TABLE OF CONTENTS Contents 0 Summary of the Portuguese Tender Offer Provisions 1 Relevant Provisions of the Portuguese Securities Code 5 21 Decree Law No. 486/99 of 13 November, as amended Applicable to Tender Offers of Securities 2 Relevant Provisions of CMVM Regulation No. 3/2006, Applicable to Tender Offers of Securities 59 3 Contents of the Prospectus of a Tender Offer of Securities (Schedule II of CMVM Regulation No. 3/2006) 4 Tender Offer Triggering Events 5 OPA Calendar 6 Competition Issues Summary 7 Rights Granted to Listed Companies Shareholders 65 71 73 77 85 under Corporate and Securities Laws 8 Poison Pills in Portugal 9 Information on the Identity of Shareholders of Listed Companies 10 Recent Developments 93 97 103
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0 Summary of the Portuguese Tender Offer Provisions 0.1 Introduction The rules applicable to public tender offers in Portugal are contained in the Portuguese Securities Code ( Código dos Valores Mobiliários ), which has been recently amended as a result of the implementation of Directive 2004/25/EC of the European Parliament and of the Council of 21 April 2004 on tender offers and in the Regulation 3/2006 issued by the Portuguese Securities Market Commission ( Comissão do Mercado dos Valores Mobiliários, hereinafter referred to as the CMVM ). The Securities Code sets out general provisions applicable to all kinds of public offers, offers of subscription and sale and tender offers (contained in articles 108 to 155) and specific provisions only applicable to tender offers, including squeeze out rules (contained in articles 173 to 197). The relevant legal rules are reproduced in part 1 below. The CMVM is the authority empowered to supervise public offers and also has regulatory powers. Its Regulation 3/2006 develops some of the legal provisions and includes additional rules applicable to tender offers. The relevant provisions of this Regulation are reproduced in part 2 below. The mandatory contents of the prospectus of tender offers are included in an Annex of the above mentioned CMVM Regulation, reproduced in part 3 below. 0.2 Application of the tender offer rules Under the Securities Code, all offers of securities addressed, in whole or in part, to unidentified addresses are considered as public offers of securities. In addition, the Securities Code sets out that whenever an offer to acquire securities (i) takes place through multiple standard communications (even if addressed to identified addresses), (ii) is addressed to all shareholders of a public company, (iii) is preceded or accompanied by prospecting or solicitation of investors or by use of advertising or (iv) is addressed to more than 100 non-qualified investors with a residence or establishment in Portugal, this offer is considered as a public offer and, in consequence, must comply with the tender offer rules. Notwithstanding, the above tender offer rules are not applicable where an offer to acquire securities is made through a market registered with the CMVM and is not preceded by public prospecting or solicitation or by any means of advertising other than the market s own channels of communication. In accordance with Articles 108 and 145-A of the Securities Code, as amended following implementation of the public tender offers Directive, (i) the law of the Member State of the competent authority supervising the offer shall be applicable to matters relating to the consideration proposed, the tender offer procedures, the contents of the prospectus and the disclosure of the offer and (ii) the law of the Member State governing the target company shall be applicable to matters relating to the information to be provided to employees of the target company, the percentage of voting rights that constitutes control, the derogations and exemptions to the obligation to launch a tender offer and limits on the powers of the Board of Directors of the target company. 5
As a general rule, the CMVM shall be the competent authority to supervise public tender offers over securities issued by companies governed by Portuguese law, provided those securities are admitted to trading on a Portuguese regulated market or are not listed on any regulated market. The above regime, means that, in general terms, the provisions set out in the Securities Code and in the complementary regulations are applicable to public tender offers for securities issued by a Portuguese target company. Tender offers can be voluntary or mandatory (if certain thresholds are met, as described below). This summary only refers to tender offers for shares or securities which grant the right to the subscription or acquisition of shares, although other types of securities such as bonds and units of investment funds may be the object of a tender offer. 0.3 Presentation and procedures for a public tender offer 0.3.1 Publication of a preliminary announcement As soon as the resolution to launch a tender offer is taken by the empowered corporate body of the Offeror (normally, the Board of Directors), the Offeror must immediately publicly disclose the preliminary announcement of the tender offer. The tender offer procedure starts with such disclosure. Until the publication of this announcement, all persons involved in the preparation of the offer are subject to a duty of confidentiality. The transmission of this privileged information or its utilisation for dealing constitutes a crime of insider dealing. The statutory contents of the preliminary announcement are set forth in Article 176 of the Securities Code. In addition, the determination of a maximum or minimum limit on the quantity of securities to be acquired and the subjection of the offer to any conditions are only effective if they are contained in the preliminary announcement. The publication of the preliminary announcement obliges the Offeror (i) to launch the offer on terms no less favourable to the addressees than those contained in this announcement, (ii) to apply for registration of the offer within a period of 20 days, extendable by the CMVM for up to 60 days for public offers for exchange and (iii) to inform the employees representatives, or in their absence the employees, of the contents of the offer documents as soon they become public. 0.3.2 Registration procedure with the CMVM Public tender offers are subject to prior registration with the CMVM. The registration filing with the CMVM must contain several documents relating to the Offeror, the target company and the tender offer itself (project of the offer announcement and the prospectus). The CMVM s decision to grant or refuse the registration must be taken within 8 days of filing all the required documents (or, if additional information is requested by the CMVM, from the delivery of such information), otherwise the registration shall be considered as implicitly refused. 6
