As
filed with the Securities and Exchange Commission on June 5, 2009
Registration
No. 333-
UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
_______________
FORM F-3
REGISTRATION
STATEMENT UNDER THE SECURITIES ACT OF 1933
_______________
GAFISA
S.A.
(Exact
name of registrant as specified in its charter)
_______________
|
The
Federative Republic of Brazil
(State
or other jurisdiction of incorporation or organization)
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GAFISA
S.A.
(Translation
of Registrant’s name into English)
Av.
Nações Unidas No. 8,501, 19th Floor
05425-070
- São Paulo, SP - Brazil
phone:
+ 55 (11) 3025-9000
(Address
and telephone number of
Registrant’s
principal executive offices)
|
Not
Applicable
(I.R.S.
Employer
Identification
Number)
|
_____________________
National
Corporate Research, Ltd.
10
East 40th Street, 10th floor
New
York, NY 10016
(Name,
address and telephone number of agent for service)
With
a copy to:
Manuel
Garciadiaz
Davis
Polk & Wardwell
450
Lexington Avenue
New
York, New York 10017
(212)
450-4000
_____________________
Approximate date of commencement of
proposed sale to the public: From time to time after the effective date
of this registration statement.
If only
securities being registered on this Form are being offered pursuant to dividend
or interest reinvestment plans, please check the following box. o
If any of
the securities being registered on this Form are to be offered on a delayed or
continuous basis pursuant to Rule 415 under the Securities Act of 1933, check
the following box. x
If this
Form is filed to register additional securities for an offering pursuant to Rule
462(b) under the Securities Act, please check the following box and list the
Securities Act registration statement number of the earlier effective
registration statement for the same offering. o
If this
Form is a post-effective amendment filed pursuant to Rule 462(c) under the
Securities Act, check the following box and list the Securities Act registration
statement number of the earlier effective registration statement for the same
offering. o
If this
Form is a registration statement pursuant to General Instruction I.C. or a
post-effective amendment thereto that shall become effective upon filing with
the Commission pursuant to Rule 462(e) under the Securities Act, check the
following box. x
If this Form is a post-effective
amendment to a registration statement filed pursuant to General Instruction I.C.
filed to register additional securities or additional classes of securities
pursuant to Rule 413(b) under the Securities Act, check the following box. o
_______________
CALCULATION
OF REGISTRATION FEE
|
Title
of each class of securities to be registered
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Amount
to be registered
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Proposed
maximum aggregate price per unit
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Proposed
maximum aggregate offering price
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Amount
of registration fee
|
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Common
shares, without par value (2)
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(1)
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(1)
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(1)
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(1)
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_________________
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(1)
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An
indeterminate amount of common shares to be offered at indeterminate
prices is being registered pursuant to this registration statement. The
registrant is deferring payment of the registration fee pursuant to Rule
456(b) and is omitting this information in reliance on Rule 456(b) and
Rule 457(r).
|
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(2)
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Traded
only in the form of American Depositary Shares (as evidenced by American
Depositary Receipts), each representing two common shares which are
registered under the Securities Act of
1933.
|
PROSPECTUS
GAFISA
S.A.
Common
Shares and American Depositary Shares Representing Common Shares
We may
offer any combination of the securities described in this prospectus from time
to time in amounts, at prices and on terms to be determined at or prior to the
time of the offering. We refer to the common shares and the American Depositary
Shares, or ADSs, each representing two common shares, collectively as the
“securities.”
This
prospectus describes the general manner in which our securities may be offered
using this prospectus. We will provide specific terms and offering prices of
these securities in supplements to this prospectus. You should read this
prospectus and the accompanying prospectus supplements carefully before you
invest.
We may
offer the securities through underwriting syndicates managed or co-managed by
one or more underwriters or dealers, through agents or directly to investors, on
a continuous or delayed basis or through any combination of these methods. The
prospectus supplement for each offering of securities will describe in detail
the plan of distribution for that offering. For general information about the
distribution of securities offered, you should refer to the section entitled
“Plan of Distribution” in the applicable prospectus supplement. The net proceeds
we expect to receive from such sale will also be set forth in a prospectus
supplement.
Our
common shares are listed on the São Paulo Stock Exchange (BM&F Bovespa SA – Bolsa de
Valores Mercadorias e Futuros), or the BOVESPA, under the symbol “GFSA3”
and our ADSs are listed on the New York Stock Exchange under the symbol
“GFA.”
Investing
in our securities involves risks. You should carefully review the “Risk Factors”
section set forth in our most recent annual report on Form 20-F, which is
incorporated by reference herein, as well as in any other recently filed reports
and, if any, in the relevant prospectus supplement.
NEITHER
THE SECURITIES AND EXCHANGE COMMISSION NOR ANY STATE SECURITIES COMMISSION HAS
APPROVED OR DISAPPROVED OF THESE SECURITIES OR PASSED UPON THE ADEQUACY OR
ACCURACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL
OFFENSE.
The date
of this prospectus is June 5, 2009.
You
should rely only on the information incorporated by reference or provided in
this prospectus and in any prospectus supplement. We have not authorized anyone
else to provide you with different information. This prospectus is an offer to
sell or to buy only the securities referred to herein, but only under
circumstances and in jurisdictions where it is lawful to do so. You should not
assume that the information in this prospectus or any prospectus supplement is
accurate as of any date other than the date on the front of those
documents. The terms
“Gafisa,” “we,” “us,” “our” and
“our
company” mean
Gafisa S.A. and
its consolidated
subsidiaries, unless otherwise indicated.
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This
prospectus is part of a registration statement on Form F-3 that we filed with
the U.S. Securities and Exchange Commission (the “SEC”), using a “shelf”
registration process. Under this shelf process, we may, from time to time, sell
any combination of the securities described in this prospectus in one or more
offerings. This prospectus provides you with a general description of the
securities we may offer. Each time we sell securities, we will provide a
prospectus supplement that will contain specific information about the terms of
that offering. The prospectus supplement may also add, update or change
information contained in this prospectus. You should carefully read both this
prospectus and any applicable prospectus supplement together with additional
information described under the heading “Where You Can Find More Information”
before deciding to invest in any of the securities being offered. This
prospectus does not contain all of the information included in the registration
statement. For a more complete understanding of the offering of the securities,
you should refer to the registration statement, including the exhibits thereto.
To the extent there is a conflict between the information contained in this
prospectus and the prospectus supplement, you should rely on the information in
the prospectus supplement, provided that if any statement in one of these
documents is inconsistent with a statement in another document having a later
date—for example, a document incorporated by reference in this prospectus or any
prospectus supplement—the statement in the document having the later date
modifies or supersedes the earlier statement.
All
references to “real,”
“reais” or “R$” are to
the currency of Brazil. All references to “U.S. dollar,” “U.S.
dollars” or “US$” are to the currency of the United States of America.We have
made rounding adjustments to reach some of the figures included in this
prospectus. As a result, numerical figures shown as totals in some
tables may not be an arithmetic aggregation of the figures that preceded
them.
We file
annual and other reports with the SEC under the Securities Exchange Act of 1934,
as amended (the “Exchange Act”). You may read and copy this information at the
following location of the SEC:
Public
Reference Room
100 F
Street, N.E.
Room
1580
Washington,
D.C. 20549
You may
also obtain copies of this information by mail from the Public Reference Section
of the Securities and Exchange Commission, 100 F Street, N.E., Room 1580,
Washington, D.C. 20549, at prescribed rates. You may obtain information on the
operation of the Securities and Exchange Commission’s Public Reference Room by
calling the Securities and Exchange Commission at 1-800-SEC-0330. The Securities
and Exchange Commission also maintains an Internet worldwide web site that
contains reports and other information about issuers like us who file
electronically with the Securities and Exchange Commission. The address of the
site is http://www.sec.gov. You may also read and copy certain documents we
submit to the New York Stock Exchange at its offices at 20 Broad Street, New
York, New York 10005. We maintain an Internet worldwide web site at
http://www.gafisa.com.br. Information contained on our site is not part of this
prospectus, or any accompanying prospectus supplement.
We are a
“foreign private issuer” as defined under Rule 405 of the Securities Act of 1933
(the “Securities Act”). As a result, although we are subject to the
informational requirements of the Exchange Act as a foreign private issuer, we
are exempt from certain informational requirements of the Exchange Act which
domestic issuers are subject to, including the proxy rules under Section 14 of
the Exchange Act, the insider reporting and short-profit provisions under
Section 16 of the Exchange Act and the requirement to file current reports on
Form 8-K upon the occurrence of certain material events. We are also subject to
the informational requirements of the São Paulo Stock Exchange (BOVESPA) and the
Comissão de Valores Mobiliários (CVM). You are invited to read and copy reports,
statements or other information, other than confidential filings, that we have
filed with the BOVESPA and the CVM. Our public filings with the São Paulo Stock
Exchange are electronically available from the São Paulo Stock Exchange’s
Internet worldwide web site at http://www.bovespa.com.br.
The SEC
allows us to “incorporate by reference” information into this prospectus. This
means that we can disclose important information to you by referring you to
another document filed separately with the SEC. The information incorporated by
reference is considered to be a part of this prospectus, except for any
information superseded by information that is included directly in this document
or incorporated by reference subsequent to the date of this
document.
We
incorporate by reference into this prospectus the following documents listed
below, which we have already filed with or furnished to the SEC:
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(1)
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our
Annual Report on Form 20-F for the fiscal year ended December 31, 2008
filed on June 5, 2009 and any amendments thereto;
and
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(2)
our report on Form 6-K filed on June 5, 2009.
All
subsequent reports that we file on Form 20-F under the Exchange Act after the
date of this prospectus and prior to the termination of the offering shall also
be deemed to be incorporated by reference into this prospectus and to be a part
hereof from the date of filing such documents. We may also
incorporate by reference any other Form 6-K that we submit to the SEC after the
date of this prospectus and prior to the termination of this offering by
identifying in such Form 6-K that it is being incorporated by reference into
this prospectus.
We will
provide without charge to each person to whom this prospectus has been
delivered, upon the written or oral request of any such person to us, a copy of
any or all of the documents referred to above that have been or may be
incorporated into this prospectus by reference, including exhibits to such
documents. Requests for such copies should be directed
to:
Gafisa
S.A.
Av.
Nações Unidas No. 8,501, 19th Floor
05425-070
- São Paulo, SP – Brazil
phone: +
55 (11) 3025-9000
fax: + 55
(11) 3025-9348
The
statements contained in this prospectus in relation to our plans, forecasts,
expectations regarding future events, strategies and projections are
forward-looking statements which involve risks and uncertainties and which are
therefore not guarantees of future results. Our estimates and forward-looking
statements are mainly based on our current expectations and estimates on
projections of future events and trends, which affect or may affect our
businesses and results of operations. Although we believe that these estimates
and forward-looking statements are based upon reasonable assumptions, they are
subject to several uncertainties and are made in light of information currently
available to us. Our estimates and forward-looking statements may be influenced
by the following factors, among others:
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·
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changes
in the overall economic conditions, including employment levels,
population growth and consumer
confidence;
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·
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changes
in real
estate market prices and demand, estimated budgeted costs and the
preferences and financial condition of our
customers;
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·
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demographic
factors and available income;
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·
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our
ability to repay our indebtedness and comply with our financial
obligations;
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·
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our
ability to arrange financing and implement our expansion
plan;
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·
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our
ability to compete and conduct our businesses in the
future;
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·
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changes
in our business;
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·
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inflation
and interest rate fluctuations;
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·
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changes
in the laws and regulations applicable to the real estate
market;
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·
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government
interventions, resulting in changes in the economy, taxes, rates or
regulatory environment;
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·
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other
factors that may affect our financial condition, liquidity and results of
our operations; and
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·
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other
risk factors discussed under “Risk Factors” in Part I, Item 3.D. of our
Annual Report on Form 20-F.
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The words
“believe,” “may,” “will,” “estimate,” “continue,” “anticipate,” “intend,”
“expect” and similar words are intended to identify estimates and
forward-looking statements. Estimates and forward-looking statements speak only
as of the date they were made, and we undertake no obligation to update or to
review any estimate and/or forward-looking statement because of new information,
future events or other factors. Estimates and forward-looking statements involve
risks and uncertainties and are not guarantees of future performance. Our future
results may differ materially from those expressed in these estimates and
forward-looking statements. In light of the risks and uncertainties described
above, the estimates and forward-looking statements discussed in this prospectus
might not occur and our future results and our performance may differ materially
from those expressed in these forward-looking statements due to, inclusive of,
but not limited to, the factors mentioned above.
