10th edition - demarest · 10th edition mergers & acquisitions 2016 ... matouk bassiouny mjm...

The International Comparative Legal Guide to:

A practical cross-border insight into mergers and acquisitions

Published by Global Legal Group, with contributions from:

10th Edition

Mergers & Acquisitions 2016

ICLGAabø-Evensen & Co AdvokatfirmaAbenry & Company, AdvocatesAli Budiardjo, Nugroho, ReksodiputroAllensAstreaBär & Karrer AGBBABech-BruunConcern Dialog Law FirmCMS Reich-Rohrwig HainzCravath, Swaine & Moore LLPDebarliev, Dameski & Kelesoska Attorneys at LawDemarest AdvogadosDillon EustaceDittmar & IndreniusE & G Economides LLCENGORU, MUTEBI ADVOCATESFerraiuoli LLC

Gjika & AssociatesGuevara & Gutiérrez S.C. – Servicios LegalesGuzmán ArizaHerbert Smith Freehills LLPHouthoff BurumaKosta LegalLendvai PartnersMacchi di Cellere GangemiMaples and CalderMatouk BassiounyMJM LimitedMoravčević Vojnović i Partneri in cooperation with SchoenherrNader, Hayaux & GoebelNishimura & AsahiPachiu & AssociatesPen & PaperPeña Mancero Abogados

Roca Junyent SLPRutsaert LegalSchoenherrSevergnini, Robiola, Grinberg & TombeurSIGNUM Law FirmSkadden, Arps, Slate, Meagher & Flom LLPSlaughter and MaySysouev, Bondar, KhrapoutskiSZA Schilling, Zutt & AnschützTürkoğlu & Çelepçi in cooperation with SchoenherrUdo Udoma & Belo-OsagieVilley Girard GrolleaudWachtell, Lipton, Rosen & KatzWBW Weremczuk Bobeł & Partners Attorneys at LawWH PartnersZhong Lun Law Firm

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DisclaimerThis publication is for general information purposes only. It does not purport to provide comprehensive full legal or other advice.Global Legal Group Ltd. and the contributors accept no responsibility for losses that may arise from reliance upon information contained in this publication.This publication is intended to give an indication of legal issues upon which you may need advice. Full legal advice should be taken from a qualified professional when dealing with specific situations.

Further copies of this book and others in the series can be ordered from the publisher. Please call +44 20 7367 0720

Continued Overleaf

The International Comparative Legal Guide to: Mergers & Acquisitions 2016

General Chapters:

Country Question and Answer Chapters:

1 Divergence / A Game of Two Halves? – Michael Hatchard & Scott Hopkins, Skadden, Arps, Slate, Meagher & Flom (UK) LLP 1

2 Takeover Defences in Europe – The Debate on Board Passivity is Moot – Scott V. Simpson & Lorenzo Corte, Skadden, Arps, Slate, Meagher & Flom (UK) LLP 4

3 Bridging the Value Gap in 2016 – Alex Kay & Caroline Rae, Herbert Smith Freehills LLP 6

4 Current Developments in the Roles and Responsibilities of Financial Advisers in Public M&A Transactions – Richard Hall & Gary A. Bornstein, Cravath, Swaine & Moore LLP 11

5 The Nancy Reagan Defence in 2015: Can a Board Still Just Say No? – Adam O. Emmerich & Trevor S. Norwitz, Wachtell, Lipton, Rosen & Katz 16

6 Albania Gjika & Associates: Gjergji Gjika & Evis Jani 207 Argentina Severgnini, Robiola, Grinberg & Tombeur: Carlos María Tombeur &

Matías Grinberg 278 Armenia Concern Dialog Law Firm: Narine Beglaryan & Yuri Melik-Ohanjanyan 339 Australia Allens: Vijay Cugati 3810 Austria Schoenherr: Christian Herbst & Sascha Hödl 4511 Belarus Sysouev, Bondar, Khrapoutski: Alexander Bondar & Elena Selivanova 5512 Belgium Astrea: Steven De Schrijver & Jeroen Mues 6213 Bermuda MJM Limited: Peter Martin & Brian Holdipp 7114 Bolivia Guevara & Gutiérrez S.C. – Servicios Legales: Jorge Luis Inchauste 7815 Bosnia & Herzegovina CMS Reich-Rohrwig Hainz: Nedžida Salihović-Whalen 8316 Brazil Demarest Advogados: Gabriel Ricardo Kuznietz &

Thiago Giantomassi Medeiros 9217 British Virgin Islands Maples and Calder: Richard May & Matthew Gilbert 10118 Bulgaria Schoenherr: Ilko Stoyanov & Katerina Kaloyanova 10719 Cayman Islands Maples and Calder: Nick Evans & Suzanne Correy 11520 China Zhong Lun Law Firm: Lefan Gong 12121 Colombia Peña Mancero Abogados: Gabriela Mancero 12822 Cyprus E & G Economides LLC: Marinella Kilikitas & George Economides 13623 Denmark Bech-Bruun: Steen Jensen & David Moalem 14324 Dominican Republic Guzmán Ariza: Fabio J. Guzmán-Saladín 14925 Egypt Matouk Bassiouny: Omar S. Bassiouny & Malak Habashi 15526 Finland Dittmar & Indrenius: Anders Carlberg & Jan Ollila 16027 France Villey Girard Grolleaud: Frédéric Grillier & Daniel Villey 16728 Germany SZA Schilling, Zutt & Anschütz: Dr. Marc Löbbe &

Dr. Stephan Harbarth, LL.M. (Yale) 17329 Hungary Lendvai Partners: András Lendvai & Dr. Gergely Horváth 18030 Iceland BBA: Baldvin Björn Haraldsson & Höskuldur Eiríksson 18631 Indonesia Ali Budiardjo, Nugroho, Reksodiputro: Theodoor Bakker &

Herry Nuryanto Kurniawan 19332 Ireland Dillon Eustace: Lorcan Tiernan & Adrian Benson 20033 Italy Macchi di Cellere Gangemi: Claudio Visco & Stefano Macchi di Cellere 20734 Japan Nishimura & Asahi: Masakazu Iwakura & Tomohiro Takagi 21535 Kazakhstan SIGNUM Law Firm: Liza Zhumakhmetova & Gaukhar Kudaibergenova 22436 Luxembourg Rutsaert Legal: Quentin Rutsaert 23037 Macedonia Debarliev, Dameski & Kelesoska Attorneys at Law:

Emilija Kelesoska Sholjakovska & Ljupco Cvetkovski 23638 Malta WH Partners: Ruth Galea & Graziella Grech 24339 Mexico Nader, Hayaux & Goebel: Yves Hayaux-du-Tilly Laborde &

Eduardo Villanueva Ortíz 24940 Montenegro Moravčević Vojnović i Partneri in cooperation with Schoenherr:

Slaven Moravčević & Miloš Laković 255

Contributing EditorMichael Hatchard, Skadden, Arps, Slate, Meagher & Flom (UK) LLP

Head of Business DevelopmentDror Levy

Sales DirectorFlorjan Osmani

Account DirectorsOliver Smith, Rory Smith

Senior Account ManagerMaria Lopez

Sales Support ManagerToni Hayward

Sub EditorHannah Yip

Senior EditorSuzie Levy

Group Consulting EditorAlan Falach

Group PublisherRichard Firth

Published byGlobal Legal Group Ltd.59 Tanner StreetLondon SE1 3PL, UKTel: +44 20 7367 0720Fax: +44 20 7407 5255Email: [email protected]: www.glgroup.co.uk

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Printed byAshford Colour Press Ltd.February 2016

Copyright © 2016Global Legal Group Ltd.All rights reservedNo photocopying

ISBN 978-1-910083-83-3ISSN 1752-3362

Strategic Partners

EDITORIAL

Welcome to the tenth edition of The International Comparative Legal Guide to: Mergers & Acquisitions.This guide provides corporate counsel and international practitioners with a comprehensive worldwide legal analysis of the laws and regulations of mergers and acquisitions.It is divided into two main sections:Five general chapters. These chapters are designed to provide readers with an overview of key issues affecting mergers and acquisitions, particularly from the perspective of a multi-jurisdictional transaction.Country question and answer chapters. These provide a broad overview of common issues in mergers and acquisitions in 54 jurisdictions.All chapters are written by leading mergers and acquisitions lawyers and industry specialists and we are extremely grateful for their excellent contributions.Special thanks are reserved for the contributing editor Michael Hatchard of Skadden, Arps, Slate, Meagher & Flom (UK) LLP for his invaluable assistance.Global Legal Group hopes that you find this guide practical and interesting.The International Comparative Legal Guide series is also available online at www.iclg.co.uk.

Alan Falach LL.M. Group Consulting Editor Global Legal Group [email protected]

The International Comparative Legal Guide to: Mergers & Acquisitions 2016

Country Question and Answer Chapters: 41 Netherlands Houthoff Buruma: Alexander J. Kaarls & Willem J.T. Liedenbaum 26242 Nigeria Udo Udoma & Belo-Osagie: Yinka Edu & Ekundayo Onajobi 27043 Norway Aabø-Evensen & Co Advokatfirma: Ole Kristian Aabø-Evensen &

Harald Blaauw 27844 Poland WBW Weremczuk Bobeł & Partners Attorneys at Law:

Łukasz Bobeł & Nastazja Lisek 29345 Puerto Rico Ferraiuoli LLC: Fernando J. Rovira-Rullán & Yarot T. Lafontaine-Torres 30046 Romania Pachiu & Associates: Ioana Iovanesc & Alexandru Lefter 30747 Russia Pen & Paper: Stanislav Danilov 31548 Serbia Moravčević Vojnović i Partneri in cooperation with Schoenherr:

Matija Vojnović & Luka Lopičić 32149 Slovakia Schoenherr: Stanislav Kovár & Peter Devínsky 32950 Slovenia Schoenherr: Vid Kobe & Marko Prušnik 33651 Spain Roca Junyent SLP: Natalia Martí & Xavier Costa 34652 Switzerland Bär & Karrer AG: Dr. Mariel Hoch & Dr. Dieter Dubs 35653 Tanzania Abenry & Company, Advocates: Lucy Sondo & Francis Ramadhani 36454 Turkey Türkoğlu & Çelepçi in cooperation with Schoenherr:

Levent Çelepçi & Bürke Şerbetçi 37255 Uganda ENGORU, MUTEBI ADVOCATES: Robert Apenya &

Arnold Lule Sekiwano 37856 Ukraine CMS Reich-Rohrwig Hainz: Maria Orlyk & Kateryna Soroka 38457 United Kingdom Slaughter and May: William Underhill 39058 USA Skadden, Arps, Slate, Meagher & Flom LLP:

Ann Beth Stebbins & Thomas H. Kennedy 39759 Uzbekistan Kosta Legal: Nail Hassanov & Maxim Dogonkin 414

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Chapter 16

Demarest Advogados

Gabriel Ricardo Kuznietz

Thiago Giantomassi Medeiros

Brazil

Participation of foreign investments is restricted in some areas of the economy, such as nuclear energy, businesses neighbouring international borders, post office and telegraph services, domestic flight routes and the aerospace industry.Certain other sectors have restrictions regarding foreign investment. Examples of such sectors include:■ Utility Providers: There is no specific regulatory approval for

holding securities issued by utility providers, except in the case of a significant interest, which generally requires prior approval by Brazilian authorities.

■ Rural Land: The acquisition of rural real estate property in Brazil by foreign residents or foreign legal entities authorised to do business in Brazil is ruled by Law No. 5,709/1971, as amended (“Law No. 5,709”). Such a rule provides that a foreign individual resident in Brazil may only own rural lands of up to 50 rural “modules”, a dimension measurement determined for each region with similar economic and ecological characteristics and for the type of agricultural exploitation possible in the said area. A foreign individual resident abroad may not acquire land in Brazil, except for acquisition of land under the rules of succession law. Law No. 5,709 also provides that foreign companies may only acquire rural lands to develop and implement agricultural, industrialisation and/or colonisation projects, and the authorisation will only be granted if the project is part of the corporate purpose of the foreign legal entity buying the land. The project must be approved by the Ministry of Agriculture, or by the Department of Commerce and Industry of Brazil, on a case-by-case basis. This limitation also applies to foreign capital companies. Such an understanding resulted from Opinion No. 01/2008 of the Federal General Attorney’s Office (“AGU” and “AGU Opinion”), which considered that Law No. 5,709 was entirely received by the Constitution, despite the fact that its Article No. 170, then in effect (this Article was revoked by Constitution Amendment No. 6/1995), forbids the distinction between national capital companies and foreign capital companies. Article 1 of Law No. 5,709 establishes that legal entities in which foreign individuals or legal entities take part, on any account, holding the majority of the capital or headquarters abroad, are subject to the regime set forth by this law. Although questionable from a legal standpoint, the AGU Opinion became binding upon the president’s approval. From that moment, the public administration began to adopt the conclusions of the AGU Opinion, applying the restrictions of Law No. 5,709 not only to foreign companies, but also to foreign capital companies.