Registration with the CMVM implies the approval of the tender offer prospectus and is based on legal criteria. Approval of the prospectus and registration does not involve any guarantee as to the content of information, the Offeror s, issuer s or guarantors economic and financial situation, the feasilibility of the tender offer or the quality of the securities which are the object of the offer. 0.3.3 Launch of the tender offer The tender offer is launched through the publication of the final offer announcement (with contents similar to the preliminary announcement and contents set forth in Article 183-A of the Securities Code) by means of communication with wide diffusion in Portugal and by a mean of communication determined by the management entity of the regulated market where the securities target are traded and the simultaneous disclosure of the prospectus, previously approved by the CMVM as part of the registration procedure. 0.3.4 Prospectus The prospectus must be disclosed simultaneously and through the same means of disclosure as the offer announcement. The prospectus must have the contents set out in part 3 below. The above mentioned offer documents must be disclosed within a reasonable period from the notification of the registration granted by the CMVM. 0.3.5 Offer period The offer period can vary between 2 and 10 weeks. The CMVM, on its own initiative or at the request of the Offeror, can extend the offer period in the case of revision, launch of a competing offer or when protecting of the interests of the addressees so justifies. 0.3.6 Assessment of the outcome and settlement At the end of the offer period, the tender offer outcome is immediately assessed, commonly by a special stock exchange session, and publicly disclosed. After the assessment of the outcome and if the offer has a positive outcome, cash tender offers will be settled as ordinary stock exchange sale and purchase transactions three business days after the special session of the stock exchange. If the consideration for the tender offer consists of securities, the tender offer will be settled pursuant to the rules set out in the prospectus. 0.3.7 Limitation on new tender offers Except for express authorisation granted by CMVM, neither the Offeror nor its connected entities under Article 20 of the Securities Code can, within 12 months following the publication of the assessment of the offer's outcome, launch, either directly or through a third party or for the account of a third party, any tender offer for securities of the same class as those that were the object of the offer or which grant the right to its subscription or acquisition of securities of the same class. 7
0.4 Consideration for the tender offer The consideration for the tender offer may be either (i) cash, (ii) securities already issued or to be issued or (iii) a combination of both. Only securities admitted to trading on a regulated market or securities of the same class may be offered as consideration. If the consideration is paid in cash, the Offeror must deposit the total amount in a financial institution or present an adequate bank guarantee before registration of the offer with the CMVM. If the consideration consists of securities already issued, these securities must be blocked in an account of a financial intermediary before registration of the offer with the CMVM. If the consideration consists of securities to be issued by an entity other than the Offeror, the latter must ensure the issuance of these securities. 0.5 Conditions of the tender offer Tender offers can only be subject to conditions that correspond to a legitimate interest of the Offeror and do not affect the normal functioning of the market. Conditions whose verification depends on the Offeror are not allowed. The most common conditions to which tender offers are subject to are: (i) (ii) (iii) the determination of minimum thresholds of acceptance, i.e. in voluntary tender offers the Offeror may make the tender offer conditional on receiving acceptances representing at least a specified percentage of its share capital; the determination of a maximum quantity of securities to be acquired, i.e. in voluntary tender offers the Offeror may fix a maximum number of securities to be acquired. In this case, the Offeror s connected entities under Article 20 of the Securities Code cannot accept the tender offer; and obtaining the necessary authorisations from the qualified authorities, such as the relevant competition authorities. 0.6 Revision and withdrawal of the tender offer The Securities Code aims to ensure that tender offers are characterised by a high degree of certainty and any improvement in their terms or their withdrawal can only occur within the strict limits legally set out. As mentioned above, the publication of the preliminary announcement obliges the Offeror to launch the tender offer in terms no less favourable to the addressees than those contained in this announcement. 0.6.1 Revision After the launch of the tender offer, the Offeror may review the nature or the amount of the consideration at any time prior to the last five days of the tender offer s period. The consideration of the revised tender offer shall be at least 2% higher than the value of the consideration previously offered. 8
