For
consideration at the Extraordinary General Meeting of the Company on November 5,
2009
Bylaws
VOTORANTIM
CELULOSE E PAPEL S.A.
CHAPTER I – CORPORATE NAME,
REGISTERED OFFICE, DURATION AND PURPOSE
Article 1
– The corporation, VOTORANTIM CELULOSE E PAPEL S.A., organized as a publicly
held company, shall be governed by these Bylaws and applicable provisions of the
law.
Article 2
– The Company has its registered office and jurisdiction in the City and State
of São Paulo at Alameda Santos, 1357, 6
th
floor,
and is authorized to open branches, establishments and offices in any part of
Brazil or abroad.
Article 3
– The Company shall have an indeterminate term of duration.
Article 4
– The Company’s purpose is: a) the industry and trading, both of a wholesale and
retail nature, of pulp, paper, cardboard and any other byproducts of these
materials, whether proprietary or of third parties; b) the trading, both of a
wholesale and retail nature, of products used for graphics in general; c) the
exploration of all industrial and commercial activities directly or indirectly
related with its corporate purpose; d) the import of goods and assets related to
its corporate purposes; e) the export of own products and those of third
parties; f) representation for its own account or for third parties; g) the
participation in other companies in Brazil or abroad, irrespective of its form
or purpose, as a partner, quotaholder or shareholder; h) the provision of
services of administrative, organizational and financial control on behalf of
affiliated companies or third parties; i) the management and implementation of
forest and reforestation projects on its own behalf or on behalf of third
parties, including the management of all agricultural activities enabling the
production, supply and distribution of raw materials for the manufacture of
pulp, paper, cardboard and any other byproducts of these materials; and j) the
provision of technical services of a consultancy and advisory nature to its
controlled companies and to third parties.
CHAPTER II – CAPITAL STOCK AND
SHARES
Article 5
– The capital stock, completely subscribed and paid-in, is seven billion, five
hundred eighty seven million, one hundred forty-four thousand, seven hundred
eighty-four
Reais
and
fifty nine cents (R$ 7,587,144,784.59) divided into four hundred
sixty-seven million, nine hundred thirty-four thousand, six hundred forty-six
(467,934,646) common shares, which are all registered, book-entry shares
with no par value.
Paragraph
1 – Capital stock shall consist exclusively of common shares, the issuance of
preferred shares being prohibited.
Paragraph
2 – The shares shall be indivisible before the Company and each common share
shall correspond to one vote in the decisions taken by the Shareholders’
Meetings.
Paragraph
3 – The shareholders shall have preemptive rights in the subscription of shares
to increases in the capital stock, respecting the proportion of the shares that
they already hold.
Paragraph
4 – The new shares resulting from any increase in the capital stock shall be
entered and credited to the deposit accounts maintained in the shareholders’
names by the custodian within a maximum term of sixty (60) days, as from the
date of publication of the respective Shareholders’ Meeting.
Paragraph
5 – The issuance of founders’ shares is forbidden.
For consideration at the Extraordinary General Meeting of the
Company on November 5, 2009
Article 6
– The capital stock may be increased, on the terms of Article 168 of Law No.
6404/76, through the issuance of up to [ ]
1
new common shares, by resolution of the Board of Directors, irrespective of any
restructuring of the Bylaws.
Paragraph 1
- It shall be incumbent
upon the Board of Directors to establish the price and the number of shares to
be issued, as well as the timeframe and the conditions for payment, but
subscription by contribution of assets shall be contingent upon approval of the
appraisal report by the Shareholders’ Meeting, under the terms of the
law.
Paragraph 2
–
Within the limit of
authorized capital, the Board of Directors may:
a) resolve
on the issuance of warrants;
b) based
on the plan approved by the Shareholders’ Meeting, grant options for the
purchase of shares to the administrative officers or employees of the Company,
or of a company that it controls, and whereby the shareholders shall have no
preemptive right for acquisition of such shares, provided that the annual limit
for options is [ ]
2
%
of the capital stock and the cumulative limit for all options granted is
[ ]
3
%;
and
c) approve
an increase of capital stock by means of capitalization of profits or reserves,
with or without stock dividends.
Paragraph 3
–
The issuance of
shares and debentures convertible into shares, or warrants, whose placement is
effected by means of a sale in a stock exchange or by a public subscription
offering, may exclude the preemptive right for previous shareholders or may
reduce the term for exercise thereof.
Paragraph 4 –
The exclusion of the preemptive right for previous shareholders or the reduction
of the term for exercise thereof shall not apply to issuance of debentures that
are convertible into shares and of warrants if the latter are ascribed as an
additional advantage to subscribers of shares or of debentures that are
convertible into shares.
CHAPTER
III – MANAGEMENT
Article 7
– The Company shall be managed by a Board of Directors and a Board of Executive
Officers, with powers and duties granted to them by the law and by these
Bylaws.
Sole
Paragraph – Without prejudice to the other duties set forth herein and by the
law, the managers newly elected by the Company (Officers and members of the
Board of Directors) shall, before taking office, sign an Agreement of Consent of
the Managers to the Contract to Participate in the
Novo Mercado
between the
Company, its controlling shareholders and directors and the BM&FBovespa,
through which they agree to comply with the rules set forth
therein.
SECTION I – BOARD OF
DIRECTORS
Article 8
– The Board of Directors shall be made up of nine (9) sitting members and an
equal number of alternates, all shareholders, elected by the Shareholders’
Meeting, with a unified term of office of two (2) years, beginning on the date
of the signature of the deed of qualification transcribed in the proper
book.
1
Management’s proposal shall be informed by Notice to the Shareholders to be
published on October 31st, 2009.
