Disclosure Policy / Trading and Differences of Corporate Governance of NYSE
Article 1 – This policy aims at setting high standards of conduct and transparency for the disclosure and use of a material fact and for the trading of securities issued by TIM S.A. (“Company”), to be followed by (i) Directors, Controlling Shareholders, Members of the Audit Committee and other bodies of the Company with Technical or Advisory Functions; (ii) Employees and Officers with access to Relevant Information; and also, (iii) whomever, by virtue of his/her position, office or function in the Controlled Companies and Associated Companies, knows information concerning a Material Act or Fact.
The people listed above must execute the respective Pledge of Compliance, in the form shown in Attachment I, as provided in articles 15, § 1, item I and 16, § 1 of Instrução CVM 358/02.
The company shall maintain in its file a list of the people who executed a Pledge of Compliance (Attachment II), with the respective personal data, position or function, address and Individual or Corporate Taxpayer Identification number.
Article 2 – “Material Act or Fact”, under article 155, § 1, of Law nº 6.404/76 and article 2 of Instrução CVM nº 358/02 means: (a) any decision passed by the Controlling Shareholder(s), by the general meeting or by the management of Company; or (b) any other act or fact of a political-administrative, technical, business or economic character related to its business that can significantly impact:
(i) the perceived value of the Company;
(ii) the rating of the Securities;
(iii) the decisions of investors to buy, sell or keep those Company Securities; or
(iii) the decisions of investors to exert any rights pertaining to owners of securities issued by company or related to them.
Sole paragraph – Article 2 of Instrução CVM 358/02 lists examples of Material Acts of Facts, their repetition being obviated. All the same, Material Acts of Facts must have their materiality analyzed within the context of the Company’s ordinary activities and dimension, as well as of the information already disclosed, and not abstractly, in order to avoid the trivialization of the disclosure of Material Acts of Facts to the prejudice of the quality of the analysis of the Company’s possibilities by the market.
Article 3 – The disclosure of a Material Act or Fact has the objective of providing investors with timely, reasonable and effective information needed for their investment decisions, ensuring the best symmetry possible in the disclosure of information. Thus, the improper use of privileged information in the securities market by people who have access to it, to their own or third-party advantage and to the prejudice of investors in general, of the market, and of Company itself is prevented.
Article 4 – The Director of Investor Relations is the person responsible for the performance and enforcement of this policy, inclusive for the elaboration and updating of the information complied in the exhibits, and is also the primary Company spokesperson for disclosures to the market.
Article 5 – The directors, Controlling Shareholders, Members of the Statutory Audit Committee, Employees and Officers having access to Relevant Information or any of the members of all the other bodies of the Company having Technical or Advisory Functions, who have executed the Pledge of Compliance, and who have personal knowledge of a Material Act or Fact, must inform it to the Director of Investor Relations. In the event the people mentioned hereinabove find an omission on the part of the Director of Investor Relations in the fulfillment of his information and disclosure duties, they shall only be discharged from responsibility if they immediately inform the Material Act or Fact to the CVM.
Article 6 – When having access or receiving any notice of a material act or fact, the Director of Investor Relations shall disclose such information by sending it to CVM and the stock exchanges and/or organized over-the-counter market in which the Company’s securities are traded, as well as in any media, including press releases ( art. 3º, §3º of Instrução 358).
Article 7 – In the event of an atypical oscillation in the rating, price or quantity of Company securities traded, the Director of Investor Relations shall question the people mentioned in article 5, in order to find whether they have any knowledge of information that should be disclosed to the market.
Article 8 – Once the existence of information not disclosed to the market is confirmed, as mentioned in article 7 , the Director of Investor Relations shall immediately disclose the Material Act or Fact to CVM, thereby discharging himself of that duty.
Sole paragraph – The Director of Investor Relations shall remain ready to provide CVM and the stock exchanges and/or over-the-counter market institutions with the additional information they might request on the disclosed Material Act or Fact, limiting it to information deemed to be in the interest of the Company and its investors.