We are
one of Brazil’s leading homebuilders. Over the last 50 years, we have been
recognized as one of the foremost professionally-managed homebuilders, having
completed and sold more than 970 developments and constructed over 11 million
square meters of housing, which we believe is more than any other residential
development company in Brazil. We believe our brands “Gafisa,” “Alphaville,” and
“Tenda” are well-known brands in the Brazilian real estate development market,
enjoying a reputation among potential homebuyers, brokers, lenders, landowners
and competitors for quality, consistency and professionalism.
Our core
business is the development of high-quality residential buildings in attractive
locations. For the year ended December 31, 2008, approximately 50% of the value
of our launches were derived from high and mid high-level residential
developments under the Gafisa brand. We are also engaged in the development of
land subdivisions, also known as residential communities, representing
approximately 15% of the value of our launches, and affordable entry-level
housing, which represents approximately 8% of the value of our total launches.
Other mid-level and commercial buildings represent approximately 27% of the
value of our total launches. In addition, we provide construction services to
third parties.
We are
one of Brazil’s most geographically-diversified homebuilders currently operating
in 94 municipalities, including São Paulo, Rio de Janeiro, Salvador, Fortaleza,
Natal, Curitiba, Belo Horizonte, Manaus, Porto Alegre and Belém, across 18
states, which represents approximately 90% of the national population and
approximately 89% of the gross domestic product on December 31, 2008. Many of
these developments are located in markets where few large competitors currently
operate. For the year ended December 31, 2008, approximately 38% of the value of
our launches were derived from our operations outside the states of São Paulo
and Rio de Janeiro.
We have
already launched projects in 94 municipalities: Ananindeua, Anápolis, Aparecida
de Goiânia, Aracajú, Araucária, Barbacena, Barueri, Bauru, Belém, Belford Roxo,
Belo Horizonte, Betim, Cabo Frio, Cajamar, Camaçari, Campinas, Campo Grande,
Campo Limpo Paulista, Canoas, Caxias do Sul, Contagem, Cotia, Cuiabá, Curitiba,
Duque de Caxias, Eusébio, Ferraz de Vasconcelos, Fortaleza, Goiânia, Gramado,
Gravataí, Guarulhos, Guarujá, Iguaraçu, Ipatinga, Itaboraí, Itanhaém, Itapevi,
Itaquaquecetuba, Itu, Jaboatão dos Guararapes, João Pessoa, Juiz de Fora, Lauro
de Freitas, Londrina, Macaé, Maceió, Manaus, Maricá, Marilia, Mauá, Mogi das
Cruzes, Mossoró, Natal, Niterói, Nova Iguaçu, Nova Lima, Osasco, Paulista,
Parnamirim, Pinhais, Poá, Porto Alegre, Porto Velho, Queimados, Recife, Rezende,
Ribeirão Neves, Ribeirão Preto, Rio das Ostras, Rio de Janeiro, Salvador, Santa
Luzia, Santana de Parnaíba, Santo André, Santos, São Bernardo do Campo, São
Caetano, São Gonçalo, São José dos Campos, São José dos Pinhais, São Leopoldo,
São Luiz do Maranhão, São Paulo, Sarzedo, Serra, Sete Lagoas, Sobradinho,
Sorocaba, Suzano, Uberlândia, Valparaíso, Votorantim and Volta Redonda, across
18 states throughout Brazil.
Our real
estate business includes the following activities:
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·
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developments
for sale of:
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·
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residential
units,
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·
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land
subdivisions (also known as residential communities),
and
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·
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commercial
buildings;
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·
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construction
services to third parties; and
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·
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sale
of units through our brokerage subsidiaries, Gafisa Vendas and Gafisa
Vendas Rio.
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Our
registered and principal executive offices are located at Av. Nações Unidas No.
8,501, 19th floor, 05425-070, São Paulo, SP, Brazil, and our general telephone
and fax numbers are + 55 (11) 3025-9000 and + 55 (11) 3025-9348,
respectively.
Unless
otherwise indicated in an accompanying prospectus supplement, we intend to use
the net proceeds from the sale of securities for general corporate
purposes.
The
following table sets forth our consolidated capitalization at December 31, 2008
based on our financial statements prepared in accordance with Brazilian GAAP.
This table should be read in conjunction with, and is qualified in its entirety
by reference to, our audited consolidated financial statements and the related
notes thereto incorporated by reference in this prospectus.
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At
December 31, 2008 (2)
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||||
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(Brazilian
GAAP)
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(in
thousands)
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|||
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Short-term
debt:
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||||
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Loans
and financing
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R$ | 447,503 | ||
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Debentures
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61,945 | |||
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Total
short-term debt
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509,448 | |||
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Long-term
debt:
|
||||
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Loans
and financing
|
600,673 | |||
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Debentures
|
442,000 | |||
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Total
long-term debt
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1,042,673 | |||
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Shareholders’
equity:
|
||||
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Capital
stock
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1,229,517 | |||
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Treasury
shares
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(18,050 | ) | ||
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Stock
options reserve
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47,829 | |||
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Capital
reserves
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134,296 | |||
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Revenue
reserves
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218,827 | |||
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Total
shareholders’ equity
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1,612,419 | |||
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Total
capitalization (1) (2)
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R$ | 2,655,092 | ||
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(1)
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Total
capitalization corresponds to total long-term debt (loans, financing and
debentures) plus total shareholders’
equity.
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(2)
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Total
capitalization does not include obligation to venture partners recorded in
other accounts payable.
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Our
common shares are listed on the São Paulo Stock Exchange (BM&F Bovespa SA - Bolsa de
Valores Mercadorias e Futuros), or the BOVESPA, under the symbol “GFSA3”
and our ADSs are listed on the New York Stock Exchange, or the NYSE, under the
symbol “GFA.” The table below sets forth, for the indicated periods, the high
and low closing prices of the ADSs on the NYSE, in U.S. dollars, and the common
shares on the BOVESPA, in reais. On June 3, 2009, the
last reported sales price of our common shares on the BOVESPA was R$15.95 and
the last reported sales price of our ADSs on the NYSE was US$16.07.
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New
York Stock Exchange
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São
Paulo Stock Exchange
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|||||||||||||||||||||||
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High
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Low
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Volume(1)
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High
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Low
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Volume(1)
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|||||||||||||||||||
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(in
US$ per ADS)
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(in
reais per common
shares)
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|||||||||||||||||||||||
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Year
Ended
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||||||||||||||||||||||||
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December
31, 2006 (2)
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— | — | — | 35.20 | 17.70 | 430,555 | ||||||||||||||||||
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December
31, 2007
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40.50 | 23.10 | 418,005 | 35.61 | 22.50 | 897,085 | ||||||||||||||||||
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December
31, 2008
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46.50 | 5.41 | 930,018 | 38.26 | 6.86 | 1,238,592 | ||||||||||||||||||
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Quarter
|
||||||||||||||||||||||||
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First
quarter 2007 (3)
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27.77 | 24.89 | 1,164,963 | 35.30 | 25.70 | 466,779 | ||||||||||||||||||
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Second
quarter 2007
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35.32 | 24.65 | 310,953 | 34.02 | 25.25 | 889,111 | ||||||||||||||||||
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Third
quarter 2007
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35.09 | 23.10 | 405,016 | 33.41 | 22.50 | 1,141,404 | ||||||||||||||||||
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Fourth
quarter 2007
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40.50 | 30.00 | 407,786 | 35.61 | 27.01 | 1,089,472 | ||||||||||||||||||
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First
quarter 2008
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41.50 | 29.96 | 771,929 | 34.60 | 25.50 | 1,128,515 | ||||||||||||||||||
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Second
quarter 2008
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46.50 | 33.36 | 969,276 | 38.26 | 27.50 | 995,435 | ||||||||||||||||||
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Third
quarter 2008
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35.59 | 20.97 | 890,823 | 28.20 | 19.90 | 1,206,926 | ||||||||||||||||||
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Fourth
quarter 2008
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24.60 | 5.41 | 1,080,111 | 23.79 | 6.86 | 1,621,471 | ||||||||||||||||||
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First
quarter 2009
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12.11 | 7.33 | 674,687 | 13.23 | 8.69 | 1,885,703 | ||||||||||||||||||
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Second
quarter 2009 (through June 3)
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19.73 | 10.91 | 786,480 | 20.90 | 12.41 | 2,620,791 | ||||||||||||||||||
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Month
|
||||||||||||||||||||||||
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December
2008
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9.26 | 6.36 | 591,131 | 10.50 | 7.70 | 1,433,820 | ||||||||||||||||||
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January
2009
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12.11 | 8.58 | 683,844 | 13.10 | 10.10 | 1,215,924 | ||||||||||||||||||
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February
2009
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11.72 | 8.26 | 671,193 | 13.23 | 9.91 | 1,724,356 | ||||||||||||||||||
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March
2009
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10.47 | 7.33 | 669,380 | 11.86 | 8.69 | 2,724,900 | ||||||||||||||||||
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April
2009
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17.92 | 10.91 | 779,236 | 19.60 | 12.41 | 2,267,110 | ||||||||||||||||||
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May
2009
|
19.73 | 16.44 | 771,136 | 20.90 | 17.20 | 2,687,006 | ||||||||||||||||||
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(1)
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Average
number of shares traded per day.
|
|
(2)
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Our
common shares started trading on the BOVESPA on February 17,
2006.
|
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(3)
|
The
ADSs started trading on the NYSE on March 16,
2007.
|
General
We are
currently a publicly-held company incorporated under the laws of Brazil,
registered with the Board of Trade of the State of São Paulo (JUCESP) under NIRE
35300147952 and with the CVM under No. 01610-1, and enrolled with the Brazilian
Taxpayer’s Authorities under CNPJ/MF No. 01,545,826/0001-07.
Corporate
Purposes
Article 3
of our bylaws provides that our corporate purpose is to: (1) promote and develop
any type of real estate project, whether our own or that of a third party, in
the latter case as a contractor or agent; (2) purchase and sell any type of real
estate; (3) perform civil construction and provide civil engineering services;
and (4) develop and implement marketing strategies for any type of real estate
project, whether our own or that of a third party.
Issued
Share Capital
As of the
date of this prospectus, our share capital was R$1,231.9 million, all of which
was fully subscribed and paid-in. Our share capital is comprised of
133,368,318 registered, book-entry common shares, without par
value. Under our bylaws, our board of directors may increase our
share capital to the limit of our authorized capital by issuing up to
200,000,000 common shares without the need of specific shareholder
approval. Our shareholders must approve any capital increase above
that amount at a shareholders’ general meeting. Pursuant to the
agreement entered into with the BOVESPA for the listing of our shares on the
Novo Mercado, we are
not permitted to issue preferred shares.
Novo
Mercado
Our
shares were accepted for trading on the Novo Mercado on February 17,
2006. In order to delist our shares from the Novo Mercado, we must conduct
a tender offer for the purchase of the shares of our capital stock outstanding
in the market. See “—Delisting from the Novo Mercado.” In
the Novo Mercado,
listed companies are required to, among others, (1) only issue common shares,
(2) maintain a minimum free float equal to at least 25% of the company’s
capital, (3) detail and include additional information in the quarterly
information and (4) make available the annual financial statements in English
and based on international accounting standards.
The rules
imposed by the Novo
Mercado aim at providing transparency in relation to the activities and
economic situation of the companies to the market, as well as more power to the
minority shareholders in the management of the companies, among other
rights. The main rules relating to the Novo Mercado, and that the
company is subject to, are summarized below.
According
to CMN Resolution No. 3,456 of June 1, 2007, which governs the investment
of funds by private pension funds, shares of companies that adopt differentiated
corporate governance practices may represent a higher interest in the investment
portfolio of such private pension funds, and are therefore considered
significant and attractive investments for the private pension funds, which are
large investors in the Brazilian capital market. This fact might
improve the development of the Novo Mercado, benefiting the
companies whose securities are traded on the Novo Mercado.
Authorization
for Trading on the Novo Mercado
Firstly,
the company that is authorized to list its securities on the Novo Mercado shall keep
updated its listed company register with the CVM, which allows the trading of
the company’s common shares at the stock market. Furthermore, the
company, among other conditions, shall have signed a Listing Agreement in the
Novo Mercado and
adapted its bylaws to comply with the minimum requirements of the
BOVESPA. As regards the capital structure, it shall be exclusively
divided into common shares, and a minimum free float equal to 25% of the capital
stock, shall be maintained by the company. The existence of founders’
shares by the companies listed on the Novo Mercado is
prohibited.
