The year 2022 was widely anticipated as the turning point in the Portuguese economy, after almost two years of the COVID-19 pandemic that brought the national hospitality industry and most of the broader services sectors to their knees. The recovery has been marred by geopolitical tensions and dramatic inflationary pressures, which have left businesses and consumers uncertain as the future.

As of this writing, some significant mergers and acquisitions have taken place in 2022, the most significant of which involved private market participants. Vivalto Santé, the third largest group in terms of private hospitals and clinics in France (backed by private institutional investors including BNP Paribas Development, Crédit Group Agricole, and Mubadala) signed an agreement to acquire Lusíadas Group (also the third largest provider of private healthcare in Portugal).

In 2022 (to date), other notable deals centred around the energy (eg, acquisition by infrastructure funds such as Aquila Capital of renewable greenfield projects), infrastructure (eg, secondary sales between Bridgepoint and Antin Partners regarding water waste manager Miya Group) and real estate sectors (eg, KKR's sale of Smart Studios to Round Hill Capital).

Inspite of economic headwinds, private market fundamentals remain strong and there has been significant interest in raising money and investing in Portugal through private equity.

The latest available monthly data for private equity transactions (July 2022) indicate that disclosed deal value declined by 36% on a year-over-year basis (but deal numbers declined by 8%).

In this year's transactions, foreign capital has almost exclusively been involved in transactions related to distribution and retail, software and IT, renewable energies and real estate.

Private equity activity has followed the trend of the overall mergers and acquisitions market and has been slow relatively slow, although it is steadily gaining ground. Among the notable private equity deals not referred to above include Cinven-backed Restaurant Brands Iberia's acquisition of Portuguese Burger King franchises from Ibersol (for EUR260 million) and Omnes Capital and Mirova's investment in solar energy developer Tag Energy (total investment of EUR450 million).

In 2021 to date, the number and value of mergers and acquisitions in Portugal declined in the first five months compared to the same period last year. The technology and real estate sectors remained the most active. Specifically, eight major private equity transactions have been completed up to May, with a total value of EUR204 million. This represents a 33% decrease in the number of transactions and a 93% decrease in the total value compared to the same period in 2020 (Source: Transactional Track Record).

In other trends, for the demand-side dynamics of this market, the most relevant government incentives which generate sources of capital for private equity managers still have a significant impact. In particular:

• public funds to revitalise Portuguese SMEs and invest in Portuguese start-ups are still available and on a more flexible basis than previously (due to the effects of COVID-19 on the economy); and
• in spite of the stricter conditions (particularly the increased minimum investment amount of EUR500,000), national and geopolitical tensions as well as the spotlight cast on Portugal as an investment and living destination continue to attract significant investment from high-income individuals in order to obtain a golden visa by investing in funds.

Last but not least, environmental, social, and governance (ESG) investing is slowly making its way to Portugal. The investment in ESG products (including alternative funds) is still strong in Europe despite a PR backlash in early 2022, and private equity fund managers who develop innovative sustainable investment ideas are expected to tap into specialised investors in the field in the future.

In line with the trend in the rest of the EU, the demands regarding regulatory compliance for (alternative) fund managers have been steadily increasing in the past few years. Private equity has been no exception. 

Adapting to ESG Rules 

Private equity fund managers are starting to adapt to European rules on ESG matters, via the mandatory disclosure requirements of Regulation (EU) 2019/2088 of the European Parliament and of the Council (SFDR) as well as Regulation (EU) 2020/852 of the European Parliament and of the Council (Taxonomy Regulation), which have recently come into force.

In our knowledge (but this cannot be definitively confirmed given that private equity fund regulations and marketing materials are not publicly available), there has not been any record of a private equity fund in Portugal that promotes sustainable investments according to Articles 8 or 9 of the SFDR (one mutual fund, however, was recently approved). In any case, compliance is about to become significantly more difficult (but also more transparent and more helpful for investors) for both fund managers aiming to promote such funds and those recognising that their activities may have adverse sustainability impacts with the upcoming entry into force of “SFDR level 2” regulations (approved by Commission Delegated Regulation (EU) 2021/2178 of 6 July 2021).