■ Press and Broadcasting: The participation of foreign capital in the Brazilian newspapers and radio broadcasting companies, as well as of sound and image, is ruled by Law No. 10,610/02. Such a rule provides that at least 70% of the

1 Relevant Authorities and Legislation

1.1 What regulates M&A?

M&A in Brazil is regulated mainly by:(i) Law No. 6,404/1976 (“Brazilian Corporation Law”); (ii) Law No. 10,406/2002 (“Brazilian Civil Code”); (iii) rules, regulations, opinions, and precedents issued by the

Brazilian Securities and Exchange Commission (Comissão de Valores Mobiliarios – “CVM”); for example, CVM Regulations: (a) No. 319 (which provides rules applicable to mergers,

spin-offs and consolidations involving publicly-held companies);

(b) No. 361 (which contains rules applicable to public takeovers, covering mandatory or voluntary tender offers for publicly-held companies’ shares);

(c) No. 400 (which establishes the rules applicable to public offerings of securities); and

(d) No. 480 (which establishes the rules and procedures applicable to the registration and periodic disclosure of information (including annual reports) by a publicly-held company before the CVM);

(iv) in the case of companies listed on the “Novo Mercado”, “Level 2” or “Level 1” listing segments of the São Paulo Stock Exchange (BM&FBOVESPA S.A. – Bolsa de Valores, Mercadorias e Futuros – “BM&FBOVESPA”), the corresponding listing rules; and

(v) Law No. 12,529/2011 (“Brazilian Antitrust Law”).

1.2 Are there different rules for different types of company?

Transactions which involve closely-held companies are subject mainly to the provisions of the Brazilian Corporation Law, the Brazilian Civil Code and the Brazilian Antitrust Law, while public companies are also regulated by CVM regulations and applicable listing rules.

1.3 Are there special rules for foreign buyers?

Generally, Brazilian law does not establish different treatment for local and foreign investors, except for specific activities which are considered strategic by the country.

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1.4 Are there any special sector-related rules?

Despite the rules described in question 1.3 above, based on the nationality of the company’s shareholders, a specific sector-related regulation may also apply in M&A transactions should the company’s corporate purpose be subject to any specific regulation by public authorities, including energy, insurance, transportation, oil and gas, and healthcare, among other activities.

1.5 What are the principal sources of liability?

In Brazil, the principal sources of liability for a foreign bidder in terms of responsibility and non-contractual accountability in the context of public tender offers are: market manipulation; insider trading; and disclosure liability.

2 Mechanics of Acquisition

2.1 What alternative means of acquisition are there?

The existing alternatives for the acquisition of companies in Brazil are as follows: (i) acquisition of control from an existing shareholder; (ii) tender offer in the case of public companies without a controlling shareholder; (iii) merger or reverse merger; or (iv) merger of shares.Acquisition of control from an existing shareholder and tender offer, in the case of companies without a controlling shareholder, do not require a shareholders’ meeting of the target company for the transaction to be concluded.On the other hand, the merger and the merger of shares do require a shareholders’ meeting of the involved companies. The main differences between such mergers are the following: (i) in a merger or a reverse merger, (a) a shareholders’ meeting

of the acquiring entity approves the capital increase and the corresponding issue of shares to be delivered to the shareholders of the merged entity in exchange for the shares of the merged entity; following which, (b) the shareholders’ meeting of the merged entity approves the merger of the company, and (c) lastly, the shareholders of the merged entity become shareholders of the acquiring entity and the merged entity ceases to exist; and

(ii) in a merger of shares, the shares of the merged entity are delivered to the acquiring entity, upon which (a) a shareholders’ meeting of the acquiring entity approves a capital increase and the corresponding issuance of shares to be delivered to the shareholders of the merged entity in exchange for the shares in the merged entity; following which, (b) a shareholders’ meeting of the merged entity approves the merger of shares, and (c) finally, the merged entity becomes a wholly-owned subsidiary of the acquiring entity.

2.2 What advisers do the parties need?

The parties in a M&A usually need financial, accounting, legal and media advisers, although some of them are not hired in all transactions (e.g. financial and media advisers). The financial advisers assist the client during the entire M&A process, aiming for the best financial terms and conditions for the transaction. The accounting advisers are responsible for the routine due diligence of the target company in tax, labour and social security areas, such as general information related to the due collection of taxes and the regularity of the employees’ registration, compensation/benefits, working conditions, trade union information, health/

total and voting capital of newspaper and radio broadcasting companies must belong, directly or indirectly, to native Brazilians or individuals naturalised for over 10 years. Thus, only 30% of the total and voting capital of such companies can be owned by foreigners. In addition, the participation of foreign capital will only occur indirectly through a legal entity incorporated under Brazilian law and headquartered in Brazil. Managerial and programming activities must also be entrusted to native Brazilians or individuals naturalised for over 10 years.

■ Financial Institutions: As a general rule, approvals by the Brazilian Central Bank and the President are required for a foreign investor to (i) invest in banks and other financial institutions, and (ii) purchase the controlling power of such institutions. Such approvals by the President are not required for non-voting shares listed on the stock exchange, or depositary receipts listed abroad with such shares as the underlying asset.

■ Insurance: There is no specific regulatory restriction or need for prior approval to hold securities issued by insurance companies, except for the holding of 5% or a controlling interest; in which case, prior approval by the Brazilian authority is required.

■ Brazilian Airlines: For voting capital, foreign investment requires prior approval by the Brazilian Airline Office and is limited to 20% (i.e. four-fifths of the voting capital shall be held by Brazilian nationals), either directly or indirectly. There is no limitation for foreign investors holding non-voting capital, but prior approval by the Brazilian Airline Office is required for (i) the acquisition of 2% or more of the total capital stock, and (ii) any additional share for foreign investors holding 10% or more of the total capital stock (Law No. 7,565). Depending on the relevant company, non-voting shares are limited to one-half or two-thirds of the outstanding shares. Please note that there is a Legislative Bill No. 330/2015, which is not yet currently in effect, that amends Law No. 7,565 to authorise the foreign investment in the Brazilian Civil Aviation sector.