Besides a review of the consideration, other improvements and amendments of the tender offer are subject to prior authorisation by the CMVM and, as a general rule, should imply a more favourable treatment of the addressees of the tender offer. The amendment of the tender offer determines the extension of its offer period decided by CMVM on its own initiative or at the request of the Offeror. The declarations of acceptance of the tender offers prior to its amendment are deemed to be effective for its revised version. Any amendment must be advertised immediately using the same means applied in the disclosure of the offer announcement. 0.6.2 Withdrawal When there is an unforeseeable and material change in the circumstances that the investors know determined the decision of the Offeror to launch the tender offer, exceeding its inherent risks, the Offeror may, within a reasonable period and with the CMVM s authorisation, withdraw its tender offer. The withdrawal of the tender offer shall be advertised immediately in the same way as the offer announcement was disclosed. 0.7 Transactions over the securities which are the object of the tender offer From the disclosure of the preliminary announcement and until the assessment of the offer's outcome, the Offeror and its connected entities under Article 20 of the Securities Code: (i) (ii) cannot trade, outside a regulated market, securities of the same class as those which are the object of the offer or as those which comprise the consideration, unless authorised by the CMVM with a prior report of the target company; and shall inform the CMVM daily of the transactions carried out by each of them in relation to the securities issued by the target company or of the same class as those which comprise the consideration. Acquisitions of securities of the same class as those which are the object of the offer or as those which comprise the consideration, carried out after the publication of the preliminary announcement, are counted towards the calculation of the minimum amount which the Offeror intends to acquire. Where such acquisitions occur (i) within a voluntary tender offer, the CMVM may determine the review of the consideration if, due to the acquisitions carried out, the initial consideration does not appear reasonable or (ii) within a mandatory tender offer, the Offeror is obliged to increase the consideration to a price not below the highest price paid for the securities thus acquired. 0.8 Limitations on the conduct of the Board of Directors of the target company 0.8.1 Board of Directors report concerning the tender offer The Board of Directors of the target company must send to the Offeror and to the CMVM and publicly disclose a report on the opportunity and conditions of the tender offer within eight days of the receipt of the draft public offer announcement 9
and draft of the prospectus or within five days of the disclosure of an amendment to the offer documents. This report should contain a substantiated and autonomous opinion on, at the least: i) the type and amount of consideration offered, (ii) the Offeror s strategic plans for the target company, (iii) the impact the offer will have on the target company generally, and, in particular, on the interests of the employees and their working conditions and the places at which the target company conducts business activity and (iv) the intentions of the members of the management body who are also shareholders of the target company on whether to accept the offer. This report should also mention any negative votes issued in respect of the resolution of the Board of Directors that approved such report. If, by the beginning of the offer, the Board of Directors receives, either directly from the employees or from the employees representatives, an opinion on the impact the offer will have on their employment, it must disclose this in an appendix to the report it has drawn up. 0.8.2 Application of the no-disturbance rule From the moment that the target company receives the preliminary announcement of tender offer for more than one third of the securities issued by it and until the assessment of the outcome of the tender offer or until the end of the tender offer s process, should this occur first (the relevant period for purposes of this rule), the Board of Directors must refrain from performing any act not included in the target company s everyday management that is liable to substantially change the target company s net asset situation and that may significantly affect the Offeror s objectives. The Securities Code considers the following, notably, as relevant changes in the target company s net asset situation: the issue of bonds and other securities which grant the right to their subscription or acquisition and the execution of agreements which aim to dispose of important parts of the company s corporate assets. The limitation extends to carrying out decisions taken before the relevant period and which have not yet been partially or completely carried out. However, the above mentioned rule is not applicable: (i) (ii) (iii) to acts that correspond to the fulfilment of obligations undertaken before the acknowledgement of the tender offer; to acts authorised by resolution of the shareholders general meeting exclusively convened for that purpose during the tender offer s relevant period; and to acts aimed at seeking competing tender offers. Within the relevant period, the period required to convene a shareholders general meeting is reduced to 15 days and shareholders resolutions that could lead to relevant changes in the target company s net asset situation and resolutions relating to the anticipated distribution of dividends and other earnings can only be taken by the majority required to modify the company s by-laws. This no disturbance rule is subject to a reciprocity principle in accordance with which the rule shall not apply to public tender offers launched by Offeror entities which are not subject to the same rule or are controlled by companies which are not subject to the same rule. 10
0.8.3 Other duties of the Board of Directors of the target company Additionally, from the disclosure of the preliminary announcement and until the assessment of the tender offer s outcome, the target company s Board of Directors must: (i) inform the CMVM daily about the transactions carried out by its members involving the securities issued by the target company or by connected entities under Article 20 of the Securities Code of the target company; (ii) provide all information requested by the CMVM while pursuing its supervision activity; (iii) inform the employees representative of the target company, or in its absence the employees, of the contents of the tender offer documents and of the report of the Board of Directors of the target company; and (iv) act in good faith, in particular with regard to the accuracy of information and honest conduct. 