Filing and documentary requirements

General filing requirements

Give details of any filing requirements for public offerings of debt securities. Outline any requirements for debt securities that are not applicable to offerings of other securities.

Public offerings are subject to two basic principles: equal treatment and offer stability, upon their announcement. According to the Portuguese legal regime, in line with EU major guidelines, the public offerings of debt securities shall comply with the following requirements:

  • prior approval of the prospectus by the CMVM, which will follow the provisions set forth in the Prospectus Regulation;
  • the intervention of a financial intermediary, providing placement and assistance services, in case the issuer is not qualified as a financial intermediary; and
  • disclosure and distribution of the prospectus to investors.

Along with the prospectus, the offeror’s request for approval must be supported by the following documentation:

  • copy of the offer’s resolution issued by the offeror’s board of directors and further administrative decisions required;
  • copy of the issuer or the offeror’s by-laws (as the case may be);
  • certified copy by the competent commercial registry office of the valid permanent certificate of the issuer or the offeror (as the case may be);
  • copy of the financial statements of the issuer, supervisory board’s opinion and legal accounts certificate, concerning the relevant period under the terms of the prospectus regulation;
  • auditor’s report;
  • ISIN code;
  • copy of the agreement concluded with the financial intermediary in charge of assisting the offer;
  • copy of the underwriting agreement, if applicable; and
  • any other legally required documentation, if applicable (expert report, pro-forma financial information, offer’s project announcement).

Regarding structured products (ie, securitised bonds), a key information document (KID) must be provided to small investors before contracting for investment products, under the terms of the PRIIPS Regulation. The KID aims to provide clear, comparable and complete information on investment products.

The Portuguese Securities Code does not distinguish public offerings by type of security, but rather by type of operation (subscription, sale or acquisition).

Prospectus requirements

In a public offering of debt securities, must the issuer produce a prospectus or similar documentation? What information must it contain?

Yes, see also question 3. As regards debt securities public offerings, the prospectus must contain:

  • a summary, providing investors with key information concerning the nature and risks of the issuer and the securities, including the rights granted by such securities;
  • selling restrictions;
  • brief description of the risks and essential features of the issuer, including assets, debt and financial situation;
  • general terms of the offer, including the expenses investors may incur before the issuer;
  • detailed information concerning admission to trading;
  • the purpose of the offer and the allocation of its revenues;
  • the people responsible for its content;
  • the legal structure and composition of the issuers’ bodies; and
  • reference to liability that may arise from its drafting.

Notwithstanding the foregoing, it should be noted that, in some cases, the Securities Code does not require the prior drafting of a prospectus. The following operations, in relation to what concerns debt securities offerings, are not subject to such requirement:

  • securities offers, by merger or demerger, in the case that, 15 days prior to such resolution by the competent body, a document containing prospectus-equivalent information (as considered by the CMVM) is available;
  • securities offers to the offeror’s directors or employees or promoted by an entity in relation with the offeror or subject to the same legal framework, as long as the issuer’s registered office is based in the EU and a document containing the conditions of the offer and the securities is made available; and
  • securities offers promoted by a non-EU based entity, provided that such securities are admitted to trading in an EU-regulated market or in a non-EU-regulated market. In the latter case, adequate information shall be made available, including a document containing the conditions of the offer and the securities, and the European Commission shall have adopted a decision on the equivalence of that state market.
Documentation

Describe the drafting process for the offering document.

The main issues regarding offer documentation relate to disclosure requirements. The information provided by the issuer must be complete, trustworthy, updated and objective, allowing investors to obtain a clear judgement on the terms of the offer, on the securities and on the financial condition of the issuer.

Nonetheless, the Securities Code allows the offeror to require the CMVM not to include certain information in the prospectus, if:

  • disclosure of such information is contrary to the public interest;
  • disclosure of such information has a significant impact on the issuer (as long as such omission does not mislead the investors’ appraisal); or
  • disclosure of such information is not relevant to the offer, nor influences the offeror’s financial situation appraisal.