Article 9 – The Director of Investor Relations shall see to the immediate disclosure of material acts and facts concerning the Company, simultaneously, in all markets in which the company’s securities are accepted for trading.
Article 10 – The material acts and facts shall be clearly and precisely stated, in a language accessible to the investors.
Article 11 – The material acts and facts shall be published in wide-circulation newspapers, usually employed by the Company. The publication shall contain the web site where the information concerning the Material Act or Fact is available.
Article 12 – The material acts and facts shall be simultaneously disclosed to the:
Article 13 – The disclosure of material acts and facts shall be take place, whenever possible, before the beginning or after the end of the trading in the stock exchanges in which the Company securities are accepted for trading. If the securities are traded in different countries, the disclosure must be simultaneous in both markets; in the event of incompatibility, the trading hours in the Brazilian market shall prevail.
Sole paragraph – In the event the disclosure cannot be performed before the opening or after the closing of the trading, the Director of Investor Relations may request the simultaneous suspension of the trading of company securities in the markets in which the securities are accepted for trading, until the relevant information is properly disclosed.
Article 14 – The general rule concerning a Material Act or Fact is its disclosure and publicity. In any case, the non-disclosure of a Material Act or Fact is an exception and should be the object of analysis (Instrução CVM nº 358/02, article 6º caput ).
Article 15 – There are, however, exceptional cases in which the indiscriminate disclosure of Privileged Information that constitutes a Material Act or Fact can jeopardize the legitimate interest of the Company. In such a situation, the non-disclosure of a Material Act or Fact concerning the Company shall be subject to the decision of the Company’s Controlling Shareholders or Directors (Instrução CVM nº 358/02, article 6, head paragraph).
§ 1 – In the event the Material Act or Fact is linked to deals directly involving the Controlling Shareholders and they opt for its non-disclosure, they shall inform the Director of Investor Relations accordingly.
§ 2 – Even though the Directors and Controlling Shareholders opt for non-disclosure of the Material Act or Fact, it is their duty to disclose the Material Act or Fact, directly or through the Director of Investor Relations, in the event the information escapes their control or in the atypical hypothesis of an oscillation in the rating, price or quantity of Company securities traded (Instrução CVM nº 358/02, article 6, sole paragraph).
§ 3 – The Directors and Controlling Shareholders may submit to CVM their exceptional decision of keeping confidential Material Acts or Facts, the disclosure of which they consider harmful to the legitimate interests of the Company (Instrução CVM 358/02, article 7).
Article 16 – The people listed in article 1 must keep confidential all the information concerning a Material Act or Fact to which they have privileged access by virtue of their office or position until its proper disclosure, and should also cause their subordinates and third-parties who know it to keep it confidential as well.
Article 17 – The procedures concerning the notice and disclosure of information on the trading of Company Securities are based on article 11 of Instrução CVM nº 358/02.
Article 18 – The Directors, Members of the Audit Committee and members of bodies with technical or advisory functions shall inform their ownership of Company Securities, be it in their own name or in the name of Related Persons, as well the changes in such positions.
Article 19 – The notice shall be sent to the Director of Investor Relations and, through him, to CVM and the Stock Exchange, in the form shown in Attachment III hereto.
Article 20 – The notice to CVM shall be made (i) immediately after taking office and (ii) within a maximum on ten (10) days after the end of the month in which the change in the positions held is effected, indicating the balance of the position in the period.
Article 21 – The procedures concerning the notice and disclosure of information on the trading of Company Securities, involving relevant interest, are based on article 12 of Instrução CVM nº 358/02.
Article 22 – Relevant interest is shareholding directly or indirectly corresponding to five percent (5%) or more of a kind or class of shares of the Company capital.
Article 23 – The direct or indirect Controlling Shareholders, and the shareholders electing the Directors of the Company, shall send notice of and disclose information on the purchase or sale of relevant interest.