0.9 Breakthrough provisions In accordance with article 182-A of the Securities Code, introduced as part of the implementation of the Takeover Directive, companies governed by Portuguese law may set out in their by-laws that: (i) (ii) (iii) the restrictions established in their by-laws or shareholders agreements on the transfer of shares and other securities which grant the right to their subscription or acquisition shall be suspended and without effect on the transfer occurring uppon acceptance of a tender offer; the restrictions established in their by-laws or shareholders agreements on voting rights shall be suspended without effect on the general shareholders meeting that decides on any defensive measure as foreseen in paragraph 0.8.2. (ii)above; and where, following a tender offer, at least 75% of the share capital carrying voting rights is acquired, the restrictions on the transfer or on the voting rights referred to in (i) and (ii) above shall not apply and any special rights of appointment or removal from office of members of the Board cannot be exercised. Companies that opt-in, i.e. provide for breakthrough rules in their by-laws, may subject those rules to a reciprocity principle in accordance with which the rules shall not apply in the case of public tender offers launched by Offeror entities which are not subject to the same rules or are controlled by companies which are not subject to the same rules. The by-laws provisions that set out the breakthrough rules may be in force for a maximum period of 18 months and may be renewed by a new shareholders resolution approved under the terms legally in place to amend the by-laws. Companies that do not opt-in may not subject the elimination or amendment of the restrictions pertaining to transfer or exercise of the voting rights provided for in their bylaws to a shareholders resolution requiring a quorum higher than 75% of the votes cast. 0.10 Competing tender offers Competing tender offers are those that are presented by other bidders affecting securities listed on a regulated market that are the object of an existing tender offer (i.e. an offer for 11
which a preliminary announcement has been disclosed, regardless of whether registration with the CMVM and the formal launch of the offer have already occurred). 0.10.1 Conditions of a competing tender offer A competing tender offer must: (i) (ii) be launched before the fifth day prior to the end of the initial tender offer period (which requires that the preliminary announcement is disclosed some days in advance to allow the registration procedure with the CMVM to occur so as to meet this deadline); and include terms and conditions more favourable to the addressees than those of the initial tender offer. In particular, it should cover at least the same number of securities as the initial tender offer and should improve the value of the consideration, which has to be at least 2% above the consideration of the initial tender offer. With the launch of a competing offer, the period of all offers (i.e. the initial offer, the competing offer and any other competing offers already launched) shall be coincident. In a situation of competing offers, the addressees can freely revoke declarations of acceptance of the offers until the last day of the period of the offers. 0.10.2 Rights of the bidders The launch of a competing offer and the revision of any competing offer confer on any Offeror the right to revise the terms of its offer in accordance with the special rules on competing offers, regardless of whether or not it has made it in accordance with the general rules (see paragraph 0.6.1. above). These special rules grant to Offerors the right to review the terms and conditions of their offers (which must be more favourable to the addressees) and to improve the amount of the consideration, which should be at least 2% above the value of the consideration of the preceding offers. Within the 4 business days following the launch of a competing tender offer or the exercise of the right by an Offeror to review its offer, the other Offeror(s) may exercise their rights to review their offers, through information provided to the CMVM of this decision and publication of an announcement. It is considered, for all purposes, that failure to publish this intention means that the terms of the offer remain the same. Alternatively, the launch of a competing offer constitutes grounds for the revocation of preceding voluntary tender offers. The decision to revoke must be published within 4 days following the launch of the competing offer. 0.11 Mandatory tender offers For the purposes of these rules, references to a public company ( sociedade aberta ) are to a company whose share capital is wholly or partly held by the public due to the fact that (i) it raised capital from the public when incorporated or through a subsequent capital increase, (ii) it has or has had its ordinary shares listed on a regulated market operated in 12
Portugal, (iii) more than 10.00% of its ordinary shares have been offered to the public, for cash or securities, by one of its shareholders, (iv) it has demerged from a public company or (v) it has incorporated all or part of the assets of a public company through a merger. 0.11.1 Thresholds A holder of a stake exceeding, directly or indirectly, under the terms of Article 20 of the Securities Code, one third or half of the voting rights corresponding to the share capital of a public company is obliged to launch a tender offer for all shares and other securities issued by the target company that grant the right to subscribe or acquire its shares 1. Upon becoming obliged to launch a mandatory tender offer, a shareholder must publish or cause to be published immediately a preliminary announcement of the tender offer. The person so obliged can be replaced by another in the fulfilment of this obligation. It may not be mandatory to launch a tender offer when the entity exceeding the limit of one third of the voting rights evidences the absence of control or a group relationship with the target company to the CMVM. Any person who is exempted by the CMVM from making a mandatory tender offer must thereafter communicate to the CMVM each 1% increase in voting rights acquired and must make a tender offer upon acquiring a controlling position in the target company. 0.11.2 Calculation of voting rights connected entities One of the main legal provisions relevant to the tender offer regime concerns the calculation of voting rights and the determination of the entities that are considered to be connected entities. Under number 1 of Article 20 of the Securities Code, in addition to the voting rights attaching to the shares owned directly by an investor or to shares the investor has the usufruct, the following voting rights shall be taken into account when determining the qualifying holdings: (c) (d) (e) held by third parties in their own name, but on behalf of the investor; held by a company over which the investor has control or is in a group relationship; held by holders of voting rights with whom the investor has entered into an agreement governing the exercise of voting rights, except if, by virtue of this same agreement, the investor is bound to follow a third party's instructions; held by members of its management and statutory audit committees if the investor is a company; voting rights that the investor can acquire pursuant to an agreement executed with the respective shareholders; 1 The legal threshold of one third of the voting rights can be eliminated by the by-laws of a public company, if that company does not have shares or any other securities granting the right to their subscription or acquisition listed on a regulated market. 13
