Contributed By Bondoc & Asociatii
After 2017, viewed as rather a record year with numerous transactions with values between EUR100-500 million, the Romanian mergers and acquisitions (M&A) market in 2018 seems to have recorded a slight drop, with a total estimated value somewhere between EUR3.8-4.3 billion (factoring in both disclosed and undisclosed deal values). However, the number of transactions remained consistent, offering numerous counselling opportunities.
The main trend remains linked to consolidation in many sectors, the Romanian market remaining one with more players per industry than most other European Union (EU) countries. This trend has been noticeable in most sectors, from IT and energy to healthcare and banks. Also, as more and more private equity players have entered the Romanian market, the number of transactions involving such funds has also increased.
The number of sectors in Romania experiencing significant M&A activity remains notable, mainly due to the still fragmented market in many industries.
The sectors with the most deals ranged from IT, property, retail and healthcare and pharmaceuticals, to courier services, energy and the banking sector.
Typically, companies are acquired through the acquisition of shares. However, depending on due diligence findings or the situation of the target company (eg, insolvency), transfers of assets are also common and some involve large businesses.
There are no regulators for private M&A activity per se in Romania, but depending on the industry concerned, there may be certain requisites, usually conditions to closing the deal (eg, certain prior approvals of a regulator like the National Bank of Romania or the National Agency for Mineral Resources may constitute a validity condition for the transaction).
However, regardless of the industry concerned with a particular business combination, the involvement of the competition authority might be legally required. The same goes for the Supreme Council of State Defence (CSAT) – see 5.1 Requirement to Disclose a Deal, below for details.
There are a few restrictions on foreign investment. For example, foreign nationals outside the EU cannot acquire land, other than a limited number of exceptions. Also, a number of investments are subject to scrutiny by CSAT.
As part of the EU, Romania is subject to both EU regulations and relevant local legislation, the latter harmonising with the former. Among a few details worth considering are the rather low thresholds triggering a merger control requirement. More specifically, business combinations resulting in a change of control (be it sole or joint) of an undertaking on a lasting basis, are subject to compulsory clearance by the Romanian competition authority (ie, the Competition Council) if the combined turnover of the undertakings concerned are in excess of EUR10 million at a worldwide level, and each of at least two of the undertakings had a turnover in Romania exceeding EUR4 million in the year preceding the transaction.
Prior to a transaction, acquirers should carefully review individual and collective bargaining agreements, and human resources policies and procedures within the target company to assess potential non-compliance with the law as well as certain cost trends that could entail a target company’s liabilities at post-deal closing. Asset deals are also typically subject to the TUPE rules.
Among the most relevant employment regulations are the Romanian Labour Code (Law 53/2003), the Social Dialogue Law (Law 62/2011), the law on the protection of employees' rights in the event of transfers of undertakings, businesses or parts of undertakings or businesses (Law 67/2006), the Government Decision providing the minimum gross salary guaranteed for payment at national level (GD 937/2018), and the law on health and safety at work (Law 319/2006).
Mergers and acquisitions susceptible to a risk to national security are subjected to a security review conducted by CSAT. The definition is broad. Any transaction subject to merger control is automatically submitted to the attention of CSAT, although transactions below the relevant merger control thresholds might also be subject to CSAT’s scrutiny, depending on their features.
M&A-related litigation is not common in Romania, considering that many investors prefer arbitration and discretion regarding a dispute. Concerning significant legal developments, there have been certain developments in the M&A sphere, eg, the amendments brought to Law No 321/2009 (affecting retailers) in September 2016 and the most recent one, Government Ordinance No 114/2018, affecting numerous economic sectors (primarily tax-wise) with effect from January 2019.
The capital markets legislation was subject to several important changes both in 2017 and 2018. Essentially, the new piece of capital markets legislation on issuers of financial instruments and market operations was adopted and entered into force in 2017, namely Law No 24/2017 (the Issuers Law) aiming among other things to better implement the relevant EU directives, including Directive 25/2004 on takeover bids (the Takeover Directive). As an example, the Issuers Law introduced the breakthrough rule in takeover bids laid down in the Takeover Directive.
In 2018, the competent authority, ie, the Financial Surveillance Authority, adopted implementing norms to the Issuers Law, namely FSA Regulation 5/2018 on issuers of financial instruments and market operations, which came into force in June 2018.
Currently, no other legislative changes are expected to significantly impact upon the securities legislation governing takeover bids.
Stakebuilding is not prohibited in Romania, however in practice, its use seems to be rather limited for various reasons, including the low liquidity of the Romanian capital markets, the impact of stakebuilding on the price to be offered where the bidder is subject to a mandatory takeover bid requirement or where he or she wishes to make a voluntary takeover bid to acquire control over the company. There are also implications related to the incidence of market abuse rules considering that certain safe-harbours applicable to public takeovers and mergers do not apply in the instance of stake holding (the EU Market Abuse Regulation being directly applicable in Romania).
