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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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Auteurs

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