AUSTRIA Law and Practice Contributed by: Clemens Hasenauer and Albert Birkner, CERHA HEMPEL
4.3 Hurdles to Stakebuilding The material shareholding disclosure thresholds mentioned in 4.2 Material Shareholding Disclo- sure Threshold are compulsory. However, the Austrian Stock Exchange Act 2018, Section 130, paragraph 1, makes it possible to include a threshold of 3% in a company’s articles of incor - poration (in addition to the other thresholds in Section 130, paragraph 1). As has already been demonstrated, the principle of equal treatment constitutes one of the Takeo - ver Act’s central concerns. Financial matters to which the principle of equal treatment relates are regulated (in particular) by those provisions governing transactions in the target company’s equities, in addition to the relevant provisions governing mandatory offers. Consequently, equal financial treatment should be guaranteed, meaning that the Takeover Act prohibits transac - tions in equities at more favourable terms: • during the offer phase (parallel transactions); and • after the offer has ended. However, these bans will not apply to credit insti - tutions if certain conditions are met. From the moment the offer is announced, from the moment the offer would have had to have been announced, or from the moment the offer is filed with the Takeover Commission, the bid - der and those parties acting in concert with the bidder must not issue any legally binding decla - rations aimed at the acquisition of equities in the target company at terms more favourable than those specified in the offer. Bidders will not vio - late this rule if they enhance the offer while con - ducting parallel transactions. This also applies to the acquisition of shares at terms equal to or worse than those set out in the offer. The Takeo -
ver Commission may also grant an exemption from the ban on parallel transactions if there is a good reason for doing so. 4.4 Dealings in Derivatives
Dealings in derivatives are permitted. 4.5 Filing/Reporting Obligations
Any financial instrument is subject to disclosure and/or filing and reporting obligations as speci - fied (see 4.2 Material Shareholding Disclosure Threshold ). There are no specific statutory com - petition rules covering derivatives, nor are there any for other financial instruments. National merger control will, in principle, only be triggered if an option right is exercised to acquire shares – unless the option right itself has con - siderable and material influence over the target entity and its management. 4.6 Transparency Section 7 of the Austrian Takeover Act states that the offer document must contain, inter alia, the terms of the offer and information regard - ing the bidder. In addition, details of the bidder’s intention regarding the future business opera - tions of the target company and the extent it is affected by the offer of the bidder company must be disclosed. Furthermore, information regard - ing the continued employment of employees and management must also be provided. In the event of a voluntary takeover offer to acquire control, the bidder’s intention will be obvious, as the offer aims to acquire a control - ling interest in the target by exceeding the mini - mum acceptance threshold of 50% of the per - manent voting shares. If, however, the material shareholding disclosure thresholds of Section 130 of the Austrian Stock Exchange Act 2018 are exceeded, the disclosed information does
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