As mentioned previously, the prospectus must contain adequate and sufficient information in order to fulfil the above-mentioned purpose. While drafting the offering documentation, offerors and further individuals or entities responsible for preparing the offer must bear in mind that they might be liable for damage caused by any discrepancy between the content of the prospectus and the existing factual situation, described in the terms set out above. Moreover, in this case, the CMVM is entitled to impose fines and penalties, as the violation of such duty constitutes an administrative penalty (see questions 26, 27 and 28).

The duty of information imposed on the offeror varies according to the type of offer. In the event of a private placement, the disclosure requirements are considerably lower, as the offer’s addressee is in the position of obtaining the relevant information itself.

Which key documents govern the terms and conditions of the debt securities? Who are the parties to such documents? How can such documents be accessed?

The terms and conditions of debt securities, such as bonds or notes, are often governed by EMTN programmes or other relevant domestic programmes. In the case of a standalone issuance, the parties establish a contractual relationship ad hoc, without prejudice to the relevant provisions of the programme that might be imported.

Regardless of the type of issuance, the contractual instruments agreed by the parties are mostly the same:

  • a subscription or programme agreement, signed by the issuer and the subscriber;
  • a paying agency agreement, signed by the issuer and the paying agent in charge of assisting the offer; and
  • a common representative appointment agreement, to mandate the noteholders’ representative, operating as a spokesperson, usually in place for the duration of the transaction.

The terms and conditions of the debt securities shall be made available by the financial intermediary, in the case of public offers, or directly by the issuer, in the case of a private placement.

Does offering documentation require approval before publication? In what forms should it be available?

As regards public offers, the CMVM must approve the offering documentation before publication (see questions 3, 4 and 8).

The prospectus can only be published upon CMVM approval. Upon approval, the final version of the prospectus shall be sent to the CMVM and made available to the public (in the terms referred to in question 11). In general, the prospectus must be disclosed until the last day before the offer gets under way. However, if the offer has been preceded by the negotiation of rights, the prospectus shall be disclosed by the business day prior to the date where such rights are detached.

Authorisation

Are public offerings of debt securities subject to review and authorisation? What is the time frame for approval? What are the restrictions imposed, if any, on the issuer and the underwriters during the review process?

Public offerings of debt securities are subject to review and authorisation, as mentioned above. The CMVM must approve the prospectus within 10 days, unless the issuer has never been involved in a public offer previously, which will extend the deadline to 20 days.

Any advertising material related to the offer is subject to review and authorisation by the CMVM as well. The CMVM may authorise publication of advertising material prior to approval of the prospectus or registration of the offer, if it considers the approval or registration as viable.

The absence of a decision within the referred time period implies the rejection of the request.

On what grounds may the regulators refuse to approve a public offering of securities?

The regulator shall refuse the offer if:

  • the documents submitted (as set out in question 3) are false or forged, or do not comply with any legal requirements; or
  • the offer is considered illegal or is deemed a fraud contrary to law.

How do the rules differ for public and private offerings of debt securities? What types of exemptions from registration are available?

The issuer shall register the securities with Interbolsa, as operator and manager of CVM and, in the case of an open company (including but not restricted to publicly held companies), communicate the issuance to the CMVM, whether the offer is public or private.

As to public offers, prior registration is not required if:

  • the issuer is an EU member state or any related public entity;
  • the securities are unconditional and irrevocably guaranteed by such state or entity;
  • the issuer is the European Central Bank or any central bank of any EU member state;
  • the issuer is a publicly held collective investment entity;
  • the offer is exclusively announced in a regulated market registered with the CMVM;
  • the securities are tradable in integral multiples of €100,000 (minimum);
  • the issuer is a public international body participated in by at least one member state;
  • the issuer is a not-for-profit entity, as recognised by a member state;
  • the issuer is a credit institution and the securities are non-subordinated, non-convertible, non-exchangeable and refundable;
  • the total amount of the securities in the EU is less than €5 million;
  • the issuer is a credit institution and the total amount of the offer in the EU is less than €75 million and the securities are non-subordinated and non-convertible;
  • the issuer is a collective investment entity; or
  • the securities’ maturity is less than one year.

