Page 15 - מיזוגים ורכישות - פרופ' אהוד קמר תשפב

Opt-In and Opt-Out

The "opt-in" and "opt-out" provisions (relating to defensive measures and
breakthrough) have been included as a political compromise in order to expedite
agreement to this Directive. Some Member States felt it would be unfair if EU-based
companies that were not entitled to implement defensive measures were on the
receiving end of hostile bids from companies based in jurisdictions where defensive
measures are allowed. Accordingly, as indicated above, Member States may opt-out of
the articles prohibiting defensive measures and breakthrough. Further, even if Member
States have implemented Articles 9 and 11, they will nevertheless be able to allow
companies not to apply such articles in relation to an offeror company that is not itself
subject to the same provisions in its home jurisdiction.

One possible consequence of the opt-out provisions (depending on how the
Directive is implemented in a particular country) is that a target offeree might be
prohibited from taking defensive measures against, say, a U.K. bidder (assuming, as is
likely, that the U.K. does not opt out), but might be permitted to take such measures as
against a bidder from a country that permits poison pill-type defences. This will obviously
cause a disparity in the marketplace for bidders from differing jurisdictions for the same
target company.

Practical Issues Relating to Implementing the Directive

As is always the case with European directives, the Takeover Directive will have to
be implemented individually by each Member State. Therefore, despite the goal of
creating a uniform procedure throughout Europe, there will be a certain amount of
disparity between Member States as each is likely to implement the Directive in a slightly
different manner. The obligations set out in the Directive itself will form the basic tenet
of what each individual Member State will implement, but there will always be some
discretion permitted when moulding new directives into national law. Further, a
considerable amount of detail is missing from the Directive, giving each country additional
latitude.

In the particular case of the Directive, Member States will have the ability to
impose their own additional and more stringent takeover rules if desired. This disparity
will be exacerbated by the opt in and opt out provisions that enable the Member States
to implement, or not implement, certain provisions as they choose.

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