Baker Mckenzie：2022年全球公开并购指南（第4版）（英文版）（729页）.pdf

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1、Leading and closing complex deals every dayGLOBAL PUBLIC M&A GUIDE4th Edition IMPORTANT DISCLAIMER:Copyright 2022 Baker&McKenzie.All rights reserved.Ownership:This documentation and content(Content)is a proprietary resource owned exclusively by Baker McKenzie(meaning Baker&McKenzie International and

2、 its member firms).The Content is protected under international copyright conventions.Use of this Content does not of itself create a contractual relationship,nor any attorney/client relationship,between Baker McKenzie and any person.Non-reliance and exclusion:All Content is for informational purpos

3、es only and may not reflect the most current legal and regulatory developments.All summaries of the laws,regulations and practice are subject to change.The Content is not offered as legal or professional advice for any specific matter.It is not intended to be a substitute for reference to(and compli

4、ance with)the detailed provisions of applicable laws,rules,regulations or forms.Legal advice should always be sought before taking any action or refraining from taking any action based on any Content.Baker McKenzie and the editors and the contributing authors do not guarantee the accuracy of the Con

5、tent and expressly disclaim any and all liability to any person in respect of the consequences of anything done or permitted to be done or omitted to be done wholly or partly in reliance upon the whole or any part of the Content.The Content may contain links to external websites and external website

6、s may link to the Content.Baker McKenzie is not responsible for the content or operation of any such external sites and disclaims all liability,howsoever occurring,in respect of the content or operation of any such external websites.Attorney Advertising:This Content may qualify as Attorney Advertisi

7、ng requiring notice in some jurisdictions.To the extent that this Content may qualify as Attorney Advertising,PRIOR RESULTS DO NOT GUARANTEE A SIMILAR OUTCOME.Reproduction:Reproduction of reasonable portions of the Content is permitted provided that(i)such reproductions are made available free of ch

8、arge and for non-commercial purposes,(ii)such reproductions are properly attributed to Baker McKenzie,(iii)the portion of the Content being reproduced is not altered or made available in a manner that modifies the Content or presents the Content being reproduced in a false light and(iv)notice is mad

9、e to the disclaimers included on the Content.The permission to re-copy does not allow for incorporation of any substantial portion of the Content in any work or publication,whether in hard copy,electronic or any other form or for commercial purposes.All summaries of the laws,regulation and practice

10、of public M&A are subject to change and,unless otherwise noted,are current only as of 1 June 2022.Baker McKenzie|i Editors Note We are pleased to present the 4th edition of Baker McKenzies Global Public M&A Guide.Drawing on our unparalleled experience in all aspects of both domestic and cross-border

11、 transactional work,this guide is intended to provide an overview of some of the key legal considerations associated with public M&A transactions across the globe.This guide is a product of numerous contributions from various practitioners around the world,to all of whom we would like to extend our

12、profound thanks for their time,care and expertise.Mark Bell,Editor in Chief ii|Baker McKenzie Foreword Public M&A transactions can ordinarily be complex and labyrinthine-becoming even more intricate as they begin to span multiple jurisdictions and legal regimes.At Baker McKenzie we are a transaction

13、al powerhouse with extensive experience of leading public deals across multiple borders and legal frameworks.We have the market knowledge,legal expertise and creativity needed to successfully execute complex and high profile transactions.While there are many factors to consider,we would like to shar

14、e what we believe are a few of the key areas of focus for any companies contemplating a public M&A deal.These issues usually appear in all transactions and can be considered across any jurisdiction,industry or deal.Dont take unnecessary chances.Public M&A deals,particularly those with a cross-border

15、 element,are risky propositions.Maximize your chances for a timely and successful closing by adopting best practices in deal structuring and techniques.Understand local requirements.The local laws and regulations that apply to your counterparty in the deal must be taken into account.Our updated guid

16、e now also includes details of restrictions on foreign investments.Assemble a trusted team.You will likely need a full team of experienced experts in whom you have confidence,including lawyers,accountants and bankers.On the legal side,ensure you not only know the corporate team but also the lead par

17、tners responsible for tax,employment,antitrust/competition,compliance/sanctions and any other areas that are especially important to your company.Remember the end goal.The deal is typically not an end in itself but rather a means to achieve important business objectives.Thus,the deal does not really

18、 end at closing;instead,its true value comes from a smooth and efficient business integration.Working with your team of advisers,plan for this integration from Day One.Rather than a comprehensive piece,the focus of this guide is primarily on the practice of conducting a takeover of a publicly listed

19、 company with summaries of the general legal framework,takeover practices and tactics across jurisdictions and general considerations associated with a public M&A transaction.Of course,all transactions will come with their own unique factors and requirements;but we believe our readers should find th

20、is a valuable resource for general education and reference.Jannan Crozier,Chair,Global M&A Practice Group Adam Farlow,Chair,Global Capital Markets Practice Group Global Public M&A Guide Baker McKenzie|iii Table of Contents Argentina.1 Australia.10 Austria.41 Belgium.52 Brazil.79 Canada.99 Chile.116

21、Colombia.132 Czech Republic.145 Denmark.161 Egypt.175 France.193 Germany.217 Hong Kong.237 Hungary.254 Indonesia.268 Italy.281 Japan.302 Kazakhstan.323 Luxembourg.333 Malaysia.349 Mexico.365 The Netherlands.382 Peoples Republic of China.394 Peru.405 Philippines.424 Poland.443 Saudi Arabia.469 Singap

22、ore.479 South Africa.502 Spain.518 Sweden.543 Switzerland.557 Taiwan.577 Thailand.589 Trkiye.607 Ukraine.624 United Kingdom.643 United States.667 Venezuela.696 Vietnam.706 Global Public M&A Guide Baker McKenzie|1 Argentina 1.Overview Argentina is currently facing a debt restructuring process and an

23、economic crisis.If the government successfully conducts the debt restructuring process,the Argentine market for public companies is expected to grow in size.The local market is under the control and supervision of the National Securities Commission(Comisin Nacional de Valores,the CNV).2.General Lega

24、l Framework 2.1 Main legal framework The main rules and principles of Argentine law relating to public M&A can be found in:The Civil and Commercial Code Commercial Companies Law No.19,550 Capital Markets Law No.26,831(Capital Markets Law)as amended by Law No.27,440 The regulatory authority for publi

25、c M&A is the CNV.The CNV issued General Resolution No.622/2013/CNV(Securities Resolution),as amended.The Securities Resolution,together with the Capital Markets Law,contain the main rules on public takeover bids in Argentina.2.2 Other rules and principles While the aforementioned legislation contain

26、s the main legal framework for public takeover bids in Argentina,there are a number of additional rules and principles that are to be taken into account when preparing or conducting a public takeover bid,such as:(a)The rules relating to transparency and market manipulation under the Criminal Code.(b

27、)The general rules on the supervision and control of the financial markets.(c)The rules and guidelines issued from time to time by the CNV.(d)The rules and regulations regarding merger control,including but not limited to the Antitrust Law No.27,442 and the specific resolutions issued by the Argenti

28、ne Antitrust Authority.These rules and regulations are not further discussed herein.2.3 Supervision and enforcement by the CNV Public takeover bids are subject to the authorization,supervision and control of the CNV,which has a number of legal tools that it can use to supervise and enforce complianc

29、e with the public takeover bid rules,including but not limited to administrative fines and prohibiting the launch of a public offering takeover bid.Criminal penalties could also be imposed by the courts in the case of non-compliance.2.4 General principles The following general principles apply to pu

30、blic takeovers in Argentina.These rules are based on the Capital Markets Law and the Securities Resolution:(a)all holders of the securities of a target company of the same class must be afforded equivalent treatment.Moreover,if a person acquires control of a company,the other holders of securities m

31、ust be protected;2|Baker McKenzie(b)the holders of the securities of a target company must have sufficient time and information to enable them to reach a properly informed decision on the bid.Where it advises the holders of securities,the board of the offeree company must give its views on the effec

32、ts of implementation of the bid on employment,conditions of employment and the locations of the companys places of business;(c)the board of a target company must act in the interests of the company as a whole and must not deny the holders of securities the opportunity to decide on the merits of the

33、bid;(d)false markets must not be created in the securities of the target company,the offeror company or any other company concerned by the bid in such a way that the rise or fall of the prices of the securities becomes artificial and the normal functioning of the markets is distorted;(e)an offeror m

34、ust announce a bid only after ensuring that he/she can fulfil any cash consideration in full,if such is offered,and after taking all reasonable measures to secure the implementation of any other type of consideration;and(f)a target company must not be hindered in the conduct of its affairs for longe

35、r than is reasonable by a bid for its securities.2.5 Governmental prior approval-Foreign investments regulation Foreign investments are not restricted in Argentina and are only subject to reporting upon completion.However,in certain specific sensitive activities prior authorization may be required b

36、y the relevant regulatory authority(applicable both to local and foreign investors).The following could be considered sensitive activities:(a)Financial entities:The acquisition of any participation in a local financial entity that is capable of producing a change in the rating of the financial entit

37、y or that modifies the entitys shareholders group structure shall require prior authorization by the Argentine Central Bank.(b)Telecommunication entities:The acquisition of a participation in a local telecommunication company will be subject to the prior authorization of the local telecommunications

38、 authority(ENACOM).(c)License and/or concession agreements regarding public services:Such agreements usually include a change of control provision.As a result,the acquisition of a participation in a public company that has a concession for the provision of a public services,e.g.,the provision of ele

39、ctricity,water,gas,transportation,public health and hydrocarbons or other sources of energy,will probably need to be previously approved by the relevant authority.(d)Acquisition of real property:Acquisition of real property in border areas or security zones will be subject to the Rural Land Law(No.2

40、6,737)and Decrees.3.Before a Public Takeover Bid 3.1 Restrictions and careful planning Argentine law contains a number of rules that already apply before a public takeover bid is announced.These rules impose restrictions and hurdles in relation to prior stake building by a bidder,announcements of a

41、potential takeover bid by a bidder or a target company and prior due diligence by a candidate bidder.3.2 Insider dealing and market abuse Before,during and after a takeover bid,the normal rules regarding insider dealing and market abuse remain applicable.The rules include,amongst other things,that m