Board
of Directors
The board
of directors of companies authorized to have their shares traded on the Novo Mercado shall be
comprised of at least five members, of which at least 20% shall be independent,
as defined in the Listing Rules of the Novo Mercado. The
members of the board of directors shall be elected by a shareholders’ general
meeting for a maximum two-year term of office, and are eligible for
reelection. All new members of the board of directors and of the
board of officers shall sign a Management Compliance
Statement. Through the Compliance Statement, the company’s directors
and officers are personally responsible for complying with the Listing Agreement
in the Novo Mercado,
the Rules of the Market Arbitration Chamber and the Listing Rules of the Novo Mercado.
Other
Novo Mercado Characteristics
Novo Mercado rules cover
other areas designed to foster high levels of corporate governance and market
transparency. Companies are required to keep the minimum stock
percentage floating in the market, in order to foster dispersion of share
ownership. In addition, companies are obliged to assign tag-along
rights to their shareholders in order to ensure equal treatment if a controlling
shareholder sells its controlling stake. The Novo Mercado rules require
companies to provide quarterly information on the number of shares held by the
controlling shareholder, if any, company directors and officers, members of the
Fiscal Council and the number of outstanding shares, in addition to other
information required by the Listing Rules of the Novo
Mercado. Companies are also required to give more disclosure
regarding related party transactions in which a company may be
involved. Finally, controlling shareholders, directors, officers and
members of a company’s fiscal council are required to submit to arbitration any
disputes or conflicts related to or arising from the Listing Rules of the Novo Mercado and the Listing
Agreement in the Novo
Mercado, specifically with regard to their application, validity,
effectiveness and interpretation. The arbitrations take place before
the Market Arbitration Chamber established by the BOVESPA and are conducted in
accordance with the Rules of the Market Arbitration Chamber.
Company
Management
We are
managed by a board of directors and a board of officers . The members of the
board of directors must be shareholders irrespectively of the number of shares
of the capital stock of the company he/she holds. The members of the board of
officers must be Brazilian residents and may, or may not, be
shareholders.
Conflict
of Interests
According
to Brazilian corporate law a director or an officer shall not take part in any
corporate transaction in which he/she has an interest which conflicts with the
interest of the company. In this case, he/she shall disclose his/her
disqualification to the other directors or officers and shall cause the nature
and extent of his/her interest to be recorded in the minutes of the board of
directors or board of officers’ meeting, as the case may be.
With due compliance with the rules above relating to
conflict of interests, a director or an officer may only contract with the
company under reasonable and fair
conditions, identical to those which prevail in the market or under which the
corporation would contract with third parties. Any business contracted otherwise
is voidable and the director or the officer concerned shall be obliged to
transfer to the corporation all benefits which he/she may have obtained in such
business.
According
to Brazilian corporate law, any director or officer may not:
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perform
any act of generosity to the detriment of the
company;
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without
prior approval of the shareholders’ general meeting or the board of
directors, borrow money or property from the company or use its property,
services or taking advantage of its standing for his/her own benefit or
for the benefit of a company in which he/she has an interest or of a third
party; and
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by
virtue of his position, receive any type of direct, or indirect, personal
advantage from third parties, without authorization in the bylaws or from
a shareholders’ general meeting.
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According
to our bylaws, any business or agreement between the company and any director or
officer must be previously approved by the board of directors, except if
specified in our annual budget or business plan.
Rules
for Retirement
There is
no retirement age relating to directors or officers pursuant to the Brazilian
law and our bylaws.
Policy
for the Trading of Our Securities
On March
4, 2005, our board of directors approved our Conduct Manual on Information
Disclosure and Use and Securities Trading Policy, which establishes the
following procedures regarding the policy for the trading of our
securities:
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all
trades conducted by us and persons that must comply with the Trading
Policy (executive officers, directors, employees and shareholders involved
in our management) can only be conducted with the intermediation of
certified brokers, according to the list sent to
CVM;
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such
persons are also restricted from trading their shares during all periods
when the investor relations officer gives notice of a black-out period,
and the investor relations officer has no obligation to provide the reason
for the black-out period, which will be handled confidentially by its
recipients;
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all
our directors, executive officers, employees, members of the other bodies
with technical or consultant duties, our possible controlling
shareholders, and whoever by virtue of his/her position, job, or post at
our company or our subsidiaries and affiliates, and who has signed the
compliance statement and becomes aware of information of a material
transaction or event involving our company, are restricted from trading
our securities until such material transaction or event is disclosed to
the market, except as regards treasury stock transactions, through private
trading, the exercise of options to purchase shares of our capital stock,
or a possible buyback, also through private trading, carried out by
us. This restriction is extended to periods prior to the
announcement of such information or annual or interim financial
statements;
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trading
of our securities or transactions related to our securities carried out by
the aforementioned persons pursuant to an Individual Investment Program,
consisting of long-term investments, as defined in the Trading Policy, is
not subject to the aforementioned restrictions;
and
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the
restrictions of the Trading Policy also apply to our former directors and
executive officers (a) for the six month period following the end of their
duties with the company, or (b) until the disclosure of the material event
or the related financial statements, and also cover indirect trading
carried out by the aforementioned
persons.
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Rights
of Common Shares
Each of
our common shares entitles its holder to one vote at an annual or special
shareholders’ general meeting. A holder of ADS has the right under the deposit
agreement to instruct the depositary to exercise the voting rights for the
common shares represented by his/hers ADSs. Pursuant to our bylaws, Brazilian
corporate law and the Novo
Mercado rules, owners of common shares are entitled to dividends, or
other distributions made in respect of common shares, in proportion to their
ownership of outstanding shares. In addition, upon our liquidation, holders of
our shares are entitled to share all our remaining assets, after payment of all
our liabilities, ratably in accordance with their respective participation in
the total amount of our issued and outstanding shares. Holders of our common
shares are entitled to participate on a pro rata basis in future capital calls
by our company. Our common shares have tag along rights, which enable
their holders to, upon the sale of a controlling interest in us, receive 100% of
the price paid per common share of the controlling block by a single or series
of transaction.
Options
According
to our bylaws, we may, within our authorized share capital and upon resolution
of the shareholders’ general meeting, grant stock options to (1) our directors,
executive officers and employees, or (2) individuals who provide services to us
or to companies we control.
Withdrawal
Rights
Shareholders
who dissent or abstain from voting on certain actions taken during a
shareholders’ general meeting have the right under Brazilian corporate law to
withdraw from our company and to receive the value of their shares.
According
to Brazilian corporate law, shareholder withdrawal rights may be exercised in
the following circumstances, among others:
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a
reduction in the percentage of our mandatory
dividends;
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a
change in our corporate purpose;
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an
acquisition, by our company, of a controlling stake in another company if
the acquisition price is outside of the limits established by Brazilian
corporate law;
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a
merger of our company into another company, if we are not the surviving
entity, or our consolidation with another company;
or
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an
approval of our participation in a group of companies (as defined in
Brazilian corporate law).
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Brazilian
corporate law further provides that any resolution regarding a spin-off will
also entitle shareholders to withdraw if the spin-off:
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causes
a change in our corporate purpose, except if the equity is spun-off to a
company whose primary activities are consistent with our corporate
purposes;
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reduces
our mandatory dividends; or
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causes
us to join a group of companies (as defined in Brazilian corporate
law).
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In cases
where (1) our company merges with another company where we are not the surviving
company, or (2) we are consolidated with another company, or (3) we participate
in a group of companies (as defined in Brazilian corporate law), our
shareholders will not be entitled to withdraw from our company if their
respective shares are (a) liquid, i.e. part of the BOVESPA index or other stock
exchange index in Brazil or abroad, (as defined by the CVM), and (b) widely
held, such that less than 50% of our shares are held by a controlling
shareholder or by companies a controlling shareholder controls. We are currently
part of the IBOVESPA (the BOVESPA index) and have no controlling shareholder.
Therefore, our shares are, at present, considered liquid and widely held for the
purposes of this paragraph.
The right
to withdraw expires 30 days after publication of the minutes of the relevant
shareholders’ general meeting. We are entitled to reconsider any
action giving rise to withdrawal rights for 10 days after the expiration of the
30-day period if the redemption of shares of dissenting or non-voting
shareholders would jeopardize our financial stability. If
shareholders exercise withdrawal rights, they are entitled to receive net book
value for the shares, based on the last balance sheet approved by the
shareholders. If the resolution giving rise to the rights is made
later than 60 days after the date of the last approved balance sheet, the
shareholder may demand that his or her shares be valued according to a new
balance sheet dated no less than 60 days before the resolution
date. In this case, we must immediately pay 80% of the equity value
of the shares according to the most recent balance sheet approved by our
shareholders, and the balance must be paid within 120 days after the date of the
resolution of the shareholders’ general meeting.
Redemption
of Shares
According
to Brazilian corporate law, we may redeem our shares by a decision taken in a
special shareholders’ general meeting by shareholders representing at least 50%
of our share capital. The share redemption may be paid with our
profit, profit reserves or capital reserves. If the share redemption
is not applicable to all shares, the redemption will be made by
lottery. If custody shares are picked in the lottery and there are no
rules established in the custody agreement, the financial institution will
specify on a pro rata basis, the shares to be redeemed.
Registration
of Shares
Our
shares are held in book-entry form with Banco Itaú S.A., which will act as the
custodian agent for our shares. Transfer of our shares will be
carried out by means of book entry by Banco Itaú S.A., debiting the share
account of the seller and crediting the share account of the buyer, with the
presentation of a written order of the transferor or a judicial authorization or
order to effect such transfers.
Preemptive
Rights
Except as
provided below, our shareholders have a general preemptive right to participate
in any issuance of new shares, convertible debentures and warrants, in
proportion to their respective shareholding at such time, but the conversion of
debentures and subscription warrants into shares, the granting of options to
purchase shares and the issuance of shares as a result of its exercise, are not
subject to preemptive rights. In addition, Brazilian corporate law
allows for companies’ bylaws to give the board of directors the power to exclude
preemptive rights or reduce the exercise period of such rights with respect to
the issuance of new shares, debentures convertible into shares and subscription
warrants up to the limit of the authorized share capital if the distribution of
those shares, debentures or subscription warrants is effected through a sale on
a stock exchange, through a public offering or through an exchange of shares in
a tender offer the purpose of which is to acquire control of another
company. Shareholders are allowed to exercise the preemptive rights
for a period of at least 30 days following the publication of notice of the
issuance of shares, convertible debentures and warrants, and the right may be
transferred or disposed of for consideration.
Holders
of ADSs may be unable to exercise preemptive rights with respect to our common
shares underlying the ADSs.
Shareholders’
General Meetings
Under
Brazilian corporate law, at our shareholders’ meetings, shareholders are
empowered to take any action relating to our corporate purpose and to pass any
such resolutions as they deem necessary. The approval of our
financial statements and the determination of the allocation of our net profits
with respect to each fiscal year take place at our annual general shareholders’
meeting immediately following such fiscal year. The election of our
directors and members of our fiscal council—if the requisite shareholders
request its establishment—typically takes place at the annual general
shareholders’ meeting, although under Brazilian law it may also occur at a
special shareholders’ general meeting.
A special
shareholders’ general meeting may be held concurrently with the annual general
shareholders’ meeting. Pursuant to our bylaws and Brazilian corporate
law, the following actions, among others, may only be taken at a general
shareholders’ meeting:
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amendment
of our bylaws, including amendment of our corporate
purpose;
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election
and dismissal, at any time, of our directors and members of our fiscal
council, if we eventually form a fiscal
council;
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determination
of the aggregate compensation of our board of directors and board of
officers, as well as the fiscal council’s compensation, if the requisite
shareholders request its
establishment;
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approval
of stock splits and reverse stock
splits;
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approval
of a stock option plan;
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approval
of the management’s accounts and the financial statements prepared by the
management;
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resolution
upon the destination of our net income and distribution of
dividends;
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election
of the fiscal council to function in the event of our
dissolution;
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cancellation
of our registration with the CVM as a publicly-held
company;
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authorization
for the issuance of convertible debentures or secured
debentures;
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suspension
of the rights of a shareholder who has violated Brazilian corporate law or
our bylaws;
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acceptance
or rejection of the valuation of in-kind contributions offered by a
shareholder in consideration for shares of our capital
stock;
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approval
of our transformation into a limited liability company or any other
corporate form;
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delisting
of our common shares from the Novo
Mercado;
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appointment
of a financial institution responsible for our valuation, in the event
that a tender offer for our common shares is carried out in connection
with a corporate transformation or delisting of our common shares from the
Novo
Mercado;
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reduction
in the percentage of mandatory
dividends;
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participation
in a centralized group of
companies;
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change
in our core business or corporate
purpose;
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approval
of any merger, consolidation with another company or
spin-off;
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approval
of any dissolution or liquidation, the appointment and dismissal of the
respective liquidator and the official review of the reports prepared by
him or her; and
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authorization
to petition for bankruptcy or request for judicial or extrajudicial
restructuring.
