AMIL PARTICIPAÇÕES S.A.
Article 1 - AMIL PARTICIPAÇÕES S.A. ("The Company") is a privately-held company governed by these Bylaws, the applicable law and the Listing Rules of the Novo Mercado segment from BM&FBOVESPA (Securities, Commodities and Futures Exchange) ("Rules of the Novo Mercado").
Article 2 - The Company is headquartered and domiciled in the city of Rio de Janeiro, State of Rio de Janeiro and may establish and/or dissolve its own subsidiaries, warehouses, offices, representative offices and any other establishment in Brazil or abroad, if its officers chose to do so.
Article 3 - The Company’s corporate purpose is to (i) provide health services, including medical, hospital and dental assistance; (ii) sell medical and dental healthcare plans as specified under Brazilian law, as well as administer, plan, organize and operate private healthcare plans; and (iii) participate, either as shareholder or quotaholder, in other commercial or civil companies, in Brazil and abroad, that are engaged in activities related to the Company’s corporate purpose.
Article 4 - The term of the Company is unlimited.
Article 5 - The Company’s capital stock amounts to R$ 1,156,593,345.14 (one billion, one hundred and fifty six million, five hundred and ninety three thousand, three hundred and forty five reais and fourteen cents), fully subscribed and paid-in, comprised of 360,660,052 (three hundred and sixty million, six hundred and sixty thousand and fifty two) common shares, all nominative and with no par value.
Article 6 - The Company is authorized to increase its capital stock, without amending its bylaws, through a decision by the Board of Directors, up to the limit of 540,000,000 (five hundred and forty million) shares, nominative and with no par value, including those already issued.
Paragraph 1 - The Board of Directors shall determine, in each case, the number of shares to be issued, place of distribution (in Brazil or abroad), type of distribution (public or private), price per share and conditions for subscription and payment. The Board of Directors may also, up to the limit of authorized capital, decide to issue warrants.
Paragraph 2 - Within the limit of authorized capital and according to a plan approved at a Shareholders’ Meeting, the Board of Directors may authorize the Company to grant a stock option plan to its managers, employees or natural persons that provide services to the Company or a company under its control, as well as to managers and employees from other companies under its control, pursuant to a plan approved at a Shareholders’ Meeting, without providing preemptive rights to the shareholders.
Paragraph 3 - The Company may not issue preferred shares (with or without voting rights) or founder’s shares.
Article 7 - The capital stock will be represented exclusively by common shares, nominative and with no par value, only and each common share entitles its holder to one (1) vote at Shareholders’ Meetings.
Article 8- The Company may maintain all of its shares in deposit accounts, in the name of its holders, in financial institutions authorized by the Brazilian Securities and Exchange Commission (the CVM).
Sole Paragraph - Considering that the maximum limit established by the CVM is respected, the cost of transfer and registration of shares, as well as the cost of services in connection with book-entry shares, may be directly collected from the shareholder by the depositary institution, as defined in the stock bookkeeping contract.
Article 9 - At the Board of Directors’ discretion, the Company may issue shares, debentures convertible into shares or warrants, without preemptive rights or shortening the term defined under Paragraph 4 of Article 171 of Law No. 6,404, of December 15, 1976 ("Brazilian Corporate Law"), to be sold on a stock exchange, in a public subscription or share exchange in a public offering for purchase of control, pursuant to the applicable law, within the limits of its authorized capital.
Paragraph 1 - Through decision of the Board of Directors, pursuant to Article 171 of the Brazilian Corporate Law, the Company may reduce or exclude the term for the exercise of any preemptive rights in connection with the issuance of shares, debentures convertible into shares or warrants sold on a stock exchange, public subscription or share exchange in a mandatory public offering for purchase of control, pursuant to articles 257 to 263 of the Brazilian Corporate Law. There will be no preemptive rights for the granting and exercise of stock options, pursuant to paragraph 3 of article 171 of Brazilian Corporate Law.
Paragraph 2 - If our capital is increased, the Board of Directors may dispose of any unsubscribed shares during the period that any preemptive rights may be exercised. The Board of Directors may determine, before the sale of shares on a stock exchange, on behalf of the Company, the apportionment of any unsubscribed shares based on the proportional amount subscribed by the shareholders that recorded their interest to subscribe for any possible unsubscribed shares in a subscription list or bulletin.
Article 10 - Pursuant to the Brazilian Corporate Law and these Bylaws, Ordinary Shareholders’ Meetings shall occur once a year and Extraordinary Shareholders‘ Meetings shall occur whenever necessary. Ordinary and Extraordinary Shareholders’ Meetings may be held simultaneously.
Paragraph 1 - Any decisions made at a Shareholders’ Meetings must be made through majority vote, except when provided for in the Brazilian Corporate Law and pursuant to these Bylaws.
Paragraph 2 - Any Shareholders’ Meetings called to deliberate about the delisting from the Novo Mercado shall be called at least 30 days before the date of the meeting.
Paragraph 3 - Except when otherwise provided for under the Brazilian Corporate Law, Shareholders’ Meetings must only deliberate on matters included in the agenda. Such matters shall be included in the call notice and published at least three (3) times in the official legal newspaper and in another widely circulated newspaper, no later than 15 days before the date of the meeting. The notice must include the date, time and place where the Shareholders‘ Meeting will be held.
