What public-facing documentation must a buyer produce in connection with the acquisition of a listed company?
Mergers & Acquisitions (2nd edition)
The key public-facing documentation that is necessary for a buyer to produce in connection with the acquisition of a listed company are as follows:
- Notification of the buyer’s decision to make an offer, which is published by the Oslo Stock Exchange.
- An offer document (or a prospectus or equivalent document if applicable)
- An acceptance form.
- The buyer’s announcement of the result of the offer.
The offer document must be prepared and distributed to all shareholders in accordance with the provisions of the STA. In all material respects, the offer document will be the same irrespective of a bid being recommended or hostile, mandatory or voluntary. The offer document must inter alia include a description of the offer together with correct and complete information and a description on matters of significance for evaluating the offer.
The board of directors of the target company must also provide a statement on their response to the offer. In a recommended offer, it is not unusual that a buyer will prepare an initial draft board statement. Such draft statement will then be submitted to the target’s board exhibited to a draft transaction agreement. Note that depending on its terms, such transaction agreement between the target and a bidder regarding a potential takeover could trigger a disclosure obligation for the target. There are currently no explicit statutory provisions under Norwegian law requiring a buyer or a target to disclose the full details of such a transaction agreement. Nevertheless, the Code of Practise now recommends that significant transaction agreements should be disclosed. The decision to disclose such transaction agreements is still discretionary. Even so, it is recommended that the Buyer and the target seek to agree in advance if and when such disclosure should take place.
Note that in a mandatory offer (see question 25 below), a buyer must also obtain a bank guarantee confirming its ability to settle the consideration offered in full.
If the buyer is issuing a share-for-share offer, the buyer must comply with the provisions set out in chapter 7 of the STA. Very often, this will trigger an obligation on the Buyer to publish a combined prospectus and offer document.
Additional press announcements and supplements to the offer document or prospectus will often be required, for example if the buyer wants to increase the consideration offered. In hostile bid situations, it is not uncommon that a great variety of revised offers, announcements or circulars could be issued.
There are currently no takeover regulations in Myanmar applicable to listed companies, and this is not specifically regulated.
A person planning to launch or required to submit a bid must notify the bid to the HCMC and to the target’s BoD, and then proceed to a public announcement, which must among others enlist the corporate name and registered office of the offeree company, the name and address of the offeror or, in case of a legal entity, the corporate name, the legal status, the registered office and address the corporate name and address of the offeror’s advisor.
Within three days after its approval by the HCMC, the information document has to be posted by the offeror at the target’s registered and branch offices, at the consultant’s office and at the credit institutions or investment firms authorized by the offeror. It also must be published in the offeror’s website, as well as on the site of its consultant.
If the offeror decides to improve the terms of the bid, the revised offer must be submitted for approval to the HCMC, communicated to the BoD of the target company and published by the offeror at the Stock Market’s website, at the daily price report of the Stock Market and at the offeror’s website. Finally, the results of the bid have to be made public by the offeror within two days after the expiration of the time period of acceptance, and they have to be communicated to the representatives of the employees.
The key transaction document in a public tender offer is the offer document, which must be submitted in the German language. In order to comply with the requirements set out in the Takeover Act, the offer document must contain the information necessary to enable the target shareholders to make an informed decision on the offer, including information regarding price, financing and other terms and conditions of the offer and information on the target and the bidder, as well as information on future plans and governance post closing. Other than the offer document, there will also be various press releases, announcements and notifications required to be made to BaFin and the respective Stock Exchange.
A fairness opinion by an investment bank confirming the adequacy of the offered consideration is not mandatory, but is customary.
A bidder is required to produce various documents following a public offer.
A person having the intention to launch a public offer is first of all required to notify the FSMA, who will publish this notification.
The bidder is further required to draft and publish a prospectus, which must be approved by the FSMA. The content of the prospectus is included in an annex to the Royal Decree of 27 April 2007 on public offers. It should enable the holders of securities of the target company to form an informed opinion on the transaction.
In the event of a voluntary public offer by a shareholder having control over the target company, the independent directors of the target should appoint an expert. The bidder should cover the costs. The expert is required to issue a report on the securities that are the object of the offer. The report should be made public by the bidder as annex to the prospectus.
At the request of the FSMA, the parties to the bid shall immediately transfer all agreements which may have a material impact on the assessment of the bid, its course and outcome and these agreements might need to be made public. It concerns for example commitments to contribute to the offer, an arrangement defining preferential rights to transfer or acquire voting securities of the target company, agreements conferring rights on a party to require the creation of new shares.