More Stringent KYC and Other AML Policies 

Also fairly recent is the new anti-money laundering (AML) legislation, approved by Law No 83/2017 (implementing EU Directives and FATF recommendations), which has significantly changed “compliance” practices for both private equity managers (which are subject to the obligations established in said statute) and the respective funds’ portfolio companies.

With the new legislation, fund managers have been forced to implement more stringent "know your customer" (KYC) and other AML policies (as well as anti-sanctions), both for themselves and their funds’ subsidiaries, which are also within the subjective scope of this law (financial institutions, real estate companies, etc). As a result of these enhanced obligations, mergers and acquisitions transactions and the operating costs for private equity funds have become more complex and time consuming.

Anti-corruption and Whistle-Blowing Rules 

In late 2021, new legislation was passed regarding anti-corruption and whistle-blowing. In a nutshell: 

• companies with more than 50 employees are now required to (i) designate a compliance officer tasked, at least, with anti-corruption functions and (ii) implement other anti-corruption policies; and 
• companies with more than 50 employees and regulated entities, such as fund managers, are required to make available channels for whistle-blowing. 

From the perspective of the private equity sector, this legislation will also add additional regulatory compliance requirements to private equity managers and their (large) portfolio companies but, on the other hand, will ensure that managers have procedures in place for antibribery that are in line with those of Anglo-Saxon countries; this can provide an opportunity (from a fundraising perspective) to tap into institutional investors incorporated in those jurisdictions.  

New Fund Management Legal Framework 

Recently (at the end of 2021) CMVM placed under review a draft diploma of a New Asset Management Framework, which entails a full revision of the private equity legal regime (Law No. 18/2015), as well as of the Portuguese legal regime for UCITS and other alternative investment funds (Law No. 16/2015), merging these two statutes into one. 

With this revision, CMVM aims to create a unified legal framework for the asset management (including private equity) industry, which is intended to be simpler, more coherent, and more credible by emphasising a risk-based approach and on ex-post supervision (as an alternative to burdensome and lengthy authorisation processes) and very importantly, eliminating excessive regulation over pre-existing Directive provisions (ie, “gold-plating”). 

The main body which provides regulatory oversight for private equity funds (incorporated in Portugal) is CMVM. In addition to assessing the legality of the registration and incorporation of private equity funds, it monitors their governance, activities, and financial standing.

The main regulators of mergers and acquisitions activity and foreign investment are as follows: 

• the Portuguese Competition Authority and the European Commission for merger control (which also have jurisdiction when the seller or purchaser is backed by private equity);
• CMVM for offers to acquire listed companies and for public-to-private (P2P) transactions;
• the Portuguese government with regard to foreign investment control and concessions for the operation of certain public goods; and
• sectoral regulators such as ANACOM (telecommunications), ERSE and DGEG (energy), the Bank of Portugal (credit institutions), ASF (insurers and pension funds) and CMVM itself (fund managers and financial intermediaries) also review and clear acquisitions of businesses in those sectors.

For foreign investment control, review is triggered if the potential purchaser is ultimately owned by an entity outside of the European Economic Area and also if the target assets are deemed “strategic assets” for the country (meaning the main infrastructure and assets assigned to national security or defence or to the rendering of essential services in the areas of energy, transportation and communications). 

With regards to antitrust, private equity-backed companies are subject to merger control rules, essentially in the same manner as corporates. Turnover and other relevant metrics are normally assessed at the level of the management entity (ie, taking into account the aggregate of the funds managed by the management entity).

In relation to sanctions, from anecdotal evidence there is awareness that the war in Ukraine and the ensuing sanctions against some individuals and companies of the Russian Federation have made it increasingly difficulty for Russian citizens and companies (including those not subject to sanctions) to open and operate bank accounts and use the financial system (in Portugal, as in the rest of the EU). The impact of sanctions on private equity fundraising and deal-making in Portugal, however, appears to have been minimal. 

As outlined above (detailed in 2.1 Impact on Funds and Transactions), new rules concerning anti-bribery and ESG compliance have recently been approved. However, due to the novelty of these regimes, supervisory actions and enforcement efforts have been limited in these areas as of yet.

