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Name | Symbol | Market | Type |
---|---|---|---|
Gafisa SA (PK) | USOTC:GFASY | OTCMarkets | Depository Receipt |
Price Change | % Change | Price | Bid Price | Offer Price | High Price | Low Price | Open Price | Traded | Last Trade | |
---|---|---|---|---|---|---|---|---|---|---|
0.00 | 0.00% | 2.04 | 1.89 | 2.35 | 0.00 | 12:45:33 |
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):
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GAFISA S.A.
Corporate Taxpayer’s ID (“CNPJ/MF”) No. 01.545.826/0001-07
Corporate Registry ID (“NIRE”) 35.300.147.952
MANAGEMENT PROPOSAL
EXTRAORDINARY SHAREHOLDERS’ MEETING
FEBRUARY 20, 2017
at 10 a.m.
INDEX
II. Reverse split and Proportional Adjustment of the Limit of the Authorized Capital. |
|
Exhibit A – Information related to the amendment to the Company’s Bylaws . |
GAFISA S.A.
CNPJ/MF No. 01.545.826/0001-07
NIRE 35.300.147.952
Publicly-held Company
MANAGEMENT PROPOSAL FOR THE EXTRAORDINARY SHAREHOLDERS’ MEETING TO BE HELD ON FEBRUARY 9, 2017
Dear Shareholders,
The management of Gafisa S.A. (“ Company ” or “ Gafisa ”), pursuant to CVM Instruction No. 481 of December 17, 2009 (“ CVM Instruction No. 481/09 ”), hereby submits to the Company’s shareholders a proposal on the matters to be resolved at the Company’s extraordinary shareholders’ meeting to be held, on second call notice, on February 20, 2017, at 10 a.m. (“ Management Proposal ” and “ Extraordinary Shareholders’ Meeting ”, respectively), namely the:
(i) amendment to Article 5 of the Company’s Bylaws, in order to reflect the capital increases and cancellations of shares approved by the Board of Directors until the date of the Extraordinary Shareholders’ Meeting;
(ii) reverse split of the Company’s common shares, at a ratio of 13.483023074 to 1, and proportional adjustment of the limit of the authorized capital; and
(iii) restatement of the Company’s Bylaws to improve the Company’s governance structures and to reflect the changes resulting from items (i) and (ii) above.
The Company’s management proposes to update Article 5 of the Bylaws, in order to reflect the changes approved by the Board of Directors in the capital stock of the Company, within the scope of its responsibilities, namely:
· capital stock increase, within the limit of the authorized capital, approved at the Board of Directors’ meeting held on December 17, 2012;
· capital stock increase, within the limit of the authorized capital, approved at the Board of Directors’ meeting held on April 15, 2013;
· capital stock increase, within the limit of the authorized capital, approved at the Board of Directors’ meeting held on May 20, 2013;
· capital stock increase, within the limit of the authorized capital, approved at the Board of Directors’ meeting held on July 15, 2013;
· capital stock increase, within the limit of the authorized capital, approved at the Board of Directors’ meeting held on December 17, 2013;
· cancellation of treasury shares, approved at the Board of Directors’ meeting held on November 18, 2014;
· cancellation of treasury shares, approved at the Board of Directors’ meeting held on December 3 ,2014; and
· cancellation of treasury shares, approved at the Board of Directors’ meeting held on February 2, 2015.
In compliance with provisions of ICVM 481/09, we attach the following document to this Management Proposal:
· Exhibit A – Information indicated in Article 11 of CVM Instruction No. 481/09 related to the amendment to the Company’s Bylaws.
The Company’s management proposes the reverse split of all common shares issued by it, pursuant to Article 12 of the Law No. 6,404/76, at a ratio of 13.483023074 to 1.
The purpose of the reverse split is to enable the Company to deliver, on the Company’s capital stock reduction, to be resolved at the Company’s extraordinary shareholders’ meeting summoned for 11 a.m. of February 9, 2017, immediately after the Extraordinary Shareholders’ Meeting to which this Management Proposal refers 1 , one share issued by Construtora Tenda S.A., a publicly-held company enrolled with the CNPJ/MF under No. 71.476.527/0001-35, NIRE 35.300.348.206 (“ Tenda ”), for each share issued by the Company and held by the Company’s shareholders (i.e., excluding the treasury shares), thus, avoiding any fractional shares.
