BELGIUM Law and Practice Contributed by: Michel Bonne, Hannelore Matthys and Virginie Lescot, Van Bael & Bellis
7.3 Producing Financial Statements In private M&A transactions, it is unusual for the bid - der to produce its financial statements. However, should the business combination be structured as a (de)merger, the bidder may be required to make its annual accounts, or more recent financial statements if the previous financial year was closed more than six months before the date of the (de)merger proposal, available to the shareholders (which can be waived unanimously by the shareholders) (see 7.2 Type of Disclosure Required ). Bidders launching a public takeover bid are required to submit the latest annual accounts and/or consoli - dated annual accounts of the bidder and the target as part of the prospectus. Should the annual accounts be older than nine months or should the company have undergone material changes in the meantime, more recent financial statements must be added to the prospectus. If the annual accounts are not in line with EU law and do not represent a true and fair view, additional information must be submitted. Belgian listed consolidating companies must pre - pare International Financial Reporting Standards (IFRS) consolidated annual accounts. Other Belgian companies should prepare their annual accounts in accordance with Belgian generally accepted account - ing principles (GAAP). 7.4 Transaction Documents In the context of private M&A transactions, no trans - action documents must be published. However, busi - ness combinations structured against the background of a statutory procedure (merger, demerger, etc) are subject to certain disclosure and publication require - ments (see 7.2 Type of Disclosure Required ). Within the context of public takeover bids, certain transactional documents should be disclosed and published in full. The prospectus will be published upon its approval by the FSMA. If the bidder controls the target, an independent expert’s report will also be published as an annexe to the prospectus. The target’s board of directors then has five working days following the approval of the prospectus to submit a draft response memorandum to the FSMA. The tar - get should publish the response memorandum upon
Should there be rumours and speculation in the mar - ket, the FSMA can instruct a party to make a public announcement clarifying its intentions. Should the party confirm its intentions to launch a bid, it must proceed to notify that bid to the FSMA. If the party rejects the rumours, it is prohibited from launching a bid during the following six months (“put up or shut up” rule). 7.2 Type of Disclosure Required Non-listed companies must prepare a board report (and a statutory auditor’s report) when issuing new shares. The issuance of new shares (and the amend - ment of the articles of association resulting therefrom) must be established through a notary deed. In addi - tion to submitting these reports to the shareholders, they should be filed with the clerk’s office of the com - petent Commercial Court, together with the decision of the shareholders, an extract of which will be subject to publication. If shares are issued within the context of a statu - tory procedure (ie, a (de)merger or contribution of a branch or universality of assets) the companies involved should prepare a proposal, a board report and a (statutory) auditor’s report. These documents should be submitted to the shareholders and filed with the clerk’s office of the competent Commercial Court, together with the final decision of the shareholders, an extract of which (and for (de)mergers, also the pro - posals) will be published. In addition, the sharehold - ers in (de)merger operations must have access to the annual accounts, board reports and statutory auditor’s reports of the (de)merging companies of the past three years, possibly together with recent financial state - ments should the annual accounts be outdated. If a listed company envisages issuing shares, it should in principle, save for certain exceptions, publish a prospectus. Alternatively, the publication of a more limited information memorandum may suffice, should the total value of the issued shares not exceed EUR5 million (or EUR8 million, if the securities are traded on Euronext Growth or Euronext Access) over a period of 12 months.
160 CHAMBERS.COM
Powered by FlippingBook