Key Benefits:
1
PROPOSED LAW NO. 67 /X
Exhibition of Motives
The Directive No 2004 /25/CE of the European Parliament and of the Council of April 21 of
2004, came to impose the harmonisation of the scheme of the public takeover bids in the
Member states of the European Union, respecting the general principles of fairness of
treatment, transparency in the information provided and protection of the interests of the
minority shareholders and employees of the offeror and target entities.
The harmonization of the current regimes in the European Union is strengthened by the principle of
reciprocity that allows a member state to provide the target entities with
possibility of applying a regime as much or more favourable depending on the scheme
applicable to the entity targeted in the Member State where it has its registered office, with special
impact on the visada's ability to apply defensive measures.
The Directive also sets out measures as to the competent authorities to
overseeing its provisions, in particular in the choice of authority in situations
where the offeror and the target entity are situated in different legal ordinances
or when the visada has securities admitted to trading in various markets
regulated.
On the transparency and duties of information, the Directive provides that the decision to
launch of an offer is immediately made public, with special duties of
information to employees of the offeror and target entities, including description of the
objectives as to the maintenance of employment or location of the activity in the event of
success of the offer. The changes to be made to the Securities Code in this
aspect are punctual in as the national regime is already substantially close to the
provided for in the Directive.
The Directive further provides for the abolition of a number of defensive barriers in the event of
public takeover bids, including the unenforceability of the transmission restrictions
of voting rights, restrictions on the right to vote or on the voting
plural. Special relief is given to the possibility of the offeror, should it pass
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percentage not less than 75% of the voting rights of the target in the sequence of the offer,
disregard restrictions in respect of transmissibility of voting rights and rights
special of shareholders relating to the appointment of the governing bodies.
The deadline for transposition of this Directive ends on May 20, 2006, the
recent launch of various operations of this type on the Portuguese market and the
speculation about the eventual launch of new operations, including on the part of
foreign companies, makes imperious the expedient adequacy of legal planning
portuguese to community rules, so as to avoid differential treatment in the
capital markets of the different member states.
The transposition of the Directive will be carried out by way of the amendment to the Code of Values
Securities, approved by the Decree-Law No. 486/99 of November 13, with the wording
that has been given to him by the Decrees-Law No. 61/2002, of March 20, 38/2003, of 8 of
March, paragraph 107/2003, of June 4, para. 183/2003, August 19, para. 66/2004, 24
of March and No 52/2006 of March 15.
It will also proceed to the amendment of the sanctionatory regime established in that
Code, mindful of the principles of efectiveness, proportionality and deterrence provided for
in the Directive, highlighting itself by its severity the punishment of the violation of the duties of
information relating to information on defensive measures or duties of
information by the target, both to its shareholders and to its employees or
regarding the trading of the subject securities of the offer, which makes
necessary to obtain the corresponding authorization of the Assembly of the Republic.
Thus:
Under the terms of the paragraph d) of Article 197 (1) of the Constitution, the Government presents to the
Assembly of the Republic the following proposal for a law.
Article 1.
Scope
The Government shall be granted legislative authorization to amend Section I, Chapter II, of the
Title VIII of the Securities Code, approved by the Decree-Law No 486/99,
of November 13, as amended by Decrees-Laws No 61/2002 of March 20, para.
38/2003, of March 8, para. 107/2003, June 4, para. 183/2003, August 19, para.
66/2004, of March 24, and No. 52/2006 of March 15, in order to suit the system
3
sanctionatory provided for in that Code to transposition into the internal legal order of the
Directive No 2004 /25/CE of the European Parliament and of the Council of April 21 of
2004, concerning the public takeover bids.
Article 2.
Sense and extension
1-A legislation to be passed under the present legislative authorization, in coherence
with the remaining typifying provisions of illicit mere social ordering
provided for in the Securities Code, aims to provide for standards
sanctionatory for the new duties to be constituted by virtue of the transposition to the
internal legal order of Directive No 2004 /25/CE of the European Parliament and of the
Council of April 21, 2004 on public takeover bids.
2-In the use of the legislative authorization conferred by the previous article, may the Government
define as very serious counterordinance, punishable between € 25,000 and € 2,500,000:
a) The omission of disclosure of the approval of statutory changes for purposes
of the voluntary suspension of effectiveness of transmissive restrictions, of law of
voting and rights of designation and removal of holders of social bodies;
b) The breach of duty to increase the counterpart to a price not less than the
higher price paid for the securities purchased in transaction
carried out in the pending public offering of compulsory acquisition.