Paragraph 4 - In order to attend a Shareholders’ Meeting, shareholders must submit to the Company, at least 48 (forty-eight) hours before the meeting, an identification document and/or corporate acts that prove legal representation thereof, in addition to, as the case may be: (i) proof of ownership issued by the depositary company up to (5) five days before the Shareholders’ Meeting; (ii) a notarized proxy certificate; and/or (iii) for shareholders which shares are held in a fungible custody account, proof of ownership issued by the respective custody agent. Notwithstanding the above-mentioned, shareholders attending the Shareholders’ Meeting provided with the documents previously mentioned, until the beginning of the Meeting, may participate and vote, even though they did not present them previously.
Paragraph 5 - Minutes of Shareholders’ Meetings must be: recorded in the Minutes of Shareholders’ Meetings as a summary of the events, including votes of the attending shareholders, blank votes and abstentions.
Article 11 - Shareholders’ Meetings are called by the Chairman or Vice Chairman of the Board of Directors and chaired by the Chairman of the Board of Directors. If the Chairman of the Board of Directors is absent or unable to act, the meeting should be chaired by the Vice Chairman or another Director, Officer or shareholder appointed, in writing, by the Vice Chairman of the Board of Directors. If the Vice Chairman of the Board of Directors fails to appoint a member, the Chairman of the Shareholders’ Meeting shall be appointed by majority vote of the attending shareholders. The Chairman of the Shareholders’ Meeting shall appoint up to two (2) Secretaries.
Article 12 - In addition to the agenda provided under the applicable law, the Shareholders’ Meetings shall:
I. elect and dismiss the members of our Board of Directors and appoint the Chairman and Vice Chairman of the Board of Directors;
II. approve the annual total compensation of the members of our Board of Directors, Board of Executive Officers, and, if in place, the members of our Fiscal Council;
III. approve management accounts and financial statements every year;
IV. approve any issuance of shares or any securities convertible into shares of the Company, as applicable, for less than fair market value;
V. resolve on the amendment to these Bylaws;
VI. resolve on any amendment or alteration of the Company’s corporate purpose;
VII. resolve on the creation of one or more new classes of shares or conversion of an existing class of shares of the Company;
VIII. resolve on any plan of dissolution, liquidation, voluntary bankruptcy, judicial or extrajudicial recovery, or winding-up of the Company;
IX. resolve on any corporate restructuring of the Company or any of its subsidiaries, whether by mergers, demerger, spin-offs, mergers into, recapitalization, change of the corporate form or otherwise;
X. approve any distributions of shares, stock splits and reverse stock splits;
XI. approve any stock option or subscription plans for the Company’s shares offered to its directors, executive officers and employees or individuals who provide services to the Company or the Company’s subsidiaries, as well as to directors, executive officers and employees of other companies, directly or indirectly controlled by the Company;
XII. based on a proposal from the Company’s Board of Directors, deliberate on the distribution of dividends and profits;
XIII. in case the Company is liquidated, elect and dismiss the liquidator and Fiscal Council;
XIV. deliberate on the listing or delisting from the Novo Mercado;
XV. choose an institution or specialized company responsible for the drafting of a valuation report of our shares, among a list of companies appointed by our board of directors, if we decide to go private or delist from the Novo Mercado, as provided in Chapter VI of these Bylaws;
XVI. deliberate on any matter submited by the Board of Directors; and
XVII. deliberate on the issuance of debentures, pursuant to provisions of Brazilian Corporate Law and Article 17, XIX, of these Bylaws.
Article 13 - Pursuant to the applicable law and these Bylaws, the Company shall be managed by a Board of Directors and a Board of Executive Officers.
Paragraph 1 - Managers are instated through an agreement recorded in the Minutes of the Meetings of the Board of Directors or in the Minutes of the Meetings of the Board of Executive Officers, as the case may be, executed by the manager that took office (management pledge is unnecessary), and are subject to the previous execution of the Consent Agreement, as required by the Rules of the Novo Mercado, as well as to the fulfillment of legal requirements.
Paragraph 2 - When taking office, the managers shall make all statements required by applicable law, which includes sending a notice to the BM&FBOVESPA with the number and characteristics of securities issued by the Company and held by them, including any derivatives.
Paragraph 3 - The Shareholders’ Meetings shall fix the total annual budget to compensate the managers. Pursuant to these Bylaws, the Board of Directors shall deliberate on the individual compensation to be paid to each manager.
Board of Directors
Article 14 - The Board of Directors shall consist of five (5) to ten (10) members (or such other number of members to be determined from time to time by the shareholders), elected and dismissed at a Shareholders‘ Meeting for a two-year (2) term and may be reelected (a term of one (1) year is defined as the period between two Shareholders’ Meetings).
Paragraph 1 - The Shareholders’ Meeting shall deliberate, by majority vote, before the election of its members, on the number of members of the Board of Directors, which shall consist of at least five (5) members, for every two-year (2) period. Blank votes are not taken into account.
Paragraph 2 - If there is a need for an additional member of the Board of Directors, the Shareholders’ Meetings shall elect an alternate member, whose term of office shall be equal to the other active members.
Paragraph 3 - Pursuant to Paragraph 4 of this Article and the Rules of Novo Mercado, at least twenty percent (20%) of the members of the Board of Directors must be Independent Directors. In order to have this percentage, if the number of directors is a fractional number, rounding shall be made as follows: (i) figures equal to or greater than 0.5 will be rounded up; or (ii) figures lower than 0.5 will be rounded down.
