PORTUGAL Law and Practice Contributed by: Bernardo Abreu Mota, David Oliveira Festas and Francisco Albuquerque Reis, CS’Associados
• a description of the offeror’s status for purposes of the application of board neutrality rules (reciprocity and breakthrough); • the intention of the offeror to request the deroga - tion of the duty to launch a mandatory offer based on the offer being launched; and • conditions and legal assumptions to which the offer is subject. A launching announcement and a prospectus are required for all public offers, and must be drawn up and published in accordance with the requirements set forth in Regulation (EU) No 2017/1129 of the Euro - pean Parliament and of the Council, of 14 June 2017, on the prospectus to be published when securities are offered to the public or admitted to trading on a regulated market, as amended, and CMVM Regulation No 1/2023, of 26 April 2023. Under the terms of the EU Prospectus Regulation, the prospectus must include key material information required for investors to perform informed assess - ments of their potential investments, including the assets, liabilities, profits and losses, and a description of the overall financial position of the target. However, such information may vary in accordance with the tar - get’s specific characteristics. The prospects of carrying out an issuance of shares following a successfully completed business combi - nation should be mentioned in both the preliminary announcement and the prospectus, as this is deemed material information regarding the offeror’s goals and prospects for the target company and its group com - panies, if applicable. The disclosure requirements are substantially simple for business combinations involving only privately held companies, but as a rule they involve the need for certain public registrations and publications, with the particular intention of safeguarding creditors’ informa - tion and protection. 7.3 Producing Financial Statements Bidders are not expected to disclose their own finan - cial statements in the offer documents. However, the Portuguese Securities Commission usually requests disclosure of the offeror’s (and its subsidiaries’) audit -
ed and certified report and accounts of the previous three financial years for purposes of the registration of the offer. In the context of the registration of the offer with the Portuguese Securities Commission, the offeror must also provide the Portuguese Securities Commission with the target company’s audited and certified finan - cial statements. If the consideration of the offer consists of securities or a mix of cash and securities, pro forma financial information, if available, or audited and certified finan - cial statements must be provided regarding the issuer of the securities offered as consideration. Financial statements must be prepared in accordance with the requirements set forth in the EU Prospectus Regulation. Therefore, financial information prepared in accordance with IFRS or the Portuguese agreed accounting standards (which are substantially in line with IFRS) will be acceptable. In certain forms of business combinations (eg, merg - ers), the financial statements of all participating com - panies will have to be disclosed, in the context of the merger project to be subsequently approved by the respective shareholders. 7.4 Transaction Documents There is no general legal obligation regarding full dis - closure of the transaction documents, but such dis - closure may be required by the Portuguese Securities Commission in cases where the underlying transac - tion leads to a mandatory takeover offer (for which the prospectus must provide summarised details on the main terms and conditions). The Portuguese Com - petition Authority may also request the disclosure of transaction documents for the purposes of antitrust and merger control. In both cases, the relevant transaction parties may request that commercial data or other sensitive infor - mation is not disclosed or otherwise divulged to third parties by the requesting authorities. Under the Por - tuguese Securities Code applicable to listed compa - nies, shareholders’ agreements that are intended to achieve the acquisition, maintenance or reinforce -
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