42、anipulation of the targets stock Global Public M&A Guide Baker McKenzie|3 price is prohibited.In addition,the rules on the prohibition of insider trading prevent a bidder that has inside information regarding a target company(other than in relation to the actual takeover bid)from launching a takeove

43、r bid.3.3 Disclosures by the target company The target company must continue to comply with the general rules regarding disclosure and transparency.These rules include that a company must immediately announce all relevant information.The facts surrounding the preparation of a public takeover bid may

44、 constitute inside information.The board of the target company can delay the announcement if it believes that a disclosure would not be in the legitimate interest of the company.This could,for instance,be the case if the targets board believes that an early disclosure would prejudice the negotiation

45、s regarding a bid.A delay of the announcement,however,is only permitted provided that the non-disclosure does not entail the risk of the public being misled,and that the company can keep the relevant information confidential.3.4 Announcements of a public takeover bid A bidder that intends to announc

46、e a public takeover bid must first inform the CNV of its intention and obtain the CNVs authorization to make the announcement and launch the public takeover bid.In addition,the bidder will at that time have to make the necessary filings for the actual launching of a public takeover bid since,as soon

47、 as the public takeover bid is announced,it can normally no longer be withdrawn(except in certain circumstances).3.5 Due diligence The CNV public takeover bid rules do not contain specific rules regarding the question of whether or not a prior due diligence can be organized,nor how such due diligenc

48、e is to be organized.4.Effecting a Takeover There are three main forms of takeover bids in Argentina:a voluntary takeover bid,in which a bidder voluntarily makes an offer for voting securities issued by the target company(and securities issued by the company conferring the right to acquire voting se

49、curities of the target company);a mandatory takeover bid,which a bidder is required to make if the intention is to acquire a control participation in the public company;and a squeeze-out bid,in which a shareholder who already holds 95%of the voting securities can squeeze out the remaining holders of

50、 voting securities.This can be combined with a voluntary or mandatory takeover bid.A bidder that intends to launch a takeover bid must include certain specific information in its notification to the CNV,including but not limited to the draft prospectus and proof of the funds needed to pay the purcha

51、se price.As regards the mandatory takeover bid,the Capital Markets Law provides that the takeover bid shall be mandatory only in those cases in which 50%or more of voting rights of a listed company are acquired,or a participation of less than 50%is reached but the purchaser acts a controller,for exa

52、mple,in a concerted action in the case of shareholder agreements that allow for the appointment of directors or to resolve key matters relating to the operation of the company.4.1 Voluntary public takeover bid The bidder is free to make the takeover bid subject to merger control clearance,prior appr

53、oval by the CNV and certain other conditions precedent,such as a minimum acceptance level.4|Baker McKenzie The bidder is,in principle,free to determine the price and form of consideration offered to the target shareholders(absent any pre-existing controlling interest in the target):o The offered pri

54、ce may be paid in cash,securities or a combination of both.o There is no minimum price for a voluntary takeover bid,but the legal rules provide that the terms of the takeover bid,including the price,must be such that they could be reasonably expected to allow the takeover bid to succeed.In addition,

55、the Securities Resolution provides for certain requirements to be complied with in connection with the price,e.g.,the need to obtain two independent opinions on the price included.o If there are different categories of securities,different prices per category can only be due to the characteristics o

56、f such categories.o There can be no price difference within the same category of securities.4.2 Mandatory public takeover bid A mandatory takeover bid is triggered as soon as a person or group of persons acting in concert(or persons acting for their account),as a result of an acquisition of voting s

57、ecurities,intend to directly or indirectly hold 50%or more of voting stocks of a listed company,or hold a participation of less than 50%but the purchaser acts as a controller.The main exceptions to the takeover bid obligation include,among others,the following:o the controlling participation has bee

58、n reached after a voluntary bid made to all holders of securities o acquisitions made by financial trusts o acquisitions made under an expropriation law o acquisitions in which all the shareholders of the public company have unanimously agreed to sell the shares o acquisitions made as a consequence

59、of a reorganization of economic sectors required by the government The offered price shall be the highest price of the following:a)The highest price that the offeror or individuals acting on behalf of or jointly with the offeror would have paid or agreed for the securities subject to the offer withi

60、n 12 months prior to the start date of the takeover bid(non-significant volume acquisitions in relative terms will not be considered,provided they have been made at the quoted price,in which case the higher price paid for the remaining acquisitions in the period referenced shall be considered).b)The

61、 average price of the securities subject to the offer during the semester immediately prior to the date of the announcement of the operation by which the change in the controlling participation is agreed.The consideration offered shall consist of cash.The CNV has the power to allow or require an ame

62、ndment of the price,including if it appears that,apart from the consideration offered,special direct or indirect advantages are granted to certain transferors of the securities.Global Public M&A Guide Baker McKenzie|5 4.3 Follow-on squeeze-out and sell-out right Follow-on squeeze-out-a bidder will b

63、e able to squeeze out the residual minority shareholders at the end of the takeover bid if it holds,alone or in concert with others,95%of the voting securities of the target.Sell-out right if the bidder is not itself launching a squeeze-out-minority shareholders also have a sell-out right if,at the

64、end of the takeover bid(or of its reopening),the bidder holds,alone or in concert with others,95%of the voting securities of the target.5.Timeline As a general rule,the takeover bid process for a mandatory public takeover bid is similar to the process that applies to a voluntary public takeover bid,

65、with certain exceptions.The table below contains a summarized overview of the main steps of a typical voluntary public takeover bid process under Argentine law.Step 1.Preparatory stage:Preparation of the bid by the bidder(study,due diligence,financing and draft prospectus).The bidder approaches the

66、target and/or its key shareholders.Negotiations with the target and/or its key shareholders.2.Launching of the bid:The bidder files the bid with the CNV.The filing must contain,amongst other elements,proof of certain funds to pay the offer price and a draft prospectus.On the next business day at the

67、 latest,the CNV discloses the bid to the public and the target company.As of that moment,the bid is public,the bidder can no longer withdraw the bid(except in certain limited circumstances such as in the event of a counter-bid or certain defensive actions by the target company)and the powers of the

68、board of the target company are limited.Modifications are only allowed to improve the offer.The CNV will also notify the target and provide the targets board with a draft of the prospectus that was filed with the CNV.Counter-bids and higher bids can be filed(until the expiration of the acceptance pe

69、riod of the last bid).3.The board of the target has a maximum term of 15 calendar days,counted from receipt of the bid,in order to prepare a detail report on the bid,including its advice either to accept or reject the bid.In addition,it shall include any express agreement between bidder and the targ

70、et.Such report shall be published for two days in the market where the shares are listed.4.Review and approval of the prospectus of the bidder by the CNV shall take place within approximately a term of 15 business days,counted from receipt of the bid.Nevertheless,if the CNV requires further clarific

71、ations,then such term is suspended until the clarifications are provided by the bidder.5.Publication of the prospectus after the approval of the CNV.6|Baker McKenzie Step 6.The duration of the acceptance period shall be not less than 10 business days and not more than 20 business days.Nevertheless,a

72、n additional term of five business days can be granted to those shareholders that have not accepted the offer within the general term.7.Publication of results(once the term provided under 6 above has expired).8.Publication of results and,when relevant,whether or not the bidder waives the conditions

73、precedent to the bid(within five business days of the end acceptance period).9.Payment of the offered consideration by the bidder.Set out below is an overview of the main steps for a friendly public offer in Argentina.Global Public M&A Guide Baker McKenzie|7 Indicative timeline for a friendly public

74、 offer A-Day Day(x)Day 25 Day 20 Day 0 A+20 A+15 A+1 Start process 10 to 20 business days within 5 calendar days Launch of bid:bidder files bid with the National Securities Commission(Com isin Nacional de Valores or CNV).CNV has up to 20 business days to approve the bid(as from the last observation

75、made).Bidder discloses bid to the public and the target in the markets in which the stock is listed and in one newspaper.Report by the target board.The report will be published for 2 days within the market where the shares are listed.Board provides advice on whether to accept or reject the bid.CNV r

76、eviews and/or approves prospectus of the bidder.Once the offer is authorized,the bidder must make new publications in the media previously used and for the same term,confirming if the authorization was granted on the original conditions or,failing that,if any modifications are required.Publication o

77、f the prospectus following approval of the CNV(within 5 calendar days as from approval from CNV).Start of the acceptance period.End of acceptance period.Not less than 10 business days and maximum of 20 business days.Publication of results and,if relevant,whether or not bidder waives the conditions p

78、recedent to the bid Payment of the offered consideration 1 business day 15 calendar days 20 business days 8|Baker McKenzie 6.Takeover Tactics As the local market for public M&A is relatively small,there has been no major development in this regard,and the main takeover defense is usually the mandato

79、ry tender offer required by the CNV.However,certain defensive measures used in Argentina have included the following:Mechanism Assessment and considerations 1.Sale of crown jewels An arrangement affecting the assets of,or creating a liability for,the company which is triggered by a change in control

80、 or the launch of a takeover bid.Requires prior approval by the general shareholders meeting(no quorum and simple majority of the votes cast).2.Frustrating actions Actions such as significant acquisitions,disposals,changes in indebtedness,etc.Only transactions that have sufficiently progressed alrea

81、dy(prior to receipt of notification of a takeover bid)may be implemented by the targets board.Other transactions require the shareholders approval after the takeover bid has been notified to the target.As from the publication of the bid,the boards of directors shall be neutral.For example,they canno

82、t,among other things,proceed with the sale,lien or lease of real estate or other assets,do anything to frustrate or disrupt the offer or declare extraordinary dividends.3.Shareholders agreements Shareholders undertake to(consult with a view to)vote their shares in accordance with terms agreed among

83、them.4.Limitation of voting rights A clause in the articles of association providing for a proportional restriction of voting rights(applying to all shareholders equally).5.Veto rights for certain shareholders Clauses providing for nomination rights by a reference shareholder or similar governance m

