ROMANIA Law and Practice Contributed by: Ileana Glodeanu, Andreea Cărare, George Ghitu and Delia Dumitrescu, Wolf Theiss
In light of the foregoing, although Romanian law ena - bles public-to-private transactions, the market struc - ture, investor composition and regulatory burdens discourage such strategies in practice. Acquirers who obtain control of a listed Romanian company typically choose to consolidate ownership post-acquisition and subsequently request delisting, rather than pur - sue delisting as an integrated part of a public M&A strategy. 7.2 Material Shareholding Thresholds and Disclosure in Tender Offers Any person acquiring or disposing of the shares of an issuer whose securities are admitted to trading on a regulated market (such as the BVB) is required to notify the issuer and the FSA of the voting rights per - centage it holds following such acquisition or disposal whenever it reaches, exceeds or falls below one of the following thresholds: 5%, 10%, 15%, 20%, 25%, 33%, 50% or 75%. A similar reporting obligation is in place whenever the following applies. • When a person holds – directly or indirectly – financial instruments that at maturity create an unconditional right to acquire, or the possibility to exercise the right to acquire, shares having incor - porated voting rights of a listed issuer, or financial instruments that have a similar economic effect, irrespective of whether they grant the right to a physical settlement. Voting rights related to finan - cial instruments that have already been notified, as mentioned earlier, will again be subject to notifica - tion if the person acquired shares having attached voting rights, and where such acquisition results in a total number of voting rights of the same issuer reaching or exceeding the previously indicated thresholds. • When the number of voting rights, held directly or indirectly, aggregated with the number of voting rights attached to the financial instruments, again held directly or indirectly, exceeds or falls below the previously mentioned thresholds. • When a person holds only financial instruments (with or without settlement rights) that are linked to voting shares of a listed issuer and which confer a long position, having an economic effect similar to holding shares. Only long positions are consid - ered when calculating voting rights for disclosure
purposes, and these cannot be offset by short positions. The issuer of shares listed on a regulated market acquiring or disposing of, directly or indirectly, its own shares will publicly announce the percentage of own shares held as soon as possible, but not later than four business days after such acquisition or disposal, if the percentage reaches, exceeds or falls under the threshold of 5% or 10% of the total voting rights. These disclosure obligations are particularly relevant for private equity-backed bidders contemplating a tender offer in Romania. Any stake-building activity prior to launching an offer – whether through direct acquisitions or through financial instruments – may trigger mandatory notifications and thus reveal the bidder’s identity or strategic intent before the offer is formally announced. The requirement to aggre - gate voting rights from both shares and economically equivalent financial instruments means that synthetic or indirect exposure (eg, through swaps, options or other cash-settled derivatives) cannot be used to avoid disclosure. In addition, if the 33% threshold is reached or exceeded, the bidder will be required to initiate a mandatory takeover offer unless a statutory exemption applies. As a result, private equity inves - tors must factor these obligations into their structuring and execution strategy, particularly in the context of public-to-private transactions or acquisition strategies Any person who, following their own acquisitions or those of the persons with whom it acts in concert, holds – directly or indirectly – securities that exceed 33% of the voting rights when added to their previous holdings or those of the person with whom it acts in concert is compelled to conduct a mandatory takeo - ver of all the target’s shares within two months of such acquisition. Until proceeding with the mandatory takeover, all vot - ing rights exceeding 33% of the total voting rights will be suspended, and no additional acquisitions can be made in the target company. involving gradual stake accumulation. 7.3 Mandatory Offer Thresholds
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