Pursuant to the Código de Valores Mobiliários (the Portuguese securities code, or CVM) the thresholds which trigger a general OPA are the control of over one-third and one-half of the voting rights of a sociedade aberta. A sociedade aberta (an open company) is a company that: (i) was incorporated by way of a public offering directed to entities/individuals resident in Portugal; (ii) issued shares or other securities granting the right to acquire shares subscribed by way of a public offering directed to entities/individuals resident in Portugal; (iii) issued shares or other securities granting the right to acquire shares which are or were listed in a regulated Portuguese market; (iv) issued shares subscribed by way of public offering (directed to entities/individuals resident in Portugal) in an amount greater than 10% of its share capital; or (v) resulted from a merger/demerger of an open company. For the purposes of the definition of 'voting rights', Article 20 of the CVM, in addition to voting rights owned directly by the acquirer, qualifies the following as voting rights for the purposes of triggering an OPA:
(a) voting rights held by a third party on the account of the acquirer;
(b) voting rights held by a company which has a dominium or group relationship with the acquirer;
(c) voting rights held by a third party with whom the acquirer has an agreement as regards voting rights;
(d) voting rights held by the members of the corporate bodies of the acquirer;
(e) voting rights that the acquirer may acquire as a result of an agreement; and
(f) voting rights attached to shares delivered to the acquirer as security or managed by the acquirer if the acquirer can exercise such voting rights.
The OPA procedure is as follows:
Provide: (i) the Portuguese stock exchange commission (the Comissão do Mercado de Valores Mobiliários (CMVM)); (ii) the target company; and (iii) the management entity of the market where the securities are/were listed with the wording for the announcements referred to below.
Publish an announcement of the intention to effect the OPA. The CVM does not contain a specific regulation as to the means/places to effect the announcement and left such issue to be regulated by the CMVM. We believe that the CMVM will establish that the announcement will have to be made in a newspaper of wide circulation and in the bulletin of the management entity of the market where the securities are/were listed.
Request registration of the OPA with the CMVM. This registration must be effected within a maximum of 20 days of the announcement effected as described above. The documents to be produced are, inter alia: (i) corporate documents of the acquiror such as certified articles of association, certificate of commercial registry, certified copy resolution and accounts for the last year; (ii) a copy of the preliminary announcement referred to above; (iii) a draft information memorandum; (iv) a draft offer announcement; (v) evidence of the bank guarantee and/or cash deposit; and (vi) a contract entered into between the offeror and the credit institution.
The CMVM has eight days to accept or refuse the registration. Additionally, the CMVM can request additional information (which must be provided within a time frame pre-set by the CMVM). The CMVM must then accept or refuse the registration within eight days of receipt of the new information.
Once the registration has been accepted by the CMVM the offeror has eight days to publish the offer announcement and the information memorandum (setting out all terms and conditions). The offer announcement must be published in the bulletin of the management entity of the market where the securities are listed and in a newspaper of wide circulation. The information memorandum must be: (i) published in a newspaper of wide circulation: or (ii) made available (at no cost) at the head office of the acquiror, at the premises of the financial intermediaries and at the head office of the management entity of the market where the securities are/were listed.
The offer will run for between two and 10 weeks as established by the CMVM. The CMVM can extend this period in certain situations (for example, if there is a competitive offer).
An offer can be revised as regards price (if such price revision represents at least 5% more than the initial price) up to 10 days before the end of the offer period. If there is a revised offer the offer period will be extended for a period to be decided by the CMVM.
Acceptance of the offer by the shareholders of the target company must be given to the financial intermediaries or brokers involved in the transaction which then pass the orders to the credit institution acting as depository of the shares to be acquired. Acceptances can be withdrawn up to five days prior to the termination of the offer.
If there is a competitive offer, a new offer can be submitted; this would imply a time extension.
Once the offer period has closed the results of the offer will be immediately assessed and published: (i) by the financial intermediary that centralized the acceptances; or (ii) in a stock exchange special session.
Settlement will then follow through the Portuguese settlement system (at present in Portugal there is only the Sistema de Liquidação e Compensação Nacional of the Central de Valores Mobiliários).
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