Corporate Governance - By Laws
Article 1 - Marisa Lojas S.A. ("Company") is a publicly-held company governed under these Bylaws and the applicable legislation. Admission for trading in the New Market Special Corporate Governance Segment of the BM&FBOVESPA S.A. - Securities, Commodities and Futures Exchange ("BM&FBOVESPA") subjects the Company, its shareholders, its Management and the members of its Fiscal Council, when installed, to the provisions of the New Market Regulations of the BM&FBOVESPA ("New Market Regulations").
Sole Paragraph - The provisions of the New Market Regulations shall prevail over the Bylaws’ provisions, in the events of prejudice to the rights of the recipients of the public offerings set forth in these Bylaws.
Article 2 - The Company’s headquarters is located in the City of São Paulo, State of São Paulo, at Rua James Holland, 422/432, Bairro da Barra Funda.
Sole Paragraph - The Company may open branches, representative offices, warehouses, offices and any other establishments in Brazil upon resolution taken by the Board of Executive Officers.
Article 3 - The Company is engaged in the retail sales of women‘s, men‘s and children‘s apparel and accessories; bed, bath and table linen; fabrics; handbags; footwear and accessories; travel items; perfumery; trimming supplies; trinkets; glasses and souvenirs; stationery; toys; plastic; photographic, cinematographic and phonographic material; CDs and DVDs; telephone sets; books and magazines; gift and decoration items; home appliances and machinery; kitchen utensils and cutlery; and the stores may be organized by sectors. The Company may also be engaged in whole sales, third-party corners, franchising, import and export, rendering of services as a bank correspondent, as well as in the organization, holding of interest and management, in any form, of companies and businesses of any nature, as partner or shareholder.
Article 4 - The Company is established for an indefinite term.
Article 5 - The Company’s fully subscribed and paid-in capital stock totals six hundred and sixty million, one hundred and fifty-eight thousand, six hundred and thirty-nine reais and thirty-six centavos (R$660,158,639.36), divided into one hundred and eighty-five million, four hundred and forty-eight thousand, eight hundred and ninety-one (185,448,891) registered, book-entry common shares, with no par value.
Sole Paragraph - The Company may not issue preferred shares.
Article 6 - The Company is hereby authorized to increase its capital stock by up to four hundred and fifty million (450,000,000) non-par common shares.
Paragraph 1 - Within the limits authorized herein, the Company may, by Board of Directors’ resolution, increase the capital stock, regardless of any statutory amendment. The Board of Directors shall establish the issuance conditions, including price and term for payment thereof.
Paragraph 2 - Within the limit of authorized capital, the Board of Directors may resolve on the issuance of subscription warrant.
Paragraph 3 - The Company’s Board of Directors may grant purchase or subscription option of shares, under the Purchase or Subscription Option Plans approved at General Meetings, to its managers and employees, as well as to managers and employees of other direct or indirect subsidiaries, without granting preemptive rights to the shareholders over the granting or exercise of the options, with due regard for the Article 19, item VI, below.
Paragraph 4 - The Company shall not issue founder’s shares.
Article 7 - The capital stock shall be exclusively represented by common shares and each share shall entitle to one vote in the shareholders’ resolutions.
Sole Paragraph - All shareholders or groups of shareholders are required to disclose via a notice to the Company (which will submit the information to the Brazilian Securities and Exchange Commission (CVM) and the BM&FBOVESPA via the Investor Relations Officer) announcing the acquisition of shares or share voting rights, including by means of rent or usufruct, which, jointly with the shares or the voting rights already held either directly or indirectly, exceed five percent (5%) of the Company’s capital stock, as well as the acquisition of shares directly or indirectly corresponding to more than one percent (1%) of the Company’s capital or multiples of such percentage after a five percent (5%) interest is reached. The same obligation is binding upon holders of debentures convertible into shares and subscription bonds that ensure their holders the acquisition of shares in the amounts set forth in this article, either directly or indirectly. Any infringer of the provisions of this article shall be subject to the penalties described in Article 120 of the Brazilian Corporation Law.
Article 8 - All Company shares shall be book-entry and kept in the name of their holders in trust account held in financial institution authorized by CVM.
Sole Paragraph - The cost incurred with the transfer and registration thereof, as well those incurred with shares in custody may be charged directly from the shareholder by the depositary institution, pursuant to the custodian agreement.
Article 9 - At the Board of Directors’ discretion, the preemptive right over issuance of the shares, debentures convertible into shares or subscription warrant, the placement of which was carried out by trading at the stock exchange or public subscription, or even share swap, in public control acquisition offering, pursuant to law, within the limit of authorized capital, may be excluded or reduced.
Article 10 - The Annual General Meeting shall be held ordinarily once a year and extraordinarily whenever called pursuant to law or these Bylaws.
Paragraph 1 - The General Meeting’s resolutions shall be taken by a majority of votes cast, with due regard for paragraph 1 of Article 36 hereof.
Paragraph 2 - The General Meeting shall resolve on the agenda provided for in the respective call notices.
Paragraph 3 - At the General Meetings, the shareholders shall submit, at least 72 hours in advance, in addition to their identity card, as the case may be: (i) a statement issued by the underwriting institution in the last five (5) days; (ii) the proxy with the grantor’s signature duly notarized; and/or (iii) with respect to the shareholders taking part in the fungible custody of book-entry shares, the statement including the respective ownership interest issued by the applicable body.
Article 11 - The General Meeting shall be installed and chaired by the Board of Directors’ Chairman or, in his/her absence, by any other Board member, by shareholder appointed by the shareholders present thereat, which shall appoint the General Meeting’s secretary.
