FORM
6-K
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
Report
of Foreign Issuer
Pursuant
to Rule 13a-16 or 15d-16 of
the
Securities Exchange Act of 1934
For
the
month of April, 2008
Commission
File Number: 001-33356
Gafisa
S.A.
(Translation
of registrant’s name into English)
Av.
Nações Unidas No. 4777, 9th floor
São
Paulo, SP, 05477-000
Federative
Republic of Brazil
(Address
of principal executive office)
Indicate
by check mark whether the registrant files or will file annual reports under
cover of Form 20-F or Form 40-F:
Indicate
by check mark if the registrant is submitting the Form 6-K in paper as permitted
by Regulation S-T Rule 101(b)(1):
Indicate
by check mark if the registrant is submitting the Form 6-K in paper as permitted
by Regulation S-T Rule 101(b)(7):
Indicate
by check mark whether by furnishing the information contained in this Form,
the
Registrant is also thereby furnishing the information to the Commission pursuant
to Rule 12g3-2(b) under the Securities Exchange Act of 1934:
If
“Yes”
is marked, indicate below the file number assigned to the registrant in
connection with Rule 12g3-2(b): N/A
GAFISA
S.A.
CNPJ/MF
No. 01,545,826/0001-07
NIRE
35300147952
Publicly-held
Corporation
Extraordinary
General Shareholders’ Meeting of Gafisa S.A. (the “Company”) held on April 15,
2008, drawn in summary form
1.
Date, Time and Place:
On
April 15, 2008, at 10:00 a.m., in the city of São Paulo, State of São Paulo, at
Avenida das Nações Unidas, 8.501, 19º andar.
2.
Call Notice:
The
call notice at fist call was published at the “Diário Oficial do Estado de São
Paulo”, on March 6, 7 and 8 of 2008, on pages 27, 63 and 50, respectively, and
at “Valor Econômico - Edição Nacional”, on March 6, 7 and 10 of 2008, on pages
A10, A17 and B07,
respectively. The
call
notice at second call was published at the “Diário Oficial do Estado de São
Paulo”, on April 5, 8 and 9 of 2008, on pages 40, 05 and 37, respectively, and
at “Valor Econômico - Edição Nacional”, on April 7, 8 and 9 of 2008, on pages
B09, C10 and A07,
respectively.
3.
Attendance:
The shareholders representing 65.31%
of the Company’s total voting capital, including the Officers, Wilson Amaral de
Oliveira and Alceu Duilio Calciolari, as per the signatures of the
“Shareholders’ Attendance Book”.
4.
Presiding Board: Chairman:
Wilson
Amaral de Oliveira; and Secretary:
Fabiana
Utrabo Rodrigues.
5.
Resolutions: By
shareholders representing 65.31%
of the Company’s voting capital present
at the meeting,
the
dissenting votes and abstentions recorded following each resolution, the
following resolutions have been taken:
5.1.
The
minutes of this Meeting will be drawn-up in summary form and published without
the signatures of the shareholders, as permitted by paragraphs 1 and 2 of
Article 130 of Law No. 6,404/76.
5.2.
To
amend
Article 2 of the Company’s Bylaws, to include the possibility of delegation, to
the Chief Executive Officer, of the powers to open, transfer and close Company’s
branches.
The
holders of 19,024 ADRs voted against this resolution. The holders of 70.472
ADRs
abstained from voting.
5.3.
Pursuant
to the resolution of item 5.2 above, to include Paragraph 1 to Article 2 of
the
Company’s bylaws, which shall read as follows:
“Paragraph
1. The
power to open, transfer and extinguish branches, agencies, offices, warehouses,
sales offices and any other establishments in any location within the Brazilian
territory or overseas described in the heading of Article 2 may, by the Board
of
Directors’ resolution, be delegated to the Chief Executive
Officer.”
5.4.
To
amend
Article 5 of the Company’s Bylaws, to reflect the increase of corporate capital
pursuant to the issuance of new shares, as approved by the Board of Directors
within the limit of the authorized capital, in the form of Article 6 of the
Company’s Bylaws.
The
holders of 13,085,904 ADRs, Morgan Stanley Offshore Emerging Markets Fund,
Norges Bank, Fidelity Investment Services Ltd. For O B F I M Fund, Eq Advisors
Trust, Japan Trustee Services Bank, Ltd. as T F S T A B Co Ltd Tr F, Vanguard
Investment Series Plc, Oppenheimer International Small Company Fund, The Latin
America Discovery Fund Inc, Fidelity Latin America Fund, Fidelity Emerging
Markets Fund, The Master Trust Bank of Japan Ltd. Re: Mtbc400035147, Vanguard
Emerging Markets Stock Index Fund, The Texas Education Agency, John Hancock
Trust International Equity Index Trust A, John Hancock Trust International
Equity Index Trust B, John Hancock Funds II International Equity Index Fund,
SPDR S&P Emerging Latin America ETF, Alpine International Real Estate Equity
Fund, Turner International Core Growth Fund, Bell Atlantic Master Pension Trust,
Morgan Stanley Investment Management Emerging Markets Trust, IBM Tax Deffered
Savings Plan, Van Kampen Series Fund Inc Van Kampen Emerging Markets Fund,
Teachers Retirement System of Texas, State Street Emerging Markets, Schroder
Brics Equity Mother Fund, Ishares
MSCI
Brazil (Free) Index Fund, Barclays Global Investors, N.A., Emerging Markets
Sudan Free Equity Index Fund, Ishares
MSCI
Bric
Index Fund, Stichting Pensionfonds Abp, The Brazil MSCI Emerging Markets Index
Common Trust Fund and State Street Bank and Trust Company Investment voted
against this resolution. The holders of 28,990 ADRs abstained from
voting.
