GERMANY Law and Practice Contributed by: Marc Löbbe, Michaela Balke, Oliver Schröder and Martin Kolbinger, SZA Schilling, Zutt & Anschütz
ers to be published prior to delisting. The legal requirements regarding such an offer are very similar to those of a public takeover offer under takeover law. However, since the tradability of shares that are no longer listed is very much limited, there is a chance that shareholders who rejected a public takeover offer may accept an It is possible under German law to obtain com - mitments to tender by principal shareholders or to conclude tender agreements. However, ten - der agreements and irrevocable commitments qualify as financial instruments and thus trigger disclosure obligations to the target company and the supervisory authority (see 4.2 Material Shareholding Disclosure Threshold ), so are usually only concluded immediately prior to or in conjunction with a public offer. offer in the context of a delisting. 6.11 Irrevocable Commitments In accordance with the German Securities Acquisition and Takeover Act, the bidder has to publish its intention to submit an offer immedi - ately following the respective decision, having communicated it to the stock exchanges’ man - agement and BaFin. The announcement needs to contain the parties involved in the transaction, the offer’s nature and the offer price. It shall be disclosed in German by publication on the inter - net and via an electronic information distribution system. Subsequently, the publication has to be sent to the management of the stock exchange and BaFin, and to the target company’s management board. 7. Disclosure 7.1 Making a Bid Public
Within four weeks of publication of the inten - tion to submit an offer, the bidder has to submit the binding offer document to BaFin. As soon as BaFin permits the publication of the offer or if it does not prohibit it within ten days, the offer document needs to be published immediately online and in the German Federal Gazette, or made available for public distribution without charge. Mandatory Bids Anyone who directly or indirectly acquires con - trol of a target company – other than as a result of a takeover bid – has to publish this immedi - ately, within seven days at the latest, stating the amount of their share in the voting rights. The publication must be made on the internet and via an electronic information distribution system. Within four weeks of the publication of the acqui - sition of control, the bidder has to submit an offer to BaFin and publish it immediately online and in the German Federal Gazette, or make it available for public distribution without charge. Under the German Securities Acquisition and Takeover Act, acquiring control means holding at least 30% of the voting rights in the target company. 7.2 Type of Disclosure Required See 7.1 Making a Bid Public and 6.3 Considera- tion in connection with public offers. Outside of public bids, any public issuance of shares in a business combination has to be based on a pro - spectus available in printed form for distribution to the public or on the issuer’s website without charge. Under the German Securities Prospec - tus Act, the prospectus has to contain, inter alia, various pieces of information about the issuer and the shares to be issued.
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