Article 12 - In addition to the duties provided by law, the General Meeting shall approve:
I. The deregistering of the Company as a publicly-held company;
II. The Company‘s delisting from BM&FBOVESPA New Market segment;
III. Any amendment to the Company’s Bylaws;
IV. Any issuance of shares or other securities convertible into Company shares (unless otherwise expressly established herein), as well as any alteration of rights, preferences, advantages or restrictions attributed to the shares or securities convertible into Company shares;
V. Spin-off, amalgamation, merger (including merger of shares), transformation, winding-up or liquidation, as well as petition in voluntary bankruptcy or reorganization proceeding by the Company;
VI. Establishment of annual total compensation of the Company’s managers;
VII. Approval of the Company’s annual financial statements;
VIII. Resolution on, as per proposal presented by the management, use of profits ascertained for the fiscal year or payment of interest on net equity, based on the Company’s annual financial statements;
IX. Approval and any amendments to the share option plan of managers or employees of the Company, which may not exceed five percent (5%) of its total capital stock;
X. Appointment of a company specialized for preparing the appraisal report of the Company shares, in the event of deregistering or delisting of the Company from the New Market, as provided for in Chapter VI hereof, among the Companies appointed by the Board of Directors; and
XI. Resolving on any matter submitted to the Board of Directors.
Article 13 - The Company shall be managed by the Board of Directors and the Board of Executive Officers.
Paragraph 1 - The members shall be invested in office upon execution of instrument drawn up in proper book, executed by manager invested in office, waiving posting of bond.
Paragraph 2 - With the Company’s adhesion to the BM&FBOVESPA New Market segment, the investiture of members of the Board of Directors and the Board of Executive Officers is subject to the execution of the Management Consent Instrument, as provided for in New Market Listing Regulations, and to compliance with the applicable legal requirements. The managers shall, upon investiture in the respective offices, communicate BM&FBOVESPA the number and characteristics of the securities issued by the Company held directly or indirectly by them, including derivatives.
Paragraph 3 - The managers shall serve until such time as their successors are invested in office.
Article 14 - The Meeting shall establish a limit of total annual compensation for distribution to the managers and the Board of Directors shall resolve on the individual compensation of the managers, with due regard for these Bylaws.
Article 15 - With due regard for the call notice established herein, any management meeting shall be duly held upon attendance of the majority of its members and resolutions shall be taken by absolute majority vote.
Sole Paragraph - Prior call notice of the meeting shall be waived upon attendance of all members, thus accepting, for such purposes, the votes cast in writing.
Board of Directors
Article 16 - The Board of Directors shall be composed of a minimum of five (5) and a maximum of seven (7) members, all of whom elected and removable from office by General Meetings, with a unified term of office of one (1) year, reelection being permitted.
Paragraph 1 - A minimum of twenty percent (20%) of the Board members must be independent members, in compliance with the New Market Regulations, and expressly declared as such in the Minutes of General Meetings that elect them. In addition, Board members elected in accordance with article 141, paragraphs 4 and 5 of Law 6404/76 shall also be considered as independent.
Paragraph 2 - If the percentage referred to in the paragraph above results in a fraction of a number of members, the rounding rules of the New Market Regulations shall be observed.
Paragraph 3 - At the Annual General Meeting, the shareholders shall resolve on the number of Board of Directors’ members and appoint the Board of Directors’ Chairman.
Paragraph 4 - The Board of Directors’ members shall be invested in office upon execution of instrument drawn up in the Company’s records. The Board of Directors’ members serve until such time as their successors are invested in office, unless otherwise resolved by the Annual General Meeting.
Paragraph 5 - The Board of Directors’ members shall have an unblemished reputation, and, except upon authorization by General Meetings, the following members shall not be elected: (i) members who hold positions in companies that may be considered the Company’s competitors; or (ii) members who have or represent conflicting interests with the Company; Board members with the same impediments mentioned above may not exercise their voting rights.
Paragraph 6 - The Board of Directors’ members may not have access to information or participate in Board of Directors’ meetings relating to matters having or representing interest conflicting with the Company; thus the exercise of voting right is expressly forbidden.
Paragraph 7 - In order to better perform its duties, the Board of Directors shall create committees or work groups with defined purposes.
Paragraph 8 - The Board of Directors’ Committees shall be occupied by a majority of Board of Directors’ members, except, however, independent third parties may be invited to occupy positions in the Committees, depending on the committee position and as required in view of the technical qualification of the members invited. The chairman of each committee may or not be a member of the Board of Directors.
Article 17 - The Board of Directors’ Chairman shall be elected at the General Meeting that elects the Board of Directors’ members.
Paragraph 1 - The Chairman shall be entitled to casting vote in the resolutions taken by the Board of Directors.
Paragraph 2 - In the event of vacant position in the Board of Directors not entailing a number of members lower than that established for most of the positions thereof, according to the number of sitting board members established by the General Meeting, the other Board of Directors’ members may (i) appoint alternates to serve until the end of the term of office of the replaced member(s); or (ii) opt for not appointing alternates to occupy vacant positions, provided that the number of members provided for in the main section of Article 16 is observed.
Paragraph 3 - In the event of vacant position in the Board of Directors entailing a number of members lower than that of most positions thereof, according to the number of sitting board members established at the General Meeting, the Board of Directors may call General Meeting to elect alternate(s) to serve until the end of the term of office of the member replaced.
Article 18 - The Board of Directors’ General Meetings shall be held ordinarily on a quarterly basis and extraordinarily whenever called by the Chairman or by a majority of members thereof. The Board of Directors’ meetings shall be exceptionally held by conference call, video conference, electronic mail or other communication media.
Paragraph 1 - The call notices shall be issued, in writing, at least eight (8) days before the meetings And sent by correspondence, fax, messenger, registered mail, telegram, e-mail or any other correspondence against receipt.
Paragraph 2 - All resolutions taken at the Board of Directors shall be included in the minutes drawn up in the respective Board of Directors’ book and signed by the board members present thereat.
Paragraph 3 - At the Board of Directors’ meetings, votes cast by proxy granted to other board member, votes in writing cast in advance, by fax, electronic mail or by any other communication media shall be accepted, thus computing as present thereat the board members doing so.