3-In the use of the legislative authorization conferred by the previous article, may the Government
define as a serious counterordinance, punishable between € 12,500 and € 1,250,000:
a) The violation, on the part of the company targeted in public takeover bid, of the
duty to publish report on the offer and to send it to the Commission of the
Securities Markets (CMVM) and the offeror, of the duty of
inform the CMVM about transactions conducted on securities that
are the subject of the offer, of the duty to inform the representatives of the employees
or, in their absence, the workers themselves on the content of the documents of the
offer and of the report by you elaborate and the duty to disclose the opinion as
to the repercussions of the offer at the level of employment that is prepared by the
workers;
b) The violation, by the offeror or by persons who with this are in some of the
situations provided for in Article 20 of the Securities Code, of the
4
ban on trading outside regulated market of values
securities of the category of those who are the subject of the offer or of those who integrate the
counterpart without prior authorisation from the CMVM;
c) The violation, by the offeror or by persons who with this are in some of the
situations provided for in Article 20 of the Securities Code, of the duty
of communication to the CMVM of transactions carried out in the pendency of offer
public procurement;
d) The violation, on the part of the offeror society, of the duty to inform the
representatives of the workers or, in the absence of these workers on the
contents of the offer documents.
Article 3.
Duration
The legislative authorization granted by this Law shall be for the duration of 180 days.
Article 4.
Entry into force
This Law shall come into force on the day following that of its publication.
Seen and approved in Council of Ministers of April 27, 2006
The Prime Minister
The Minister of the Presidency
The Minister of Parliamentary Affairs
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The present decree-law transposes to the domestic legal order Directive No 2004 /25/CE
of the European Parliament and of the Council of April 21, 2004 on offers
public of acquisition.
The Directive aims to harmonise and coordinate the scheme of public takeover bids in the
Member states of the European Union, respecting the general principles of fairness of
treatment, transparency in the information provided and protection of the interests of the
minority shareholders and employees of the offeror and target entities. The
harmonization of the current regimes in the European Union is strengthened by the principle of
reciprocity that allows a member state to provide the target entities with
possibility of applying a regime as much or more favourable depending on the scheme
applicable to the target entity, with particular impact on the ability of the target to apply
defensive measures.
The Directive also sets out measures as to the competent authorities to
overseeing its provisions, in particular in the choice of authority in situations
in which bidder and target entity are situated in different legal ordinances
or when the visada has securities admitted to trading in various markets
regulated. The Directive also provides for the need for coordination between
competent authorities.
The duty to launch a public takeover bid comes as soon as a
entity, or group of entities acting in concert, detain securities
of the entity targeted in such a percentage of the voting rights that allow them, direct
or indirectly, have the control of the target. The Directive does not establish which
percentage, conferring to member states on their definition. In this respect, the
national legislator opts to maintain the current thresholds set out in the Code of Values
Securities for the public offers for compulsory acquisition, i.e. one third and
half of the voting rights.
The national legislator has, however, chosen to introduce a change in the calculation of
imputation of voting rights with relevance to the determination of the thresholds of
control. This amendment does not result from the transposition of Directive No 2004 /25/CE of the
European Parliament and of the Council of April 21, 2004, but it is a
partial anticipation of the scheme provided for in Directive No 2004 /109/CE of Parliament
European and of the Council of December 15, 2004 on the harmonisation of
transparency requirements with regard to the information relating to issuers
6
whose securities are admitted to trading on a regulated market and
amending Directive No 2001 /34/CE of the European Parliament and of the Council, of 21 of
May 2001.
In this way, Article 20 of the Securities Code is amended so as to
accommodate the notion of the concerted exercise of voting rights and predicts that they are not
attributable to societies that dominates companies that provide management services of
portfolio by against outrain, the voting rights attached to portfolios managed since
society gestures to act independently of the dominant society. Introduces yourself
also a new Article 20-A which presumes the imputation of voting rights to the
dominant society in certain circumstances that demonstrate lack of
independence on the part of the ruling society. This presumption can be eluded
in the face of the supervisory authority.
The launch of a public takeover offer presumes that the counterpart offered
be equitable, both in its value and in its form. As for the first aspect, the
article 188 of the Securities Code is amended, densifying the standard already
existing that establishes the requirement of the counterpart to be determined by auditor
independent in certain circumstances-particularly if the negotiation of the
securities the subject of the offer to present a reduced liquidity that implies
little representativeness.
As for the form of the counterpart, Directive No 2004 /25/CE of the European Parliament and
of the Council, of April 21, 2004, establishes that it may rewear cash or values
securities, an alternative in cash being made if the securities
are not admitted on a regulated market. The Directive also allows for the
Member states make it mandatory for a cash alternative in all cases.
In this respect, the legislator has breathed the arguments that advocate for greater defence
of small shareholders with those who strive for a more control market
flexible and efficient. The solution presented in Article 188 of the Code of Values
Securities points to a balance by establishing that the counterpart may consist
only securities of proven liquidity except if the offeror has, in the
period prior to the launch of the offer, acquired an equal or higher percentage
a 5% of the voting rights of the target, in which case an alternative is obligatory in
cash.