■ Public Bus Companies or Similar Public Transportation: There is no specific regulatory restriction or need for prior approval to hold securities issued by public bus companies or similar public transportation companies, except for the holding of a controlling or significant interest; in which case, prior approval by the Brazilian authority is required.

■ Railroad: There is no specific regulatory approval for the holding of securities issued by railroad companies, except for the holding of a controlling or significant interest; in which case, prior approval by the Brazilian authority is required.

■ Securities Companies: Some securities companies are financial institutions; therefore, our comments for the above point on “Financial Institutions” apply here. The by-laws of the relevant company must be analysed to ascertain if additional disclosure, voting restrictions or approval-related provisions apply.

■ Fund Managers: Since fund managers are generally non-financial institutions, there is no specific regulatory approval for the holding of securities issued by such managers. However, most financial institutions are also authorised to manage investment funds, and thus the requirements listed in the above point on “Financial Institutions” would apply if the fund manager is organised as a financial institution. The by-laws of the relevant company must be analysed to ascertain if additional disclosure, voting restrictions or approval-related provisions apply.

■ Gambling: Gambling and casinos are not allowed in Brazil. The federal lottery is the only legalised type of game, approved by Law No. 204/1967, but only the Brazilian government, through its agency, is allowed to explore this type of activity.

Demarest Advogados Brazil


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2.6 What differences are there between offering cash and other consideration?

There are no restrictions as to the form of the offer (cash or shares), provided that in the case of shares they have their value based on an appraisal report. The difference between offering cash or other consideration in a public M&A deal in Brazil is related to the complexity of the deal; payment with cash is always the simplest structure. For example, in the case of a merger or merger of shares, shareholder approvals are required and the merger terms must be disclosed, such as any appraisal reports used to determine the shares-exchange ratio. Furthermore, if the transaction is structured as an exchange public offer which needs to be registered with the CVM, securities regulations require disclosure of the securities being offered, as well as the respective appraisal reports used to determine the exchange ratio and details applicable to the issuer of the shares being offered. In any case, each transaction has its specific limitations with regards to the adoption of non-cash consideration in their structures, and requires analysis from other legal standpoints, such as taxation.

2.7 Do the same terms have to be offered to all shareholders?

As a general rule, the terms of a private M&A are generally not subject to a legal requirement that the same terms have to be offered to all shareholders, meaning that an analysis on existing agreements and by-laws, as well as other arrangements, is advisable to ascertain the need of any specific concern on treatment to shareholders.However, as a general rule, the same terms have to be offered to all shareholders of the same class or type of shares in a public M&A in Brazil. Even if the transaction constitutes a private sale of controlling interest in the target publicly-held company, non-controlling shareholders are entitled to sell their shares as a result of a mandatory tender offer (to be launched by the acquiring entity) at 100% of the price per share paid to the controlling shareholder, if the company is listed on the “Novo Mercado” or “Level 2”. If the publicly-held target company is not listed on those segments, then the non-controlling voting shareholders are entitled to receive at least 80% of the price paid for each controlling voting share. In a tender offer, the price per share must be the same for holders of the same type or class of shares. In the case of a merger, holders of the same type or class of shares are generally entitled to the same exchange ratio.

2.8 Are there obligations to purchase other classes of target securities?

There is no obligation to purchase other classes of target securities, except in the case of a going-private tender offer and sale of controlling interest of a publicly-held company. In the first case, all securities distributed in the market must be previously redeemed (unless redemption for delisting of shares is waived by holders of the respective securities).If the transaction constitutes a private sale of controlling interest in the target publicly-held company, non-controlling shareholders are entitled to sell their shares as a result of a mandatory tender offer (to be launched by the acquiring entity) at 100% of the price per share paid to the controlling shareholder, if the company is listed on the “Novo Mercado” or “Level 2”. If the publicly-held target

safety and retirement/pension, among others. The legal advisers are responsible for the legal due diligence, the preparation and negotiation of the legal documents necessary to the transaction, and the obtaining of the applicable governmental approvals (i.e. submission to the Brazilian Antitrust Authorities, Brazilian Central Bank, etc.). The media advisers will assist the parties with the disclosure of the transaction.

2.3 How long does it take?

The timeline for a M&A to be implemented in Brazil varies a lot, depending on the structure of the transaction (i.e. size of the target company, due diligence scope, conditions precedent, registration with public authorities, negotiation of the main terms of the transaction, submission of the transaction to governmental approvals if applicable, etc.). The term usually varies from six months to one year.

2.4 What are the main hurdles?

The main hurdles in a M&A in Brazil are usually the signing of the transaction documents, the obtainment of antitrust and other applicable governmental approvals, and the disclosure of the deal to the public.

2.5 How much flexibility is there over deal terms and price?

There is a significant flexibility over deal terms and price in a M&A, despite specific rules applicable to each type of transaction, especially when a publicly-held corporation is involved. As an example, in the context of sale of the controlling interest in a certain publicly-held target company, non-controlling shareholders are entitled to sell their shares as a result of a mandatory tender offer (to be launched by the acquiring entity) at 100% of the price per share paid to the controlling shareholder, if the company is listed on the “Novo Mercado” or “Level 2”. If the publicly-held target company is not listed on those segments, then non-controlling voting shareholders are entitled to receive at least 80% of the price paid for each controlling voting share. In a tender offer, the price per share must be the same for holders of the same type or class of shares. In the case of merger, or merger of shares, holders of the same type or class of shares are generally entitled to the same exchange ratio.In going-private tender offers (offering aiming at the delisting of shares of a given publicly-held company), the price per share must be fair and at least equal to the appraised value of the corporation, based on one or more of the following criteria: net assets appraised at market value; discounted cash flow; comparison by multiples; shares quotation in the securities market; or other criteria approved by the CVM. Such an offering’s price may be revised as provided for in the Brazilian Corporation Law and CVM Regulation No. 361, if non-controlling shareholders representing 10% of the outstanding shares of the company require the managerial bodies to summon a shareholder’s meeting to approve the preparation of a new appraisal or to adopt different criteria for such an appraisal in order to determine the company’s value.Finally, certain transactions of publicly-held companies, involving parties under common control, generally require either (i) confirmation of the respective terms and conditions by an independent committee, or (ii) approval by non-controlling shareholders.



