PORTUGAL Law and Practice Contributed by: Marta Pontes, Hélder Frias and José António Reymão Nogueira, Uría Menéndez
publication of the preliminary tender offer announcement; or • the weighted average price of these securi- ties on the regulated markets during the same period. Squeeze-Out Procedures Under Portuguese law, the acquisition of more than 90% of a target grants the right to acquire the remaining shares in the company and to squeeze out the remaining minority sharehold- ers, who are legally forced to sell. Conversely, once a 90% stake is acquired, the remaining minority shareholders can demand the purchase of their shares. 10. Jurisdiction-Specific Features 10.1 Other Acquisition Finance Issues Under Portuguese law, holding companies (SGPS) are subject to a specific regime and shall have as their sole corporate purpose the owner- ship of shares in other companies, as an indirect means of carrying out an economic activity. In particular, holding companies are prevented from granting credit, except in the following events: • to companies in a relationship of control ( relação de domínio ); and • to companies in which they hold (directly or through subsidiary companies) at least 10% of the share capital and voting rights, pro- vided that the corresponding shares are kept for more than one year.
In regard to SGPS, there are discussions regard- ing in which situations and to what extent these companies can provide guarantees in favour of subsidiary companies’ loans. As explained in 6.2 Restrictions , the granting of personal or in rem guarantees to secure debts of other companies is considered to be against the interests of the company unless either: • there is a justifiable corporate benefit ( jus- tificado interesse próprio ) for the company granting the guarantee; or • the companies are in “control or group rela- tionship” . However, it could be argued that holding compa- nies can only provide guarantees in those events where Portuguese law admits that they can be granted credit. Following this interpretation, and although it appears to be an isolated ruling, the Appeal Court of Lisbon has already decided that when a holding company issues a guarantee on behalf of a company held by the former, it is “grant- ing credit” . This ruling concluded that no room existed for the justifiable corporate benefit test because the guarantee was in breach of a spe- cific provision limiting the activity of holding companies and thus should be deemed null and void.
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