AUSTRIA Law and Practice Contributed by: Horst Ebhardt, Philipp Kapl, Hartwig Kienast and Matija Bernat, Kinstellar
covenants such as non-compete or non-solicitation clauses. Fraud-based claims or disputes concern - ing disclosures or omitted disclosures are equally not uncommon. Due to the widespread use of W&I, warranty-related disputes are often directed at insur - ers rather than sellers.
thresholds are 4%, 5%, 10%, 15%, 20%, 25%, 30%, 50%, 75% and 90%. The notification must be made without undue delay and at the latest within two trad- ing days. The issuer must then publish the notification. In the context of a tender offer, the most critical thresh - old is 30% + one voting right. • Exceeding 30% of voting rights triggers a manda - tory offer obligation under the ATA, unless a spe - cific exemption applies. This applies to both direct and indirect shareholdings. • If an investor already holds a controlling stake conferring dominant influence without owning the majority of voting rights (ie, between 30% + one voting right and 50%) and acquires at least an additional 3% of the voting rights within a calen - dar year (taking into account any prior disposals), the investor must immediately notify the Takeover Commission ( Übernahmekommission ) and within 20 trading days launch a mandatory offer for all shares of the target company (so-called “creeping” takeover rule). • Stakebuilding strategies by PE-backed bidders must therefore be carefully structured to avoid an unintended triggering of the mandatory offer. A company may set forth a lower limit that already triggers the obligation for a mandatory offer. In addition, there are specific rules for companies active in regulated sectors (banks, insurance com - panies, etc). For example, in the case of banks, the potential acquirer must notify and obtain permission from the FMA to acquire a certain stake in a bank (10%, 20%, 30%, 50%). 7.3 Mandatory Offer Thresholds Austria has a mandatory offer threshold under the ATA. A mandatory offer must be launched if a bidder acquires, directly or indirectly, a controlling interest over a listed target, which is presumed upon exceed - ing 30% of the voting rights. In such cases, the “creeping” takeover rule also applies. For PE-backed bidders, the extensive attribution rules of the ATA are particularly relevant. Voting rights held by affiliated entities – such as other PE funds under
7. Takeovers 7.1 Public-to-Private
Public-to-private transactions involving PE-backed bidders are rare in Austria, primarily due to the small number of listed companies and the dominant role of one or several shareholders owning large stakes, which are structures typical for Austrian public com - panies. However, when such transactions do occur, they tend to involve strategic targets in regulated sec - tors or niche industries, and are often structured as voluntary takeover offers under the Austrian Takeover Act (ATA). The target company’s board ( Vorstand ) and supervi - sory board ( Aufsichtsrat ) play an advisory and over - sight role during the process, whereby the board and supervisory board must act in the best interest of all shareholders and other holders of equity securities, as well as in the interest of employees, creditors and the public. “Relationship agreements” or “transaction agree - ments” between the bidder and the target are not common, due to strict rules on the equal treatment of shareholders and transparency under Austrian take - over law. Any such arrangements must be carefully structured to avoid acting-in-concert implications or breaches of mandatory disclosure requirements. 7.2 Material Shareholding Thresholds and Disclosure in Tender Offers Shareholding disclosure obligations relevant to tender offers are primarily governed by the Stock Exchange Act (BörseG 2018) and the ATA. Any person acquir - ing shares in an issuer listed on a regulated market (Vienna Stock Exchange – Wiener Börse ) must notify the issuer and the Austrian Financial Market Author - ity (FMA) when certain thresholds of voting rights are reached, exceeded or fallen below; the relevant
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