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merger or merger of shares, the terms and conditions of the merger protocol must be disclosed, together with an appraisal report.Finally, certain transactions of publicly-held companies involving parties under common control generally require either (i) confirmation of the respective terms and conditions by an independent committee, or (ii) approval by non-controlling shareholders. In those cases, regulation requires disclosure of the applicable approvals as described above.

2.13 What are the key costs?

The key costs in a M&A transaction in Brazil are the transaction advisers’ fees (financial, accounting, legal and media advisers), and, if necessary according to the type of the transaction, the filing fees and costs of publications in newspapers, as applicable.

2.14 What consents are needed?

Transactions which reach the following thresholds must be submitted to the Administrative Council for Economic Defence – “CADE”, and CADE’s final approval is needed to proceed with the closing or any other action towards the implementation of the transaction for (i) any of the entities involved in the transaction, or the respective “group of companies” to which they belong, who had an annual gross turnover or overall volume of business equal or in excess of BRL 750 million in Brazil, during the preceding fiscal year, cumulatively with (ii) annual gross turnover or overall volume of business in Brazil, by any other entity involved, or its respective “group of companies”, of BRL 75 million during the preceding fiscal year. According to CADE’s Resolution No. 2, a group of companies shall be defined as: (i) a set of companies subject to a common control, internally or externally; and (ii) companies in which the companies mentioned in item (i) hold, directly or indirectly, at least 20% (twenty per cent) of its capital stock or voting capital. The filing with CADE shall be made prior to the closing of the transaction, and the parties will not be allowed to consummate the transaction before the final clearance of the Brazilian antitrust authorities.In addition, depending on the activities developed by the target company, the acquisition of the target company’s shares may be subject to additional approvals (e.g. by SUSEP for insurance and reinsurance companies and by Central Bank for financial institutions). Finally, tender offers may be subject to prior registration with the CVM, mainly if the offer (i) results from disposal of controlling interest of a publicly-held company, (ii) aims at delisting the shares of a publicly-held company, and (iii) involves exchange of securities.

2.15 What levels of approval or acceptance are needed?

Corporate approvals generally depend on the structure of the transaction, the by-laws of the involved corporation and, if any, shareholders’ agreements. In general, both the (i) acquisition of control from an existing shareholder, and (ii) tender offer in the case of companies without a controlling shareholder are not subject to shareholder approval. On the other hand, approval of the shareholders (at separate meetings) of the involved companies is required for merger, reverse merger or merger of shares. In addition, the by-laws of the involved companies may also require the board of directors’ or other corporate body approval.Finally, certain transactions of publicly-held companies involving parties under common control generally require either (i) confirmation

company is not listed on those segments, then non-controlling voting shareholders are entitled to receive at least 80% of the price paid for each controlling voting share.

2.9 Are there any limits on agreeing terms with employees?

Generally, the only limit provided by the Federal Constitution of 1988 is that an employer may not reduce an employee’s salary, except if a collective labour convention or collective bargaining agreement is executed for this purpose. Moreover, the Brazilian Employment Law provides that in the individual employment contracts, changes in conditions are valid only upon mutual consent, provided that they do not result, directly or indirectly, in losses to the employee, on penalty of the clause violating such a guarantee as null.

2.10 What role do employees, pension trustees and other stakeholders play?

In general, under Brazilian law, employees, pension trustees and other stakeholders do not have a role in the M&A transaction process. Notwithstanding, (i) in the case of reduction of salaries or significant lay-offs of employees, the target company may need to negotiate with the union that represents the employees, and (ii) the target company has liabilities as a sponsor of a pension fund and may entail a post-closing obligation to modify the sponsoring obligations subject to the approval of the relevant regulatory agency.Additionally, some transactions involve agreements to retain specific key individuals, or to provide for non-compete arrangements, which require a careful analysis on specific labour- and antitrust-related rules.

2.11 What documentation is needed?

The documentation needed varies depending on each type of acquisition. In an acquisition of control from an existing controlling shareholder, in a tender offer and in a merger, reverse merger, or merger of shares, the main documents needed are, respectively (including applicable attachments): (i) share purchase agreement; (ii) bid notice; and (iii) merger protocol, appraisal report and minutes of the shareholders’ meetings. Depending on the transaction, a shareholders’ agreement is also deemed necessary, as well as a consolidated version of the company’s by-laws.

2.12 Are there any special disclosure requirements?

Yes, there are special disclosure requirements.Publicly-held corporations are subject to specific disclosure rules, mostly set forth in CVM Regulation No. 358 (material information reports) and CVM Regulation No. 480. The disclosure requirements vary according to the type of the acquisition, and may imply disclosure of a material report and, additionally, update of the existing publicly-available documents, including the company’s annual report.In a sale of acquisition of the controlling interest held by an existing controlling shareholder, the change of control must be disclosed upon the issuance of a material information report, together with the main terms of the deal, such as the parties, price and purpose, among others. In a tender offer, the bidder must disclose a bid notice, which may be subject to prior approval by the CVM, containing extensive disclosure about the terms and conditions of the offer, the appraisal report and, if it is an exchange offer, the securities offered. In a merger, reverse



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shareholders. In the case of a unsolicited tender offer to acquire control of a public company with dispersed ownership, the target board is entitled to issue a recommendation to shareholders and may also take action, on behalf of shareholders, to seek a higher price or object to coercive, misleading or unlawful actions by a bidder, as regulated by CVM Regulation No. 361.

3.4 Does the choice affect process?

While permitted, hostile takeover bids are uncommon, since historically, Brazilian companies typically had concentrated ownership and specially-defined, stable, and controlling shareholders. A hostile transaction will almost certainly result in a tender offer to acquire control. On the other hand, friendly transactions may take the form of a merger, reverse merger, other corporate action or a sale of a controlling stake by the controlling shareholder, in addition to a tender offer if the case so requires, as regulated by CVM Regulation No. 361 and Brazilian Corporation Law.

