AUSTRIA Law and Practice Contributed by: Clemens Hasenauer and Albert Birkner, CERHA HEMPEL
6.4 Common Conditions for a Takeover Offer In general, mandatory offers may not be con - ditional on acceptance or any internal approv - als by the bidder. They may solely be subject to obtaining regulatory clearance (eg, merger control). With regard to purely voluntary offers (ie, not aimed at obtaining control) and voluntary takeo - ver offers aimed at obtaining control, the com - pletion may be subject to objectively justified conditions, including: • minimum or maximum acceptance thresh - olds; • clearance by merger control and other regula - tory authorities; or • the absence of a material adverse change. However, the fulfilment of a condition or a right to withdraw may not depend on the buyer’s dis - cretion. The Takeover Commission may declare an offer unlawful if conditions are unjustified, discretion - ary, or not objectively determinable. As a result, the latter may prohibit its launch. Therefore, it is advisable to consult the competent authority prior to submitting an offer that includes condi - tions that are unusual, not precise enough, or where their justification is not clearly evident. 6.5 Minimum Acceptance Conditions Again, a distinction must be drawn between mandatory offers, voluntary offers aimed at obtaining control, and purely voluntary offers. • Mandatory offers may not be conditional on acceptance or any internal approvals by the bidder. They may be subject solely to obtain - ing regulatory clearance (eg, merger control).
• Voluntary offers aimed at obtaining control are subject to a statutory acceptance threshold of more than 50% of the voting rights (which may be combined with a higher minimum acceptance threshold in the offer). • Purely voluntary offers may be made subject to any threshold of minimum acceptance. • Subject to the above, thresholds are usually set at more than 50%, at 75% and some - times also at 90% of the voting rights for the following reasons: (a) 50% plus one vote enables a shareholder to take majority decisions in the gen - eral meeting, in particular when electing members of the supervisory board, which in turn decides on the managing board’s composition, distribution of dividends and similar; (b) 75% of the votes (a qualified majority) enables a shareholder to amend almost all provisions of the articles of association and to implement most types of corporate restructurings (mergers, transformations, spin-offs, etc); and (c) 90% of the shareholding enables a share - holder to initiate a squeeze-out of minor - ity shareholders (see 6.10 Squeeze-Out Mechanisms ) with the aim of acquiring up to 100% ownership. 6.6 Requirement to Obtain Financing Regarding private transactions, it is legally pos - sible to make completion of a signed SPA/APA conditional on the bidder obtaining financing (eg, by implementing a condition precedent stipulating (re)financing measures). However, such a contract structure is seldom accepted by the seller’s side and is, therefore, rarely seen in practice (except in small private real estate transactions, for example).
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