Paragraph 4 - Pursuant to these Bylaws, an "Independent Director" is a member that: (i) has no ties to the Company, except the ownership of shares; (ii) is not the Controlling Shareholder (as defined under Article 30, Paragraph 1 of these Bylaws), his/her spouse or his/her direct relative and is not tied to a company or entity related to the Controlling Shareholder (and has not been tied to a company or entity related to the Controlling Shareholder in the last three (3) years), except persons tied to public teaching or research institutions; (iii) in the last three (3) years has not been an employee or officer of the Company, the Controlling Shareholder or any company controlled by the Company; (iv) is not a supplier or a direct or indirect purchaser of services and/or products provided by the Company, affecting his/her independence; (v) is not an employee or manager of a company or entity that provides services and products to or demands services or products from the Company, in magnitude that results in loss of independence; (vi) is not the spouse or direct relative of a manager of the Company; (vii) does not receive any other payment from the Company, in addition to his/her compensation as a director (except for cash profits from share ownership). Any member elected pursuant to Article 141, paragraphs 4 and 5 of Brazilian Corporate Law is also an Independent Director. Qualification as an Independent Director shall be specifically stated in the minutes of the Shareholders’ Meeting in which the Independent Director is elected.
Paragraph 5 - At a Shareholders’ Meeting, the shareholders shall deliberate on the number of members of the Board of Directors, which must be composed of at least five (5) members.
Paragraph 6 - The members of the Board of Directors shall take office after they sign their formal admission in the book of Minutes of the Board of Directors and Executive Board meetings. The members of the Board of Directors shall remain in office until the next members are elected, except when otherwise provided at a Shareholders’ Meetings.
Paragraph 7 - A member of the Board of Directors must be trustworthy and may not (i) work in companies that are competitors of the Company; or (ii) represent a conflict of interest with the Company. However, shareholders may choose dispense with the prohibitions in (i) and (ii) for any director at any Shareholders’ Meeting. In addition, a current member of the Board of Directors shall not vote on any matters in which he/she meets the prohibitions in (i) and (ii) above.
Paragraph 8 - The member of the Board of Directors shall not access information or attend Board Meetings in connection with matters in which he/she has or represent a conflict of interest with the Company.
Paragraph 9 - To improve its performance, the Board of Directors may create committees or working groups with defined goals, consisting of members of the management and/or other people, directly or indirectly, connected to the Company and appointed by the Board of Directors. The Board of Directors shall approve the internal rules of committees or working groups created.
Paragraph 10 - If any shareholder intends to appoint one (1) or more people to the Board of Directors, and such individuals have not been part of most recent Board of Directors, such shareholder shall send a written notice to the Company setting forth the name, experience and complete CVs of the candidates, five (5) days before the Shareholders’ Meeting in which the Directors will be elected.
Article 15 - The Board of Directors shall consist of one (1) Chairman and one (1) Vice Chairman, elected at a Shareholders’ Meeting. The Vice Chairman shall act as Chairman if the Chairman is absent or temporarily impeached, irrespective of any fair notice. In case both the Chairman and the Vice Chairman are absent or temporarily impeached, the role of the Chairman shall be carried out by another member of the Board of Directors appointed by the Vice Chairman.
Paragraph 1 - The Chairman or the Vice Chairman of the Board of Directors shall call the board meetings and the Chairman shall chair the board meetings, unless the Chairman appoints, in writing, another Director, Officer or shareholder to chair the board meetings.
Paragraph 2 - On the resolutions of the Board of Directors, the Vice Chairman has the tie breaking vote.
Article 16 - The Board of Directors shall normally meets four (4) times a year, at least once a quarter, and, extraordinarily, whenever the Chairman or the Vice Chairman of the Board of Directors calls a meeting.
Paragraph 1 - Call notices shall include the date, time and agenda of such meetings and shall be delivered, in writing, at least fifteen (15) days before the meeting is held, by personnal delivery, electronic mail or facsimile to the directors at the location informed by them to the Company. Any and all back-up material necessary and relevant to decisions to be made at the meetings shall be delivered in the same conditions as the call notices, at least five (5) days before the meetings.
Paragraph 2 - If it is necessary to call an urgent meeting of the Board of Directors, it may be called by any Director, upon delivery of call notice to each Director, as previously defined; however, the call notice may be sent at least forty-eight (48) hours before the meeting.
Paragraph 3 - All decisions made by the Board of Directors shall be included in the book of Minutes of the Meetings of the Board of Directors and executed by the attending directors.
Paragraph 4 - The members of the Board of Directors shall attend any meeting of the Board of Directors through telephone, video conference or other means of communication that enables all attending members to clearly understand the decisions discussed. All members of the Board of Directors attending the meeting through such means shall be considered as attending the meeting. However, all votes made through these means shall be subsequently confirmed in writing and delivered to the Chairman and the Vice Chairman of the Board of Directors.
Paragraph 5 - At meetings of the Board of Directors, votes previously sent by facsimile, electronic mail or any other means of communication are accepted and the members that chose to send their previous votes are considered as having attended the meeting.
Paragraph 6 - If all active members of the Board of Directors attend the meeting, the call notice specified in the Paragraph 1 of this Article is not necessary.
Paragraph 7 - The quorum for the meetings of the Board of Directors shall consist on the presence of a majority of Directors. Decisions shall be taken by majority vote of the members attending the meeting. If a quorum is not achieved at any duly called meeting of the Board of Directors, the Directors present at such meeting may adjourn the meeting and such adjourned meeting shall be reconvened by the Chairman or any other Director present at such meeting at least seven (7) days’ prior written notice to each Director. At such reconvened meeting, the quorum shall be one less than a majority of Directors.
Paragraph 8 - Each Director shall have one (1) vote on all matters submited to the Board of Directors.