As a result of the reverse split:
(i) 378,066,162 common shares issued by the Company will represent 28,040,162 common shares, all registered and without par value;
(ii) the number of shares that the Company’s Board of Directors is authorized to issue, regardless of a restatement of the Bylaws, shall be adjusted, at the same ratio, rounded down, from 600,000,000 to 44,500,405 common shares; and
(iii) the Company’s common share certificates issued within the American Depositary Shares (“ ADSs ”) program sponsored by the Company shall be reverse split at the same ration (so that the ration between ADSs and common shares remains unchanged). The procedures related to the reverse split procedure of the ADSs will be conducted by Citibank, N.A., in its capacity of depositary of the Company’s ADS program.
1 For additional information on referred Company’s capital stock reduction, see the Management Proposal of the Company’s extraordinary shareholders’ meeting to be held on February 9, 2017, at 11 a.m., also released on this date.
Once the reverse split is approved, the shareholders that own common shares issued by the Company shall be grated with a 30-day term starting on February 10, 2017, which is the day following the date of the Extraordinary Shareholders’ Meeting, and ending on March 11, 2017, to allow them to adjust their shareholding position in multiple lots of 13.483023074 shares, by means of negotiation at the BM&FBOVESPA. Upon expiration of such 30-day term, any fractional shares resulting from the reverse split will be grouped in whole numbers and sold in as many auctions as necessary at the BM&FBOVESPA, and the proceeds of such sales will be made available to the respective shareholders upon financial settlement of such sales. Additional information will be made available in a notice to shareholders in the due course.
If the proposal is approved at the Extraordinary Shareholders’ Meeting, the caput of Articles 5 and 6 of the Bylaws shall be amended in order to reflect the new number of common shares in which the Company’s capital stock will be divided and the new authorized capital.
Pursuant to provisions of CVM Instruction No. 481/09, we attach the following document to this Management Proposal:
· Exhibit A – Information indicated in Article 11 of CVM Instruction No. 481/09 related to the amendment to the Company’s Bylaws.
The Company’s management proposes to amend the Bylaws in order to reflect the capital increases and cancellations of shares approved by the Board of Directors, within the scope of its responsibilities, as well as to improve the governance structure of the Company, in addition to minor wording adjustments , renumbering and fixing cross references, as detailed in Exhibit A – Information indicated in Article 11 of CVM Instruction No. 481/09 related to the amendment to the Company’s Bylaws.
São Paulo, February 9, 2017.
The Management
Gafisa S.A.
Copy of the Company’s Bylaws with
Amendments Proposed
|
Report including the Origin, Justification and Effects
of Amendments Proposed
|
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”). |
Unaltered. |
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. |
Unaltered. |
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
,
|
Reference and/or numbering adjustments. There are no legal or economic effects expected. |
Article 4 . The Company has an indefinite term of duration. |
Unaltered. |
CHAPTER II
Article 5.
The capital of the Company is
R$2,740,661,187.74
§1 . The cost of share transfer services charged by the account agent shall be borne by the shareholders, subject to such limits as may be imposed by applicable legislation. §2 . Each common share carries the right to one vote on resolutions at general meetings of shareholders. §3 . The Company shall not issue preferred shares or participation certificates ( partes beneficiárias ). §4 . For purposes of reimbursement, the value of the Company’s shares shall be based on the Company’s economic value, as determined by an appraisal carried out by a specialized firm appointed in the manner provided for in Article 45 of Corporation Law . |
Amendment to the capital stock in order to reflect (a) the amendments promoted by the Board of Directors in the capital stock, within the scope of its responsibilities, whether within the limit of authorized capital or within the scope of the Share Buyback Programs until the date of the General Shareholders’ Meeting and (b) the Reverse Split. There are no other legal or economic effects expected. |
Article 6.
