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CMS Guide to Mandatory Offers and Squeeze-outs

This Guide provides an overview of the current legal framework and practice governing public takeovers and squeeze-outs in a total of 26 jurisdictions (18 EU Member States, Albania, Bosnia-Herzegovina, Russia, Serbia, Switzerland, Turkiye and Ukraine as well as China) and provides contact details of experienced legal advisors active in this field. The number of jurisdiction covered demonstrates the growing geographic footprint of CMS across Europe and beyond as well as our capability to provide a seamless cross-border service.

At European level, the Takeover Directive  (2004/25/EC) has created a framework setting certain minimum standards for public takeover bids in the EU. The Takeover Directive has required EU Member States to create national legal frameworks based inter alia on the over-arching principles of equal treatment of the target company’s shareholders, protection of minority shareholders, ensuring an informed decision by target company shareholders on the merits of a particular takeover bid, and an obligation of the board(s) of the target company to act in the interest of the company. Implementing these principles, the Takeover Bids Directive prescribes minimum standards in relation to trigger events for mandatory offers, the offer price, acceptance periods and the level of disclosure to be provided in context of public takeover bids, as well as the pricing and other terms of squeeze-outs.

At the same time, a number of very important aspects of takeover law such as the rules on board neutrality and break-through have remained optional, and a number of important determinations such as the definition of “control”, including the general control threshold itself and the scope of exemptions from the offer requirement, have largely been left to the Member States.

While the Report from the EU Commission on the Application of the Takeover Directive (COM (2012) 347) which has been published in June 2012 has not led to any material amendments to the Directive, the takeover laws and in their application in many of the EU Member States and other jurisdictions covered in this Guide have clearly evolved since the previous edition of this Guide was published in 2011, an evolution which has effectively lessened the uniformity introduced by the Takeover Directive. Apart from increasingly complex deal structures and the rising importance of activist shareholders in the takeover context, national legislators and regulators were faced with a wave of delistings and the issue whether a delisting should trigger a mandatory offer even in the absence of a change of control. This is clearly an area where new national legislation, following the German example, or even European regulation is to be expected. 

The scope and relevance of takeover law is not limited to classic tender offer scenarios, of course: in numerous instances, such as restructurings of shareholder groups, acquisitions of troubled target companies or approaches by activist shareholders, legal ways and means of avoiding triggering a mandatory offer are being explored. The Commission Report referred to above has highlighted that there are national exemptions from the offer obligation which in some cases are quite openly geared towards protecting national interests. It remains to be seen whether a higher degree of uniformity in this area will find sufficient support at the European level. 

Guide
CMS Guide to Mandatory Offers and Squeeze-outs

Authors

Portrait ofFrancisco Xavier de Almeida
Francisco Xavier de Almeida
Partner
Lisbon
Portrait ofZlatan Balta
Zlatan Balta
Portrait ofAtanas Bangachev
Atanas Bangachev
Partner
Sofia
Portrait ofHrvoje Bardek
Hrvoje Bardek
Counsel
Zagreb
Portrait ofPietro Cavasola
Pietro Cavasola
Managing Partner
Rome
Portrait ofMirko Daidone
Mirko Daidone
Managing Partner
Tirana
Portrait ofTetyana Dovgan
Tetyana Dovgan
Partner
Kyiv (CMS CMNO)
Portrait ofHenrik Drinkuth
Dr. Henrik Drinkuth
Partner
Hamburg
Portrait ofIvan Gergov
Ivan Gergov
Partner
Sofia
Portrait ofUlrike Glueck
Dr. Ulrike Glueck
Managing Partner
Shanghai
Portrait ofDariusz Greszta
Dariusz Greszta
Senior Counsel
Warsaw
Portrait ofAndré Guimarães
André Guimarães
Senior Associate
Lisbon
Portrait ofKarsten Heider
Dr. Karsten Heider
Partner
Stuttgart
Portrait ofPeter Huber
Peter Huber
Partner
Vienna
Portrait ofAnikó Kircsi
Anikó Kircsi
Partner
Budapest
Portrait ofCarl Leermakers
Carl Leermakers
Partner
Brussels
Portrait ofIrene Miró
Irene Miró
Partner
Madrid
Portrait ofMaria Orlyk
Maria Orlyk
Managing Partner
Kyiv (CMS RRH)
Portrait ofGentscho Pavlov
Gentscho Pavlov
Partner
Sofia
Portrait ofCarlos Peña
Carlos Peña
Partner
Madrid
Portrait ofRadivoje Petrikić
Radivoje Petrikić
Partner
Vienna
Portrait ofHorea Popescu
Horea Popescu
Managing Partner
Bucharest
Portrait ofCristina Reichmann
Cristina Reichmann
Partner
Bucharest
Portrait ofHelen Rodwell
Helen Rodwell
Managing Partner
Prague
Portrait ofNedžida Salihović-Whalen
Nedžida Salihović-Whalen
Partner
Sarajevo
Portrait ofMartina Schmid
Dr. Martina Schmid
Partner
Stuttgart
Portrait ofPeter Šimo
Peter Šimo
Of Counsel
Bratislava
Portrait ofReinout Slot
Reinout Slot
Partner
Amsterdam
Portrait ofMarija Tešić
Marija Tešić
Partner
Belgrade
Portrait ofKevin Wang
Kevin Wang
Counsel
Shanghai
Portrait ofStephan Werlen
Dr Stephan Werlen, LL.M.
Partner
Zurich
Portrait ofClair Wermers
Clair Wermers
Partner
Amsterdam
Portrait ofDöne Yalçın
Döne Yalçın
Partner
Istanbul
Portrait ofMargarida Vila Franca
Margarida Vila Franca
Partner
Lisbon
Andreia Carvalho Moreira
Gábor Gelencsér
John Hammond, M.A. (Oxon)
Julien Leclere
Aleš Lunder
Bartolomäus Matt
Michał Pawłowski
Marlene Veenman
Stéphanie Villani
Bruno Zabala
Vladimir Zenin
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