BELGIUM Law and Practice Contributed by: Thomas Lenné, Mathias Hendrickx, Valentijn de Boe and Bram Devlies, Loyens & Loeff
in the case of a higher competing bid – are considered to constitute an action in concert between the relevant
mit to see the bid through to the end. • Day 16 – within five BDs from the prospectus notifi- cation by the FSMA to the target board, the target board submits its response memorandum to the FSMA. • Day 21 – approval of the response memorandum by the FSMA within five BDs of receipt of all infor- mation. Following approval, the response memo- randum is published. The target board’s response memorandum contains at least the following information: (a) comments on the prospectus; (b) a reasoned opinion on the prospectus; and (c) an overview of the transfer restrictions included in the articles of association of the target. • Day 16/66 – acceptance period of the bid com- mences, at the earliest, five BDs after the approval of the prospectus or, if earlier, after the approval of the response memorandum. The bid must remain open for at least 2–10 weeks. • Day 31/71 – bid results and fulfilment or waiver of conditions are announced within five BDs following closing of the acceptance period. • Day 41/81 – payments under the bid are effected within ten BDs following publication of bid results. In case of a counter-offer, the acceptance period of the original offer will be extended to coincide with the final date of the acceptance period of the counter- offer. A counter-offer can be launched until two BDs prior to the expiration of the acceptance period. 4.14 Timing of the Takeover Offer Under Belgian law, the acceptance period of a take- over bid lasts at least two weeks and at most ten weeks. If an offer is made subject to regulatory or antitrust approvals, it cannot be completed before such approvals are obtained. If such conditions are included, the FSMA commonly requests bidders to include a long stop date in the prospectus. In the past, the FSMA agreed that the acceptance period for a bid could only commence once it was suf- ficiently certain all competent supervisory authorities would have made their decision on whether to grant the required approval by the end of the acceptance period at the latest. Bidders have also published their intention to launch a bid but did not proceed with the
shareholder and the bidder by the FSMA. 4.13 Securities Regulator’s or Stock Exchange Process
The statutory timeline for a takeover bid in Belgium, excluding potential reopening of the acceptance peri- od and squeeze-out periods, can be summarised as set out below. It should be noted that the timeline does not reflect practical considerations such as the fact that the takeover file, including the prospectus, is rarely considered complete on Day 1 (which is the timeline assumption) or that there is regularly a con- siderable amount of time that elapses between initial announcement of the potential offer and the actual launch. • Day 1 – notification by the bidder to the FSMA of its intention to make a bid, together with a draft prospectus and promotional material. • Day 2 – publication by the FSMA of the bidder’s notification ultimately within one business day (BD) of receipt. The FSMA shall notify the target board and market authority and share the draft prospec- tus with the target board. • Day 7 – within five BDs of receipt of the draft pro- spectus, the target’s board submits its comments on the information in the prospectus, especially regarding any lack or misleading nature of informa- tion. • Day 11 – approval and publication of the pro- spectus within ten BDs of receipt by the FSMA of complete information. Since bidders seldom file a complete prospectus with the FSMA, a new period of ten BDs will commence each time a bidder files a new prospectus. When reviewing the prospectus, the FSMA verifies in particular: (a) whether or not the bid relates to all voting securities of the target; (b) the certainty of funds (see 4.9 Requirement to Have Certain Funds/Financing to Launch a Takeover Offer ); (c) whether or not the conditions of the bid comply with Belgian takeover law and if the conditions, particularly regarding price, reasonably enable the bid to be successful; and (d) whether or not the bidder undertakes to com-
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