2
Management’s proposal shall be informed by Notice to the Shareholders to be
published on October 31st, 2009.
3
Management’s proposal shall be informed by Notice to the Shareholders to be
published on October 31st, 2009.
For consideration at the Extraordinary General Meeting of the
Company on November 5, 2009
Paragraph
1 – At least 20% of the board members elected shall be Independent Directors, as
defined by the
Novo
Mercado
Listing Regulation.
Paragraph
2 - The board member(s) elected by the mechanism provided for in article 141,
paragraphs 4 and 5 of Law no. 6.404/76 shall be considered
independent.
Paragraph
3 – When application of the percentage defined in Paragraph 1 above results in a
fraction of board members, rounding shall be taken to the integer: (i)
immediately above if the fraction is equal to or greater than 0.5 (five tenths);
or (ii) immediately below if the fraction is less than 0.5 (five
tenths).
Paragraph
4 – Upon election of the members of the Board of Directors and their respective
alternates, independent of the election process that is adopted, any shareholder
that wants to name a candidate and/or the respective alternate that are not a
part of the Board of Directors shall notify the Company accordingly in writing
at least 10 days before the Meeting, indicating the name, qualifications, and
professional resume of each and annexing to such notification an agreement
signed by the candidate attesting to their acceptance to compete for the
position. As soon as it receives this notification, the Company shall
send the name, qualifications and professional resume of the candidate(s) to the
Stock Market, post it on a webpage and make it available to shareholders at the
headquarters of the Company.
Article 9
– The members of the Board of Directors are eligible for reelection, and if they
are not reelected, they shall remain in their positions until their substitutes
are duly seated.
Article
10 – The Board of Directors shall have a Chairman and may have a Vice-Chairman,
appointed by the same Shareholders’ Meeting which elects the members of the
Board, or by a meeting of the Board of Directors itself.
Article
11 – While observing Article 16 hereof, sitting members and their alternates on
the Board of Directors shall be elected by a simple majority vote of the
shareholders present at the Meeting.
Article
12 – Substitution of the members of the Board of Directors, either on a
temporary basis or as a result of vacancy for the office, shall be conducted as
follows:
I.
If there should be an impairment of a regular member, his/her deputy member
shall assume the post until such time as the impediment ceases;
II.
If there should be a vacancy for the office of regular member, his/her deputy
member shall assume until the first Ordinary Shareholders’ Meeting is held,
which meeting shall elect the substitute;
III.
In the event of vacancy, either simultaneous or successive, of the offices of
regular member and relevant deputy member, the other members of the Board of
Directors shall designate their alternates, who shall serve until the first
Shareholders’ Meeting, when their alternates shall be elected on a definite
basis;
IV.
In the event of temporary absence or impediment of the Chairperson of the Board,
his/her functions shall be exercised on a temporary basis by the
Vice-Chairperson of the board; and
For consideration at the Extraordinary General Meeting of the
Company on November 5, 2009
V. In
the event of vacancy for the office of Chairperson of the Board of Directors,
the Vice-Chairperson of the Board shall assume as Chairperson of the body on an
interim basis and shall immediately call a Shareholders’ Meeting to fill the
vacant office and for the election of a new Chairperson of the Board of
Directors.
Article
13 – The Board of Directors shall ordinarily meet four (4) times a year, and on
a special basis at any time whatsoever, pursuant to the statutory needs or when
the corporate interests so require.
Sole
Paragraph – Members may participate in meetings of the Board of Directors,
through teleconference, videoconference or other means of communication that
permits the identification of the member and the simultaneous communication of
the other participants in the meeting. In such cases, the members of
the Board of Directors shall be considered to be present at the meeting and
shall sign the corresponding minutes.
Article
14 – The Board of Directors’ meetings shall be presided by its Chairman or
another board member appointed by those present and any person appointed by
these shall act as secretary. The minutes of the respective meetings
shall be transcribed in the proper book.
Article
15 – A Board meeting is in order with one half plus one of its members, with
resolutions being passed by a simple majority of votes of the members present,
and the Chairman or his alternate, besides his own vote, shall have the casting
vote in the case of a tie.
Article
16 – Except if a cumulative voting process is adopted under the terms of
Paragraphs 5 to 7 below and article 141 of Law no. 6.404/76, the election of the
members of the Board of Directors shall be conducted under a system of tickets,
whereby individual voting on candidates shall not be allowed.
Paragraph 1
– There shall always be
nomination for reelection, by proposal of the Board of Directors, for a ticket
made up of the members of the Board, with observance of the following
rules:
a) if any
member of the Board should cease to belong to the ticket, by his/her decision or
due to impairment, the Board of Directors shall fill the vacancy;
b) the
Company’s management, by no later than 30 days prior to the date scheduled for
the Shareholders’ Meeting, shall send to the Stock Exchange, shall insert in the
site in the worldwide computer web and shall make available for the shareholders
at the Company’s headquarters, a document with the names, qualifications and
résumés of the candidates for members that make up the ticket established on the
terms of this Paragraph.
Paragraph 2
– Any other shareholder,
or group of shareholders, has the right of proposing another ticket for the
Board of Directors, with observance of the following rules:
a) the
proposal shall be notified in writing to the Company by no later than ten days
prior to the date for which the Shareholders’ Meeting has been called, and it
shall not be permitted to present more than one ticket by the same shareholder
or group of shareholders;
b) the
notice shall contain the information and documents mentioned in item (b),
Paragraph 1 of Article 16, with specification of the members, as well as an
agreement signed by the candidate attesting to his acceptance to compete for the
position;
c) as
soon as it receives, from any shareholder (or group of shareholders) a proposed
alternative ticket as provided for under (b) immediately above, management of
the Company shall send to the Stock Exchange, shall insert in the site in the
worldwide computer web and shall make available for the shareholders at the
Company’s headquarters, a document with the names, qualifications and résumés of
the candidates for members that make up the alternative ticket
presented.