The capital of the Company may be
increased by resolution adopted by the board of directors, without need for
an amendment to these Bylaws. The resolution approving the increase shall fix
the terms and conditions for the issuance of shares, subject to a limit of
44,500,405
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 . |
Amendment to the capital stock in order to reflect the Reverse Split. There are no legal or economic effects expected. |
Article 7 . The Company may reduce or exclude the time period for the exercise of preemptive rights on the issuance of shares, debentures convertible into shares or subscription bonuses which are placed by means of sale on a stock exchange, public subscription or share swap in a public tender offer pursuant to articles 257 to 263 of Corporation Law. Pursuant to article 171, §3 of Corporation Law, there shall be no preemptive rights on the grant and exercise of the share purchase options . |
Unaltered. |
CHAPTER III GENERAL MEETING OF SHAREHOLDERS Article 8 . A general meeting of shareholders shall be held, on an ordinary basis, in the first four (4) months following the end of the fiscal year and on an extraordinary basis whenever required by law or the Company’s interests. §1 . G eneral meetings of shareholders shall be called in the manner provided for by law. Regardless of the formalities for calling general shareholders’ meetings, any general meeting attended by all shareholders shall be considered to have been regularly called. §2 . G eneral meetings of shareholders shall be called to order and chaired by the chairman of the board of directors or, in his absence, by a shareholder appointed by the shareholders at the general meeting. The chairman of the general meeting shall choose one of those present at the meeting to act as secretary. §3. Prior to the call to order, the shareholders shall sign the “Book of Attendance” ( Livro de Presença de Acionistas ), giving their name and residence and the number of shares they hold. §4. The list of shareholders present at the meeting shall be closed by the chairman immediately after the general meeting is called to order. §5. Shareholders which appear at a general meeting after the list of shareholders present at the meeting has been closed may participate in the meeting but shall not have the right to vote on any resolution. §6. The resolutions of the general meeting shall be taken by the majority of affirmative votes of those present, provided that the blank votes shall not be counted, and with the exception of the cases set forth by law and subject to the provisions set forth in the main clause of Article 10. |
Unaltered. |
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 . |
Unaltered. |
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”). |
Unaltered. |
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 . |
Unaltered. |
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 . |
Unaltered. |
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 ) . |
Unaltered. |
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 . |
Unaltered. |
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 . |
Unaltered. |
Art. 16.
In performing its attributions and as a
parameter of the performance of their duties and legal responsibilities, the
Company’s management bodies must rest, strictly on the observation of the
following principles and guidelines, without prejudice of others that may be
suggested by the
Corporate Governance and Compensation Committee
(a) the Company’s management shall be performed in a professional way, aligned with the shareholder’s interests, but without association to any particular interests of any shareholder or Shareholder Group individually considered; (b) the powers conferred, through these Bylaws, to the management bodies, especially those related to the rules for appointing the candidates for the board of directors and to the appraisal of the terms of a public tender offer, will be exercised strictly according with the Company’s and its shareholders’ best interests, and with the principles set forth herein; (c) the existence of the powers mentioned in the item (b) above is based on the shareholders’ interests as a whole, and its only function is to attend and maximize such interests, in case such becomes necessary in view of the Company’s continuity and generation of long-term value; (d) the powers set forth in item (b) above cannot be used, under any circumstances, for the private benefit of any shareholder, Shareholder Group, director, officer or group of directors and/or officers;
(e)
the powers mentioned above,
as well as its objectives, cannot be understood and have no function
whatsoever of serving as an obstacle to the development of Control by any shareholder
or Shareholder Group, and as such, the board of directors shall exercise its
competence set forth in Article
58
(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 . |
Reference and/or numbering adjustments, as well as wording adjustments since the Compensation Committee and the Nominating and Corporate Governance Committee have been merged. There are no legal or economic effects expected. |
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 . |
Unaltered. |
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. |
Unaltered. |
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 . |
Unaltered. |