Article 17 - In addition to other activities provided by law or these Bylaws, the Board of Directors shall:
I. carry out all regulations of the Company’s business (the Board of Directors may take any matter that is not clear to be privately examined at Shareholders’ Meetings or by the Board of Executive Officers);
II. determine the general guidance of the Company’s business;
III. elect and dismiss the members of the Board of Executive Officers;
IV. establish the respective duties of the Executive Officers and the limits of their authority not specified in these Bylaws, as well as appointing the Investor Relations Officer;
V. deliberate on call notices for Shareholders’ Meetings, whenever necessary, or pursuant to Article 132 of the Brazilian Corporate Law;
VI. inspect the management of the Officers and examine the books and documents of the Company, at any time, including the request of information about agreements entered into or to be shortly entered into and any other acts;
VII. analyze the Company’s quarterly results;
VIII. hire and dismiss independent auditors in accordance with the applicable law. The Company’s independent auditors shall report to the Board of Directors;
IX. notify independent auditors to explain any relevant matters;
X. examine Management’s report and the Board of Directors’ accounts and deliberate if they will be discussed at Shareholders’ Meetings;
XI. authorize, "ad referendum" of the next Shareholders’ Meetings, the distribution of dividends or interest on capital stock, based on annual or interim balance sheet statements;
XII. approve the annual budget and its changes, particularly, those that, in full, will cause an increase in expenses greater than fifteen percent (15%) of the approved annual budget, annual and business plans, growth projects and investment plans, as well as follow-up the execution of plans and projects;
XIII. determine the need for inspections, auditing or rendering of accounts in the Company’s subsidiaries, associated or controlled companies.
XIV. authorize the issuance of the shares from the Company, within the limits authorized by Article 6 herein, and establish the conditions for issuance, including price and term of full payment, any exclusions (or reductions in the term) of preeemptive rights, warrants or convertible debentures, which may occur through sale on a stock exchange or public subscription or through exchange of shares in a public offering for purchase of control, pursuant to the law;
XV. manifest favorable or contrary regarding any public offering for the acquisition of shares that has as object the shares of the Company, through previous reasoned report, issued within 15 (fifteen) days from the date of publication of the public offering announcement, which should address at least (i) the convenience and opportunity of the public offering for acquisition of shares regarding the interest of all shareholders and in relation to the liquidity of the securities they own, (ii) impact of the public offering for the acquisition of shares over the Company’s interests, (iii) strategic plans disclosed by the offeror in relation to the Company, (iv) other matters which the Board of Directors considers appropriate, as well as the information required by the rules established by CVM.
XVI. authorize the purchase, by the Company, of its own shares, or the implementation of options to purchase and sell shares issued by the Company (such shares will be held in treasury and/or cancelled or sold in the future, pursuant to Article 30 of Brazilian Corporate Law);
XVII. deliberate on the issuance of warrants;
XVIII. approve any stock option granting for directors, executive officers and employees or any individuals providing services for the Company or its controlled companies, as well as to directors, executive officers and employees of other companies, directly or indirectly controlled by the Company, without preemptive rights for shareholders pursuant to the conditions of programs approved at Shareholders‘ Meetings;
XIX. determine the general policy for the payment of salaries and other general personnel policies, including, but not limited to, benefits, bonuses, compensation structures and profit sharing plans;
XX. deliberate on the issuance of non-convertible, unsecured debentures or commercial papers;
XXI. authorize the Company to guarantee the obligations of any third parties not controlled by the Company;
XXII. approve any disposal of assets or legal rights associated with the Company’s permanent assets;
XXIII. approve the establishment of liens or pledges on the Company‘s assets or legal rights or the granting of collateral to third parties;
XXIV. define a list of three (3) institutions specialized in financial valuations that will prepare valuation report of the Company’s shares, as indicated in Articles 33, 34 and 35 of these Bylaws;
XXV. approve the depositary institution for any book-entry services involving the Company’s shares;
XXVI. decide on the priorities of certain corporate undertakings and the adoption of internal operational regulations, in accordance with these Bylaws and the applicable law; and
XXVII. resolve on any transaction by the Company or any of its subsidiaries with or involving its shareholders or any affiliate of its shareholders (other than the Company or any of its subsidiaries) or any related party of any shareholder of the Company other than any transaction that is subject to arms’-length terms as customary in Brazil.
Board of Executive Officers
Article 18 - The Board of Executive Officers shall consist of two (2) to six (6) members, according to the case, namely: a) one (1) CEO; b) one (1) CFO; c) one (1) Investor Relations Officer; d) one (1) IT Officer. The position of Investor Relations Officer may be exercised simultaneously with any other officers’ position, subject to approval by the Board of Directors and in accordance with the applicable law and these Bylaws.
Paragraph 1 - The members of the Board of Executive Officers are elected for a two-year (2) term and may be reelected;
Paragraph 2 - The members of the Board of Executive Officers that are not reelected shall remain in office until the new members take office.
Paragraph 3 - In case of definitive impeachment or vacancy of the position of an officer, the Board of Directors must immediately call a meeting for election of an alternate officer.
Paragraph 4 - In case of vacancy or impeachment of any officer for a continuous period longer than thirty (30) days, the respective mandate will be terminated, pursuant to Paragraph 3 of these Bylaws, except when otherwise authorized by the Board of Directors.
Paragraph 5 - An Officer shall not simultaneously replace more than one Officer.
Article 19 - The Board of Executive Officers shall meet upon the call of the CEO or any two (2) Officers, together, when necessary.
Sole Paragraph - All decisions by the Board of Executive Officers shall be included in the minutes included in the corresponding book of minutes of the Executive Board and executed by all attending officers.