The practice of legal due diligence is common in private equity-driven transactions in Portugal, especially when private equity sponsors are involved. 

The due diligence process is usually conducted on a “by-exception” or “red flag” basis (except there are key contracts or other legal instruments underlying the target business, in which case, the respective main legal terms are described).

The key areas include material agreements, licences and regulatory environment, corporate and intragroup relationships (services agreements, cash pooling, etc) and financing. Taxes are also a common concern (but are often dealt with separately from legal due diligence).

A vendor due diligence is often conducted in transactions involving private equity sellers in order to (pre-emptively) resolve any legal issues the target may be experiencing prior to a sale and/or to get buyers up to speed on the company and to impose “fair disclosure” exceptions on the purchase and sale agreements (pertaining to the report's conclusion).

Advisers involved in preparing the vendor's due diligence reports are often asked to provide a statement of reliance to the financing banks of the buyer. It is common for the buyers’ advisers to provide such reliance in their own reports (to banks and to insurance companies, in the latter case, if warranty and indemnity (W&I) insurance is obtained for the transaction). 

A general disclosure of information to buy-side advisers is common, but it is not accompanied by reliance (except for financing banks as previously mentioned and W&I insurance providers).

Most acquisitions by private equity funds are made through private sale and purchase agreements of equity participations in the target company. Asset sales occur less often, due to tax and legal structuring reasons. 

When companies wish to divest an unincorporated part of their business, they typically restructure the same in advance through a carve-out process.  

Court-approved schemes in insolvency or reorganisation proceedings have also gained popularity in distressed transactions, notably debt-equity swaps in real estate assets and related businesses (hospitality and logistics).

In terms of process, auction sales are becoming more common, notably in larger deals; by encouraging competition between potential bidders, auction sales typically make the transaction more seller-friendly (by improving the price, as well as offering more favourable terms in warranties and indemnities). 

A typical private equity investment structure in Portugal involves a private equity fund managed by a regulated management entity that incorporates a wholly owned special-purpose vehicle (SPV) to complete the acquisition (usually for liability ring-fencing purposes).

The SPV is then funded with equity from the fund (capital, quasi-equity contributions or shareholder loans) to complete the acquisition, and in larger deals, bank financing is also obtained.

Private equity transactions are usually financed with equity or quasi-equity, from the private equity fund, and debt (depending on the transaction size, the financing structure and the type of assets involved).

To increase certainty from the seller's side to receive the price, equity commitment letters are often requested from the private equity buyer’s structure, either from a corporate entity higher up in the fund’s chain of control or from the fund itself, especially in auction sales.

As far as ownership is concerned, the level of equity participation of the private equity fund depends on the type and circumstances of the transaction: for example, in management buyouts and “growth” transactions, funds typically hold a minority share of the equity, whereas in distressed transactions, a fund retains the majority or all equity in the entity.

Consortium Deals

Portugal does not commonly engage in deals involving consortium sponsors; however, when the target size is such that private equity sponsors are required, such a consortium may be formed (notably, in the purchase of an 81% stake in Brisa, Portugal’s largest highway toll operator, by a consortium of three private equity pension fund investors as well as six hydroelectric plants in the North of Portugal from EDP, Portugal's largest industry and utility company.

Co-investment Business Models

There are some fund managers who are exploring joint-investment arrangements with unit holders (the equivalent of the limited partner in the Portuguese context, eg, institutional asset managers and “first tier” foreign private equity firms) in large transactions.

In these cases, the fund will own a minority (largely passive) interest in the acquisition vehicle that is majority-owned by one or more of its unit holders.

Club Deals

There appears to be a heightened interest in the private equity market for club deals, both among traditional players and newcomers. Nonetheless, investors should be aware of the regulatory implications of taking this route, as the definition of alternative investment funds under European law (and the regulations resulting from that definition) may be broad enough to encompass certain co-investment structures as well.

Price adjustment mechanisms in mergers and acquisitions transactions (involving both private equity and corporates) usually have either locked box or completion account mechanisms. Fixed price transactions (ie, with no adjustment whatsoever) are not common.

Locked-box mechanisms are being increasingly utilised due to their ease of use over the “completion accounts” mechanism (which entails the preparation of target accounts as of the date of closing, a process that is usually costly and time-consuming).