Article 19 - In addition to the duties established by law and these Bylaws, the Board of Directors shall:
I. elect and dismiss the Company’s Chief Executive Officer ("CEO"), as well as the other Company’s Officers (after hearing the nominations made by the CEO) and establish the respective duties, with due regard for these Bylaws;
II. perform or approve, in relation to the Company’s subsidiaries, any act provided for in Article 12 above or related thereto in this Article 19;
III. establish vote to be cast by the Company’s representatives or board members of the Company’s subsidiaries appointed by the Company, at any general meetings, General Meetings, or management meetings of the Company’s subsidiaries;
IV. approve shareholders agreements of the Company’s subsidiaries to be executed by the Company;
V. establish association of the Company with other companies to form partnerships, consortiums or joint venture relationships;
VI. grant purchase and subscription option of shares, pursuant to share purchase option granting plan approved at the General Meeting to its managers and employees, as well as managers and employees of other direct or indirect subsidiaries of the Company, without preemptive right of the shareholders over the granting or exercise of options, with due regard for the limit of authorized capital of said granting of share purchase or subscription option;
VII. approve, monitor and amend the business strategy, annual budget, as well as any other strategic and investment plans, whether annual and/or pluriannual, and development projects of the Company, and establish the overall compensation policy and other general human resources policies;
VIII. resolve on the implementation of budgets approved and approved with exceptions;
IX. distribute the annual total compensation established by the General Meeting to the managers’ and Fiscal Council’ members;
X. establish the Company’s guidelines for Company’s controlled companies, associated companies, affiliates and subsidiaries for preparation and addressing plan for mapping and management of managerial risks and, definition of actions for control and minimization thereof;
XI. contract depositary institution for the book-entry shares;
XII. issue a favorable or unfavorable opinion on any tender offer of shares issued by the Company through a substantiated previous report disclosed in up to fifteen (15) days as of the publication of the notice for the tender offer for the acquisition of shares, which shall address at least (i) the convenience and opportunity of the tender offer for the acquisition of shares concerning the shareholders’ interests and the securities’ liquidity. (ii) the repercussions of the tender offer regarding the Company’s interests; (iii) the strategic plans disclosed by the offeror concerning the Company; (iv) other issues deemed relevant by the Board of Directors, as well as the information required by the applicable rules established by the CVM.
XIII. define a three-name list of companies specializing in valuation to prepare valuation reports for Company shares in the event of tender offers for deregistering or delisting of the Company from the New Market;
XIV. create and close committees and/or work group, establishing, furthermore, the composition, regulation, compensation and work scope thereof, with due regard for these Bylaws;
XV. establish criteria for opening and closing of stores;
XVI. approve monthly information (in the event of material variation as to the budget) and full quarterly information (including managerial and official reports) of the Company and controlled companies, associated companies, affiliated companies or subsidiaries;
XVII. distribute interim dividends or pay interest on own equity based on half-yearly, quarterly or monthly balance sheets of the Company;
XVIII. acquire shares issued by the Company itself to be kept in treasury and/or further cancellation or disposal;
XIX. issue Company shares, within the limits provided for in Article 6 hereof, establishing issuance conditions, including price and term for payment and, furthermore, exclude or reduce preemptive right over the issuance of shares, subscription warrant or convertible debentures, the placement of which is carried out by trading at stock exchange or public subscription or public offering for acquisition of control, pursuant to law;
XX. issue subscription warrant as set forth in paragraph 2 of Article 6 hereof;
XXI. the issue of simple, convertible or non-convertible debentures. In the case of issue of convertible debentures, the Board of Directors is obliged to comply with the authorized capital limit provided for in Article 6 to these Bylaws;
XXII. establish powers for the Board of Executive Officers to contract any public fund raising in the capital market and issue any debt instrument for public raising of funds such as bonds, notes, commercial papers and other instruments usually traded in the capital markets, as well as resolve on the conditions for issuance and redemption thereof;
XXIII. approve any Company‘s financial transaction whose amount is, solely or in joint related acts performed in the same fiscal year, higher than fifty million reais (R$50,000,000.00);
XXIV. execute agreements or commitments for assumption of responsibilities, debts or liabilities, involving, solely or in joint related acts performed in the same fiscal year, an amount higher than twenty-five million reais (R$25,000,000.00), pursuant to item XXII;
XXV. dispose of, purchase, sell, lease, donate or encumber, whether direct or indirectly, on any account and in any amount, the Company’s ownership interests, as well as incorporation of subsidiaries.
XXVI. tender guarantees, sureties or other guarantees as to third-party liabilities, including Company‘ Subsidiaries or associated companies, except for guarantees granted in the ordinary course of business;
XXVII. conduct any business involving the Company and its Subsidiaries, or any of its direct or indirect shareholders, or managers, or companies controlled, whether directly or indirectly, by the Company‘s Subsidiaries, or its shareholders or managers;
XXVIII. appoint and replace independent auditors;
XIX. approve and amend internal regulation of the Board of Directors; and
XXX. change the accounting or tax practices, as well as the policy for distribution of results and/or withholding of Company’s profits.
Article 20 - The Board of Executive Officers shall be composed of four (4) members elected and dismissed, at any time, by the Board of Directors, as follows: one (1) Chief Executive Officer, one (1) Financial/Administrative and Investor Relations Officer; one (1) Sales Officer; and one (1) Asset and Expansion Officer, all of them elected by the majority of the Board of Directors’ members, at the General Meetings. The Company’s Officers shall be elected for a three (3) year term; reelection is allowed.
Paragraph 1 - The CEO, in his temporary impediments or absence, shall be replaced by an Officer appointed by him. Should the position of CEO become vacant, the Financial/Administrative and Investor Relations Officer shall occupy concurrently such position until the first subsequent Board of Directors’ meeting, which shall appoint an alternate to serve until the end of the term of office of the member replaced.