Article 20 - The Board of Executive Officers shall:
I. manage and organize the Company’s business;
II. review and update the Company’s administrative and managerial practices regarding the Company’s expansion, new administration techniques and modern medical developments;
III. approve the opening and closing of affiliates, offices, medical centers and any other establishments in connection with the Company’s corporate purpose, in Brazil or abroad;
IV. verify compliance with these Bylaws and any decisions of the Board of Directors and Shareholders’ Meetings;
V. producing the Administration Report, along with the Independent Auditors’ Report and the proposal for the distribution of profits (all of which are to be examined annually by the Board of Directors); and
VI. submit the Company’s and its controlled companies’ interim financial statements to the Board of Director.
Article 21 - In addition to their tasks and powers granted by the Board of Directors, the Officers shall perform the following tasks:
Paragraph 1 - The CEO shall coordinate activities in connection with the Company’s general planning, coordinate and supervise the Company’s managerial activities, prepare and submit to the Board of Directors the annual business plan and the Company‘s annual budget, call and chair meetings of the Board of Executive Officers and represent the Company, as plaintiff or defendant, in courts and out-of-courts.
Paragraph 2 - The CFO shall propose financing alternatives and approve the financial conditions of the Company’s business, manage the Company’s cash, accounts payable and accounts receivable, coordinate the accounting, planning and financial departments and represent the Company before financial institutions.
Paragraph 3 - The Investor Relations Officer shall coordinate all disclosure to investors, the CVM and stock exchanges and organized over-the-counter markets in which the Company is registered and maintain and update the Company’s registration as a publicly-held company, complying with any laws and regulations applicable to public companies.
Paragraph 4 - The IT Officer shall coordinate activities in connection with the Company’s information and database systems.
Article 22 - The Company may be represented by the following individuals:
(a) the CEO acting alone;
(b) any two (2) Officers;
(c) any Officer, together with an assignee granted specific powers through a valid power of attorney; and
(d) one (1) or more assignees granted specific powers through a valid power of attorney, in accordance with Sole Paragraph below.
Sole Paragraph - Power of attorneys shall always be granted in the name of the Company (i) by the CEO only; (ii) by the CFO jointly with any other Officer; or (iii) any other two (2) Officers appointed by the CEO. Power of attorneys granted by the Company shall expressely state its powers and shall have a limited term, no longer than twelve (12) months, except a valid power of attorney granted for judicial purposes, which may have an unlimited term.
Article 23 - The Fiscal Council shall be a non-permanent body with powers granted by law. The Fiscal Council may only be installed through decision at Shareholders‘ Meeting or request of shareholders, in accordance with the law.
Paragraph 1 - Pursuant to the law, the Fiscal Council shall have three (3) to five (5) members and an equal number of alternates.
Paragraph 2 -The members of the Fiscal Council shall have a one-year mandate and may be reelected.
Paragraph 3 - The members of the Fiscal Council shall elect their Chairman in their first meeting.
Paragraph 4 - Members are instated upon the signature of an agreement recorded in the books that include the minutes and reports of the Fiscal Council, executed by the member taking office and are subject to the previous execution of the Consent Agreement of the members of the Fiscal Council, as required by the Rules of the Novo Mercado, and to the fulfillment of legal requirements.
Paragraph 5 - In case of vacancy or impeachment, the members of the Fiscal Council shall be replaced by their alternates.
Paragraph 6 - In case of vacancy, a member of the Fiscal Council shall be replaced by his/her alternate; if there is no alternate member, a Shareholders‘ Meeting shall be called to elect the member for the vacant place.
Article 24 - When established, the Fiscal Council shall meet, in accordance with the applicable law, whenever necessary and at least quarterly to review the Company’s financial statements.
Paragraph 1 - Independent of any formalities, a meeting attended by all members of the Fiscal Council shall be deemed duly called.
Paragraph 2 - Decisions of the Fiscal Council are made through absolute majority vote taken at a meeting attended by a majority of its members.
Paragraph 3 - All resolutions of the Fiscal Council shall be included in the minutes recorded in the books of minutes and reports of the Fiscal Council and signed by the attending Members.
Paragraph 4 - Remuneration for the members of the Fiscal Council shall be established at the Shareholders’ Meeting that appoints them, with due observance of Paragraph 3 of Article 162 of the Brazilian Corporate Law.
Article 25 - The fiscal year begins on January 1 and ends on December 31 each year.
Sole Paragraph - At the end of each fiscal year, the Board of Executive Officers shall prepare the Company’s financial statements, in accordance with the applicable legal requirements and the Rules of the Novo Mercado.
Article 26 - Along with the financial statements for the year, the Board of Directors shall present at the Shareholders’ Meeting a proposal for allocation of net income for the year, to be calculated after deducting the interest referred to in Article 190 of the Brazilian Corporate Law, adjusted for purposes of calculating the dividends under Article 202 of the same law, in compliance with the following order of deduction:
a) Before any other distribution, five percent (5%) will be allocated to the legal reserve, which shall not exceed twenty percent (20%) of the capital stock. Allocation of part of the fiscal year’s net income to the legal reserve shall not be required when the balance of the legal reserve plus the amount of capital reserves, pursuant to Article 182 of the Brazilian Corporate Law, exceeds thirty percent (30%) of the capital stock;
b) a portion, as per proposal by the management, may be allocated to contingency reserves and reversion of those same reserves formed in previous fiscal years, in accordance with Article 195 of the Brazilian Corporate Law;
c) a portion shall be allocated to the payment of the mandatory annual minimum dividend to shareholders;
d) in the fiscal year in which the amount of the mandatory dividend exceeds the realized portion of the fiscal year’s net income, the shareholders may at an Shareholders’ Meeting, as proposed by the management, allocate the excess amount to future unrealized profit reserve, in compliance with provisions of Article 197 of the Brazilian Corporate Law;
e) a portion, as proposed by management, may be retained based on capital budget previously approved, pursuant to Article 196 of the Brazilian Corporate Law; and
f) the Company shall maintain the statutory profit reserve called "Expansion Reserve", in order to finance the expansion of activities of the Company and its subsidiaries and affiliated companies, even by means of subscription of capital increase or creation of new undertakings, which shall be made up to one hundred percent (100%) of the remaining net income balance after the legal and statutory deductions and whose balance, when added to the balances of the other profit reserves (except for unrealized profit reserve and reserve for contingencies), may not exceed one hundred percent (100%) of the Company’s subscribed capital stock.
