SPAIN Law and Practice Contributed by: Ángel Pérez López, Luis Jiménez and Rodrigo del Saz, Uría Menéndez
and licences are obtained prior to closing. This usually means structuring the transaction in two distinct stages (signing and closing) and estab- lishing the granting of the authorisation as a con- dition precedent to drawdown. 9.2 Listed Targets The most common way of acquiring a listed com- pany is a takeover bid to purchase the shares of the Target or a merger. Spanish law establishes special rules on takeover bids, mainly through the Spanish takeover regulation. The main types of takeover bids are as follows. Mandatory Bids They must be made for all of the company’s shares for an “equitable price” and be uncon- ditional. The equitable price must be no less than the highest price paid, or agreed on, by the offer- or or its concert parties in respect of the Tar- get’s securities over the 12 months prior to the announcement of the bid. If the offeror has not acquired securities during the 12 months prior to the announcement of the bid, the equitable price must be no less than the price calculat- ed in accordance with the valuation rules that apply to delisting offers, which take into account several valuation methods. The National Secu- rities Market Commission (Comisión Nacional del Mercado de Valores, or CNMV) may modify the equitable price resulting from the provisions described in certain circumstances. The obligation to make a mandatory bid is trig- gered when a person acquires “control” of a list - ed company by (i) directly or indirectly acquiring the Target’s securities with voting rights, or (ii) executing shareholders’ agreements. According to Spanish takeover regulations, control thresh- olds triggering the obligation to make a manda-
tory bid are (i) the direct or indirect acquisition of at least 30% of the voting rights, or (ii) holding any interest carrying less than 30% of the vot- ing rights but appointing, within the 24 months following acquisition, a number of directors that, together with any members already appointed by the bidder, represent a majority of the Targets board of directors. Voluntary Bids There are no restrictions on the proportion of shares to be acquired or their price, and they can be subject to conditions (such as the Target’s approval of amendments to its articles of asso- ciation or structural changes, such as a merger, or a minimum level of acceptance). However, if, as a result of a voluntary bid, the bidco acquires control over the Target on the terms described above, the obligation to launch a mandatory takeover bid may be triggered. According to Spanish takeover regulations, bid- ders wishing to take over a listed company must evidence to the CNMV that guarantees securing compliance with the obligations arising from the takeover bid have been provided. If the consideration is not cash (eg, securities), the regulations are vague and merely state that the offeror must have adopted all reasonable measures to guarantee its satisfaction. Con- versely, when the consideration is totally or partially cash, the offeror must provide a first- demand bank guarantee or corroborate that a cash deposit has been made with a credit insti- tution. Bidders normally opt for a bank guaran- tee. Issuing the bank guarantee is usually struc- tured as a drawdown under the corresponding finance documentation (which is divided into two different products, the bank guarantee and the acquisition financing itself).
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