European Takeovers: The art of acquisition

Erscheinungsjahr 2005
ISBN: 978-1-84374-216-6
Verlag: Euromoney

Buch, Englisch, 396 Seiten

Your complete guide to the European Takeover Directive, national M&A regulation and the interaction between domestic and Pan-European regulation.

This new book is an exhaustive reference for those preparing, participating, advising on and responding to takeover activity within the European Union.

It discusses the fundamental principles of national and European law, its application, and the practical problems facing companies and their advisors as they plan, defend and execute takeovers.

Leading legal and banking professionals from across the EU guide you through the national takeover legislation and implementation of the European Takeover Directive, and a discussion of some of the recent ground-breaking and controversial takeovers across the continent.

Experts on European takeovers provide you with detailed discussions of:

the UK City Code
background to the European Takeover Directive
special case studies including LVMH/Gucci, Vodafone/Mannesmann, Beiersdorf/Tchibo and Banca Antonveneta/ABN Amro
Emerging European takeover law
takeovers as rent seeking
transatlantic lessons on takeovers

In addition, for each of the European jurisdictions, leading lawyers discuss:

the nature of the national takeover regulation
timing and revision of legislation
the main aspects of the legislation including mandatory bid rules, squeeze outs, how to structure a takeover and defences to takeovers
new, imminient and possible reforms accompanying the implementation of the European Takeover Directive
case studies illustrating practical problems

Jurisdictions covered: Austria, Belgium, France, Denmark, Germany, Greece, Hungary, Italy, Ireland, Luxembourg, Portugal, Poland, Russia, Spain, Sweden, The Netherlands, United Kingdom and United States.

Contributors from leading lawyers at:

Araoz & Rueda
Bech-Bruun
Carlos Aguiar, P. Pinto & Associados
Cleary Gottlieb Steen & Hamilton, LLP
De Brauw Blackstone Westbroek
Deminor
Dillon Eustace
DLA Weiss-Tessbach Rechtsanwälte GmbH
DLA Weiss-Tessbach Horváth & Partners
Gianni, Origoni, Grippo & Partners
Karatzas & Partners
Linklaters De Bandt
Mannheimer Swartling
Roschier Holmberg
Weil, Gotshal & Manges, LLP

Autoren/Hrsg.

Grant, Jeremy

Fachgebiete

• Wirtschaftswissenschaften Betriebswirtschaft Unternehmensorganisation, Corporate Responsibility Mergers & Acquisitions (M&A), Übernahmen & Buy-outs
• Rechtswissenschaften Ausländisches Recht Common Law (UK, USA, Australien u.a.)
• Rechtswissenschaften Internationales Recht und Europarecht Europarecht Europäisches Handels-, Wirtschafts- und Gesellschaftsrecht, Währungsrecht

Inhaltsverzeichnis

Author biographies

Foreword
Geoffrey Owen

Editor’s preface
Jeremy Grant

Introduction
Jaap Winter

Part I: Inside the takeover regulation and tactics

Chapter 1: Takeovers and the market for corporate control
Jeremy Grant
Introduction
The role of takeovers in a market economy and the Continental/Anglo–American divide
A brief history of hostile takeovers

Chapter 2: Takeover regulation and the balancing of interests
Jeremy Grant
Introduction
A brief history of takeover regulation
Major components of takeover regulation
Derivatives transactions and contracts for differences

Chapter 3: The European Takeover Directive
Jeremy Grant
Background to the Directive
The European Takeover Directive – amended, with commentary

Chapter 4: Takeovers in Europe – shareholder decisions and open markets – a UK perspective
Jonathan Rickford
Introduction: regulating takeovers – property rights and wider objectives
Breakthrough: restrictions and threshold
Breakthrough – compensation, jurisdiction and mandatory bids
Operating the Directive: optionality
Afterword

