GREECE Law and Practice Contributed by: Stefanos Charaktiniotis, Danai Falconaki, Stathis Orfanoudakis and Nadia Axioti, Zepos & Yannopoulos
all the holders of securities in the company under acquisition for all their holdings, at a fair and equitable purchase price. • The same rule applies to any person that holds more than one-third of the securities without crossing the threshold of one-half of the total voting rights in the company under acquisition, and where such person acquires within six months, in any way, directly or indirectly, as a result of its own acquisition or the acquisition by persons acting on its behalf or in concert with it, securities in the company under acquisition which exceed 3% of the total voting rights in that company. 6.3 Consideration • Private M&A transactions: Cash is more com - monly used than shares as consideration, while share-to-share exchange schemes have become more and more attractive to inves - tors due to introduced tax incentives. • Public M&A transactions: Both cash and shares may be used as consideration. Spe - cifically in a tender offer, the consideration may consist of cash or securities (whether listed or not on a stock exchange market) or a combination of both. In the case of a manda - tory tender offer, the offerees must be pro - vided with the option to receive only cash as consideration in exchange for their holdings. Bridging Valuation Gaps Different valuation models and methods in a business combination in conjunction with regu - latory, legal, political or financial factors often lead to valuation gaps which may cause frustra - tion and uncertainty for both parties. In response to such discrepancies, the legal market has introduced mechanisms to bridge parties’ dif - ferent approaches with variations on a case-by- case basis:
• Earn-outs: Earn-out structures may be negoti - ated when the parties do not seem to agree on the valuation of the business and thus the proposed purchase price. Earn-outs also play a key role as an additional incentive offered to the sellers to aim for higher business per - formance within a specified timeline. Often based on a pre-agreed business plan, such mechanism may provide comfort against a valuation gap but should be carefully formu - lated in terms of the method of calculation and the exact earn-out period. • Escrow agreements: In cases where poten - tial risks have been identified during the due diligence process, the parties may agree on a specific amount of the purchase price to be retained by the buyer and put in escrow until the risk has materialised or been resolved, at which point the amount may be released to the relevant party. Such arrangements are governed by escrow agreements negotiated between the parties in the context of the transaction, while key considerations may relate to the length of the escrow period, the release notices, etc. 6.4 Common Conditions for a Takeover Offer Pursuant to the provisions of Law 3461/2006, a takeover offer may not be subject to any condi - tions precedent, except for conditions that have been included in the tender offer prospectus and solely relate to the receipt of regulatory approv - als and/or the issuance of securities which are offered as consideration under the said tender offer. 6.5 Minimum Acceptance Conditions There are no minimum acceptance conditions in terms of control thresholds for tender offers under the applicable provisions in Greece. An offeror may proceed with a voluntary tender offer
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