POLAND Law and Practice Contributed by: Agnieszka Janicka, Krzysztof Hajdamowicz and Jarosław Lorenc, Clifford Chance LLP
key thresholds (provided for by law and which can be increased in the articles of association of a company) are: • 50% + 1 vote: operational control, ie, any resolu - tion not subject to a higher threshold, which usually includes the power to appoint and remove mem - bers of the company’s supervisory board and to approve the dividend; • two thirds: the merger of a public company with another company; • 75%: changing the company’s constitutional docu - ments and approving a capital increase; • 80%: disapplying the pre-emption rights of the existing shareholders upon a capital increase; and • 90%: approving the delisting of the company (a 50% quorum is required). With the maximum acceptance threshold not being more than 50% of the target company’s shares, any bidder has a certain degree of uncertainty as to the level of control it can achieve over the target company when launching its tender offer. It was previously possible to set the minimum accept - ance threshold at a significantly higher level (initial - ly, bidders tended to set this threshold around the squeeze-out threshold to make sure that the trans - action would always eventually lead to the acquisi - tion of 100% of the target company). This was often contested by the minority shareholders, who claimed that the tender offers were artificial, given that they rarely led to the crossing of the high minimum accept - ance thresholds. These claims were successful and the threshold was first decreased to not more than 66% and then to 50% since May 2022. 6.6 Requirement to Obtain Financing A tender offer may only be announced after security has been created for 100% of the value of the shares subject to the tender offer. This has to be documented by a certificate issued by the bank or other financial institution that provided the security or acted as an intermediary in the providing of the security. There - fore, obtaining financing cannot be a condition of a tender offer.
Since May 2022 there has been a closed list of permit - ted forms of security which comprises: • the blocking of funds on the bidder’s cash account; • the blocking of shares for which there is a liquid market; • the blocking of bonds issued by the State Treasury or other member state or a country belonging to the OECD, deposited in an investment account; • a bank guarantee; • an insurance guarantee; and • a bank surety. Out of the permissible forms of security, a bank guar - antee and blocking of cash tend to be the most com - mon. In any event, it must be a form of security that gives the broker certainty that, if the tender offer is successful, it will be able to fund and settle transac - tions with the shareholders who took part in the tender offer. The form and content of the security is therefore always subject to detailed discussions with the broker prior to any tender offer announcement being made. 6.7 Types of Deal Security Measures If the bidder enters into an agreement with a share - holder in parallel (but usually prior) to the tender offer, the agreement may include a broad range of protec - tions aimed at securing deal certainty, such as con - tractual penalties, break-up fees, non-solicitation/ non-compete provisions, interim period undertakings, etc. Generally, in the context of takeovers of public companies one may see attempts to replicate mecha - nisms popular in the context of takeover transactions of private companies. However, under Polish law a target company is not technically a party to any takeover and is just the sub - ject of a transaction between the shareholders and the bidder. Its co-operation is therefore optional and agreements with the target company aimed at secur - ing the deal are not common. Payment of break-up fees by the target company and any other arrangements of a similar financial or eco - nomic effect would be difficult for the management board of the target company to justify and are not a common practice in Poland. This is because it could be argued that these agreements are not in the best
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