BELGIUM Law and Practice Contributed by: Steven De Schrijver, Allegiance Law
10.3 Producing Financial Statements The prospectus for a public takeover bid in Bel- gium must encompass the bid’s terms, condi- tions, and all necessary information for the pub- lic to conduct a comprehensive assessment. Financial details about the bidder and the target, the bid’s characteristics, the bidder’s objectives and the target board’s response memorandum are essential components. 10.4 Disclosure of Transaction Documents The draft prospectus must be filed with the FSMA. Initial verification will be conducted with the FSMA, where informal comments will be sought. Subsequently, a definitive version must be submitted to the FSMA for approval and sub- sequent publication. The responsibilities of directors in Belgium, as outlined by both Belgian law and possibly the company’s articles of association, encompass the overall management of the company, formu- lation of strategic direction, and representation in dealings with external parties. Directors are obligated to exercise reasonable care and dili- gence – all while upholding confidentiality and prioritising the company’s interests. Specific obligations arise in the context of M&A transac- tions, especially within corporate restructuring procedures outlined in Chapter 12 of the Belgian Code on Companies and Associations. 11. Duties of Directors 11.1 Principal Directors’ Duties For publicly traded companies, the Public Takeover Act imposes additional duties on the governing body of the target. This includes a preliminary declaration to verify the draft pro- spectus for omissions or misleading information
In the event of rumours or leaks concerning a potential bidder’s intentions to launch a public takeover bid, the FSMA has the authority to com- pel the party concerned to disclose its intentions (early disclosure of the announcement if required for the good functioning of the markets or “Put up or shut up” as described in 6.1 Stakebuild- ing ). Special rules govern self-tenders by the issuer of securities. 10.2 Prospectus Requirements The bidder is required to meticulously prepare a prospectus for the takeover bid, detailing the bid’s terms and conditions and incorporating essential information tailored to the characteris- tics of the bidder, target company and relevant securities. This includes clear presentation for ease of analysis and comprehension. The Belgian public takeover bid rules specify a minimum information checklist for inclusion in the prospectus, which must undergo approval by the FSMA before publication. Any new sig- nificant facts, substantial errors or inaccuracies emerging or discovered between FSMA approv- al and the expiry of the bid’s acceptance period must be promptly addressed in a prospectus supplement, subject to FSMA approval and dis- semination in the same manner as the original prospectus. The prospectus itself is required to be prepared in both Dutch and French, unless the bidder demonstrates that the target company custom- arily publishes financial information in a specific language – in which case, the FSMA may accept a prospectus in that language. The summary of the prospectus must be drawn up in both Dutch and French. In cases where takeover bid com- munications are disseminated in only one Bel- gian official language, the summary may be lim- ited to that language.
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