Transparency is crucial in a public takeover bid. The Directive provides that the
decision to launch an offer is immediately made public, with special
7
reporting duties to employees of the offeror and target entities including a
detailed description of the objectives in the seat of maintenance of employment or location
of the activity in case of the success of the offer. The changes made to the Code of
Securities in this respect are punctual as the national regime is already
substantially close to that provided for in the Directive. Article 181 densifies the duties
of information to be provided by the governing body of the target entity. For your side, the
new Article 245-It sets out the duty of information for all societies with
shares admitted to trading on regulated market in respect of their
government practices, notably on the capital structure and existence of measures
restrictive or defensive, including on the appointment of the governing bodies.
Article 11 of Directive No 2004 /25/CE, of the European Parliament and of the Council, of 21
of April 2004, provides for the abolition of a number of defensive barriers in the environment of
public takeover bid, including unenforceability of the restrictions on the transmission of
voting rights, restrictions on the right to vote or relative to the plural vote.
Special relief is given to the possibility conferred on the offeror, should it pass
percentage not less than 75% of the voting rights of the target in the sequence of the offer,
of disregarding restrictions on transmissibility and the right to vote and rights
special of shareholders relating to the appointment of the governing bodies. This is about
of what the doctrine has dubbed the breakthrough rule .
Article 12 of the Directive provides that the member states may confer upon the entities
aimed at the possibility of dismissing in whole or in part the willing
provisions of the Directive, including those provided for in Article 11, without prejudice to the principle
of reciprocity. In this way, the national legislator opts, in the new Article 182, by
a thoughtful regime, attentive once again the argumentation that defends a larger
freedom of movement of capital in counterpoint with the one that defends the primed of
private autonomy.
The regime of acquisition and potent disposal provided for in the Directive does not offer
any specialty in national planning, given that little differs in substance
of the provided in the Securities Code. In this way, the changes introduced
in Articles 194 to 196 of the Code are aimed at the harmonisation of deadlines for
launch of these offers and on the presumption of the justness of the counterpart.
It is also changed the sanctionatory regime established in the Code of Values
Securities, mindful of the principles of effectivity, proportionality and deterrence
provided for in the Directive. The violation of the duties laid down in the Directive becomes
8
deemed illicit liable to counter-ordinance, highlighting itself by its severity to
violation of the information duties relating to information on defensive measures,
of the information duties by the target of both its shareholders and its
employees or with respect to the trading of the securities subject to the offer.
The Commission of the Securities Market, the Bank of Portugal, was heard.
Institute of Insurance of Portugal, the representative associations of the banking sectors and
financial and Euronext Lisbon.
Thus:
In the use of the legislative authorization granted by the Law No. ___/2006, of ___ of ___ and in the
terms of the points a) and b) of Article 198 (1) of the Constitution, the Government decrees the
next:
Article 1.
Subject
The present decree-law transposes to the domestic legal order Directive No 2004 /25/CE
the European Parliament and of the Council of April 21, 2004 on offers
public of acquisition.
Article 2.
Amendment to the Securities Code
Articles 20, 108, 111, 173, 176, 180, 180, 188, 188, 188 to 182, 188, 188, 188, 188
190., 191, 194 to 196 and 393 of the Securities Code, approved by the
Decree-Law No 486/99 of November 13, as amended by the
Decrees-Laws No 61/2002 of March 20, para. 38/2003, of March 8, para. 107/2003,
of June 4, paragraph 183/2003, of August 19, para. 66/2004, of March 24, and para.
52/2006, of March 15, shall be replaced by the following:
" Article 20.
[...]
1-[...]:
9
a) [...];
b) [...];
c) [...];
d) [...];
e) [...];
f) Inherent in shares held in guarantee by the participant or by this
administered or deposited with it, if the voting rights
have been assigned;
g) Held by holders of the right to vote who have conferred on the
participant discretionary powers for their exercise;
h) Held by persons who have entered into some agreement with the
participant who vise to acquire the domain of society or frustrate the
change of domain or otherwise constitutes a
instrument of concerted exercise of influence on the
participative society;
i) [Previous point (g)] .
2-[...].
3-Do not consider themselves to be attributable to the society that exerts dominion over
investment fund managing entity, about managing entity of
pension fund, about venture capital fund manager entity or
on financial intermediary authorized to provide the management service
of portfolios on account of outrain the voting rights inherent in shares
monies of funds or portfolios managed, provided that the managing entity
or the financial intermediary shall exercise the voting rights of mode
independent of the dominant society.
4-For the purposes of the h) of paragraph 1, shall be presumed to be instrument of
concerted exercise of influence the agreements regarding the
transmissibility of the representative shares of the social capital of the
participative society.
5-A The presumption referred to in the preceding paragraph may be illidated in the face of
CMVM, upon proof that the relationship established with the
participant is independent of the influence, effective or potential, on the
participative society.
10
Article 108.
[...]
1-[...].