Private placement offers do not require the elaboration and prior approval of a prospectus, nor any of its subsequent terms, but are generally required to be registered with the commercial registration authority.

Offering process

Describe the public offering process for debt securities. How does the private offering process differ?

In relation to public offers, the offeror shall submit the request to register the offer or to approve the prospectus. The CMVM shall then, within 10 or 20 days (as mentioned in question 8), accept or refuse the request. The time period of the offer must be fixed by the offeror according to the terms of the offer, to the potential investors and issuers’ interest and to the market functions’ demands. However, after approval by the regulator, the prospectus is only valid for 12 months.

Once the offer is approved and announced, the offeror can only review its terms once, by reducing (at least) 2 per cent of the price initially announced. However, in the case of a change in circumstances, the offer may be revoked.

During this period, investors must transmit their acceptance orders to the financial intermediary appointed by the offeror (such acceptance orders might be revoked until five days before the offer’s deadline, unless otherwise provided by the offer documentation).

Once the deadline is reached, the financial intermediary shall calculate and publish the results and also, as the case may be, announce the securities’ admission to trading.

In relation to marketing and advertising, the offeror might publicly announce the offer by any means deemed as appropriate (eg, press release; statement of the board of directors; through the offeror’s, the financial intermediary’s or the CMVM’s website; newspaper; documents may be made available for consultation at the offeror’s registered office or at the financial intermediary’s branches).

As to private offers, the negotiation of the relevant contractual instruments shall be made by the parties, inter alia, the offeror or issuer, the subscriber, the paying agent, financial intermediaries and legal advisers.

Closing documents

What are the usual closing documents that the underwriters or the initial purchasers require in public and private offerings of debt securities from the issuer or third parties?

Typically, when dealing with a private placement, underwriters tend to require the following set of documents:

  • certified copy by the competent commercial registry office of the valid permanent certificate of the issuer;
  • copy of the issuer’s updated by laws or articles of association;
  • certified copy of the resolutions of the board of directors of the issuer authorising the issuance;
  • non-insolvency certificate;
  • legal opinion supplied by the issuer’s attorneys;
  • legal opinion supplied by the subscriber’s attorneys; and
  • auditors’ comfort letter to cover for the period elapsed between the last approved accounts and the offer.

The situation differs in the event of a public offer. Since the applicable law requires an exhaustive set of documentation, previously provided and disclosed by the offeror, no further items are needed.

Listing fees

What are the typical fees for listing debt securities on the principal exchanges?

Issuers usually pay an admission fee in respect of medium or long-term debt securities (one-time fee payable at the time of the initial listing, for each admission) and annual fees (payable annually by a company to remain listed on an exchange).

The fees due from companies for listing medium or long-term debt securities are as follows (see Listing Fee Book 2019):

Medium-/long-term debt securities

Standalone

Programme

1: Admission fee

€150 per tranche of €25 million (maximum €3,750)

€700 per line

Issued amount (€ million) (greater than - up to or equal to)

Fee per year

2: Annuity fee

0 - 50

€525

50 - 100

€550

100 - 250

€575

250 - 500

€600

500 and above

€625

Maximum fee (1 + 2)

€16,250

€13,200

As to short-term debt securities (issuers are not required to pay an annual fee for straight debt securities unless explicitly prescribed in a notice published by Euronext), the fees are as follows:

Short-term debt securities

Type of fee

Fee

1: Admission fee

€150 per line

2: Variable fee

€10 per €m issued amount x (number of admisssion days/365)

Maximum fee (1+2)

€15,000

Each issuer shall pay an annual fee of €500 per line for debt securities linked to equity securities (such as convertibles, exchangeable bonds) issued by it.

Additionally, each issuer shall pay an extra fee if Euronext Paris SA or Euronext Brussels NV/SA performs centralisation services in respect of an admission of debt securities:

Debt securities

Amount centralised (€m)

Fee

Tranche (greater than - up to or equal to)

0 - 25

€10,000

25 - 50

€20,000

50 - 100

€40,000

100 and above

€40,000 + 0.3 per cent of the centralisation amount in excess of €100 million