Corporate M&A 2019 Comparisons

Last Updated June 10, 2019

Law and Practice

Authors



Allen & Overy Luxembourg have a corporate/M&A practice that is made up of four partners and 25+ fee earners. The practice is experienced advising on all kinds of M&A deals, across all sectors, and supports buyers and sellers at all stages of transactions, from bid preparation and submission to negotiation, sign-off and close. Members of the practice are experienced negotiators, deal managers and draftsmen and this, combined with their responsiveness and client orientation as well as their wider expertise across all major disciplines, results in a level of service that few law firms in Luxembourg can match. The Luxembourg corporate/M&A practice is an integral part of the firm’s global corporate/M&A practice, consisting of 800+ lawyers across its network of 44 offices in 31 countries and regularly appearing on many of the largest and most high-profile international transactions.

The Luxembourg M&A market remained very busy across various sectors in 2018. The strong activity levels of the previous years were maintained with regard to both the structuring of M&A transactions for foreign targets through Luxembourg special purpose vehicles (SPVs) and for Luxembourg-based target entities. The expectation for 2019 is that M&A activity continues to grow in Luxembourg.

Key highlights in the second category included the sale of ABN Amro’s Luxembourg operations (bank and insurance) to BNP Paribas and the sale of Nordea’s private banking activities to UBS. Beyond the private banking sector, we also saw strong activity in the corporate service provider space and, in particular, several transactions involving third-party ManCos (eg, acquisition by Blackfin of SEB’s ManCo, and the partnership between Swedbank and Carne Group). In the industrial sector, the acquisition by China Southern Power of Ardian’s participation in Encevo, the Luxembourg electricity provider, is notable.

The prevailing trends were continued consolidation in the private banking and insurance sector, combined with opportunistic moves by new entrants; a significant appetite for regulated third-party ManCos and corporate service providers generally (driven partially by Brexit); and a very active property market both locally in Luxembourg and for Luxembourg SPVs holding foreign assets.  

The key industries driving the M&A activity in Luxembourg over the last two years were banking, insurance, corporate service providers and property.

In private M&A transactions, the primary technique for acquiring a company in Luxembourg is entering into a private share purchase agreement with the company’s shareholders. The share purchase agreement will set out the terms under which the acquisition of the Luxembourg target company will take place. There is no requirement in Luxembourg to notarise or register the share purchase agreement.

Other acquisition techniques include a merger involving a Luxembourg entity as the target, a demerger or a spin-off. The purchaser can also acquire relevant assets directly from a Luxembourg company. In that specific scenario, the transaction may be structured to the effect that the assets and liabilities relating to the business are automatically transferred to the purchaser as a matter of law (eg, transfer of universality or transfer of a business branch). Assets can also be transferred individually, although in that case, it may be necessary to seek counterparties’ approval to effect the transfer to the purchaser.

For public/listed companies, shares can be acquired on the stock exchange, through block trades or by way of private transactions. A purchaser may also enter into an agreement with a reference shareholder to acquire his or her shares in the Luxembourg target company. If such a deal is entered into in connection with a public takeover bid, the sale agreement would generally also provide for various provisions dealing with the public takeover bid, how and when the seller’s shares will be transferred to the purchaser, and other relevant terms and conditions.

The regulator in charge of the financial sector is the Commission de Surveillance du Secteur Financier (CSSF). The Commissariat aux Assurances (CaA) is another supervisory authority active in the insurance sector in Luxembourg.

If the target entity has a regulated activity falling within the scope of the CSSF’s or CaA’s review, the acquisition of a shareholding interest or a change of control may be subject to the CSSF or the CaA’s prior authorisation. The CSSF is also the main regulator in Luxembourg for public takeover bids.

The Conseil de la Concurrence (Competition Council) is the regulator for competition in Luxembourg. Though there is currently no merger control regime in Luxembourg regulating M&A activity, the Competition Council does have competence to review cases involving concerted practices, anti-competitive agreements and abuse of dominant position. Mergers, acquisitions or joint ventures in Luxembourg involving companies triggering the European turnover thresholds will have their cases reviewed by the European Commission.

