BELGIUM Law and Practice Contributed by: Michel Bonne, Hannelore Matthys and Virginie Lescot, Van Bael & Bellis
7.2 Type of Disclosure Required Non-listed companies must prepare a board report (and a statutory auditor’s report) when issuing new shares. The issuance of new shares (and the amendment of the articles of associa - tion resulting therefrom) must be established through a notary deed. In addition to submitting these reports to the shareholders, they should be filed with the clerk’s office of the competent Commercial Court, together with the decision of the shareholders, an extract of which will be subject to publication. If shares are issued within the context of a statu - tory procedure (ie, a (de)merger or contribution of a branch or universality of assets) the compa - nies involved should prepare a proposal, a board report and a (statutory) auditor’s report. These documents should be submitted to the share - holders and filed with the clerk’s office of the competent Commercial Court, together with the final decision of the shareholders, an extract of which (and for (de)mergers, also the proposals) will be published. In addition, the shareholders in (de)merger operations must have access to the annual accounts, board reports and statutory auditor’s reports of the (de)merging companies of the past three years, possibly together with recent financial statements should the annual accounts be outdated. If a listed company envisages issuing shares, it should in principle, save for certain exceptions, publish a prospectus. Alternatively, the publica - tion of a more limited information memorandum may suffice, should the total value of the issued shares not exceed EUR5 million (or EUR8 mil - lion, if the securities are traded on MTF Alternext or the Free Market of Brussels) over a period of 12 months.
7.3 Producing Financial Statements In private M&A transactions, it is unusual for the bidder to produce its financial statements. However, should the business combination be structured as a (de)merger, the bidder may be required to make its annual accounts, or more recent financial statements if the previous financial year was closed more than six months before the date of the (de)merger proposal, avail - able to the shareholders (which can be waived unanimously by the shareholders) (see 7.2 Type of Disclosure Required ). Bidders launching a public takeover bid are required to submit the latest annual accounts and/or consolidated annual accounts of the bidder and the target as part of the prospectus. Should the annual accounts be older than nine months or should the company have undergone material changes in the meantime, more recent financial statements must be added to the pro - spectus. If the annual accounts are not in line with EU law and do not represent a true and fair view, additional information must be submitted. Belgian listed consolidating companies must prepare International Financial Reporting Stand - ards (IFRS) consolidated annual accounts. Other Belgian companies should prepare their annual accounts in accordance with Belgian generally accepted accounting principles (GAAP). 7.4 Transaction Documents In the context of private M&A transactions, no transaction documents must be published. However, business combinations structured against the background of a statutory procedure (merger, demerger, etc) are subject to certain disclosure and publication requirements (see 7.2 Type of Disclosure Required ).
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