MALTA Law and Practice Contributed by: George Bugeja, Stuart Firman, Nicholas Curmi and Luke Hili, Ganado Advocates
7. Disclosure 7.1 Making a Bid Public
6.10 Squeeze-Out Mechanisms In the context of a Maltese target whose shares are listed on an EU “regulated market”, an offeror may invoke a statutory squeeze-out right where, following a bid made for all of the target company’s shares, it has acquired not less than 90% of the share capital carrying voting rights and 90% of the voting rights in the target company, at which stage it may require all of the remaining shareholders to sell their shares to it for cash. Where the target company’s shares are divided into different classes, the offeror may exercise its right of squeeze-out per class of shares subject to reaching the required threshold in that class. Any and all squeeze-out rights must be invoked by the offeror within three months from the expiration of the acceptance period of the offer. Where the offeror has not announced that it will be exercising its squeeze- out rights, the remaining shareholders will be able to exercise their sell-out rights to require the offeror to buy their shares for a fair price for cash. In cases where the Maltese target is not listed on an EU “regulated market” and no statutory squeeze-out right applies (as well as in cases where additional cer- tainty might be sought by an offeror), it is increasingly common for tender offers to be conditional on the amendment of that target’s memorandum and arti - cles of association to introduce squeeze-out provi- sions that substantively reflect the provisions of the Takeover Directive. 6.11 Irrevocable Commitments It is common for an offeror to enter into conditional irrevocable commitments (prior to the announcement of a bid) with a target company’s key shareholders in order to obtain additional comfort/certainty that a planned acquisition will go through (subject to certain conditions being met). The nature/extent of the irrevo - cable commitments procured by the offeror varies on a case-by-case basis depending on the particulari- ties of the transaction in question, but they typically require the shareholders to accept the offeror’s bid within a set time period from its launch (subject to certain conditions being met) and to refrain from doing anything which may frustrate the bid.
In accordance with the Maltese Capital Markets Rules, an offeror shall disclose a bid to the public within seven days of acquiring a “controlling interest” (as defined in 6.2 Mandatory Offer Threshold ) in the target company, having first ensured that it can fulfil, in full, any cash consideration (if this is being offered) and after taking all reasonable measures to secure the implementation of any other type of consideration. Despite the above, the requirement for a public announcement will be triggered immediately in the event that the target company’s share price becomes subject to undue price movements due to rumour, possible speculation or the suspicion of a leak in con- fidential information, or where it is desirable to make an announcement in order to prevent possible market abuse. 7.2 Type of Disclosure Required In the event of an issuance of shares as part of a business combination, an assessment will need to be made in terms of whether the issuance of shares would constitute an offer of securities to the public which would in turn require the publication of a pro- spectus pursuant to Regulation (EU) 2017/1129 (the “Prospectus Regulation”). The Prospectus Regula - tion does, however, provide for an exemption from the requirement to publish a prospectus in so far as shares are being offered in connection with a takeover by means of an exchange offer, or otherwise as part of a merger or division – provided, in each case, that a document is made available to the public describ- ing the transaction and its impact on the issuer entity. 7.3 Producing Financial Statements The offeror of a bid disclosed in accordance with the Maltese Capital Markets Rules is not required to pro - duce financial statements as part of the offer docu - ment. 7.4 Transaction Documents Transaction documents do not need to be disclosed in full or included in an offer document prepared in accordance with the Maltese Capital Markets Rules. A “fairness opinion” prepared by an independent expert
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