To protect the interests of buyers, private equity sellers agree not to, for instance:

• engage in transactions that would cause value to “leak” from the target group (in locked-box structures);
• allow the buyer to dispute draft completion accounts); and/or
• cause material changes to the company during the period between signing and closing (in both cases).

This does not differ materially from deals where sellers are corporates.

Private Equity Buyers and Volatile Turnovers

Private equity buyers provide equity support/commitment letters as a way to provide surety to the seller that the price will be paid (as well as other eventual pecuniary obligations fulfilled). A parent company guarantee (which would in theory offer stronger protection than equity support instruments) or the private equity fund as a joint and several obligor are situations that are not frequently encountered.

In transactions involving businesses with volatile turnover and in which management remains within the organisation (such as MBOs) earn-outs are often agreed upon by the parties to the transaction.

In locked-box structures, interest is usually charged on amounts classified as leakage, although this is not always the case.

Independent experts (indicated by a joint selection process of buyer and seller, and usually an international audit/consultancy firm or investment bank) are typically used to determine leakage values in locked-box models and cash/debt/change in working capital values in completion account models. It is far less common resolve such disputes through arbitration or judicial courts proceedings.

Albeit common when it comes to conditions of a regulatory nature, conditionality in acquisition documentation is not prevalent, notably in an auction sale, because it reduces certainty for the seller that it will be able to complete the deal.

In particular prior to the COVID-19 pandemic, conditions other than those of a regulatory nature were not common, although sometimes third-party consents in key contracts (notably pre-existing financing arrangements or concession agreements) and prior corporate restructurings are included. Making the transaction conditional on obtaining financing is rare (and usually “prohibited” in auction sales’ process letters).

The pandemic resulted in an increase in:

• the use of material adverse change/effect clauses; and
• the use of conditional and deferred price structures (making the calculation of the purchase price more complex).

To increase certainty in execution, sellers usually include such undertakings in transaction documents, particularly in auction sales, again to increase certainty in execution; however, these undertakings are usually successfully resisted by buyers, particularly private equity buyers who have demanding financial return objectives (which could be adversely affected if portfolio companies are divested too soon) and are often constrained by their investment mandates.

In Portugal, break fees and reverse break fees are rarely applied.

Termination rights are usually assigned to a private equity seller, ie, if the closing of the agreement does not occur by the long-stop date.

Private equity buyers are typically allowed to terminate their investments in the following circumstances:

• closing of the agreement does not occur by the long-stop date;
• failure by the seller to comply with material closing actions; and/or
• (in buyer-friendly transactions) the occurrence of a “material adverse change”.

In transactions where the seller is a private equity fund, the risk allocation is typically shifted in its favour (compared to a “corporate” seller). The primary reason is that the private equity seller has a limited period in which it may be liable (private equity funds are eventually dissolved and wound up). Long lists of warranties, extended warranty claims' periods, and indemnities are thus rendered less effective (and less acceptable to the private equity seller).

In cases where the buyer is a private equity fund, there are no fundamental differences in risk allocation in relation to a “corporate” buyer: those are determined primarily by the economics and circumstances of the transaction. The main limitations of liability for private equity sellers are those related to breach of representations and warranties in acquisition agreements (detailed in 6.9 Warranty Protection), however, these limitations (quantitative and with regard to time) on liability may also apply to a breach of other undertakings or covenants under the agreement by the seller.

The warranties provided by a private equity seller to a buyer on an exit are usually limited. In most cases, “Fundamental warranties” are provided regarding the existence (of the seller and the target), capacity to enter into the agreement, and share ownership. “Business” warranties are more limited and reserved for certain key matters. Private equity sellers’ liabilities arising from breach of warranties are usually subject to caps in liability for breach of warranties, de minimis and basket provisions.

The contents of the data room and disclosure letters typically exempt the seller from liability in the case of breach of warranties. Moreover, it has an advantage for the buyer as it precipitates the disclosure of many issues which might otherwise be kept “under the radar”.

