GREECE Law and Practice Contributed by: Stefanos Charaktiniotis, Danai Falconaki, Stathis Orfanoudakis and Nadia Axioti, Zepos & Yannopoulos
with a voluntary tender offer for the acquisition of any number of securities issued by the company under acquisition. 6.6 Requirement to Obtain Financing Α takeover offer may not be subject to any conditions precedent apart from any prior regulatory approvals as set out in the tender offer prospectus. Considering this, a business combination through a tender offer (whether mandatory or voluntary) may not be con - ditional on the bidder obtaining financing. Neverthe - less, information on the financing of the tender offer is included in the tender offer prospectus. On the other hand, based on the specific type of consideration, the offeror shall be required to provide proof of its means to pay the offered price. In this regard, if the consideration consists of cash, a con - firmation by a Greek or an EU credit institution that the offeror will be able to pay an amount equal to the total amount that may be payable under the tender offer must be provided and remain in place up to the completion of the tender offer. Also, any applicable fees and taxes must be taken into account in the ten - der offer prospectus. Accordingly, if the consideration consists of securities, a confirmation by a Greek or an EU investment services firm or a credit institution must be provided, setting out that the offeror holds the securities that are being offered under the tender offer or, as the case may be, that it has taken any appropri - ate means so that it will be able to provide the offered consideration. Any other business combination could be subject to the bidder obtaining financing, which will be contrac - tually structured between the parties as a condition of closing the transaction or otherwise. 6.7 Types of Deal Security Measures Deal security measures are occasionally applied in the Greek private M&A market. Break-up fees and restric - tive covenants are a few of the tools that a buyer may seek to include in the transaction documents. In the case of public M&A deals, deal security meas - ures are not that common. Force-the-vote rights may not be included in accordance with Greek corporate law, while break-up fees could be agreed between
the principal shareholders and the potential buyer but would still be subject to the general principles of the Greek Civil Code and could be challenged and ruled as abusive and therefore void. It should be noted that financial assistance is restricted under Greek law; therefore, it could be ruled unenforceable if provid - ed as security for the completion of the bid. In any case, deal security measures could be considered as defensive measures and thus be subject to the board neutrality rule (see 9.2 Directors’ Use of Defensive Measures ). Finally, there have been no material changes to the applicable regulatory provisions impacting the length of the interim periods. 6.8 Additional Governance Rights Notwithstanding the particularities of each case, governance rights may consist of several veto rights of the purchaser entitling it to actively participate in specific areas of the company’s business ranging from decisions on the development of the company’s business to the approval of a business plan, debt or equity financing of the company, entry into material contracts, etc (often referred to as reserved matters), in the sense that the company will not be able to val - idly decide on such matters without the purchaser’s approval. Additionally, a right of the purchaser to directly appoint up to two-thirds of the directors of the board or nominate directors for their election by the general meeting of shareholders may also be included. It goes without saying that the bidder’s governance rights are also protected if the holdings of the other shareholders are locked-in for a specific period where their transfer would be restricted. The amendment of the company’s articles of association to include the above rights would be recommended for a higher protection of the purchaser against third parties. 6.9 Voting by Proxy Under Greek law, shareholders of Greek entities (whether private or public listed corporations) can vote by proxy in shareholders’ general meetings. 6.10 Squeeze-Out Mechanisms Law 3461/2006 provides for a squeeze-out and a sell- out right:
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