GREECE Law and Practice Contributed by: Stathis Orfanoudakis, Theodore Konstantakopoulos and Yolanda Antoniou-Rapti, Zepos & Yannopoulos
that a relevant clause has been included in the information memorandum for the tender offer. The consideration must be in the same form and at least equal to the consideration of the tender offer but, in any case, the alternative of cash consideration needs to be available at the discretion of the recipients. A sell-out right is also provided by law within the same time limits in favour of minority sharehold - ers that remain in the target company where an offeror acquires more than 90% of the voting rights. 6.9 Requirement to Have Certain Funds/ Financing to Launch a Takeover Offer Where the consideration of a takeover offer is in the form of cash, the offeror must provide a confirmation by a Greek or EU credit institution that the offeror possesses the funds for the full payment of the amount that may potentially be paid in the context of the takeover offer. Where the consideration of the offer is in the form of securities, the offeror must provide a confirma- tion by a Greek or EU investment firm or credit institution that the offeror possesses the securi- ties offered as consideration or that – as the case may be – it has taken all appropriate measures to ensure that the consideration will be paid. 6.10 Types of Deal Protection Measures Deal protection measures, such as break-up fees, are not common in Greece. There have been a few transactions where such measures have been agreed between the parties, but the sample size is too small to fully assess their enforceability. General principles of Greek law, such as limitations regarding abusive exercise of rights, may also play a part in limiting the enforceability of such clauses.
A voluntary tender offer can be withdrawn where a competing offer is submitted to the HCMC or following prior approval of the HCMC in excep- tional cases – not attributed to actions of the offeror itself – that render the continuation of the offer overly burdensome for the offeror. 6.11 Additional Governance Rights A bidder may obtain effective control over a target by acquiring a shareholding stake of more than 50%. Furthermore, as noted in 6.7 Minimum Acceptance Conditions , a stake of at least 67% will also capture any matters requiring increased majority at the level of the company’s general meeting – thus ensuring an adequate level of control over the company’s operations even with a stake below 100%. 6.12 Irrevocable Commitments As mentioned in 6.7 Minimum Acceptance Conditions , irrevocable commitments by prin- cipal shareholders may be sought, as an addi- tional means of supporting the transaction and increasing “deal certainty”. Depending on the parties’ negotiating power, such commitments may or may not provide for an “out” in case a better offer is made. 6.13 Securities Regulator’s or Stock Exchange Process A person intending to submit a takeover offer (whether voluntary or mandatory) has to pro- vide prior notification in writing to the HCMC. Prior to such notification, no announcement to the public may be made. On the next business day following such notification, the offeror has to announce the takeover offer on its website and in the daily bulletin announcements of the Ath- ens Stock Exchange. The offeror is also required to publish an information memorandum includ- ing sufficient information – as provided by appli-
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