Paragraph 2 - the other Officers shall be replaced in the event of temporary absence or impediment, by another Officer, to be appointed by the CEO. In the event of vacancy, the Chief Executive Officer shall appoint a temporary alternate until such time as the Board of Directors elects a member to serve until the end of the term of office.
Article 21 - The Officers shall administer and manage the Company’s businesses, mainly to:
I. Comply and ensure compliance with these Bylaws and the resolutions of the Board of Directors and the Annual General Meetings;
II. Prepare and submit to the Board of Directors, on an annual basis, the strategic plan, the annual reviews thereof and the Company’s general budget, ensuring the performance thereof;
III. Resolve on the opening, transfer and closing of branches, representatives offices, warehouses, offices and any other establishments of the Company in Brazil;
IV. Submit annually, to the Board of Directors, the Management’s Report and the Board of Executive Officers‘ accounts, together with the independent auditors‘ report, as well as the proposal for allocation of profits earned in the previous year;
V. Represent the Company as partner or shareholder of other associate companies, subsidiaries and affiliate companies, with due regard for the guidelines of the Board of Directors; and
VI. Submit, on a quarterly basis, to the Board of Directors, detailed economic-financial balance sheets of the Company and its subsidiaries.
Article 22 - In addition to coordinating the Officers and managing the activities relating to the Company’s general planning, the Chief Executive Officer shall:
I. Call and chair Board of Directors’ meetings;
II. Keep the Board of Directors’ members informed on the Company’s activities and the performance of its operations;
III. Nominate, for Board of Directors’ approval, the Officers for each activity sector;
IV. Perform other duties attributed by the Board of Directors;
V. Establish the Company’s human resource basic guidelines;
VI. Admit, promote, transfer, pursuant to the positions approved, license, punish and discharge employees, inquiring the Officer in charge of such department;
VII. Perform any urgent acts, ad referendum of the Board of Directors; and
VIII. Resolve on other matters to be established by the Board of Directors.
Article 23 - In addition to the provisions set forth in paragraphs below, the Officers shall support the Chief Executive Officer in managing the Company’s Business and performing all activities attributed thereto by the Board of Directors.
Paragraph 1. The Financial/Administrative and Investors Relations Officer shall (i) supervise and direct the activities of the Company’s administrative areas, except human resources; (ii) direct the accounting, legal and fiscal planning areas; (iii) propose performance and results targets for the various areas of the Company and its subsidiaries and associated companies; (iv) direct the Company’s financial area, deciding on fundraising operations and investment of financial resources; (v) provide information to the investor public, the CVM, the stock exchanges, the over-the-counter markets in which the Company is registered; and (vi) update the Company’s register as a publicly-held company, thus complying with legislation and regulation applicable to publicly-held companies.
Paragraph 2. The Sales Officer shall (i) administer and direct the activities of the Company’s sales departments in the sales outlets (stores); and (ii) direct the Company‘s visual and merchandising area activities.
Paragraph 3. The Asset and Expansion Officer shall (i) supervise and direct the activities of the Company‘s asset and engineering areas; and (ii) direct the activities connect to its expansion area, planning, proposing and executing the Company’s expansion plans.
Article 24 - As a general rule and with due regard for the subjects matters of subsequent paragraphs, the Company shall be represented by two (2) Officers acting jointly, or by one (1) Officer and one (1) Attorney-in-fact or two (2) attorneys-in-fact, within the limits of the respective powers of attorney, pursuant to Paragraph 5 below.
Paragraph 1 - The Company’s acts involving amounts exceeding ten million reais (R$10,000,000.00) shall be performed by the CEO acting jointly with one (1) attorney-in-fact or one (1) Company’s Officer, unless otherwise expressly authorized by the Board of Director for specific case.
Paragraph 2 - The acts requiring prior authorization of the Board of Directors, pursuant to these Bylaws, shall be performed only upon fulfillment of such requirement.
Paragraph 3 - The Company may be represented only by one (1) Officer or one (1) attorney-in-fact in the following events:
(a) if a singular representation is imposed as a result of act performed, the Company shall be represented by any Officer or attorney-in-fact with special powers; and
(b) in the event of giving or releasing acquittance for the amounts payable to the Company, issuing and trading, including endorsing and cashing invoices relating to the sales, as well as in the event of correspondence not creating liabilities for the Company and the performance of acts relating to the Company’s administrative routine, including those performed before public agencies, mixed-capital companies, Federal Revenue Office, State Revenue Offices, Municipal Revenue Offices, Commercial Registries, Labor Courts, Brazilian Social Security Institute (INSS), Employee Severance Indemnity Fund (FGTS) and banks responsible for the collection thereof and other agencies of identical nature, and the Brazilian Health Surveillance Agency.
Paragraph 4 - The Board of Directors may authorize the performance of acts that may create liabilities for the Company only by one of the members of the Board of Executive Officers or one attorney-in-fact, or even, by adopting criteria for authority restriction and, in certain events, the Company’s representation by only one Officer or attorney-in-fact.
Paragraph 5 - The powers of attorney shall be granted upon fulfillment of the following requirements:
(a) all powers of attorney shall be jointly granted by any two (2) Officers
(b) if the subject matter thereof is the performance of acts upon prior authorization of the Board of Directors, the power of attorney shall be expressly granted upon obtaining of such authorization that shall be mentioned therein.
Paragraph 6 - The acts performed in disagreement with the provisions hereof shall not be valid, nor shall create liability for the Company.
Article 25 - The Company’s Fiscal Council shall be composed of, with the duties established by law, three (3) to five (5) members and equal number of alternates, residing in Brazil, whether shareholders or not, with due regard for the requirements and impediments established in the Brazilian Corporation Law and elected at the General Meeting for one (1) year term of office; reelection is allowed.
Paragraph 1 - The Fiscal Council shall be instated on a permanent basis upon call of the shareholder, with due regard for the legal provisions.
