AUSTRIA Law and Practice Contributed by: Clemens Hasenauer and Albert Birkner, CERHA HEMPEL
• once its administrative bodies have decided to make an offer; • if circumstances oblige the bidder to make an offer (eg, acquisition of control); or • in the event of rumours and speculations or market distortion. After the bidder makes their intention public, they must file an offer (including all relevant documentation) with the Takeover Commission within ten trading days or 20 trading days of acquiring a controlling interest. Between the 12th and 15th trading day after the Takeover Commission is notified, the details of the offer must be published either in a nationwide Aus - trian newspaper or as a complimentary brochure that is provided to the public by the target company at its registered office and by the bodies entrusted with the task of paying the consideration. 7.2 Type of Disclosure Required Making a public offer triggers an obligation to produce a prospectus unless a prospectus exemption pursu - ant to the Prospectus Regulation (EU) 2017/112 or the Capital Market Act applies. The obligation to produce a prospectus gives investors the opportunity to gain greater knowledge of the risks involved. Before pub - lishing the prospectus, the Austrian Financial Market Authority has to approve it. The prospectus must comply with the provisions of the Capital Market Act and must be published at least one banking day in advance. It is deemed available to the public if it is published: • on the electronic announcement and information platform of the Republic of Austria ( EVI ) or in a nationwide newspaper; • on the issuer’s website; • on the website of the regulated market to which admission to trading is being sought; • on the website of the Financial Market Authority; or • in a printed form to be made available free of charge to the public at the competent bodies of the market on which the securities are being admitted to trading.
The Commission Delegated Regulation (EU) 2021/528 sets out the minimum information required for docu - ments to be published for a prospectus exemption in connection with a takeover by means of an exchange offer, a merger or a division. 7.3 Producing Financial Statements Financial statements are to be included in the pro - spectus. Consolidated financial statements are pre - pared according to international financial reporting standards (IFRS), whereas others (on a standalone level) apply Austrian generally accepted accounting principles (GAAP). It is crucial that, even if the require - ments regarding mandatory minimum contents are met, additional information may be needed to enable the investor to make a well-founded decision. 7.4 Transaction Documents Parties to takeover proceedings are obligated to co- operate with the Takeover Commission by provid - ing comprehensive information as necessary for the Takeover Commission to fulfil its duties. All relevant documents (eg, share purchase agreements and shareholders’ agreements) must be fully disclosed to the Takeover Commission. However, the bidder or the party obliged may disclose extracts from certain documents only if the bidder or the party obliged has an interest in keeping the information secret. There is no disclosure requirement vis-à-vis the recipients of the takeover offer. A two-tier board system governs Austrian stock cor - porations. The members of both boards – the man - agement board and supervisory board – are required to comply with the duty of care of a prudent business person and to act foremost in the company’s best interest. Additionally (but only of secondary impor - tance), shareholders’, employees’ and public interests may be taken into consideration. In addition, Section 47a of the Austrian Stock Corporation Act establishes a general principle of equal treatment for all share - holders. Similar duties of care and loyalty towards the company apply to the managing directors of limited liability companies. 8. Duties of Directors 8.1 Principal Directors’ Duties
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