BELGIUM Law and Practice Contributed by: Thomas Lenné, Mathias Hendrickx, Valentijn de Boe and Bram Devlies, Loyens & Loeff
also include the personal data processing as part of due diligence in their data processing record (Article 30 of the GDPR) and enter into data processing agree- ments (Article 28 of the GDPR) with data processors – such as data room providers – where appropriate. Finally, specific requirements apply for transfers of personal data abroad (outside the EEA). This means that additional safeguards (eg, standard contractual clauses) may need to be implemented when sharing personal data with a buyer (or its advisers) located outside the EEA. A voluntary public takeover bid must be announced by the FSMA on the business day following receipt of a notification of the bidder’s intention to launch a bid. Subject to the “put up or shut up” rule (see 4.1 Stake- building ), there is no compulsory date for notification of an intention to issue a bid. In case of a mandatory bid, the timeline for announce- ment of the bid is stricter. When a bidder crosses the mandatory takeover threshold (see 4.2 Mandatory Offer ), triggering a mandatory takeover obligation, it must notify the FSMA within two business days, and the bid must be announced within three business days. 8.2 Prospectus Requirements In accordance with the Belgian takeover law, any pub- lic takeover bid, regardless of a cash or exchange offer, requires the prior publication of a prospectus. In case of an exchange offer whereby the bidder issues shares to target shareholders, the EU Prospectus Regulation applies, potentially triggering the obligation to also publish a prospectus because securities are offered to the public or may be admitted to trading on a regu- lated market. The EU Prospectus Regulation provides, however, an exemption for offers of securities to the public or admission to trading on a regulated market within the context of an exchange offer or business combination, provided that an exemption document is made available, containing information describing the transaction and its impact on the issuer. 8. Disclosure 8.1 Making a Bid Public
In respect of exchange offers, Belgian law does not require the shares offered as consideration to be listed on a specific market. However, in case of an exchange offer launched by a reference shareholder or a manda- tory bid, the bidder must provide an alternative cash payment in case the offered shares are not liquid securities admitted to trading on a regulated market. Additionally, it should be noted that in case of a vol- untary bid, the bidder remains free to determine the price of the bid, provided that such offer price is set at a level that reasonably allows the bid to succeed. Should the FSMA be of the opinion that the offered shares in an exchange bid do not reasonably allow the bid to succeed, it may refuse the publication of the prospectus and therefore block the bid. 8.3 Producing Financial Statements While pro forma financial information is not a standard requirement in public takeover transactions, specific transaction circumstances may require pro forma financial information to be prepared to allow target shareholders to properly assess the terms of the offer. In accordance with the exemption provided in the EU Prospectus Regulation and Delegated Regulation 2021/528, an exemption document must be published to invoke the exemption to launch a prospectus when offering new shares to the public within the frame- work of a public takeover bid taking the form of an exchange offer. The Delegated Regulation lists the minimum information which must be published in the aforementioned exemption document, which includes pro forma financial information. The pro forma finan- cial information must be prepared in a manner which is consistent with the accounting principles applied by the issuer in its most recent or next financial state- ments. 8.4 Disclosure of Transaction Documents The prospectus must be filed with the FSMA for review and approval (see 4.13 Securities Regulator’s or Stock Exchange Process ). The minimum content of the prospectus for a public takeover is laid down in the Belgian takeover decree. During the offer period, the FSMA may request the parties to the bid to submit any agreements which may have a material impact on the evaluation of the bid, its process or its conclusion. The FSMA may also request the parties to publicly disclose specific clauses of such agreements. The tar-
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