Paragraph 2 - The investiture of the Fiscal Council members is subject to the execution of the Consent Instrument of the Fiscal Council Members, pursuant to the New Market Regulations and the applicable legal requirements.
Article 26 - The fiscal year shall begin on January 1 and end on December 31.
Paragraph 1 - At the end of each fiscal year, the Board of Executive Officers shall prepare the following financial statements, with due regard for the relevant legal provisions:
(a) balance sheet;
(b) statement of retained earnings or losses;
(c) income statement;
(d) statement of cash flows; and
(e) statement of value added.
Paragraph 2 - The Board of Directors shall submit to the Annual General Meeting, together with the financial statements for the fiscal year, a proposal for investment of the net income, with due regard for the provisions hereof and the Law, observing the following:
(a) five percent (5%) shall be applied, before any other allocation, to constitute the legal reserve, which shall not exceed twenty percent (20%) of the capital stock. In the fiscal year on which the balance of the legal reserve plus the capital reserves amount, addressed by paragraph 1 of Article 182 of Brazilian Corporation Law 6,404/76, exceeds thirty percent (30%) of the capital stock, the allocation of part of the fiscal year’s net income to the legal reserve shall not be mandatory;
(b) by proposal of the management bodies, a portion of the net income may be allocated to constitute a reserve for contingencies and reversal of the reserves created in previous years, pursuant to Article 195 of the Brazilian Corporation Law;
(c) a portion shall be allocated for payment of dividends set forth in Article 27;
(d) in the fiscal year in which the amount of mandatory dividend, calculated in accordance with Article 27, exceeds the realized portion of net income, the General Meeting may, upon proposal of the management bodies, allocate the excess to constitute a realizable income reserve, subject to the provisions of Article 197 of the Brazilian Corporation Law;
(e) by proposal of the management bodies, a portion may be retained based on a capital budget previously approved, pursuant to Article 196 of the Brazilian Corporation Law;
(f) the Company shall maintain a statutory profit reserve called "Investment Reserve" to finance the expansion of its activities and/or that of its subsidiaries and associated companies, which shall be composed of up to one hundred percent (100%) of the remaining net income after the legal and statutory deductions and whose balance, added to the balances of other profit reserves, except for the realizable income reserve and the contingency reserve, shall not exceed one hundred percent (100%) of the Company’s subscribed capital stock; and
(g) the balance shall be allocated as determined by the General Meeting, pursuant to the legal provisions.
Article 27 - The shareholders shall be entitled to receive, in each fiscal year, dividends in the mandatory minimum amount of twenty percent (25%) of the net income, with the following adjustments:
I. addition of amounts resulting from reversal of reserves for contingencies, within the fiscal year, previously created;
II. deduction of amounts intended for legal reserve and reserves for contingencies, in the fiscal year;
III. whenever the mandatory minimum dividend exceeds the portion realized of the net income ascertained for the fiscal year, the Management may propose, and the General Meeting approve, the investment of the exceeding amount for creation of unrealizable revenue reserve (Article 197 of the Brazilian Corporation Law).
Paragraph 1 - The General Meeting may establish a profit sharing for the Managers, with due regard for the relevant legal limits. The payment of such profit sharing shall be conducted upon establishment of mandatory dividends for the shareholders. Whenever the half-yearly balance sheet is prepared and if the interim dividends of at least twenty-five percent (25%) over the net income are paid, and calculated pursuant this article, a half-yearly profit sharing may be paid to the Managers, as per Board of Directors’ resolution ad referendum of the General Meeting.
Paragraph 2 - The General Meeting may resolve on, at any time, distribution of dividends in view of revenue reserve existing or profit accrued in previous fiscal years, then kept as per General Meeting’s resolution, after establishment of the mandatory dividends to the shareholders provided for herein.
Paragraph 3 - The Company may prepare half-yearly and interim balance sheets. The Board of Directors may resolve on the distribution of dividends charged from the profit account ascertained therein. The Board of Directors may, further, state interim dividends from the profit account or revenue account ascertained in such balance sheets or in the last annual balance sheet.
Paragraph 4 - The Board of Directors may pay or credit interest on net equity, ad referendum of the Annual General Meeting incumbent upon review of the financial statements relating to the fiscal year in which such interest was paid and credited.
Article 28 - The General Meeting may resolve on the capitalization of reserves established in half-yearly and interim balance sheets.
Article 29 - Without prejudice to the other provisions hereof, the Company, through its Investor Relations Officer, shall follow up on the variation of its shareholders’ ownership interests, with the purpose of preventing and, as the case may be, reporting, pursuant to paragraph 1 below, the breach of these Bylaws, as well as recommending to the General Meeting the enforcement of the penalties set forth in Article 42 herein.
Paragraph 1 - Should the Investor Relations Officer, at any time, identify a violation by any shareholder or Group of Shareholders of any obligation set forth by law and/or these Bylaws as a result of the purchase of Company shares, he/she shall, within 30 days, report this incident to: (i) the Chairman of the Board of Directors; (ii) the members of the Fiscal Council, if instated; (iii) BM&FBOVESPA; (iv) CVM; and (v) disclose it on the Company’s site on the Internet.
Paragraph 2 - The Investor Relations Officer may, on his own initiative or at the request of regulatory bodies, require shareholders or a Group of Shareholders to inform their direct or indirect shareholding, as well as the composition of their direct or indirect controlling block and, if applicable, the corporate and business group, "de facto" or by right, to which they belong.
DISPOSAL OF SHARE CONTROL, DEREGISTERING OF THE COMPANY AS A PUBLICLY-HELD COMPANY, AND DELISTING FROM THE NEW MARKET SEGMENT
Disposal of Share Control
Article 30 - The disposal of Company’s share control, by a single or successive transactions, shall be contracted under the suspensive or resolutory condition that the buyer of the control undertakes to conduct a Public Offering of Shares to the other Company shareholders, with due regard for the conditions and terms provided for in the prevailing legislation and the New Market Listing Rules, so as to secure a treatment equal to that provided to the Seller Controlling Shareholder.
