BELGIUM Law and Practice Contributed by: Michel Bonne, Hannelore Matthys and Virginie Lescot, Van Bael & Bellis
7. Disclosure 7.1 Making a Bid Public
Finally, the BCAC provides for a squeeze-out mechanism for non-listed companies. Both the majority security holders of limited liability companies which are not listed on a regulated market, as well as the majority security hold - ers of private limited liability companies, have a similar squeeze-out right. However, as opposed to the minority security holders of listed liability companies, the minority security holders who have explicitly confirmed in writing their refusal to sell their securities to the offeror, will not be squeezed out at the end of the acceptance peri - od of the offer. The validity of other squeeze-out mechanisms under Belgian law, such as an asset sale to a special purpose vehicle, will be subject to scru - tiny and may result in director’s liability. 6.11 Irrevocable Commitments Many Belgian companies (both private and list - ed) are characterised by a concentrated (family) shareholder structure. Consequently, a tender offer for a Belgian listed company is often only successful if the majority/significant sharehold - ers of the company have committed to tender their shares to the bidder. In practice, a bidder will therefore negotiate with the principal shareholders of the target company before submitting its offer. In this respect, it is not uncommon to obtain the irrevocable com - mitment of the principal shareholder(s) to tender their shares within the context of the offer. How - ever, the validity of such a commitment cannot be fully guaranteed, as a security holder who has accepted within the context of the offer may always withdraw their acceptance at any time during the acceptance period of the offer.
Unlike public takeover bids, bids in the context of negotiated business combinations are not subject to specific disclosure requirements. Takeover bids on shares of listed companies are subject to strict disclosure requirements. In this case, only the FSMA is allowed to publicly announce a bid following the notification thereof by the bidder. Upon notification of the bid, the bidder should submit the following information to the FSMA: • information regarding the bid; • any envisaged advertisement or publication; • the draft prospectus; and • if the bidder controls the target, an independ - ent expert’s report. The FSMA will subsequently publish the noti - fication the following working day. No public announcements regarding the bid are allowed prior to such publication. If the target has voting shares listed on a regu - lated market in a different EU member state, the bidder must also notify its bid in that EU member state in accordance with local regulations. Should there be rumours and speculation in the market, the FSMA can instruct a party to make a public announcement clarifying its intentions. Should the party confirm its intentions to launch a bid, it must proceed to notify that bid to the FSMA. If the party rejects the rumours, it is pro - hibited from launching a bid during the following six months ( “put up or shut up” rule).
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