By Brazil Stock Guide – The dispute over a potential tender offer for Oncoclínicas (B3: ONCO3) is moving closer to a ruling by the board of Brazil’s Securities and Exchange Commission, the CVM, after the regulator’s technical staff stood by its view that Centaurus is not required to launch the offer.
Latache, a significant shareholder in the oncology-clinic operator, appealed to the CVM board against a decision by the Superintendência de Registro de Valores Mobiliários, or SRE, the regulator’s securities-registration division, which had concluded that no mandatory tender offer was required. In reassessing its decision in light of the appeal filed with the board, the technical staff — as expected — did not change its interpretation and maintained its previous ruling. Centaurus declined to comment when contacted.
The SRE’s latest position therefore does not represent a new final decision on the tender offer, nor does it amount to a ruling on Latache’s appeal. The final word will rest with the CVM board, which can uphold or overturn the technical staff’s interpretation.
The possibility of a reversal is not merely theoretical. In July, in another tender-offer case, the SRE itself stood by its original view after Ecopetrol and Itaú appealed a decision involving Brava Energia (B3: BRAV3). When the case reached the CVM board, however, the directors granted the appeal by majority vote, overturning the technical staff’s position and allowing the transaction to proceed.
The Oncoclínicas dispute stems from a reorganization of Goldman Sachs’ stake in the company completed in November 2024. As part of the transaction, Josephina III, a fund linked to Centaurus, came to hold more than 15% of the company’s capital — a threshold identified in Oncoclínicas’ bylaws as one of the triggers for a mandatory tender offer.
Purposive interpretation
The SRE concluded, however, that the transaction falls under one of the exemptions set out in paragraph 8 of Article 39 of Oncoclínicas’ bylaws. Under the technical staff’s interpretation, Centaurus already had indirect exposure to the company before its IPO, meaning the subsequent restructuring did not amount to the entry of a new investor capable of triggering the bylaw provision.
The SRE’s original opinion acknowledged, however, that the issue could be viewed in two different ways. Under what it described as a “strictly objective and systematic” reading of the expression “rights over the shares,” Centaurus’ position before the restructuring would more closely resemble a qualified economic exposure than ownership of those rights in the strict sense.
The technical staff nevertheless opted for a purposive, or teleological, interpretation of the provision — one based on the purpose and objective of the rule rather than solely on its literal wording — while also taking into account the context in which the bylaw exemption was created.
Latache disputes that interpretation and has taken the matter to the CVM board. The appeal places in the hands of the regulator’s directors a dispute with potentially significant consequences for Oncoclínicas’ minority shareholders.
No date has yet been set for the ruling. The CVM board currently comprises Chairman Otto Lobo and directors João Accioly, Marina Copola and Igor Muniz, while a fifth seat remains vacant. Copola has already recused herself from the case. Under the current configuration, and absent the appointment of a substitute, the matter is expected to be decided by three members of the board.
If the board concludes that the ownership restructuring did trigger the bylaw provision, Centaurus could be required to launch a tender offer at more than R$16 per share, a level tied to the conditions prevailing at the time of the transaction that gave rise to the dispute.
The case has been closely watched by capital-markets participants not only because of the potential value of the tender offer, but also because of differing legal interpretations surrounding the ownership structure of the Josephina funds and the way the matter has been handled both within and outside the CVM.
Brazil’s Federal Court of Accounts, the TCU, has opened a review into allegations of potential conflicts of interest involving former CVM directors who later acted as lawyers or provided legal opinions for parties linked to the dispute. Separately, minority shareholders have also raised questions about the handling of the case with Brazil’s Office of the Comptroller General, the CGU, and the CVM’s own internal affairs office.
The controversy has also expanded into a police investigation. São Paulo Civil Police indicted Felipe Guerra Acosta, a Goldman Sachs executive, and Natan Lima Reinig, a former Oncoclínicas board member appointed by the bank, on suspicion of fraud and alleged abuses in the management of a corporation.
According to the police order, investigators are examining whether information about Centaurus’ ownership interests in the Josephina funds was presented in a way intended to persuade Oncoclínicas, the CVM, B3 and shareholders that no tender offer was required. Police argue that the reconstruction of the ownership structure used to support the absence of an offer may be inconsistent with information previously disclosed by Goldman Sachs to the market.
Goldman Sachs denies any wrongdoing, says the allegations are unfounded and maintains that it acted appropriately.
With the SRE standing by its interpretation as it reassessed the matter in light of Latache’s appeal to the board, the final decision now rests with the CVM directors. They will decide whether to uphold the technical staff’s reading or adopt a different interpretation of the ownership restructuring at the heart of the dispute.
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