84、echanisms.Requires an express inclusion in the articles of association.6.Limitations on share transfers Board approval or pre-emptive restriction clauses in the articles of association or in agreements between shareholders.Exceptional for listed companies(listed securities are,in principle,freely tr

85、ansferable;impact on share liquidity).Global Public M&A Guide Baker McKenzie|9 7.Squeeze-out of Minority Shareholders after Completion of the Takeover 7.1 Squeeze-out If,following the takeover bid(or its reopening),the bidder(together with the persons with whom he/she acts in concert)holds 95%of the

86、 share capital with voting rights and 95%of the voting securities,the same can force all other holders of voting securities and securities conferring the right to voting securities to transfer their securities to the bidder.7.2 Sell-out If a bidder were to be permitted to carry out a summarized sque

87、eze-out bid,the security holders that did not accept the takeover bid shall nevertheless have the right to demand that the bidder acquires their voting securities and securities conferring the right to voting securities at the terms of the takeover bid.8.Delisting As a rule,the CNV may oppose the de

88、listing of an Argentine company in the interest of protecting investors.The CNV will traditionally not permit a delisting unless a squeeze-out has been carried out.9.Contacts within Baker McKenzie Gustavo Boruchowicz,Gabriel Gmez Giglio,Roberto Gran and Francisco Jos Fernndez Rostello in the Buenos

89、Aires office are the most appropriate contacts within Baker McKenzie for inquiries about public M&A in Argentina.Gustavo Boruchowicz Buenos Aires +54 11 4310 2271 Gabriel Gmez-Giglio Buenos Aires gabriel.gomez-+54 11 4310 2248 Roberto Gran Buenos Aires +54 11 4310 2214 Francisco Jos Fernndez Rostell

90、o Buenos Aires +54 11 4310 2293 10|Baker McKenzie Australia 1.Overview The Australian takeover market is well established and highly developed,with the regulatory framework having been in place for several decades and a substantial body of market practice having formed.2.General Legal Framework 2.1

91、Main legal framework Public company control transactions,whether by takeover bid or scheme of arrangement,are highly regulated in Australia.The main source of regulation of takeover offers is Chapter 6 of the Corporations Act,2001(Cth)(Corporations Act)as modified and interpreted by the exercise of

92、broad discretionary powers vested in the Australian Securities and Investments Commission(ASIC)(the Australian corporate regulator)and the Takeovers Panel(a specialist tribunal that resolves takeover disputes).A public company takeover can also be implemented by way of a scheme of arrangement,which

93、is a court-approved form of transaction between a company and its shareholders.The main source of regulation for schemes of arrangement is Chapter 5 of the Corporations Act,together with ASIC policy on disclosure principles and other matters and oversight by the court(state Supreme Court or the Fede

94、ral Court).The most common takeover structures in Australia are off-market takeover bids,on-market takeover bids and court-approved schemes of arrangement.These takeover structures are discussed in further detail in Section 4.This guide focuses on the acquisition of shares in a listed public company

95、.The same rules and principles will generally apply to interests in a listed managed investment scheme(such as units in a unit trust).However,only companies can use schemes of arrangement,and managed investment schemes have to use a special kind of trust scheme.2.2 Other rules and principles Other r

96、ules and principles that may be relevant to a takeover offer in Australia include:competition rules set out in the Competition and Consumer Act 2010(Cth)which are administered by the Australian Competition and Consumer Commission(ACCC);foreign investment rules set out in the Foreign Acquisitions and

97、 Takeovers Act 1975(Cth)and the accompanying regulations,where proposed acquisitions requiring approval are regulated by the Treasurer of the Commonwealth of Australia with assistance from the Foreign Investment Review Board(FIRB);and other rules specific to an industry(such as banking,broadcasting,

98、aviation and gaming)which may regulate control transactions.The listing rules of the Australian Securities Exchange(ASX)do not separately regulate takeovers in any major way.This means that non-Australian companies that are listed on the ASX will generally be regulated only by the law of their home

99、jurisdiction,and will not be subject to Australian takeover regulation.Global Public M&A Guide Baker McKenzie|11 2.3 Supervision and enforcement by the regulatory bodies Takeovers in Australia are principally regulated by ASIC,with takeover disputes largely being determined by the Takeovers Panel.Th

100、e courts play a central role in takeover offers conducted by way of scheme of arrangement,but otherwise have a limited role in takeovers.ASIC is a government body which supervises the operation of companies and securities law including takeovers.It is responsible for monitoring compliance with the C

101、orporations Act and has wide powers to investigate the conduct and share trading activities of parties involved in a takeover,among other things.ASIC also has broad facilitative,regulatory and enforcement powers,and has the power to modify and grant relief from the takeovers rules.The Takeovers Pane

102、l is a non-judicial body and is the principal forum for resolving takeover disputes.It has the power to declare circumstances unacceptable and to make remedial orders on a principles-based determination,without requiring there to be a breach of law.2.4 Fundamental principles The following principles

103、 set out the objectives of the takeover provisions in the Corporations Act:that the acquisition of control of a public company takes place in an efficient,competitive and informed market;o that the shareholders and directors of a public company:o know the identity of any person who proposes to acqui

104、re a substantial interest in the public company;o have a reasonable time to consider the proposal;and o are given enough information to assess the merits of the proposal;that,as far as practicable,the public companys shareholders should all have a reasonable and equal opportunity to participate in a

105、ny benefits accruing to the entitys shareholders through the proposal;and that an appropriate procedure is followed as a preliminary to compulsory squeeze-out of the minority shareholders under the Corporations Act.2.5 Foreign investment regulations On 29 March 2020,the Treasurer announced certain t

106、emporary changes to Australias foreign investment review framework in response to the COVID-19 pandemic.In summary,any proposed foreign investment into Australia that is subject to the Foreign Acquisitions and Takeovers Act 1975(Cth)will require approval,regardless of value or the nature of the fore

107、ign investor.These temporary measures are expected to remain in place for the duration of the coronavirus crisis.For acquisition agreements entered into after 29 March 2020,the relevant monetary thresholds referred to in the summary below have all been temporarily reduced to$0 until further notice,a

108、lthough the percentage thresholds below for which approval is not required remain unchanged.Accordingly,the summary below should be read in light of these changes while they are in force.Foreign investments in Australian entities,businesses and land are regulated by the Foreign Acquisitions and Take

109、overs Act 1975(Cth)(FATA)and related legislation and Australias Foreign Investment Policy(Policy).The FIRB administers the legislation and Policy and assists the Treasurer of the Commonwealth of Australia(Treasurer)to make decisions on foreign investment proposals submitted for approval.12|Baker McK

110、enzie A foreign person that proposes to invest in an entity,business or land in Australia must apply for approval(typically referred to as FIRB approval)if the transaction involves a notifiable action.If the transaction involves a significant action(but not a notifiable action)it is not mandatory to

111、 seek approval but the Treasurer may prohibit or reverse the transaction if it is contrary to Australias national interest.There is no specific definition of national interest in the legislation,although the Policy provides some guidance.Whether an investment by a foreign person involves a notifiabl

112、e action and/or a significant action depends on the nature of the investment and,in most cases,the extent of the interest acquired and the value of the investment or the relevant entity or business.In general,proposals to acquire an interest of 20%or more in any Australian business valued at over A$

113、261 million(or the higher threshold of A$1,134 million for agreement country investors from Chile,China,Japan,Korea,Singapore,New Zealand and the United States)require prior approval.All foreign government investors also require approval to acquire a direct interest in an Australian entity or an Aus

114、tralian business or to start a new Australian business,regardless of the value of the investment.Restrictions also apply to the investment by foreign investors in real estate(including commercial and residential land),agribusiness and agricultural land.In addition,investments in certain sectors are

115、subject to more stringent requirements,including investments in the telecommunications,media,transport and defence sectors.For example,an investment of 5%or more in an entity or business in the media sector will require FIRB approval,regardless of value.All applications to FIRB must be made online a

116、nd incur a fee which varies depending on the size of the proposed transaction.We recommend that any foreign person seeking to make an investment in an Australian asset or entity carefully considers the application of FATA prior to entering into any transaction.2.6 Proposed reforms There are currentl

117、y no significant proposed reforms to the takeovers rules in Australia.ASIC issues and regularly updates regulatory guides to provide informal direction as to how it normally interprets and applies relevant provisions of the Corporations Act.In addition,the Takeovers Panel issues guidance notes on va

118、rious takeover issues that may give rise to unacceptable circumstances and publishes its reasons for decisions on its website.3.Before a Public Takeover Bid 3.1 Basic takeover prohibition The Corporations Act prohibits a person from acquiring a relevant interest in issued voting shares of a company

119、if,because of the transaction,either that persons or someone elses voting power in the company increases:from 20%or below to more than 20%;or from a starting point that is above 20%and to a level below 90%,unless the acquisition occurs under one of the permitted exceptions permitted by the Corporati

120、ons Act(as discussed in 3.2 below).The Corporations Act regulates acquisitions of more than 20%of:the voting shares in a listed Australian company,or in an unlisted Australian company with more than 50 shareholders;and Global Public M&A Guide Baker McKenzie|13 the voting interests in a listed manage

121、d investment scheme(the most common example of which is a listed unit trust,such as a REIT).The key concept in determining whether or not an acquisition breaches the 20%limit is the voting power which results from the acquisition.(a)Voting power A persons voting power in a company is the aggregate o

122、f that persons relevant interests in voting shares and the relevant interests of that persons associates,expressed as a percentage of all issued voting shares.(b)Relevant interest The concept of relevant interest is broad,covering almost all situations where a person has direct or indirect control o

123、ver the voting or disposal of a share.(c)Association An associate of a person is defined to capture a broad range of circumstances.In essence,two persons will be associated if:they are both corporate bodies and one controls the other or they are under the common control of another person;there is an

124、 agreement,understanding or arrangement(whether legally enforceable or not)between them for the purpose of controlling or influencing the relevant companys board or affairs;or they are acting or proposing to act in concert in relation to the relevant companys affairs.3.2 Exceptions to the basic take

125、over prohibition Where a bidder aims to take control of the target company(generally 100%,but can be as low as 50%),the main structures for achieving this result are:Exception Nature of transaction Off-market takeover bid An acquisition resulting from the acceptance of an offer under a takeover bid