Article 24 – The disclosure shall be made by publication in the wide-circulation newspapers usually employed by the Company ( Instrução CVM nº 358/02, article 3).
Article 25 – The notice of purchase or sale of relevant shareholding shall be sent to CVM and to the Stock Exchanges, with the information shown in the model form found in Attachment IV hereto.
Article 26 – The notice to CVM and the Stock Exchanges shall be sent immediately after the interest described in Article 22 is attained.
Article 27 – In order to ensure adequate standards of trading of securities issued by the Company and its listed Controlled Companies, all trading on the part of the Company itself and of the people bound to comply with this Policy shall only take place with the intermediation of Accredited Brokers, shown on the list sent to CVM, kept updated.
Article 28 – The Company, its Directors, Members of the Audit Committee, Employees and Officers with access to Material Information and the members of the other bodies of the Company with Technical or Advisory Functions that executed the of compliance, shall abstain from trading their shares in all black-out periods determined by a notice of the Director of Investor Relations. The Director of Investor Relations is under no obligation to explain the reason for the Black-Out Period, which shall be treated as confidential by its addressees.
Article 29 – The same obligations apply to the Controlling Shareholders, Controlled Companies, and whomever, by virtue of their office, position or function in the Holding Company, in the Controlled Companies and Associated Companies, has any knowledge of a Material Act or Fact about the Company, and has executed the Pledge of Compliance.
Article 30 – In hypotheses “i”, “ii” and “iii” below, the trading of Company securities is prohibited in principle (without prejudice to the exemption applicable to trading based on this Trading Policy): (a) by Company; (b) by its Directors, Controlling Shareholders, Members of the Audit Committee, Employees and Officers with access to Material Information and other bodies with Technical or Advisory Functions, and also, (c) by whomever, by virtue of his/her position, office or function in the Controlled Companies and Associated Companies, knows information concerning a Material Act or Fact, until the Company discloses it to the market:
(i)Whenever any Material Act or Fact occurs in the Company business and is known to the people listed above;
(ii)Whenever an option or order for the end of purchase or sale of Company shares by the Company itself, its Controlled Companies, Associated Companies or any other company under common control is in force or is granted;
(iii)and whenever a company take-over, spin-off, split-up, merger, transformation or reorganization is intended.
§ 1º – The prohibition mentioned in item (ii) above applies to deals with Company shares carried out by its Directors, Members of the Audit Committee, Employees and Officers with access to Material Information, members of the other bodies of the Company with Technical or Advisory Functions, Controlling Shareholders and by whomever, by virtue of his/her position, office or function in the Controlled Companies and Associated Companies, knows information concerning a Material Act or Fact and has executed the Pledge of Compliance, exclusively on the dates on which the Company trades or informs the Accredited Brokers that it will trade Company shares. To this effect, the Accredited Brokers are instructed by the Director of Investor Relations not to record deals on such dates.
Article 31 – The prohibitions mentioned in chapter XII ” Restrictions on the Trading of Company Securities Pending the Disclosure of a Material Act or Fact ” do not apply to the deals with treasury stock through a private stock trading company, related to the exercise of a purchase option according to a share purchase option plan approved by the General Meeting of the Company in the form of a specific authorization by the CVM, according to decision passed on Apr/16/2002 (Proc. RJ 2000/5369) and the occasional repurchase by the Company of such shares, also through a private stock trading company.
