MEXICO Law and Practice Contributed by: Carlo Cannizzo, Marco Cannizzo, Stefano Amato, Enrique García and Paloma Iglesias, Cannizzo
• The offer shall indicate the maximum number of shares to which it applies and, where applicable, the minimum number of shares upon the acquisi - tion of which the offer is conditioned. 6.3 Consideration The payment of the consideration for the acquisition of shares or equity securities with cash is more com - mon in Mexico than swaps for other shares or equity securities, a combination of shares and cash, or a merger. Depending on the industry involved in the M&A trans - action, formulas can be determined so that, at the closing date, the final amount of the consideration to be paid can be determined, avoiding valuation uncer - tainty, for example, in transactions related to the elec - tricity industry or the financial market. The Issuers’ Provisions in the case of tender offers allow the pro - spectus that is to be filed with the CNBV to set forth the consideration to be paid in terms of the types of securities offered in exchange (instead of a considera - tion in cash), as well as the procedure for calculating the exchange value. Said provisions also set forth that the public offer - ing notice submitted to the CNBV for its authorisation may omit information regarding the definitive price and amount, as well as information that can only be known up to the day prior to the beginning of the pub - lic offering. 6.4 Common Conditions for a Takeover Offer Voluntary Tender Offer Voluntary tender offers are subject to the following terms and conditions determined by the regulator: • The minimum term of the offer shall be 20 working days. • Offer allocation shall be on a pro rata basis. • The offer and its terms may be modified at any time before it is completed, provided that: (a) the changes are more favourable to the offerees; or (b) such modifications are expressly allowed in the relevant prospectus. • If the modification is significant, the offer period must be extended for at least five business days.
• Any modifications must be disclosed to the public through the same channels used to announce the original offer. • From the moment the offeror launches the offer and until its completion, the offeror may not, directly or indirectly, carry out transactions involv - ing the securities subject to the offer outside of the offer itself. Mandatory Tender Offer If the intention is to acquire 30% or more of the com - mon shares of a company registered in the RNV, a mandatory tender offer must be made, which is sub - ject to the following terms and conditions: • The offer shall be extended to the different series of shares, including those with limited, restricted or non-voting rights. • The consideration shall be the same, regardless of the class or type of share. • The offeror shall disclose the commitments assumed with the company or with the holders of the securities it intends to acquire. • The offer shall be made: (a) for the percentage of the capital stock of the company equivalent to the proportion of com - mon shares sought to be acquired in relation to the total of such shares or for 10% of such capital, whichever is greater, provided that, as a result of the offer, the offeror limits its final ownership to a percentage that does not result in obtaining control of the company; or (b) for 100% of the capital stock when the offeror intends to obtain control of the company. The offer shall specify the maximum number of shares to which it applies and, where applicable, the mini - mum number of shares upon the acquisition of which the offer is conditioned. Issuer Provisions Mexican law permits any condition if it is not contrary to or prohibited by public interest laws. The Issuers’ Provisions provide that the prospectus to be filed with the CNBV must indicate whether there are any condi - tions to which the offer is subject. The most common condition in Mexico for takeover offers is the authori -
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