126、by way of off-market acceptance.On-market takeover bid An acquisition resulting from the acceptance of an offer under a takeover bid by way of on-market acceptance.Scheme of arrangement An acquisition approved by the target shareholders and the court.Shareholder approval An acquisition made with the

127、 approval of a vote of target company shareholders in general meeting.Creep acquisition Acquisitions of no more than 3%of the voting power in a rolling six-month period from a starting point above 19%.Downstream acquisition An acquisition resulting from the acquisition of shares in an upstream entit

128、y,i.e.,one which is listed on the ASX or on a specified foreign exchange,which itself has a relevant interest in a downstream ASX-listed company or trust.14|Baker McKenzie Rights issue An acquisition resulting from pro-rata rights issues to all shareholders.Unlike the takeover laws of some other jur

129、isdictions,there is no follow-on or mandatory bid rule in Australia which would allow a bidder to acquire shares above the 20%limit if it then immediately makes a general offer to all other shareholders in the target company.Instead,a bidder must stop at the 20%limit,and then make its bid from that

130、point.3.3 Shareholding thresholds The table below provides an overview of the key shareholding thresholds for a public company under the Corporations Act:Percentage(%)of issued shares Implications 5%Substantial holder notice:Persons who,together with their associates,have relevant interests in votin

131、g shares representing 5%or more of the votes in a publicly listed company or listed registered managed investment scheme must disclose details of their relevant interest by filing a substantial holder notice.Disclosure must also be made when a persons substantial holding changes by 1%,if they cease

132、to have a substantial holding or if they make a takeover bid.10%Blocking of compulsory acquisition following takeover bid:A person who has a greater than 10%shareholding interest in a publicly listed company or listed registered managed investment scheme will be able to prevent a majority shareholde

133、r from moving to 100%ownership through compulsory acquisition(the compulsory acquisition threshold is 90%).20%Takeovers threshold:A person cannot acquire a relevant interest in a public companys shares if it would result in that persons or someone elses voting power in the company increasing from 20

134、%or below to more than 20%,or increasing from a starting point that is above 20%to a level below 90%,unless the acquisition occurs via a specified exception.Global Public M&A Guide Baker McKenzie|15 Percentage(%)of issued shares Implications 25%Blocking of scheme of arrangement:A person holding 25%o

135、r more of a public companys shares can block the approval of a takeover conducted by a scheme of arrangement,as one of the scheme voting thresholds is approval by at least 75%of the votes cast on the scheme resolution.Blocking of special resolutions:A person holding 25%or more of a companys shares c

136、an unilaterally block the approval of a special resolution.50%Passage of ordinary resolutions:A person holding more than 50%of a companys shares can pass an ordinary resolution.Importantly,directors can be appointed and removed by shareholders by ordinary resolution.75%Passage of special resolutions

137、:A person holding 75%or more of a companys shares can pass a special resolution.90%Entitlement to compulsory acquisition:Generally,where a person owns 90%or more of a companys shares,they can compulsorily acquire the remainder.3.4 Restrictions and careful planning In Australia,there is established m

138、arket practice and certain rules that impose restrictions prior to the announcement of a takeover,including in relation to prior stake building by a bidder and prior due diligence by a potential bidder.Accordingly,some careful planning is necessary if a potential bidder or target company intends to

139、commence a process that may lead to a takeover.3.5 Due diligence In a friendly or solicited bid,the bidder may be given pre-bid access to confidential information of the target company.Given that publicly listed entities in Australia are subject to extensive reporting requirements and have strict co

140、ntinuous disclosure obligations in respect of price sensitive information,the due diligence should generally tease out additional detail around what has already been publicly disclosed.Once a bidder comes into possession of non-public price-sensitive information,its ability to buy any shares before

141、launching the bid may be hindered by insider trading restrictions.In a hostile bid,there will most likely be no opportunity to undertake detailed due diligence on the target,and the bidder has to take the risk that the target companys public announcements may be incomplete or may not be sufficiently

142、 detailed.16|Baker McKenzie 3.6 Confidentiality and standstill agreement A potential bidder will usually be required to enter into some form of confidentiality or non-disclosure agreement restricting its use and disclosure of the confidential information it receives.As a trade-off for granting due d

143、iligence access,a target company may require the potential bidder to agree to a standstill restriction.Standstills will generally last for up to 12 months and will prohibit the potential bidder from buying shares or launching a bid other than on terms which the target companys directors have approve

144、d.Care needs to be taken before agreeing to a standstill,as these agreements will be enforced by the Takeovers Panel.A bidder should therefore ensure that a standstill lasts for no longer than is necessary,and that it releases the Bidder in appropriate circumstances.Standstill agreements serve a num

145、ber of purposes for a target company.They achieve a strategic goal for a target company by giving it some measure of control over the terms on which a takeover will occur.Furthermore,they provide some protection for the target company from potential liability for tipping under the insider trading pr

146、ovisions of the Corporations Act.Tipping is where a person discloses non-public,price-sensitive information to a person who the first person believes would be likely to acquire target company shares.3.7 Pre-bid acquisitions A potential bidder may seek to acquire a relevant interest in the target com

147、panys shares in advance of acquiring shares under a control transaction.There are several benefits to a bidder in acquiring a pre-bid stake,including:it forces the target company to take the bid seriously and engage with the bidder;a bidder can deter potential rival bidders with a blocking stake;the

148、 bidder has a first-mover advantage if the bid turns competitive;an existing holding counts towards the 90%compulsory acquisition threshold in a takeover bid;and it can reduce the overall average acquisition cost if acquired at below the bid price.There are risks involved in acquiring a pre-bid stak

149、e.The following table outlines the key considerations in respect of a pre-bid acquisition.Consideration Implications Substantial holder notice If the prospective acquirer acquires 5%or more of the target shares,it must disclose details of its holding via the filing of a substantial holding notice.20

150、%takeovers rule The prospective acquirer must ensure that it does not have a relevant interest in more than 20%of the target shares,or otherwise voting power of more than 20%in the target,as a result of any pre-bid acquisitions.Foreign investment approval requirements If the prospective acquirer is

151、a non-Australian entity,in many circumstances the acquisition must also be approved by the Treasurer acting on the advice of FIRB.Global Public M&A Guide Baker McKenzie|17 Insider trading A bidder seeking to acquire a pre-bid stake must comply with Australian insider trading laws,which prohibit deal

152、ing in shares by persons who are in possession of material price-sensitive information that is not publicly available.Pricing issues The price paid for any shares acquired in the four-month period prior to a bid being made will operate as a minimum price for the bid.Collateral benefits The acquisiti

153、on must not be on terms which offer a benefit selectively to some but not all shareholders as an inducement to accept a takeover offer.Association The prospective acquirer must be mindful of any agreement,arrangement or understanding(written or otherwise)arising between it and any shareholder for th

154、e purposes of controlling or influencing a targets board or affairs or in relation to target shares.3.8 FIRB applications A fee is payable in relation to any application to FIRB for approval of a proposed transaction,at the time the application is submitted.The amount of any fee payable depends on t

155、he size of the proposed transaction.The FIRB application process has recently changed to an online application process.4.Effecting a Takeover 4.1 Structure of acquisitions in Australia A key strategic decision to make,for both the bidder and the target company in a control transaction,is which acqui

156、sition structure to use.It is possible to acquire the entire issued share capital of an Australian public company by two principal means:a takeover bid(the off-market version of which is like a tender offer in other jurisdictions)or a scheme of arrangement(which is like a merger in other jurisdictio

157、ns).4.2 Takeover bids A takeover bid is essentially a regulated offer to buy target company shares which is made on identical terms to each target company shareholder.There are two types of takeover bids in Australia:off-market bids and on-market bids.The key differences between these two methods ar

158、e as follows:Consideration Off-market bids On-market bids Bid procedure The offer is made by sending personalized,formal,written offers to every target company shareholder on identical terms.Shareholders accept by responding to the bidder The bidder stands in the stock market(using a stockbroker)off

159、ering to buy all target shares at the offer price.Shareholders accept by selling on-market in the normal way,and settle sales on a standard T+2 basis.Types of target Listed or unlisted companies.Quoted or unquoted securities.Listed companies and quoted securities only.18|Baker McKenzie Consideration

160、 Off-market bids On-market bids Offer price Cash,securities(shares,debentures,options,etc.)or any combination.Cash only(like any on-market trade).Conditions Can be conditional on a wide range of events,subject to some limitations.Common conditions include acceptances reaching a control or compulsory

161、 acquisition level,obtaining regulatory approvals and no material adverse change.Must be unconditional.If a bidder requires foreign investment or competition regulatory approvals,an on-market bid may not be feasible.Partial bids Offer can be a full bid for 100%of each holders shares,or a partial off

162、er for up to a fixed proportion(such as 50%)of each holders shares.Not possible the offer must be for 100%of target shares.An off-market takeover bid is more commonly used than an on-market bid as it allows for flexibility in the offer structure,particularly due to the conditions that a bidder may i

163、mpose.(a)Rules applicable to all takeover bids Both types of takeover bid share a number of common characteristics,including the following:Announcing a bid Once a bidder publicly announces a proposal to make a takeover bid,it must make takeover offers within two months on terms no less favorable tha

164、n the announced terms.Offer period The takeover offer must be open for at least one month.Either kind of bid can be extended one or more times by the bidder up to a maximum offer period of 12 months.An extension of a conditional off-market offer by more than one month(in total)will give shareholders

165、 who had already accepted the offer a right to withdraw their acceptance.In some circumstances,the offer will be automatically extended by up to 14 days by operation of the Corporations Act.Offer price The same price must be offered to all shareholders,and the bidder may increase the price during th

166、e bid.Under an off-market bid,the increased price must be paid to all shareholders who accept the offer,even those who accepted before the bid price was increased.However,under an on-market bid,the increased price is paid only to those shareholders who accept the offer after the price has been incre

167、ased.Disclosure documents The offers,when made,must be accompanied by a disclosure document called a Bidders Statement.The target company responds with its own disclosure document called a Targets Statement.Selective benefits There is a restriction on providing benefits during the offer period to so

