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Date: April 14, 2022
Posted by: CPDMA Team

Resolution No. 85, of March 31, 2022 – CVM, new regulation on takeover bids (OPA)

Stock exchange screen illustrating the article about the CVM.

The Securities and Exchange Commission (CVM) published on March 31, 2022 Resolution No. 85, which establishes the rules for Public Acquisition Offers for publicly traded companies.

The Public Offer for Acquisition, also known as “OPA”, is the publication of an offer for the acquisition of publicly held company shares by a bidder, detailing the number of shares, price, term and form of acquisition.

The proposal for the existence of the OPA is that all shareholders of a given Company have equal rights in the interest in selling their shares or acquiring a certain amount of them, since the Public Offer for Acquisition does not discriminate which holders of the Company's class of shares the bidder intends to incorporate or that the Company intends to dispose of.

There are OPAs that are mandatory by law, in addition to those that are voluntary.

The legally mandatory takeover bids are those provided for in Law 6,404/76 - Law of Corporations - which include, for example, the acquisition or offer of corporate control of the Company, cancellation of registration as a Publicly Held Company and increase in shareholder interest controller.

In order to regularize the procedure of publication of the offer, acquisition and liquidation of shares in businesses involving OPA, the CVM published Instruction No. .

Therefore, in order to fulfill its instructive and regulatory purpose, CVM Resolution No. 85 begins its text by indicating that its proposal is to regulate “the procedure applicable to any public offers for the acquisition of shares of Publicly-held Companies; and the process of registering public offerings”, followed by the examples of mandatory takeover bids mentioned above.

The Resolution also expresses the principles that guide the OPA, such as non-discrimination of the owners of the shares of the type and class object of the offer, publicity of the offer to all shareholders and interested third parties, uniformity of prices compatible with the market, immutability and irrevocability, unless authorized by law, among others.

Publication of the OPA must take place within a period of 10 (ten) days from the acceptance of the CVM on the registration, and the auction of shares must take place within a minimum period of 30 (thirty) and a maximum of 45 (forty-five) days after publication.

The payment of the OPA by the acquirer can be made through national currency, barter, when it is made through securities or mixed, when part of the payment is made in local currency and part in exchange.

When the OPA is published, the minority shareholders who own at least 10% of the Company's shares, individually or jointly, may request a General Meeting with the other minority shareholders, in the event that they do not agree with the price of the OPA, deliberating, in Assembly, the proposal for a new assessment on this.

The Resolution also demonstrates the competence of the CVM to evaluate the regularity of the proposal with the market, the fulfillment of formalities by the offeror, as well as the power to revoke an OPA, in case of observing any inconsistency with the legal regulation that it was established.

Therefore, the CVM Resolution proposes greater protection for the stock market and its minority shareholders, granting them equal conditions for the acquisition, disposal and inspection involving Public Acquisition Offers, as well as having the power to inspect and execute practices that deliberate contrary to the principles of the OPA at any time when the negotiation is being processed.

Per: Mateus Pires Mallmann - Corporate Law

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