For consideration at the Extraordinary General Meeting of the
Company on November 5, 2009
Paragraph 3
– A person may belong to
two or more different tickets, including the one referred to in Paragraph
1.
Paragraph 4
– Each shareholder may only vote on one ticket; the candidates of the ticket
that receive the greatest number of votes in the Shareholders’ Meeting shall be
declared elected.
Paragraph
5 - For the election of the members of the Board of Directors, shareholders that
represent the minimum percentage established in the main clause of article 141
of Law no. 6.404/76, as per the reduction in such percentage included in CVM
Instruction 165/91, as amended by CVM Instruction 282/98, shall have the right
to request the adoption of the multiple vote process by no later than 48 hours
prior to the date for which the Shareholders’ Meeting is called.
Paragraph 6 –
Immediately upon receiving the request, the Company shall publish a notice to
the shareholders communicating that (i) the election shall be conducted by the
multiple vote process, and (ii) the candidates for sitting members of the Board
of Directors shall be members of the tickets referred to in Paragraphs 1 and 2
of this Article, and any candidates that have been designated by any
shareholder, while observing the provisions of Article 8, Paragraph 4 of these
Bylaws.
Paragraph 7 –
If cumulative voting is requested, each shareholder shall have the right of
accumulating the votes on one single candidate, or to distribute them among
several candidates. The members that receive the greatest number of
votes shall be declared elected.
Article
17 – Besides the other attributions provided for in these Bylaws, it is
incumbent on the Board of Directors to:
I – set
the Company’s general business policy;
II –
elect, remove from office at any time, and substitute members of the Board of
Executive Officers, assigning their respective duties;
III –
establish criteria for individual distribution of compensation approved by the
Shareholders’ Meeting, among its own members and those of the Board of Executive
Officers;
IV –
oversee the activities of the Board of Executive Officers and the Executive
Officers;
V –
convene the Shareholders’ Meetings in cases required by law or when they are
deemed appropriate;
VI –
approve expansion plans;
VII –
authorize the distribution of interim dividends as an advance on the annual
dividends;
VIII –
approve the payment or crediting of interest on equity to the
shareholders;
IX –
choose and remove the independent auditors;
X – set
the issuance price of the shares for the increase in capital stock by public or
private subscription, and setting the other conditions of such
issuance;
XI –
prepare and present to the Shareholders’ Meeting the annual report of corporate
activities, with supporting financial statements legally required in each fiscal
year;
For consideration at the Extraordinary General Meeting of the
Company on November 5, 2009
XII –
resolve on issuances of shares and warrants to subscribe for shares within the
authorized limit pursuant to Article 6;
XIII –
submit to the Shareholders’ Meeting a proposal for a plan for granting share
options to the Company’s officers or employees;
XIV –
authorize (a) the acquisition of the Company’s own shares for cancellation or
maintaining them in treasury, and (b) for subsequent sale of shares held in
treasury;
XV –
authorize the disposition or encumbrance of the Company’s properties in amounts
above R$[ ]
4
in the year, and providing guarantees in favor of third parties;
XVI –
resolve on the issuance of promissory notes (commercial papers), for public
distribution in Brazil, determining: (i) the issuance amount and the division
into series thereof, (ii) quantity and face value, (iii) conditions of
remuneration and indexation, (iv) period of maturity of the notes, (v)
guarantees. (vi) statement to prove compliance with the legal limits, (vii)
place of payment, (viii) contracting of services related to the
issuance.
XVII – in
order to observe best practices of Corporate Governance, approve the creation of
Committees (including a Finance Committee), as well as the respective
regulations which shall contain, along with other matters of interest to the
Company, specific rules relating to the work, competence, remuneration and
procedures.
XVIII -
To define a three-name list of institutions or companies specialized in the
economic valuation of companies in order to prepare an appraisal report for the
purposes of tender offers provided for in Chapters VII and IX of these
Bylaws.
Article
18 – The Board of Directors shall appoint among its members, a member who shall
accumulate the duties of Investor Relations Officer, with the duty of providing
necessary information to the investors, the Stock Exchanges and the Brazilian
Securities Commission – CVM.
SECTION II – BOARD OF EXECUTIVE
OFFICERS
Article
19 – The Board of Executive Officers shall be made up of at least three (3) and
a maximum of ten (10) members, shareholders or not, elected by the Board of
Directors, with a one (1) year term of office, eligible for reelection, being
one Chief Executive Officer and the others with no specific
designation.
Paragraph
1 – The Executive Officers are exempt from pledging or collateralizing
shares.
Paragraph
2 – The investiture in the position of Executive Officer is effected upon
execution of the investiture deed drawn up in the register of Minutes of the
Board of Executive Officers.
Paragraph
3 – After expiration of the period for which they were elected, the Executive
Officers shall continue to exercise their responsibilities until the election
and investiture of their elected alternates.
Paragraph
4 – In the case of a vacancy or permanent impairment of an Executive Officer,
the Board of Directors shall elect an alternate to conclude the term of office
of the officer being replaced.
Paragraph
5 – In the absence or temporary impairment of an Officer, the Chief Executive
Officer shall appoint from among the Executive Officers, one who shall
temporarily accumulate the duties of the absent or impaired
Officer.
4
Management’s proposal shall be informed by Notice to the Shareholders to be
published on October 31st, 2009.
For consideration at the Extraordinary General Meeting of the
Company on November 5, 2009
Paragraph
6 – The Executive Officers shall receive the compensation that shall be set for
each one individually by the Board of Directors.