168、me target company shareholders without extending the benefits to all shareholders.Global Public M&A Guide Baker McKenzie|19 Sale of shares by bidder The bidder is not permitted to dispose of any target company shares during the bid period,unless another non-associated bidder makes or increases a com

169、peting takeover bid for the target company.Compulsory acquisition Following a bid,the bidder will generally be able to compulsorily acquire the shares held by the remaining minority shareholders at the bid price if it achieves at least a 90%holding in the target.(b)The bid price The bid price must e

170、qual or exceed the highest price paid(or agreed to be paid)by the bidder or any of its associates during the four months before the date of the bid.If two or more alternatives are offered(for example,cash or scrip),then the value of each alternative must comply with the minimum price rule.In the eve

171、nt that the bidder acquires shares in the target company on the market(as permitted by the Corporations Act)during the offer period and the consideration for shares purchased on the market is higher than under the takeover offer,the offer to all other target shareholders is increased and the additio

172、nal amount is payable to those who have already accepted the offer.(c)Conditions precedent in a takeover offer Off-market takeover bids may be subject to conditions precedent.On-market bids,however,must be unconditional.Off-market bids are usually subject to a number of conditions,including a minimu

173、m acceptance condition(generally either 50.1%for control or 90%for compulsory acquisition),a condition that the target does not announce any material adverse change in its financial position during the bid period,and a condition that all necessary regulatory approvals are obtained.Bids can also be c

174、onditional on external events,such as a fall in a specified market index.However,the Corporations Act provides that conditions of the following kind cannot be included:a maximum acceptance condition(for example,a condition that the bidder is not obliged to proceed if acceptances are received for mor

175、e than a specified percentage of shares);a condition that allows the bidder to acquire shares from some,but not all,of the shareholders who accept the bid;a condition that target company shareholders approve or consent to a retirement payment being made by the target to any officer of the target com

176、pany;and a condition which is dependent upon the opinion,belief or other state of mind of,or an event that is within the sole control of,the bidder or any of its associates.For example,a condition that the bidder is satisfied with the results of its due diligence on the target company could not be i

177、ncluded.(d)Bidders disclosure obligations The Corporations Act requires that a Bidders Statement must be sent by the bidder to all target company shareholders with its offer.The document must include a range of specific information,as well as general disclosure of all information(including confident

178、ial information)known to the bidder that would be material to a decision regarding the acceptance of the offer.20|Baker McKenzie The key specific disclosure requirements are:the identity of the bidder,including its controllers and associates;the bidders intentions regarding the continuation of the b

179、usiness of the target company,the future employment of the present employees of the target company,and details of the changes that may be made to the business of the target(such as any proposed restructuring or sale of non-core divisions);and if the bid price includes cash,details of the bidders sou

180、rce of cash funding.(e)Targets disclosure obligations The directors of the target company must issue a Targets Statement in response to the Bidders Statement,which similarly has both specific and general disclosure obligations.The specific disclosure obligations include a recommendation from each ta

181、rget company director as to whether or not the bid should be accepted,together with reasons for that recommendation.The general disclosure obligation requires disclosure of all information known to directors of the target company which target shareholders and their professional advisers would reason

182、ably require to make an informed decision in relation to the takeover bid.As with the Bidders Statement,this includes material information which is otherwise confidential.The directors recommendations are important disclosures because it is common for some target shareholders to pay particular regar

183、d to the views of the board.The prospect of securing a favorable recommendation from target company directors(that is,a friendly bid)will often be attractive to a bidder.Accordingly,it is essential that the disclosure surrounding the directors recommendations is fully explained and reasoned.A Target

184、s Statement must include an independent experts report opining on whether the takeover bid is fair and reasonable in circumstances where the bidders voting power in the target company is 30%or more,if the bidder is a director of the target company or if the bidder has a director in common with the t

185、arget company.Even where an independent experts report is not required by law,it is common for target companies to include such a report in the Targets Statement.(f)Updating disclosure documents There is a general obligation on the bidder and target to update their respective Bidders Statement or Ta

186、rgets Statement if,during the bid period,they become aware of a new matter that is material to target shareholders.The update is made by preparing a supplementary statement,which is lodged with ASIC and sent to the ASX for public release.4.3 Schemes of arrangement An alternative acquisition structur

187、e to a takeover bid is a scheme of arrangement(sometimes called a merger).A scheme is a court-approved form of corporate reconstruction.The scheme structure involves a shareholder vote rather than offers being made to,and accepted by,each shareholder individually(as is the case in a takeover bid)and

188、,depending on the outcome of the vote,it delivers an all or nothing result.If it is approved by shareholders and by the court,the scheme of arrangement binds all of the target companys shareholders,including those who voted against it(or did not vote at all).Conversely,if a scheme is not approved,th

189、en it does not become effective,even for those shareholders who voted in favor of the scheme.Global Public M&A Guide Baker McKenzie|21 The mechanics of a scheme usually involve a transfer of all existing target shares to the bidder in exchange for the offer price which,like a takeover,can involve ca

190、sh,securities,or any combination of the two.Schemes can also provide for the cancellation of all target shares other than those held by the bidder.In either case,the target company becomes a wholly owned subsidiary of the bidder.The target company does not merge into the bidder and cease to exist,un

191、like the merger procedure in certain other jurisdictions.As it is the target company which has to prepare the scheme documents,apply to the court and convene the shareholders meeting,a scheme cannot be used for a hostile takeover.(a)Overview of the scheme procedure A scheme of arrangement is a seven

192、-step process:Step 1.Agree a transaction with a bidder:Following due diligence and any other pre-bid steps,the first stage in the process is for the bidder and the target to negotiate and execute a Scheme Implementation Agreement and announce the transaction.Once the deal has been agreed and the Sch

193、eme Implementation Agreement is signed,the target effectively leads each further step in the scheme process.The Scheme Implementation Agreement sets the commercial parameters of the transaction and,importantly,provides a bidder with some level of contractual control over the scheme process to ensure

194、 that the scheme is conducted appropriately and in accordance with the agreed terms of the deal.The target,however,has the greatest degree of control over implementation of the transaction.2.Prepare a draft Scheme Booklet for shareholders:The Scheme Booklet is the combined notice of meeting,disclosu

195、re document and independent experts report to be sent to target company shareholders for the purposes of convening a general meeting to vote on the scheme.3.ASIC review and approval of Scheme Booklet:ASIC is entitled to review the Scheme Booklet for at least 14 days(or longer in the case of more com

196、plex schemes)prior to the first court hearing and to have an opportunity to make submissions to the court in relation to the scheme and explanatory statement.ASICs role is to assist the court to review the content of the scheme documents and the terms of the scheme,and to represent the interests of

197、shareholders.This is because ASIC may be the only party appearing at the court hearing other than the target company and the bidder.ASIC also aims to ensure that all matters that are relevant to the courts decision are properly brought to the courts attention.For this reason,any complex,novel or unc

198、ertain issues in the scheme or scheme documents should be brought to ASICs attention early,so as to ensure that ASIC can consider 22|Baker McKenzie Step them before the hearing and advise the court that it has no objections to the scheme.4.First court hearing:The target company must apply to the cou

199、rt for approval to convene the shareholders meeting to consider and vote on the scheme,and to approve the draft Scheme Booklet.This first court hearing is generally held at the end of ASICs 14-day review period.In assessing whether or not to approve the Scheme Booklet and order a shareholders meetin

200、g to be convened,the court will consider the structure of the proposed scheme,the adequacy of information and disclosures in the Scheme Booklet,and any objections or submissions from ASIC or other parties.5.Shareholder meeting and vote:The shareholder approval thresholds for a scheme are:o approval

201、from more than 50%of the number of shareholders who vote at the meeting,regardless of how many shares they hold;and o a special resolution of shareholders,which requires at least 75%of the number of votes cast on the resolution to be in favor of the scheme.Scheme votes are taken on a poll,which mean

202、s that this test requires approval by at least 75%of the shares that are voted on the resolution.In each case,the voting threshold is based on only those shareholders or shares which are actually voted(either in person or by proxy).Shares which are not voted do not count as no votes.The scheme meeti

203、ng vote binds all shareholders,whether or not they vote on it.6.Second court hearing:Once shareholders have voted to approve the scheme,a second court hearing will be held soon afterwards,at which the court will be asked to approve the scheme in order for it to become effective.The courts focus at t

204、he second hearing is primarily on ensuring that the procedural and voting requirements for the shareholders meeting were complied with.The court will also seek confirmation from the target and bidder that all conditions precedent in the Scheme Implementation Agreement have been satisfied.7.ASIC lodg

205、ment and scheme implemented:Once the scheme is approved at the second court hearing,the court order is lodged with ASIC and the scheme becomes effective.After the effective date,there will be a record date for determining entitlements of shareholders to participate in the scheme.Shortly after the Gl

206、obal Public M&A Guide Baker McKenzie|23 Step record date,the scheme will be completed by payment of the acquisition price and transfer to the bidder of all target company shares.(b)Scheme documents There are several key documents required to implement a scheme of arrangement:Scheme Implementation Ag

207、reement(SIA)The SIA is the primary commercial document in an acquisition by way of scheme of arrangement.Apart from setting out the terms of the transaction,including the price and conditions precedent,the role of the SIA(from the bidders perspective)is to exercise some degree of control over the tr

208、ansaction,which is otherwise controlled by the target company.Scheme of arrangement This is a technical procedural document that gives effect to the scheme when approved by the court and reflects the SIA terms.Deed poll This is a document that binds the bidder to its obligations in the SIA.Without t

209、his document,the shareholders of the target company cannot enforce the scheme against the bidder,as a scheme is(legally speaking)an arrangement only between the target company and its shareholders.The key documents to be sent to shareholders for the shareholder meeting are contained in the Scheme Bo

210、oklet and include the following:Notice of scheme meeting The notice of meeting convenes the shareholder meeting where the scheme is to be voted on.Ordinary notice provisions apply(minimum 28 days notice).Explanatory statement This is the key disclosure document for shareholders,which should provide