Article 21. The quorum for board of directors’ meetings shall be four members. Resolutions shall be adopted by the favorable vote of a majority of members present at the meeting, and the chairman shall have, in addition to his own vote, a casting vote in the event of a tie. §1. The decisions of the board of directors shall be recorded in minutes, which shall be signed by the members present at the meeting. §2. Directors may take part at meetings of the board of directors by telephone or videoconference, and, in that event, shall be considered to be present at the meeting and shall confirm their vote by written statement sent to the chairman by letter, facsimile transmission or e-mail immediately after the end of the meeting. Upon receipt of statement of confirmation, the chairman shall have full powers to sign the minutes of the meeting on behalf of the member in question. §3. The chief executive officer shall attend all m eetings of the b oard of directors , providing clarification as needed. |
Unaltered. |
Powers Article 22. In addition to such other powers and duties conferred on it by law and these Bylaws, the board of directors shall have powers to: (a) fix the general direction of the Company’s business; (b) define the strategic directions that should guide the preparation of the annual budget and business plan of the Company, to be prepared by the executive board; (c) approve the Company’s annual operating budget and business plan, and any changes thereto (provided, however, that until such new budget or plan has been approved, the most recently approved budget or plan shall prevail); (d) attribute, from the global amount of remuneration fixed by the shareholders in general meeting, the monthly remuneration of each of the members of the Company’s management and advisory committees, in the manner provided for in Article 15 of these Bylaws; (e) nominate a slate for the election of the board of directors; (f) elect and remove the Company’s officers and determine their powers and duties, in accordance with the provisions of these Bylaws and ensuring that such positions are always occupied by trained people , familiar with the activities of the Company and its controlled companies , and also able to implement its business plans , long-term goals , and ensure the continuity of the Company; (g) supervise the officers’ management of the Company, examine at any time the Company’s books and documents, and request information on contracts entered into or about to be entered into by the Company and any other acts; (h) determine the general remuneration criteria and the benefit policies (indirect benefits, shares in profits and/or sales) for the senior management and those holding management positions in the Company; (i) instruct the votes related to the global remuneration of management to be cast by Company’s representative at the general meeting of shareholders of the companies where the Company holds an equity interest, except for the wholly-owned subsidiaries or special purpose companies; (j) in accordance with a plan approved by the shareholders in general meeting, grant share purchase options to the Company’s officers, directors or employees, or to individuals who rendered services to the Company or to any company under its control, with the exclusion of shareholders’ pre-emptive rights over the grant of such share purchase options or the subscription of the corresponding shares; (k) call general shareholders’ meetings; (l) submit to the shareholders in general meeting any proposed amendment to these Bylaws; (m) issue its opinion on the executive board’s management report and accounts, and authorize the distribution of interim dividends; (n) attribute to the Company’s directors and officers their share in the profits shown on the Company’s balance sheets, including interim balance sheets, subject always to the limits and other provisions under the law and these Bylaws; (o) authorize any change in the Company’s accounting or report presentation policies, unless such change is required by the generally accepted accounting principles in the jurisdictions in which the Company operates; (p) appoint and dismiss the Company’s independent auditors; (q) approve the issue of shares or subscription bonuses up to the limit of the Company’s authorized capital, determining the issue price, the manner of subscription and payment and other terms and conditions for the issuance, and determining also if preemptive rights over the shares to be issued shall be granted to shareholders in the case provided for in the Article 7 of these Bylaws; (r) approve the issuance of debentures of any species and characteristics and with any guarantees, provided that , in the case of debentures convertible into shares , the limit authorized for the issuance of common shares, provided for in Article 6 hereof, is complied with ; (s) approve the Company’s acquisition of its own shares, to be held in treasury or for cancellation; (t) approve business transactions and contracts of any kind between the Company and its shareholders, directors and/or officers, or between the Company and the direct or indirect controlling shareholders of the Company’s shareholders, except if provided in the annual budget or business plan then in effect; (u) authorize, in advance: (i) the execution by the Company of any contract, including, for the purposes of illustration, contracts for the acquisition of assets or interests in other companies; or (ii) the grant, by the Company, of loans, financing or real or personal security in favor of its controlled companies (with the exception of special purpose companies in which the Company holds 90% or more of the total and voting capital) or third parties, provided always, in the cases contemplated in items (i) and (ii) above, that the contracts involve transactions with a term greater than 48 (forty-eight) months (with the exception of contracts with public utilities providers and other contracts which have uniform