Chapter 5: ‘Acting in concert’ – first conclusions drawn from two recent takeovers and the Takeover Directive
Erik Bomans and Charles Demoulin
Introduction
The Fondiaria takeover by SAI
The Beiersdorf takeover by a consortium led by Tchibo
The need for a clear and common definition of persons ‘acting
in concert’
The definition of ‘acting in concert’ under the Takeover Directive
Persons acting in concert and shareholder activism
Conclusion

Chapter 6: Optionality arrangements and reciprocity in the Takeover Directive
Matteo Gatti
Optionality and reciprocity combined
An assessment of optionality
The uncertain case for reciprocity in takeovers
Conclusion

Chapter 7: The mandatory bid rule and the sell-out right in the Takeover Directive: harmonisation for ist own sake?
Luca Enriques
Provisions on mandatory bids and the sell-out right
General principles
The mandatory bid rule
The sell-out right
Why the provisions on mandatory bids and the sell-out right are trivial
Conclusion

Part II: European jurisdictions

Chapter 8: United Kingdom City Code
Simon Jay and Stuart Banks
Evolution and present status of the Panel and the Takeover Code
General principles
Types of offer
Basic structure and timetable of offer
Market purchases
Conduct during an offer
Disclosure of dealings – contracts for differences and proposals for changes to the Code
Proposed changes to disclosure rules
Key points for a potential bidder for a UK plc
Case studies

Chapter 9: Austria
Max Becker, Phillip Dubsky and Dieter Buchberger
Conditionality of offers
Timing and revision
Mandatory bid rule
Consideration
Anticipated mandatory offer
Squeeze-out and sell-out
Target’s response
Reform of the Takeover Act

Chapter 10: Belgium
Paul Van Hooghten and Philippe Remels
Disclosure of important shareholdings
Voluntary public takeover bids and counterbids
Mandatory public offers and maintaining of the market price
Public squeeze-out bids
Special topics on takeover practice in Belgium
Potential impact of the Takeover Directive
Summary of some of the key elements in the Belgian takeover regulation

Chapter 11: Denmark
Peter M. Andersen and Regina M. Andersen
Basis of the takeover regime
Applicability of Danish takeover rules and definition of ‘control’
Structuring a takeover of a company listed in Denmark
Squeeze-out and delisting
Defences against a hostile takeover
Impact of the Takeover Directive

Chapter 12: Finland
Dimetrios Himonas, Carla Wallgren, Paula Lima and Elisa Heinonen
Mandatory offers
Offer consideration – the concept of equitable price
Competing offers
Implications for target companies
Special topics on takeover practice in Finland
Conclusion

Chapter 13: France
Valérie Lemaitre and Sophie de Beer
Types of takeover bids
Main terms of takeover bids
Typical bid procedure
Board neutrality and defensive measures
Market purchases
Main impact of the Takeover Directive
Ten most important points for acquirers in France

Chapter 14: Germany
Klaus Riehmer
Important aspects of the German Takeover Act
Impact of the Takeover Directive
Case studies

Chapter 15: Greece
Alexander Metallinos
Conditionality of offers
Procedure
Voluntary offers
Mandatory offers – the implied concept of control
The position of the board of directors of the target company
Purchase of minority shareholdings
Major considerations for bidders

Chapter 16: Hungary
András Posztl
Nature of the takeover rules and enforcement
Definition of ‘control’
Disclosure of acquisition of control
Mandatory takeover bids
Voluntary takeover bids
The takeover procedure
Squeeze-out and sell-out rights
Defensive tactics
Sanctions for non-compliance
Special topics
Impact of the Takeover Directive
Practical thoughts

Chapter 17: Ireland
Adrian Benson
Relevant statutes and regulations
‘Control’ and other definitions
Methods of acquiring control
Timing of offers and revisions
Extensions and revisions of offers
Sample timetable for a takeover
Conditionality of offers
Break fees and irrevocables
Disclosure
Mandatory offers
Acquisition of minority shareholdings
Conversion of a public limited company to a private limited company
Board neutrality and defensive measures
Impact of the Takeover Directive