Luxembourg has no restrictions on investment that apply to foreigners only. However, there are restrictions on investments by all investors (whether foreign or local) in the following industries:

  • insurance/reinsurance companies, credit institutions;
  • ‘Chapter 15’ management companies (Luxembourg management companies authorised to act as management companies for Luxembourg undertakings for collective investment in transferable securities (UCITS));
  • ‘Chapter 16’ management companies (Luxembourg management companies authorised to act as management companies for non-UCITS funds);
  • investment firms and other financial sector professionals (FSPs), and alternative investment funds managed by a fund manager (AIFM); and
  • investments in payment institutions and electronic money institutions.

Investors in other sectors, eg, property, aviation, or telecoms sectors have no such restrictions.

The antitrust regulator in Luxembourg, the Competition Council, enforces the Competition Act of 2011. This law prohibits:

  • anticompetitive agreements or concerted practices between undertakings or groups of undertakings; and
  • the abuse of a dominant position by one or several undertakings.

There is currently no merger control regime in place in Luxembourg, so business combinations (mergers, acquisitions, and joint ventures), which could potentially raise competition concerns in Luxembourg, can close without prior clearance from the Competition Council.

In a 2016 decision (2016-FO-04 – Utopia), however, the Competition Council appeared to expand the scope of its review through an abuse of dominance probe. The Competition Council exercised an ex post control over an acquisition in Luxembourg that involved a dominant market player buying a smaller competitor, strengthening its dominant position on the market.

The Competition Council based itself on a European Court of Justice precedent and stated that there was an abuse of a dominant position if the dominant purchaser faced no competitive pressure from remaining competitors on the market post-transaction. Although the Competition Council ultimately decided, due to the particulars of the facts, that the case raised no competition law concerns, the Council’s retroactive assessment hinted to a broader scope of review for similar cases in the future, and reopened the on-going debate about merger control in Luxembourg.

Finally, business combinations in Luxembourg that have a EU dimension and which meet the EC Merger Regulation turnover thresholds will in any case fall under the European Commission’s (EC) scrutiny. Indeed, once a transaction has triggered notification to the EC, no national authority, including the Luxembourg Competition Council, has jurisdiction to review the transaction.

A share deal has limited employment law consequences. It does not have any impact on the employment contracts in the target company; they remain in place and continue to run under the existing terms and conditions. It does not preclude potential pre- or post-closing redundancies.

A share deal does not trigger a requirement to inform or consult the target entity’s Luxembourg staff representatives, unless the share deal is accompanied by collateral measures such as changes in the target’s structure (eg, pre-closing carve-out), on the level of employment, on the work organisation or on the employment contracts of the Luxembourg-based employees. In these instances, a prior information/consultation process would be required, not on the share deal per se, but on the collateral measures. In practice, even if a formal information/consultation process is not needed on a share deal, it is considered good practice to inform staff representatives at the latest shortly before, or at the same time as, the deal is made public.

Employment law considerations regarding an asset deal depend on whether the latter triggers the application of the Luxembourg transfer of undertaking and protection of employment rules (TUPE). The application of the TUPE rules requires the fulfilment of two conditions:

  • an undertaking (in the sense of an organisational unit) has to be transferred; and
  • such undertaking must keep its identity after the transfer.

Asset deals involving a universal transmission of assets and liabilities, eg, mergers, systematically trigger TUPE rules in relation to relevant employees. For asset deals that do not involve a universal transmission of assets and liabilities, a case-by-case assessment needs to be operated on the basis of various factors, eg, the questions around what contracts/assets/activities are transferred, whether employees are assigned to such contracts/assets/activities and whether these contracts/assets/activities constitute an organisational unit. Luxembourg case law largely follows the precedents of the Court of Justice of the European Union.

If TUPE rules apply, staff representatives need to be formally informed and consulted about the contemplated transaction. This information/consultation needs to be completed before the ultimate decision on the transaction is made; in practice before signing. After signing has taken place and in good time before the effective transfer date, various stakeholders, including the staff representatives and the Labour Inspectorate, need to be informed in writing about the details of the transfer. On the day of the transfer of the assets, all of the employment contracts linked to the assets automatically transfer to the purchaser, irrespective of whether the individual employees agree to the transfer. Any rights acquired by the employees are maintained. Pre- and post-closing redundancies are restricted given that the TUPE rules prohibit dismissals justified by the transfer per se.

If TUPE rules do not apply, an asset deal does not, as such, have employment law consequences. This is unless it is accompanied by, or inevitably leads to, collateral measures with staff impact. In these cases, a prior information/consultation process would be required, not on the asset deal per se, but on the collateral measures. If a purchaser intends to take over some or all of the vendor’s staff, he or she will need to obtain the individual employees’ consent.

