New tender offer regulation: How corporate control in the stock market is changing

The decree is on effect as of the day following its publication. OPAs already in process or previously authorized shall continue to be governed by the prior regulations. Key changes are:

1. Express guiding principles

Four guiding principles for OPAs are established: irrevocability, equal treatment, disclosure of clear, complete, and accurate information, and free participation and competition so that the price reflects the highest value investors are willing to pay.

2. 9-month restriction between OPAs

Once at least one security has been awarded in an OPA, neither the offeror, nor its beneficial owners, nor those acting in agreement with them may launch a new OPA (whether mandatory or voluntary) for the same securities for a period of 9 months.

3. Voluntary OPA – standalone chapter

Voluntary OPAs may be launched not only for voting capital but also for preferred shares, privileged shares, and variable-income securities representing the capital of issuers.

4. Supervening OPA – enhanced regime

Any beneficial owner shall be required to launch an OPA if, as a result of a merger, spin-off, or any corporate reorganization —including with unlisted or foreign entities— a single beneficial owner exceeds the mandatory OPA thresholds with respect to a listed company. In such case, the beneficial owner has 3 months to launch the OPA for the company’s shares. This obligation is expressly extended to any corporate reorganization process.

5. Competing offers – robust regime

Competing offers may be submitted from the day following the first notice of the preceding OPA and up to 2 days before the deadline for receipt of acceptances. To qualify as a “better” offer, the competing bid must exceed the price or the number of securities by at least 3%, or have a lower minimum condition for payment in securities.

6. Board of directors’ opinion

The board of directors of the target issuer may prepare or commission a report containing observations for or against the OPA and its opinion on the offeror’s intentions. Such report must be disclosed as material information and published on the issuer’s website.

7. Issuer neutrality – exceptions to promote competition

The target issuer of an OPA must, during the process, refrain from taking any action that may hinder or interfere with its development. Excepted from this obligation are actions by the issuer’s shareholders aimed at promoting a competing offer or an improvement to the pending OPA, as well as the board opinion.