Typical quantitative limitations on liability include:

• cap for breach of warranties – 10% to 20% of the aggregate consideration;
• time limitations to claim for breach of warranties – 12 to 24 months;
• de minimis – 0.1% of aggregate consideration; and
• basket – 1% of aggregate consideration.

In turn, qualitative limitations in the acquisition agreement usually include:

• issues known and fairly disclosed;
• changes in the law;
• liabilities provisioned in accounts; and
• actions which have been agreed in writing with the purchaser.

If the event that W&I insurance is contracted, however, these limitations will necessarily be different (ie, the buyer acknowledges that it will not make a claim under the acquisition agreement and that claims regarding breach of warranties will be brought against the insurance company under the terms of the insurance policy, which in turn also includes its own limitations).

Besides warranties, other protections offered by a private equity seller in an acquisition agreement include interim period obligations (including limitation on the management of the target company outside of the ordinary course of business) as well as pre or post-closing undertakings (idiosyncratic to the transaction). There are also mechanisms for price retention, but indemnities are rarely provided.

With relation to W&I insurance, the same is an increasingly common feature in Portuguese PE transactions. Policy costs (which are relatively expensive) are usually borne by the buyer and cover a wide range of business warranties based on due diligence conducted by the insurance company (which, in turn, takes into account the vendor's due diligence and the buyers' due diligence). Pollution liability, pension underfunding, certain tax liabilities and sanctions are some of the common exclusions.

A private equity transaction rarely ends in litigation (especially when arbitration is used as a dispute resolution method, where its costs act as a relevant deterrent). The majority of pre-litigation disputes concern (alleged) breaches of warranty and the applicability of earn-out provisions (eg, whether the respective earn-out events have been triggered).

In Portugal, P2P transactions are uncommon. The only one P2P transaction to have succeeded is the takeover of Brisa, the above-mentioned highway toll operator (see 5.4 Multiple Investors) by its reference shareholder and a private equity sponsor (Arcus).

Under the provision of Article 16 of the Portuguese Securities Code, any person that reaches 2%, 5%, 10%, 15%, 20%, 25%, 33%, 50%, 66% and 90% of the voting rights of: (i) a listed company subject to Portuguese law (or reduces its level of voting rights below said thresholds); or (ii) a foreign company whose shares are exclusively admitted to trading in Portugal must, as soon as possible, and within a maximum period of four trading days after the occurrence of the fact or knowledge of the same, inform CMVM and the target company.

The communication must:

• identify the market participant as well as the individual or legal person entitled to exercise voting rights on its behalf (when applicable);
• show the entire chain of entities to which the participation is attributed (whether national or foreign);
• explain the situation by which voting rights inherent to securities owned by third parties are attributable to the market participant;
• contain the percentage of voting rights attributable to the holder of the participation, the percentage of the share capital and the number of shares corresponding, as well as, when applicable, the identification of the participation by category of shares (when the issuer has several categories outstanding) and the title of attribution of voting rights; and/or
• show the date on which the participation reached, surpassed or was reduced to the above-mentioned thresholds.

Even simple changes in the chain of attribution of voting rights must also be notified to CMVM and the target listed company.

A person that has over 33% or 50% of the voting rights of a listed company has a duty to launch a public tender offer over the entire share capital and other securities issued by such listed company which grant the right for their subscription or acquisition (Article 187 of the Portuguese Securities Code).

If a person exceeds only 33% of the voting rights of the listed company, the obligation to launch a mandatory tender offer will, however, not be due if the person that is bound by such obligation proves before CMVM that it does not have control of the target company nor is it in a group relationship with the target company.

The consideration offered in a mandatory offer must be the highest of:

• the highest price paid or committed to be paid by the offeror or any person whose voting rights are attributable to it during the six months prior to the announcement of the offer; or
• the volume weighted average price of the stock in the six months prior to the offer.

The consideration in public tender offers can be made in cash or in securities.

Typically, cash is the consideration of choice in tender offers, perhaps due to the relative “shallowness” of the Portuguese equity capital market.

Common conditions to launch the offer, incorporated in the offer announcements, include unblocking of voting limitations in the general shareholders' meeting (when by-laws of the target include such voting limitations) and regulatory clearances.