There is no national security review of acquisitions in Luxembourg.

The most significant legal development in Luxembourg related to M&As over the last three years pertained to the adoption of the 2016 reform bill, amending and modernising the Luxembourg Companies’ Act 1915 (the Companies Act).

The reform aimed to reinforce the Luxembourg company law framework and to further increase Luxembourg’s attractiveness as a hub for international investments. It expressly confirms a number of existing practices (which were accepted as market standards, but not formally recognised into legal instruments until then), thereby reinforcing legal certainty.

A series of new mechanisms and instruments was introduced to respond to a more complex economic environment and with a view to increasing the flexibility of Luxembourg company law. The majority of the amendments concern the most common company types, the public limited liability company (société anonyme - S.A.), and the private limited liability company (société à responsabilité limitée - S.à r.l.), but the reform also introduced new general principles and specific measures affecting other company types.

Without being exhaustive, the following changes were introduced:

  • the possibility for a shareholder (in an S.A. and S.à r.l.) to waive in all or in part the rights attached to its shares for a limited or indefinite period of time;
  • the possibility for the management body of an S.A. and S.à r.l. to suspend shareholders’ voting rights in the event of a breach of their obligations under the articles of association or a shareholders’ agreement or any relevant shareholders’ undertakings;
  • the introduction of a specific legal framework regarding voting arrangements in an S.A. and S.à r.l.;
  • the introduction of a minority shareholder action to be launched by shareholders (on behalf of the company, against the directors of the company) having at least 10% of all the votes entitled to be cast at the general shareholders’ meeting;
  • the introduction of a new type of company, the société par actions simplifiée or SAS, inspired by French law; and
  • the recognition and introduction of a regime for dissolution without liquidation of a Luxembourg company.

The Luxembourg legislation dealing with public takeover bids is the 2006 Law implementing Directive 2004/25/EC of the European Parliament and of the Council of 2004 on takeover bids (the Public Takeover Bid Law – the Bid Law). The Bid Law was not significantly amended in 2017 or 2018, and there is no publicly disclosed project to review it in 2019.

Listed companies falling under the scope of the Bid Law are not necessarily Luxembourg companies or Luxembourg listed companies. Indeed, the Bid Law applies to companies that either:

  • have their registered office in Luxembourg or in another member state and some or all of their securities are admitted to trading on a regulated market in Luxembourg; or
  • have their registered office in Luxembourg and some or all of their securities are admitted to trading on another member state regulated market. 

If the target company has its registered office in Luxembourg and its securities are admitted to trading on a regulated market in Luxembourg, the full Bid Law will apply to the related bid and to the target company, and the CSSF will be the competent supervisory authority. 

If the target company has its registered office in Luxembourg and its securities are admitted to trading on a regulated market in a member state other than Luxembourg, the authority competent to supervise the public takeover bid will be the authority of the member state in which the securities are traded. The Bid Law further provides that:

  • matters relating to the consideration offered in the bid (including the price); and
  • matters relating to the bid procedure, in particular the information on the bidder’s decision to make a bid, the contents of the offer prospectus and the disclosure of the bid, will be addressed in accordance with the rules of the member state’s competent supervising authority.

By contrast, for matters relating to the information to be provided to the employees of the target company and matters relating to company law, the applicable rules and the competent authority will be those of Luxembourg. This applies in particular to the percentage of voting rights that confers control and any derogation from the obligation to launch a bid, as well as the conditions under which the board of the target company may undertake any action that might result in the frustration of the bid.

If the target company does not have its registered office in Luxembourg, but its securities are admitted to trading on a regulated market in Luxembourg, the CSSF will be the authority competent to supervise the public takeover bid. For matters relating to the information to be provided to the employees of the target company and matters of company law, the applicable rules and the competent authority will be those of the member state in which the target company’s registered office is located.

The Bid Law also sets out specific provisions applying to target companies whose securities are admitted to trading in more than one jurisdiction.

The Bid Law does not address as such whether a potential bidder can build a stake in a listed company before launching a bid. Whether this can be done must be carefully analysed on a case-by-case basis. Indeed, in the context of stakebuilding, the bidder’s intention to make a bid could constitute inside information. Therefore, stakebuilding activities can only take place in accordance with applicable market abuse regimes. These may include regimes applicable in the bidder’s jurisdiction, the target’s jurisdiction, the jurisdiction(s) in which the relevant securities are listed and the jurisdiction in which the transaction takes place).