Article
20 – The Board of Executive Officers shall meet when necessary to decide on
matters within its powers, established in law or in the Bylaws.
Paragraph
1 – The meetings of the Board of Executive Officers shall be presided by the
Chief Executive Officer. In his absence and in the lack of an appointee pursuant
to Article 24, the remaining Executive Officers shall immediately elect one of
their members to preside over the meeting.
Paragraph
2 – The resolutions of the Board of Executive Officers shall be drawn up in the
minutes and transcribed in the proper book.
Paragraph
3 – The meetings of the Board of Executive Officers shall be called to order
with the attendance of at least the majority of its members.
Paragraph
4 – The decisions of the Board of Executive Officers shall be taken on a simple
majority and in the case of a tie, the Chief Executive Officer shall have the
casting vote.
Paragraph
5 – The decisions of the Board of Executive Officers with respect to the matters
mentioned in Article 21, subsection III, line b, below, shall necessarily have
the express approval of the Board of Directors, in addition to the provisions in
Paragraph 4 of this Article.
Article
21 – The following is incumbent on the Board of Executive Officers:
I – to
exercise the broadest and general management powers within the limits
established in the law and in these Bylaws;
II –
perform general legal acts, while observing the provisions of Article 23, but
being prohibited from granting
aval
guarantees, sureties,
collateral or
in rem
guarantees on behalf of third parties, except through resolution of the Board of
Officers;
III –
previously authorize in a meeting of the Board of Officers: (a) to establish
branches or offices provided for in Article 2 of these Bylaws; (b) to enter any
legal businesses binding the Company or exempt third parties from any liability
thereupon, including the granting of
aval
guarantees, sureties,
collateral or
in rem
guarantees on behalf of third parties, with the express approval of the Board of
Directors with respect to Paragraph 5 of Article 20, when amounts exceed
[ ]
5
Reais
(R$[ ]) in the year; (c) to organize subsidiaries or investments in
other companies, save the ones arising from tax incentives.
Article
22 – The active and passive representation of the Company to perform any acts as
well as to sign any legal agreements up to [ ]
6
Reais
(R$[ ]), with due regard for the exclusive powers of the Board of
Directors and Board of Executive Officers in these Bylaws, shall be made by the
joint signatures of two Executive Officers or one Executive Officer and one
attorney-in-fact or additionally, two legally appointed attorneys-in-fact with
specific powers.
Sole
Paragraph – The attorneys-in-fact shall be appointed by special act, signed by
two Executive Officers, specifying the powers and definite term of validity,
except when granted to professionals for general jurisdictional purposes, with
the "ad judicia et extra" clause, or to defend the Company’s interests in
administrative proceedings.
5
Management’s proposal shall be informed by Notice to the Shareholders to be
published on October 31st, 2009.
6
Management’s proposal shall be informed by Notice to the Shareholders to be
published on October 31st, 2009.
For consideration at the Extraordinary General Meeting of the
Company on November 5, 2009
Article
23 – The following shall be incumbent on the Chief Executive Officer: a) to
convene and preside over meetings of the Board of Executive Officers; b) comply
with, and ensure that others comply with these Bylaws, the resolutions of the
Shareholders’ Meetings and the resolutions of the Board of Directors and Board
of Executive Officers; c) coordinate and supervise the activities of the members
of the Board of Executive Officers for the purpose of ensuring that the
activities of all are compatible with the Company’s
interests.
Article
24 – The Chief Executive Officer shall be replaced in his absence or impairment
for another Executive Officer appointed by him either in writing or
verbally. The alternate shall exercise all the duties of the Chief
Executive Officer pursuant to these Bylaws.
Article
25 – It is incumbent on the Executive Officers to assume the individual
liability for supervising and controlling the activities inherent to their
respective areas besides the duties that shall be attributed to them by the
Board of Directors and by the Chief Executive Officer.
Article
26 – The Investor Relations Officer shall: a) manage the shares policy; b)
represent the Company
before supervision bodies and domestic or international entities of the market
where its securities are listed, particularly CVM (Brazilian Securities
Commission) and BM&FBOVESPA (São Paulo Stock Exchange); c)
represent the Company
before the investing public and provide all pertinent information;
d)
take acts for keeping
the publicly-held company registration with CVM duly updated; and
e)
perform other activities
assigned thereto by the Chief Executive Officer.
CHAPTER IV – FISCAL
COUNCIL
Article
27 – The Fiscal Council shall operate permanently and shall be comprised of
three (3) to five (5) incumbent members and same number of alternates, elected
by the Shareholders’ Meeting, and shall be governed by applicable law and
regulations, by these Bylaws and its Corporate Regulations.
Paragraph
1 – The members of the Fiscal Council shall be invested in their respective
duties by means of signing an agreement of position, inscribed in the minutes
book for meetings of the Fiscal Council, as well as the Instrument of Consent of
Members of the Fiscal Council, as provided for in the
Novo Mercado
Listing
Regulations.
Paragraph
2 – The incumbent members of the Fiscal Council are entitled to a compensation
fixed by the Shareholders’ Meeting, thus respecting the legal minimum limit, and
may not receive any other compensation from the Company, from a company
controlled or affiliated thereby, except if such other compensation arises from
or is related to services provided to the Company prior to such election or if
such other compensation does not jeopardize the duty of member of the Fiscal
Council.
Paragraph
3 – The Fiscal Council shall be comprised only of persons who fulfill the
requirements provided for in the law and regulations.
Paragraph
4 – In the event of vacancy of any member in the Fiscal Council, the respective
alternate shall exercise such office.