5.5.
Pursuant
to the resolution of item 5.4 above, to amend the caput
of
Article 5 of the Company’s bylaws, which shall read as follows:
“Article
5. The
Company´s corporate capital is of R$ 1,221,971,027.16, completely paid-in and
divided into 132,587,893 common shares, all nominative, book-entry and without
par value. “
5.6.
To
amend
Article 21, (d), of the Company’s Bylaws, to exclude of the attributions of the
Board of Directors the election, dismissing and fixation of attributions of
the
managers (gerentes)
of
the
Company.
The
holders of 18,096 ADRs Investment voted against this resolution. The holders
of
70,812 abstained from voting.
5.7.
To
amend
Article 21, (r), and to exclude Article 21, (s), of the Company’s Bylaws, to
clarify the dispositions for the execution of agreements and rendering of
guaranties by the Company.
The
holders of 16,924 ADRs voted against this resolution. The holders of 70,166
abstained from voting.
5.8.
Pursuant
to the resolution of item 5.6 and 5.7 above, to amend Article 21, (r), and
to
exclude Article 21, (s), of the Company’s Bylaws which shall read as
follows:
“(d)
to elect and dismiss the Company´s Executive Officers and determine their
attributions, in compliance with the provisions in these
Bylaws;”
“(r)
to previously authorize: (i) the execution, by the Company, of any agreements
(except for those performed with utilities concessionaires or others which
obey
uniform conditions), including, for example, for the acquisition of either
corporate interests or assets; or (ii) the granting, by the Company, of in
rem
guarantee to the benefit of the Company, or in rem or personal guarantee, to
the
benefit of the Company subsidiaries or third parts, in the occasion that, in
any
of the circumstances described in items (i) or (ii), the transactions be
contracted for a period exceeding 48 (forty eight) months or which value exceeds
the highest value between R$15,000,000.00 or 1.5% of the Company´s total
consolidated assets;”
5.9.
Pursuant
to the resolution of item 5.3 to 5.8 above, to approve the new wording of
Articles 2, 5 and 21, (d) and (r) (with the amendment of the numeration of
sub-items of Article 21) of the Company’s bylaws and approve its
consolidation.
The
holders of 13.088.422 ADRs, Morgan Stanley Offshore Emerging Markets Fund,
Norges Bank, Fidelity Investment Services Ltd. For O B F I M Fund, Eq Advisors
Trust, Japan Trustee Services Bank, Ltd. as T F S T A B Co Ltd Tr F, Vanguard
Investment Series Plc, Oppenheimer International Small Company Fund, The Latin
America Discovery Fund Inc, Fidelity Latin America Fund, Fidelity Emerging
Markets Fund, The Master Trust Bank of Japan Ltd. Re: Mtbc400035147, Vanguard
Emerging Markets Stock Index Fund, The Texas Education Agency, John Hancock
Trust International Equity Index Trust A, John Hancock Trust International
Equity Index Trust B, John Hancock Funds II International Equity Index Fund,
SPDR S&P Emerging Latin America ETF, Alpine International Real Estate Equity
Fund, Turner International Core Growth Fund, Bell Atlantic Master Pension Trust,
Morgan Stanley Investment Management Emerging Markets Trust, IBM Tax Deffered
Savings Plan, Teachers Retirement System of Texas, State Street Emerging
Markets, Schroder Brics Equity Mother Fund, Ishares
Msci Brazil (Free) Index Fund, Barclays Global Investors, N.A., Emerging Markets
Sudan Free Equity Index Fund, Ishares
MSCI Bric Index Fund, Stichting Pensionfonds Abp, The Brazil MSCI Emerging
Markets Index Common Trust Fund e State Street Bank and Trust Company Investment
voted against this resolution. The holders of 33.652 abstained from
voting.
6.
Closing: As
there were no further issues to be addressed, the meeting was closed, and the
present Minutes were drawn up, as a summary, which, after being read and found
in appropriate terms, was signed by all in attendance. Signatures: Wilson
Amaral de Oliveira, President; Fabiana Utrabo Rodrigues, Secretary; Wilson
Amaral de Oliveira, Chief Executive Officer; Alceu
Duilio Calciolari, Investor Relations and Chief Financial Officer; EIP
Brazil Holdings, Gary Robert Garrabrant, Thomas Joseph McDonald, Represented
by Ronald Herscovici; Wilson
Amaral de Oliveira; Alceu
Duilio Calciolari; Citibank
NA, Represented
by Diego dos Santos Gomes Silva; Teachers
Retirement System of Texas, State Street Emerging Markets, The Brazil MSCI
Emerging Markets Index Common Trust Fund, State Street Bank and Trust Company
Investment, Stichting Pensionfonds Metaal En Techiniek, Janus Overseas Fund,
Smallcap World Fund Inc, Fidelity Emerging Markets Fund, Aim Developing Markets
Fund, Vanguard Emerging Markets Stock Index Fund, Aim International Emerging
Growth Fund, Alpine International Real Estate Equity Fund, Harbor International
Growth Fund, Morgan Stanley Investment Management Emerging Markets Trust, The
Marsico International Opportunities Fund, American Fund Insurance Series Global
Small Capitalization Fund, Janus Adviser International Growth Fund, Schroder
Brics Equity Mother Fund, American Funds Insurance Series New World Fund,
Fidelity Investment Trust Latin America Fund, College Retirement Equities Fund,
Bell Atlantic Master Pension Trust, Fidelity Advisor Series VIII Latin America
Fund, Telcordia Technology Pension Plan, Van Kampen Series Fund Inc Van Kampen
Emerging Markets Fund, The Master Trust Bank of Japan Ltd. Re: Mtbc400035147,
The Texas Education Agency, SPDR S&P Emerging Latin America ETF, Fidelity