4 Information

4.1 What information is available to a buyer?

The seller usually provides full information related to the target company to a buyer, other than such constraints as may result from antitrust concerns or precautions against insider trading.In addition, all public companies shall disclose detailed annual reports which contain audited financial statements, management’s analysis of financial results, condition and trends, business strategy and performance, risk factors, corporate affiliations, applicable regulations, related party transactions, management compensation and other material information, as well as issue quarterly financial statements and current reports relating to any material development in the business.Furthermore, in a tender offer for acquisition of corporate control, the target company must make certain required disclosures, including a list of recorded shareholders and their contact details.

4.2 Is negotiation confidential and is access restricted?

In the case of solicited transactions, the bidder and the target may engage in confidential discussions until they are prepared to make an announcement. If news of the negotiations leaks, the public company must make immediate disclosure of the status of discussions. In the case of an unsolicited bid, a bidder must preserve the confidentiality of a proposed tender offer until it makes a formal, binding offer. If the information on the envisaged deal becomes public, the bidder must make immediate disclosure of the status of the intended bid. The CVM may require the bidder to proceed, within a designated period, to a formal, binding tender offer, or to publicly disavow the intention to make a tender offer within the following six months. In the case of a cash-only tender offer not subject to prior registration before the CVM, the bidder may only disclose the bid by means of a formal, binding tender offer announced publicly to all shareholders. In the case of an exchange offer or a cash-only tender offer subject to prior registration before the CVM, within 30 days of announcing a bid, the bidder must file a registration statement with the CVM and, within 10 days of the effectiveness of registration, must make a formal, binding offer to all shareholders.

of the respective terms and conditions by an independent committee, or (ii) approval by non-controlling shareholders.

2.16 When does cash consideration need to be committed and available?

In the case of a sale of controlling interest from an existing shareholder, cash usually needs to be committed for the signing of the relevant share purchase agreement and available only for the closing. On the other hand, in the case of tender offers, the settlement of acquisitions is required to be made through a financial institution. Each institution has specific rules regarding maximum terms for commitment and availability of cash to settle tender offers.

3 Friendly or Hostile

3.1 Is there a choice?

Basic structure for friendly acquisitions involves private negotiations with the controlling shareholder. This mechanism is very common, since most Brazilian companies still have concentrated ownership, mainly a controlling shareholder (or group of shareholders). The transaction generally requires a previous negotiation between the parties about, among other things, the purchase price, conditions to closing, representations and warranties, and other clauses. An acquisition of equity securities in the stock market is effective in companies with dispersed ownership and high free-float, and generally does not require previous negotiations between the parties. It can also be combined with private negotiations with strategic shareholders. The mechanism may trigger an obligation by a potential buyer to perform a takeover offer depending on the by-laws of the target and the listing segment on which the securities are listed. In addition, any share acquisition or sale involving 5% (and multiples thereof) of a publicly-held company’s type or class of shares, or rights thereon, must be disclosed by the investor to the target, which in turn will disclose the information through the CVM’s website for public consultation. Takeover bids are also effective in companies with dispersed ownership.As for hostile acquisitions, Brazilian corporate legislation does not differentiate recommended bids from hostile bids, both being treated as voluntary takeover bids. In practice, the distinction between hostile or not depends on whether the bid is welcomed by the management or by the largest shareholders, sometimes having been subject to previous negotiations with the potential buyer. While permitted, hostile takeover bids are uncommon, since historically, Brazilian companies have typically concentrated ownership and specially-defined, stable, and controlling shareholders.

3.2 Are there rules about an approach to the target?

There are no specific rules about the manner in which bidders shall approach the controlling shareholders of the target companies, except that the intended tender offer to acquire control of a given corporation must remain confidential until proper disclosure through publication of the respective bid. CVM Regulation No. 361 regulates detailed disclosure and procedural rules related to tender offers.

3.3 How relevant is the target board?

In Brazil, the target board is usually not relevant in M&A transactions, since the negotiations are mostly with the controlling



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disclose such transactions, as well as any intention to bid for control or to change the management of the company. Additionally, under a tender offer to acquire control of a publicly-held company, any person (or group of persons) holding 2.5% of a given type or class of shares (and/or related derivatives) is required to disclose, during the tender offer, any increase or decrease of its ownership or agreement involving 1% of the said type or class of shares.Furthermore, a significant number of public companies have adopted provisions in their by-laws requiring shareholders to launch tender offers for the remaining shares upon reaching a threshold stake (Brazilian poison pills). Depending on the tender offer structure, bidders will be required to disclose any shares purchases regarding the target company made during a 12-month period preceding such a tender offer, including purchases made off-exchange, and any change in shareholdings occurring during the tender offer period. Finally, Brazilian regulation allows third parties, other than the bidder, to launch a competing takeover bid, having as an object the shares covered by a tender offer which have already been submitted for registration with the CVM, or a tender offer not subject to registration of which the notice has already been published, as regulated by CVM Regulation No. 361.

5.2 Can derivatives be bought outside the offer process?

Yes, derivatives referenced to shares of the target company may be purchased before or after the announcement of a tender offer for control, except for the bidder and its related parties, which means: (i) other investors acting alongside the investor, or representing the same interest which the investor represents; and (ii) indirect trading of shares and/or rights arising therefrom, including by means of subsidiaries of the investor and third parties with which the investor entered into fiduciary or asset management agreements, except for investment funds invested by the investor not qualified as exclusive investment funds, provided that the shareholders of such funds are not able to influence the investment decisions (“Related Parties”).CVM Regulation No. 361 establishes that the bidder and its related parties may not negotiate with derivatives backed by the company’s shares of the same type and class as those involved in the tender offer during such a process. In addition, prior to the announcement of the tender offer, disclosure may be required if the derivatives confer a right to purchase a stake of 5% in a public company. Upon announcement of the tender offer for control, the full extent of the exposure of the bidder to derivatives must be disclosed and, after announcement, any change in such an exposure must also be disclosed.

5.3 What are the disclosure triggers for shares and derivatives stakebuilding before the offer and during the offer period?