Paragraph
5 – The members of the Fiscal Council shall exercise their office based on
loyalty, care and information duties provided for in the law and
regulations.
For consideration at the Extraordinary General Meeting of the
Company on November 5, 2009
Paragraph
6 – The Fiscal Council shall have the following legal duties: (a) to recommend
to the Board of Directors the election and removal of independent auditors for
the Company; (b) to assess independent auditors and internal auditors for the
Company; (c) to opine on financial reports disclosed by the Company; (d) to
opine on the management policy and risk control of the Company; (e) to opine on
conflicts between the Company management and its independent auditors with
respect to financial statements and reports of the Company; (f) to opine on the
suitability of the Company to legal and/or regulating obligations with respect
to financial and accounting matters; and (g) to issue an opinion on complaints
and accusations made to the Company, suggesting reasonable
measures.
Paragraph
7 – The Fiscal Council may, for the exercise of its duties, meet its management,
internal auditors and independent auditors of the Company and retain outside
consultants and fix their compensation, within reasonable limits, to be paid by
the Company, upon its prior approval.
Paragraph
8 – The operation of the Fiscal Council shall be regulated by Corporate
Regulations approved in a proper meeting and shall be filed on the Company
headquarters.
CHAPTER V – SHAREHOLDERS’
MEETINGS
Article
28 – The Shareholders’ Meeting called and convened pursuant to the law and these
Bylaws is the supreme body for resolving upon all corporate businesses and for
taking the resolutions it sees fit, upon a fifteen (15)-day prior notice for the
first call and eight (8) for the second call. In the case of a complex matter,
the Meeting may be called with a 30-day prior notice under applicable
law.
Paragraph
1 - The Shareholders’ Meeting shall convene on an annual basis, in the first
four months after the end of the fiscal year, to decide on matters set forth in
Article 132 of Law 6404/76.
Paragraph
2 – The Shareholders’ Meeting shall meet on a special basis at any time upon
notice of the Board of Directors signed by any of member thereof and also in the
events provided for in the law, by notice of shareholders or the Fiscal
Council.
Paragraph
3 – The Shareholders’ Meeting shall be presided by a chairman and the secretary
shall be chosen by the shareholders present.
Paragraph
4 – The attorneys-in-fact and shareholders’ representatives may attend the
Shareholders’ Meetings upon making available, at the headquarters, no later than
three working days before the date scheduled for those plenary meetings, the
respective proxies and powers of attorney. Should the shareholder
have not provided the powers of attorney and proxies within the time period set
forth in these Bylaws, then the shareholder may attend the Meeting provided that
he provides, until the date the Meeting is held, the originals for the documents
supporting the powers granted thereto.
Paragraph
5 – Besides the matters that are within its competence as provided for in law
and in these Bylaws, it shall also be incumbent on the Shareholders’ Meeting to
approve:
a)
deregistration as a public company with the CVM;
b)
delisting from the
Novo
Mercado
segment of BM&FBOVESPA;
c) the
choice of the specialized company responsible for determining the economic value
of the Company for purposes of the tender offer provisions of Chapters VII and
IX of these Bylaws, among the list of three companies indicated by the Board of
Directors;
d) stock
option plans for management and employees of the Company and of other companies
directly or indirectly controlled by the Company, without preemptive rights of
the shareholders.
For consideration at the Extraordinary General Meeting of the
Company on November 5, 2009
Paragraph
6 - Resolutions on changes or exclusions to Article 32 of these Bylaws shall be
taken by the majority of the votes present, while observing the minimum quorum
for resolutions equal to or greater than 30% (thirty percent) of the voting
stock.
CHAPTER
VI – FISCAL YEAR, FINANCIAL STATEMENTS AND PROFITS
Article
29 – The fiscal year shall begin on January 1 and end on December 31 of each
year, on which date the corresponding financial statements shall be drawn up
pursuant to the legal requirements.
Sole
Paragraph – The Company may draw up interim balance sheets at any period during
the fiscal year, and these may then be used as a basis on which the Board of
Directors shall approve interim dividends as provided for in the
Bylaws.
Article
30 – Management shall propose to the Shareholders’ Meeting the allocation of the
net income for the fiscal year, which allocation shall be mandatory and
successive as follows:
I – five
per cent (5%) for the creation of the legal reserve which shall not exceed
twenty percent (20%) of the capital stock;
II – the
amount corresponding to the creation of contingency reserves;
III –
twenty-five per cent (25%), at least, shall be distributed as payment of the
mandatory annual dividend to shareholders, calculated pursuant to Article 202 of
Law No. 6404 of December 15, 1976;
IV – the
remaining balance shall be distributed in accordance with the decision of the
Shareholders’ Meeting, as provided for in the law.
Sole
Paragraph – The payment of dividends shall be made within a maximum of sixty
(60) days as from the date of the Shareholders’ Meeting or the Board of
Directors’ meeting approving the payment.
Article
31 – By resolution of the Board of Directors, payment or crediting to the
shareholders of interest on equity may be made up to the limit permitted in law
pursuant to Article 9 of Law No. 9.249 of December 26, 1995. This
amount shall be attributed to the value of the mandatory dividends
aforementioned in item III of Article 30 pursuant to applicable
law.
CHAPTER
VII – TENDER OFFER IN CASES OF ACQUISITIONS OF A MATERIAL
PARTICIPATION
Article
32 – Any Person (as defined in Paragraph 1 below) who subscribes, acquires or in
any way becomes a direct or indirect holder in Brazil or elsewhere of a Material
Participation (as defined in Paragraph 2 below) in the Company shall, within 60
(sixty) days as of the date of the event that results in holding a Material
Participation, conduct a public tender offer for all of the shares issued by the
Company (a “
Tender
Offer
”), in observance of the provisions of applicable regulation of the
Comissão de Valores
Mobiliários
– CVM, the regulations of BM&FBOVESPA and the terms of
this Article.
