PERU Law and Practice Contributed by: Alfred Kossuth Wieland and Edgardo Bernal Santos, Thorne, Echeandia & Lema Abogados
By way of example, in the case of direct share acquisi - tions, shares of public companies must be acquired strictly through a Public Acquisition Offer (OPA), pro - vided that the acquisition exceeds 30% of the total outstanding shares. In contrast, in the case of private companies, a direct share acquisition does not require a procedure as complex as an OPA, but rather com - pliance with any pre-emptive rights granted to other shareholders, as well as the procedures established in the relevant company’s by-laws. Foreign investors should also take into account sector- specific regulations, tax implications and corporate law considerations when determining the appropri - ate transaction structure. For instance, the tax treat - ment applicable to a direct share acquisition differs from that applicable to a share acquisition carried out through a merger. Finally, the transaction structures described above (except for mergers and acquisitions) are also appli - cable to minority investments that do not seek to obtain control of the company. Other structures are commonly used for this type of investment, including capital increases, direct financing arrangements, and the acquisition of debt instruments or bonds. 3.2 Regulation of Domestic M&A Transactions Please see 6. Antitrust/Competition and 7. Foreign Investment/National Security . 4. Corporate Governance and Disclosure/Reporting 4.1 Corporate Governance Framework All companies incorporated in Peru must adopt one of the corporate forms established under the General Corporations Law. This law regulates the corporate governance framework applicable to all companies, including the requirements, procedures and appoint - ment of the corporate bodies responsible for their management and oversight. The corporate govern - ance of public companies is also regulated under the Securities Market Law. The Superintendency of the Securities Market (SMV) has also issued a Code of Good Corporate Govern -
ance for Peruvian Companies, which is not mandatory but is widely adhered to by many public companies as a means of demonstrating a high standard of cor - porate governance. Likewise, there are sector-specific regulations that establish particular corporate govern - ance requirements for certain regulated entities, such as banks, telecommunications companies and insur - ance companies. With respect to corporate forms, public companies may only be incorporated as a Stock Corporation ( Sociedad Anónima ) or a Publicly Held Stock Corpo - ration ( Sociedad Anónima Abierta ), whereas private companies are commonly incorporated as a Stock Corporation ( Sociedad Anónima ), a Closely Held Stock Corporation ( Sociedad Anónima Cerrada ) or a Limited Liability Commercial Company ( Sociedad Comercial de Responsabilidad Limitada ). Accordingly, foreign investors should take several key considerations into account when selecting the appropriate corporate form for their investment. For instance, where the acquisition of a significant equity stake is contemplated, investors should note that, in the case of a Publicly Held Stock Corporation, the process is subject to a regulated procedure over - seen by the SMV, whereas the process applicable to a Closely Held Stock Corporation is less complex. Similarly, where free transferability of shares is a prior - ity, investors should consider that Closely Held Stock Corporations are subject to statutory pre-emptive rights in favour of existing shareholders, while no such pre-emptive rights apply to Publicly Held Stock Corporations. 4.2 Relationship Between Companies and Minority Investors The relationship between a company and its minority shareholders is governed by the General Corporations Law, which recognises a range of fundamental rights in favour of minority shareholders, including: • the right to call a General Shareholders’ Meeting; • the right to obtain representation on the board of directors; and • the right to receive information regarding resolu - tions adopted at shareholders’ meetings.
447 CHAMBERS.COM
Powered by FlippingBook