Chapter 18: Italy
Fabio Labruna and Roberto Tallarita
The Financial Act 1998
Participation in listed companies
Tender offers
Mandatory tender offers
Mandatory tender offers: exemptions
The tender offer process
Key rules on the conduct of the offer
The European Takeover Directive
Case studies

Chapter 19: Luxembourg
Laurent Schummer
Regulatory authorities and statutory provision
Conditionality of offers
Timing and revisions
Equal treatment of shareholders not mandatory
Offer consideration
Target securities
Offeree neutrality
Squeeze-out and sell-out
Impact of the Takeover Directive

Chapter 20: The Netherlands
Martin van Olffen, Jaap W. Winter and Michael Ch. Schouten
Introduction
Methods of acquisition
Regulatory framework
Public offers
Takeover defence
Impact of the Takeover Directive

Chapter 21: Poland
Roman Rewald, Dr. Lukasz Gasinski and Anna Iwaszkiewicz
Significant changes in prospect
Conditionality of bids
Timing
Disclosure of the bid
Mandatory bid rule and definition of ‘control’
Squeeze-out
Sell-out
Protecting minority shareholders
Board neutrality and shareholders’ consent
Exemptions
Impact of the Takeover Directive

Chapter 22: Portugal
Manuel Costa Salema with the assistance of Ana Bebiano
Laws and regulations
Bidder and target
Public offer versus private placement
Recommended versus hostile offers
General versus partial offers
Compulsory versus optional offers
Price
Conditional takeover offers
Defence mechanisms preceding a takeover offer
Documentation
Assistance of a financial intermediary
Timetable and actions
Revision
Post-bid neutrality
Squeeze-out and sell-out rights
Successive takeover offers
Competing offers
Impact of the Takeover Directive
Important considerations for bidders

Chapter 23: Russia
Scott C. Senecal, Murat N. Akuyev and Yulia A. Solomakhina
Anti-takeover provisions of the Joint Stock Companies Law
Anti-monopoly clearance
Disclosure requirements of the Securities Law
Specific requirements applicable to takeovers of credit organisations

Chapter 24: Spain
Alejandro Fernández de Araoz
The mandatory bid rule
Procedural aspects and timetable
Exemptions
Defensive tactics and the role of the target company’s board
Analysis of the competing bid system
Taking the company private: mandatory bids in ‘public to private’ context
Potential impact of the Takeover Directive on the Spanish regime
Special topics in takeover practice in Spain
Further case studies
Some practical thoughts on takeovers in Spain

Chapter 25: Sweden
Thomas Wallinder and Patrick Marcelius
Bid preparation, timing of offers and revisions
Conditionality of offers
Stake building
Mandatory bids
Consideration
Hostile bids
Acquisitions of minority shareholdings and delisting
Impact of the Takeover Directive
Important points for offerors to keep in mind

Part III: United States

Chapter 26: An ocean of difference on takeover regulation
John Armour and David A. Skeel, Jr
The content of takeover regulation in the United Kingdom and the United States
The divergent modes of regulation
Conclusion

Chapter 27: US takeover law and practice
Introduction
US takeover preparedness and responding to unsolicited offers

Appendix I: Directive 2004/25/EC of the European Parliament and of the Council of 21 April 2004 on Takeover Bids

Appendix II: Comparison of national takeover provisions

Über Autor(innen)

Jeremy Grant is on academic sabbatical based at the Graduate Institute of International Studies in Geneva and the London School of Economics. He holds a law degree from the LSE, and MSc degrees in Management and International Relations from the same institution. His research focuses on corporate governance, M&A, takeover defences and anti-trust regulation of mergers. He has worked for JP Morgan in corporate finance and equity research. He is also co-author of a forthcoming book Corporate Governance in the US and Europe.