The Luxembourg substantial shareholding disclosure rules are set out in the 2008 Law on transparency requirements for issuers (the Transparency Law). In general, the Transparency Law requires disclosure by a holder of:

  • shares with voting rights (including depositary receipts representing shares);
  • financial instruments (entitlements to acquire and instruments with similar economic effect); or
  • a combination of both. 

As a rule, disclosure needs to be made when securities relating to a specific issuer are held in a percentage of voting rights that reaches, exceeds or falls below 5%, 10%, 15%, 20%, 25%, 33⅓%, 50% and 66⅔% of an issuer’s total voting rights. There are special thresholds, eg, for:

  • issuers who are subject to Luxembourg law and through their articles of incorporation impose lower or intermediate thresholds; and
  • market makers for whom disclosure of their holdings is not necessary below 10%.

Notification must be made to the issuer and filed promptly with the CSSF, but in any event no later than six working days following a transaction, or within four trading days for a notification resulting from an event changing the breakdown of the total voting shares of the issuer. The disclosure must be made to the issuer and filed with the CSSF simultaneously.

As regards the general reporting thresholds set out previously, it is possible for issuers subject to Luxembourg law to impose lower or intermediate disclosure thresholds through articles of incorporation. A shareholder can ascertain whether a Luxembourg issuer has imposed lower/intermediate thresholds by checking the relevant articles of incorporation.

Dealings in derivatives are generally allowed, but give rise to reporting requirements (eg, for reasons of transparency).

Derivatives can fall under the Transparency Law in Luxembourg and can lead to notifications to the CSSF and the target company if certain thresholds are or may be crossed or reached.

There are no specific notification requirements applicable to derivatives under competition law in Luxembourg.

If the acquisition is in the context of a public takeover bid, the Bid Law provides that the offer prospectus must set out the bidder’s intentions:

  • as to the future business of the target company (as well as the future business of the bidder itself, to the extent affected by the bid); and
  • in terms of safeguarding jobs for employees and management, including any material change in conditions of employment, and in particular the bidder’s strategic plans for the two companies and the likely repercussions on employment and the companies’ business sites.

A bidder approaching a target company and discussions between a bidder and the company will, in all likelihood, constitute inside information.

If an issuer has inside information that directly concerns it, it must disclose that information as soon as possible, unless it is permitted to delay in making that disclosure. 

An issuer is permitted to delay public disclosure of inside information only in limited circumstances, where all of the following conditions are met:

  • immediate disclosure is likely to prejudice the target’s legitimate interests;
  • delay of disclosure is not likely to mislead the public; and
  • the target is able to ensure the confidentiality of that information.

According to the European Securities and Markets Authority (ESMA), cases where immediate disclosure of inside information is likely to prejudice the issuer’s legitimate interests could include circumstances in which an issuer is conducting negotiations, where the outcome of such negotiations would likely be jeopardised by immediate public disclosure. Examples of such negotiations may be those related to mergers, acquisitions, splits and spin-offs, purchases or disposals of major assets or branches of corporate activity, restructurings and reorganisations. 

Depending on the circumstances, an issuer may rely upon such a derogation to delay the publication of discussions with a potential bidder, eg, when a potential bidder approaches the target company to conduct a review of the target company and its group.

Where a transaction progresses or an event occurs in stages, each stage of the process can itself constitute new inside information. The target therefore needs to monitor the evolution of the underlying discussions and regularly assess whether (new) inside information has arisen and needs to be disclosed, and whether the disclosure of the information can be delayed. 

Market practice on timing of disclosure does not differ as such from legal requirements. When a target has issued securities that are listed in more than one jurisdiction, it will have to comply with the legal requirements regarding timing of disclosure that prevail in each jurisdiction, which may lead to different approaches.

In private M&A transactions, the scope of due diligence is generally very broad, and can include a due diligence on topics including legal, financial, tax, operational and environmental matters. It is usual to cover as a part of a legal due diligence various aspects of the target business, including corporate law matters (existence, validity of the shares issued, etc), the business of the target company (eg, through a review of commercial agreements), the financing and security package in place, IP/IT matters, labour law matters, change of control provisions, etc.

In public M&A transactions, while there are no firm rules, the scope of due diligence is generally more limited. It would be usual to cover corporate topics or change of control provisions, but target companies may be reluctant to share commercially sensitive information with a potential bidder. This could impact upon the type of commercial information that is covered by the due diligence.