(f) (g) (h) (i) voting rights attaching to shares held as security for the benefit of the investor, or managed by or deposited with the investor, if the voting rights have been attributed to the investor; held by holders of voting rights that have granted the investor the power to exercise those voting rights at his discretion; held by holders of voting rights with whom the investor has entered into an agreement that aims to acquire control of the company or to frustrate a change of control or, by any other means, is an instrument of exercise of concerted influence over the target company; and attributable to any person or entity referred to in one of the previous paragraphs by application, with due adaptation, of the criteria referred to in paragraphs to (h). For the purposes of h) above, there is a legal presumption that all the agreements related to the transfer of shares issued by the company are considered an instrument of exercise of concerted influence over the target company. This presumption may be refuted before the CMVM if there is evidence that the existing relationship between the parties is independent of any influence, effective or potential, over the target company. For purposes of b) above, Article 21 of the Securities Code sets out that a relationship of control is deemed to exist between a physical or legal person and a company when, regardless of whether the domicile and head office is located in Portugal or abroad, that physical or legal person is able to exercise, directly or indirectly, a dominant influence over such company. In accordance with the legal criteria, control exists whenever a physical or legal person (i) holds the majority of voting rights, (ii) can exercise the majority of voting rights, according to the terms of a shareholders agreement or (iii) can appoint or dismiss the majority of the members of the board of directors or audit committee. A group relationship exists between two companies when the share capital of one is wholly held by the other, regardless of their head offices being located in Portugal or abroad. Specific rules apply to the attribution of voting rights attached to shares held by investment funds, pension funds and securities portfolios. 0.11.3 Consideration The consideration for a mandatory tender offer cannot be less than the highest of the following amounts: (i) (ii) the highest price paid by the Offeror or by any or its connected entities under Article 20 of the Securities Code for the acquisition of securities of the same class in the six months immediately prior to the date of publication of the preliminary announcement of the offer; or the average weighted price of these securities verified on a regulated market during the same period. If the consideration cannot be determined by reference to the above criteria, or if the CMVM understands that the consideration, in cash or in securities, proposed by the Offeror is not duly justified or equitable, being insufficient or excessive, the 14
minimum consideration will be calculated, at the Offeror s expense, by an independent auditor designated by the CMVM. There is a legal presumption that the consideration, in cash or in securities, proposed by the Offeror is not equitable in the following circumstances: (c) if the highest price paid has been determined through an agreement entered into between the purchaser and the seller in a private negotiation; if the securities have a reduced liquidity by reference to the regulated market on which they are admitted to trading; or if the consideration has been determined based on the market price of the securities in question and if that price or the regulated market on which they have been admitted to trading has been affected by exceptional circumstances. The consideration for a mandatory tender offer may consist of securities if they are of the same type as the securities targeted by the offer and are admitted to trading on a regulated market (or are of the same class as liquid securities admitted to trading on a regulated market). In any event, if the Offeror or its connected entities under Article 20 of the Securities Code, over the period of six months immediately prior to the date of publication of the preliminary announcement of the offer and until the end of the tender offer period, have acquired any shares of the target company with cash payment, the Offeror shall indicate an alternative in cash of an equivalent value. 0.11.4 Exemptions The obligation to launch a tender offer will not arise when the relevant threshold of voting rights is exceeded as a consequence of: (c) an acquisition as part of a public tender offer previously launched for all securities issued by the target company without any restriction on the quantity or maximum percentage of securities to be acquired and in compliance with the criteria applicable to the consideration for mandatory tender offers; the execution of a financial restructuring process within the scope of one of the types of company recovery provided under the law; or the merger of companies, if the resolution of the shareholders general meeting of the issuer company of securities in relation to which the offer is to be launched expressly provides that a duty to launch a tender offer would arise from the transaction. Whoever benefits from an exemption of the duty to launch a tender offer shall report to the CMVM the facts on which the exemption is based within 5 business days of their occurrence together with the related evidence. Exemption from the duty to launch a tender offer shall be decided by the CMVM at the request of the interested party and shall be immediately advertised. 15