Latin America Fund, Eaton Vance Structured Emerging Markets Fund, Rockfeller
Brothers Fund, John Hancock Trust International Equity Index Trust A, John
Hancock Trust International Equity Index Trust B, John Hancock Trust
International Opportunities, John Hancock Funds II International Equity Index
Fund, Turner International Core Growth Fund, Balentine International Equity
Fund
Select LP, Oppenheimer International Small Company Fund, Norges Bank, Axa
Premier Vip Trust - Axa Premier Vip International Equity Portfolio, Eq Advisors
Trust, Stichting Pensionfonds Abp, The Wellcome Trust Limited, The Latin America
Discovery Fund Inc, Japan Trustee Services Bank, Ltd. as T F S T A B Co Ltd
Tr
F, Fidelity Investment Services Ltd. For O B F I M Fund, Vanguard Investment
Series PlcL, Morgan Stanley Offshore Emerging Markets Fund, Blue Ride Limited
Partnership, Blue Ride Offshore Master Ltd Partnership, Taconic Master Fund
1.5
Lp, Taconic Master Fund Lp, Ishares
MSCI Brazil (Free) Index Fund, Barclays Global Investors, N.A., Emerging Markets
Sudan Free Equity Index Fund, Ishares
MSCI
Bric
Index Fund, Fidelity Funds - Latin America Fund, Fidelity Funds - Emerging
Markets Fund, Emerging Markets Equity Managers: Portfolio 1 Offshore Master
LP,
W T I T I B of the International Mul Serv, IBM Savings Plan, Represented
by Anali Penteado Buratin.
São
Paulo, April 15, 2008.
Fabiana
Utrabo Rodrigues
Secretary
EXHIBIT
I
GAFISA
BYLAWS
GAFISA
S.A.
CNPJ/MF
nº 01.545.826/0001-07
NIRE
35.300.147.952
Publicly-held
Company
CVM
nº
01610-1
CHAPTER
I - NAME, HEADQUARTERS, PURPOSE AND DURATION
Article
1. Gafisa
S.A. (the “ Company ”) is a joint-stock publicly-held company, ruled by these
Bylaws and by the applicable legal provisions.
Article
2. The
Company´s headquarters and jurisdiction are located in the city of São Paulo,
State of São Paulo, and it may, by the Board of Directors´ resolution, change
the headquarters address, as well as open, transfer and extinguish branches,
agencies, offices, warehouses, sales offices and any other establishments in
any
location within the Brazilian territory or overseas.
Paragraph
1. The
power
to open, transfer and extinguish branches, agencies, offices, warehouses, sales
offices and any other establishments in any location within the Brazilian
territory or overseas described in the heading of Article 2 may,
by
the Board of Directors’ resolution, be delegated to the Chief Executive
Officer.
Article
3. The
Company´s purposes are: (i)
to
promote and manage its own or third parties´ real estate developments of any
kind; (ii)
to
purchase, sell and negotiate real estate in general; (iii)
to
perform civil construction and provide civil engineering services; and
(iv)
to
develop and implement marketing strategies related to its own or third parties´
real estate developments.
Sole
Paragraph. The
Company may hold interests in any other entities, in Brazil or abroad, by means
of resolution of the Board of Directors, considering the exception foreseen
on
item “f” of Article 27.
Article
4. The
Company´s duration is indeterminate.
Article
5. Company´s
corporate capital is of R$ 1,221,971,027.16, completely paid-in and divided
into
132,587,893 common shares, all nominative, book-entry and without par value.
Paragraph
1. It
is on
the shareholders´ account the cost of share transfer services charged by the
bookkeeper, in compliance with the limits possibly determined by the current
legislation.
Paragraph
2. Each
common share entitles its holder one voting right in the General Meeting´s
resolutions.
Paragraph
3. The
Company may not issue preferred shares or beneficiary parties.
Paragraph
4. For
purposes of reimbursement, the share value shall be determined based on the
Company´s economic value, defined in an appraisal conducted by a specialized
company appointed and chosen in compliance with the provisions in the Article
45
of Law# 6,404/76.
Article
6. The
capital stock may be increased irrespective of amendment to the Bylaws pursuant
to a resolution of the Board of Directors, which shall establish the conditions
for the issuance, up to a limit of two hundred million (200,000,000) common
shares.
Sole
Paragraph. The
Company may, within the authorized capital limit and by the General Meeting´s
resolution, grant a call option on behalf of (i) its administrators and
employees, (ii) individuals who provide services to it or (iii) a company under
its control.
Article
7. The
Company may reduce or exclude the term for the preemptive right exercise in
the
issue of shares, debentures convertible into shares or subscription bonus,
whose
placement is carried out by means of sale in stock exchanges, public
subscription or swap for shares in mandatory public offering of control
acquisition under the terms of the Articles 257 to 263 of Law #6,404/76. There
shall not be a preemptive right in the granting and in the exercise of the
call
option, pursuant to the provisions in the Paragraph 3 of the Article 171 of
Law
#6,404/76.
Article
8. The
General Meeting shall meet, on an ordinary basis, in the first 4 (four) months
following the end of the fiscal year and, on an extraordinary basis, whenever
required by social interests or the law.
Paragraph
1. The
General Meeting shall be called under the terms of the law. Regardless of call
formalities, the General Meeting with the attendance of all the shareholders
shall be considered regular.