For consideration at the Extraordinary General Meeting of the
Company on November 5, 2009
Paragraph
1 – For purposes of these Bylaws, “
Person
” means any
person (including, without limitation, any natural person or legal entity,
investment fund, condominium, portfolio of securities, worldwide rights, or
other form of organization, resident, domiciled or headquartered in Brazil or
elsewhere), or group of persons linked by voting agreement with the Person or
that acts representing the same interest as the Person. Examples of
persons who act representing the same interest as the Person include those (i)
that are directly or indirectly controlled or managed by such Person, (ii) that
control or manage in any way such Person, (iii) that are directly or indirectly
controlled or managed by any person that directly or indirectly controls or
manages such Person, (iv) in which the controller of such Person directly or
indirectly holds an interest equal to or more than 25% (twenty-five percent) of
the voting stock, (v) in which such Person directly or indirectly holds an
interest equal to or more than 25% (twenty-five percent) of the voting stock, or
(vi) that directly or indirectly hold an interest equal to or more than 25%
(twenty-five percent) of the voting stock of the Person.
Paragraph
2 – For purposes of these Bylaws, “
Material
Participation
” means a number of shares issued by the Company equal to or
more than 25% (twenty-five percent) of the total number of shares issued by the
Company.
Paragraph
3 – For purposes of these Bylaws, “
Controlling
Shareholder
” means the shareholder or group of shareholders linked by a
shareholders’ agreement or under common control that exercise Controlling Power
(as defined in Paragraph 4 below).
Paragraph
4 – For purposes of these Bylaws, the term “
Controlling
Power
” means the
power effectively utilized to direct the corporate activities and orient the
functioning of the organs of the Company, either directly or indirectly, in fact
or by right. There is a presumption relating to holding of the
Controlling Power with respect to the person or group of persons linked by a
shareholders’ agreement or under common control that hold shares that assured
them the absolute majority of votes of shareholders present in the last three
Shareholders’ Meetings of the Company, even if they do not hold shares that
assure them an absolute majority of the voting stock.
Paragraph
5 – The Tender Offer shall be (i) directed without distinctions to all of the
Company’s shareholders, (ii) effected in an auction on BM&FBOVESPA, (iii)
launched at the price determined in accordance with Paragraph 6 below, and (iv)
paid in cash in national currency against purchase in the Tender Offer of the
shares issued by the Company.
Paragraph
6 – The price of the acquisition in the Tender Offer for each share issued by
the Company shall be the higher of the following amounts:
(a)
Economic Value obtained from an economic-financial appraisal report of the
Company prepared by an institution or company specialized and with proven
experience in evaluating publicly held companies, chosen by the Shareholders’
Meeting, after presentation by the Board of Directors or a list of three
possibilities, observing the provisions of Paragraph 1 of Article
40;
(b) Value
of the Share plus a Premium of 50% (fifty percent) applied to such
value. For purposes of these Bylaws, “
Value of the Share
”
corresponds to the higher value between: (i) the highest unit price for shares
issued by the Company during the 12-month period prior to the Tender Offer on
any stock exchange on which the shares of the Company are traded, and (ii) the
unit price of the last issuance of shares of the Company within 12 months prior
to the date of the Tender Offer, corrected by the reference rate of SELIC from
the date of such issuance to the date of presentation of the Tender
Offer;
For consideration at the Extraordinary General Meeting of the
Company on November 5, 2009
Paragraph
7 – The realization of the Tender Offer mentioned in the main clause of this
Article shall not exclude the possibility of a third party making a concurrent
Tender Offer under the terms of applicable regulation.
Paragraph
8 – The Person shall be obligated to comply with the requests or demands of
the
Comissão de
Valores Mobiliários
– CVM relating to the Tender Offer within the
timeframes provided for in applicable regulation.
Paragraph
9 – If the Person does not comply with the obligations imposed by this Article,
including with respect to meeting the maximum timeframes for (i) realizing the
Tender Offer, or (ii) attending to any requests or demands from the CVM, the
Company’s Board of Directors will convene a Special Shareholders’ Meeting, in
which the Person may not vote, to resolve the suspension of the exercise of the
rights of the Person who did not comply with any obligation imposed by this
Article, in accordance with the provisions of article 120 of Law no. 6.404 of
December 15, 1976.
Paragraph
10 – Any Person that acquires or becomes the owner, in Brazil or elsewhere, of
other rights, including usufruct or trust, over shares issued by the Company
that result in such Person holding a Material Participation shall be equally
obligated to, within 60 (sixty) days as of the event that resulted in holding a
Material Participation, conduct a Tender Offer under the terms described in this
Article 32.
Paragraph
11 – The obligations included in article 254-A of Law no. 6.404/76 and Articles
34, 35 and 36 of these Bylaws exclude compliance by the Person holding a
Material Participation from the obligations included in this
Article.
Paragraph
12 – The provisions of this Article 32 shall not apply if a person becomes a
holder of a Material Participation by virtue of (i) the merger by the Company of
another company, (ii) the merger by the Company of the shares issued by another
company or (iii) the subscription of shares issued by the Company realized in a
single primary issuance approved at a Meeting of Shareholders of the Company
called by the Board of Directors with the purpose of increasing the capital
where the share price is determined based on Economic Value.
Paragraph
13 – If the CVM regulation applicable to the Tender Offer requires adopting a
criterion for calculating the price of the acquisition of each share issued by
the Company that results in a price higher than as determined pursuant to
Paragraph 6 above, the price as determined by the CVM criterion shall prevail in
the execution of the Tender Offer.