2-To the public procurement offers provided for in Article 145-A:
a) With respect to the proposed counterpart, to the processing of the
offer, to the contents of the prospectus of the offer and to the disclosure of the offer,
applies to the law of the member state whose supervisory authority is
competent for the supervision of the offer;
b) With regard to information for employees of the society
targeted, to the percentage of voting rights constituting the field, to the
waivers or waivers on the duty to launch public offer
of acquisition and the limitations of powers of the governing body
of the vised company, the personal law of the issuing company applies
of the securities subject to the offer.
Article 111.
[...]
1-[...]:
a) [...];
b) The public offerings of securities issued by the Bank
Central European or by the central bank of one of the States
members;
c) [...];
d) [...];
e) [...];
f) [...];
g) [...];
h) [...]:
i) [...];
ii) [...];
iii) [...];
iv) [...].
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i) [...];
j) [...]:
i) [...];
ii) [...].
l) [...];
m) The public offers of purchase of securities issued
by collective investment bodies in the society-like form.
2-[...].
3-[...].
Article 138.
[...]
1-In addition to that provided for in Article 183 (1), the prospectus offering
procurement public shall include information on:
a) [...];
b) [...];
c) [...]:
d) [...];
e) The people who, according to their knowledge, are with the
offeror or with the vised society in some of the relationships
provided for in Article 20 (1);
f) [...];
g) The intentions of the offeror as to the continuity or modification of the
business activity of the target company, of the offeror, to the extent
in which it is affected by the offer, and, on the same terms, by
societies that with these are in relation to dominance or
group, as to the maintenance and conditions of the employment of the
workers and leaders of the entities referred to, in particular
possible repercussions on the places in which they are exercised
activities, as to the maintenance of the quality of open society
of the target society and the maintenance of the trading in
regulated market of the securities that are the subject of the
offer;
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h) The possible implications on the success of the offer on the situation
financial of the offeror and possible financing of the offer;
i) [...];
j) [...];
l) [...];
m) [...];
n) The proposed compensation in the event of the removal of the rights by
force of the rules laid down in Article 182, indicating the form of
payment and the method employed to determine its value;
o) The national legislation that will be applicable to contracts concluded
between the offeror and the holders of securities of the society
targeted, following the acceptance of the offer, as well as the courts
competent to address the disputes of those emerging;
p) Any charges to be borne by the recipients of the offer.
2-[...].
Article 173.
[...]
1-[...].
2-[...].
3-To the public takeover bid launched only on securities
other than shares or securities that confer right to their
subscription or acquisition do not apply the rules regarding the advertisement
preliminary, to the duties of information on transactions carried out, to the
duties of the issuer, the competing offer and the public takeover offer
mandatory.
Article 175.
[...]
1-[...].
2-[...]:
a) [...];
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b) [...];
c) To inform the representatives of their employees or, in their absence,
the workers on the contents of the offer documents thus
that these are made public.
Article 176.
[...]
1-[...]:
a) [...];
b) [...];
c) [...];
d) [...];
e) [...];
f) [...];
g) The summary enunciation of the objectives of the offeror, specifically
as to the continuity or modification of the business activity of the
the target society, of the offeror, to the extent that it is affected by the
offer, and, on the same terms, by societies that with these
are in relation to domain or group;
h) The status of the offeror as to the matters referred to in the article
182. and Article 182 (1)-A.
2-[...].
Article 178.
[...]
1-[...].
2-The preliminary announcement and the announcement of release of public offering of
acquisition whose counterpart consists in securities other than
are issued by the offeror must also indicate the elements
relating to the issuer and the securities by this issued or the
issue, which are referred to in Article 176 and in paragraph 1 of Article 183.
14
Article 180.
[...]
1-[...].
2-[...].
3-Should the acquisitions referred to in the preceding paragraph occur:
a) Within the framework of voluntary public procurement offers, the CMVM
may determine the revision of the counterpart if, by effect of those
acquisitions, the counterpart does not show itself to be equitable;
b) Within the framework of mandatory public procurement offers, the offeror
is obliged to increase the counterpart for a non-lower price
at the highest price paid for the securities thus
acquired.
Article 181.
[...]
1-The governing body of the vised company shall, within eight
days from the receipt of the draft prospectus and announcement projects
launch and, as soon as possible, after the disclosure of the addendum to the
offer documents, send to the offeror, to the CMVM and disclose to the
public a report drawn up pursuant to Art. 7 on the
opportunity and the conditions of the offer.
2-The report referred to in the preceding paragraph shall contain an opinion
autonomous and reasoned on, at least:
a) The type and amount of the counterpart offered;
b) The strategic plans of the offeror for the vised society;
c) The repercussions of the offer on the interests of the vised society, in
general. and, in particular, in the interests of its employees and in the
your working conditions and at the places in which the society exercises
their activity;
d) The intention of the members of the board of directors who
simultaneously be shareholders of the vised company, as to the
acceptance of the offer.
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3-[ Previous Article No 2 ]:
a) [...];
b) [...];
c) To inform the representatives of their employees or, in their absence,
the workers on the contents of the offer documents and the
report per se drawn up, as soon as these are made public;
d) [...].