211、all relevant information for a decision whether or not to vote in favor of the scheme.It contains recommendations from directors,together with detailed reasons.It also contains disclosures from the bidder which are equivalent to the disclosures that would be made in a Bidders Statement for a takeove

212、r offer.Independent experts report An independent experts report opines on whether the scheme is in the best interest of the target companys shareholders.This report is not always required by law,but appointing an independent expert to provide a report for the benefit of shareholders is an almost in

213、variable characteristic of schemes in Australia.Target company boards do not generally proceed with a scheme without an experts report confirming that the scheme is in the best interests of shareholders,and is fair and reasonable.The report will typically contain a detailed review and valuation of t

214、he target company.All of the shareholder documents must be lodged with ASIC for a 14-day review period before they go to court,and are then reviewed and approved by the court for dispatch to shareholders.24|Baker McKenzie 4.4 Differences between a takeover bid and scheme of arrangement Takeovers and

215、 schemes are quite different ways of reaching a similar outcome.Choosing the best structure for an acquisition depends on a number of factors,some of which are summarized below:Takeover bid Scheme of arrangement Control of the process Bidder generally controls the process.Once commenced,the bidder c

216、an decide whether to waive conditions,extend the bid or increase the bid price.A takeover,unlike a scheme,can proceed with or without the target boards continued support or recommendation.Target company runs the scheme process,including preparing shareholder meeting documents,obtaining independent e

217、xperts report,regulatory filings,and making applications to the court.A target company can break off a scheme process leaving the bidder with a break fee as its only remedy.Going hostile Possible to make a hostile or unsolicited bid,forcing target to respond.Not possible,because the structure is dri

218、ven by the target company.Approval threshold A bidder needs to achieve 90%shareholding to proceed to compulsory acquisition of the remaining shares.A higher test applies if the bidders pre-bid holding exceeds 60%,in which case the bidder must also receive acceptances for at least 75%of the shares wh

219、ich it did not own at the start of the bid.However,a bidder can make the offer unconditional at any shareholding level it chooses below 90%if it does not require 100%control.Dual voting thresholds at shareholder meeting:75%by number of shares voted;and 50%by number of shareholders who vote.In each c

220、ase,the test is based on only those shares which are actually voted.Shares that are not voted do not count as no votes.Where there are different classes,each class must separately vote and meet the thresholds.This can give holders in a small class of shares a veto power over the whole scheme.Court a

221、pproval is also required.Effect of pre-bid shareholding on approvals Any existing shareholding counts towards the 90%compulsory acquisition threshold,making it easier to achieve.An existing holding exceeding 60%will increase the threshold(see above).The bidder and its associates cannot vote their ow

222、n shares in favor of the scheme.An option over a third partys shares,however,will not always disqualify the third party from voting.Certainty of outcome A bidder will usually have to declare its bid unconditional at an acceptance level below 90%to entice sophisticated shareholders to Schemes have an

223、 all or nothing outcome depending on whether the approval thresholds are met,and will generally complete on a date fixed in Global Public M&A Guide Baker McKenzie|25 Takeover bid Scheme of arrangement accept for their shares.An Institutional Acceptance Facility(IAF)can help overcome this impasse,but

224、 a bidder often has to accept the risk of falling short of 90%when it goes unconditional.This can make debt financing more difficult.A takeover structure can be to a bidders advantage if it is content with majority control,as the bid need not be conditional on reaching compulsory acquisition thresho

225、lds.advance by the bidder and target company.A scheme is preferable from a debt financiers perspective for this reason.Unlike a takeover bid,a bidder under a scheme of arrangement cannot settle for partial success(such as majority control)because the shareholders approval condition cannot be waived.

226、Timetable and completion process As there is no court or shareholder approval process,a takeover bid can be launched quickly.A bidder can take early acceptances(if the bid is unconditional)to gain effective control of the target company in a matter of weeks.However,a takeover will often take a long

227、time to reach compulsory acquisition thresholds,as this depends on how quickly the remaining shareholders send in their acceptances.The compulsory acquisition process itself then takes one to two months to complete.scheme is initially a slower process than a takeover as it requires review and approv

228、al of scheme documents by both ASIC and the court before they can be sent to shareholders,and then a minimum 28 days notice for the shareholders meeting.Unlike a takeover,the end date of the scheme process can be fixed and,with an all or nothing result,all target shares are acquired by the bidder sh

229、ortly after shareholder and court approval.Offer price The bidder can offer cash,shares,debentures or any combination of alternatives.However,all target shareholders must be offered the same choices.Separate and different offers are allowed.For example,equity in the bid vehicle may be offered only t

230、o target management,with cash offered to other shareholders.This will,however,create separate classes for voting purposes.Minimum bid price A takeover bid must offer at least the highest price paid for target company shares by the bidder(or its associates)in the four months before the bid.No minimum

231、 offer price rule applies.However,the court may take pre-scheme purchase prices into account when exercising its discretion to approve the scheme.Conditions precedent There are some restrictions on the types of conditions precedent that can be included in an offer.For example,conditions which depend

232、 There is no limit on types of conditions precedent,although all conditions must be either satisfied or waived by the time of the second court hearing.26|Baker McKenzie Takeover bid Scheme of arrangement on the bidders opinion cannot be used.A bidder can waive any condition in its discretion(other t

233、han necessary regulatory approvals).The bidder may not be able to waive conditions if they are expressed to be for the targets benefit.Amending the bid or offer price A takeover bid is very flexible.The bidder can:waive conditions(either one by one,or all at once);extend the bid by any length of tim

234、e;increase the offer price by any amount;or accelerate payment terms for acceptances,in its discretion and at any time during the bid(although some restrictions apply in the final seven days of the bid period).This flexibility allows a bidder to respond quickly to a rival bidder.The terms of a schem

235、e cannot be amended easily.Any variation after the shareholders meeting has been convened will usually require court consent and may require the meeting to be reconvened,which will delay the timetable.The offer price can be increased with some prior notice but it requires cooperation from the target

236、 company.Payment terms cannot be accelerated for early acceptances before the shareholders meeting as it is an all or nothing process.These features of a scheme make it more difficult for a bidder to respond to a rival bid.5.Timeline 5.1 Timetable for an off-market takeover bid This indicative timet

237、able is based on the minimum timetable for an off-market bid.References to time are calendar days,not business days(unless otherwise noted).All section references are to the Corporations Act unless otherwise indicated.Timing Action Comments On or before Day 1 Public announcement of intention to make

238、 a bid Takeover offers must be sent to shareholders within two months of the announcement(section 631).Day 1 Bidders Statement(which includes the offer terms)lodged with ASIC-Day 1 Bidders Statement served on target and given to ASX The Bidders Statement must be served on the target within 21 days a

239、fter it is lodged with ASIC(section 633).If the target is listed,a copy must be given to ASX.Service is Global Public M&A Guide Baker McKenzie|27 Timing Action Comments usually made on the same day as ASIC lodgement.Every day during the bid period Bidder lodges substantial holder notices as required

240、 The bidder must notify the target and ASX of its total voting power:when it first makes the bid;when its voting power reaches 5%;and every day its voting power changes by at least 1%(for example,as it receives acceptances).The notice must be given by 9.30am on the next trading day(section 671B).Day

241、 15 Bidders Statement and offer document sent to target shareholders Dispatch of these documents must be done within a three day period between 14 and 28 days after service on the target(section 633).The target may agree to an earlier dispatch date.In a hostile bid,an application by the target to th

242、e Takeovers Panel may delay the dispatch pending resolution of the dispute.Notice that the documents have been dispatched must be given to the target,ASIC and ASX(section 633).By Day 30 Targets Statement sent to bidder and target shareholders The Targets Statement must be sent no later than 15 days

243、after the bidder sends its documents to the targets shareholders(section 633).A copy is also given to ASIC and ASX.Any time during the offer period Extend the offer period A formal notice of variation is sent to the target,ASIC and offerees(section 650D).If the offer is still conditional the offer p

244、eriod cannot be extended after the publication of the notice as to the status of the bid conditions(see below),unless a competing bid is announced or made after the date of publication or the consideration 28|Baker McKenzie Timing Action Comments under a competing takeover bid is improved(section 65

245、0C).Any number of extensions can be made,up to a total offer period of 12 months(section 624(1).An extension for more than one month(in total)will trigger withdrawal rights for previously accepted shares if the offer is still conditional.Any day before or on the seventh day before the end of the off

246、er period Waive conditions of the bid Notice waiving a condition is given to the target and ASX(section 650F).Conditions as to the non-occurrence of certain corporate actions by the target(section 652C(1)and(2)events,commonly called prescribed occurrences)may be waived up to three business days afte

247、r the end of the offer period.Seven days before the end of the offer period Publish notice as to the status of bid conditions The offer document must specify a date between seven and 14 days before the end of the offer period for publishing this notice(section 630(1).Seven days before the end is the

248、 day usually specified.The publication date is automatically deferred by the length of any extension in the offer period(section 630(2).The notice is sent to the target and ASX.Day 15 plus one calendar month Earliest date for close of the offer period The offer period will be automatically extended

249、under section 624(2)if,in the last seven days,the bid price is increased or the bidders voting power in the target increases to more than 50%.The automatic extension is to 14 days after the relevant event.Up to 21 days after the end of the offer period Pay the bid price to accepting shareholders The

250、 bid price must be paid by the earlier of:the later of one month after acceptance and one month after Global Public M&A Guide Baker McKenzie|29 Timing Action Comments the bid becomes unconditional;and 21 days after the end of the offer period(section 620(2).Immediately after the end of the offer per

251、iod Commence compulsory acquisition procedure A bidder which satisfies the 90%and 75%thresholds may send notices to the remaining target shareholders under section 661B to initiate the compulsory acquisition procedure.The notices must be sent within one month after the end of the offer period.The no

252、tice must be copied to ASIC and ASX.Five business days after compulsory acquisition notices sent Target shares are suspended from trading on ASX This happens automatically(ASX Listing Rule 17.4).Three business days after suspension of trading Target is delisted by ASX This happens automatically(ASX