Paragraph 1 - Shareholders are ensured the right to receive an annual mandatory dividend no lower than twenty five percent (25%) of the net income for the year, adjusted according to provision of Article 202 of the Brazilian Corporate Law.
Paragraph 2 - The Shareholders’ Meeting may grant the Board of Directors and the Board of Executive Officers up to ten percent (10%) of net income as part of a profit sharing plan, provided that its total amount does not exceed the directors’ annual remuneration or the ten percent (10%) limit, whichever is lower, in accordance with the applicable law. The Board of Directors shall be responsible, subject to the limit set forth at the Shareholders’ Meeting, for determining the criteria for the distribution of profit to management.
Paragraph 3 - If the profit reserve balance exceeds the Company’s capital stock, the shareholders at the Shareholders’ Meeting shall decide on how to use the surplus to increase of the capital stock or, still, for distribution of dividends to the shareholders.
Article 27 - Upon the proposal of the Board of Executive Officers and with the approval of the Board of Directors "ad referendum" of the Shareholders’ Meeting, the Company may pay or credit interest on capital stock to the shareholders, subject to the applicable legislation. The amounts paid thereunder may be offset against the mandatory dividend set forth in these Bylaws.
Paragraph 1 - If the interest is credited to the shareholders during the fiscal year and is offset against the mandatory dividend, shareholders shall be remunerated with the dividends they are entitled to and shall receive payment for any outstanding balance. In the event that the amount of dividend due is less than the amount credited to the shareholders, the Company will not be allowed to collect the excess balance from the shareholders.
Paragraph 2 - The effective payment of interest on capital stock, provided that it occurred during the fiscal year, shall depend upon the resolution of the Board of Directors in the course of the fiscal year or of the following year, but never after the dates for the payment of dividends.
Article 28 - The Company may prepare balance sheets every six (6) months or less and may declare by resolution of the Board of Directors:
(a) payment of dividends or interest on capital stock, charged to income recorded in the six-month (6) balance sheet, offset against the mandatory dividend amount, if any, and
(b) payment of dividends or interest on capital stock, charged to income recorded in balance sheets for periods of less than six (6) months, offset against the mandatory dividend amount, if any, since the total dividend paid out in each six-month (6) period of a fiscal year does not exceed the amount of capital reserves.
Sole Paragraph - The Company may also, upon resolution of the Board of Directors, declare interim dividends or interest on capital stock, charged to retained earnings or profit reserve recorded in the last annual balance sheet, accounted to the mandatory dividend amount, if any.
Article 29 - Dividends not received or claimed shall lapse within three (3) years as of the date on which they were made available to the shareholder and shall revert back to the Company.
Article 30 - The transfer of the Company’s controlling stake, either directly or indirectly, in a single transaction or a series of successive transactions, must be agreed upon under a suspensive or resolutory condition that the purchaser of such corporate control will hold a public offering for the acquisition of the remaining shares of the Company, subject to the terms and within the time limits prescribed by prevailing legislation and the Rules of the Novo Mercado, so as to ensure that the holders of such shares are treated in the same manner as the selling Controlling Shareholder.
Paragraph 1 - For the purposes of these By-laws, the capitalized terms below shall have the following meanings:
"Purchasing Shareholder" means the one for whom the Controlling Shareholder transfers the controlling interest in a control transference of the company, including, but not limited to, any individual or entity, investment fund, joint ownership, securities portfolio, universality of rights, or other form of organization, residing, domiciled or with its main place of business in Brazil or abroad, or Group of Shareholders.
"Control" (as well as the mutually related terms, "Controlling Power," "Controller," "under Joint Control" or "Subsidiary") means the power effectively used to direct the corporate affairs and establish guidelines for the operation of the Company’s bodies, directly or indirectly, de jure or de facto, regardless of ownership interest held. A relative controlling interest shall be deemed to exist in relation to the person or Group of Shareholders holding the amount of shares necessary to ensure an absolute majority of votes of the shareholders present at the most recent three Shareholders’ Meetings of the Company, even if they do not hold the number of shares that actually provide them with an absolute majority of the voting stock.
"Group of Shareholders" means a group of two or more people (a) who are bound by contracts or voting agreements of any nature, including any written or verbal agreements of shareholders, whether directly or through any Subsidiary, Controlling Company, or Jointly-Controlled Companies; or (b) among whom there is a controlling relationship, whether directly or indirectly; or (c) who are subject to Joint Control; or (d) who represent a common interest. The following are examples of people representing a common interest: (i) one individual who directly or indirectly holds fifteen percent (15%) or more of the capital stock of the other individual; and (ii) two individuals who have in common a third investor who directly or indirectly holds fifteen percent (15%) or more of the capital stock of these two individuals. Any joint venture, investment fund or club, foundation, association, trust, joint ownership scheme, cooperative, securities portfolio, universality of rights, or any other form of organization or undertaking, whether organized in Brazil or abroad, shall be deemed to be part of a same Group of Shareholders whenever any two (2) or more of such entities: (a) are administered or managed by the same legal entity or by parties related to the same legal entity; or (b) share the majority of its directors and officers.