The effectiveness of the offer (when the offeror seeks to obtain control of the target company) is usually subject to the condition of obtaining more than 50% of the voting rights in the offer.

It is not generally allowed under Portuguese law for a takeover offer to be conditional on obtaining financing, given the fact that the buyer must have funds available to pay the full price resulting from the offer.

To ensure the protection of the bidder in the offer, break fees have been referenced as a way for the bidder to cover its costs should the offer not be successful. While not expressly prohibited under Portuguese law, break fees carry a considerable degree of risk for the target company’s directors, given that:

• the fee could be considered a breach of directors’ duties (if the fee is proven to be a way to entrench management or to favour one shareholder over another); and/or
• if the fee is sufficiently high, this could breach the “passivity rule”, which prevents management from making material decisions that would affect the target company before the offer is completed.

The law allows bidders to increase the price offered at any time, especially when a competitive bid is being submitted.

Outside their shareholding, a person acquiring less than 100% in a tender offer can make use of the statutory squeeze-out procedure to acquire the entire share capital of the target.

If a purchaser (by itself or through related entities whose voting rights are attributable to it) holds more than 90% of the voting rights in a Portuguese listed company up to the assessment of the offer results or 90% of the voting rights encompassed by the offer, it may in the three subsequent months acquire the remaining shares through fair consideration, in cash.

The consideration offered must be the highest of:

• the highest price paid or committed to be paid by the offeror or any of the persons whose voting rights are attributable to it during the six months prior to the announcement of the offer; or
• the volume weighted average price of the stock in the six months prior to the offer.

The offeror that intends to launch a squeeze-out procedure must immediately announce it and send it to CMVM to be registered. At the order of the remaining shareholders, they must also deposit the total consideration in a credit institution. 

The acquisition of the remaining shareholders under a squeeze-out procedure is effective from the date of publication, by the offeror, of the registration before CMVM.

The negotiation of irrevocable commitments in tender offers that occur prior to the announcement of the transaction is not common in Portugal.

In order to ensure that these commitments, which must in principle be disclosed, do not result in the CMVM evaluating the voting rights of the committing shareholders as being attributed to the offeror (which may trigger mandatory public offer thresholds), protections are sometimes provided for investors who wish to accept competing offers or exit in another manner.

As a matter of law, hostile takeovers are admitted in Portugal and a few have been announced and launched.

However, there have never apparently been unsolicited (and unsanctioned) tender offers by a private equity player to a Portuguese company.

Offering managers equity incentives/ownership is a common, but not inevitable, feature of private equity transactions in Portugal.

There is no standard way to attribute management shares, and equity participations can range anywhere from residual (5–10%) to significant (40–49%). In certain management buyout transactions, management will hold the majority of the share capital post-transaction.

Employee stock option plans (virtual or physical) are sometimes also used for management and other relevant company employees.

Managers are often granted common shares with vesting provisions, and preferred instruments are not commonly used in management equity.

Good leaver/bad leaver provisions, which qualify the circumstances in which managers cease holding participation or directorships/employment positions in the target, are normally included in shareholders agreements regarding the target, which are entered into between management and the private equity sponsor.

Good leaver provisions are triggered if managers are forced to depart from the company due to extreme circumstances outside of their control (such as a serious disease or injury). In turn, bad leaver provisions are usually triggered if managers leave the company without being considered good leavers.

In venture capital transactions, vesting provisions (where management is prevented, through contractual means, from fully owning the equity participations acquired/subscribed in the transaction) are also included in the relevant shareholders' agreement. The vesting period will be three to four years long, with a one-year cliff (ie, whereby some share vests) and two to three years of “linear” vesting (for the remaining shares).

If the manager is deemed a bad leaver, private equity sponsors will be granted the right to purchase the former’s shares at nominal value. If, however, the manager parts ways with the company as a good leaver (and the agreement is negotiated in a balanced manner), private equity sponsors will usually be required (or have the right) to purchase the manager's shares at fair value.

Management shareholders frequently commit to non-compete and non-solicitation undertakings. From an employment law standpoint, they raise concerns by restricting fundamental rights to work and the pursuit of professional livelihood and from a competition law standpoint, by stifling competition; therefore, they may be subject to limitations.

