Page 13 - מיזוגים ורכישות - פרופ' אהוד קמר תשפב

Where voting rights are nullified, equitable compensation must be provided for
any loss incurred by the holders of those rights. Member States will decide the terms of
that compensation and how it will be paid.

These provisions were the second main sticking point in reaching agreement on
the Directive. Therefore, Article 12 of the Directive allows Member States to opt in or out
of Article 11.

Opt In/Out (Article 12)

Member States have been given the option in the final text of the Directive
whether or not to apply (that is, whether to "opt-in" or "opt-out" of) the provisions
relating to defensive measures and breakthrough (Articles 9 and 11). If the opt-out is
selected, companies will be able to adopt defensive action to frustrate bids or ensure that
breakthrough provisions would not apply to them. The position is further complicated by
the fact that an "opt-in" or "opt-out" will not necessarily apply in all scenarios, as
explained further below.

Information and Consultation (Article 14)

The Directive acknowledges the rights of employee representatives of both the
offeree and the offeror company to be given information and to be consulted in
connection with a takeover bid.

Squeeze-Out and Sell-Out (Articles 15 and 16)

Squeeze-out rights have been introduced to enable offerors that acquire a
specified percentage of securities to acquire all remaining shares at a fair price. The
minority shareholders also must be able to require the offeror to buy their shares in
similar circumstances at a fair price — a prerogative known as a "sell-out right."

Anticipated Problem Areas

Supervisory Authorities

At the insistence of the U.K., a provision was included in the Directive to ensure
that Member States can choose which body will deal with disputes arising under the
takeover rules, and under what circumstances parties are entitled to bring legal
proceedings. The U.K. pushed for this provision because of the function carried out by
the Panel on Takeovers and Mergers in the U.K.

The Panel is a non-statutory body that (among other things) sets out and polices
the rules by which companies must abide when acquiring or merging with public

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