Paragraph 2 - The selling Controlling Shareholder(s) or the selling Controlling Group of Shareholders may not transfer the ownership of their shares and the Company may not record any transfer of shares to the Acquirer or to those who will hold the Controlling Power, prior to the subscription by the latter of the Consent Agreement of the Controllers under the Rules of the Novo Mercado.
Paragraph 3 - The Company shall not record the transference of shares to any shareholder(s) acquiring the Controlling Power prior to the execution by said shareholder(s) of the Consent Agreement of the Controllers referred to in Paragraph 2 herein.
Paragraph 4 - No shareholder agreement with provisions for the exercise of the Controlling Power may be registered in the Company’s headquarters prior to the execution of the Consent Agreement referred to in Paragraph 2 herein.
Article 31 - The tender offer referred to in the previous Article shall also be held:
I. in the event of onerous assignment of the rights of subscription of shares and other marketable securities convertible into shares which may result in transference of the Company’s Controlling Power; and
II. in the event of indirect sale of the Company’s Controlling Power, the selling Controlling Shareholders shall be bound to declare to BM&FBOVESPA the amount ascribed to the Company regarding said sale and to attach evidentiary documents.
Article 32 - Those who acquire the Controlling Power, due to a specific share purchase agreement entered into with the Controlling Shareholder(s) or Controlling Shareholder Group, involving any amount of shares, shall be bound to:
I. hold the tender offer referred to in Article 30 herein;
II. pay, as indicated below, an amount equal to the difference between the public offering price and the amount paid per share eventually acquired on the stock exchange within six (6) months prior to the Control acquisition, duly adjusted to the time of payment. That amount should be distributed among all the people who sold shares of the Company at the stock market where the buyer made the purchase, proportionally to the daily seller net balance of each person, while the BM&FBOVESPA carries out the distribution in accordance to its regulations;
III. take the proper measures to reset the minimum percentage of twenty-five percent (25%) of the total outstanding shares of the Company (free float), within the six months subsequent to the acquisition of the Controlling Power.
Article 33 - At the public offering for the purchase of shares to be carried out by the Controlling shareholder(s), Controlling Group of Shareholders or by the Company to cancel the Company‘s registration as publicly-held company, the minimum offering price shall correspond to the economic value determined in a valuation report, as provided under Article 35 of these Bylaws.
Article 34 - In the event the shareholders gathered at a Shareholders’ Meeting resolve to delist the Company from the Novo Mercado, the Controlling shareholder(s) or Controlling Group of Shareholders of the Company shall carry out a public offering for the purchase of shares either because Company’s securities will be registered to be traded outside the Novo Mercado, or due to a corporate reorganization in which the shares of the resulting company are not allowed to be traded in the Novo Mercado within 120 (one hundred twenty) days from the date of the Shareholders’ Meeting that approved the transaction, in compliance with the applicable law and rules included in the Rules of the Novo Mercado. The minimum offering price shall correspond to the economic value to be determined in a valuation report, as provided under Article 35 of these Bylaws. The notice stating that the public offering has been carried out shall be communicated to BM&FBOVESPA and disclosed to the market promptly after a Shareholders’ Meeting of the Company in which the mentioned delisting or reorganization was adopted, as the case may be.
Article 35 - The valuation report provided under Articles 33 and 34 of these Bylaws shall be prepared by a specialized firm, with proven experience and independent from the Company, its Directors and Controlling Shareholders, as well as from their decision power, and such report shall also meet the requirements set forth under Paragraph 1 of Article 8 of the Brazilian Corporate Law and contain the liability provided under Paragraph 6 of the same Article 8.
Paragraph 1 - The choice of the specialized company in charge of determining the economic value of the Company provided under Articles 33 and 34 of these Bylaws shall be adopted at a Shareholders’ Meeting, based on the list of three names presented by the Board of Directors, and the corresponding resolution shall be taken by the majority of votes of shareholders representing outstanding shares present at the Shareholders’ Meeting that resolves on the matter, not considering the blank votes in the calculation. The Shareholders’ Meeting provided under this Paragraph 1, if held on the first call, shall have the presence of shareholders representing no less than twenty percent (20%) of the total outstanding shares or, if held on the second call, may have the presence of any number of shareholders representing outstanding shares.
Paragraph 2 - The cost of preparing the valuation report shall be fully borne by those in charge of carrying out the public offering for the purchase of shares.
Article 36 - One single public offering for the purchase of shares may be organized to meet more than one of the purposes provided under this Chapter VI, in the Rules of the Novo Mercado or in the regulations issued by CVM, since the procedures of all types of public offerings for the purchase of shares may be harmonized and that there is no prejudice to the targets of the offering, and CVM‘s authorization is obtained when so requested by the applicable law.
Article 37 - Those responsible for carrying out the public offerings described in this Chapter VI, in the Rules of the Novo Mercado or in the regulations issued by CVM may ensure that the offerings will be carried out through any shareholder.
Article 38 - In the event of does not exist a Controlling Shareholder:
I . whenever the cancellation of registration of publicly-held company is adopted at a Shareholders’ Meeting, the public offering for the purchase of shares of the Company shall be carried out by the Company itself.
