POLAND Law and Practice Contributed by: Agnieszka Janicka, Krzysztof Hajdamowicz and Jarosław Lorenc, Clifford Chance LLP
4.5 Filing/Reporting Obligations The disclosure obligations with respect to shares apply to the acquisition or disposal of financial instru - ments (such as options, swaps, futures or forwards) which: • after the maturity date has passed, uncondition - ally entitle or oblige their holder to acquire shares to which voting rights are attached, which have already been issued by the issuer; or • directly or indirectly refer to the issuer’s shares and have economic consequences similar to the consequences of financial instruments (such as options, swaps, futures or forwards), regardless of whether those instruments are exercised by way of a cash settlement. A holder of these instruments is obliged to aggregate them with the shares they hold and verify whether the reporting thresholds have been reached or exceeded and, if so, report this accordingly. 4.6 Transparency Shareholders are not required to publish the purpose of their acquisition of shares and their intention regard - ing control of the target company under Polish law. The target company itself is not technically a party to a tender offer under Polish law. The making and acceptance of a tender offer is a matter between the shareholders and the bidder. In theory it would there - fore be possible to launch a tender offer without any contact between the target company and the bidder. However, this would mean that the bidder would only rely on publicly available information on the target company, which includes the annual accounts and semi-annual and quarterly financial information as well as any information of a price-sensitive nature. Under Polish law there is no requirement as to the method of any approach to the target company, should a bidder decide to make one. Contact can be made directly with the target company’s management 5. Negotiation Phase 5.1 Requirement to Disclose a Deal
board or channelled via the financial advisers of either the bidder or the target company. What is most important is that any discussions with the target company’s management board should be kept confidential. 5.2 Market Practice on Timing Prospective bidders seldom decide to rely solely on publicly available information. Contacts between them and target companies are therefore typical. These contacts should be assessed by the target company in the context of the requirements under the Market Abuse Regulation (the “MAR”) and should be handled accordingly if identified as insider information. In practice, target companies tend to identify these contacts when the preparatory steps regarding the transaction are relatively advanced (eg, when the tar - get company decides to commence negotiations with a prospective bidder to assess the potential future co-operation and starts the due diligence process). However, the publication of this information is often delayed due to the procedure set out in the MAR and is only released when the transaction has been agreed and just before the tender offer is launched, providing there are no earlier leaks. 5.3 Scope of Due Diligence As with any acquisition, a prospective bidder will usu - ally want to perform some form of due diligence of the target company. In the case of private companies, an agreement with the vendor is normally reached in this respect. However, in the case of public compa - nies, the regulations concerning access to, and use of, inside information have to be taken into account. In practice, the scope of the due diligence depends on the commercial agreement between the potential bid - der and the vendors (eg, founders of the listed target company) and access to the target company itself. Generally, it is up to the management board of the target company to decide whether to provide informa - tion to a prospective bidder. The board also decides on the scope and level of detail disclosed. If the bid is friendly, in addition to information disclosed by other means, the proposed
1016 CHAMBERS.COM
Powered by FlippingBook