A non-compete clause is subject to the following statutory restrictions:

• they must be entered into in writing;
• they have a time limitation of two years (extendable to three years in certain cases); and
• they must allow consideration to be given to the employee/director in exchange for accepting this clause.

Non-disparagement clauses, where managers agree not to publicly make negative statements regarding the company, are unusual.

Manager shareholders, when holding minority participations, are usually provided with contractual protections (in the transaction documents notably shareholders' agreements) to ensure the integrity of their investments.

In the first instance, managers will usually be entitled to be appointed to the company’s board of directors (with executive functions).

Veto Rights

It is common practice to use veto rights and legal pre-emption rights to prevent dilution of manager shareholders in share capital increases. Managers also hold veto rights (in both shareholders' meetings and board of directors’ meetings) to prevent the private equity sponsor from unilaterally taking fundamental decisions regarding the company’s governance (eg, amending the by-laws), legal characteristics (eg, transform, merge or demerger the company) and strategy (eg, amending the business plan).

These veto rights are typically structured either around a shareholders' agreement (where the protection is contractual, and therefore enforceable only against the management’s counterparties) or through shares carrying special rights (where the protection is enforceable against the company and, therefore, company resolutions in violation of such “special rights” may be challenged on that basis).

Majority Participation

In the case where a private equity fund shareholder holds the majority interest in the target company, typical control mechanisms are provided by statute (particularly, the ability to appoint the members of the target company's corporate bodies on one's own – there is no statutory provision providing proportional representation in management or audit bodies under Portuguese corporate law).

Minority Participation

When the private equity fund shareholder has a minority participation in the target company, board appointment rights in shareholders' agreements (proportional or not) are common; Also commonly requested are veto rights at the shareholder level in critical matters (eg, reorganisations, capital increase and decrease), information rights (eg, the right to receive monthly information on accounts and KPIs) and exit rights (eg, pre-emption rights, tag-along rights, drag-along rights, etc).

A Portuguese company (extended to EU companies) that wholly owns another Portuguese company is responsible for compliance of the subsidiary's obligations, both before and after it has been incorporated.

Nonetheless, it is doubtful whether this provision applied to private equity funds as opposed to other companies (since private equity funds are not incorporated and have a “proprietary” legal regime of their own that does not include a similar provision).

Nevertheless, there are (rare) cases where it would be conceivable (applying certain general civil law principles) for the legal personality of the portfolio company or special purpose vehicle incorporated for the acquisition to be disregarded and the “corporate veil pierced”. This requires proof of behaviour which is fraudulent or obviously against good faith principles.

There is an increasing trend for sophisticated private equity fund managers to impose compliance policies terms on portfolio companies (or parts thereof) as a method of complying with the legal obligations imposed on such fund managers, notably in regards to anti-bribery and anti-money laundering.

Implementation of other policies, such as ESG, by private equity shareholders regarding their portfolio companies are rarer. However, with the coming into force of Regulation 2019/2088 (from 10 March 2021) and the relevant regulatory technical standards (for topics including disclosure of information on “green” financial products) in 2022, the implementation of ESG-related policies across the spectrum of portfolio companies is expected to increase significantly.

It is typical for a private equity investment to be held for a period of four to seven years before an exit occurs.

The most common forms of exit seen in 2021 have been trade sales and secondary sales to other asset managers. A write-off may also occur from time to time.

There have not yet been any initial public offerings (IPOs) or dual-track processes initiated by private equity sponsors in Portugal.

Drag-along rights are typically included in investment documentation to ensure that management and (often) other co-investors are required to sell if an exit opportunity arises.

A typical threshold for tag-alongs is 75% or more; however, the bar may be lowered even further in some cases.

Management shareholders typically enjoy tag-along rights when private equity shareholders sell their stakes.

The typical tag-along threshold is 50%.

In Portugal, there has never been an IPO promoted by a private equity seller (the closest comparison was the debut of a venture capital-backed company on an alternative trading exchange).

In other IPOs in the Portuguese market (not caused by a private equity exit), where the sponsor retains a majority participation, a relationship agreement is entered into between this dominant shareholder and the listed company to ensure the two entities conduct business in an arm's length manner.