Standstill provisions are generally requested from potential bidders in friendly takeover processes. This can be a way to address potential concerns from a market abuse/insider dealing perspective (even if the issuer did not share any inside information with potential bidders), or a way to prevent a potential bidder who decides not to launch a bid from trying to jeopardise a third party’s subsequent bid.

Potential bidders very often request exclusivity from a target company. Even if granted, the scope of the exclusivity will be limited, as the board of the target company cannot bind the target company shareholders, and the target board is under an obligation to examine competing bids and should allow competing bidders access to the same information.

In a friendly process, the expectation is that the bidder will enter into an agreement with the target company’s reference shareholders relating to the tender offer terms and conditions. This agreement would also document the reference shareholders’ undertaking to tender their shares in the target company through the bid.

The timeline and process of a public takeover bid governed by the Bid Law is as follows:

  • making the bid public: for voluntary bids, from the moment the bidder decides to make an offer, the decision must be made public immediately. For mandatory bids, the bidder must make a bid ‘at the earliest opportunity’ after the mandatory offer thresholds set out in the law have been crossed. The CSSF must be informed of the bid before it is made public;
  • the offer prospectus and approval by the CSSF: the bidder must communicate to the CSSF an offer prospectus for approval within ten working days after the public takeover bid has been made public;

The CSSF has a period of 30 days to approve the offer prospectus. It can decide to extend this period if it considers the prospectus to be incomplete or that it requires additional information from the bidder.

  • a memorandum is prepared by the board of the target company: the board of directors of the target company draws up and makes public a memorandum setting out its opinion on the bid and the underlying reasons (including its views on the effects of implementation of the bid on the target company’s interests, the bidder’s strategic plan for the target company and their likely repercussions on employment and the locations of the company’s places of business).

The board of directors will need to consult with the representatives of the target company’s employees before issuing its opinion.

  • the acceptance period: the offer prospectus must mention the acceptance period, which (unless a specific derogation has been granted by the CSSF) may not be less than two weeks, or more than ten weeks from the date of the publication of the offer prospectus. The bidder can decide to extend the acceptance period under the condition that the bidder gives at least two weeks’ prior notice of his or her intention to close the bid. The CSSF can also grant an extension to the duration of the acceptance period if the target company needs to call a shareholders’ general meeting to consider the bid.

The acceptance period cannot exceed six months from the date of the decision by the bidder to make a public takeover bid public. If there is a competing offer, the acceptance period of the initial offer is extended until the end of the acceptance period of the competing offer.

  • the re-opening of the acceptance period: where the bidder acquires control of the target company as a result of the bid, the remaining holder of securities (that have not accepted the bid) have an additional period of 15 days to accept the bid, except in the event of a mandatory bid; and
  • the follow-on squeeze-out and sell-out: further squeeze-out rights and sell-out rights (to acquire the shares of the remaining security holders in the context of the takeover bid) are also provided under the Bid Law and are further detailed in 6.1 Squeeze-out Mechanisms, below.

The Bid Law provides for a mandatory offer threshold, which applies to issuers who have their registered office in Luxembourg.

Pursuant to the Bid Law, where a person, as a result of his or her own acquisition or that of any person acting in concert, obtains securities which, in aggregate entitle that person to 33⅓% of the voting rights in a relevant company, then he or she must launch a mandatory offer over all relevant securities issued by such company.

To calculate this voting rights threshold, all securities of the target company are taken into consideration, except for those that confer voting rights only in specific circumstances.

The CSSF can also grant a derogation to the obligation to launch a mandatory offer in certain circumstances.

In a voluntary offer, a bidder may offer a consideration of cash, securities or a mix of both, provided that the bidder must offer a cash consideration at least as an alternative if:

  • the consideration offered does not consist of liquid securities admitted to trading on a regulated market; or
  • where the bidder or person acting in concert with the bidder has purchased cash securities carrying 5% or more of the voting rights in the target company, over a period beginning twelve months before the takeover bid and ending on the closing of the bid’s acceptance period.

The Bid Law authorises conditional voluntary offers. Depending upon the circumstances at stake, the conditions attached to a public takeover bid will need to be discussed with and ultimately approved by the CSSF.