Paragraph
2. The
General Meeting shall be instated and chaired by the Chairman of the Board
of
Directors or, in his absence, by a shareholder appointed by the General Meeting.
The Chairman of the General Meeting shall choose one of the attending members
to
be his secretary.
Article
9. In
addition to the matters provided for by the law, it shall be incumbent upon
the
General Meeting:
(a)
to
resolve on the Company´s withdrawal from the Novo
Mercado of
the
São Paulo Stock Exchange - BOVESPA (“ Novo
Mercado ”),
which
shall be communicated to the São Paulo Stock Exchange - BOVESPA in written, 30
(thirty) days in advance;
(b)
to
choose, among the institutions qualified and indicated in a three-name list
by
the Board of Directors, the one which shall be responsible for the preparation
of the appraisal report of the Company´s shares for purposes of withdrawal from
the Novo
Mercado,
cancellation of publicly-held company registration or mandatory public offering
of share acquisition, in compliance with the provisions in the Article 10;
and
(c)
to
solve the cases omitted in these Bylaws, in compliance with the provisions
of
Law #6,404/76.
Sole
Paragraph. In
the
event of cancellation of publicly-held company registration or withdrawal from
the Novo
Mercado ,
either
for the Company´s shares to be registered for trading out of the Novo
Mercado or
due to
corporate reorganization of which the resulting company is not admitted for
trading in the Novo
Mercado ,
the
public offering to be carried out by the Controlling Shareholder or the Company,
as applicable, shall have as minimum price to be offered the value corresponding
to the economic value determined in the appraisal report referred to in item
(b)
of this Article 9, pursuant to the provisions in the Novo
Mercado Listing
Rules.
Article
10. The
choice of the specialized institution or company responsible for the
determination of the Company´s Economic Value, referred to in the Article 9,
item “b” of these Bylaws, shall be made, not taking into account the blank
votes, by the majority vote of shareholders representing Outstanding Shares
who
attend the respective General Meeting, which, if instated in the first call,
shall count on the attendance of shareholders representing at least 20% of
the
total Outstanding Shares or, if instated in the second call, may count on the
attendance of any number of shareholders representing the Outstanding Shares.
Paragraph
1. For
purposes of the provisions in these Bylaws, it is understood by:
“
Outstanding Shares ” al the shares issued by the Company, except shares held by
the Controlling Shareholder, by persons bound to him/her, by the Company´s
administrators or those held in treasury;
“
Controlling Shareholder ” the shareholder or Group of Shareholders that
exercises the Company´s Control Power;
“
Group
of Shareholders ” the group of two or more persons (a) that are bound by
contracts or agreements of any nature, including shareholders´ agreements, oral
or written, either directly or by means of Subsidiaries, Holding Companies
or
under Common Control; or (b) among whom there is a Control relation, either
directly or indirectly; or (c) that are under Common Control; or (d) that
represent a common interest. Examples of persons representing a common interest
are (i) a person that holds, directly or indirectly, a stake equal or higher
than 15% (fifteen percent) of the capital stock of the other person; and (ii)
two persons that have a third investor in common who holds, directly or
indirectly, a stake equal or higher than 15% (fifteen percent) of the capital
stock of both persons. Any joint-ventures, investment funds or clubs,
foundations, associations, trusts, condominiums, cooperatives, security
portfolios, universalities of rights, or any other means of organization or
undertaking, incorporated in Brazil or overseas, shall be considered as part
of
the same Group of Shareholders whenever two or more among such entities: (x)
are
administrated or managed by the same legal entity or by parties related to
the
same legal entity; or (y) have in common the majority of its administrators;
“
Control Power ” (as well as its correlated terms “ Holding Company ”, “
Subsidiary ”, “ under Common Control ” or “ Control ”) means the power
effectively used to manage the social activities and guide the operation of
the
Company´s bodies, directly or indirectly, actually or legally. There is a
relative presumption of control ownership regarding the person or the Group
of
Shareholders that owns shares ensuring the absolute majority vote of
shareholders attending the past three General Meetings of the Company, even
he/she does not own shares ensuring the absolute majority of the voting capital;
and
“
Control
Power Exercise in a Diffuse Manner ” the Control Power exercised by a
shareholder holding less than 50% (fifty percent) of the Company´s capital
stock, as well as by shareholders who are not members of the Group of
Shareholders.
Article
11. In
the
assumptions of the Company´s withdrawal from the Novo
Mercado or
cancellation of publicly-held company registration, the costs incurred with
the
preparation of the appraisal report referred to in item (b) of the Article
9
shall be fully supported by the Controlling Shareholder or, as applicable,
by
the Company, if the Company becomes an issuer.
SECTION
IV.I. - GENERAL RULES
Article12.
The
Company´s management is incumbent upon the Board of Directors and the Board of
Executive Officers.
Article
13. The
members of the Board of Directors and the Board of Executive Officers shall
be
invested in their respective positions within thirty days counted from the
respective appointment dates, by means of signature of an instrument of
investiture in the Company´s records, remaining in their positions up to the
investiture of the new elected administrators. Sole
Paragraph. The
investiture of the members of the Board of Directors and the Board of Executive
Officers in their respective positions is conditioned (i) to previous
subscription of the Administrators´ Instrument of Agreement referred to in the
Novo
Mercado Listing
Rules; and (ii) to the compliance with the Manual for Disclosure and Use of
Information and Policy for Trading of Securities Issued by the Company, by
means
of the signature of the respective instrument.
Article
14. The
Board
of Directors may determine the creation of advising committees aimed at
assisting the respective members of the Board of Directors, as well as define
the respective composition and specific attributions.