Article 32 – The restrictions on trading provided in chapter XII ” Restrictions on Trading of Company Securities Pending the Disclosure of a Material Act or Fact” do not apply to the Company itself, its Controlling Shareholders, Directors, Members of the Audit Committee, Employees and Officers with access to Material Information and the members of other bodies of the Company with Technical or Advisory Functions, as of the date of execution of the Pledge of Compliance (Instrução CVM nº 358/02, article 13, § 7), when such trading, within the scope of the Trading Policy, is done in the form of long-term investment, meeting at least one of the following characteristics:
(i) subscription or purchase of shares by virtue of the exercise of options granted under a Share Purchase Option plan approved by the general meeting;
(ii) purchase by the Company in a program to buy shares for cancellation or maintenance as treasury stock;
(iii) investment of variable pay received as profit share in the purchase of Company securities;
(iv) execution of Individual Investment Programs by the Directors, direct or indirect Controlling Shareholders, Members of the Audit Committee, Employees and Officers with access to Material Information and the members of other bodies of the Company with Technical or Advisory Functions.
Sole paragraph – Individual Investment Programs are the individual plans for the purchase of Company securities, that shall indicate approximately the amount the interested party intends to invest or the quantity of Securities he/she intends to purchase within a period not less than 12 months, after which the interested party shall submit a brief report of the respective development. Individual Investment Programs must be filed with the Director of Investor Relations no less than thirty (30) days before the start of the program.
Article 33 – The Company, its Directors, direct and indirect Controlling Shareholders, Members of the Audit Committee, Employees and Officers with access to Material Information and the members of the other bodies of the Company with Technical or Advisory Functions, and also, whomever, by virtue of his/her position, office or function in the Controlled Companies and Associated Companies, knows information concerning a Material Act or Fact and has executed the Pledge of Compliance, shall not trade Company securities for a period of fifteen (15) days before the disclosure or publication, as the case might be, of:
(i) quarterly information on the Company (ITR);
(ii) annual information on the Company (DFP and IAN);
(iii) financial statements.
Sole paragraph – The Individual Investment Programs shall comply strictly with this restriction.
Article 34 – The Company Board of Directors shall not decide on the purchase or sale of Company shares until information is published in the form of a Material Act or Fact concerning:
(i) the execution of any agreement or contract to transfer the controlling interest in the Company; or
(ii) the granting of an option or order to transfer the controlling interest in the Company; or
(iii) the existence of an intended Company take-over, split-up, spin-off, merger, transformation or reorganization.
Sole paragraph – If, after the approval of a share repurchase plan, any of the above hypotheses happens, the Company shall immediately discontinue deals with its own shares until the disclosure of the respective Material Act or Fact.
Article 35 – Without prejudice to the above provisions concerning the Individual Investment Programs, Directors leaving the management of the Company before the public disclosure of a deal or fact originated while he/she was in office shall not trade Company securities:
(i) for six (06) months after the termination; or
(ii) until the disclosure to the market, by the Company, of a Material Act or Fact, except if, in this second hypothesis, the trading of Company shares after the adverse impact on the shareholders or the Company itself.
Sole paragraph – Among the alternatives mentioned above, the event that occurs first shall prevail.
Article 36 – This Information and Share Trading Disclosure Policy applies to TIM S.A.
Article 37 – This Policy was approved by the Board of Directors, pursuant to Instrução CVM nº 358 of January 3, 2002, on –/–/– , effective today.
Principal differences between the brazilian and the u.s. corporate governance practices
We are subject to the NYSE corporate governance listing standards. As a foreign private issuer, the standards applicable to us are considerably different than the standards applied to U.S. listed companies. Under the NYSE rules, we are required only to: (a) have an audit committee or audit board, pursuant to an applicable exemption available to foreign private issuers, that meets certain requirements, as discussed below, (b) provide prompt certification by our chief executive officer of any material non-compliance with any corporate governance rules, and (c) provide a brief description of the significant differences between our corporate governance practices and the NYSE corporate governance practice required to be followed by U.S. listed companies. The discussion of the significant differences between our corporate governance practices and those required of U.S. listed companies follows below.
