BELGIUM Law and Practice Contributed by: Michel Bonne, Hannelore Matthys and Virginie Lescot, Van Bael & Bellis
• a shareholder acquires securities with voting rights and, as a result of such acquisition, the total number of voting rights it holds (directly or indirectly) exceeds any other multiple of 5% of the total existing voting rights; and • securities with voting rights are transferred, directly or indirectly, as a result of which the total number of voting rights held by the transferor drops below one of the above- mentioned thresholds. Furthermore, private individuals and legal enti - ties are considered to act in concert when they co-operate with an offeror, the offeree company or with other persons on the basis of an agree - ment, aimed either at obtaining control over the offeree company, frustrating the successful out - come of a bid or maintaining control over the offeree company. 4.3 Hurdles to Stakebuilding Companies can introduce additional hurdles to stakebuilding. One of the more common hur - dles is the inclusion of a provision in the target’s articles of association for additional reporting thresholds. Pursuant to Section 18 of the Law on public disclosure of important participations, such additional thresholds can only be set at 1%, 2%, 3%, 4% and 7.5% of the voting rights. In addition, the articles of association may permit the board to take various defensive measures making takeovers more difficult; for example, to increase the capital of the company within cer - tain limits or purchase shares in the company without prior shareholders’ approval. 4.4 Dealings in Derivatives Dealings in derivatives are allowed under Belgian law. Regulation (EU) No 648/2012 on over-the- counter (OTC) derivatives, central counterparties and trade repositories, which is directly appli -
cable in Belgium, is the most relevant source in relation to these dealings. This Regulation includes provisions on exchange traded deriva - tives, but mainly provides a legal framework for OTC derivatives, which account for almost 95% of the derivatives markets within the EU. 4.5 Filing/Reporting Obligations Pursuant to Section 6, paragraph 6 of the Law on public disclosure of important participations, financial instruments linked to securities confer - ring voting rights, where the exercise of those instruments might lead to the acquisition of voting rights, are subject to the same reporting regime as the voting securities themselves (see 4.2 Material Shareholding Disclosure Thresh- old ). Examples of financial instruments that could meet these requirements are warrants, futures and swaps. If such financial instruments are exercised, resulting in the acquisition of the shares the financial instrument was linked to, the same rules apply once again. 4.6 Transparency When bidders acquire shares, they are generally not under an obligation to disclose the purpose of their acquisition, nor their intention regard - ing control of the company (if they were to have such an intention). There is, however, an exception to this rule, which applies if a bidder intends to acquire portfolio management and investment advice companies, management companies of undertakings for col - lective investment and management companies of public alternative investment funds. Furthermore, the bidder shall have an obliga - tion to notify the FSMA of a decision to acquire shares or shareholder rights in the entity if the
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