[Last updated: 1 January 2025, unless otherwise noted]

This section addresses a scenario where the offeror intends to maintain the listing of the public company after completion of the transaction. See 8 (Delisting) for information on the privatization process where a delisting is contemplated.

There are two main forms of tender offer in Mexico:

• a voluntary tender offer, in which an offeror voluntarily makes an offer for all the voting securities issued by the Company; and
• a mandatory tender offer, which an offeror is required to make if, as a result of an acquisition of securities, it surpasses a 30% threshold of the voting securities of the target.

An offeror that intends to launch a tender offer must include a draft prospectus and offer notice with its notification to the CNBV, among other transaction documents.

4.1 Voluntary tender offer

As discussed in 3.4, the offeror is free to make the tender offer subject to prior approval from the CNBV. The offeror is free to determine the price and the form of consideration offered to the target shareholders:

1. The minimum term of the offer must be 20 business days.
2. The allocation of the offer must be pro rata among shareholders, regardless of the acceptance term.
3. The offer may be amended at any time prior to its conclusion, as long as the amendments improve the conditions originally offered to the shareholders. The offer may be extended for a minimum of five additional business days if the aforementioned amendments are deemed relevant by the CNBV. Any persons who accepted the offer before the amendments were made may revoke their acceptance without any liability.
4. The offeror is forbidden from executing, directly or indirectly, any transaction with the securities that are subject to the offer, from the time the offer was made until its conclusion.

4.2 Mandatory tender offers

As discussed in 3.4, a mandatory tender offer is triggered as soon as a person or group of persons acting in concert as a result of an acquisition of voting securities, holds (directly or indirectly) more than 30% of the (actual outstanding) voting securities of the target company. In addition to those requirements applicable to voluntary tender offers, the following apply:

1. the offer will have to be made to all series of shares of the target company, including those with limited voting or without voting rights;
2. the consideration offered must be the same for all securities;
3. (1) in the event the offeror intends to limit its ownership interest to a percentage that does not imply control of the target company, the offer shall consist of an offer to purchase (i) the percentage of the shares which equals the proportion of shares intended to be acquired regarding the total amount of the shares or (ii) 10% of the capital stock of the target company, whichever is greater; and

   (2) in the event the offeror intends to acquire control of the target company, the offer shall consist of an offer to purchase 100% of the shares issued by the issuer, provided that the CNBV may grant certain exceptions for a lower percentage of shares offered while considering the rights of the minority shareholders. The request filed before the CNBV must include an approval from the target company’s board of directors;

4. the offer must include the maximum number of shares offered and the condition of minimum shares to be acquired. If all of the shares of the Company are acquired, the offeror must make sure that the target company has two remaining shareholders, as required under the General Law on Business Entities;
5. the offeror is not allowed to offer any additional consideration, premium or surcharge to the recipients of the offer that may be deemed excessive and could be seen as an inducement, provided that consideration paid as a result of agreements related to the offer (which contain certain affirmative or negative covenants favoring the target company), which have been previously approved by the target company’s board of directors and disclosed to the public, are allowed; and
6. in the event the individual or group of persons that has placed an offer regarding an target company also holds at least 30% of the shares issued by another public company such individual or group of persons will not need to carry out a mandatory tender offer regarding the shares of the issuer when the offer represents less than 50% of the consolidated assets of the issuer for which the offer was placed. Notwithstanding the foregoing, the CNBV may allow the following transactions without having to authorize a mandatory tender offer:
   1. Acquisitions at market price resulting from a redistribution of shares of common stock among members of a same group of individuals or legal entities, whether or not such group prevails, provided that the acquiring parties have been shareholders of the Company for more than 5 years and that the group of individuals or legal entities who maintain control as a result of the acquisition had held a significant percentage of the capital stock during such term.
   2. Capital stock decreases pursuant to which the equity interest of an individual or legal entity, or group of individuals or legal entities, results in 30% or more of the total shares of common stock.
   3. When the feasibility of the issuer as a going concern is at risk and the shares of common stock are acquired as a consequence of capital increases or corporate restructurings such as mergers, purchases and sales of assets and liabilities, and capitalization, provided that there is a favorable opinion from the issuer’s board of directors, previously approved by the corporate practices committee.
   4. An attachment and distribution of collateral on shares, whether in or out of court, resulting from a past-due debt in which collateral is granted in favor of financial entities, even when such entities acted as trustees.
   5. Acquisitions by inheritance, bequest or donation, of a spouse, concubine or male concubine, as well as from individuals related by blood, marriage or civil kinship up to the fourth degree.
   6. Transactions that are consistent with the protection of the interests of the minority shareholders of the issuer.