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According
to Brazilian corporate law, neither a company’s bylaws nor actions taken at a
shareholders’ meeting may deprive a shareholder of specific rights, such
as:
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the
right to participate in the distribution of
profits;
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the
right to participate equally and ratably in any remaining residual assets
in the event of liquidation of the
company;
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the
right to preemptive rights in the event of subscription of shares,
convertible debentures or subscription warrants, except in some specific
circumstances under Brazilian law described in “—Preemptive
Rights”;
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the
right to inspect and monitor the management of the company’s business in
accordance with Brazilian corporate
law;
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the
right to vote in any shareholders meeting;
and
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the
right to withdraw from the company in the cases specified in Brazilian
corporate law, described in “—Withdrawal
Rights.”
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Quorum
for our Shareholders’ General Meetings
As a
general rule, Brazilian corporate law provides that a quorum at a shareholders’
general meeting consists of shareholders representing at least 25% of a
company’s issued and outstanding voting capital on the first call and, if that
quorum is not reached, any percentage on the second call. A quorum
for the purposes of amending our bylaws consists of shareholders representing at
least two-thirds of our issued and outstanding voting capital on the first call
and any percentage on the second call.
As a
general rule, the affirmative vote of shareholders representing at least the
majority of our issued and outstanding common shares present in person or
represented by proxy at a shareholders’ general meeting is required to ratify
any proposed action, with abstentions not taken into
account. However, the affirmative vote of shareholders representing
one-half of our issued and outstanding voting capital is required
to:
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reduce
the percentage of mandatory
dividends;
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change
our corporate purpose;
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merge
or consolidate our company with another
company;
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spin-off
a portion of our assets or
liabilities;
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approve
our participation in a group of companies (as defined in Brazilian
corporate law);
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apply
for cancellation of any voluntary
liquidation;
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approve
our dissolution; and
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approve
the merger of all our shares into another
company.
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According
to our bylaws and for so long as we are listed on the Novo Mercado, we may not
issue preferred shares or founders’ shares and we will have to conduct a tender
offer in order to delist ourselves from the Novo Mercado.
A quorum
smaller than the quorum established by Brazilian corporate law may be authorized
by the CVM for a publicly-held company with widely-traded and widespread shares
that has had at least half of the holders of its voting shares in attendance at
its last three shareholders’ meetings.
Notice
of our Shareholders’ General Meetings
According
to Brazilian corporate law, notice of our shareholders’ general meetings must be
published at least three times in the Diário Oficial do Estado de São Paulo, the
official newspaper of the State of São Paulo, and in another widely circulated
newspaper in the same State, previously chosen at an annual shareholders
meeting, which in our case is O Estado de São Paulo. The first notice
must be published no later than 15 days before the date of the meeting on the
first call, and no later than eight days before the date of the meeting on the
second call. However, in certain circumstances, the CVM may require
that the first notice be published 30 days in advance of the
meeting. In addition, upon request of any shareholder, the CVM may
suspend for up to 15 days the required prior notice of the special shareholders’
general meeting so that the requesting shareholder may become familiar with and
analyze the proposal to be voted upon at such meeting. Such call
notice in all circumstances shall contain the agenda for the meeting and, in
case of an amendment to our bylaws, a summary of the proposed
amendment.
Location
of our Shareholders’ General Meetings
Our
shareholders’ meetings shall take place at our head offices at Av. Nações Unidas
No. 8,501, 19th floor, 05425-070 - São Paulo, SP - Brazil. Brazilian corporate
law allows our shareholders to hold meetings outside our head offices in the
event of force majeure,
provided that the relevant notice contains a clear indication of the place where
the meeting will occur.
Who
May Call our Shareholders’ General Meetings
According
to Brazilian corporate law, our board of directors may call a shareholders’
general meeting. Shareholders’ general meetings may also be called
by:
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any
shareholder, if our directors fail to call a shareholders’ general meeting
within 60 days after the date they were required to do so under applicable
laws and our bylaws;
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shareholders
holding at least 5% of our share capital if our directors fail to call a
meeting within eight days after receipt of a request to call the meeting
by those shareholders, and such request must indicate the proposed
agenda;
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shareholders
holding at least 5% of our share capital if our directors fail to call a
meeting within eight days after receipt of a request to call the meeting
to convene a fiscal council; and
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our
fiscal council, if one is in place, if our board of directors delays
calling an annual shareholders’ meeting for more than one
month. The fiscal council may also call a special general
shareholders’ meeting at any time if it believes that there are
significant or urgent matters to be
addressed.
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The
chairman of our board of directors shall call a shareholders’ general meeting
if: (1) we are controlled by a shareholder holding less than 50% of our voting
capital (i.e., control power exercised in a diffuse manner), and (2) BOVESPA
determines that the price of our shares shall be quoted separately or that the
trading of our shares on the Novo Mercado shall be
suspended by reason of non-compliance with the listing rules of Novo Mercado. At
such a meeting all members of our board of directors must be replaced. In the
event the shareholders’ general meeting is not called by the chairman of the
board of directors within the time period established in our bylaws, the meeting
may be called by any shareholder of the company.
Conditions
for Admission at our Shareholders’ General Meetings
A
shareholder may be represented at a shareholders’ general meeting by a proxy, as
long as the proxy is appointed less than a year before such shareholders’
general meeting. The proxy must be either a shareholder, an executive
officer of our company, a lawyer or a financial institution. An
investment fund must be represented by its investment fund officer.
Shareholders
attending a shareholders’ general meeting must deliver proof of their status as
shareholders and proof that they hold the shares they intend to vote by delivery
of proper identification and a receipt issued by the custodian agent of our
shares.
Arbitration
Any
disputes or controversies involving our company, our shareholders, members of
our management or our fiscal council relating to or arising from the Listing
Agreement in the Novo
Mercado, Listing Rules, our bylaws, Brazilian corporate law, the rules
published by the Brazilian Monetary Council (Conselho Monetário Nacional),
or the “CMN,” the Brazilian Central Bank, the CVM, any shareholders’ agreement
filed at the our headquarters, and other rules applicable to the Brazilian
capital markets in general, must be submitted to arbitration conducted in
accordance with the Rules of the Market Arbitration Chamber established by the
BOVESPA. According to Chapter Twelve of such Rules, the parties may
consensually agree to use another arbitration chamber or center to resolve their
disputes.
Going
Private Process
We may
become a private company by the decision of our shareholders only if we conduct
a public tender offer to acquire all of our outstanding shares in accordance
with the rules and regulations of Brazilian corporate law, the CVM and the Novo Mercado regulations
which requires:
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a
fair bid price at least equal to the value estimated by the company;
and
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shareholders
holding more than two thirds of the outstanding shares have specifically
approved the process or accepted the
offer.
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The
minimum price offered for the shares in the public tender offer will correspond
to the economic value of such shares, as determined by a valuation report issued
by a specialized firm, and we may only purchase shares from shareholders that
have voted in favor of us becoming a private company after purchasing all shares
from the other shareholders that did not vote in favor of such deliberation and
that have accepted the public tender offer.
The
valuation report must be prepared by a specialized and independent firm of
recognized experience chosen by the shareholders representing the majority of
the outstanding shares (excluding, for such purposes, treasury shares, shares
held by our affiliates and by other companies that are a part of our economic
group, as well as blank votes) from a list of three institutions presented by
our board of directors. All the expenses and costs incurred in
connection with the preparation of the valuation report must be paid for by
us.
Shareholders
holding at least 10% of our outstanding shares may require our management to
call a special shareholders’ general meeting to determine whether to perform
another valuation using the same or a different valuation
method. This request must be made within 15 days following the
disclosure of the price to be paid for the shares in the public
offering. The shareholders who make such request as well as those who
vote in its favor must reimburse us for any costs involved in preparing the new
valuation, if the new valuation price is not higher than the original valuation
price. If the new valuation price is higher than the original
valuation price, the public offering must be made at the higher
price.
Delisting
from the Novo
Mercado
We may,
at any time, delist our common shares from the Novo Mercado, provided that
shareholders approve the decision and that the BOVESPA is notified in writing at
least 30 days in advance. Delisting of shares from the Novo Mercado does not require
delisting from the BOVESPA.
If our
common shares are delisted from the Novo Mercado, we or our
controlling shareholders, if any, will be required to conduct a tender offer for
the acquisition of our outstanding common shares. The minimum price
offered for the shares in the public tender offer will correspond to the
economic value of the shares, as determined by a valuation report issued by a
specialized firm chosen by the shareholders representing a majority of the
outstanding shares (excluding, for such purposes, shares held by the controlling
shareholders, if any, and their affiliates, treasury shares, shares held by our
affiliates, and blank votes) from a list of three institutions presented by our
board of directors. All the expenses and costs incurred in connection
with the preparation of the valuation report must be paid for by the controlling
shareholder, if any, or by us.
If our
delisting from the Novo
Mercado occurs due to the cancellation of our registration as a publicly
held company, all the other requirements established by such delisting shall be
followed. See “—Going Private Process.”
In the
event that we delist due to a corporate reorganization where the surviving
company is not admitted for listing on the Novo Mercado, the
then-controlling shareholders will need to carry out a public tender offer for
the acquisition of the shares held by other shareholders, and the minimum price
offered per share shall be the economic value of the shares. The
notice of public tender offer shall be given to the BOVESPA and released to the
market immediately after the shareholders’ general meeting that has approved the
corporate reorganization.
If our
share control is sold within twelve months of our delisting from the Novo Mercado, the selling
controlling shareholder and the acquirer shall offer to acquire the shares of
all other shareholders under the same conditions offered to the selling
controlling shareholder.
In
addition, our by-laws provide that if the shareholders decide to delist from the
Novo Mercado and no
controlling shareholders exist at the time, the tender offer for the acquisition
of our outstanding common shares shall be effected by the shareholders who voted
in favor of the delisting from the Novo Mercado.
Sale
of a Controlling Stake in our Company
Under the
Listing Rule of the Novo
Mercado, the sale of a controlling interest in our company, either
through a single transaction or through successive transactions, takes place
under a suspension or resolution condition, where the acquirer agrees to, within
the time and pursuant to the conditions specified under Brazilian corporate law
and the Listing Rules of the Novo Mercado, make a tender
offer of the remaining shares of the other shareholders under the same terms and
conditions granted to the selling controlling shareholder.
A tender
offer is also required under the following conditions:
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when
rights are assigned for a subscription of shares and other securities or
rights related to securities convertible into shares that results in the
sale of the company’s controlling
stake;
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when,
if the controlling shareholder is an entity, the control of such
controlling entity is transferred;
and
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when
a current shareholder acquires a controlling stake through an agreement
for the purchase of shares. In this case, the acquiring
shareholder is obligated to make a tender offer under the same terms and
conditions granted to the selling shareholders and reimburse the
shareholders from whom he/she had purchased
the
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shares
traded on stock exchanges within the six months before the sale date of the
company’s share control. The reimbursement value is the difference
between the price paid to the selling controlling shareholder and the amount
traded on stock exchanges per share, during this period, adjusted by the
inflation in the period.
The
buyer, when necessary, must take the necessary measures to recompose the minimum
25% of outstanding shares in the market within the subsequent six
months.
Purchases
by us of our own Shares
Our
bylaws entitle our board of directors to approve the acquisition of our own
shares. The decision to acquire our shares, to maintain the acquired
shares in treasury or to cancel them may not, among other things:
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result
in the reduction of our share
capital;
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require
the use of resources greater than our accumulated profits and available
reserves, as provided in our financial
statements;
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create,
as a result of any action or inaction, directly or indirectly, any
artificial demand, supply or condition relating to share
price;
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involve
any unfair practice; or
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be
used for the acquisition of shares held by our controlling
shareholders.
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We may
not keep in treasury more than 10% of our outstanding common shares, including
the shares held by our subsidiaries and affiliates.
Any
acquisition by us of our own shares must be made on a stock exchange and cannot
be made in a private transaction, except if previously approved by
CVM. Moreover, we may acquire or issue put or call options related to
our shares.
Disclosure
Requirements
We are
subject to the reporting requirements established by Brazilian corporate law and
the CVM. Furthermore, because we are listed with the Novo Mercado, we must also
follow the disclosure requirements provided for in the Listing Rules of the
Novo
Mercado.
