BELGIUM Law and Practice Contributed by: Michel Bonne, Hannelore Matthys and Virginie Lescot, Van Bael & Bellis
6. Structuring 6.1 Length of Process for Acquisition/Sale The time taken to acquire/sell a business in Belgium may vary from a few weeks to several months. Private M&A Transactions With respect to private M&A transactions, the length of the transactional process will depend on the spe - cific circumstances of the case. For instance, prior consents from regulatory authorities (eg, in case of merger or foreign direct investment filing) or the dura - tion of the (operational or technical) due diligence process may impact the flow of a transaction. The transaction process may also take longer when it is structured by way of an auction process, instead of a bilateral negotiation process (although it is not uncom - mon to pre-empt the auction process by requesting bilateral negotiations). The higher the deal value, the more likely it is that the transaction will be organised through an auction. Furthermore, and although this can often be organised relatively smoothly and in a timely fashion, taking out warranty and indemnity insurance, and the underwriting process within that context, may also have an impact on the process and timing of a transaction. Public M&A Transactions For public M&A transactions, the timing of the takeo - ver process is strictly regulated. The overall procedure of a voluntary takeover bid is similar to a mandatory takeover bid: • the bidder must first make an initial confiden - tial notification (including an offer notice, a draft prospectus, a draft press release and any relevant documents) to the FSMA; • at the latest on the day after having received the initial notification, unless the FSMA grants an exception (see 7.1 Making a Public Bid ), the FSMA publishes it and makes an official announcement to the bidder, the target, the public and the relevant stock exchange; • after having received the draft prospectus from the FSMA, the target’s management body must notify the FSMA and the bidder within five business days of any potential missing or misleading information in the draft prospectus;
• as soon as the FSMA receives a complete file for examination, it has ten business days to approve the prospectus – if the FSMA has not taken a decision in this respect at the end of this period, the bidder can urge it to do so, if the FSMA does not react within ten business days after having received this reminder, the prospectus is deemed to be denied; • within five business days after receiving the approved prospectus by the FSMA, the target’s management body must file a response memoran - dum with the FSMA for approval; • if complete, the FSMA must decide on the approval of the response memorandum within five business days; • the acceptance period during which the securities holder can accept the offer commences at the ear - liest after five business days following the approval of the prospectus or of the response memorandum (if this approval is made before the approval of the prospectus), the bid must remain open for a mini - mum of two weeks and a maximum of ten weeks (with a possible extension of two weeks under certain conditions); • no later than five business days from the closure of the acceptance period, the bidder must publicly announce the results of the bid; and • if the bid is successful, the bidder pays the price within ten business days from the publication of the results of the bid (or requests to be listed within one month following the end of the bid procedure in the case of an exchange offer). Because of the limited size of the Belgian stock mar - ket, the number of private M&A transactions out - weighs the number and total value of public M&A transactions by far. 6.2 Mandatory Offer Threshold Belgium has a mandatory offer threshold in the case of an acquisition of securities with voting rights in a Belgian listed company. A mandatory takeover bid for all remaining shares of the company must be launched when a person, as a result of its own acquisition, or the acquisition by persons acting in concert with it, holds directly or indirectly more than 30% of the securities with voting
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