253、Listing Rule 17.14).One month after compulsory acquisition notices sent Complete compulsory acquisition procedure The earliest that compulsory acquisition can be completed is one month after the notices are sent to shareholders(section 666A).However,the process can be delayed if minority shareholder

254、s apply to the court under section 661E to stop the acquisition on the grounds that the bid price is not fair value for the shares.5.2 Timetable for an on-market takeover bid This indicative timetable is based on the minimum timetable for an on-market takeover bid.References to time are calendar day

255、s,not business days(unless otherwise noted).All section references are to the Corporations Act unless otherwise indicated.Timing Action Comments On or before Day 1 Public announcement of intention to make a bid The on-market takeover offer must be made within two months of the announcement(section 6

256、31).30|Baker McKenzie Timing Action Comments Day 1 Bidders Statement(which includes the offer terms)lodged with ASIC The contents of the formal announcement are set out in the ASIC Market Integrity Rules(ASX Market),at rule 6.1.1.Day 1 Bidders Statement lodged with target,ASIC and ASX This must be d

257、one on the same day as the formal announcement to ASX(section 635).Any time on or after Day 1 Bidder may purchase shares on-market On-market purchases can be made after the formal announcement,even before the full on-market takeover offer commences(section 611,item 2).Every day during the bid period

258、 Bidder lodges substantial holder notices as required The bidder must notify the target and ASX of its total voting power:when it first makes the bid;when its voting power reaches 5%;and every day its voting power changes by at least 1%(for example,as it receives acceptances).The notice must be give

259、n by 9.30am on the next trading day(section 671B).By Day 15 Bidders Statement sent to target shareholders This must be done within 14 days after the formal announcement.Copies of all documents sent are lodged with ASIC and ASX(section 635).By Day 15 Targets Statement sent to target shareholders and

260、bidder This must be done within 14 days after the bidders formal announcement.Copies of all documents sent are lodged with ASIC and ASX on the same day(section 635).Day 16 Full takeover offer made on the ASX A stockbroker acting for the bidder must make an on-market offer for all quoted shares in th

261、e target at the bid price on this day(section 635).Payment terms for on-market acquisitions(including under the bid)Global Public M&A Guide Baker McKenzie|31 Timing Action Comments are full payment on the second trading day after the transaction(called T+2).Up to five trading days before the end of

262、the offer period Increase the bid price The broker acting for the bidder must publicly announce the increased price to ASX before placing the higher bid(ASIC Market Integrity Rule 6.2).Up to five trading days before the end of the offer period Extend the offer period The extension is notified to ASX

263、,the target and ASIC(section 649C).An extension cannot be made within the last five trading days of the offer period unless a competing bid is announced or made or the consideration under a competing takeover bid is improved in those last five trading days.Any number of extensions can be made,up to

264、a total offer period of 12 months(section 624(1).Day 16 plus one month Earliest date for close of the offer period The offer period will be automatically extended under section 624(2)if,in the last seven days,the bidders voting power in the target increases to more than 50%.The automatic extension i

265、s to 14 days after the bidders voting power increases to more than 50%.Immediately after the end of the offer period Commence compulsory acquisition procedure A bidder which satisfies the 90%and 75%thresholds(see section 9.1)may send notices to the remaining target shareholders under section 661B to

266、 initiate the compulsory acquisition procedure.The notices must be sent within one month after the end of the offer period.The notice must be copied to ASIC and ASX.Five business days after compulsory acquisition notices sent Target shares are suspended from trading on ASX This happens automatically

267、(ASX Listing Rule 17.4).32|Baker McKenzie Timing Action Comments Three business days after suspension of trading Target is delisted by ASX This happens automatically(ASX Listing Rule 17.14).One month after compulsory acquisition notices sent Complete compulsory acquisition procedure The earliest tha

268、t compulsory acquisition can be completed is one month after the notices are sent to shareholders(section 666A).However,the process can be delayed if minority shareholders apply to the court under section 661E to stop the acquisition on the grounds that the bid price is not fair value for the shares

269、.5.3 Timetable for a scheme of arrangement This indicative timetable is based on the minimum timetable for a scheme of arrangement.References to time are calendar days,not business days(unless otherwise noted).Timing Action Comments On or before Day 1 Public announcement of agreed scheme terms(as se

270、t out in the Scheme Implementation Agreement between bidder and target)Unlike a takeover bid,there is no specific legal obligation to send documents to target shareholders within a particular period after the announcement.Day 1 Lodge draft Scheme Booklet,including independent experts report and shar

271、eholder meeting documents,with ASIC.Apply for a court date 14 days notice must be given to ASIC prior to the first court hearing,together with draft scheme documents.Days 1 to 14 Consider ASIC comments.Lodge final documents with the court-Day 15 First court hearing 14 days after ASIC lodgement.Day 2

272、2 Send Scheme Booklet and meeting documents to shareholders Seven days assumed for printing and mailing.Day 50 Scheme meeting Minimum 28 days notice of meeting.Day 53 Second court hearing-Global Public M&A Guide Baker McKenzie|33 Timing Action Comments Day 53 Effective Date Lodge with ASIC a copy of

273、 the court order approving the scheme,and notify ASX.Trading in target shares is suspended from close of trading.Day 53+3 business days Record Date The Record Date for determining entitlements to receive scheme price(three business days after the Effective Date).By Day 63 Implementation Date The sch

274、eme is completed,and the scheme price paid to target shareholders(usually three to five business days after Record Date).Set out below are overviews of the main steps for a typical off-market takeover,an on-market takeover and a scheme of arrangement in Australia.34|Baker McKenzie Off-market takeove

275、r offer(indicative timeline)Start process Bidders Statement and offer document sent to target shareholders Targets Statement sent to bidder and target shareholders Pay the bid price to accepting shareholders Earliest date for close of offer period Target shares are suspended from trading on ASX Targ

276、et is delisted by ASX Compulsory acquisition procedure completed Day 1 By Day 30 Day Y Day Y+8 Day X+21 Day 15 Commence compulsory acquisition procedure(when 90%and 75%thresholds satisfied)Australian Securities Exchange(ASX)announcement of intention to make a takeover bid Bidders Statement served on

277、 target,lodged with Australian Securities and Investments Commission(ASIC)and given to ASX 6-8 weeks Takeover offers must be made within 2 months of announcement Compulsory acquisition notices must be sent to remaining target shareholders within one month of end of offer period and copied to ASIC an

278、d ASX Between 14 and 28 days after service on the target Offer period must be open for at least one calendar month.Offer period can be extended at any time.Five business days after compulsory acquisition notices sent Day Y+5 Three business days after suspension of trading Earliest that compulsory ac

279、quisition can be completed is one month after compulsory acquisition notices sent Day X Up to 21 days after the end of the offer period Day X-7 Publish notice as to the status of bid conditions Waive conditions of the bid on any day before or on the seventh day before the end of the offer period Glo

280、bal Public M&A Guide Baker McKenzie|35 On-market takeover offer(indicative timeline)Start process Bidders statement sent to target shareholders and targets statement sent to target shareholders and bidder Full takeover offer made on the ASX Increase the bid price or extend the offer period Earliest

281、date for close of offer period Target shares are suspended from trading on ASX Target is delisted by ASX Compulsory acquisition procedure completed Day 1 Day 16 Day Y Day Y+8 Day X Day 15 Commence compulsory acquisition procedure(when 90%and 75%thresholds satisfied)Australian Securities Exchange(ASX

282、)announcement of intention to make a takeover bid Bidders statement served on target,lodged with Australian Securities and Investments Commission(ASIC)and released to ASX 6-8 weeks Takeover offers must be made within 2 months of announcement Up to 5 trading days before the end of the offer period Co

283、mpulsory acquisition notices must be sent to remaining target shareholders within one month of end of offer period and copied to ASIC and ASX Within 14 days of formal announcement Offer period must be open for at least one month Five business days after compulsory acquisition notices sent Day Y+5 Th

284、ree business days after suspension of trading Earliest that compulsory acquisition can be completed is one month after compulsory acquisition notices sent 36|Baker McKenzie Scheme of arrangement(indicative timetable)Start process Day 1 Public announcement on ASX of agreed scheme terms as set out in

285、Scheme Implementation Agreement 14 days notice must be given to ASIC prior to the first court hearing,together with draft scheme documents 3 business days Day 14 Day 15 Day 22 Day 50 Day 53 Day 53+3 Day 63 On or before Day 1 Lodge draft scheme booklet,including independent experts report and shareho

286、lder documents,with Australian Securities and Investments Commission(ASIC)Apply for court date Consider ASIC/ASX comments Lodge final documents with court First court hearing(assume court date available)Send Scheme Booklet and meeting documents to target shareholders Scheme meeting Second court hear

287、ing Effective date.Lodge a copy of court order approving scheme with ASIC and notify ASX Trading in target shares suspended from close of trading Record date Implementation date.Scheme completed and scheme price paid to target shareholders(usually three to five days after Record date)7 days assumed

288、for printing and mailing Minimum 28 days notice of meeting Global Public M&A Guide Baker McKenzie|37 6.Takeover Tactics 6.1 Transaction structure The table in section 4.4 above,sets out the different factors that a bidder and target company may consider when choosing a transaction structure for a ta

289、keover.The all or nothing outcome of a scheme generally makes it a favored acquisition structure in Australia for friendly or agreed transactions.In leveraged acquisitions,where it is essential to obtain 100%control on a certain date,it may actually be necessary to proceed by way of scheme for this

290、reason.Likewise,a top-hat restructure,where all classes of shares and convertible securities are to be simultaneously exchanged for equivalent securities in a new holding company,would generally also have to be structured as a scheme for similar reasons.A scheme of arrangement might also be attracti

291、ve where special corporate actions need to be undertaken in connection with the acquisition,such as where part of the acquisition price is in the form of a share buyback or capital return that requires approval by a shareholder vote.However,in a hostile situation,a takeover bid is the only feasible

292、structure.6.2 Deal protection mechanisms In a takeover bid that is likely to be friendly or recommended,or a scheme of arrangement,it is not unusual for the target company to grant a limited exclusivity period to the bidder,during which the bidder has exclusive access to due diligence and negotiatio