Voluntary offers can be subject to customary conditions, eg, regulatory approvals and a minimum acceptance condition. Mandatory offers cannot be conditional (although a competition clearance condition may be accepted by the CSSF).

Under Luxembourg law, the relevant control thresholds are the following:

  • 33⅓% of the securities carrying voting rights, considered as a controlling participation under the Bid Law, triggering the obligation to launch a mandatory takeover bid;
  • a participation exceeding 50% of the securities carrying voting rights grants exclusive control over a target company; and
  • a participation of 75% of the securities carrying voting rights generally allows a shareholder to amend the target company’s articles of association.

A voluntary bidder can make an offer subject to certain acceptance thresholds, depending on CSSF approval, whereas a mandatory offer cannot include any type of minimum acceptance condition.

A bidder can only announce a bid if he or she can provide the necessary funding for cash consideration and, with respect to any consideration in kind, if he or she has taken all reasonable measures to ensure its delivery.

In the context of a voluntary takeover bid, the bidder might seek to enter into various arrangements with the target company’s reference shareholders, including tender commitments of different scope and intensity (eg, a hard or ‘irrevocable’ commitment to accept the tender even in the event of a counter-offer, softer commitments, etc). The enforceability of this type of tender commitment has not been yet tested before Luxembourg courts.

To foster deal security from the bidder’s perspective, break-up fees can be arranged between the bidder and the reference shareholders (rather than with the target company, as in many cases it may be debatable whether this is in its corporate interest).

The bidder can also request support from the target company’s board of directors, formally or informally, bearing in mind that directors are bound at all times by their duties to act in the target company’s corporate interest when assessing the takeover bid and sharing their views on it with the shareholders.

The bidder could seek to obtain, after an agreement with the target company’s reference shareholders or amendment of its articles of association:

  • rights to nominate for appointment members to the target company’s board of directors (or other committees); and
  • veto rights (at the shareholders’ level or at the board of directors’ level) with respect to certain reserved matters.

Shareholders generally have the right to designate as proxy-holder an individual or a legal entity to represent them at a shareholders’ meeting and vote on their behalf.

Squeeze-out mechanisms for listed entities are provided under the Bid Law and a 2012 law on mandatory squeeze-outs and sell-outs (the Squeeze-out Law).

In the context of a takeover bid, a bidder who holds at least 95% of the capital-carrying voting rights and 95% of the voting rights in the relevant company has the right to launch a follow-on squeeze-out over the remaining securities. This right needs to be exercised within three months after the end of the bid’s acceptance period.

The CSSF has the responsibility of ensuring the price offered for these securities is a fair price. In the context of a voluntary bid, the consideration proposed in the initial public takeover bid is deemed to be a fair price when the bidder acquires at least 90% of the capital-carrying voting rights targeted in the initial public takeover bid. If the squeeze-out follows a mandatory takeover bid, the consideration for the squeeze-out can be the same as the price offered in the mandatory bid.

Outside the context of a takeover bid, the Squeeze-out Law provides that a shareholder holding directly or indirectly (individually or in concert) at least 95% of the capital carrying voting rights and 95% of the voting rights in the relevant company, has the right to request the remaining shareholders to sell their securities at a fair price, according to objective and adequate methods that apply to asset disposals.

The proposed price needs to be communicated by the bidder to the CSSF (together with a valuation report of the securities concerned), which might require the management or executive body of the company to take a position on the price proposed by the majority shareholder.

The remaining securities holders may challenge the price proposed by the majority shareholder by filing an opposition with the CSSF, which will decide on the price to be paid by the majority shareholder for such securities.

If the proposed price has not been challenged, the securities subject to the squeeze-out offer are transferred to the majority shareholder at the proposed price.

A sell-out procedure is further provided under both the Bid Law (following a successful tender offer) and the Squeeze-out Law. It allows minority shareholders to sell their shares for a fair price to a majority shareholder, when the latter holds (alone or in concert) securities carrying more than 90% of the voting rights in a target company. The determination of the fair price (in the context of a voluntary takeover bid) or equitable price (outside the context of a public takeover bid) for the sell-out generally follows the same rules/principles as those applicable to squeeze-outs.

A bidder may seek to obtain from reference shareholders commitments to tender or vote, although the enforceability of ‘hard’ undertakings to tender is debatable. The nature and strength of these undertakings are variable and will very much depend on the negotiating position of the parties involved.

