BULGARIA Law and Practice Contributed by: Nikolay Zisov, Svetlina Kortenska, Deyan Terziev and Teodora Peycheva, BOYANOV & Co.
6.7 Minimum Acceptance Conditions Within three business days from clearance of the ten- der offer by the FSC, a notice of the tender offer shall be published along with the material conditions there- of in one national daily newspaper or on the website of a news agency or other media, which can ensure the effective announcement of the regulated information to the public in all EU member states. A final version of the tender offer shall be submitted to the company and the regulated market. The company, the investment intermediary and the regulated market on which the shares have been admitted to trading shall disclose the tender offer on their websites until the expiration of the term for acceptance of the said offer. The company shall also disclose the tender offer and the opinion of the man- agement body. Any advertisement must indicate the issue number and the publication date of the national daily newspaper, and the websites referred to above. As a rule, a tender offer may not be withdrawn by the offeror after publication. Exceptions shall be admis- sible solely where the offer may not be effected due to circumstances beyond the control of the offeror, provided that the term for acceptance has not expired, and if the FSC has approved the withdrawal. Within seven days after notified approval, the offeror shall publish a notice of withdrawal in one national daily newspaper or on the website of a news agency or other media, which can ensure the dissemination of the regulated information to the public in all EU mem- ber states. Within three days after receipt of a notice of withdrawal, the investment firm or the central securi- ties depository in which the documents certifying the shares are deposited shall ensure conditions for resto- ration of the certifying documents to the shareholders who or which have accepted the offer. A tender offer shall be accepted by an express state- ment and deposit of the documents certifying the shares with an investment firm or with the central securities depository. 6.8 Squeeze-Out Mechanisms A person who as a result of a tender offer has acquired more than 95% of votes in the general meeting of the shareholders shall have the right to acquire the
remaining voting right shares within three months after the expiry of the term of the tender offer. The squeeze- out offer shall be approved by the FSC. The squeeze- out price shall be at least equal to: • the price of the mandatory tender offer at which the 95% threshold was reached; • the price of the voluntary tender offer in the case of acquisition of 90% of the shares; or • the price determined in relation to the substantia- tion of the tender offer consideration. 6.9 Requirement to Have Certain Funds/ Financing to Launch a Takeover Offer The tender offeror must submit a bank letter or similar financial document with the tender offer document. This evidence must confirm the availability of funds to finance the tender offer as of the price justification date or, if temporarily prohibited, the date before the amended tender offer document submission. While the FSC has accepted various bank letter formats, it has not required a specific “certain funds” commit- ment from lenders. The MTO disclosure document does not need to include detailed information about the tender offer- or’s financing terms, fees and costs. Additionally, Bul- garian law does not mandate the disclosure of due diligence information provided to the tender offeror and its lenders to other target shareholders. However, the MTO disclosure document must still comply with legal requirements and avoid misleading information or material omissions. 6.10 Types of Deal Protection Measures Upon receiving the tender offer disclosure document, the target company’s management board is legally prohibited from taking actions that could hinder the offer’s success or impose significant costs or diffi- culties on the offeror. Exceptions include seeking a competing bidder (white knight) or implementing other defensive measures approved by a shareholder meet- ing (eg, capital increase). However, such defensive measures are uncommon in Bulgarian M&A practice. 6.11 Additional Governance Rights If a bidder fails to acquire 100% of the capital of the target company but holds 95% of the issued share
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