Material Fact – Civil non-prosecution agreement
São Paulo, April 6, 2020 – ECORODOVIAS INFRAESTRUTURA E LOGÍSTICA S.A. (“Company”), ECORODOVIAS CONCESSÕES E SERVIÇOS S.A. (“ECS”) and CONCESSIONÁRIA ECOVIAS DOS IMIGRANTES S.A., (“Ecovias”) in compliance with the provisions of paragraph 4 of article 157 of Law No. 6,404/76, as amended, and of the Brazilian Securities Commission Instruction (“CVM”) No. 358/02, herein inform the shareholders and the market that Ecovias entered into, on this date, a civil non-prosecution agreement (acordo de não persecução cível) (“ANPC”) with the Public Prosecution Service of the State of São Paulo (“MPSP”), pursuant to article 17, §1, of Law No. 8,429/1992, as amended by Law No. 13,964/2019 and the Resolution No. 1,193/2020 of the MPSP College of Prosecutors.
The amount of R$638 million will be allocated, as decided between MPSP, São Paulo State Secretariat of Logistics and Transportation and Ecovias, for the following purposes: A) R$450 million in works of public interest not originally planned in Ecovias’ concession agreement, comprising the construction, within 8 years, which can be anticipated to 5 years, of a Boulevard of about 2km near the Mackenzie Engineering School Road Complex, in São Paulo, and improvements on the Anchieta Highway; B) R$ 150 million as 10% tariff discount in favor of customers of the Imigrantes and Anchieta Highways, at Ecovias toll stations located in Riacho Grande and Piratininga, in the period between 9h00 PM of one day and 05h00 AM of the following day, to be applied 90 days after ANPC homologation; C) R$36 million to be paid in 6 installments to the São Paulo Treasury; and D) R$ 2 million to be paid to the FID. Additionally, the ANPC contains other provisions, such as the cooperation of the Company and Ecovias with the production of evidence and the adoption of measures to improve internal controls. The Company will pay the fines indicated in items C) and D), as well as the additional amount of R$12 million due to other obligations.
The Company estimates that the average annual disbursement of Ecovias for the implementation of the obligations established in the ANPC will be of R$ 48 million, net of taxes. The amounts related to the works that will be included under the Ecovias’ concession agreement will be accounted in accordance with international accounting standards.
On the other hand, aiming at maintaining the activities of Ecovias and the public interest, the MPSP will terminate the procedures and discussions, whether of civil, administrative or punitive nature, including the administrative improbity acts against Ecovias and other companies of Ecorodovias Group, in order to avoid that new sanctions are applied to Ecovias and other companies of the Ecorodovias Group based on the facts and information obtained by the MPSP.
The Company takes this opportunity to clarify that it has recently learned in more detail the facts under the ANPC and, with the purpose of meeting the best interest of Ecorodovias Group and its shareholders, has started to interact with the MPSP for this purpose, maintaining the confidentiality requirements set forth by the applicable laws and the Confidentiality Agreement previously entered into with the MPSP. It should be noted that Ecovias (and, consequentially, the Company and ECS) received the first draft proposal of the potential agreement for consensual resolution of the issues investigated from the MPSP on March 2, 2020, which, after negotiation, was executed on this date.
The ANPC was executed under and with a view to the consensual resolution of the civil inquiries PJPP-CAP No. 1,071/2014, 295/2018 and 489/2018, of the Public and Social Patrimony Prosecution Service of the City of São Paulo, which are under the responsibility of the Prosecutors Silvio Antonio Marques, José Carlos Guillem Blat and Paulo Destro.
The Company informs that the Leniency Agreement entered into by and among the Company, ECS, Concessionária Ecovia Caminho do Mar S.A., Rodovia das Cataratas S.A. – Ecocataratas and the Federal Public Prosecutor’s Office – Attorney General’s Office in Paraná, on August 12, 2019, will not be amended due to the execution of the ANPC with the MPSP.
The execution of the ANPC reinforces the commitment to the integrity and strengthening of its efforts on the Ecorodovias group compliance and corporate governance areas, and it will continue to take all appropriate measures and actions to safeguard its business and shareholders’ interests.
Ecovias informs that it is in an advanced stage of negotiation: (i) of regulatory liabilities under its Concession Agreement resulting from economic and financial imbalances duly ascertained and uncontroversial and; (ii) of possible inclusion of new investments of public interest with the Granting Power. Such negotiations shall not be affected by the execution of the mentioned ANPC.
The ANPC will be submitted for ratification by the Superior Council of the Public Prosecution Service and by one of the Lower Treasury Court of the Capital of the State of São Paulo. Ecovias committed to bear the total amount of R$638 million in favor of the State of São Paulo as follows: A) R$290.0 million as indemnity to the São Paulo State Treasury (Article 1 of Law No. 7,347/1985); B) R$263.8 million as collective moral damage (Article 1 of Law No. 7,347/1985); C) R$27.4 million as restitution to the São Paulo State Treasury (Article 12, I, of Law No. 8,429/1992); D) R$54.8 million as fine for administrative improbity (Article 12, I, of Law No. 8,429/1992); and E) R$2.0 million to the FID – São Paulo State Fund of Diffuse Interests (Article 13 of Law No. 7,347/1985).
The Company ratifies its commitment with its obligations, as publicly-held corporation listed in the New Market of B3, and any and all relevant information will be disclosed accordingly to the relevant and current legislation.
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