Article
15. The
General Meeting shall determine, individually or globally, the compensation
of
the administrators and members of the advising committees of the Company. IF
the
determination takes place on a global basis, it shall be incumbent upon the
Board of Directors to define the amounts to be individually paid. It shall
also
be incumbent upon the Board of Directors to distribute, as applicable, the
profit sharing established by the General Meeting.
SECTION
IV.II. - BOARD OF DIRECTORS
Article
16. The
Board of Directors is comprised of at least 5 (five) and at the most 9 (nine)
sitting members (alternate ones may be elected), all shareholders, elected
and
dismissed at any time by the General Meeting, with an unified term of office
of
2 (two) years. Reelection is allowed.
Article
17. At
least
20% of the sitting members of the Board of Directors shall be Independent
Members.
Paragraph
1. When,
due
to the compliance with the percentage referred to in the caput
of
this
Article 17, a fraction number of board members takes place, there shall be
rounding to the whole number: (i)
immediately higher, when the fraction is equal or higher than 0.5, or
(ii)
immediately lower, when the fraction is lower than 0.5.
Paragraph
2. For
purposes of these Bylaws, “ Independent Member ” is the one who: (i)
does
not have any bond to the Company, except a stake; (ii)
is not
a Controlling Shareholder, spouse or relative, up to second level, of the
Controlling Shareholder, or is not or have been not, in the past 3 years, bond
to a corporation or entity related to the Controlling Shareholder (people bound
to public institutions for education and/or research are excluded from this
restriction); (iii)
has no
been, in the past 3 years, an employee or an executive officer of the Company,
the Controlling Shareholder and a corporation controlled by the Company;
(iv)
is not
a supplier or buyer, direct or indirect, of services and/or products of the
Company, in an extend that implies loss of independence; (v)
is no
an employee or administrator of a corporation or entity offering or demanding
services and/or products to the Company; (vi)
is not
spouse or relative, up to second level, of any administrator of the Company;
and
(ii)
does not
receive another compensation from the Company besides the one for board member
(dividends in cash coming from capital interest are excluded form these
restriction).
Paragraph
3. Those
elected by means of permission provided for in the paragraphs 4 and 5 of the
Article 141 of Law 6,404/76 shall also be considered Independent Members.
Article
18. The
Board
of Directors shall have a Chairman, who shall be elected by majority vote of
the
sitting members. In the event of impairment or temporary absence of the
Chairman, the chair shall be taken by the member previously appointed by the
Chairman or, in the lack of previous appointment, by whoever the other members
may appoint.
Article
19. The
Board
of Directors shall meet at least on a quarterly basis. The meetings of the
Board
of Directors shall be summoned by the Chairman, or at least by 2 sitting
members, by means of a written call containing, in addition to the place, date
and time of the meeting, the agenda. The Board of Directors´ meetings shall be
summoned at least 5 days in advance. Regardless of call formalities, the meeting
with the attendance of all the Board of Directors members shall be considered
as
regular.
Article
20. The
instatement quorum of the Board of Directors´ meetings shall be comprised of 4
members. The resolutions shall be taken by majority vote of the attending
members, and it shall be incumbent upon the Chairman, in addition to his
personal vote, the casting vote.
Paragraph
1. The
Board
of Directors´ decisions shall be in minutes which shall be signed by the members
attending the meeting.
Paragraph
2. The
board
members may be represented in the Board of Directors´ meetings by other member
to whom special powers have been granted. The members may also participate
in
these meetings through conference call or video conference, considering as
attending the meeting and confirming their vote through a written statement
submitted to the Chairman by letter, facsimile or electronic mail right after
the end of the meeting. Once the statement is received, the Chairman shall
be
invested of full powers to sign the minutes of the meeting on behalf of the
referred member.
Article
21. It
is
incumbent upon the Board of Directors, without limiting the other incumbencies
attributed by law and by these Bylaws:
(a)
to
determine the general guidance of the Company´s businesses;
(b)
to
approve the Company´s annual operating budget and business plan, as well as any
possible changes in them (certainly that, while the new budget or plan is not
approved, the budget or plan previously approved shall prevail);
(c)
to
attribute, from the global amount of the compensation determined by the Board
of
Directors, the monthly fees to each one of the members of the Company´s
management and the advising committee, pursuant to the provisions in the Article
15 of these Bylaws;
(d)
to
elect and dismiss the Company´s Executive Officers and determine their
attributions, in compliance with the provisions in these Bylaws;
(e)
to
inspect the management of the Executive Officers, examine, at any time, the
Company´s records and documents, as well as request information about agreements
entered into or to be enter into or about any other acts;
(f)
to
determine the general compensation criteria and the benefit policies (indirect
benefits, profit and/or sales sharing) of the administrators and high level
employees (such as superintendents or similar management positions) of the
Company and the corporations in which the Company has made an investment,
directly or indirectly;
(g)
to
previously approve the implementation or change of the long-term compensation
incentive plan to employees;
(h)
to
call the General Meeting;
(i)
to
submit to the General Meeting an amendment proposal to these Bylaws;
(j)
to
manifest itself about the management report and the Board of Executive Officers´
accounts, as well as authorize the distribution of interim dividends;
(k)
to
attribute to the Company´s administrators their share in the net income computed
in the Company´s balance sheets, including interim balance sheets, in compliance
with the statutory and legal provisions and limitations;
(l)
to
authorize any change in the Company´s accounting or report presentation
policies, except if required by the generally excepted accounting principles
in
the jurisdictions in which the Company operates;
(m)
to
choose and dismiss the Company´s independent auditors;
(n)
to
resolve on the issue of shares or subscription bonus up to the authorized