The Bid Law provides that:

  • the bidder must make public the decision to launch a bid immediately after he or she has taken that decision; and
  • the CSSF must be informed of this bid before this decision is made public.

The bidder is further required to draw up and make public an offer prospectus. Before its release to the public, the prospectus must be approved by the CSSF.

As consideration for the target securities, the bidder may offer cash or securities or a combination of both.

The Bid Law provides that if the consideration offered by the bidder includes securities of any kind, the offer prospectus must set out information concerning those securities. The Bid Law does not specify in detail what information should be included in the offer prospectus, but it must be sufficient to allow the securities holders to make an informed decision on the proposed consideration.

The Bid Law does not explicitly provide that bidders are under the obligation to produce financial statements (pro-forma or otherwise) in the offer prospectus, nor the form under which financial statements need to be prepared. However, if the consideration of the takeover bid consists of securities issued by the bidder, the offer prospectus would need to contain financial information relating to him or her (in local generally accepted accounting principles (GAAP), international financial reporting standards (IFRS) or other forms deemed adequate by the CSSF), which are necessary to allow the securities holders to reach an informed decision on the bid.

The Bid Law does not provide for an explicit obligation to disclose transaction documents in full in the offer prospectus. However, if a bid-related agreement were entered into before the launch of the public takeover bid, a summary of the most relevant provisions would be expected in the offer prospectus.

In addition, following a request from the CSSF, the parties to a bid are required to share with the CSSF all information in their possession concerning the bid that is necessary for the CSSF to fulfil its duties. This may include disclosing to the CSSF, upon its request, transaction documents in full.

Directors’ duties in a business combination are the same as in other matters.

As a matter of principle, directors have a duty to act in the best interests of the company. The notion of corporate interest is not defined by law, but it is a fundamental concept to be taken into account to control decisions taken by the corporate bodies, within the corporate purpose of the company. Certain legal authors take the view that the corporate interest of the company consists of maximising profits for the benefit of its shareholders. However, the majority view is that the corporate interest of a company must also take into account the interests of the persons involved in the company’s activities, who are commonly named ‘stakeholders’ (ie, the shareholders, employees, suppliers, clients and creditors). As such, and in accordance with the majority view, when determining whether a decision is in the corporate interest of a company, its board of directors should consider not only the interests of its shareholders but also potentially external interests, including those of its existing creditors, suppliers and employees.

Another director’s duty to be taken into account relates to conflicts of interest. If a director directly or indirectly has a financial interest in any of the company’s transactions, which is contrary to the interest of the company, and if the transaction is submitted to the board of directors for approval, the director must:

  • disclose such contrary interest to the board of directors;
  • ensure that the existence of such interest is mentioned in the minutes of the meeting of the board of directors; and
  • abstain from resolving and voting on the relevant resolution.

More generally, directors are expected to act with due care, which entails choosing a course of action that an ordinary, reasonable and prudent director would choose in the same circumstances.

Directors also have a duty of confidentiality that must be complied with in the context of a business combination.

There is no firm practice in Luxembourg for boards of directors to establish special or ad hoc committees in business combinations, although companies sometimes do so. One of the reasons may be that under Luxembourg law, a director who has a relevant conflict of interest in connection with the business combination is not allowed to deliberate or vote on the underlying resolutions.

The Bid Law by default allows the board of companies that have their registered office in Luxembourg and whose shares are listed on the regulated market of a member state to implement, to a certain extent, defensive measures against a hostile bid. However, the board’s actions must comply with principles laid down in the Bid Law. The board of directors of the target company has the obligation to:

  • act in the interests of the company as a whole and must not deny securities holders the opportunity to decide on the merits of the bid; and
  • ensure that its actions do not create false markets that would disrupt the normal functioning of the markets.

These obligations are particularly relevant when the board of directors resolves to take defensive measures against a takeover attempt, including the use of poison pills or looking for a potential ally.

In a public takeover bid, it is not unusual for the target company and/or bidder to request a fairness opinion or a valuation opinion from a third independent party to objectify the price offered in the bid.

The Companies Act addresses conflicts of interest involving directors, to the extent that the conflicting interest is financial (see 8.1 Principal Directors' Duties, above). Conflicts of interest of managers, shareholders or advisers have not been the subject of significant judicial or other scrutiny in Luxembourg, although there is established case law on shareholders’ abuse of majority, which can be relevant when a majority shareholder imposes a decision whilst in a situation of a conflict of interest.