Independence of Directors and Independence Tests
The NYSE rules require that a majority of the board must consist of independent directors. Independence is defined by various criteria, including the absence of a material relationship between the director and the listed company. Brazilian law does not have a similar requirement. Under Brazilian law, neither our board of directors nor our management is required to test the independence of directors before their election to the board. However, both the Brazilian Corporate Law and the CVM (Brazilian Securities and Exchange Commission) have established rules that require directors to meet certain qualification requirements and that address the compensation and duties and responsibilities of, as well as the restrictions applicable to, a company’s executive officers and directors. While our directors meet the qualification requirements of the Brazilian Corporate Law and the CVM, we do not believe that a majority of our directors would be considered independent under the NYSE test for director independence. The Brazilian Corporate Law requires that our directors be elected by our shareholders at a general shareholders’ meeting. Two of our directors were elected by, and represent, our minority shareholder.
NYSE corporate governance standards require non-management directors of a listed company to meet at regularly scheduled executive sessions without management.
According to Brazilian corporate law, up to one-third of the members of the board of directors can be elected into executive positions. The remaining non-management directors are not expressly empowered to serve as a check on management ones and there is no requirement that those directors meet regularly without management. Notwithstanding, none of our executive officers are members of our board of directors.
NYSE corporate governance standards requires that a listed company has a director nomination committee, corporate governance committee and compensation committee each composed entirely of independent directors with a written charter that addresses certain duties.
We are not required under applicable Brazilian corporate law to have, and accordingly we do not have, a nominating committee, a corporate governance committee or a compensation committee. Pursuant to our by-laws our directors are elected by our shareholders at a general shareholders’ meeting. Compensation for our directors and executive officers is established by our shareholders.
Audit Committee and Audit Committee Additional Requirements
NYSE rules require that U.S. listed companies have an audit committee that (i) is composed of a minimum of three independent directors who are all financially literate, (ii) meets the SEC rules regarding audit committees for listed companies, (iii) has at least one member who has accounting or financial management expertise, and (iv) is governed by a written charter addressing the committee’s required purpose and detailing its required responsibilities. However, as a foreign private issuer, we need only to comply with the requirement that the audit committee meet the SEC rules regarding audit committees for listed companies.
Brazilian corporate law requires that we have a statutory Board of Auditors (referred to as our fiscal committee or conselho fiscal). Our fiscal committee meets the requirements of the general exemption set forth in Exchange Act Rule 10A-3(c)(3). Our fiscal committee is primarily charged with certain advisory, oversight and review functions with respect to the company’s financial statements, management acts and certain proposals to be submitted to shareholders’ meetings, such as proposals made by management regarding investment plans, capital expenditures budget, dividends distribution and corporate restructuring involving the company. However, the fiscal committee, as required by Brazilian corporate law, has only an advisory role and does not participate in the management of the company. Indeed, decisions of the fiscal committee are not binding on the company under Brazilian corporate law. While our Board of Directors receives recommendations from our fiscal committee, our Board of Directors, under Brazilian corporate law, is the only entity with the legal capacity to appoint and terminate any independent registered public accounting firm. Since Brazilian corporate law does not specifically grant our fiscal committee the power to establish receipt, retention and complaint procedures regarding accounting, internal control and audit matters, or create policies for the confidential, anonymous treatment of employee concerns regarding accounting or auditing matters, we adopted at a shareholders’ meeting held on May 6, 2004 a committee charter to clarify that the fiscal committee has certain powers and duties, which comprise, among others, the powers herein mentioned.
We do not believe that our use of the fiscal committee in accordance with Brazilian corporate law, as opposed to the provisions set forth in Exchange Act Rule 10A-3(b), materially adversely affects the ability of the fiscal committee to act independently, satisfy the other applicable requirements of Exchange Act Rule 10A-3 or fulfill its fiduciary and other obligations under Brazilian law. Our bylaws currently set certain independence standards for members of the fiscal committee and it is presently contemplated that the fiscal committee will continue to be independent. However, because the fiscal committee’s members will continue to be elected and its budget will continue to be set at the general shareholders’ meeting, we can make no assurance that the fiscal committee or its future members will continue to be independent from our controlling shareholder in the future.