capital limit, determining the issue price, the manner of subscription and
payment and other conditions of the issue, also defining if a preference in
the
subscription shall be granted to shareholders in the assumption provided for in
the Article 7 of these Bylaws;
(o)
to
resolve on the issue of simple debentures, not convertible into shares and
without real guarantee;
(p)
to
approve the acquisition, by the Company, of shares issued by itself to be held
in treasury or their cancellation;
(q)
except if provided for in the annual budget or in the business plan in force,
to
approve the businesses or agreements of any nature between the Company and
its
shareholders and/or administrators, as well as between the Company and the
controlling partners, directly or indirectly, of the Company´s shareholders;
(r)
to
previously authorize: (i)
the
execution, by the Company, of any agreements (except for those performed with
utilities concessionaires or others which obey uniform conditions), including,
for example, for the acquisition of either corporate interests or assets; or
(ii) the granting, by the Company, of in
rem guarantee
to the benefit of the Company, or in
rem or
personal guarantee, to the benefit of the Company subsidiaries or third parts,
in the occasion that, in any of the circumstances described in items (i) or
(ii), the transactions be contracted for a period exceeding 48 (forty eight)
months or which value exceeds the highest value between R$15,000,000.00 or
1.5%
of the Company´s total consolidated assets;
(s)
to
determine the headquarters address change, as well as open, transfer and
extinguish branches, agencies, offices, warehouses, sales offices and any other
establishments in any part of the Brazilian territory and overseas;
(t)
to
authorize the acquisition, disposal, transfer, assignment, taxation or other
means of provision, at any bond, including transfer to the capital of other
corporation, of a substantial part of the Company´s permanent assets, such as
the Company´s assets on which its activity is based;
(u)
to
previously resolve on the presentation, by the Company, of a bankruptcy or
court
or out-of-court rebound request;
(v)
to
previously resolve on the proposal or closure of any court or arbitration
process or procedure (except if in the ordinary course of business); and
(w)
to
determine the three-name list of qualified institutions to be presented to
the
General Meeting for purposes of the provisions in the paragraph 4 of the Article
5 of these Bylaws, and regarding the preparation of the appraisal report of
the
Company´s shares for purposes of withdrawal from the Novo
Mercado ,
cancellation of publicly-held company registration or public offering for
acquisition of shares.
SECTION
IV.III. - BOARD OF EXECUTIVE OFFICERS
Article
22. The
Board
of Executive Officers is the Company´s representation body, and it is incumbent
upon it to practice all the social business management acts.
Article
23. The
Board
of Executive Officers is not a joint committee, and it may, however, meet,
whenever necessary, at the Chief Executive Officer´s discretion, who shall also
chair the meeting, to deal with operating aspects.
Sole
Paragraph. The
Board
of Directors´ meeting shall be instated with the attendance of the executive
officers representing the majority of the Board of Executive Officers members.
Article
24. In
the
event of vacancy in the position of executive officer, or impairment of the
sitting member, it shall be incumbent upon the Board of Directors to elect
a new
executive officer or appoint an alternate member among the remaining executive
officers, determining, in any case, the management term and the respective
maturities.
Article
25. The
Board
of Executive Officers is comprised of at least 2 (two) and at the most 8 (eight)
executive officers, shareholders or not, domiciled in Brazil, elected and
dismissed by the Board of Directors, with a term of office of 3 (three) years.
Reelection is allowed.
Article
26. Among
the
executive officers, one shall be appointed as the Chief Executive Officer,
one
as the Chief Financial Officer, one as the Investor Relations Officer and the
other ones shall not have a specific designation. Accumulation of functions
is
allowed.
Article
27. It
is
incumbent upon the Chief Executive Officer: (a) to submit to the approval of
the
Board of Directors the working plans and annual budgets, the investment plans
and the new programs to expand the Company and its subsidiaries, promoting
its
execution under the approved terms; (b) to prepare the Company´s operating
strategies and guidelines and establish the criteria to execute the resolutions
of the General Meeting and the Board of Directors, with the participation of
the
other executive officers; (c) to supervise all the Company´s activities; (d) to
coordinate and inspect the Board of Executive Officers´ activities, by calling
and presiding over their meetings; (e) to perform other duties attributed
thereto by the Board of Directors; and (f) to approve the incorporation and
acquisition of corporate interests in special purpose entities (“SPEs”) and/or
consortiums which have as object the promotion, administration, development,
construction and trading of real state enterprises, once approved, by the Board
of Directors, the development of such enterprises.
Article
28. It
is
incumbent upon the Investor Relations Officer, in addition to the other duties
defined by the Board of Directors, the provision of information to investors,
to
the Brazilian Securities and Exchange Commission and to the São Paulo Stock
Exchange - BOVESPA, as well to keep updated the Company´s record in conformity
with the applicable rules of the Brazilian Securities and Exchange Commission.
Article
29. It
is
incumbent upon the Chief Financial Officer and upon each one of the Executive
Officers without a special denomination the specific attributions entitled
to
them by the Board of Directors.
Article
30. The
Company shall be represented and shall only be considered validly obligated
by
act or signature of: (a) any two executive officers; (b) any executive officer
jointly with an attorney in fact; or (c) two attorneys in fact with specific
powers.
Paragraph
1. The
Company shall be represented, on an isolated basis, by any executive officer,
without the formalities provided for in this Article 30, for purposes of court
process or notice and rendering of personal deposition.
Paragraph
2. The
powers of attorney shall always be granted or repealed by any two Executive
Officers, who shall establish the powers of the attorney in fact and, except
the
powers of attorney granted for court purposes, shall not have a term higher
than
1 (one) year.
