POLAND Law and Practice Contributed by: Agnieszka Janicka, Krzysztof Hajdamowicz and Jarosław Lorenc, Clifford Chance LLP
set by the home member state of the company, while other more technical rules relating to the considera - tion which can be paid under the tender offer and to procedural matters will be governed by Polish law. 6.3 Consideration Polish law specifies a minimum price for tender offers. The law specifies a number of factors that the bidder must take into account when assessing the price and may not offer a price that is lower than the highest of them. Among the factors determining the minimal price are Volume Weighted Average Prices (VWAPs), the highest price paid or agreed to be paid for any shares in the target company by the bidder in the 12 months before the tender offer. In some cases, the law also requires that the price offered cannot be lower than the fair market price set by the auditor retained by the bidder for this purpose. In terms of consideration, Polish law allows for a cash payment (as a primary form of payment of the con - sideration). In addition, it is admissible to offer pay - ment of the consideration in the form of other finan - cial instruments (shares or other securities) listed in Poland carrying the right to vote. Nevertheless, the bidder is obliged to offer the selling shareholders the choice between securities and cash. Taking all this into account, payment of consideration in a non-cash form is not popular in Poland. 6.4 Common Conditions for a Takeover Offer A mandatory tender offer or a delisting tender offer (which is a Polish law requirement and not a require - ment of the Takeover Directive) may not include any conditions, including in terms of regulatory clearanc - es/permits. Only a voluntary tender offer may be subject to certain conditions under Polish law. This is a closed list and therefore it is not possible to create and propose new conditions in the tender offer. The only admissible conditions are: • the passing of a specific resolution by the share - holders’ meeting or the supervisory board of the target company;
• the success of another tender offer for shares of a company forming part of the same capital group as the target company by a company forming part of the same capital group as the bidder; • the conclusion by the target company of a specific agreement, eg, a co-operation agreement with the bidder; • the satisfaction of any legal conditions required to close the tender offer, including obtaining clear - ance from the Polish Office of Competition and Consumer Protection or any other relevant compe - tition authority; and/or • the legally required approval to acquire shares of the target company being granted by the general meeting of shareholders or any other decision- making or supervisory body of the bidder. Other conditions, in particular subjective conditions, are not permitted. The bidder is also not entitled to pull out of the tender offer in the event of a material adverse change in the position of the target company or because of any information it may have received in respect of the target company which proves to be incorrect. 6.5 Minimum Acceptance Conditions In addition to the conditions set out in 6.4 Common Conditions for a Takeover Offer , the bidder may establish a minimum acceptance threshold of up to 50% and will be obliged to purchase shares offered by other shareholders only if this threshold is reached or exceeded. The acceptance threshold may be changed during the term of the subscription period (but not to more than 50%) or even waived completely. When assessing whether the minimum acceptance threshold has been reached, the bidder is required to combine any shares it (and entities from its capital group as well as entities acting in concert with the bidder) held before the tender offer and the number of shares covered by subscriptions submitted by share - holders during the tender offer. If the threshold has been reached or exceeded, that bidder may not walk away from the tender offer on this basis. In fixing any acceptance threshold it is important to understand which voting thresholds apply to share - holders’ resolutions in a Polish public company. The
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