We have adopted the main practices of corporate control standards of the Brazilian Stock Exchange’s Novo Mercado, except for the dual classes shares, for which the nature of private equity transactions is imperative.
Class A shareholders vote to elect independent board members and on matters relating to conflicts of interest.
- 100% Tag Along
- 2 independent board members
- Independent compensation committee
- Independent Audit Committee
Voting rights of GP Investments shares and BDRs
Each Class B share will entitle its holder to one vote per share on all matters submitted to a vote of holders of Class B shares. Unless a different majority is required by law or by the company’s by-laws, resolutions to be approved by holders of Class B shares require approval by a simple majority of votes cast at a meeting at which a quorum is present. Holders of GP Investments Class A shares shall also be entitled to one vote per share on all of the following matters, and the following actions may not be taken and the following transactions may not be consummated by the company without the affirmative vote of a majority of the votes cast by the holders of the Class A shares voting at a general meeting as a single class:
- the entering into, amending, terminating or waiving of any right with respect to any contract or agreement with a controlling shareholder (which means Partners Holdings and any person holding voting interests in Partners Holdings) either directly or through an affiliate of a controlling shareholder, except any stock option agreements, employment agreements or non-competition agreements with any of its officers or directors that have been approved by the nomination and compensation committee or by the board of directors;
- the rescission, alteration or amendment of by-laws 4.2, 12.8, 16, 37, 39, 40, 74 or 76 of its by-laws or the creation of any new by-laws which may affect, alter or change the rights of the company´s Class A shareholders; or
- an acquisition of GP Investments by another person by means of a merger, except for a merger in respect of which, pursuant to the Companies Act, no vote of its shareholders is required. Holders of Class A shares do not have the right to vote in the event of a sale of all or substantially all of its assets.
Except as otherwise required by its by-laws or the Companies Act, holders of GP Investments Class A shares shall not be entitled to attend and vote at any general meeting of shareholders, except if holders of Class A shares shall be entitled to one vote per share and shall vote together with the holders of the Class B shares as a single class at any general meeting called for the purpose of electing its independent directors.
If at any general meeting called for the purpose of electing GP Investments independent directors there are two or more individuals present in person at the start of the meeting and representing in person or by proxy at least 30% of the total issued Class A shares, the holders of the Class B shares shall not vote for the election of any independent directors and the independent directors shall, instead, only be elected by the affirmative vote of a majority of the votes cast by the holders of the Class A shares, voting as a single class at any such general meeting. Subject to the terms of the deposit agreement, a holder of BDRs will have the right to direct the depositary to vote the Class A shares represented by the BDRs held by such holder.
Unless a different majority is required by law or by any GP Investments by-laws, resolutions to be approved by holders of Class A shares require approval by a simple majority of votes cast at a meeting at which a quorum is present.
In the event of the company’s winding-up or dissolution, whether voluntary or involuntary or for the purpose of a reorganization or otherwise or upon any distribution of capital, the holders of its Class A shares are entitled to the surplus assets of GP Investments pari passu with the holders of its Class B shares.
No person with a direct or indirect interest in Class B shares may, in any transaction or series of related transactions, dispose of or sell more than 50% of GP Investments issued and outstanding Class B shares to any person unless the terms and conditions of such disposition or sale include an offer by the acquiring person to the holders of all other Class B shares and the holders of the Class A shares to acquire, at the option of each applicable Class A and Class B shareholder, all or any part of the respective shares owned by it.
This tag-along right will not apply to dispositions of interests in Class B shares (a) that are required by any governmental entity, (b) by any beneficial owner of shares in Partners Holdings to any other beneficial owner of shares in Partners Holdings (provided that, in relation to persons that started beneficially owning shares in Partners Holdings after May 8, 2006, only if such person has beneficially owned shares in Partners Holdings for at least twelve months) and (c) resulting from the death of any beneficial owner of shares in Partners Holdings. The shareholders that exercised their tag-along rights will be entitled to the same terms and conditions as the disposition giving rise to such right, including the same price per share and payment terms.
Appraisal Rights and Shareholder Suits
Under Bermuda law, in the event of a merger of a Bermuda company with another company or corporation, a shareholder of the Bermuda company who is not satisfied that fair value has been offered for his or her shares may, within one month of notice of the shareholders meeting to consider the merger, apply to the Supreme Court of Bermuda to appraise the fair value of his or her shares.
Class actions and derivative actions are generally not available to shareholders under Bermuda law. The Bermuda courts, however, would ordinarily be expected to permit a shareholder to commence an action in the name of a company to remedy a wrong done to the company where the act complained of is alleged to be beyond the corporate power of the company or is illegal or would result in violation of the company’s memorandum of association or continuance or by-laws. Furthermore, consideration would be given by a Bermuda court to acts that are alleged to constitute a fraud against the minority shareholders or, for instance, where an act requires the approval of a greater percentage of the company´s shareholders than that which actually approved it.
When the affairs of a company are being conducted in a manner which is oppressive or prejudicial to the interests of some part of the shareholders, one or more shareholders may apply to the Supreme Court of Bermuda for an order regulating the company’s conduct of affairs in the future or ordering the purchase of the shares of any shareholder by other shareholders or by the company.
Disclosure and use of Information
Pursuant to CVM Rule 358, of January 3, 2002, the CVM revised and consolidated the requirements regarding the disclosure and use of information related to material facts and acts of publicly held companies, including the disclosure of information in the trading and acquisition of securities issued by publicly held companies.
Such requirements include provisions that:
- establish the concept of a material fact that gives rise to reporting requirements. Material facts include decisions made by the controlling shareholders, resolutions of the general meeting of shareholders and of management of the company, or any other facts related to the company´s business (whether occurring within the company or otherwise somehow related thereto) that may influence the price of its publicly traded securities, or the decision of investors to trade such securities or to exercise any of such securities´ underlying rights;
- specify examples of facts that are considered to be material, which include, among others, the execution of shareholders´ agreements providing for the transfer of control, the entry or withdrawal of shareholders that maintain any managing, financial, technological or administrative function with or contribution to the company, and any corporate restructuring undertaken among related companies;
- oblige the officer of investor relations, controlling shareholders, other executive officers, members of its board of directors, members of the audit committee and other advisory boards to disclose material facts;
- require simultaneous disclosure of material facts to all markets in which the corporation’s securities are admitted for trading;
- require the acquirer of a controlling stake in a corporation to publish material facts, including its intentions as to whether or not to de-list the corporation’s shares, within one year;
- establish rules regarding disclosure requirements in the acquisition and disposal of a material stockholding stake; and
- restrict the use of insider information.