Disclosure
of Information
The
Brazilian securities regulations require that a publicly-held corporation
provide the CVM and the relevant stock exchanges with periodic information that
includes annual information statements, quarterly financial statements,
quarterly management reports, independent auditor reports, notices and minutes
of shareholders’ meetings. In addition, we also must disclose any
material development related to our business to the CVM and the
BOVESPA.
We
observe the Novo
Mercado disclosure standards and are required to, among other
things:
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present
a consolidated balance sheet, a consolidated statement of results and the
accompanying letter to
shareholders;
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disclose
any direct or indirect ownership interest, including beneficial ownership
interest, known to us, exceeding 5% of our capital
stock;
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disclose
the amount and characteristics of our securities held directly or
indirectly by insiders;
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disclose
changes in the amount of securities held by insiders within the preceding
12 months;
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include,
in the explanatory notes to our financial statements, a cash flow
statement;
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disclose
the amount of free float shares and their respective percentage in
relation to total shares
outstanding;
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prepare
annual and quarterly financial statements in accordance with U.S. GAAP or
IFRS; and
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disclose
the existence of and compliance with the arbitration clauses, as defined
in the Listing Rules of the Novo
Mercado.
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Disclosure
of Trading by Insiders
Pursuant
to the rules of the Novo
Mercado, each of our possible controlling shareholders must disclose to
the BOVESPA regarding information in connection with the total amount and
characteristics of securities owned, directly or indirectly, by them and issued
by us, or any derivatives referenced in such securities, as well as any
subsequent trading of such securities and derivatives. In the case of
individuals, such information shall also include securities held by the spouse,
companion or dependents of such persons, included in the annual income tax
statement of such controlling shareholder. This information must be
communicated to the BOVESPA within 10 days following the end of each
month.
CVM
regulations require our directors, executive officers, members of the fiscal
council, and members of any other technical or advisory body to disclose to us,
to the CVM and to the BOVESPA, the total amount, the characteristics and form of
acquisition of securities issued by us, listed companies under our control or
the control of our listed controlling shareholders, including derivatives
referenced in such securities that are held by each of them, as well as any
change in such investments within 10 days after the end of the month when the
securities were traded. In the case of individuals, such information
shall also include securities held by the spouse, companion or dependents of
such persons, included in the annual income tax statement and companies
controlled directly or indirectly by such person.
In
addition, our controlling shareholders, our shareholders who have caused the
election of members of our board of directors or fiscal council, as well as any
individual, legal entity or group of persons acting jointly that holds directly
or indirectly 5% or more of our shares, must provide to us, the CVM and the
BOVESPA the following information:
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the
name and qualification of the person providing the
information;
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amount,
price, type, and/or class, in the case of acquired shares, or
characteristics, in the case of
securities;
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form
of acquisition (private placement or purchase through a stock exchange,
among others);
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reason
and purpose for the acquisition;
and
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information
on any agreement regarding the exercise of voting rights or the purchase
and sale of our securities.
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The
disclosure requirement referred to above will also apply to any person or group
acting jointly, holding participation equal to or in excess of 5%, each time
such person increases or decreases its participation in our shares by an amount
equal to 5% of our shares.
According
to the Listing Rules of the Novo Mercado, in case we are
subject to widespread control, the selling shareholders will only be required to
provide the information listed above while holding 10% or more of our total
capital stock and only during the first 6 months from the date that the
announcement of commencement of the offering is published.
Disclosure
of Material Developments
According
to Law No. 6,385 of December 7, 1976, and subsequent amendments, and CVM
Instruction No. 358 of January 3, 2002, and subsequent amendments, we must
disclose any material development related to our business to the CVM and to the
BOVESPA and must publish a notice of the material development. A
development is deemed to be material if it has a material impact on the price of
our securities, is the decision of investors to trade in our securities or is
the decision of investors to exercise any rights as holders of any of our
securities.
Under
special circumstances, we may request confidential treatment of certain material
developments from the CVM, when our management believes that public disclosure
could result in adverse consequences to us.
Citibank,
N.A. acts as the depositary for the American Depositary Shares. Citibank’s
depositary offices are located at 388 Greenwich Street, New York, New York
10013. American Depositary Shares are frequently referred to as “ADSs” and
represent ownership interests in securities that are on deposit with the
depositary. ADSs may be represented by certificates that are commonly known as
“American Depositary Receipts” or “ADRs.” The depositary typically appoints a
custodian to safekeep the securities on deposit. In this case, the custodian is
Banco Itaú S.A, located at Armando De Arruda Pereira, 707 9 Andar Torre Eudoro
Villela, Jaba. S. Paulo/SP Cep 04344-902.
We are
providing you with a summary description of the material terms of the ADSs and
of your material rights as an owner of ADSs. We urge you to review the deposit
agreement in its entirety.
Each ADS
represents the right to receive two (2) of our common shares on deposit with the
custodian. An ADS also represents the right to receive any other property
received by the depositary or the custodian on behalf of the owner of the ADS
but that has not been distributed to the owners of ADSs because of legal
restrictions or practical considerations.
If you
become an owner of ADSs, you will become a party to the deposit agreement and
therefore will be bound to its terms and to the terms of any ADR that represents
your ADSs. The deposit agreement and the ADR specify our rights and obligations
as well as your rights and obligations as owner of ADSs and those of the
depositary. As an ADS holder you appoint the depositary to act on your behalf in
certain circumstances. The deposit agreement and the ADRs are governed by New
York law. However, our obligations to the holders of common shares will continue
to be governed by the laws of Brazil, which may be different from the laws in
the United States.
In
addition, applicable laws and regulations may require you to satisfy reporting
requirements and obtain regulatory approvals in certain circumstances. You are
solely responsible for complying with such reporting requirements and obtaining
such approvals. Neither the Depositary, the Custodian, us or any of their or our
respective agents or affiliates shall be required to take any actions whatsoever
on behalf of you to satisfy such reporting requirements or obtain such
regulatory approvals under applicable laws and regulations.
As an
owner of ADSs, you may directly hold your ADSs either by means of an ADR
registered in your name, indirectly through a brokerage or safekeeping account,
or directly through an account established by the depositary in your name
reflecting the registration of uncertificated ADSs directly on the books of the
depositary (commonly referred to as the “direct registration system” or “DRS”).
The direct registration system reflects the uncertificated (book-entry)
registration of ownership of ADSs by the depositary. Under the direct
registration system, ownership of ADSs is evidenced by periodic statements
issued by the depositary to the holders of the ADSs. The direct registration
system includes automated transfers between the depositary and The Depository
Trust Company (“DTC”), the central book-entry clearing and settlement system for
equity securities in the United States. If you decide to hold your ADSs through
your brokerage or safekeeping account, you must rely on the procedures of your
broker or bank to assert your rights as ADS owner. Banks and brokers typically
hold securities such as the ADSs through clearing and settlement systems such as
DTC. The procedures of such clearing and settlement systems may limit your
ability to exercise your rights as an owner of ADSs. Please consult with your
broker or bank if you have any questions concerning these limitations and
procedures. All ADSs held through DTC will be registered in the name of a
nominee of DTC. This summary description assumes you have opted to own the ADSs
directly by means of an ADS registered in your name and, as such, we will refer
to you as the “holder.” When we refer to “you,” we assume the reader owns ADSs
and will own ADSs at the relevant time.
Dividends
and Distributions
As a
holder, you generally have the right to receive the distributions we make on the
securities deposited with the custodian. Your receipt of these distributions may
be limited, however, by practical considerations and legal limitations. Holders
will receive such distributions under the terms of the deposit agreement in
proportion to the number of ADSs held as of a specified record
date.
Distributions
of Cash
Whenever
we make a cash distribution for the securities on deposit with the custodian, we
will deposit the funds with the custodian. Upon receipt of confirmation of the
deposit of the requisite funds, the depositary will arrange for the funds to be
converted into U.S. dollars and for the distribution of the U.S. dollars to the
holders, subject to the Brazilian laws and regulations.
The
conversion into U.S. dollars will take place only if practicable and if the U.S.
dollars are transferable to the United States. The amounts distributed to
holders will be net of the fees, expenses, taxes and governmental charges
payable by holders under the terms of the deposit agreement. The depositary will
apply the same method for distributing the proceeds of the sale of any property
(such as undistributed rights) held by the custodian in respect of securities on
deposit.
Distributions
of Shares
Whenever
we make a free distribution of common shares for the securities on deposit with
the custodian, we will deposit the applicable number of common shares with the
custodian. Upon receipt of confirmation of such deposit, the depositary will
either distribute to holders new ADSs representing the common shares deposited
or modify the ADS-to-common shares ratio, in which case each ADS you hold will
represent rights and interests in the additional common shares so deposited.
Only whole new ADSs will be distributed. Fractional entitlements will be
aggregated and sold and the proceeds of such sale will be distributed as in the
case of a cash distribution.
The
distribution of new ADSs or the modification of the ADS-to-common shares ratio
upon a distribution of common shares will be made net of the fees, expenses,
taxes and governmental charges payable by holders under the terms of the deposit
agreement. In order to pay such taxes or governmental charges, the depositary
may sell all or a portion of the new common shares so distributed.
No such
distribution of new ADSs will be made if it would violate a law (i.e., the U.S.
securities laws) or if it is not operationally practicable. If the depositary
does not distribute new ADSs as described above, it may sell the common shares
received upon the terms described in the deposit agreement and will distribute
the proceeds of the sale as in the case of a distribution of cash.
Distributions
of Rights
Whenever
we intend to distribute rights to purchase additional common shares, we will
give prior notice to the depositary and the depositary will determine, after
consultation with us, whether it is lawful and reasonably practicable to
distribute rights to purchase additional ADSs to holders.
The
depositary will establish procedures to distribute rights to purchase additional
ADSs to holders and to enable such holders to exercise such rights if it is
lawful and reasonably practicable to make the rights available to holders of
ADSs, and if we provide all of the documentation contemplated in the deposit
agreement (such as opinions to address the lawfulness of the transaction). You
may have to pay fees, expenses, taxes and other governmental charges to
subscribe for the new ADSs upon the exercise of your rights. The depositary is
not obligated to establish procedures to facilitate the distribution and
exercise by holders of rights to purchase new common shares other than in the
form of ADSs.
The
depositary will not distribute the rights to you if:
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We
do not timely request that the rights be distributed to you or we request
that the rights not be distributed to you;
or
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We
fail to deliver satisfactory documents to the depositary;
or
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It
is not reasonably practicable to distribute the
rights.
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The
depositary will sell the rights that are not exercised or not distributed if
such sale is lawful and reasonably practicable. The proceeds of such sale will
be distributed to holders as in the case of a cash distribution. If the
depositary is unable to sell the rights, it will allow the rights to
lapse.
Elective
Distributions
Whenever
we intend to distribute a dividend payable at the election of shareholders
either in cash or in additional shares, we will give prior notice thereof to the
depositary and will indicate whether we wish the elective distribution to be
made available to you. In such case, the depositary will determine, after
consultation with us, whether such distribution is lawful and reasonably
practicable.
The
depositary will make the election available to you only if it is reasonably
practicable and if we have provided all of the documentation contemplated in the
deposit agreement. In such case, the depositary will establish procedures to
enable you to elect to receive either cash or additional ADSs, in each case as
described in the deposit agreement.
If the
election is not made available to you, you will receive either cash or
additional ADSs, depending on what a shareholder in Brazil would receive upon
failing to make an election, as more fully described in the deposit
agreement.
Other
Distributions
Whenever
we intend to distribute property other than cash, common shares or rights to
purchase additional common shares, we will notify the depositary in advance and
will indicate whether we wish such distribution to be made to you. If so, we
will assist the depositary in determining whether such distribution to holders
is lawful and reasonably practicable.
If it is
lawful and reasonably practicable to distribute such property to you and if we
provide all of the documentation contemplated in the deposit agreement, the
depositary will distribute the property to the holders in a manner it deems
practicable.
The
distribution will be made net of fees, expenses, taxes and governmental charges
payable by holders under the terms of the deposit agreement. In order to pay
such taxes and governmental charges, the depositary may sell all or a portion of
the property received.
The
depositary will not distribute the property to you and will sell the property
if:
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We
do not request that the property be distributed to you or if we ask that
the property not be distributed to you;
or
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We
do not deliver satisfactory documents to the depositary;
or
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The
depositary determines that all or a portion of the distribution to you is
not reasonably practicable.
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The
proceeds of such a sale will be distributed to holders as in the case of a cash
distribution.
Redemption
Whenever
we decide to redeem any of the securities on deposit with the custodian, we will
notify the depositary. If it is reasonably practicable and if we provide all of
the documentation contemplated in the deposit agreement, the depositary will
distribute notice of the redemption to the holders.