According to CVM Regulation No. 358, ownership by an investor of 5% (and multiples thereof) of outstanding shares or securities entitling rights to such shares, issued by a publicly-held company in Brazil, triggers the investor’s disclosure obligation, which must report such ownership to the public company that for its part will notify the CVM. Percentage shares, or rights thereon, held by investors, related parties, and any other person acting together or representing the same interest – namely, entities under common control and funds managed by the same entity or related party – also count towards this threshold. Furthermore, increases or decreases in ownership of 5% (and multiples thereof) of the outstanding shares or securities entitling

4.3 When is an announcement required and what will become public?

The bidder and the target company are required to announce a transaction once a binding agreement is reached or a formal, binding offer is made. Disclosure of the status of discussions may be anticipated if the negotiations become publicly available. A leak may be detected if the trading markets show large, unexplained fluctuations in price and trading volume of the shares of the target company. The announcement of an agreed transaction must contain the material terms of the transaction. The bidder in a tender offer for control must disclose the material terms of the offer and a broad range of ancillary information, including (i) the bidder’s holdings of equity interests in the target company, (ii) any agreement or arrangement of the bidder with the target company, its management and holders of 5% or more of its shares, and (iii) any exposure to derivatives referenced to equity interests in the target. Such disclosures must remain accurate during the tender offer period, and any change in circumstances must be reflected in amendments to the required disclosures.Separately, the company must disclose a range of information within three business days of the announcement of the terms and conditions of the tender offer for control, including (i) a detailed description of the shares and derivatives referenced to shares held by management, the target itself, and related parties, (ii) a detailed description of trading by management, the target itself, and related parties in the shares and derivatives referenced to shares during the three months preceding the announcement, (iii) a detailed description of the shares and derivatives referenced to the shares of the bidder held by management of the target, the target itself, and related parties, and (iv) the financial consequences of the tender offer to the management of the target.

4.4 What if the information is wrong or changes?

Public companies must ensure that publicly-available information is accurate, and they must correct any inaccurate disclosures. Furthermore, public companies are subject to a current reporting requirement with respect to any material event.Bidders in tender offers are also liable for their inaccurate disclosures, and they must update the disclosures to reflect any change in circumstances (such as an increase in shareholdings).A bidder may withdraw or modify the terms of a tender offer in accordance with the bid notice’s express terms, if such a tender offer was not subject to prior registration with the CVM. In addition, no authorisation by the CVM is required should the change in any tender offer, registered or not, be considered an improvement of the offering in favour of the receiving shareholders. If the tender offer has been registered, the CVM must authorise any withdrawal or modification of any terms that are adverse to shareholders. If newly disclosed or updated information suggests that prior disclosures were materially incorrect, a bidder would likely receive CVM approval to withdraw or modify its bid.

5 Stakebuilding

5.1 Can shares be bought outside the offer process?

Any person acquiring or selling a stake which reaches a corporate interest of 5% (and multiples thereof) in a public company must



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company and must always act and decide on behalf of the corporate purposes and not private shareholders’ interests, in case of a conflict.

6.4 What commitments are available to tie up a deal?

Brazilian practice has not consolidated a view on the kinds of steps that might ensure completion of a transaction involving a company with dispersed ownership of a controlling stake. For solicited M&A transactions, such as (i) acquisition of control from an existing shareholder, and (ii) merger, reverse merger or merger of shares, the parties involved in the negotiations usually execute a Memorandum of Understandings (“MOU”) or a Letter of Intents (“LOI”), binding or not, regarding the main terms and conditions of the deal.

7 Bidder Protection

7.1 What deal conditions are permitted and is their invocation restricted?

A bidder in a tender offer for control may impose conditions upon announcing a formal, binding offer, so long as such conditions relate to matters outside of the bidder’s control. Such conditions may even grant the bidder the right to withdraw the offer, as established in CVM Regulation No. 361. If the target company were to take actions that materially affected its business, assets, financial condition or prospects, the bidder would be entitled to withdraw its tender offer, should it be previously established as a condition by the bidder.

7.2 What control does the bidder have over the target during the process?

The bidder has no control or influence over the target company. Even if it holds a stake in the target company, it is likely that the bidder would be unable to influence decision-making in its favour without incurring legal risk.

7.3 When does control pass to the bidder?

Control of the target company passes to the bidder when the bidder acquires a majority stake of the target and calls a shareholders’ meeting to replace the board and management members.

7.4 How can the bidder get 100% control?

If a bidder intends to acquire 100% of the shares, the tender offer for control must satisfy the requirements of a going-private tender offer (aiming at the delisting of shares) and the bidder must successfully acquire a 95% stake in the equity of the target company. If these conditions are met, the bidder may cause the company to redeem the remaining shareholders at the same price paid to the accepting shareholders.

8 Target Defences

8.1 Does the board of the target have to publicise discussions?

The board of the target company is not required to publicise discussions related to the negotiation unless the information leaks to the market.

rights to such shares, including Brazilian Depositary Receipts, also subject investors to further reporting requirements. Please note that, for the purposes of this disclosure threshold, the investor will be required to further add to its holdings any other shares and/or rights arising therefrom held by Related Parties, as defined above. Such rules also apply during the tender offer period, after its announcement, in which the bidder must disclose every transaction involving shares, which may be restricted by CVM Regulation No. 361.

5.4 What are the limitations and consequences?

A solicited transaction may be limited by insider trading rules if the bidder acquires a stake prior to the public announcement of a transaction. Furthermore, depending on the circumstances, the discussions regarding a potential transaction may constitute material inside information, and the acquisition of shares of the target prior to the announcement of the deal may subject the bidder to administrative and criminal penalties. In the case of unsolicited transactions, the acquisition of a 5% (and multiples thereof) stake (including a stake represented by derivatives convertible into or exchangeable for shares) triggers disclosure requirements as described in question 5.3 above, and the bidder must take care not to reach any threshold that might trigger a tender offer requirement under the by-laws of the target company, if any, subject to different rules considering the originally intended tender offer.

6 Deal Protection

6.1 Are break fees available?

Break fees are not very common in Brazil, since most Brazilian companies still have concentrated ownership, i.e. mainly a controlling shareholder (or group of shareholders). Although there are no regulatory constraints in Brazil regarding break fees, any break fees should bear a compatibility with the obligations set forth in the agreement; otherwise, the enforceability of the break fee could be challenged in court.

6.2 Can the target agree not to shop the company or its assets?

Issues relating to no-shop provisions are also essentially untested in the Brazilian market. In addition, despite a no-shop clause in the deal documents, in the context of a tender offer, once the transaction is made public, there is no mechanism upon which the target company may prevent a third party from launching a competing takeover bid, having as its object the shares covered by a tender offer which has already been launched. Finally, in general compliance terms, we would expect that the target board of a company with dispersed ownership of a controlling stake would face a very heavy burden in justifying a no-shop provision.