0.11.5 Suspension The obligation to launch a tender offer may be suspended if the person who is subject to that duty communicates to the CMVM in writing, immediately after the duty arises, that it undertakes to remedy the situation that has triggered that duty within the subsequent 120 days. During this period it shall sell to any entity, other than a connected entity under Article 20 of the Securities Code, securities sufficient for its voting rights to be reduced below the triggering percentage and is restrained from exercising the voting rights and dividends related to the securities which exceed the relevant thresholds. 0.11.6 Breach of the obligation to launch a mandatory tender offer Breach of the obligation to launch a tender offer leads to an immediate inhibition of the exercise of voting rights and dividends relating to the shares that exceed the limit beyond which a launch would be mandatory. The inhibition of rights shall remain in force for 5 years, ceasing (i) with the publication of a preliminary announcement of a tender offer with a consideration not less than the one that would have been required if the duty had been carried out in due time and (ii) in relation to each share whose rights are restrained, at the moment of its sale to any entity other than a connected entity under Article 20 of the Securities Code. In addition, the entity is liable for the damages caused to the holders of securities in relation to which a tender offer should have been launched. 0.12 Squeeze out provisions 0.12.1 Threshold for compulsory acquisition Whosoever, following the launch of a public tender offer over securities issued by a public company, reaches or exceeds, directly or under the terms of Article 20 of the Securities Code, 90% of the voting rights corresponding to the share capital of the target company until the assessment of the outcome of the offer and 90% of the voting rights targeted by the tender offer may, within the following 3 months period, acquire the remaining shares. 0.12.2 Consideration The consideration for the compulsory acquisition must comply with the criteria applicable to the consideration for mandatory tender offers (see paragraph 0.11.3 above). Where the Offeror acquires, as part of a voluntary and general tender offer, at least 90% of the shares carrying voting rights of the target company which is the object of such offer, the consideration offered in the tender offer shall be presumed as a fair consideration for the acquisition of the remaining shares. 0.12.3 Compulsory acquisition procedures When the controlling shareholder takes the decision to implement the compulsory acquisition, it shall immediately disclose the preliminary announcement (with 16
contents similar to those for tender offers) on the CMVM website and publish it in the Euronext bulletin and in a Portuguese newspaper. Compulsory acquisition is subject to prior registration with the CMVM. For this to take place, the controlling shareholder must send to the CMVM the preliminary announcement together with a declaration from the depositary bank in which the total amount of the consideration will be deposited at the order of the holders of the outstanding securities. 0.12.4 Registration with the CMVM In general, the CMVM grants registration within 1 or 2 weeks (unless there are any issues with the consideration offered and the CMVM determines that these must be resolved by an independent auditor). The compulsory acquisition is effective as from its registration with the CMVM. The final announcement of the registration of the compulsory acquisition by the CMVM must be disclosed on the CMVM website and published in the Euronext bulletin and in a Portuguese newspaper. 0.12.5 Consequences of compulsory acquisition Compulsory acquisition implies, with immediate effect, (i) the loss of status of the target company as a public company and (ii) the immediate exclusion from listing on a regulated market of the target company s shares (and of its securities that grant the right to subscription or acquisition of shares, if applicable) with the possibility of readmission being prohibited for a period of one year. 0.12.6 Subsequent procedures of compulsory acquisition After the registration is granted, CMVM shall provide to the management entity of the Portuguese Clearing House ( INTERBOLSA ) or to the registering entity of the shares the necessary information for the transfer of shares between the securities accounts. If the securities are registered or deposited in a clearing house, which is mandatory for securities listed on regulated markets, INTERBOLSA must inform financial intermediaries that have outstanding securities registered or deposited in securities accounts opened with them to proceed with the transfer of those securities to the account of the Offeror, within a 10 business day period, and provide them with details of the deposit of the consideration for the shares acquired. After the expiration of this period, if there are still securities that have not been transferred to the Offeror s securities account, INTERBOLSA will proceed automatically with this transfer. 0.12.7 Compulsory sell-out Within the 3 months period following the assessment of the outcome of a tender offer as referred to in paragraph 0.12.1. above, any holder of the remaining shares can exercise its right of compulsory sell-out. For this to take place, it must previously make an invitation by written notice to the controlling shareholder so that, within 8 days, an acquisition proposal for its shares is submitted. If no proposal is submitted, or if the proposal offered is not satisfactory, a holder of the remaining shares may decide to compulsorily sell out its shares to the 17
controlling shareholder. For this purpose, a declaration must be sent to the CMVM together with (i) confirmation of the block of shares to be sold out and (ii) an indication of the consideration determined in accordance with the criteria set out in paragraph 0.11.3 above. Once the sale requirements have been verified by the CMVM, the sale is effective from the date the CMVM notifies the controlling shareholder of it. 18