Article 31 - The public offering of shares referred to in the previous Article shall be further carried out:
(a) in the events of onerous assignment of share subscription rights and other bonds and rights relating to securities convertible into shares, which may entail the disposal of Company’s Control; or
(b) in the event of disposal of the control of a company holding the Company’s Control Power, and, in such case, the Seller Controlling Shareholder shall disclose to BM&FBOVESPA the value established for the Company in such disposal and attach documentation evidencing such transaction.
Article 32 - The party that acquires the Control Power under the private share purchase agreement executed with the Controlling Shareholder, involving any number of shares, shall:
(a) carry out the Public Offering of Shares provided for in Article 30; and
(b) pay, under the terms below, an amount equivalent to the difference between the tender offer price and the amount paid per share acquired on the stock exchange in the six (6) months prior to the date of acquisition of the Control Power, duly adjusted until the payment date. This amount shall be distributed among all those who sold Company shares in the trading sessions in which the Acquirer undertook the acquisitions, proportionally to each daily sale net balance, with the BM&FBOVESPA being responsible for the distribution, under its own regulations.
Article 33 - The Company shall only register any transfer of shares to the purchaser of the Control Power, or to those that might become holders of the Control Power, upon execution of the Consent Instrument of the Controlling Shareholders, as provided for in New Market Listing Rules.
Sole Paragraph - No shareholders’ agreement governing the exercise of the Control Power may be filed at the Company’s headquarters while its signatories have not subscribed to the Consent Instrument of the Controlling Shareholders referred to in the New Market Regulations.
Delisting from the New Market Segment and Deregistering as a Publicly-Held Company
Article 34 - In case the Company resolves to delist from the New Market in order to have its securities traded elsewhere, or in view of a corporate restructuring in which the resulting Company does not have its securities listed for trading in the New Market within one hundred and twenty (120) days as of the date of the General Meeting that approves said operation, the Controlling Shareholder must conduct a tender offer for the acquisition of shares held by the other shareholders at least at the minimum Economic Value to be determined by a valuation report prepared pursuant to Article 36, Paragraph 1, in compliance with the applicable rules and regulations.
Article 35 - The minimum price of the tender offer for the acquisition of shares to be carried out by the Controlling Shareholders or the Company for deregistering as a publicly-held company shall correspond to the Economic Value determined by the valuation report prepared under the terms of Article 36, Paragraph 1 and in compliance with the applicable rules and regulations.
Article 36 - The appraisal reports referred to in Articles 34 and 35 hereof shall be prepared by a specialized institution or company, with proven experience and independence as to decision-making power of the Company, its management and/or the Controlling Shareholder, and the reports shall also fulfill the requirements set forth in paragraph 1 of Article 8 of Brazilian Corporation Law (Law 6404/76) and mention the liability provided for in paragraph 6 of said article.
Paragraph 1 - The General Meeting shall be solely responsible for selecting the specialized institution or company to determine the Company’s Economic Value, upon submission by the Board of Directors of a triple list, and the respective resolution shall be taken, without computing blank votes, by a majority of votes cast by shareholders representing the Outstanding Shares present at the General Meeting, which, if instated at first call, shall be attended by shareholders representing at least twenty percent (20%) of all Outstanding Shares, or, if instated at second call, may be attended by any number of shareholders representing the Outstanding Shares.
Paragraph 2 - The costs incurred with the preparation of the appraisal report shall be fully borne by the offering shareholder.
Article 37 - In the absence of a Controlling Shareholder:
(a) if the deregistering as a publicly-traded company is approved by a General Meeting, the tender offer for the acquisition of shares must be carried out by the Company; and
(b) if the Company is delisted from the New Market in order to have its securities traded elsewhere or in view of a corporate restructuring in which the resulting Company does not have its securities listed for trading within one hundred and twenty (120) days as of the General Meeting that approved such operation, the delisting is subject to a tender offer for the acquisition of shares under the same conditions set forth in Article 34.
Paragraph 1 - The General Meeting provided for in (b) must define those responsible to conduct the tender offer for the acquisition of shares, who shall expressly assume the obligation at the meeting to conduct the tender offer.
Paragraph 2 - In the absence of a definition of those responsible for the tender offer of acquisition of shares and in the case of a corporate restructuring in which the securities of the resulting company are not listed for trading in the New Market, the shareholders who voted for the restructuring must conduct the tender offer.
Art. 38 - The Company’s delisting from the New Market in view of non-compliance with the obligations set forth in the New Market Regulations is subject to the conducting of the tender offer for the acquisition of shares at least at the Economic Value of the shares, to be calculated based on the valuation report referred to in Article 36 of these Bylaws, under the applicable rules and regulations. The Controlling Shareholder must conduct the tender offer for the acquisition of shares referred to above.
Art. 39 - In the absence of a Controlling Shareholder and if the delisting from the New Market referred to in Article 38 is approved by a General Meeting, the shareholders who voted for the resolution that led to said non-compliance shall conduct the tender offer for the acquisition of shares set forth in Article 38.
Art. 40 - In the absence of a Controlling Shareholder and if the delisting from the New Market referred to in Article 38 is due to an act or fact by Management, the Company’s Managers must call a General Meeting to resolve on the solution to said non-compliance with the New Market Regulations, or, as the case may be, to resolve on the delisting of the Company from the New Market segment.
Sole Paragraph - In case the General Meeting referred to in the caput resolves on the delisting of the Company from the New Market, this meeting must define those responsible for conducting the tender offer for the acquisition of shares provided for in Article 38, who shall expressly assume the obligation at the meeting to conduct the tender offer.
