POLAND Law and Practice Contributed by: Agnieszka Janicka, Krzysztof Hajdamowicz and Jarosław Lorenc, Clifford Chance LLP
7.2 Type of Disclosure Required For the reasons indicated when describing the forms of the admissible consideration in the case of a tender offer, tender offers are not combined with the issu - ance of new shares. Moreover, the tender offer regula - tions per se do not provide for such a possibility. The mechanism is connected with the merger of entities instead and generally requires a suitable information document or a prospectus if no exemption could be applied. 7.3 Producing Financial Statements In the takeover process carried out through a tender offer, the bidder is not required to produce or publish any special financial information on the target com - pany or combined businesses (such as pro forma financial statements). Unlike in the case of certain other jurisdictions, the tender offer document is not very complicated. It usually comprises a few pages of general information about the target company, the bidder, the proposed price, a specification of the applicable statutory mini - mum prices, the terms and conditions of the tender offer (in the case of a voluntary tender offer) and other useful information regarding the proposed takeover. Furthermore, the tender offer document should also include other information deemed material for the target company’s shareholders, such as the bidder’s potential plans with regard to the target company prior to the completion of the tender offer (eg, supporting the target company in attempts to seek debt financ - ing) and details of any incentive schemes, if any, pro - posed for the target company’s management. 7.4 Transaction Documents Unlike certain other jurisdictions, the scope of disclo - sure in Poland is rather limited. The bidder is gener - ally obliged to publish the tender offer document, the content of which is strictly regulated by Polish law. Furthermore, it may be that the target company and/ or the bidder (if it is also listed) will be required to issue a suitable MAR report on the transaction. However, as in other countries where the MAR applies directly, these reports provide a summary of the most important information (eg, an agreement). It is possible
that some valuation reports and/or fairness opinions may be prepared in the context of the tender offer (eg, before issuing its opinion on the announced tender offer, the target company’s management board may request a fairness opinion from a third-party expert). If valuation reports or fairness opinions are obtained, they must be published in full. Apart from these valuation reports/fairness opinions, neither the target company nor the bidder is required to disclose any of the transaction documents in full, in the context of takeovers in Poland. Most M&A transactions in Poland are structured as share acquisitions and, subject to certain exceptions, directors have a limited role (if any at all) and no spe - cific duties. If a tender offer is announced, the management board of the target company is obliged to communicate its position on it to the PFSA/KNF and the public. This must be done no later than 14 days following the announcement of the tender offer. 8. Duties of Directors 8.1 Principal Directors’ Duties The management board’s position must also be dis - closed at the same time to the representatives of any employee associations (eg, trade unions) active in the company and, if there are none, directly to all its employees. The management board’s opinion must include its views on the effect of the tender offer on the com - pany’s interests, including its workforce, the bidder’s strategic plans in relation to the company and their likely effect on the company’s workforce and the place of the company’s business, as well as its view on whether the price proposed in the tender offer reflects the company’s fair value, with the proviso that the fair value may not be determined solely on the basis of the price at which the company’s shares have traded up until that time. Market practice shows that receiving a recommen - dation of the target company’s management board
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