6.3 Can the target agree to issue shares or sell assets?

The role of the target board in an unsolicited transaction is largely untested. We would expect that a target board would have some latitude to react to an unsolicited bid, as long as it would not prevent shareholders from having an opportunity to consider the unsolicited bid and any competing bids. Please note that, under Brazilian Corporation Law, the company’s administrators have a fiduciary duty towards the



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10 Updates

10.1 Please provide a summary of any relevant new law or practices in M&A in your jurisdiction.

A significant recent development in M&A in Brazil was the creation in 2012 of the Mergers and Acquisitions Committee (Comitê de Aquisições e Fusões – “CAF”). This committee, which is a self-regulatory body similar to the UK Takeover Panel that aims to enhance the protection of minority shareholders in public company mergers and tender offers, was created by the BM&FBOVESPA exchange, the Capital Markets Investors Association (Associação de Investidores no Mercado de Capitais – “AMEC”), the Brazilian Financial and Capital Markets Entities Association (Associação Brasileira das Entidades dos Mercados Financeiro e de Capitais – “ANBIMA”), and the Brazilian Corporate Governance Institute (Instituto Brasileiro de Governança Corporativa – “IBGC”). Since companies are not obliged to join the committee or to subject transactions to it (i.e. its use is voluntary), the impact of this recent development on M&A in Brazil is yet to be seen. A relevant new law which can be applicable in M&A in Brazil is the Brazilian Anti-Corruption Act (Law No. 12,846, or “BAC”), which entered into force in 2014 in order to fight corruption, introducing administrative and civil liability on legal entities for illicit acts practised against local and foreign Public Administration. As a result of the creation of this law, an anti-corruption due diligence shall be necessary in the transactions conducted in Brazil or abroad, in cases where the target company is Brazilian, and mainly when the target company or its affiliates maintain significant relations with the government. Moreover, this due diligence will be performed in cases where the buyer was exposed before any anti-corruption statutes (i.e. US Foreign Corrupt Practices Act or the UK Anti-Bribery Act). As this law was recently entered into force, its real impact in Brazil remains to be seen.

8.2 What can the target do to resist change of control?

In Brazil, there are no ruled mechanisms for the target company to resist its change of control, except the permission regulation which grants the board to opine on a tender offer involving its shares.

8.3 Is it a fair fight?

As the ultimate decision-making authority lies with the shareholders, both solicited and unsolicited bidders may equally expect to be successful if their offer is financially interesting for the target’s shareholders. Considering that Brazilian corporations do not have, as a rule, dispersed ownership history, the direct participation of the target company in structuring a transaction relies on the level of interaction between management and selling shareholders.

9 Other Useful Facts

9.1 What are the major influences on the success of an acquisition?

The major influences on the success of an acquisition are timing, the relationship between the interested parties, and the chosen corporate structure.

9.2 What happens if it fails?

Generally, no restrictions are imposed on a bidder who has failed in an attempt to acquire control of a company in Brazil, unless the parties agree otherwise (i.e. Letters of Intent, Memorandums of Understanding, etc.).



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Demarest Advogados is one of the leading business law firms in Brazil, with over 67 years of experience in assisting clients from all over the world. At the heart of our continued success lies our pre-eminent traditional, solid and client-driven posture.

With offices in the most important cities of Brazil and in New York, Demarest Advogados has a team of more than 270 highly qualified lawyers, 160 legal trainees (law students), and professional administrative staff. Demarest Advogados is one of the top law firms in Brazil and Latin America, and is recognised as a true full-service law firm.

Demarest Advogados is the Brazilian member of Lex Mundi, the world’s largest organisation of independent law firms. The firm is also a member of the Interlex Group and the Employment Law Alliance.

Demarest Advogados is consistently pointed out by legal publications and directories such as Chambers and Partners, International Finance Law Review, Who’s Who Legal and the Brazilian Análise Advocacia as one of the largest and most recognised law firms in Brazil, and many of our attorneys are named as leaders in their fields.

Gabriel Ricardo KuznietzDemarest Advogados1201 Avenida Pedroso de MoraesSão Paulo – SP, 05419-001Brazil

Tel: +55 11 3356 1547Fax: +55 11 3356 1700Email: [email protected]: www.demarest.com.br

Thiago Giantomassi Medeiros Demarest Advogados1201 Avenida Pedroso de MoraesSão Paulo – SP, 05419-001Brazil

Tel: +55 11 3356 1656Fax: +55 11 3356 1700Email: [email protected]: www.demarest.com.br

Gabriel Ricardo Kuznietz is a partner in the Mergers and Acquisitions practice at Demarest Advogados.

He graduated from Universidad Nacional de Córdoba (UNC) in Argentina in 1994, after which he pursued, in 1997, an LL.M. degree at the University of Pennsylvania Law School in the United States of America. His second graduation was completed in 2006 at Universidade de São Paulo. Mr. Kuznietz was an associate at Marval, O’Farrell & Mairal, Argentina, between 1997 and 2000. Mr. Kuznietz concentrates his practice on mergers and acquisitions and cross-border transactions, mainly in aviation, maritime and infrastructure areas. He frequently advises major players in the world and domestic markets, such as British Airways, Iberia, Royal Caribbean and Pullmantur, as well as PSA Peugeot Citroën, Grupo Ultramar and CSAV. He was licensed in 2002 as a consultant in Argentine Law by the Brazilian Bar Association, São Paulo Chapter (OAB/SP). He is a member of the International Bar Association and Vice President and member of the Argentina-Brazil Chamber of Commerce in São Paulo, Brazil.

Thiago Giantomassi Medeiros is a partner in the Corporate Finance and Capital Markets practice at Demarest Advogados.

He graduated from Universidade de São Paulo Law School in 2002, and in 2007 he obtained an LL.M. from the same university. Mr. Medeiros concentrates his law practice in corporate finance and deals with companies, with a focus on stock markets and infrastructure, as well as consolidations and acquisitions. He gives advice to investment banks, private equity firms, publicly-held and closed corporations, controlling shareholders, investors, brokers and advisers in domestic and international operations and in many different economy sectors. Mr. Medeiros has participated in all capital markets transactions advised on by Demarest. He is also former chair for the Securities Practice Group of Lex Mundi, and currently sits at this association’s leadership board for Cross-Border Transactions.

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