Further certain information on the transactions regarding the securities of, amongst others, the target and the bidder might need to be communicated to the FSMA during the offer period. Amongst others the bidder, the target company or persons acting in concert with the aforementioned entities and members of the board of the bidder or the target company are subject to this requirement.
The board of the bidder has certain information obligations towards the employees’ representatives or the employees. Notably, they should be informed about the publication of the public offer and should be provided with a copy of the prospectus (see also above - question 10).
Finally, some public announcements by the bidder in relation to the offer, such as the outcome of the offer, are required.
21.1 Any foreign citizen or foreign-domiciled company wishing to acquire any shares in any listed (or other public) company in Vietnam must firstly:
- apply to the VSD for and be issued with a Securities Trading Code
- establish with a licensed Custodian Bank an Indirect Investment Capital Account, denominated in VND; and
- engage the services of a Vietnam licensed securities broker, and open a Securities Trading Account with that securities broker.
21.2 Each of the compulsory registrations referred to in Section 21.1 above require the applicant to provide detailed personal or corporate particulars, together with supporting documents for identification purposes (such as passports or corporate constitutional documents). Such information and documents are not, however, made generally available to the public as a result of these compulsory registration steps.
21.3 For so long as any shareholder is not a Major Shareholder (i.e., holds less than 5% of issued and paid-up voting share capital, aggregated with its related persons and entities) nor an Internal Shareholder, the only information relating to them which will be generally available to the public is their name and number of shares held (which information can generally only be obtained by way of accessing a copy of the register of shareholders of the relevant listed company, as maintained electronically by the Vietnam Securities Depository, which is very difficult to achieve except with the direct assistance of the relevant listed company).
21.4 Upon becoming a Major Shareholder (or, once having become a Major Shareholder or Internal Shareholder, upon implementing any disclosable share sale or purchase transaction), that shareholder is required to implement its public disclosure obligations by way of the completion and publication of a disclosure form in the prescribed form. These prescribed forms require the relevant shareholder to disclose publicly details such as:
- its name and registered head office or residential address;
- the numbers and classes of shares held by it;
- the names and addresses of its related persons or entities and their shareholdings; and
- its securities trading code.
A Swiss public tender offer typically starts with the pre-announcement of the offer by the bidder. The pre-announcement is a short document setting out the principal terms of the offer (i.e. price, type of consideration, conditions and timetable). Within six weeks of the publication of the pre-announcement the bidder must publish the offer prospectus. The offer prospectus sets out the offer terms and contains certain information on the bidder, the target, and the securities offered in exchange, if any. Upon completion of the offer period and the additional acceptance period, respectively, the bidder must publish the respective tender results. All offer documents must be published in German and French (and on a voluntary basis in other languages) through electronic channels, and must be put on the bidder's website or a special offer website on the internet. In addition, the prospectus must be mailed to interested parties upon request. The Takeover Board will publish the offer documents on its website.
Russian law does not require the buyer to produce any public-facing documentation, except as referred to in the response to question 15 and except as mentioned below.
In the event of of acquisition of more than 30% of shares of a public joint-stock company, the buyer is required to submit its offer (whether mandatory of voluntary) to the Bank of Russia for preliminary review before its delivery to the target.
Depending on the mechanism used, usually, the buyer must prepare an offer document (plus various notes published on the stock market – regulated market or ATS).
Under the QFMA Mergers & Acquisitions Rules, the offeror must submit a merger and acquisition application containing the following information:
- The offeror's name, nationality, and address.
- Information about the offeror's company, such as its headquarters, objectives, current capital, company's address, names of directors, names of shareholders, the percentage each shareholder owns in the offeree company.
- The name, headquarters, address and capital of the offeree company
- The number of shares owned by the offeree in the listed offeree company must be shown in a statement
- Minimum and maximum of the shares to be acquired and minimum and maximum percentage of the offeree company's capital
- The price offered to the offeree.
- The purpose of the merger or acquisition.
- A copy of the articles of association and memorandum of association of the target company shall be provided to the offeree and the offeror.
- The offeror shall submit an updated copy of its shareholders' register.
- A copy of acquisition or merger agreement signed by both parties.
- In case of cash payment, a bank guarantee issued by a local bank ensuring that the offeror has the capability of fully or partially paying.
- A valuer’s valuation of the offeree company's assets.
- Commitment by the offeror to the authority to pay full fees in relation to acquisition and merger
- The offeror and offeree company must submit am audited financial report for the last three years.
Furthermore, a notice of the process must be given to the Competition Protection and Anti-Monopoly Committee of the ministry of Economy and Commerce.