terms and conditions, which shall not be subject to prior approval by the board of directors) or an amount greater than R$15,000,000.00 or 1.5% of the Company’s total consolidated assets (the “Reference Value”); (v) authorize the acquisition, alienation, transfer, assignment, encumbrance or other form of disposal, including contribution to the capital of another company, for any reason, of a substantial part of the Company’s non-current assets, non-current assets being understood to be the set of assets on which the Company’s business is based, in amounts greater than the Reference Value (as defined in item (u) above), when such transactions are not provided for in the annual budget; (w) approve, in advance, any application by the Company for a decree of bankruptcy or judicial or extrajudicial recovery; (x) determine the list of three companies specialized in economical valuation, to be submitted to the general shareholders meeting for the purposes of Article 9, (b) of these Bylaws, for the preparation of the appraisal report of the Company’s shares for purposes of public offer of shares, cancellation of registration as a publicly-held company registration, exiting the Novo Mercado or mandatory public tender offer, in the cases provided under these Bylaws; and
(y) issue
its opinion in advance, making it public and observing the rules laid out in
Article
58
|
Reference and/or numbering adjustments. There are no legal or economic effects expected. |
Article 28 . The duties of the chief executive officer are: (a) to submit for approval by the board of directors the annual and/or five-year work plans and budgets, investment plans and new programs to expand the Company and companies controlled by Company, causing the plans, budgets and programs to be carried out on the approved terms; (b) to submit to the board of directors, after the opinion of the Audit Committee and fiscal council, the latter when installed, the management report and financial statements of the Company, being responsible for their content; (c) to formulate the Company’s operating strategies and directives based on the general orientation provided by the board of directors; (d) to establish the criteria for executing the resolutions adopted at the general shareholders’ meetings and meetings of the board of directors, with the participation of the other officers; (e) to coordinate and supervise the work of the executive board, and to call and chair its meetings;
(f)
to
develop, together with the
Corporate Governance and Compensation Committee
(g) attend meetings of the board of directors and the general meeting, as provided in these Bylaws and the applicable law; (h) to represent the Company towards shareholders, investors, customers, media, society and towards legal, business and government agencies, protecting the interests of the organization as well as its image; and (i) to supervise all the Company’s activities, and also other powers conferred upon it by the board of directors. |
Reference and/or numbering adjustments, as well as wording adjustments since the Compensation Committee and the Nominating and Corporate Governance Committee have been merged. There are no legal or economic effects expected. |
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. |
Unaltered. |
Article 30. The duties of the chief executive financial officer are: (a) to be responsible for the Company’s budget control and management, monitoring indicators and analyzing reports to consolidate the budget, aiming to reach budget goals and to provide key managerial information; (b) to submit to the board of directors, after the opinion of the Audit Committee and fiscal council, the latter when installed, the management report and financial statements of the Company, being responsible for their content; (c) to ensure that the Controller’s department, including the control of management and of costs, provides indicators for decision-making, detecting elements that may influence the Company’s results; (d) to be responsible for the control of cash flow and investments aiming to maximize the financial result, within risk levels previously established by the Company; (e) to ensure the efficient control of the bank loans operations of the customers (bank transfer) in the deadline established, and be responsible for paying taxes and procedures supervision; (f) to perform investments feasibility studies related to new business, mergers and acquisitions in order to give support for decision-making; (g) to ensure proper management of the Company’s financial resources, as well as the relation between assets and liabilities through risk analysis of changes in the cost of liabilities in order to ensure the financial health of the Company; (h) to define strategies and guidelines for the Company, through annual planning of actions and elaboration of budget, together with other officers, aiming the goals established by the Company; (i) to participate in the executive board meetings (Article 24), in order to take decisions and define strategies jointly with the other officers, aiming at the Company’s development and success; and (j) to represent the Company towards shareholders, investors , customers , media , corporations, the society and towards legal , corporate and governmental bodies , protecting the interests of the organization as well as its image. |
Unaltered. |
|
Removed since the position of “Gafisa’s executive officer” has been eliminated, with the partial transfer of his duties to the chief executive operating officer, so that to reflect current split of positions and responsibilities of the Company. There are no other legal or economic effects expected. |
Art.
