Page 14 - מיזוגים ורכישת חברות - ברקלי תשפא

• An offeror may only announce a bid after ensuring that it can fulfil in full any
cash consideration it offers; and

• The offeree company must not be hindered in the conduct of its affairs for longer
than is reasonable in a bid.

Authority (Article 4)

Member States must designate an impartial and independent authority to
supervise bids. The responsibilities of the supervisory authority are set out in the
Directive, as is the question of which Member State’s rules will apply when, for example,
an offeree company’s securities are admitted to trading in more than one jurisdiction. It
is worth noting that in the admittedly rare instance of an offeree company that has
securities listed solely in a jurisdiction other than the place of its registered office, the
country in which its shares are listed will have jurisdiction over the bid procedure.
However, the company law and employee information obligations will continue to be
governed by the state where the company is incorporated. This may well create
uncertainty as to the exact scope of the authority of the relevant Member States in
relation to a bid.

Mandatory bid/equitable price (Article 5)

Member States must ensure that an offeror is required to make an offer to all
shareholders when it acquires "control" of a company. However, the percentage test to
be applied in determining control may vary from country to country.

The offeror must make such a bid to shareholders at an "equitable price" — which
will, for example, be the highest price paid by the offeror (or persons acting in concert
with the offeror) for the target’s shares over a period of six to twelve months (Member
States may specify the exact period) before the offer. A provision has been added to the
Directive relating to the increase in price that the offeror must pay if, after the bid has
been made public but before the offer closes for acceptance, the offeror buys the offeree
company’s shares for more than the offer price.

Information (Article 6)

Member States must require that the decision to make a bid public is made
without delay and the supervisory authorities are informed. Immediately thereafter, the
boards of the companies involved must inform their employee representatives or the
employees directly. The offeror also must make public an offer document containing
certain basic information listed in the Directive (such as the terms and conditions of the
bid and the identity of the offeror) to enable holders of securities to make an informed
decision.

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