Article
33 – Any Person that holds Shares in Circulation of the Company, in an amount
greater than 10% (ten percent) of all shares issued by the Company, and that
wants to purchase more shares issued by the Company (a “
New Acquisition
”),
shall be obligated before each such New Acquisition to notify the Company in
writing and the trading floor director of BM&FBOVESPA, through the broker
through which it intends to make the New Acquisition, of its intention, at least
three (3) business days prior to the anticipated date of the New Acquisition,
such that the director can submit to auction the purchase to be realized on the
floor of BM&FBOVESPA, in which third parties may interfere, while observing
applicable law and CVM and BM&FBOVESPA regulations.
For consideration at the Extraordinary General Meeting of the
Company on November 5, 2009
Paragraph
1 – For purposes of this Article, “
Shares in
Circulation
” means all shares issued by the Company except those (i)
owned directly or indirectly by the Controlling Shareholder (as defined in
Paragraph 3 of Article 32) or by other persons linked to the Controlling
Shareholder; (ii) in the Company’s treasury; (iii) held by companies controlled
by the Company; and (iv) owned directly or indirectly by officers of the
Company.
Paragraph
2 – If the Person does not comply with the obligations imposed by this Article,
the provisions of Article 32, Paragraph 9 above shall apply.
CHAPTER
VIII – CHANGE OF CONTROL
Article
34 – A Change of Control of the Company, whether through a single transaction or
a series of transactions, shall be contracted under a dissolving condition or
condition precedent, such that the party acquiring control is obligated to make
a tender offer to acquire the shares that the other shareholders own, observing
the conditions and timeframes established in applicable legislation and the
Novo Mercado
Listing
Regulation, to assure them equal treatment to the selling Controlling
Shareholder.
Paragraph
1 – For purposes of these Bylaws, “
Change of Control of the
Company
” means the transfer to a third party for consideration of the
Control Shares.
Paragraph
2 – For purposes of these Bylaws, “
Control Shares
” means
the shares that assure, directly or indirectly, to the holder(s) thereof, the
individual or shared exercise of the Power of Control of the Company as defined
in Paragraph 4 of Article 32 of these Bylaws.
Article
35 - The tender offer referred to in the previous Article also shall
be realized:
I – in cases in which there is an
onerous assignment of rights to subscribe for shares and other securities or
rights related to securities convertible into shares, resulting in a Sale of
Control of the Company; and
II – in case of change of control of a
company that holds the Power of Control of the Company, in which case, the
seller of control of the Company shall be obligated to declare to
BM&FBOVESPA the amount attributed to the Company in that transfer and annex
documentary evidence of that amount.
Sole
Paragraph – The tender offer obligation established in this Article shall not
apply when, in any corporate restructuring, any existing shareholder ceases to
be a direct shareholder, but the Power of Control of the Company remains in the
hands of the Economic Group to which such shareholder is a part, and this
continues to exercise the Power of Control, even if indirectly. For
purposes of this Article, an Economic Group is the companies that control or
that directly or indirectly are controlled by the shareholding control of such
shareholder.
For consideration at the Extraordinary General Meeting of the
Company on November 5, 2009
Article
36 – That person that already holds shares issued by the Company, that comes by
means of a share purchase agreement with the Controlling Shareholder of the
Company, involving any number of shares, to acquire the Power of Control of the
Company, shall be obligated to:
I – make the public tender offer
referred to in Article 34 of these Bylaws; and
II – compensate the shareholders who
had purchased shares issued by the Company on the stock market during the six
(6) months prior to the date of transfer of the Power of Control of the Company,
paying such shareholders any difference between the price paid to the
Controlling Shareholder and the amount paid on the stock market for the shares
issued by the Company in the same period, duly corrected for inflation by the
Índice de Preços ao
Consumidor
– IPCA, as calculated and published by the
Instituto Brasileiro de Geografia e
Estatística
, as of the date of purchase of the shares on the stock market
until payment for the shares.
Article
37 - The Company shall not register any transfer of shares to a purchaser of the
Power of Control, or for those who come to hold the Power of Control, if these
do not sign the Instrument of Consent of the Controllers, as established in the
Novo Mercado
Listing
Regulation. The Company also shall not register any shareholders
agreement that provides for the exercise of the Power of Control if the
signatories do not subscribe to the Instrument of Consent of the
Controllers.
CHAPTER
IX – DEREGISTERING AS A PUBLIC COMPANY AND DELISTING FROM THE
NOVO MERCADO
Article
38 – A public tender offer by the shareholder or group of shareholders who hold
the Power of Control or by the Company to deregister as a public company, the
minimum price to be offered shall correspond to the Economic Value calculated in
an appraisal report.
Article
39 – If the shareholders gathered at a Special Shareholders’ Meeting resolve to
delist the Company from the
Novo Mercado
or if such
delisting results from a corporate restructuring in which the shares issued by
the company resulting from such restructuring are not admitted for trading on
the
Novo Mercado
, the
shareholder or group of shareholders holding the Power of Control of the Company
shall make the public tender offer, and the minimum price to be offered shall
correspond to the Economic Value calculated in an appraisal report.
Article
40 – The appraisal report referred to in Articles 38 and 39 of these Bylaws
shall be prepared by a specialized institution or company with proven experience
and independent of the power of decision of the Company, its officers and
controllers, and the report shall also satisfy the conditions of Paragraphs 1
and 6 of article 8 of Law no. 6.404/76.