4-If, until the beginning of the offer, the board of directors receives from the
workers, directly or through their representatives, a
opinion as to the repercussions of the supply at the employment level, it must
carry out its disclosure in apenso to the report by you elaborated.
Article 182.
[...]
1-[...].
2-[...]:
a) [...];
b) [...];
c) The limitation extends to the acts of enforcement of decisions taken
before the period mentioned there and that they have not yet been partial
or fully executed.
3-[...]:
a) [...];
b) [...];
c) The acts aimed at the search for competing bidders.
4-During the period referred to in paragraph 1:
a) The advance notice of the notice of convocation of
general assembly is reduced to 15 days;
b) The deliberations of the general meeting provided for in the b) from the
previous number, as well as those regarding early distribution
of dividends and other income, can only be taken
by the majority required for the amendment of the bylaws.
5-[...].
16
6-The scheme provided for in this article shall not apply to public offers of
acquisition directed by offeror companies that are not subject to the
same rules or that are dominated by society that does not subject itself
to the same rules.
7-In the societies adopting the model referred to in point (c) of paragraph 1 of the
Article 278 of the Code of Commercial Societies, the n. 1 a 6
apply, with the necessary adaptations, to the board of
executive management and the general and supervisory board.
Article 185.
[...]
1-[...].
2-A competing offer is to be launched by the day before that in which
end the term of the initial offer.
3-Can't launch a competing offer to people who are with the
initial offeror or with previous competing bidder in some of the
situations provided for in Article 20 (1), except for permission of the CMVM to
grant case the situation determining the imputation of voting rights
cesse before the registration of the offer.
4-A The counterpart of the competing offer must be superior to the antecedent in
at least 5% of its value and may not contain conditions that make it
less favorable.
5-A competing offer cannot make it dependent on its effectiveness of a
percentage of acceptants by holders of securities or of
voting rights in quantity higher than the constant of the initial offer or
of previous competing offer, save if, for the purposes of the previous number,
that percentage is justified in the function of voting rights in the
target society already held by the offeror and by persons who with this
are in some of the situations provided for in Article 20 (1).
6-[ Previous Article No 5 ].
Article 188.
[...]
17
1-[...].
2-[...].
3-A counterpart, in cash or in securities, proposed by the
offeror, is presumed not to be equitable in the following situations:
a) If the highest price has been fixed by agreement between the
acquirer and the alienant through private trading;
b) If the securities in question present reduced liquidity
by reference to the regulated market in which they are
admitted to trading;
c) If it has been fixed on the basis of the market price of the values
Securities in question and that or the regulated market in
that these are admitted to have been affected by
exceptional events.
4-A decision of the CMVM on the designation of independent auditor for
the setting of the minimum counterpart, as well as the value of the counterpart
as soon as fixed by the one, they are immediately released to the public.
5-A The counterpart may consist of securities, if these are from the
same type as those targeted in the offer and are admitted or are
of the same securities category of proven liquidity
admitted to trading on regulated market, provided that the
offeror and people who with it are in some of the situations of the n. 1
of Article 20 do not have, in the six months prior to the announcement
preliminary and up to the closing of the offer, acquired more than 5% of the
social capital of the society targeted with payment in cash, case in
that is to be presented counterpart in cash.
Article 190.
[...]
1-The duty to launch public takeover bid is suspended if the
person to him thank you, in written communication addressed to the CMVM,
immediately after the occurrence of the constitutive fact of the duty of
launch, if it obliges to put an end to the situation in the subsequent 120 days.
18
2-[...].
3-[...].
Article 191.
[...]
1-A The publication of the preliminary announcement of the offer is expected to occur
immediately after the verification of the constitutive fact of duty of
launch.
2-[...].
Article 194.
[...]
1-Who, in the wake of the launch of public offering for general acquisition
in which open society is targeted that has as a personal law the law
Portuguese, reach or exceed, directly or under the terms of paragraph 1 of the
article 20, 90% of the voting rights corresponding to the social capital
until the clearance of the results of the offer and 90% of the voting rights
covered by the offer, may, in the subsequent three months, acquire the
remaining shares by way of fair consideration, in cash,
calculated in accordance with Rule 188.
2-If the offeror, as a result of the acceptance of public takeover offer
general and voluntary, acquire at least 90% of the representative shares
of social capital with voting rights covered by the offer, presumed
that the counterpart of the offer corresponds to a fair counterpart of the
acquisition of the remaining shares.
3-[ Previous Article No 2 ].
4-[ Previous Article No 3 ].
5-[ Previous Article No 4 ].
Article 195.
[...]
19
1-[...].
2-[...].
3-[...].
4-A The acquisition implies, in immediate terms, the loss of the quality of
open society of society and the exclusion of trading on market
regulated in the actions of the company and the securities that the
they give it right, becoming vetted for readmission for a year.
Article 196.
[...]