36
(a) recommend the independent auditors to the preparation or publication of audit opinion or other services related to audit, review and certification, approving their remuneration and scope of contracted services; (b) supervise the work of independent auditors; (c) review and approve the scope(s) of the annual(s) audit plan(s) of independent auditors; (d) evaluate the qualifications, performance and independence of auditors; (e) establish guidelines for the hiring, by the Company, of employees or former employees of a company that has provided audit services to the Company; (f) at least once a year, evaluate performance, responsibilities, budget and staffing of the internal audit function of the Company, as well as reviewing the internal audit plan (including reviewing the responsibilities, budget and staff of internal audit function of the Company together with its independent auditors); (g) review and discuss with Company management and independent auditors, in separate or joint meetings, the annual audited financial statements; (h) review, together with management, the Company’s general policies on disclosure of results as well as on guidance on the financial information and earnings provided to analysts and credit risk rating agencies, including, in each case, the type of information to be disclosed and the type of presentation to be made, with special attention to usage of financial information not provided for in generally accepted accounting principles; (i) review, periodically, together with the Company's management and independent auditors, in separate or joint meetings: (i) any reviews or other written communications prepared by management and/or by independent auditors, containing relevant questions on the disclosure of financial information or understandings adopted in the preparation of financial statements; (ii) the critical accounting policies and practices of the Company; (iii) transactions with related parties, as well as the operations and structures not reflected in financial statements; (iv) any relevant issues regarding accounting principles and presentation of financial statements, including any significant changes in the choice or application of accounting principles by the Company, and (v) the effect of initiatives or acts, applicable to the Company, by authorities of an administrative nature or in charge of accounting rules; (j) review, together with the chief executive officer and the chief executive financial officer, the Company’s procedures and controls of disclosure, as well as internal controls related to the financial reports, including the statement of any significant deficiencies and relevant flaws in the design or operation of internal controls related to the financial reports, which are reasonably likely to affect the Company's ability to record, process, summarize and report financial information, as well as any fraud involving members of management or other employees who have significant role in the internal control related to the financial reports; (k) consider and discuss with the independent auditors any audit problems or difficulties, as well as management's response to those, such as: (i) restrictions to the scope of independent auditors activities, or to the access to required information; (ii) accounting adjustments that were not subject to reservation notice or proposal by the auditor, but that have been analyzed for its relevance or other reason; (iii) communications between the audit team and the auditing firm’s national office in respect to auditing or accounting issues raised by contracting, and (iv) any opinion to the management or letter on internal controls issued by the auditor, or intended to be issued by the auditor; (l) settle any disagreements between management and any independent auditors, in relation to the Company's financial reports; (m) review the Company’s policies and practices for purpose of risk assessment and risk management, including through discussion with management of the major financial risks to which the Company is exposed, and the measures implemented to monitor and control such exposures; (n) assist the board of directors in carrying out oversight functions of the executive board; (o) review the Company's Code of Ethics and Conduct, as well as the procedures adopted for monitoring the conformity with it, including procedures for receiving, preserving and treating complaints received by the Company regarding accounting matters, auditing or internal accounting controls as well as procedures for submission, by employees of the Company, on an anonymous and confidential basis, of issues of concern regarding questionable accounting or auditing matters; (p) review annually the conformity with applicable law and Code of Ethics and Conduct, including through a review of any reports prepared by lawyers representing the Company, addressing the relevant law violation or breach of fiduciary duty; (q) analyze possible conflicts of interest involving members of the board of directors, as well as provide opinion on whether any such directors should vote in any matter that may give rise to conflict of interests or not, and (r) analyze any complaints regarding accounting, auditing and internal accounting controls matters received in accordance with the procedures above. |
Reference and/or numbering adjustments. There are no legal or economic effects expected. |
Nominating and Corporate Governance Committee
|
Simplification of the Company’s administrative structure, since the Compensation Committee and the Nominating and Corporate Governance Committee have been merged, with the consolidation of their duties. There are no other legal or economic effects expected. |
|
Ditto above. |
Article
48
|
Reference and/or numbering adjustments. There are no legal or economic effects expected. |
Article
49
|
Reference and/or numbering adjustments. There are no legal or economic effects expected. |
Article
50
(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
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. |
Reference and/or numbering adjustments. There are no legal or economic effects expected. |
Article
51
§1
In the event the extraordinary general shareholders’
meeting referred to in this Article
51
§2.
The new board of directors elected at the
extraordinary general shareholders’ meeting referred to in the preceding
provisions of this Article
51
|
Reference and/or numbering adjustments. There are no legal or economic effects expected. |
Article
52
§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
(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. |
Reference and/or numbering adjustments. There are no legal or economic effects expected. |
Article
54
§1.
In the special general meeting referred to in Article
54
§2.
In case the special general meeting referred to in this Article
54
|
Reference and/or numbering adjustments. There are no legal or economic effects expected. |
Article
55
|
Reference and/or numbering adjustments. There are no legal or economic effects expected. |
Article
56
|
Reference and/or numbering adjustments. There are no legal or economic effects expected. |
Article
57
(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. |
Reference and/or numbering adjustments. There are no legal or economic effects expected. |
** ** **
SIGNATURE
Gafisa S.A.
|
|
By:
|
/s/ Sandro Gamba
|
Name: Sandro Gamba
Title: Chief Executive Officer
|
1 Year Gafisa (PK) Chart |
1 Month Gafisa (PK) Chart |
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