The
custodian will be instructed to surrender the shares being redeemed against
payment of the applicable redemption price. The depositary will convert the
redemption funds received into U.S. dollars upon the terms of the deposit
agreement and will establish procedures to enable holders to receive the net
proceeds from the redemption upon surrender of their ADSs to the depositary. You
may have to pay fees, expenses, taxes and other governmental charges upon the
redemption of your ADSs. If less than all ADSs are being redeemed, the ADSs to
be retired will be selected by lot or on a pro rata basis, as the depositary may
determine.
Changes
Affecting Common Shares
The
common shares held on deposit for your ADSs may change from time to time. For
example, there may be a change in nominal or par value, a split-up,
cancellation, consolidation or reclassification of such common shares or a
recapitalization, reorganization, merger, consolidation or sale of
assets.
If any
such change were to occur, your ADSs would, to the extent permitted by law,
represent the right to receive the property received or exchanged in respect of
the common shares held on deposit. The depositary may in such circumstances
deliver new ADSs to you, amend the deposit agreement, the ADRs and the
applicable Registration Statement(s) on Form F-6, call for the exchange of your
existing ADSs for new ADSs and take any other actions that are appropriate to
reflect as to the ADSs the change affecting the Shares. If the depositary may
not lawfully distribute such property to you, the depositary may sell such
property and distribute the net proceeds to you as in the case of a cash
distribution.
Issuance
of ADSs upon Deposit of Common Shares
The
depositary may create ADSs on your behalf if you or your broker deposit common
shares with the custodian. The depositary will deliver these ADSs to the person
you indicate only after you pay any applicable issuance fees and any charges and
taxes payable for the transfer of the common shares to the custodian. Your
ability to deposit common shares and receive ADSs may be limited by U.S. and
Brazilian legal considerations applicable at the time of deposit.
The
issuance of ADSs may be delayed until the depositary or the custodian receives
confirmation that all required approvals have been given and that the common
shares have been duly transferred to the custodian. The depositary will only
issue ADSs in whole numbers.
When you
make a deposit of common shares, you will be responsible for transferring good
and valid title to the depositary. As such, you will be deemed to represent and
warrant that:
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The
common shares are duly authorized, validly issued, fully paid,
non-assessable and legally
obtained.
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All
preemptive (and similar) rights, if any, with respect to such common
shares have been validly waived or
exercised.
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You
are duly authorized to deposit the common
shares.
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The
common shares presented for deposit are free and clear of any lien,
encumbrance, security interest, charge, mortgage or adverse claim, and are
not, and the ADSs issuable upon such deposit will not be, “restricted
securities” (as defined in the deposit
agreement).
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The
shares presented for deposit have not been stripped of any rights or
entitlements.
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If any of
the representations or warranties are incorrect in any way, we and the
depositary may, at your cost and expense, take any and all actions necessary to
correct the consequences of the misrepresentations.
Transfer,
Combination and Split Up of ADRs
As an ADR
holder, you will be entitled to transfer, combine or split up your ADRs and the
ADSs evidenced thereby. For transfers of ADRs, you will have to surrender the
ADRs to be transferred to the depositary and also must:
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ensure
that the surrendered ADR certificate is properly endorsed or otherwise in
proper form for transfer;
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provide
such proof of identity and genuineness of signatures as the depositary
deems appropriate;
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provide
any transfer stamps required by the State of New York or the United
States; and
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pay
all applicable fees, charges, expenses, taxes and other government charges
payable by ADR holders pursuant to the terms of the deposit agreement,
upon the transfer of ADRs.
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To have
your ADRs either combined or split up, you must surrender the ADRs in question
to the depositary with your request to have them combined or split up, and you
must pay all applicable fees, charges and expenses payable by ADR holders,
pursuant to the terms of the deposit agreement, upon a combination or split up
of ADRs.
Withdrawal
of Shares Upon Cancellation of ADSs
As a
holder, you will be entitled to present your ADSs to the depositary for
cancellation and then receive the corresponding number of underlying common
shares at the custodian’s office. Your ability to withdraw the common shares may
be limited by U.S. and Brazilian considerations applicable at the time of
withdrawal. In order to withdraw the common shares represented by your ADSs, you
will be required to pay to the depositary the fees for cancellation of ADSs and
any charges and taxes payable upon the transfer of the common shares being
withdrawn. You assume the risk for delivery of all funds and securities upon
withdrawal. Once canceled, the ADSs will not have any rights under the deposit
agreement.
If you
hold ADSs registered in your name, the depositary may ask you to provide proof
of identity and genuineness of any signature and such other documents as the
depositary may deem appropriate before it will cancel your ADSs. The withdrawal
of the common shares represented by your ADSs may be delayed until the
depositary receives satisfactory evidence of compliance with all applicable laws
and regulations. Please keep in mind that the depositary will only accept ADSs
for cancellation that represent a whole number of securities on
deposit.
You will
have the right to withdraw the securities represented by your ADSs at any time
except for:
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Temporary
delays that may arise because (1) the transfer books for the common shares
or ADSs are closed, or (2) common shares are immobilized on account of a
shareholders’ meeting or a payment of
dividends.
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Obligations
to pay fees, taxes and similar
charges.
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Restrictions
imposed because of laws or regulations applicable to ADSs or the
withdrawal of securities on
deposit.
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The
deposit agreement may not be modified to impair your right to withdraw the
securities represented by your ADSs except to comply with mandatory provisions
of law.
Voting
Rights
As a
holder, you generally have the right under the deposit agreement to instruct the
depositary to exercise the voting rights for the common shares represented by
your ADSs. The voting rights of holders of common shares are described in
“Description of Capital Stock—Rights of Common Shares.”
At our
request, the depositary will distribute to you any notice of shareholders’
meeting received from us together with information explaining how to instruct
the depositary to exercise the voting rights of the securities represented by
ADSs.
If the
depositary timely receives voting instructions from a holder of ADSs, it will
endeavor to vote the securities represented by the holder’s ADSs in accordance
with such voting instructions.
Please
note that the ability of the depositary to carry out voting instructions may be
limited by practical and legal limitations and the terms of the securities on
deposit. We cannot assure you that you will receive voting materials in time to
enable you to return voting instructions to the depositary in a timely manner.
Securities for which no voting instructions have been received will not be
voted.
Fees
and Charges
As an ADS
holder, you will be required to pay the following service fees to the
depositary, except as otherwise provided in the deposit agreement:
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Service
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Fees
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Issuance
of ADSs
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Up
to U.S. 5¢ per ADS issued
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Cancellation
of ADSs
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Up
to U.S. 5¢ per ADS canceled
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Distribution
of cash dividends or other cash distributions
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Up
to U.S. 2¢ per ADS held
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Distribution
of ADSs pursuant to stock dividends, free
stock distributions or exercise of rights.
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Up
to U.S. 2¢ per ADS held
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Distribution
of securities other than ADSs or rights to
purchase additional ADSs
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Up
to U.S. 2¢ per ADS held
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·
Depositary
Services
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Up
to U.S. 4¢ per ADS held on the applicable record date(s) established by
the Depositary
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Transfer
of ADRs
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U.S.
$1.50 per certificate presented for
transfer
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As an ADS
holder you will also be responsible to pay certain fees and expenses incurred by
the depositary and certain taxes and governmental charges such as:
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Fees
for the transfer and registration of common shares charged by the
registrar and transfer agent for the common shares in Brazil (i.e., upon
deposit and withdrawal of common
shares).
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Expenses
incurred for converting foreign currency into U.S.
dollars.
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Expenses
for cable, telex and fax transmissions and for delivery of
securities.
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Taxes
and duties upon the transfer of securities (i.e., when common shares are
deposited or withdrawn from
deposit).
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Fees
and expenses incurred by the Depositary in connection with compliance with
the exchange control regulations and other regulatory
requirements.
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Fees
and expenses incurred in connection with the delivery or servicing of
common shares on deposit.
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Depositary
fees payable upon the issuance and cancellation of ADSs are typically paid to
the depositary by the brokers (on behalf of their clients) receiving the newly
issued ADSs from the depositary and by the brokers (on behalf of their clients)
delivering the ADSs to the depositary for cancellation. The brokers in turn
charge these fees to their clients. Depositary fees payable in connection with
distributions of cash or securities to ADS holders and the depositary services
fee are charged by the depositary to the holders of record of ADSs as of the
applicable ADS record date.
The
depositary fees payable for cash distributions are generally deducted from the
cash being distributed. In the case of distributions other than cash (i.e.,
stock dividend, rights), the depositary charges the applicable fee to the ADS
record date holders concurrent with the distribution. In the case of ADSs
registered in the name of the investor (whether certificated or uncertificated
in direct registration), the depositary sends invoices to the applicable record
date ADS holders. In the case of ADSs held in brokerage and custodian accounts
(via DTC), the depositary generally collects its fees through the systems
provided by DTC (whose nominee is the registered holder of the ADSs held in DTC)
from the brokers and custodians holding ADSs in their DTC accounts. The brokers
and custodians who hold their clients’ ADSs in DTC accounts in turn charge their
clients’ accounts the amount of the fees paid to the depositary.
In the
event of refusal to pay the depositary fees, the depositary may, under the terms
of the deposit agreement, refuse the requested service until payment is received
or may set off the amount of the depositary fees from any distribution to be
made to the ADS holder.
Note that
the fees and charges you may be required to pay may vary over time and may be
changed by us and by the depositary. You will receive prior notice of such
changes.
The
depositary will reimburse us for certain expenses incurred by us in respect of
the ADR program established pursuant to the deposit agreement and may, in the
future, remit to us a portion of the depositary fees charged, in each case, upon
such terms and conditions as we and the depositary may agree from time to
time.
Amendments
and Termination
We may
agree with the depositary to modify the deposit agreement at any time without
your consent. Any amendments or supplements to the deposit agreement which
imposes or increases any fees or charges (other than charges in connection with
the foreign exchange regulations, and taxes and other governmental charges,
delivery and other such expenses), or which otherwise materially prejudices any
substantial existing rights of holders of ADSs does not become effective until
the expiration of 30 days after notice of such amendment or supplement has been
given to holders of ADSs. We will not consider to be materially prejudicial to
your substantial rights any modifications or supplements that are reasonably
necessary for the ADSs to be registered under the Securities Act or to be
eligible for book-entry settlement, in each case without imposing or increasing
the fees and charges you are required to pay. In addition, we may not be able to
provide you with prior notice of any modifications or supplements that are
required to accommodate compliance with applicable provisions of
law.
You will
be bound by the modifications to the deposit agreement if you continue to hold
your ADSs after the modifications to the deposit agreement become effective. The
deposit agreement cannot be amended to prevent you from withdrawing the common
shares represented by your ADSs (except as permitted by law).
We have
the right to direct the depositary to terminate the deposit agreement.
Similarly, the depositary may in certain circumstances on its own initiative
terminate the deposit agreement. In either case, the depositary must give notice
to the holders at least 30 days before termination. Until termination, your
rights under the deposit agreement will be unaffected.
After
termination, the depositary will continue to collect distributions received (but
will not distribute any such property until you request the cancellation of your
ADSs) and may upon termination sell the securities held on deposit. After the
sale, the depositary will hold the proceeds from such sale and any other funds
then held for the holders of ADSs in a non-interest bearing account. At that
point, the depositary will have no further obligations to holders other than to
account for the funds then held for the holders of ADSs still outstanding (after
deduction of applicable fees, taxes and expenses).
Books
of Depositary
The
depositary will maintain ADS holder records at its depositary office. You may
inspect such records at such office during regular business hours but solely for
the purpose of communicating with other holders in the interest of business
matters relating to the ADSs and the deposit agreement.
The
depositary will maintain in New York facilities to record and process the
issuance, cancellation, combination, split-up and transfer of ADSs. These
facilities may be closed from time to time, to the extent not prohibited by
law.