1-Each of the holders of the remaining shares may, in the three months
subsequent to the finding of the results of the public offering of
acquisition referred to in Article 194 (1), exercise the right to divest
potent, owing before, to the effect, to direct in writing to the partner
dominant invitation so that, within eight days, it will make it a proposal to
acquisition of its shares.
2-[...]:
a) [...];
b) Indication of the counterpart calculated in the terms of paragraphs 1 and 2 of the
article 194 para.
3-[...].
4-[...].
Article 393.
[...]
1-[...]:
a) [...];
b) [...];
c) [...];
d) [...];
e) [...];
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f) The omission of disclosure of the approval of statutory changes
for the purposes of the voluntary suspension of effectiveness of restrictions
transmissive, of the right to vote and of designation rights and of
removal of holders of social organs.
2-[...]:
a) [...];
b) [...];
c) [...];
d) [...];
e) [...];
f) [...];
g) [...];
h) [...];
i) [...];
j) [...];
l) Of the duty to increase the counterpart to a non-lower price
to the highest price paid for the securities purchased in
transaction carried out in the pendency of public takeover bid
mandatory.
3-[...]:
a) [...];
b) [...].
4-[...]:
a) [...];
b) [...];
c) [...];
d) The violation, on the part of the society targeted in public offering of
acquisition, of the duty to publish report on the offer and of the
send to CMVM and the offeror, of the duty to inform the CMVM
about transactions conducted on securities that are
object of the offer, of the duty to inform the representatives of the
workers or, in their absence, the workers themselves on the
content of the offer documents and the report by you elaborate
and of the duty to disclose the opinion as to the repercussions of the offer to
21
level of employment that is prepared by the workers;
e) [...];
f) [...];
g) [...];
h) The violation, by the offeror or by persons who with this are in
any of the situations provided for in Article 20, of the prohibition of
trading outside of regulated securities market
of the category of those who are the subject of the offer or of those who integrate the
counterpart without prior authorisation from the CMVM;
i) The violation, by the offeror or by persons who with this are in
any of the situations provided for in Article 20, of the duty of
communication to the CMVM of transactions carried out in the pendency of
public takeover offer;
j) The violation, on the part of the offeror society, of the duty to inform
the representatives of the workers or, in the absence of these
workers on the content of the offer documents.
5-Constitute counterordinance less serious the omission of communication to the
CMVM of particular supply of distribution. "
Article 2.
Addition to the Securities Code
They are deferred to the Securities Code the articles 20-A, 145.-A, 147.
182.-A, 185.-A, 185.-B and 245.-A, with the following wording:
" Article 20.
Imputation of voting rights relating to integral shares of bodies
of collective investment, pension funds or portfolios
1-For the purposes of paragraph 3 of the previous article, the society which exercises dominance
about the managing entity or about the financial intermediary leaves from
benefit from the waiver of imputation of voting rights if any
behavior, albeit omissivo, to reveal that voting rights are
exerted in the interest of that society, what is presumed to exist
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particularly if this:
a) To interfere through instructions, direct or indirect, on the
exercise of the right to vote inherent in the integral shares of the
investment fund, from the pension fund, from the capital fund
of risk or of the portfolio;
b) Failing to reveal autonomy of decision-making processes or sufficient
distinction of persons with decision-making skills;
c) Count as your voting rights, particularly in the
information that will pay to the public or through messages
advertising.
2-As soon as, in the terms of the preceding paragraph, it detects a missing situation
of independence of the managing entity or of the financial intermediary who
involve a qualified participation in open society, and without
injury to the sanctionatory consequences that to the case kayak, the
CMVM informs the market and notifies this fact the president of the table
of the general meeting, the body of administration and the supervisory body
of the participating society.
3-A CMVM statement implies the immediate imputation of all the
voting rights inherent in the actions that integrate the fund of
investment, the pension fund, the venture capital fund or the
portfolio, while the cessation of the situation is not demonstrated that
determined the lack of independence, with the respective consequences,
and must still be communicated to the participants or customers of the
gestora entity or financial intermediary.
4-The presumptions referred to in paragraph 1 may be illiated, in the face of the CMVM,
through the demonstration that the entity gestures or the intermediary
financial under their domain exercise the voting rights of form
independent.
5-Before issuing the statement provided for in paragraph 2, the CMVM gives
knowledge of the same to the Insurance Institute of Portugal whenever
refer to pension funds.
Article 145-The
Competent authority in public procurement offers
23
1-A CMVM is competent for the supervision of public offerings of
acquisition that are for the subject of securities issued by
companies subject to Portuguese personal law, provided that the values
object of the offer:
a) Be admitted to trading on regulated market
situated or operating in Portugal;
b) They are not admitted to the trading on regulated market.
2-A CMVM is also competent for the supervision of offers
public acquisition of securities in which it is targeted
society subject to foreign personal law, provided that the values
securities the subject of the offer:
a) Be exclusively admitted to trading on market
regulated situated or operating in Portugal; or
b) Not being admitted to trading in the member state where to
situates the registered office of the issuing company, have been admitted to the
trading on regulated market situated or operating in
Portugal in the first place.