293、ns with the target company.In return for the bidders commitment under either type of structure,the target will usually grant the bidder:exclusivity,where the target gives the bidder certain exclusive negotiation and dealing rights before and after the bid is announced(discussed further below);and a

294、break fee,where the target agrees to pay a specific amount to the bidder if the bid fails in certain circumstances.Where there is a break fee,there may also be a reverse break fee,where the bidder agrees to pay an amount to the target in certain circumstances.To ensure that the size of the break fee

295、 neither unacceptably pressures shareholders to approve the bid nor deters a rival bidder,the Takeovers Panel recommends that target company directors cap the maximum fee payable at 1%of the equity value of the target company at the bid price as a guideline.The Takeovers Panel has issued a policy on

296、 break fees,exclusivity agreements and asset lock-ups(collectively termed lock-up devices)which aims to ensure that target companies do not hinder an efficient and competitive market for corporate control.The Takeovers Panel does not consider that lock-up devices are always unacceptable,but has laid

297、 down guidelines to ensure that target companies do not use lock-up devices to shut out potentially higher competing bids.6.3 Exclusivity arrangements An exclusivity arrangement will usually comprise a number of individual components,including the following:No-shop The target company agrees not to a

298、ctively solicit offers from other parties.The Takeovers Panel regards no-shop agreements as acceptable,as target directors do not have a legal duty to solicit other offers or to actively auction the company when a bid is received.No-talk The target company agrees not to respond to,or even negotiate

299、with,any third party,even if the third party makes an unsolicited approach.No-talk agreements will only be acceptable if they are subject to a carve-out,which permits target directors to consider and 38|Baker McKenzie recommend an unsolicited superior proposal in circumstances where it may be a brea

300、ch of the directors fiduciary or legal duties if they were to refuse to engage with the new bidder.Notification A notification obligation requires the target company to notify the bidder of details of any potential competing proposals.Matching right A notification right may be coupled with a matchin

301、g right which allows the bidder to put forward a revised offer for the target companys shares to at least match the competing offer.In a scheme of arrangement,the court may scrutinize an exclusivity agreement to ensure that shareholders have not been prejudiced by it.In such cases,it may be necessar

302、y to show that exclusivity was granted by the target company only after its advisers canvassed other potential bidders,and no superior transaction was considered to be available at that time.6.4 Defensive tactics Once a takeover bid has been announced,the defensive tactics open to a target company b

303、ecome very limited.For instance,there are specific restrictions on a listed target company:issuing any new shares,options or convertible securities without prior shareholder approval;and providing its directors with termination benefits that are triggered by a change in control of the company.The ta

304、rget companys directors also have to contend with the Takeovers Panels policy on frustrating action.This policy broadly restricts the actions that a target company can undertake if the effect of the action would be to frustrate the bid and cause it to fail.The policy will apply regardless of the mot

305、ives or intentions of the target companys directors.In light of these restraints,one of the best ways for a company to prevent a hostile bid is to make arrangements well in advance of any bid being announced.Appropriate arrangements could include share placements and strategic alliances with like-mi

306、nded parties,share buybacks and other capital maintenance tools,regular communication with shareholders,and other measures designed to ensure the companys share price reflects the full value of its strengths and available opportunities.Once a hostile bid is announced,the target companys directors wi

307、ll often respond by attacking the Bidders Statement or bid structure in the Takeovers Panel,or(where the bidder offers its own scrip)by attacking the value of the bidders offer.Target company directors may also try to improve the bid price by negotiating with the bidder in exchange for a recommendat

308、ion to accept the offer,or by creating an auction to attract other bidders.6.5 Insider trading The Corporations Act prohibits any person subscribing for,purchasing or selling shares in a company or procuring another party to do so,where that person possesses information that is not generally availab

309、le and,if it were,would be expected by a reasonable person to have a material effect on the price or value of shares in that company.The person must also know or ought to reasonably be expected to know that the information is not generally available and,if it were,it might have a material effect on

310、the price or value of those shares.A potential bidder who is already a major shareholder in a target company or has been granted access to due diligence by the target company may be in possession of information which is not generally available and would be likely to materially effect the price of sh

311、ares in the target company.Provided the information is disclosed to the market(such as in the Bidders Statement or Targets Global Public M&A Guide Baker McKenzie|39 Statement)before any shares are acquired,contravention of the insider trading provisions is not likely to occur.6.6 Statements of inten

312、tion A mechanism through which a bidder may build support for a takeover bid or scheme is by target shareholders making a public statement or consenting to a public statement being made which is attributed to them,to the effect that they intend to vote in favor of the scheme or accept the takeover b

313、id(as the case may be).This attracts the truth in takeovers policy,under which ASIC states that it will hold target shareholders to the course of action contained in their public statements of intention,akin to a promise.7.Squeeze-out of Minority Shareholders after Completion of the Takeover 7.1 Squ

314、eeze-out following a takeover bid The Corporations Act provides a statutory call option in favor of the bidder and a put option in favor of remaining target shareholders in certain circumstances.A bidder under a takeover bid may compulsorily acquire any remaining target shares if,by the end of the o

315、ffer period:the bidder and its associates have relevant interests in 90%by number of the shares in the bid class;and the bidder and its associates have acquired at least 75%by number of the shares that the bidder offered to acquire under the bid(whether the acquisitions occurred under the bid or oth

316、erwise).In the event the thresholds are reached and the bidder does not use the compulsory acquisition mechanism,the remaining shareholders have the right to require the bidder to buy their shares.Holders of non-voting shares,renounceable options and convertible notes have similar rights to have the

317、ir shares acquired by the bidder.7.2 Squeeze-out following a scheme of arrangement Schemes have an all or nothing outcome depending on whether the approval thresholds are met.Accordingly,unlike a takeover bid,the scheme process results in the bidder acquiring all the target companys shares once the

318、scheme is implemented.8.Delisting It is usual for a target company to be removed from the ASX following a successful takeover bid or scheme of arrangement.Following compulsory acquisition by a bidder in a takeover bid or a scheme of arrangement,the ASX automatically suspends quotation of the target

319、companys shares.The ASX will then remove the target company from the official list at the close of trading on a date in the ASXs discretion.This is normally the third business day following suspension of the target companys shares.You may also refer to Baker McKenzies Global Guide to Take-Private Tr

320、ansactions,which covers some of the noteworthy features and requirements applicable to take-private transactions.9.Private investment in public equity(PIPE)Please refer to Baker McKenzies Global PIPE Guide for the features and requirements applicable to PIPE transactions.40|Baker McKenzie 10.Contact

321、s within Baker McKenzie Derek Pocock and Jim Peterson in the Brisbane office,Frank Castiglia,Steven Glanz,Kate Jefferson and Lance Sacks in the Sydney office and Richard Lustig and Rick Troiano in the Melbourne office are the most appropriate contacts within Baker McKenzie for inquiries about public

322、 M&A in Australia.Frank Castiglia Sydney +61 2 8922 5254 Steven Glanz Sydney +61 2 8922 5205 Kate Jefferson Sydney +61 2 8922 5302 Richard Lustig Melbourne +61 3 9617 4433 Jim Peterson Brisbane +61 7 3069 6207 Derek Pocock Brisbane +61 7 3069 6234 Lance Sacks Sydney +61 2 8922 5210 Rick Troiano Melb

323、ourne +61 3 9617 4247 Global Public M&A Guide Baker McKenzie|41 Austria 1.Overview Austrias capital market is comparatively small with 63 companies listed on the regulated market segment of the Vienna Stock Exchange.Nevertheless,there has been a considerable amount of deal activity in Austria over t

324、he past few years.Apart from targets in the financial industry,consumer goods and infrastructure sectors,a considerable part of deal activity throughout the past few years concerned Austrian real estate companies.Apart from commercial and economic factors,this increased deal activity may partly be a

325、 consequence of the dispersed ownership structures of Austrian real estate companies.In contrast,the vast majority of Austrian listed companies are controlled by a dominant shareholder or group of shareholders.Under Austrian takeover rules,there are three main types of takeover offers:mandatory bids

326、,voluntary offers to acquire control and(voluntary)partial offers.The differences and specifics of these types of transactions will be discussed below(see 4).With the Austrian Stock Exchange Act 2018,the legislator introduced new regulations for the revocation of the admission of a companys equity s

327、ecurities from the regulated market segment and a new kind of takeover-bid has been implemented(delisting-offer).The delisting-offer is linked to the mandatory offers by way of legal reference.The competent authority tasked with supervising public takeovers in Austria is the Austrian Takeover Commis

328、sion(ATC),an independent supervisory authority with quasi-judicial status under Austrian law.Apart from supervising public takeover offers,the ATC also fulfils a number of other related functions.These include the issuance of(non-binding)opinions(Stellungnahmen)on questions concerning Austrian takeo

329、ver law,which are typically issued at the request of an interested party,binding rulings on the application of the takeover rules,especially regarding exemptions from the duty to launch a mandatory offer,administrative criminal proceedings in cases of violations of the takeover rules,as well as ex p

330、ost investigations regarding any violations of the takeover rules during an offer,or the failure to launch a mandatory bid following a change of control over a listed company.The ATC conducts 8-12 of such further proceedings per year on average.2.General Legal Framework 2.1 Main legal framework The

331、main piece of takeover legislation in Austria is the Austrian Takeover Act,which has been in force since 1999(Austrian Takeover Act).It has subsequently been amended several times,notably in 2006,when it was brought in line with the European Takeover Directive(Directive 2004/25/EC)(Takeover Directiv

332、e),in 2013,when the legislator permitted(limited)judicial review of the ATCs decisions by the Austrian Supreme Court,in 2018,when new delisting rules were introduced,and finally in July 2022,when-following a recent decision of the European Court of Justice(CJEU,Case C-546/18)a broader right to full

333、judicial review by the Vienna Upper Regional Court was introduced.The original Austrian Takeover Act was largely modelled on the UK Takeover Code.2.2 The Austrian Takeover Commission Public offers and any proceedings relating to the Austrian takeover laws fall within the competence of the ATC.Unlike in a number of other European jurisdictions,the ATC is a specialized supervisory authority focusing