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1 Relevant Provisions of the Portuguese Securities Code Decree Law No. 486/99 of 13 November, as Amended Applicable to Tender Offers of Securities Note: This English translation is provided for reference purposes only TITLE III Public offers CHAPTER I Common provisions SECTION I General principles Article 108. Applicable Law 1 Without prejudice to that established in paragraphs 2 and 3 of article 145, the provisions set out in the present section and the complementary regulations apply to public offers addressed specifically to persons resident or established in Portugal, whatever the offeror s and issuer's applicable law or the law applicable to the securities that are the object of the offer may be. 2 Regarding Tender Offers foreseen in article 145-A: The law of the Member State of the competent authority to supervise the offer shall be applicable to matters relating to the consideration proposed, the offer procedures, the contents of the offering prospectus and the disclosure of the offer; The law of the Member State which is the governing law of the issuer shall be applicable to matters relating to information to be provided to the target company employees, the percentage of voting rights which constitutes control, the derogations and exemptions to the obligation to launch a tender offer and the limits to the power of the Board of Directors of the target company. Article 109. Public offer 1 Offers of securities addressed, in whole or in part, to unidentified addressees are considered as public. 2 The uncertainty of the addressees is not prejudiced by the fact that the offer takes place through multiple standard communications, even if addressed to individually identified addressees. 3 Also considered public are: An offer addressed to all the shareholders of a public company, even if its share capital is represented by nominative shares; An offer that, in whole or in part, is preceded or accompanied by solicitation or a solicitation of investment intentions from unidentified addressees or advertising; 21
(c) Offers addressed to at least 100 non-qualified investors with residence or establishment in Portugal. Article 110. Private offers 1 The following are always considered private offers: The offers concerning securities addressed exclusively to qualified investors; The offers of subscription addressed by non public companies to the generality of their shareholders, except for those cases described in subparagraph b) of paragraph 3 of the above article. 2 Private offers made by public companies or companies with listed securities are subjected to subsequent communication to the CMVM for statistical purposes. Article 110. A Optional qualification 1 For the effects of that established in subparagraph c) of paragraph 3 of article 109, paragraph 3 of article 112 and paragraph 2 of article 134, the following entities are considered qualified investors if they register as such at the CMVM: Small and medium sized companies with registered office in Portugal whose latest individual or consolidated accounts meet at least one of the criteria stated in subparagraph b) of paragraph 2 of article 30, Individuals resident in Portugal who meet at least two of the following requirements: (i) They have carried out significant large-scale transactions in the securities market with an average of at least 10 transactions per quarter over the last four quarters; (ii) They have a securities portfolio totalling over 500,000; (iii) They provide or have been providing a service for at least one year in the financial sector in a professional capacity which demands a knowledge of securities investment. 2 The registered entities must inform the CMVM of any change in the abovementioned factors which affects their qualified status. 3 The entities registered under the terms of this article may cancel their enrolments at any time. 4 The CMVM regulations define how the registration is organised and functions, particularly the necessary details for the evidence that the requirements mentioned in paragraph 1 are met, as well as the procedures to be observed for the enrolment, modification and cancellation of registration. 22
Article 111. Scope 1 The following offers are excluded from the scope of application of the present Title: (c) (d) (e) (f) (g) (h) The public offers of distribution of securities not representative of share capital issued by a Member State or one of its regional or local authorities and the public offers of distribution of securities with an unconditional or irrevocable guarantee issued by one of the Member States or one of its regional or local authorities; The public offers of securities issued by the European Central Bank or by the central bank of one of the Member States; The offers on securities issued by an open-ended collective investment undertaking, made by the issuer or on its own account; The offers on a regulated market or multilateral trading system registered with the CMVM that are presented exclusively through that market or system s own means of communication and that are not preceded or accompanied by promotion or solicitation of investment intentions from unidentified addressees or advertising; The public offers of distribution of securities with nominal value equal to or higher than 50,000 or with the unitary subscription or sale price equal to or higher than that amount; The public offers of distribution of securities not representative of share capital issued by international public bodies which one or more Member States of the European Community are part of; The public offers of distribution of securities issued by regularly incorporated associations or by non-profit making organisations, recognised by a Member State, whose aim is to obtain the necessary means to carry out its non-profit making goals; The public offers of distribution of securities not representative of share capital issued in a continuous or repeated way by credit institutions provided that these securities: (i) (ii) (iii) (iv) Are not subordinated, convertible or exchangeable; Do not confer the right to acquire other types of securities and are not associated with a derivative instrument; Certify the reception of refundable deposits; Are covered by the Deposit Guarantee Fund established in the General Framework of Credit Institutions and Financial Companies or by any other deposit guarantee framework coming under Directive 94/19/EC of the European Parliament and of the Council of 30 May concerning deposit guarantee systems. (i) The public offers of distribution of securities with total value below 2,500,000, limit calculated for offers undertaken over a 12-month period; 23
