AUSTRIA Law and Practice Contributed by: Clemens Hasenauer and Albert Birkner, CERHA HEMPEL
4. Stakebuilding 4.1 Principal Stakebuilding Strategies A bidder can acquire an initial stake in the target company prior to launching an offer. Although pre-launch stakebuilding is generally permit - ted under Austrian takeover law, a shareholder must fulfil certain notification requirements if the thresholds described below are met or exceed - ed. As a consequence, stakebuilding involves the risk of generating publicity. The Transparency Directive Amending Direc - tive (2013/50/EU) introduced stricter disclosure requirements, including a reporting obliga - tion regarding cash-settled equity swaps. This makes it harder to carry out a creeping increase of control. 4.2 Material Shareholding Disclosure Threshold Under the Austrian Stock Exchange Act 2018, Section 130, any person directly or indirectly acquiring or selling shares in a company listed on a regulated market is required to inform the Austrian Financial Market Authority and the exchange operating company if their shares car - rying voting rights reach, exceed or fall below the thresholds of 4%, 5%, 10%, 15%, 20%, 25%, 30%, 35%, 40%, 45%, 50%, 75% and 90%. These material shareholding disclosure thresh - olds only apply to shareholders who are inter - ested in a company whose registered office is in Austria. The personal scope of the applica - tion includes individuals, legal entities, regis - tered partnerships without legal personality, and investment funds. The provision aims to ensure the functioning of the capital market and to pro - vide a reliable basis for shareholders’ decisions about the acquisition and sale of shares.
companies acquire innovative start-ups to elim - inate future competition. The Commission is now exploring alternative regulatory measures, including potential amendments to the EU Merg - er Regulation or revised guidelines for assessing merger control referrals. It remains to be seen whether legislative changes will be introduced to close the regulatory gap highlighted by the Illumina/Grail case. 3.2 Significant Changes to Takeover Law The Austrian Takeover Act, which entered into force in 2018, has been amended to include a new section regulating offers to delist securi - ties from the Official Market of the Vienna Stock Exchange. Delisting offers are subject to the provisions governing mandatory offers in accordance with the derogations set out in the new Section 27e of the Takeover Act. Offer documentation must expressly indicate that the offer is a delisting offer. The delisting offer can be combined with a voluntary takeover offer to acquire a control - ling interest or with a mandatory takeover offer. The consideration offered under the delist - ing offer will be subject to two additional price floors. The consideration has to reach at least the following: • the weighted average market price during the last five trading days prior to the day on which the intention to submit the delisting offer is announced; and • if the weighted average market price is obvi - ously lower than the actual company value, the price has to be reasonably set. For the changes resulting from the ECJ ruling, see 3.1 Significant Court Decisions or Legal Developments .
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