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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, Turkey 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. 

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CMS Guide to Mandatory Offers and Squeeze-outs
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Authors

Portrait of Andreia Carvalho Moreira
Andreia Carvalho Moreira
Senior Associate | Avocat à la Cour
Luxembourg
Portrait of Francisco Xavier de Almeida
Francisco Xavier de Almeida
Partner
Lisbon
Portrait of Zlatan Balta
Zlatan Balta
Senior Associate
Sarajevo
Portrait of Atanas Bangachev
Atanas Bangachev
Partner
Sofia
Portrait of Hrvoje Bardek
Hrvoje Bardek
Partner
Zagreb
Portrait of Pietro Cavasola
Pietro Cavasola
Managing Partner
Rome
Portrait of Mirko Daidone
Mirko Daidone
Managing Partner
Tirana
Portrait of Tetyana Dovgan
Tetyana Dovgan
Partner
Kyiv (CMS CMNO)
Portrait of Henrik Drinkuth
Dr. Henrik Drinkuth
Partner
Hamburg
Gábor Gelencsér
Portrait of Ivan Gergov
Ivan Gergov
Senior Associate
Sofia
Portrait of Ulrike Glueck
Dr. Ulrike Glueck
Managing Partner
Shanghai
Portrait of Gary Green
Gary Green
Partner
London
Portrait of Dariusz Greszta
Dariusz Greszta
Senior Counsel
Warsaw
Portrait of André Guimarães
André Guimarães
Associate
Lisbon
Portrait of John Hammond
John Hammond, M.A. (Oxon)
Partner
Stuttgart
Portrait of Karsten Heider
Dr. Karsten Heider
Partner
Stuttgart
Portrait of Peter Huber
Peter Huber
Partner
Vienna
Portrait of Anikó Kircsi
Anikó Kircsi
Partner
Budapest
Julien Leclere
Portrait of Carl Leermakers
Carl Leermakers
Partner
Brussels
Portrait of Aleš Lunder
Aleš Lunder
Partner
Ljubljana
Portrait of Bartolomäus Matt
Bartolomäus Matt
Portrait of Irene Miró
Irene Miró
Counsel
Madrid
Portrait of Maria Orlyk
Maria Orlyk
Managing Partner Kyiv
Kyiv (CMS RRH)
Portrait of Gentscho Pavlov
Gentscho Pavlov
Partner
Sofia
Michał Pawłowski
Portrait of Carlos Peña
Carlos Peña
Partner
Madrid
Portrait of Radivoje Petrikić
Radivoje Petrikić
Partner
Vienna
Portrait of Horea Popescu
Horea Popescu
Managing Partner
Bucharest
Portrait of Patrik Przyhoda
Patrik Przyhoda
Counsel
Prague
Portrait of Cristina Reichmann
Cristina Reichmann
Partner
Bucharest
Portrait of Helen Rodwell
Helen Rodwell
Managing Partner
Prague
Portrait of Nedžida Salihović-Whalen
Nedžida Salihović-Whalen
Partner
Sarajevo
Portrait of Martina Schmid
Dr. Martina Schmid
Partner
Stuttgart
Portrait of Peter Šimo
Peter Šimo
Of Counsel
Bratislava
Portrait of Reinout Slot
Reinout Slot
Partner
Amsterdam
Portrait of Marija Tešić
Marija Tešić
Partner
Belgrade
Marlene Veenman
Portrait of Margarida Vila Franca
Margarida Vila Franca
Associate
Lisbon
Stéphanie Villani
Kevin Wang, LL.M.
Portrait of Stephan Werlen
Dr Stephan Werlen, LL.M.
Partner
Zurich
Portrait of Clair Wermers
Clair Wermers
Counsel
Amsterdam
Portrait of Döne Yalçın
Döne Yalçın
Managing Partner Turkey
Istanbul
Bruno Zabala
Portrait of Vladimir Zenin
Vladimir Zenin
Partner
Moscow
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