Protection against Shareholding Dilution
Article 41 - Any Shareholder Acquiring a Relevant Interest (as defined below) acquiring or becoming holder of shares issued by the Company, including by usufruct granting voting rights, in a number equal to or above fifteen percent (15%) of all Company-issued shares, except, for the purposes of this calculation, for treasury shares ("Relevant Interest") shall, within sixty (60) days as of the acquisition thereof or the event that resulted in the holding of shares in such number, conduct or request registration for a public offering for purchase of all the shares issued by the Company, with due regard for the applicable CVM’s and BM&FBOVESPA’s regulations and the provisions of this Chapter.
Paragraph 1 - The price offered for the shares issued by the Company shall be the greatest between:
(a) the fair price, understood as the Company’s appraisal value, determined based on separate or combined criteria, of the shareholders’ equity valued at market price, discounted cash flow (considering the synergies for the Shareholder Acquiring a Relevant Interest derived from the acquisition), comparison based on multiples or quotation of the shares in the securities market, ensuring the revision of the offering value in accordance with paragraph 3 of this article;
(b) one hundred and twenty-five percent (125%) of the share issue price in the last increase of capital effected through a public offering taking place before the date on which the public offering under this article becomes mandatory, duly adjusted by the General Market Price Index (IGP-M) or another equivalent index that may replace it until payment is actually made; and
(c) one hundred and twenty-five percent (125%) of the average weighted unit quotation of the shares issued by the Company during a period of ninety (90) days before publication of the Public Offering Notice set forth in this article.
Paragraph 2 - The public offering shall necessarily comply with the following principles and procedures, in addition to those, when applicable, expressly set forth in Article 4 of CVM Instruction 361/02 or any rule that might replace it:
(a) be indistinctly addressed to all Company shareholders;
(b) be held at an auction on BM&FBOVESPA;
(c) be held in a manner so as to ensure a fair and equitable treatment to the recipients, allowing them to have the proper information concerning the Company and the offering shareholder and providing them with the elements needed for a careful and independent decision making as to the acceptance of the public offering;
(d) be unchangeable and irrevocable after publication of the offering notice, pursuant to the provisions of CVM Instruction 361/02, except as provided in paragraph 5 of this article;
(e) be launched at the price set forth pursuant to this article and settled in cash, in domestic currency; and
(f) be supported by the Company’s appraisal report prepared by an institution that meets the requirements of Article 36 and by using the methodology set forth in item (a) of paragraph 1 of this article..
Paragraph 3 - The holders of at least ten percent (10%) of shares issued by the Company, except, for the purposes of this calculation, for shares held by the Shareholder Acquiring a Relevant Interest, may require the Company’s managers to call a Special Meeting to resolve on a new appraisal of the Company in order to review the Offering Price, and this report shall be prepared in accordance with the rules set forth for the appraisal report referred to in item (f) of paragraph 2 of this article, according to the procedures in Article 4-A of the Brazilian Corporation Law and as provided in the applicable CVM regulation and in this Chapter.
Paragraph 4 - At the Special Meeting mentioned in paragraph 3 above, all Company shareholders may vote, except for the Shareholder Acquiring a Relevant Interest.
Paragraph 5 - In the event the Special Meeting referred to in paragraph 3 above resolves in favor of a new appraisal, and the appraisal report determines a value greater than the initial value of the public offering, the Shareholder Acquiring a Relevant Interest may withdraw from the offering, undertaking, in this case, to comply where applicable with the procedure set forth in Article 28 of CVM Instruction 361/02 and to dispose of the excess shareholding within 3 months as of the date of said Special Meeting.
Paragraph 6 - The requirement of a mandatory public offering provided for in the main section of this article shall not exclude the possibility of another shareholder of the Company, or, as the case may be, the Company itself, to carry out another competing or separate public offering, pursuant to the applicable regulation.
Paragraph 7 - The obligations set forth in Article 254-A of the Brazilian Corporation Law and in Articles 30, 31 and 32 of these Bylaws shall not release the Shareholder Acquiring a Relevant Interest from complying with the obligations established herein.
Paragraph 8 - The requirement to hold a public offering set forth in this article shall not be applicable if a person becomes holder of shares issued by the Company in a number higher than fifteen percent (15%) of the total shares issued by the Company, as a result of:
(a) legal succession, under the condition that the shareholder shall sell the exceeding shares within thirty (30) days as of the relevant event;
(b) merger of another Company into the Company;
(c) merger of shares held by another company into the Company;
(d) subscription of the Company shares in a single primary issuance that had been approved at a General Meeting, called by the Board of Directors, whose proposal for capital increase established the price for issuance of shares based on the Economic Value supported by an appraisal report of the Company, prepared by a specialized institution that meets the requirements of Article 36; or
(e) public offering for the purchase of all Company shares and which complies with the requirements of this article.
Paragraph 9 - Subsequent to the disclosure of the Offering Price, as provided for in this article and in the prevailing legislation, with settlement in domestic currency or through the swap of securities issued by a publicly-held company accepted for trading at BM&FBOVESPA, the Board of Directors shall meet within 10 days to consider the terms and conditions of the formulated offering, complying with the following principles:
(a) the Board of Directors may engage external specialized advisory services that meet the provisions of Article 36, for the purpose of analyzing the offering’s convenience and timeliness, in the general interest of shareholders to verify the liquidity of the securities offered, as the case may be; and
(b) the Board of Directors is responsible for disclosing and giving reasons to shareholders of their understanding of the convenience and timeliness of the formulated offering as set forth in this article.
Paragraph 10 - For purposes of calculation of the percentage of fifteen percent (15%) of all shares issued by the Company described in the main section hereof, the involuntary additions of ownership interest resulting from cancellation of treasury shares, redemption of shares, or reduction in the Company’s capital stock upon cancellation of shares shall not be computed.
Paragraph 11 - The provisions of the New Market Listing Rules shall prevail over the Bylaws’ provisions, in the events of prejudice to the rights of the recipients of the public offerings set forth in these Bylaws.