Hostile tender offers are permitted under Luxembourg law but rarely happen.

Luxembourg law allows the board of directors of target companies to use defensive measures subject to conditions and restrictions laid out in the Bid Law.

In any event, the board needs to consider and review the bids submitted in light of the corporate interest of the target company. It also cannot deny securities holders the opportunity to decide on the merits of the bid. Although the scope of this prohibition is debated, the board can, as appropriate, trigger defensive measures if it considers that the takeover bid is not in line with the corporate interest of the target company.

However, if the articles of association of the target company have opted in for the board neutrality rule (imposing the board to remain neutral in the event of takeover bid), from the moment that the decision to make a bid has been made public, the target company’s board of directors needs to obtain prior approval from the general meeting of the shareholders before taking any defensive measures (including via the issue of new shares and use of authorised capital), except for seeking alternative bids.

There are a number of defensive measures available to target companies which include:

  • the authorised capital allows the board of directors to issue shares according to certain conditions and limits set out in the articles of association of the target company;
  • the terms of the authorised capital can allow the board of directors to:
    1. cancel or limit any such subscription rights (and allow the board to issue shares reserved to certain shareholders, employees, etc); and
    2. reserve the issue to certain classes of shares only;
  • the target company can also issue warrants/stocks options or convertible debt instruments, which are triggered and converted upon the occurrence of certain events set out in the underlying agreements or terms and conditions;
  • more aggressively, the target company may decide to sell to a third party (some of) its ‘crown jewel’ assets (consequently making the target company less attractive to a potential bidder). Depending on the circumstances at stake, such a defensive tactic could be considered to be in breach of the corporate interest of the target company, in particular if such measure is beneficial to stakeholders only in the short term, but jeopardises the middle- or long-term prospects of the target company; and
  • the board of a target company can seek alternative bidders to frustrate the public takeover bid. The board could be motivated to do so to obtain a more attractive offer or to ensure that a more suitable candidate (with better long-term objectives and strategies) acquires control over the target company, for example. This type of ‘white-knight’ tactic is not limited by the board passivity rule and is generally available to the board of the target company, as long as its implementation is in line with the corporate interest of the target company.

When enacting defensive measures, the duties of the board members are the same as in a business combination. Indeed, the board of directors has at all times the duty to act in the corporate interest of the company as a whole when enacting defensive measures. In addition, directors cannot deny shareholders the possibility to decide on the merits of the bid. If the board passivity rule has been adopted in the articles of association, the board will need to receive the prior approval of the shareholders’ meeting before enacting defensive measures.

The board cannot ‘just say no’ to take action to frustrate or prevent a business combination, as previously indicated. If the board of directors decides that it will not enact defensive measures but is nonetheless not in favour of the takeover bid, the board of directors can reflect its concerns in the memorandum that it issues in the prospectus.

Litigation in connection with M&A deals occurs in Luxembourg, although not always publicly, as many disputes are settled through arbitration.

M&A disputes most currently occur after the completion of the transactions in connection with breaches of representations and warranties. There are also disputes involving cases in which a buyer is in default between signing and closing, and the transaction does not complete.

Shareholder activism is not an important force in Luxembourg.

There are not enough cases of shareholder activism in Luxembourg to come to a conclusion on activism trends.

There are not enough cases of shareholder activism in Luxembourg to conclude on general activism trends.

Allen & Overy Luxembourg

33 avenue John F. Kennedy
L-1855
Luxembourg

+352 44 44 55 1

InfoLuxembourg@allenovery.com www.allenovery.com
Author Business Card

Law and Practice

Authors



Allen & Overy Luxembourg have a corporate/M&A practice that is made up of four partners and 25+ fee earners. The practice is experienced advising on all kinds of M&A deals, across all sectors, and supports buyers and sellers at all stages of transactions, from bid preparation and submission to negotiation, sign-off and close. Members of the practice are experienced negotiators, deal managers and draftsmen and this, combined with their responsiveness and client orientation as well as their wider expertise across all major disciplines, results in a level of service that few law firms in Luxembourg can match. The Luxembourg corporate/M&A practice is an integral part of the firm’s global corporate/M&A practice, consisting of 800+ lawyers across its network of 44 offices in 31 countries and regularly appearing on many of the largest and most high-profile international transactions.

{{searchBoxHeader}}

Select Topic(s)

loading ...
{{topic.title}}

Please select at least one chapter and one topic to use the compare functionality.