Paragraph
1 – The choice of the specialized institution or company responsible for
determining the Economic Value of the Company is within the exclusive competence
of the Shareholders’ Meeting, after presentation by the Board of Directors of
the list of three possibilities, and the respective resolution, not counting
blank votes, shall made by the majority of the votes of the shareholders
representing the Shares in Circulation present at such Shareholders’ Meeting,
which, if installed on first call, shall have the presence of shareholders
representing at least 20% (twenty percent) of all the Shares in Circulation, or
if installed on second call, may have the presence of any number of shareholders
holding Shares in Circulation.
For consideration at the Extraordinary General Meeting of the
Company on November 5, 2009
Paragraph
2 – The costs of preparing the appraisal report shall be borne entirely by the
offering party in the tender offer.
Article
41 – In cases of Dispersed Control of the Company: (i) if deregistering as a
publicly held company is approved at a Shareholders’ Meeting, the public tender
offer shall be made by the Company itself, in which case, the Company may only
purchase shares held by shareholders who voted in favor of such
deregistration after having purchased the shares of the other shareholders that
did not vote in favor of deregistering and that accepted such offer; and (ii) if
delisting from the
Novo
Mercado
is approved at a Shareholders’ Meeting, either to register for
trading outside the
Novo
Mercado
, or in connection with a corporate restructuring as provided for
in Article 39 of these Bylaws, the public tender offer shall be made by the
shareholders that voted in favor of the respective resolution at the
Shareholders’ Meeting.
Sole
Paragraph – For purposes of these Bylaws, “
Dispersed Control
”
means that the Power of Control is exercised by a shareholder holding less than
50% (fifty percent) of the capital stock. It also refers to situations in which
a group of shareholders owning more than 50% (but in which no individual
shareholder owns more than 50%) of the capital stock exercise the Power of
Control in the absence of a signed voting agreement and in the absence of common
control, and who are not acting to represent a common interest.
Article
42 – In cases of Dispersed Control, if BM&FBOVESPA determines that the
prices of securities issued by the Company be published apart or that the
securities issued by the Company be suspended from trading on the
Novo Mercado
because of
non-compliance with the obligations included in the
Novo Mercado
Listing
Regulation, the Chairman of the Board of Directors shall convene, within two (2)
days (including only days when newspapers ordinarily used by the Company are
circulated) of such determination a Special Shareholders’ Meeting to replace the
entire Board of Directors.
Paragraph
1 – If the Special Shareholders’ Meeting referred to in the main clause of this
Article is not convened by the Chairman of the Board of Directors in the time
established, such Meeting may be convened by any shareholder of the
Company.
Paragraph
2 – The new Board of Directors elected in the Special Shareholders’ Meeting
referred to in the main clause and in Paragraph 1 of this Article shall cure the
non-compliance with the obligations included in the
Novo Mercado
Listing
Regulation as quickly as possible or within the timeframe conceded by
BM&FBOVESPA for this purpose.
Paragraph
3 – If the non-compliance is not cured, as a result of an act or fact of
management, the Company shall make a public tender offer to all shareholders of
the Company, to deregister as a publicly held company.
Paragraph
4 – If a Shareholders’ Meeting resolved to maintain the registration of the
Company as a publicly held company, the public tender offer shall be made by the
shareholders who voted in favor of such resolution.
For consideration at the Extraordinary General Meeting of the
Company on November 5, 2009
Article
43 – Notwithstanding the provisions of Chapter VII and Paragraph 1 of Article 35
of these Bylaws, the provisions of the
Novo Mercado
Listing
Regulation shall prevail if the rights to a receive a tender offer mentioned in
Chapters VIII and IX of these Bylaws are impaired.
CHAPTER X – SHAREHOLDERS’
AGREEMENT
Article
44 – The shareholders’ agreements, with respect to the matters mentioned in
Article 118, of Law 6.404 of December 15, 1976, as well as any other matters,
shall be complied with by the Company, once these have been filed at the
corporate registered offices.
Sole
Paragraph – The obligations or encumbrances resulting from these agreements
shall be extensive to third parties after annotation in the appropriate
registers of the custodian appointed by the Company.
CHAPTER XI –
LIQUIDATION
Article
45 – The Company shall be liquidated in the events provided for in the law,
whereupon it shall be incumbent on the Shareholders’ Meeting to determine the
form of liquidation, electing the liquidators and the members of the Fiscal
Committee, which shall operate on a mandatory basis during the liquidation
period.
CHAPTER XII –
ARBITRATION
Article
46 – The Company, its shareholders, directors, and the members of the Fiscal
Council agree to resolve by arbitration, any and all disputes or disagreements
that may arise among them, related to or deriving from, especially, the
application, validity, effectiveness, interpretation, violation and its effects,
of the dispositions of Law no. 6.404 of December 15, 1976, in these Bylaws, the
rules promulgated by the National Monetary Council (
Conselho Monetário Nacional
),
the Brazilian Central Bank and by the Brazilian Securities Commission - CVM, as
well at other rules applicable to the working of the capital market in general,
beyond of those constant of the
Novo Mercado
Listing
Regulation, of the Contract to Participate in the
Novo Mercado
and the rules of
arbitration of the Market Chamber of Arbitration (
Câmara de Arbitragem do
Mercado
).
CHAPTER
XIII – MISCELLANEOUS
Article
47 -
The provisions
of Article 32 of these Bylaws shall not apply to the shareholders that, at April
30, 2009, held 25% (twenty-five percent) or more of the total number of shares
issued by the Company and to their successors, including and especially to the
Company’s shareholders signatories to the Shareholders’ Agreement dated
[ ] and filed at the Company’s headquarters.
Article
48 – Cases omitted from these Bylaws shall be resolved by the Shareholders’
Meeting and regulated in accordance with Law no. 6.404 of December 15,
1976.