PORTUGAL Law and Practice Contributed by: Duarte Schmidt Lino, Raquel Azevedo, Alexander Ehlert and Leonor Melo Bento, PLMJ
• the highest price paid by the bidder or by any related person (including control relationships, acting in concert, etc) for the acquisition of securities in the same class, or that the bid- der or any of such persons undertook to pay, within the six months immediately preced- ing the date of publication of the preliminary announcement of the bid; • the average price of the shares, calculated on a regulated market during the same period (weighted average price); or • as determined by an independent expert, in certain cases. Contingent value rights are not common in this type of transaction. 6.5 Common Conditions for a Takeover Offer/Tender Offer The most common conditions are regulatory and competition clearances (conditions to launch) and success conditions (conditions to com- plete). The acceptance condition is typically to acquire at least more than 50% of the shares of the company. Regulators usually look carefully at unusual conditions and restrict conditions that depend on the offeror. In addition to condi- tions, the offer is usually also subject to assump- tions relating to the absence of material adverse changes in the target or market, etc. Unlike in voluntary bids, no conditions (other than legal conditions, such as regulatory or competition authorisations or approvals) may be imposed on the launch of a mandatory takeover offer. 6.6 Deal Documentation Transaction agreements in connection with the takeover offer or business combination are not very common considering the legal restrictions and implications, including the Market Abuse
Regulation (which may require disclosure to the market) and acting-in-concert provisions that may trigger aggregation of voting rights between the parties. In a recent precedent, agreements for shares acquisition were entered into by the offeror with certain major shareholders of the target, subject to certain conditions, ahead of the bid. This type of arrangement must be carefully structured and preferably discussed with the regulator to avoid triggering acting-in-concert provisions (and potentially a mandatory takeover bid). 6.7 Minimum Acceptance Conditions The most common minimum acceptance con- dition is more than 50% of the voting rights, as explored in 6.5 Common Conditions for a Takeover Offer/Tender Offer . 6.8 Squeeze-Out Mechanisms The threshold is 90% of voting rights, further to a tender offer. The offeror may acquire the remain- ing shares within three months at the price offered in the bid (or higher if the offeror acquired shares at a higher price). In contrast with a take- over bid, a squeeze-out does not depend on the acceptance of an offer by the shareholders. The controlling shareholder who decides to squeeze out the minority shareholders must immediately publish a preliminary announcement and submit it to the CMVM for registration. A squeeze-out involves the immediate exclusion of shares from trading on a regulated market. 6.9 Requirement to Have Certain Funds/ Financing to Launch a Takeover Offer Funds must be provided by deposit, bank guar- antee, undertaking to pay or other similar means accepted by the regulator in order to register and launch the offer.
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