3-If admission to the trading of the securities subject of the offer is
concurrent in more than a regulated market of diverse
Member states not including the member state where the seat is located
of the issuing company, the issuing company chooses, on the first day of
negotiation, the competent authority for the supervision of the offer of between
the authorities of these member states and communicates that decision to the
regulated markets in question and the respective authorities of
supervision.
4-When the CMVM is competent in the terms of the preceding paragraph, the
decision of the society is disclosed in the information diffusion system
of the CMVM.
Article 147-The
Mutual recognition
1-The prospectus of public offering for the acquisition of securities
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admitted to trading on regulated market situated or the
operate in Portugal, approved by competent authority of another
Member state is recognized by the CMVM, provided that:
a) Be translated into Portuguese, without prejudice to the provisions of paragraph 2
of Article 6;
b) Be made available to the CMVM a certificate, issued by the
competent authority responsible for the approval of the prospectus,
in how this complies with the Community and national provisions
relevant, accompanied by the approved prospectus.
2-A CMVM may require the introduction of supplementary information that
decoration of specificities of the Portuguese regime and respect the formalities
relating to the payment of the counterpart, the acceptance of the offer and the
tax regime to which this becomes subject.
Article 182-The
Voluntary suspension of effectiveness of transmissive and voting rights restrictions
1-Societies subject to Portuguese personal law may provide for
statutorily that:
a) The restrictions, provided for in the bylaws or in parassocial agreements,
referring to the transmission of shares or other securities
that give right to your acquisition gets suspended, not producing
effects in relation to transmission arising from the acceptance of the offer;
b) The restrictions, provided for in the bylaws or in parassocial agreements,
referring to the exercise of the right to vote shall be suspended, not
producing effects at the general meeting convened pursuant to the
point ( b) of paragraph 3 of the preceding Article;
c) When, in the sequence of public takeover bid, be reached
at least 75% of the social capital with the right to vote, to the offeror
the restrictions on transmission and law are not applicable
of the vote referred to in the above points, nor can they be exercised
special rights of designation or removal of members of the
body of administration of the target society.
2-The statutes of open companies subject to Portuguese personal law that
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do not fully exercise the option mentioned in the previous number do not
may make the change or elimination of the restrictions depend
referring to the transmission or exercise of the right to vote of quorum
deliberative more aggravated than the one concerning 75% of the votes
issued.
3-The statutes of open companies subject to Portuguese personal law that
to exercise the option mentioned in paragraph 1 may provide for the scheme
predicted not to be applicable to public takeover bids directed by
offeror companies that are not subject to the same rules or that
are dominated by a society that does not subject themselves to the same
rules.
4-The offeror is responsible for the damage caused by the suspension of
effectiveness of fully disclosed parassocial agreements to date of
publication of the preliminary announcement.
5-The offeror is not liable for the damage caused to the shareholders who
have voted in favour of the statutory amendments for the purposes of the
n. 1 and the people who with them find themselves in some of the relationships
provided for in Article 20.
6-A approval of statutory amendments for the purposes of paragraph 1 by
companies subject to Portuguese personal law and by issuing companies
of securities admitted to trading in market
national regulated shall be disclosed to the CMVM and, pursuant to the
article 248, to the public.
7-The statutory clauses referring to the suspension of effectiveness of restrictions
relating to the transmission and the right to vote referred to in paragraph 1 only
you can invigorate for a maximum term of 18 months, being renewable
through new deliberation of the general assembly, passed in the terms
legally provided for the amendment of the bylaws.
8-The provisions of this Article shall not apply in the case of a State
member shall be a holder of securities of the vised company who
check out special rights.
Article 185-The
Process of competing offers
26
1-The competing offers are subject to the general rules applicable to the
public takeover bids, with the constant changes of the figures
following.
2-When the preliminary competing offer announcement is published in
moment prior to the registration in the CMVM of the initial offer, the deadline of
offers must be coincidental, save if the such an obstares the circumstances
concrete of the offers in question.
3-When the preliminary announcement of the competing offer is published after
the registration of the initial offer or previous competing offers, are
reduced to eight days and four days, respectively, the deadlines
set at the point b) of Article 175 (2) and in Article 181 (1)
4-The application for a competing offer registration is dismissed by the CMVM if
this entity shall conclude, depending on the date of the submission of the application for
registration of the offer and the examination of the latter, by the impossibility of
decision in time permitting the timely launch of the offer, from
agreement with the one set out in paragraph 2 of the preceding Article.
5-With the launch of competing offer, the time frame of the initial offer and of
previous competing offers is extended until the deadline
of that offer.
Article 185-B
Rights of previous offerors
1-The launch of competing offer confers on the previous offerors the
right to proceed to the review of the terms of its offer,
regardless of whether or not it has done so under Rule 184.