Limitations
on Obligations and Liabilities
The
deposit agreement limits our obligations and the depositary’s obligations to
you. Please note the following:
|
·
|
We
and the depositary are obligated only to take the actions specifically
stated in the deposit agreement without negligence or bad
faith.
|
|
·
|
The
depositary disclaims any liability for any failure to carry out voting
instructions, for any manner in which a vote is cast or for the effect of
any vote, provided it acts in good faith and in accordance with the terms
of the deposit agreement.
|
|
·
|
The
depositary disclaims any liability for any failure to determine the
lawfulness or practicality of any action, for the content of any document
forwarded to you on our behalf or for the accuracy of any translation of
such a document, for the investment risks associated with investing in
common shares, for the validity or worth of the common shares, for any tax
consequences that result from the ownership of ADSs, for the
credit-worthiness of any third party, for allowing any rights to lapse
under the terms of the deposit agreement, for the timeliness of any of our
notices or for our failure to give
notice.
|
|
·
|
We
and the depositary will not be obligated to perform any act that is
inconsistent with the terms of the deposit
agreement.
|
|
·
|
We
and the depositary disclaim any liability if we are prevented or forbidden
from acting on account of any law or regulation, any provision of our
bylaws, any provision of any securities on deposit or by reason of any act
of God or war or other circumstances beyond our
control.
|
|
·
|
We
and the depositary disclaim any liability by reason of any exercise of, or
failure to exercise, any discretion provided for the deposit agreement or
in our bylaws or in any provisions of securities on
deposit.
|
|
·
|
We
and the depositary further disclaim any liability for any action or
inaction in reliance on the advice or information received from legal
counsel, accountants, any person presenting shares for deposit, any holder
of ADSs or authorized representatives thereof, or any other person
believed by either of us in good faith to be competent to give such advice
or information.
|
|
·
|
We
and the depositary also disclaim liability for the inability by a holder
to benefit from any distribution, offering, right or other benefit which
is made available to holders of common shares but is not, under the terms
of the deposit agreement, made available to
you.
|
|
·
|
We
and the depositary may rely without any liability upon any written notice,
request or other document believed to be genuine and to have been signed
or presented by the proper parties.
|
|
·
|
We
and the depositary also disclaim liability for any consequential or
punitive damages for any breach of the terms of the deposit
agreement.
|
Pre-Release
Transactions
The
depositary may, in certain circumstances, issue ADSs before receiving a deposit
of common shares. These transactions are commonly referred to as “pre-release
transactions.” The deposit agreement limits the aggregate size of pre-release
transactions and imposes a number of conditions on such transactions (i.e., the
transfer of beneficial ownership in the common shares to the depositary by the
recipients of the ADSs, the need to receive collateral, the type of collateral
required, the representations required from brokers, etc.). The depositary may
retain the compensation received from the pre-release transactions.
Taxes
You will
be responsible for the taxes and other governmental charges payable on the ADSs
and the securities represented by the ADSs. We, the depositary and the custodian
may deduct from any distribution the taxes and governmental charges payable by
holders and may sell any and all property on deposit to pay the taxes and
governmental charges payable by holders. You will be liable for any deficiency
if the sale proceeds do not cover the taxes that are due.
The
depositary may refuse to issue ADSs, to deliver, transfer, split and combine
ADRs or to release securities on deposit until all taxes and charges are paid by
the applicable holder. The depositary and the custodian may take reasonable
administrative actions to obtain tax refunds and reduced tax withholding for any
distributions on your behalf. However, you may be required to provide to the
depositary and to the custodian proof of taxpayer status and residence and such
other information as the depositary and the custodian may require to fulfill
legal obligations. You are required to indemnify us, the depositary and the
custodian for any claims with respect to taxes based on any tax benefit obtained
for you.
Foreign
Currency Conversion
The
depositary will arrange for the conversion of all foreign currency received into
U.S. dollars if such conversion is practical, and it will distribute the U.S.
dollars in accordance with the terms of the deposit agreement. You may have to
pay fees and expenses incurred in converting foreign currency, such as fees and
expenses incurred in complying with currency exchange controls and other
governmental requirements.
If the
conversion of foreign currency is not practical or lawful, or if any required
approvals are denied or not obtainable at a reasonable cost or within a
reasonable period, the depositary may take the following actions in its
discretion:
|
·
|
Convert
the foreign currency to the extent practical and lawful and distribute the
U.S. dollars to the holders for whom the conversion and distribution is
lawful and practical.
|
|
·
|
Distribute
the foreign currency to holders for whom the distribution is lawful and
practical.
|
|
·
|
Hold
the foreign currency (without liability for interest) for the applicable
holders.
|
We will
set forth in the applicable prospectus supplement a description of the plan of
distribution of the securities that may be offered pursuant to this
prospectus.
The
validity of the common shares and certain other matters of Brazilian
law will be passed upon for us by Barbosa, Müssnich & Aragão Advogados, São
Paulo, Brazil. Certain U.S. legal matters will be passed upon for us by Davis
Polk & Wardwell, New York, New York.
The
audited financial statements and management’s assessment of the effectiveness of
internal control over financial reporting (which is included in Management’s
Report on Internal Control Over Financial Reporting) incorporated in this
Registration Statement by reference to the Annual Report on Form 20-F for the
year ended December 31, 2008, except as they relate to Construtora Tenda S.A.,
have been audited by PricewaterhouseCoopers Auditores Independentes, an
independent registered public accounting firm. Such financial statements and
management’s assessment of the effectiveness of internal control over financial
reporting have been so included in reliance on the audit report, which contains
an explanatory paragraph on the effectiveness of internal control over financial
reporting due to the exclusion of certain elements of the internal control over
financial reporting of Construtora Tenda S.A., acquired by the registrant as of
October 21, 2008, of such independent registered public accounting firm given on
the authority of such firm as experts in auditing and accounting.
PricewaterhouseCoopers Auditores Independentes is a member of the Regional
Accounting Council (Conselho
Regional de Contabilidade – CRC). The business address of
PricewaterhouseCoopers Auditores Independentes is Av. Francisco Matarazzo, 1400
– Torre Torino, 05001-903 São Paulo, SP, Brazil.
The
audited financial statements as of December 31, 2008 and for the period from
October 22, 2008 through December 31, 2008 of Construtora Tenda S.A., not
separately presented in our Annual Report on Form 20-F, have been audited by
Terco Grant Thornton Auditores Independentes, an independent registered public
accounting firm, whose report thereon is incorporated in this Registration
Statement by reference to the Annual Report on Form 20-F for the year ended
December 31, 2008. Such financial statements, to the extent they have been
included in the financial statements of Gafisa S.A., have been so included in
reliance on the report of such independent registered public accounting firm
given on the authority of said firm as experts in auditing and accounting. Terco
Grant Thornton Auditores Independentes is a member of the Regional Accounting
Council (Conselho Regional de
Contabilidade – CRC). The business address of Terco Grant
Thornton Auditores Independentes is Av. das Nações Unidas, 12995,
04578-000, São Paulo, SP, Brazil.
We are
incorporated under the laws of Brazil. All of our directors and officers reside
outside the United States. Substantially all of our assets are located in
Brazil. As a result, it may not be possible (or it may be difficult) for you to
effect service of process upon us or these other persons within the United
States or to enforce judgments obtained in United States courts against us or
them, including those predicated upon the civil liability provisions of the
federal securities laws of the United States.
We have
been advised by Barbosa, Müssnich & Aragão, our Brazilian counsel, that a
judgment of a United States court for civil liabilities predicated upon the
federal securities laws of the United States may be enforced in Brazil, subject
to certain requirements described below. Such counsel has advised that a
judgment against us, the directors and officers or certain advisors named herein
obtained in the United States would be enforceable in Brazil upon confirmation
of that judgment by the Superior Tribunal de Justiça
(Superior Tribunal of Justice). That confirmation will only be available if the
U.S. judgment:
|
·
|
fulfills
all formalities required for its enforceability under the laws of the
United States;
|
|
·
|
is
issued by a court of competent jurisdiction after proper service of
process on the parties, which service must be in accordance with Brazilian
law if made in Brazil, or after sufficient evidence of our absence has
been given, as established pursuant to applicable
law;
|
|
·
|
is
not subject to appeal;
|
|
·
|
is
for payment of a determined sum of
money;
|
|
·
|
is
authenticated by a Brazilian diplomatic office in the United States and is
accompanied by a sworn translation into Portuguese;
and
|
|
·
|
is
not against Brazilian public policy, good morals or national sovereignty
(as set forth in Brazilian law).
|
We have
been further advised by our Brazilian counsel that original actions may be
brought in connection with this prospectus predicated solely on the federal
securities laws of the United States in Brazilian courts and that, subject to
applicable law, Brazilian courts may enforce liabilities in such actions against
us or the directors and officers and certain advisors named herein.
In
addition, a plaintiff, whether Brazilian or non-Brazilian, that resides outside
Brazil during the course of litigation in Brazil must provide a bond to
guarantee court costs and legal fees if the plaintiff owns no real property in
Brazil that could secure payment. This bond must have a value sufficient to
satisfy the payment of court fees and defendant attorney’s fees, as determined
by the Brazilian judge, except in the case of the enforcement of foreign
judgments that have been duly confirmed by the Brazilian Superior Tribunal de
Justiça. Notwithstanding the foregoing, we cannot assure you that
confirmation of any judgment will be obtained, or that the process described
above can be conducted in a timely manner.
PART
II
INFORMATION
NOT REQUIRED IN THE PROSPECTUS
Item
8. Indemnification of Directors and Officers
Under
Brazilian law, any provision, whether contained in the articles of association
of a company or in any agreement, exempting any officer or director or
indemnifying any officer or director against any liability which by law or
otherwise would attach to them in respect of negligence, default, misfeasance,
breach of duty or trust, is void. A company may, however, indemnify an officer
or director against any liability incurred by them in defending any proceedings,
whether criminal or civil, in which a judgment is given in their favor. We have
not entered into any indemnification agreements of this kind.
Gafisa
maintains an insurance policy that protects its officers and directors from
civil liabilities incurred as a result of actions taken in their official
capacity associated with any civil, criminal or administrative
process.
Insofar
as indemnification for liabilities arising under the Securities Act of 1933 may
be permitted to directors, officers and controlling persons of the Company
pursuant to the charter provision, by-law, contract, arrangements, statute or
otherwise, we acknowledge that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as expressed in the Act
and is, therefore, unenforceable.
Item
9. Exhibits
The
following is a list of all exhibits filed as part of this registration statement
on Form F-3, including those incorporated herein by reference.
|
Exhibit
No.
|
Document
|
|
|
1.1*
|
Form
of International Underwriting Agreement.
|
|
|
4.1
|
Amended
and Restated Deposit Agreement dated March 21, 2007 among the Registrant,
Citibank, N.A., as depositary, and the Holders and Beneficial Owners from
time to time of American Depositary Shares issued thereunder, including
the form of American Depositary Receipts, which is incorporated by
reference to our registration statement filed on Form F-6 (File No.
333-158314) with the Securities and Exchange Commission on March 31,
2009.
|
|
|
5.1
|
Opinion
of Barbosa, Müssnich & Aragão, Brazilian legal counsel of the
Registrant, as to the legality of the common shares.
|
|
|
8.1
|
Opinion
of Barbosa, Müssnich & Aragão, as to tax matters.
|
|
|
10.1
|
Investment
Agreement dated October 2, 2006 among Alphaville Participações S.A.,
Renato de Albuquerque and Nuno Luis de Carvalho Lopes Alves, as
shareholders, and Gafisa S.A., as investor, and Alphaville Urbanismo S.A.,
Fate Administração e Investimentos Ltda. and NLA Administração e
Participações Ltda., which is incorporated by reference to our
registration statement filed on Form F-1 with the Securities and Exchange
Commission on February 22, 2007.
|
|
|
10.2
|
Acquisition
Agreement dated October 3, 2008 between Fit Residencial Empreendimentos
Imobiliários Ltda. and Construtora Tenda S.A., which is incorporated by
reference to our annual report filed on Form 20-F with the Securities and
Exchange Commission on June 5, 2009.
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|
|
23.1
|
Consent
of PricewaterhouseCoopers Auditores Independentes.
|
|
|
23.2
|
Consent
of Terco Grant Thornton Auditores Independentes.
|
|
|
23.3
|
Consent
of Barbosa, Müssnich & Aragão, Brazilian legal counsel of the
Registrant (included in Exhibits 5.1 and 8.1).
|
|
|
24.1
|
Powers
of Attorney (included on signature page to the Registration
Statement).
|
_______________
* To be filed by amendment or as an
exhibit to a report filed or submitted pursuant to Section 13(a) or 15(d)
of the U.S. Securities Exchange Act of 1934, as amended, and incorporated by
reference.