Article
31. The
Fiscal Council shall only be instated at the shareholders´ request and has
incumbencies, responsibilities and duties defined by the law. The operation
of
the Fiscal Council shall end in the first Annual General Meeting after its
instatement. Reelection is allowed.
Article
32. The
Fiscal Council is comprised of 3 (three) sitting members and the same number
of
alternate members, elected by the General Meeting.
Paragraph
1. The
compensation of the Fiscal Council members shall be determined by the General
Meeting that elects them.
Paragraph
2. The
investiture of the Fiscal Council members is conditioned to previous
subscription of the Instrument of Agreement of the Fiscal Council Members
referred to in the Novo
Mercado Listing
Rules.
Article
33. The
Fiscal Council shall meet whenever necessary, by means of a call of any of
its
members, drawing up its resolutions in minutes.
Article
34. The
fiscal year shall begin on January 1 and end on December 31 of each year. At
the
end of each fiscal year and each calendar quarter, the financial statements
provided for by the law shall be prepared.
Article
35. The
Company, by resolution of the Board of Directors, may draw up midyear, quarterly
or monthly balance sheets, as well as declare dividends on the account of the
earnings computed in these balance sheets. The Company, by resolution of the
Board of Directors, may also declare interim dividends on the account of
existing retained earnings or profit reserves in the last annual or midyear
balance sheet.
Paragraph
1. The
dividends distributed under the terms of this Article 35 shall be attributed
to
the mandatory dividend.
Paragraph
2. The
Company shall make the payment of interest on own capital, on the account of
the
annual or interim dividends.
Article
36. Possible
accrued losses and income tax provision shall be deducted from the net income
for the year, before any interest.
Paragraph
1.
The
statutory interest of the administrators shall be calculated from the amount
verified in the manner set forth in the main section of Article 36 above, until
the maximum legal limit, and shall be distributed in accordance with the
parameters to be established by the Board of Directors.
Paragraph
2.
Out of
the net income for the year, after the deduction mentioned in the previous
paragraph, the following shall be allocated:
(a)
5%
(five percent) to the legal reserve, until reaching 20% (twenty percent) of
the
paid-up capital or the limit foreseen in paragraph 1 of Article 193 of Law
No.
6,404/76;
(b)
out
of the balance of net income for the year, obtained after the deduction
mentioned in the previous paragraph and the allocation referred to in letter
a)
of this paragraph 2, and adjusted as provided for by Article 202 of Law
#6,404/76, 25% (twenty-five percent) shall be destined to the payment of
mandatory dividend to all shareholders; and
(c)
an
amount not higher than 71.25% (seventy-one point twenty-five percent) of the
net
profits for creation of the Investment Reserve, with the purpose of financing
the expansion of Company’s activities and of its controlled companies, including
by means of subscribing capital increases or creating new projects,
participating in consortiums or other types of association for the performance
of the corporate purpose.
Paragraph
3.
The
reserve established in item “c” above may not exceed 80% (eighty per cent) of
the corporate capital. If it reaches such limit, the General Meeting shall
resolve on the destination of the balance, either by distributing it to the
shareholders or using it for capital increases.
Paragraph
4.
After
the distribution provided for in the previous paragraph, the balance shall
have
the allocation approved by general meeting, after listening to the Board of
Directors, in compliance with the applicable legal provisions.
Article
37. The
disposal of the Company´s share control, both by means of a single operation and
by means of successive operations, shall be contracted under condition precedent
or dissolving condition, of which the control acquirer undertakes to carry
out,
in compliance with the conditions and terms provided for in the effective
legislation and in the Novo
Mercado Listing
Rules, public offering for acquisition of shares from the other shareholders,
by
means of ensuring them equal treatment to the seller.
Article
38. The
public offering referred to in the Article 37 shall also be carried out: (a)
in
the event of a remunerated assignment of subscription rights of shares and
other
bonds or rights related to securities convertible into shares that may result
in
the Disposal of the Company´s control; and (b) in the event of disposal of
control of a corporation that holds the Company´s Control Power, and in this
case the Selling Controlling Shareholder shall undertake to report to the São
Paulo Stock exchange - BOVESPA the value attributed to the Company in this
disposal and attach documentation proving this value.
Sole
Paragraph. For
purposes of the provisions in these Bylaws, it is understood by: “ Control
Disposal ” the transfer to a third party, as compensation, of Control Shares; “
Control Shares ” the block of shares that ensures, directly or indirectly, their
holders the individual and/or shared exercise of the Company´s Control Power;
and “ Selling Controlling Shareholder ” the Controlling Shareholder, when he/she
promotes the disposal of the Company´s control.
Article
39. Those
who
already hold the Company´s shares and may acquire the Share Control Power, due
to a private purchase and sale agreement of shares entered into with the
Controlling Shareholder, comprising any amount of shares, undertake to: (a)
carry out the public offering referred to in the Article 37; (b) indemnify
the
shareholders from whom they have purchased shares on a stock exchange 6 (six)
months prior to the date of the Control Disposal, to whom they shall pay the
difference between the price paid to the Selling Controlling Shareholder and
the
amount paid on a stock exchange for the Company´s shares in this period, duly
authorized; and (c) to take the adequate measures to reconcile the minimum
percentage of 25% (twenty five percent) out of the total outstanding shares
of
the Company within the 6 (six) months subsequent to the acquisition of Control
Power.
Article
40. The
Company shall not record (i) any transfer of shares to the Control Power
Purchaser or to those who may hold the Control Power, while they do not approve
the Controlling Shareholders´ Instrument of Agreement; or (ii) any Shareholders´
Agreement that provides about the Control Power exercise without the approval,
by its signatories, of the Controlling Shareholders´ Instrument of Agreement.