II. whenever the delisting of the Company from the Novo Mercado is adopted at a Shareholders’ Meeting, either by registration for trading of its securities outside the Novo Mercado, or by corporate reorganization in which the securities of the resulting company are not allowed to be traded in the Novo Mercado within 120 (one hundred twenty) days from the date of the Shareholders’ Meeting which approved the transaction, the delisting will be subject to the public offering for the acquisition of shares in the same conditions disposed in Article 34 of these Bylaws
Paragraph 1 - The Shareholders’ Meeting referred to in item II above shall set those responsible for conducting the public offering for the acquisition of shares, who will be present at the Meeting, shall expressly assume the obligation to proceed with the offering.
Paragraph 2 - In case there is no definition of those responsible for public offering for the acquisition of shares due to corporate reorganization, in which the resulting company does not have its securities allowed to be traded on the Novo Mercado, the shareholders who voted in favor of the reorganization will be in charge of proceeding with such offering.
Article 39 - Company’s delisting from the Novo Mercado due to the non accomplishment of obligations provided in the Rules of Novo Mercado is subject to the public offering for the acquisition of shares, at least, for the economic value of the shares, to be determined through a valuation report as described in Article 35 hereof, according to the laws and regulations.
Paragraph 1 - The Controlling Shareholder shall make a public offering for the acquisition of shares described in the caput of this Article.
Paragraph 2 - In the event there is no Controlling Shareholder and the delisting from the Novo Mercado mentioned in the caput is deliberated in Shareholders’ Meeting, shareholders that voted in favor of the deliberation which led to this non accomplishment, shall make public offering for acquisition of shares described in the caput.
Paragraph 3 - In the event there is no Controlling Shareholder and the delisting from the Novo Mercado mentioned in the caput occurs due to acts or facts of the management, Company’s Management shall summon Shareholders‘ Meeting whose agenda will be deliberation on how to remedy the non accomplishment of the obligations included in the Rules of Novo Mercado or, if appropriate, decide by delisting from the Novo Mercado.
Paragraph 4 - If the Shareholders’ Meeting referred to in Paragraph 3 above deliberates for delisting from the Novo Mercado, such Meeting shall define those responsible to proceed with the public offering for the acquisition of shares set out above, which will be present at the Meeting, and shall expressly assume the obligation to proceed with the offering.
Article 40 - The Company, its shareholders, Directors and members of the Fiscal Council undertake to resolve, by means of arbitration, any and all disputes or controversies that may arise amongst them, particularly in connection with or resulting from the enforcement, validity, effectiveness, construction, breach and effects thereof, of the provisions under the Enrollment Agreement (Contrato de Participação) of the Novo Mercado, Rules of the Novo Mercado, Arbitration Rules, Sanctions Rules, these Bylaws, any shareholders’ agreements filed at the Company’s headquarters, the provisions of the Brazilian Corporate Law, rules published by the National Monetary Council (CMN), by the Central Bank of Brazil or CVM and under other rules applicable to the capital markets in general, at the Market Arbitration Chamber pursuant to its Arbitration Rules.
Sole Paragraph - Without prejudice to the validity of this arbitration clause, the requirement of any urgent measures from any of the parties, before the constitution of the Court of Arbitration, shall be referred to the Brazilian courts, according to item 5.1.3 of the Rules of the Market Arbitration Chamber.
Article 41 - The Company will be dissolved or liquidated in the events provided in law, and a Shareholders’ Meeting shall determine the form of liquidation and elect the liquidator or liquidators, as well as the Fiscal Council that shall operate during this period, establishing their powers and determining their compensations, in compliance with legal formalities.
Article 42 - In order to comply with the Securities Commission’s Practice Bulletin No. 35, dated as of September 1, 2008, the Company may be assisted by a Special Independent Committee, as an interim body, created, solely and exclusively, to analyze the corporate operations’ conditions involving the Company and to submit its recommendations to the Company’s Board of Directors, with due regard to the guidelines set forth in the abovementioned Practice Bulletin.
Paragraph 1 - The Special Independent Committee shall be composed of three (3) members, elected by the Board of Directors, all independent, whether managers of the Company or not, which shall have notorious experience and technical capacity and that will be subject to the same legal obligations and liabilities as managers, in accordance with article 160 of the Brazilian Corporate Law.
Paragraph 2 - Those members of the Special Independent Committee that meet the requirements of the definition "independent director" set forth in the Listing Rules of the Novo Mercado of the São Paulo stock exchange shall be presumed as independent.
Paragraph 3 - The Special Independent Committee shall not have enforceable or decision-making duties and its’ opinions, proposals and recommendations shall be submitted for resolution by the Board of Directors.
Paragraph 4 - The Board of Directors shall be responsible for determining the compensation of the members of the Special Independent Committee.
Article 43 - The events not provided under these Bylaws shall be solved at the Shareholders’ Meeting and regulated according to the provisions of the Brazilian Corporate Law, in accordance with the Rules of the Novo Mercado.
Article 44 -The Company shall comply with the shareholders’ agreements filed at its headquarters, and the registration of share transfer and inclusion of vote made at a Shareholders’ Meeting or meeting of the Board of Directors against their terms are hereby forbidden.
Article 45 -The Company, its shareholders, its Management and Fiscal Council members, when installed, are subject to the provisions of applicable laws and regulations of the Novo Mercado of the BM&FBOVESPA
Article 46 - In case of conflict between the provisions of these Bylaws and the provisions of the Rules of the Novo Mercado regarding the rights of shareholders in public offerings provided herein, should prevail the rules of the Novo Mercado.