2-Case intends to exercise the right referred to in the preceding paragraph, the offeror
communicates its decision to the CMVM and publishes an announcement within
four working days from the launch of the competing offer,
considering for all the effects, in the absence of that publication, that
maintains the terms of its offer.
3-The revision of the previous offer shall apply to the provisions of paragraph 4 of the article
185.
27
4-A revision of the previous offer by virtue of the bid launch
competitor does not constitute grounds for extension of the deadline of this
last offer.
5-The launch of competing offer constitutes grounds for revocation
of voluntary offers pursuant to Rule 128.
6-A The decision to revocation is published as soon as it is taken, owing to it
up to four days from the launch of the competing offer.
Article 245-The
Annual information on government of societies
1-The issuers of shares admitted to trading on market
regulated discloses, in chapter of the annual management report
specially drawn up for the purpose or in attachment to this, the following
detailed information on the structure and practices of societarium government:
a) Capital structure, including indication of the unadmit-granted shares
to the negotiation, different categories of shares, rights and duties
inherent in the same and percentage of capital that each category
represents;
b) Possible restrictions on the transmissibility of the shares, such as
consent clauses for divestance, or limitations to the
entitlements of shares;
c) c) Qualified participants in the social capital of society;
d) Identification of shareholders holding special rights and
description of these rights;
e) Control mechanisms foreseen in an eventual system of
participation of workers in the capital in the extent to which the
voting rights are not exercised directly by these;
f) Any restrictions on the right to vote, such as
limitations to the exercise of the vote dependent on the entitlement of a
number or percentage of shares, deadlines imposed for the
exercise of the right to vote or to highlight systems of rights of
heritage content;
g) Parassocial agreements that are of the knowledge of society and
28
may lead to restrictions on the transmission of values
securities or voting rights;
h) Rules applicable to the appointment and replacement of members of the
body of administration and the amendment of the statutes of the society;
i) Powers of the governing body, particularly in respect of
the deliberations of raising the capital;
j) Significant agreements that the society is a party to and enter
in force, be changed or cease in the event of a change of
control of the society following a public offer of
acquisition, as well as the respective effects, save if, by its
nature, the disclosure of the same is seriously detrimental to
the society, except if the society is specifically obliged to
to disclose such information by virtue of other legal imperatives;
l) Agreements between the society and the holders of the governing body
or workers who provide for compensation in the event of a request
of dismissal of the worker, dismissal without just cause or
termination of the employment relationship following a public offer
of acquisition;
m) Internal control and risk management systems implemented
in society.
2-The issuers of shares admitted to trading on market
regulated subject to Portuguese personal law discloses the information
on the structure and practices of socieage-government in the defined terms
in CMVM regulation, where it integrates the information required in the
previous number.
3-The governing body of issuers of shares admitted to the
trading on regulated market subject to Portuguese personal law
presents annually to the general meeting an explanatory report of the
matters referred to in paragraph 1. "
Article 4.
Transitional law
1-If the securities have been simultaneously admitted to trading in
29
more than one regulated market, not including the member state in which if
it situates the registered office of the issuing company, at the date of the entry into force of this Decree-
law, the competent authorities of the member states of the markets concerned
decide which authority is competent for supply supervision concerning the
same values, within a period of four weeks from the aforementioned date.
2-In the lack of a decision on the part of the supervisory authorities, the authority
competent, from among the same, is chosen by the issuing company, in the first
trading day after the term of the deadline set in the preceding paragraph,
applicable the provisions of Article 145 (4) of the Securities Code,
in the wording introduced by the present decree-law.
3-If, by effect of the entry into force of the new paragraph (h) of Article 20 (1) of the
Code of Securities, in the wording introduced by this Decree-law,
someone surpasses one of the limits provided for in Article 187 of the same Code:
a) Shall proceed with the performance of the duty of communication provided for in the article
16. of the Securities Code within ten days;
b) Must proceed to the launch of public takeover offer within 180
days, if in the meantime they do not cum the ground of the threshold outmowing
relevant, particularly through the disposal of the securities
surplus to third party that with it does not find itself in any of the situations
provided for in Article 20 (1) of the Securities Code, in the
wording introduced by the present decree-law.
4-For the purposes of Article 182 (2)-A of the Securities Code, in the
wording introduced by the present decree-law, the restrictions regarding transmission
or to the exercise of the right to vote for open companies subject to personal law
Portuguese that at the date of entry into force of this decree-law do not have
taken the option referred to in paragraph 1 of the same article, they pass on power to be changed or
eliminated since respected the deliberative quorum of 75% of the votes issued.
Article 5.
Application in time
Without prejudice to the provisions of the preceding Article, the provisions of this decree-law shall not be
applies to public takeover bids whose preliminary announcement has been made
public at a date prior to the entry into force of this decree-law, nor to offers
30
competitors from those.
Seen and approved in Council of Ministers of
The Prime Minister
The Minister of State and Foreign Affairs
The Minister of State and Finance
The Minister of Justice