Sole
Paragraph. For
purposes of the provisions in these Bylaws, it is understood by: “ Purchaser ”
the person to whom the Selling Controlling Shareholder transfers the Control
Power in the Company´s Control Disposal; “ Company´s Control Disposal ” the
transfer to a third party, as compensation, of Control Shares; and “ Controlling
Shareholders´ Instrument of Agreement ” the instrument through which the new
Controlling Shareholders or the shareholder(s) who may enter the Company´s
control group undertake to personally submit and act in conformity with the
Agreement of Participation in the Novo
Mercado ,
with
the Novo
Mercado Listing
Rules, with the Commitment Clause and with the Arbitration Rules, as the model
in the Attachment C to the Novo
Mercado Listing
Rules.
Article
41.
In the
assumption the Control Power Exercise takes place in a Diffuse Manner: (a)
whenever approved, at a General Meeting, the cancellation of publicly-held
company registration, the public offering for acquisition of shares shall be
carried out by the Company itself and, in this case, the Company may only
acquire shares held by shareholders who have voted for the registration
cancellation on a resolution at the General Meeting after acquiring the shares
from the other shareholders who have not voted for the referred resolution
and
who have accepted the referred public offering; and (b) whenever approved,
at a
General Meeting, the Company´s withdrawal from the Novo
Mercado ,
by
registration for trading of shares out of the Novo
Mercado or
by
corporate reorganization in which the Company´s shares, resulting from such
organization, are not admitted for trading in the Novo
Mercado ,
however
the cancellation of publicly-held company does not take place, the public
offering for acquisition of shares shall be carried out by the shareholders
who
have voted for the respective resolution at a General Meeting.
Article
42. In
the
assumption of having the Control Power Exercise in a Diffuse Manner, and BOVESPA
establishes that the price of the securities issued by the Company is disclosed
separately or that the trading of the securities issued by the Company is
discontinued in the Novo
Mercado due
to
the noncompliance with the obligations in the Novo
Mercado Listing
Rules, the Chairman of the Board of Directors shall call, up to 2 (two) days
after the determination, only computing the days on which the circulation of
the
newspapers usually used by the Company takes place, an Extraordinary General
Meeting for replacement of all the Board of Directors.
Paragraph
1.
In the
event the Extraordinary General Meeting, referred to in the caput
of
this
Article 42, is not called by the Chairman of the Board of Directors in the
established term, the meeting may be called by any shareholders of the Company.
Paragraph
2. The
new
Board of Directors elected at the Extraordinary General meeting, referred to
in
the caput
and
in
the previous paragraph of this Article 42, shall remedy the noncompliance with
the obligations in the Novo
Mercado Listing
Rules in the lowest possible term or in a new term granted by BOVESPA for this
purpose, whichever is lower.
Article
43. In
the
assumption the Control Power Exercise in a Diffuse Manner and the Company´s
withdrawal from the Novo
Mercado take
place due to the noncompliance with the obligations in the Novo
Mercado Listing
Rules resulting from: (a) resolution at the General Meeting, the public offering
for the acquisition of shares shall be carried out by the shareholders who
have
voted for the resolution which implies the noncompliance; and (b) act or fact
of
the management, the Company shall carry out a public offering for the
acquisition of shares for cancellation of publicly-held company registration
aimed at all the Company´s shareholders. In the event the Company´s maintenance
of publicly-held company registration is resolved at a general meeting, the
public offering for the acquisition of new shares shall be carried out by
shareholders who have voted for this resolution.
CHAPTER
VIII - DISSOLUTION
Article
44. The
Company shall enter into dissolution in the cases provided for by the law,
and
it is incumbent upon the General Meeting to set forth the manner of dissolution
and the Fiscal Council which shall operate in the dissolution period. The
election of the liquidator, or liquidators, and the determination of its power
and compensation shall be incumbent upon the Board of Directors.
Article
45. The
Company, its shareholders, administrators and members of the Fiscal Council
undertake to decide, by means of arbitration, all and any dispute or
disagreement which may arise among them, related or resulting, particularly,
from the application, validity, effectiveness, interpretation, violation and
its
effects, of the provisions in Law # 6,404/76, in these Bylaws, in the rules
issued by the Brazilian Monetary Council, by the Brazilian Central Bank, by
the
Securities and Exchange Commission, as well as in the other applicable rules
to
the general capital market operation, in addition to those in the Novo
Mercado Listing
Rules, in the Agreement of Participation in the Novo
Mercado and
in
the Arbitration Rules of the Market Arbitration Chamber.
Article
46. The
Company shall comply with the Shareholders´ Agreements registered under Article
118 of Law 6,404/76 and it shall be incumbent upon the management to refrain
itself from registering transfers of shares contrary to respective instruments,
and to the Chairman of general meetings and Board of Directors´ meetings to
refrain himself from computing the votes breaching those agreements.
Article
47. The
provisions in these Bylaws which result from the provisions in the Novo
Mercado Listing
Rules shall only be effective as of the date on which the Company publishes
the
Commencement Notice for the Primary Public Distribution of Shares, referring
to
the first public distribution of shares issued by the Company.
SIGNATURE
Pursuant
to the requirements of the Securities Exchange Act of 1934, the registrant
has
duly caused this report to be signed on its behalf by the undersigned, thereunto
duly authorized.
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Gafisa
S.A.
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| Date: April
16, 2008 |
By: |
/s/ Alceu
Duílio Calciolari |
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Name:
Alceu
Duílio Calciolari
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Title:
Chief
Financial Officer
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