AUSTRIA Law and Practice Contributed by: Clemens Hasenauer and Albert Birkner, CERHA HEMPEL
6. Structuring 6.1 Length of Process for Acquisition/ Sale In general, the timetable for M&A transactions may be subject to various drivers. The duration primarily depends on, inter alia: • the target’s size; • complexity of the transaction structure; • organisation and co-operativeness of the parties; • the industry the target company operates in; and • regulatory aspects. Public takeovers, which are governed by a strict regulatory framework including prescribed steps in a prescribed timeframe, usually take a mini - mum of three months and up to six months from the announcement of the offer to closing (hence, not including any time requirements for pre - paratory work). Private small- to medium-sized transactions structured as share or asset deals may typically be manageable from a minimum of three months to six months onwards. Particu - larly in the area of distressed M&A and small, simple transaction structures where no material due diligence of the target is performed, quite swift transactions (even below three months) are common. The foregoing assumes no need for merger control clearance or other regulatory approval issues. For larger international M&A transac - tions, time periods may extend up to approxi - mately 12 months or even 18 months from the first preparatory steps through to closing. 6.2 Mandatory Offer Threshold Essentially, the Takeover Act regulates public offers aimed at gaining or expanding control by
are the rule. Standstills provide an incentive to successfully conclude the envisaged transac - tion on the first attempt. Therefore, standstills prohibiting interested parties from acquiring or selling securities in the target company or the bidder from making another offer for a certain period even after a takeover has failed are regu - larly requested, and, in most cases, they are also a legal consequence of the prohibition of insider dealing. Exclusivity arrangements vary depending on the takeover structure and the underlying transac - tion. In general, exclusivity arrangements tend to be made in connection with negotiated deals rather than auction sales. Exclusivity arrange - ments restricting the future scope of manage - ment discretion are not generally allowed. 5.5 Definitive Agreements The bidder can unilaterally specify the terms and conditions of the agreement in its offer docu - ment. Individual recipients of the offer cannot negotiate or change the terms and conditions. The bidder makes a tender offer to all share - holders to conclude an agreement regarding the target company. The Austrian Takeover Act assumes that a con - tract will only be concluded with respect to the offer aimed at the target company’s sharehold - ers by means of the publication of the offer document if a declaration of acceptance is received. Essentially, a takeover offer fulfils the key requirements of a contract offer if its terms are adequately defined and it expresses the applicant’s willingness to enter into an agree - ment. Therefore, the terms and conditions of the tender offer are documented according to the described procedure.
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