POLAND Law and Practice Contributed by: Agnieszka Janicka, Krzysztof Hajdamowicz and Jarosław Lorenc, Clifford Chance LLP
6. Structuring 6.1 Length of Process for Acquisition/Sale There are a number of factors that influence the time - frame of a takeover transaction. The most important are: • the structure of the acquisition (ie, the sequence of steps leading to the takeover), including whether the prospective bidder is interested in buying a majority stake in the listed target company, and a requisite element of the transaction also includes a squeeze-out of the minority shareholders and delisting from the WSE; and • the scope of the regulatory clearances/consents required to take over the given target company. Should the bidder consider making only a tender offer, the transaction could be completed within less than two months (this is the shortest possible time legally required to complete a tender offer, assuming that regulatory proceedings would not impact the timing). However, if the transaction is to include a tender offer, squeeze-out and delisting and complex regulatory process, it may last several months and in extreme cases more than a year. 6.2 Mandatory Offer Threshold As of May 2022, a mandatory tender offer must be announced by anyone who exceeds 50% of the total number of votes in a company listed on a regulated market in Poland under Polish law. In practice this means the regulated market of the WSE. This rule only applies to listed companies which have their registered seat in Poland. However, there are several companies listed on the WSE which are incorporated in jurisdictions other than Poland. These companies are, therefore, subject to a matrix of laws comprising both the laws relevant to the jurisdiction where they are incorporated and the Polish law appli - cable to listed companies. This interaction can become quite complex. For exam - ple, in relation to the regulations applicable to a tender offer for all the outstanding shares in a company, the threshold for the mandatory tender offer would be
investor is often granted full access to the target com - pany and its books, including site visits and meetings with the target company’s management. 5.4 Standstills or Exclusivity If the transaction management is entrusted by share - holders to the target company and it initiates the so- called “review of strategic options” process (which generally means that the target company conducts a more or less organised form of auction process to select a bidder that will be best placed to launch a takeover transaction) both standstills (very often) and exclusivity (less often) appear. In this context a standstill (ie, undertaking not to buy shares or launch a hostile offer for shares or sometimes more broadly for financial instruments of the target company) is usu - ally included in the non-disclosure agreement that all the prospective bidders are requested to sign before being admitted to the next stage of the process. Conversely, exclusivity (if any) is usually granted by the company or the selling shareholders to a selected bidder at the end of the process, once one preferred bidder has been selected as a result of the bidding process and/or negotiations. Otherwise, the standstill and exclusivity undertakings: • are less popular if there is a one-on-one transac - tion; and • are not common if a bidder is considering a hostile takeover or a more general takeover without prior contact with the target company and its sharehold - ers. 5.5 Definitive Agreements In practice, potential bidders tend to have support from/commitment of a group of the target company’s shareholders to secure the outcome of the takeover transaction. In this case, it is typical to have an agree - ment with the shareholders (and sometimes also with the target company itself), which usually covers more elements than just the tender offer (its terms and conditions). However, this agreement is only binding among the parties thereto and has no impact on other shareholders. The terms and conditions of the takeo - ver transaction with other shareholders will be set out solely in the tender offer document.
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