PORTUGAL Law and Practice Contributed by: Duarte Schmidt Lino, Raquel Azevedo, Alexander Ehlert and Leonor Melo Bento, PLMJ
• relates, directly or indirectly, to the target or a financial instrument; and • would be likely to have a significant impact on the prices of those financial instruments or on the prices of related derivative financial instruments if it were made public. If any inside information is shared, the receiv- ers of that information cannot trade the shares or other financial instruments of the target until such information is made public or is no longer relevant. Sharing commercially sensitive information may create competition law concerns where the public company is competing with a bidder or with more than one bidder. In such cases, com- mercially sensitive information regarding current or future prices, volumes, rebates or any other commercially sensitive information should only be shared between advisers. 9.2 Data Privacy If the due diligence requires the transfer of data to countries outside the EU/EEA, the disclosing and receiving parties must adopt the Standard Contractual Clauses to provide appropriate safe- guards for such transfers pursuant to the EU’s General Data Protection Regulation (GDPR). Regarding transfers of personal data between the EU and the USA, based on the adequacy decision for the EU-US Data Privacy Frame- work, personal data can flow freely from the EU to companies in the USA that participate in the Data Privacy Framework. Furthermore, disclosure of personal data must be done in accordance with the GDPR regard- ing the purpose and basis for the processing of personal data, and following the principle of minimisation and information when providing to data subjects.
In addition, if the technology company oper- ates a critical digital infrastructure, access to personal data during the due diligence cannot compromise the security of network and infor- mation systems of the company.
10. Disclosure 10.1 Making a Bid Public
The takeover bid is announced through a prelim- inary announcement, which must be disclosed as soon as a final decision is taken to bid. A final decision is considered as having been tak- en when all essential elements, including price, have been determined (price and structure test). Although there are no express “put up or shut up” rules in Portugal, the CMVM has previously made potential bidders (and potential competing bidders) disclose their intentions to the market. Up to that moment, all persons involved in the process have a legal obligation of non-disclo- sure. 10.2 Prospectus Requirements In general, a prospectus is required for the issu- ance of shares in a stock-for-stock takeover offer or business combination, but there may be exemptions in accordance with the Prospectus Regulation or if another document containing the relevant information is available. The pro- spectus of a takeover bid must contain com- plete, truthful, up-to-date, clear, objective and lawful information, including: • the identification and registered office of the offeror and the issuer; • the identification and specific characteristics of the securities being offered; • the type of offer; • the consideration offered, its justification and payment conditions;
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