PORTUGAL Law and Practice Contributed by: Marta Pontes, Hélder Frias and José António Reymão Nogueira, Uría Menéndez
• banking and financial markets; • insurance; • telecommunications; • energy; • healthcare; and • state-owned companies or companies sub- ject to an equivalent legal regime. Effects on the Transaction The main effect on the transaction is that it must be structured and documented so that all authorisations and licences required are obtained before closing (usually set out as a Listed companies can only be acquired through a tender offer, made publicly and in accordance with the Portuguese Securities Code ( Código de Valores Mobiliários ) (CdVM), which imposes spe- cific legal requirements for tender offers, espe- cially with regard to transparency and publicity. The legal obligations applicable in the case of tender offers include: • a prospectus outlining the main terms and conditions of the transaction; condition precedent). 9.2 Listed Targets Specific Regulatory Rules • registration of the prospectus in compliance with the formalities required for its approval by CMVM; • provision of an equitable price for the acquisi- tion of the target (Article 188 of the CdVM); • the consideration provided for the acquisition of the target must be in place for the trans- action to occur, either by depositing it in a bank account or by securing it through proper guarantees; and • transparency must be ensured throughout the transaction through compliance with obli- gations of information towards the general
public, the company’s employees and partici- pants in the transaction – these obligations are particularly imposed on the target’s board of directors (Article 181 of the CdVM). Methods of Acquisition There are two main methods of acquisition of a listed company, mandatory tender offers and voluntary tender offers (Article 187 of the CdVM). Voluntary offers are legally defined as offers that are not mandatory. Mandatory tender offers must take place when a shareholder acquires either: • shares carrying more than one third of the voting rights of the company; or • shares carrying more than one half of the vot- ing rights of the company. The relevant shareholder can present adequate evidence to the CMVM that, despite holding more than one third of the voting rights of the company, it does not exercise effective control over the company and is therefore exempt from the obligation to submit a tender offer. Funding The consideration to be offered for the acquisi- tion of the target must be either deposited in a bank account or secured through proper guar- antees. Additionally, in the case of a mandatory tender offer, Portuguese law provides for certain mini- mum requirements regarding the consideration offered. The consideration of a mandatory ten- der offer must not be lower than either of the following (Article 188 of the CdVM): • the highest price paid or offered by the ten- derer (or by any person related to the tender- er) for the acquisition of the same category of securities in the six months preceding the
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