(j) The public offers of distribution of securities not representative of share capital issued in a continuous or repeated way by credit institutions with total offer value below 50,000,000, limit calculated for offers undertaken over a 12-month period, provided that these securities: (i) (ii) Are not subordinated, convertible or exchangeable; Do not confer the right to acquire other types of securities and are not associated with a derivative instrument; (l) (m) (n) The public offers of subscription issued to replace shares of the same class already issued, if the issue of these new shares does not imply an increase in the issued capital; The tender offers of securities issued by collective investment bodies incorporated as a company; The public offers of debt securities issued for a period of less than a 12-month period. 2 For the effect of subparagraphs h) and j) of the above paragraph, issued in a continuous or repeated way is understood to involve at least two separate issues of securities of the same type and/or class over a 12-month period. 3 In cases of subparagraphs a), b), i) and j) of nº 1, the issuer reserves the right to prepare a prospectus which will come under the rules of this Code and its complementary regulation. 4 The CMVM must be informed of offers referred to in subparagraphs e), i) and l) of nº1, for statistical purposes. Article 112. Equality of treatment 1 Public offers must take place under conditions that ensure equal treatment to the addressees, without prejudice to that set out in paragraph 2 of article 124. 2 If the total amount of securities that are the object of declarations of acceptance by the addressees is greater than the amount of securities offered, the securities are allocated in proportion to the amounts of securities which sale or acquisition is requested by the addressees, except if another criteria is lawfully established or is not object of CMVM opposition within the prospectus approval. 3 When the present Code does not demand the preparation of a prospectus, the important and significant information supplied by an issuer or offeror addressed to qualified investors or special categories of investors - including information disclosed in the context of meetings connected to offers of securities must be disclosed to all the qualified investors or all the special categories of investors to which the offer is exclusively addressed. 4 When a prospectus has to be published, the information mentioned in the above paragraph must be included in this prospectus or in an appendix to this prospectus. 24
Article 113. Compulsory intermediation 1 Public offers for securities for which a prospectus is required must take place through a financial intermediary, who shall provide at least the following services: Assistance and placement, in public offers of distribution of securities; Assistance, from the preliminary announcement and receipt of the declarations of acceptance, in tender offers. 2 The duties referred to in the previous paragraph may be executed by the offeror when it is duly authorised to act as a financial intermediary. SECTION II Prospectus approval, registration and publicity Article 114. Prospectus approval and prior registration 1 Any prospectus for a public offer of distribution is subject to prior registration with the CMVM. 2 All tender offers are subject to prior registration with the CMVM. Article 115. Application 1 The application for registration or approval of the prospectus is submitted with the following documents: (c) (d) (e) (f) Copy of the resolution to launch the offer which was taken by the offeror's duly mandated bodies, and of the necessary management decisions; Copy of the issuer's by-laws; Copy of the offeror's by-laws; Up-to-date certificate of the offeror s company registration; Up-to-date certificate of the issuer s company registration; Copy of the issuer s management and financial reports, of the reports of the auditing body and legal certification of the issuer s accounts referring to the periods mentioned under the terms of EC Regulation number 809/2004 of the Commission of 29 April; (g) Report or statement from an auditor, prepared according to articles 8 and 9; (h) (i) (j) Identification code of the securities which are the object of the offer; Copy of the contract entered into with the financial intermediary assisting in the operation; Copy of the placement contract and the placement consortium contract, if applicable; 25
(k) (l) (m) (n) (o) Copy of the market placement contract, stabilisation contract and the greenshoe contract, if such contracts exist; Draft prospectus; Pro forma financial information, when required; Draft launch announcement, when required: Specialists reports, when required. 2 The filing of the above mentioned documents can be replaced by making reference to the fact that the CMVM already possesses updated versions of them. 3 The CMVM can request that the offeror, the issuer or any other person involved with those entities in one of the relationships described in paragraph 1 of article 20 submit the complementary information necessary for the analysis of the offer. Article 116. (Revoked with the implementation of the Prospectus Directive) Article 117. Lawfulness of the offer The offeror guarantees that the offer complies with all applicable legal dispositions and regulations, notably those concerning the lawfulness of its object, the securities transferability and issue if applicable. Article 118. Decision 1 The issuer must be informed that the prospectus has been approved, registered or refused: Within 8 days, in a tender offer; Within 10 working days, in public offers of distribution, except those of issuers who have never previously launched any public offer of distribution or admission to trading in a regulated market. In this case, the period is of 20 working days. 2 The above mentioned terms are valid from receipt of the application or the complementary information requested of the offeror or third parties. 3 The issuer is informed of the need to provide complementary information within 10 working days of receiving the registration request. 4 A lack of a decision issued within the period stated in paragraph 1 implies a tacit refusal of the request. 5 The approval of the prospectus is the act which implies its verified compliance with the requirements of complete, accurate, up-to-date, clear, objective and lawful information. 6 The registration of the tender offer implies approval of its prospectus and is based on the criteria of lawfulness. 26