Article 42 - If the Shareholder Acquiring a Relevant Interest does not comply with the obligations imposed in this Chapter VI, including the fulfillment of the terms (i) for carrying out or requesting registration of the public offering; or (ii) for complying with any of CVM’s requests or requirements, the Company’s Board of Directors shall call an Extraordinary General Meeting, in which the Shareholder Acquiring a Relevant Interest may not vote, to resolve on the suspension of exercise of the Acquirer Shareholders’ rights, as provided for in Article 120 of Brazilian Corporation Law.
Article 43 - For the purposes of these Bylaws, the terms below starting in capitalized initials shall have the following meanings:
A "Shareholder Acquiring a Relevant Interest" shall mean any person (including, but not limited to, any individual or legal entity, investment fund, condominium, securities portfolio, worldwide rights or, otherwise, residing, domiciled or headquartered in Brazil or abroad), Group of Shareholders or group of persons bound by a voting agreement with the Shareholder Acquiring a Relevant Interest and/or acting representing the Acquirer Shareholder’s interest, which may subscribe and/or acquire Company shares. The following are examples of persons representing a common interest with the Shareholder Acquiring a Relevant Interest: (i) a person directly or indirectly controlled or managed by said Shareholder; (ii) a person controlling or managing, under any form, the Shareholder Acquiring a Relevant Interest; (iii) a person directly or indirectly controlled or managed by any person controlling or managing, whether directly or indirectly, said Shareholder Acquiring a Relevant Interest; (iv) a person in which the controlling shareholder of such Shareholder Acquiring a Relevant Interest directly or indirectly holds an ownership interest equal to or greater than fifteen percent (15%) of the capital stock; (v) a person in which the controlling shareholder of such Shareholder Acquiring a Relevant Interest directly or indirectly holds an ownership interest equal to or greater than fifteen percent (15%) of the capital stock; or (vi) a person which holds, either directly or indirectly, an ownership interest equal to or higher than fifteen percent (15%) of the Acquirer Shareholder’s capital stock.
"Group" shall mean a group of persons (i) bound by agreements or contracts of any nature, including verbal or written shareholders’ agreements, either directly or by means of Controlled Companies, Controlling Parties or Under Common Control; or (ii) among which there is either direct or indirect controlling relationship; or (iii) which are Under Common Control; or (iv) which operate representing a common interest. The following are examples of persons representing a common interest: (a) a person directly or indirectly holding an ownership interest equal to or higher than fifteen percent (15%) of the other person’s capital stock; and (b) two persons having a third-party investor in common, who directly or indirectly holds an ownership interest equal to or higher than fifteen percent (15%) of the capital stock of each of the two persons. Any joint ventures, investment funds or clubs, foundations, associations, trusts, condominiums, cooperatives, securities portfolios, worldwide rights, or any other forms of organization or development, constituted in Brazil or abroad, shall be considered as part of a same Group whenever two or more of these entities are (x) administered or managed by the same legal entity or by parties related to a same legal entity; or (y) have most of their managers in common.
"Controlling Shareholder", "Controlling Selling Shareholders", "Outstanding Shares", "Managers", "Acquirer", "Disposal of Share Control", "Independent Board member", "New Market Listing Agreement", "CVM", "Derivatives", "Brazilian Corporation Law", "New Market", "Founder’s Shares", "Control Power", "Arbitration Regulations", "Listing Regulations", "Sanctions Regulations", "Management Consent Instrument", "Consent Instrument of the Controlling Shareholders", "Consent Instrument of the Fiscal Council Members", and "Economic Value" have the meaning attributed to them by the New Market Regulations.
Article 44 - The Company, its shareholders, Managers and members of the Fiscal Council hereby undertake to settle, by means of arbitration proceeding, any and all doubts and disputes that may occur between them, related to or arising from, mainly, the application, validity, effectiveness, interpretation, violation and its effects, of the provisions set forth in the Brazilian Corporation Law, in Company’s Bylaws, the regulations enacted by the National Monetary Council, the Central Bank of Brazil or the Brazilian Securities and Exchange Commission and other rules applicable to the capital market in general, as well as other regulations applicable to the transactions conducted in the New Market Listing Rules, the Arbitration Regulations, the Sanctions Regulations and the New Market Listing Agreement.
Article 45 - The Company shall be wound up in the events provided for by law, and the General Meeting shall elect the liquidator(s), as well as the Fiscal Council that shall operate in such period, pursuant to the legal formalities.
Article 46 - The Company shall comply with all shareholders’ agreements filed at its headquarters, and the member of the Board of Directors’ or General Meeting’s presiding board shall not accept vote cast by any shareholder, party of any shareholders’ agreement duly filed at the Company’s headquarters, contrary to the terms thereof are prohibited and, furthermore, the Company shall not accept or transfer shares and/or dispose and/or assign preemptive right over the subscription of shares and/or other securities not complying with shareholders’ agreement.
Article 47 - The Company shall not grant financing or offer guarantees of any kind to third parties, of any type, involving businesses, other than those related to the corporate interests.
Sole Paragraph - The Company shall not grant financing or offer guarantees of any kind, of any type, to the controlling shareholders.
Article 48 - The provisions set forth in Article 41 hereof shall not be applied to the shareholders that, immediately before the merger into the Company of the shares issued by Marisa S.A., hold directly or indirectly at least fifteen percent (15%) of all the shares issued by Marisa S.A., and its successors, including and especially the Company’s controlling shareholders signatories of the Shareholders’ Agreement filed at the Company’s headquarters, pursuant to Article 118 of the Brazilian Corporate Law.
Article 49 - The Company’s Fiscal Council, once instated, shall be governed by an internal regulation approved by the shareholders at a General Meeting.
Article 50 - For the purposes of the calculation set forth in paragraph 1 (b) of Article 41, until such time when the Company increases its capital through a public offering, the base for said calculation shall be the price of issuance of shares in the last increase of capital of Marisa S.A.