PORTUGAL Law and Practice Contributed by: Duarte Schmidt Lino, Raquel Azevedo, Alexander Ehlert and Leonor Melo Bento, PLMJ
demergers or asset transfers usually requires the transfer of autonomous business units. 5.3 Spin-Off Followed by a Business Combination A spin-off immediately followed by a business combination is possible and is one of the types of spin-offs permitted under Portuguese law ( cisão-fusão ). The key requirements are: • the preparation of a demerger-merger plan ( projeto cisão-fusão ); • its registration and publication; and • its subsequent approval by each of the par- ticipating companies’ shareholders, followed by the definitive registry. 5.4 Timing and Tax Authority Ruling Typically, a spin-off takes about four months to complete, taking into account the prepara- tion and submission of the necessary corporate documents and the observance of legal interim periods, such as the deadline for creditors to oppose the transaction (which was extended from one month to three months in the begin- ning of 2024). The spin-off of a company does not require a ruling from the tax authority. 6. Acquisitions of Public (Exchange-Listed) Technology Companies 6.1 Stakebuilding The decision to acquire a minority stake in a Portuguese public company prior to making an offer depends on the target’s shareholder struc- ture, as well as on the transaction structure. This is usually considered as one of the transaction structure options, as it may allow the acquisition of an initial stake at a cheaper price, and may limit the size of the offer and ensure the sale
by reference shareholders before launching the offer. However, it also has disadvantages to con- sider, such as setting a minimum price for the offer or triggering acting in concert, which must be considered in the offer structure (please also refer to 6.6 Deal Documentation ). The minimum reporting threshold in Portugal is 5% of voting rights legally attributed to the hold- er (which may include other shares/voting rights controlled but not directly held by the holder). Disclosure of the purpose of the acquisition and other similar information is required only when a takeover bid is launched, and not when minority stakes are disclosed. 6.2 Mandatory Offer There is a mandatory offer threshold of one third and 50% of voting rights corresponding to the share capital, directly held or legally attributable to the potential offeror. The launch of the bid is not required if the potential bidder evidences to the Portuguese Securities Market Commission (CMVM) that it does not have control ( influência dominante ) over the target. 6.3 Transaction Structures The most common types of acquisitions and mergers are takeovers and mergers. There are not many merger precedents, but the two most significant precedents are related to the technol- ogy sector. 6.4 Consideration and Minimum Price Please see 6.3 Transaction Structures . The use of cash in merger transactions is subject to strict restrictions. The minimum price requirements are applicable to mandatory takeovers, gener- ally in line with the takeover directive. The con- sideration in a mandatory takeover may not be less than the highest of the following amounts:
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