, pursuant to the Management Proposal the amendment of
caput
of
Article 6 of the Company’s Bylaws to increment the limit of authorization to
increase capital, regardless of the Bylaws restatement;
8.11. Approve, by majority
vote, computing 22,841,581 votes in favor, 11,564 votes against and 8,725,628 abstentions,
pursuant to the Management Proposal, the amendment of Article 8, Paragraph
2 of the Company’s Bylaws to modify how the chairman of the meeting will be appointed
in the event of absence or impediment of the Board of Directors’ chairman;
8.12. Approve, by majority
vote, computing 22,844,953 votes in favor, 8,376 votes against and 8,725,444
abstentions, pursuant to the Management Proposal, the conformity of the
Company’s Bylaws with B3’s “Novo Mercado”’s New Rules;
8.13. Approve, by majority
vote, computing 22,375,175 votes in favor, 477,180 votes against and 8,726,418
abstentions, pursuant to the Management Proposal, the amendment of Article 57
of the Company’s Bylaws, so that to conform the percentages indicated therein with
those indicated in
caput
of Article 53, altered at the Extraordinary
Shareholders’ Meeting held on January 22, 2018, excluding item “a” from Article
57, as it is incompatible with the percentage defined in
caput
of
Article 53;
8.14. Approve by majority
vote, computing 22,846,055 votes in favor, 6,652 votes against and 8,726,066
abstentions, pursuant to the Management Proposal, the amendment of the
Company’s Bylaws so that to reflect overall wording improvements; and
8.15. Approve by majority
vote, computing 22,849,033 votes in favor, 7,244 votes against and 8,722,496
abstentions, pursuant to the Management Proposal, the Company’s Bylaws
restatement to reflect the resolutions approved above, which shall take effect
as Exhibit I hereto.
9.
Closing
: There being no further business to address, the meeting was
adjourned for the drawing up of these Minutes in the summary format which,
after being read and found to be in compliance, were signed by the attendees
after the closure of the Meetings.
São Paulo, April 27, 2018.
Presiding Board
:
|
|
Odair Garcia Senra
Chairman
|
Monique Mavignier
Secretary
|
EXHIBIT I TO THE MINUTES OF THE ANNUAL AND EXTRAORDINARY SHAREHOLDERS’
MEETING OF GAFISA S.A.
HELD ON APRIL 27, 2018, AT 10:00 a.m.
Restated Bylaws
CHAPTER
I
NAME,
HEADQUARTERS, PURPOSE AND DURATION
Article 1
.
Gafisa S.A. (the “Company”) is a publicly held corporation, governed by these
Bylaws, its Code of Ethics and Conduct and applicable law and regulations.
Sole Paragraph
.
With the Company’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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