CMVM exempts Visabeira from taking over Martifer

The CMVM waived the mandatory Public Takeover Offer for Martifer, Visabeira having decided to confirm that Visabeira demonstrated that it could not exercise dominant influence over Martifer.

Following the conclusion of agreements intended to regulate the terms of the entry of Visabeira Indústria SGPS into the capital of Martifer SGPS, the CMVM was asked, although it considered the voting rights to be attributable to the parties to the agreements, to consider the obligation to launch a public acquisition offer (OPA) as being removed.

After analyzing the CMVM, it concluded that “sufficient evidence was presented that the terms of these agreements do not grant Visabeira the power to exercise dominant influence over Martifer, and therefore the legal assumptions that would determine the obligation to launch a takeover bid were not met”.

The CMVM presents the grounds underlying this decision. “On October 2, 2024, a promissory purchase and sale agreement (CPCV) for 24 million Martifer shares was signed between the promising sellers: I'M — SGPS, Black and Blue Investimentos, Carlos Manuel Marques Martins and Elisabete Maria de Almeida Jesus Farreca (together, Block A) and the promising buyer: Visabeira”,

On the same date, a shareholders' agreement was signed between the same parties, regulating their relations as shareholders of Martifer, covering the way in which the parties will exercise their respective voting rights.

Both agreements are subject to suspensive conditions.

“The conclusion of these agreements has implications for the allocation of voting rights. With the sale, IM will remain the direct owner of 24,087,802 shares, representing 24.09% of the share capital and 24.63% of the voting rights, and Visabeira will become the owner of 24,000,000 shares, representing 24% of the share capital and 24.54% of the voting rights”.

Thus, if considered together, the holdings in question exceed one third of the voting rights (but not half), the first relevant threshold for assessing control over a listed company and for triggering, in the event of a change of control, the imposition of the obligation to launch a takeover bid.

In this context, the parties submitted a request to the CMVM with the aim of demonstrating that, despite the conclusion of the aforementioned agreements, there is no change in the entity that exercises dominant influence over Martifer, and therefore, the obligation to launch a takeover bid does not apply.

Now, “having analysed the grounds for the request in light of the terms and conditions of the aforementioned agreements, as amended by the applicants, and following the steps taken by the CMVM, it is concluded that there are contractual clauses by means of which the applicants (Bloco A and Visabeira) declare that they coordinate their respective voting rights on a relevant set of matters, including the election of directors and the distribution of dividends, which indicates concerted action”.

However, the contractual clauses relating to the exercise of voting rights expressly provide that such voting rights must be exercised in accordance with the position determined by IM. This means that one of the parties to the agreement (Visabeira) has the right to convey its position on the issues under deliberation, but not the right to make its will prevail over that of the other party to the agreement (IM).

“As can be seen, Visabeira is subordinate to the positions defended by IM regarding the exercise of voting rights. In this sense, IM reserves for itself the right, through the shareholders' agreement with Visabeira, to control the same percentage of the voting rights that it previously held directly (49.18%), thus maintaining within its sphere the power to exercise dominant influence over Martifer”, explains the CMVM.

In addition to the clauses relating to the exercise of voting rights, the parties also establish clauses relating to the transferability of the shares held by them, granting several rights that prevent the sale to a third party and make the selling party's share (of the counterparty that does not intend to sell) their own. “However, in addition to such clauses providing for symmetrical rights between the parties, they do not allow it to be argued that their exercise, or the threat of their exercise by Visabeira, is likely to remove the prevalence of IM's will, as contractually provided for”, considers the markets regulator.

Thus, the CMVM Board of Directors decided to confirm that Visabeira demonstrated that it could not exercise dominant influence over Martifer, “and consequently the launch of a public takeover bid (mandatory) is not required, without prejudice to the attribution of voting rights that arise from the application of art. 20, for the purposes of art. 16, both of the Securities Code (CVM)”.

“Having carried out the aforementioned test, Visabeira is obliged, under the terms of art. 187, no. 7 of the Portuguese Securities Code, to immediately communicate to the CMVM any change in the percentage of voting rights resulting in an increase of more than one percent in relation to the situation previously communicated; and to launch a general public acquisition offer as soon as it has the power to exercise dominant influence over the target company”, warns the CMVM.

The CMVM stresses that “it is concluded that IM is attributable voting rights corresponding to 49.18%, both for the purposes of art. 16 and for the purposes of art. 187, and that it is not legally required to launch a takeover bid, given that it already held, since Martifer entered the market, a direct stake exceeding the threshold of one third, regardless of the qualified stake resulting from the execution of a previous shareholder agreement with Mota-Engil SGPS”.

“As for the remaining members of Block A, it should be noted that, under the terms of the shareholders' agreement, they are completely subordinate to the instructions of IM, and therefore the agreement does not grant them powers to exercise dominant influence”, reads the statement.

The parties also informed the CMVM that these members of Block A will sell all of their shares to Visabeira in execution of the CPCV, “so they will no longer hold any shares in Martifer”.

The CMVM's decision of 23 June 2025 was subject, “under the terms of article 149, paragraph 1 of the Code of Administrative Procedure, to the aforementioned shareholder agreement being sent to this Commission duly signed and amended by the parties in the sense that was identified in the context of the respective administrative procedure”.

“With the submission of the aforementioned agreement on June 26, 2025, the aforementioned decision produced its effects” concludes the Securities Market Commission.