Item
10. Undertakings
(a)
The undersigned registrant hereby undertakes:
|
(1)
|
To
file, during any period in which offers or sales of the registered
securities are being made, a post-effective amendment to this Registration
Statement:
|
|
(i)
|
To
include any prospectus required by Section 10(a)(3) of the Securities Act
of 1933;
|
|
(ii)
|
To
reflect in the prospectus any facts or events arising after the effective
date of the Registration Statement (or the most recent post-effective
amendment thereof) which, individually or in the aggregate, represent a
fundamental change in the information set forth in the Registration
Statement. Notwithstanding the foregoing, any increase or decrease in
volume of securities offered (if the total dollar value of securities
offered would not exceed that which was registered) and any deviation from
the low or high end of the estimated maximum offering range may be
reflected in the form of prospectus filed with the Commission pursuant to
Rule 424(b) if, in the aggregate, the changes in volume and price
represent no more than a 20 percent change in the maximum aggregate
offering price set forth in the “Calculation of Registration Fee” table in
the effective Registration
Statement;
|
|
(iii)
|
To
include any material information with respect to the plan of distribution
not previously disclosed in the Registration Statement or any material
change to such information in the Registration
Statement;
|
provided, however, that paragraphs
(a)(1)(i), (a)(1)(ii) and (a)(1)(iii) do not apply if the information required
to be included in a post-effective amendment by those paragraphs is contained in
reports filed with or furnished to the Commission by the registrant pursuant to
Section 13 or Section 15(d) of the Securities Exchange Act of 1934 that are
incorporated by reference in the Registration Statement, or is contained in a
form of prospectus filed pursuant to Rule 424(b) that is part of the
Registration Statement.
|
(2)
|
That,
for the purpose of determining any liability under the Securities Act of
1933, each such post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial
bona fide offering thereof.
|
|
(3)
|
To
remove from the registration by means of a post-effective amendment any of
the securities being registered which remain unsold at the termination of
the offering.
|
|
(4)
|
(4)
To file a post-effective amendment to the Registration Statement to
include any financial statements required by Item 8.A. of Form 20-F at the
start of any delayed offering or throughout a continuous offering.
Financial statements and information otherwise required by Section
10(a)(3) of the Act need not be furnished, provided that the registrant
includes in the prospectus, by means of a post-effective amendment,
financial statements required pursuant to this paragraph (a)(4) and other
information necessary to ensure that all other information in the
prospectus is at least as current as the date of those financial
statements. Notwithstanding the foregoing, a post-effective amendment need
not be filed to include financial statements and information required by
Section 10(a)(3) of the Act or Item 8.A. of Form 20-F if such financial
statements and information are contained in periodic reports filed with or
furnished to the Commission by the registrant pursuant to Section 13 or
Section 15(d) of the Securities Exchange Act of 1934 that are incorporated
by reference in the Registration
Statement.
|
|
(5)
|
That,
for the purpose of determining liability under the Securities Act to any
purchaser:
|
|
(i)
|
Each
prospectus filed by the registrant pursuant to Rule 424(b)(3) shall be
deemed to be part of the registration statement as of the date the filed
prospectus was deemed part of and included in the registration
statement.
|
|
(ii)
|
Each
prospectus required to be filed pursuant to Rule 424(b)(2), (b)(5), or
(b)(7) as part of a registration statement as a part of a registration
statement in reliance on Rule 430B relating to an offering made pursuant
to Rule 415(a)(1)(i), (vii), or (x) for the purpose of providing the
information required by section 10(a) of the Securities Act shall be
deemed to be part of and included in the registration statement as of the
earlier of the date such form of prospectus is first used after
effectiveness or the date of the first contract of sale of securities in
the offering described in the prospectus. As provided in Rule 430B, for
liability purposes of the issuer and any person that is at that date an
underwriter, such date shall be deemed to be a new effective date of the
registration statement relating to the securities in the registration
statement to which that prospectus relates, and the offering of such
securities at that time shall be deemed to be the initial bona fide
offering thereof. Provided, however, that no statement made in a
registration statement or prospectus that is part of the registration
statement or made in a document incorporated or deemed incorporated by
reference into the registration statement or prospectus that is part of
the registration statement will, as to a purchaser with a time of contract
of sale prior to such effective date, supersede or modify any statement
that was made in the registration statement or prospectus that was part of
the registration statement or made in any such document immediately prior
to such effective date.
|
|
(6)
|
That,
for the purpose of determining liability of the registrant under the
Securities Act to any purchaser in the initial distribution of the
securities in a primary offering of securities of the undersigned
registrant pursuant to this registration statement, regardless of the
underwriting method used to sell the securities to the purchaser, if the
securities are offered or sold to such purchaser by means of any of the
following communications, the undersigned registrant will be a seller to
the purchaser and will be considered to offer or sell such securities to
such purchaser:
|
|
(i)
|
Any
preliminary prospectus or prospectus of the undersigned registrant
relating to the offering required to be filed pursuant to Rule
424;
|
|
(ii)
|
Any
free writing prospectus relating to the offering prepared by or on behalf
of the undersigned registrant or used or referred to by the undersigned
registrant;
|
|
(iii)
|
The
portion of any other free writing prospectus relating to the offering
containing material information about the undersigned registrant or our
securities provided by or on behalf of the undersigned registrant;
and
|
|
(iv)
|
Any
other communication that is an offer in the offering made by the
undersigned registrant to the
purchaser.
|
(b) The
undersigned registrant hereby undertakes, that, for purposes of determining any
liability under the Securities Act, each filing of the registrant’s annual
report pursuant to Section 13(a) or 15(d) of the Exchange Act (and, where
applicable, each filing of an employee benefit plan’s annual report pursuant to
Section 15(d) of the Exchange Act) that is incorporated by reference in the
registration statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering
thereof.
|
(1)
|
The
undersigned registrant hereby undertakes to supplement the prospectus,
after the expiration of the subscription period, to set forth the results
of the subscription offer, the transactions by the underwriters during the
subscription period, the amount of unsubscribed securities to be purchased
by the underwriters, and the terms of any subsequent reoffering thereof.
If any public offering by the underwriters is to be made on terms
differing from those set forth on the cover page of the prospectus, a
post-effective amendment will be filed to set forth the terms of such
offering.
|
|
(2)
|
Insofar
as indemnification for liabilities arising under the Securities Act may be
permitted to directors, officers and controlling persons of the registrant
pursuant to the foregoing provisions, or otherwise, the registrant has
been advised that in the opinion of the Securities and Exchange Commission
such indemnification is against public policy as expressed in the
Securities Act and is, therefore, unenforceable. In the event that a claim
for indemnification against such liabilities (other than the payment by
the registrant of
|
expenses
incurred or paid by a director, officer or controlling person of the registrant
in the successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the registrant will, unless in the opinion of our counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Securities Act and will be governed by the final
adjudication of such issue.
|
(3)
|
The
undersigned registrant hereby undertakes
that:
|
|
(i)
|
For
purposes of determining any liability under the Securities Act, the
information omitted from the form of prospectus filed as part of this
registration statement in reliance upon Rule 430A and contained in a form
of prospectus filed by the registrant pursuant to Rule 424(b) (1) or (4)
or 497(h) under the Securities Act shall be deemed to be part of this
registration statement as of the time it was declared
effective.
|
|
(ii)
|
For
the purpose of determining any liability under the Securities Act, each
post-effective amendment that contains a form of prospectus shall be
deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time shall be
deemed to be the initial bona fide offering
thereof.
|
SIGNATURES
Pursuant
to the requirements of the Securities Act of 1933, the registrant certifies that
it has reasonable grounds to believe that it meets all of the requirements for
filing on Form F-3 and has duly caused this registration statement to be signed
on its behalf by the undersigned, thereunto duly authorized in the City of São
Paulo, Brazil, on June 5, 2009.
|
GAFISA
S.A.
|
||||
|
By:
|
/s/
Wilson Amaral de Oliveira
|
|||
| Name: |
Wilson
Amaral de Oliveira
|
|||
| Title: |
Chief
Executive Officer
|
|||
|
By:
|
/s/
Alceu Duilio Calciolari
|
|||
| Name: |
Alceu
Duilio Calciolari
|
|||
| Title: |
Chief
Financial and Investor Relations Officer
|
|||
POWER
OF ATTORNEY
KNOW ALL
PERSONS BY THESE PRESENTS that each of the individuals whose signature appears
below constitutes and appoints Wilson Amaral de Oliveira and Alceu Duilio
Calciolari, and each of them, as his or her true and lawful attorney-in-fact and
agent, with full power of substitution, for him or her and in his or her name,
place and stead, in any and all capacities, to sign any and all amendments
(including post-effective amendments) to this registration statement or any such
subsequent registration statement and reports on Form 6-K relating thereto and
any registration statement filed pursuant to Rule 426(b) under the Securities
Act of 1933, and to file the same, with all exhibits thereto, and all documents
in connection therewith, with the Securities and Exchange Commission, granting
unto said attorneys-in-fact and agents, and each of them, full power and
authority to do and perform each and every act and thing requisite and necessary
to be done in and about the premises, as fully for all intents and purposes as
he or she might or could do in person, hereby ratifying and confirming all that
said attorney-in-fact and agents or any of them, or their substitutes, may
lawfully do or cause to be done.
Pursuant
to the requirements of the Securities Act of 1933, this registration statement
has been signed by the following persons in the capacities and on the dates
indicated.
|
Signature
|
Title
|
Date
|
||
|
/s/
Wilson Amaral de Oliveira
|
Chief
Executive Officer
|
June
5, 2009
|
||
|
Wilson
Amaral de Oliveira
|
(Principal
Executive Officer)
|
|||
|
/s/
Alceu Duílio Calciolari
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Chief
Financial and Investor Relations Officer
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June
5, 2009
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Alceu
Duílio Calciolari
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(Principal
Accounting and Financial Officer)
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/s/
Gary Garrabrant
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Chairman
of the Board of Directors
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June
5, 2009
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Gary
Garrabrant
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||||
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/s/
Richard L. Huber
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Director
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June
5, 2009
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Richard
L. Huber
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||||
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/s/
Thomas McDonald
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Director
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June
5, 2009
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Thomas
McDonald
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||||
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/s/
Caio Racy Mattar
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Director
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June
5, 2009
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||
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Caio
Racy Mattar
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||||
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/s/
José Écio Pereira da Costa Jr.
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Director
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June
5, 2009
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||
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José
Écio Pereira da Costa Jr.
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||||
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/s/
Gerald Dinu Reiss
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Director
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June
5, 2009
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Gerald
Dinu Reiss
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||||
AUTHORIZED
REPRESENTATIVE
Pursuant
to the requirements of the Securities Act of 1933, the undersigned, the duly
authorized representative of Gafisa S.A. in the United States, has signed this
registration statement in the City of Newark, State of Delaware, on June 5,
2009.
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By:
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/s/
Donald Puglisi
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| Name: |
Donald
Puglisi
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|||
| Title: |
Authorized
Representative
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Exhibit
Index
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ExhibitNo.
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Document
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1.1*
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Form
of International Underwriting Agreement.
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4.1
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Amended
and Restated Deposit Agreement dated March 21, 2007 among the Registrant,
Citibank, N.A., as depositary, and the Holders and Beneficial Owners from
time to time of American Depositary Shares issued thereunder, including
the form of American Depositary Receipts, which is incorporated by
reference to our registration statement filed on Form F-6 (File No.
333-158314) with the Securities and Exchange Commission on March 31,
2009.
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5.1
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Opinion
of Barbosa, Müssnich & Aragão, Brazilian legal counsel of the
Registrant, as to the legality of the common shares.
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8.1
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Opinion
of Barbosa, Müssnich & Aragão, as to tax matters.
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10.1
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Investment
Agreement dated October 2, 2006 among Alphaville Participações S.A.,
Renato de Albuquerque and Nuno Luis de Carvalho Lopes Alves, as
shareholders, and Gafisa S.A., as investor, and Alphaville Urbanismo S.A.,
Fate Administração e Investimentos Ltda. and NLA Administração e
Participações Ltda., which is incorporated by reference to our
registration statement filed on Form F-1 with the Securities and Exchange
Commission on February 22, 2007.
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10.2
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Acquisition
Agreement dated October 3, 2008 between Fit Residencial Empreendimentos
Imobiliários Ltda. and Construtora Tenda S.A., which is incorporated by
reference to our annual report filed on Form 20-F with the Securities and
Exchange Commission on June 5, 2009.
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23.1
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Consent
of PricewaterhouseCoopers Auditores Independentes.
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23.2
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Consent
of Terco Grant Thornton Auditores Independentes.
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23.3
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Consent
of Barbosa, Müssnich & Aragão, Brazilian legal counsel of the
Registrant (included in Exhibits 5.1 and 8.1).
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24.1
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Powers
of Attorney (included on signature page to the Registration
Statement).
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_______________
* To be filed by amendment or as an
exhibit to a report filed or submitted pursuant to Section 13(a) or 15(d)
of the U.S. Securities Exchange Act of 1934, as amended, and incorporated by
reference.
II-8