The notification requirements regarding the acquisition or disposal of major holdings laid down in the Romanian legislation implement to a large extent the provisions of the Transparency Directive 2004/109 (as amended). As such, disclosure of material shareholding applies where a shareholder acquires or disposes of shares of an issuer listed on a regulated market and to which voting rights are attached, if the percentage of the voting rights held following the acquisition or the disposal concerned, reaches, exceeds or falls below one of the 5%, 10%, 15%, 20%, 25%, 33%, 50% and 75% thresholds.
The disclosure obligation also applies where the relevant thresholds are reached either directly or indirectly by holding financial instruments of similar economic effect to holdings of shares and entitlements to acquire shares, whether or not they give right to a physical settlement.
The notification must be made to the issuer and to the Financial Surveillance Authority (if Romania is the home member state of this issuer) in Romanian or a language of wide international financial circulation, within four trading days . The issuer must make the notification public within three working days of its receipt.
Where the 33% threshold is exceeded, either on an individual basis or together with other persons acting in concert, the obligation to launch a mandatory takeover bid may apply, unless the bidder can rely on an exemption (see 6.2 Mandatory Offer Threshold).
Issuers are prohibited from determining thresholds in their constitutive acts other than the ones laid down by law. See also 4.1 Principal Stakebuilding Strategies, in relation to general stakebuilding hurdles.
Dealings with derivatives are not prohibited under Romanian law. However, transactions with derivatives are taken into account to determine whether shareholding disclosure obligations apply if the relevant thresholds indicated at 4.2 Material Shareholding Disclosure Threshold, are reached.
The filing/reporting obligations under the European Market Infrastructure Regulation (EMIR), a European regulation on over-the-counter (OTC) derivatives, apply, as EMIR is directly applicable in Romania.
In the case of a takeover bid, the bidder is required to disclose in the offer document the plans for continuing the business of the target company (eg, including any significant change in working conditions, in particular the offeror’s strategic plans for the two companies, if any, and possible repercussions on the jobs and business locations of the companies. Explicit information will also be provided regarding the bidder’s plans on a potential winding up, changing the object of activity and withdrawing from trading on a regulated market).
In public M&A deals, disclosure requirements dictate that the application of an inside information disclosure regime must be considered in line with the EU Market Abuse Regulation. Therefore, the target must make a case-by-case analysis and decide at what stage of the deal the relevant non-public, price-sensitive information is accurate enough in order to qualify as inside information subject to disclosure obligations.
As a rule, the issuer must disclose any inside information as soon as possible, but no later than 24 hours as of the event or after the date when the information is brought to its attention.
If a piece of information made public in the press or via an online post that was not made on the issuer's initiative in the context of its reporting obligations or in the case of a rumour in the market that explicitly refers to a piece of information/pieces of information that is privileged information at the issuer's level, in accordance with the EU Market Abuse Regulation the issuer must immediately publish that information if it is sufficiently precise to indicate that its confidentiality is no longer assured.
Publication must be carried out under the same conditions and using the same mechanisms as those used for the communication of inside information so that an ad hoc announcement is published as soon as possible.
As per the EU Market Abuse Regulation, the issuer may delay, at its own responsibility, disclosure of inside information to the public, subject to the observance of certain conditions (eg, immediate disclosure is likely to prejudice the legitimate interest of the issuer; the delay of disclosure is not likely to mislead the public; and the issuer can ensure the confidentiality of that information).
Considering the severe sanctions applicable in connection with breaches related to disclosure and misuse of inside information, the normally market practice on timing of the disclosure should not differ from the legal requirements, albeit there may be cases of legal uncertainty as regards the exact moment when the disclosure obligation arises.
In public M&A deals, due diligence is typically made on the basis of publicly available information only. In some cases (eg, takeover or merger deals), it may be possible to have access to some additional non-public and price-sensitive information, subject to compliance with the EU Market Abuse Regulation as well as to compliance with the obligation to ensure that investors have equal access to relevant information about the issuer prior to the deal. As such, disclosure of non-public and potentially price-sensitive information should be treated with great care, especially as, unlike other jurisdictions, there are no official guidelines from the Romanian authorities regarding the setting up of data rooms in relation to public M&A deals and disclosure of inside information in this context.
In scoping due diligence exercises for private M&A deals, some factors are of particular relevance, such as the deal structure (eg, share or asset deal), the sector experience of the party commissioning the due diligence (ie, the vendor or the buyer), any on-going investigation on the target entity, as well as the size of the deal. As a rule, however, nowadays there are more due diligence exercises limited in scope (usually covering title-related matters, material contracts, regulatory, employment, litigation), than those covering all aspects of a company’s business life.
For example, where a vendor commissions a due diligence exercise to put its company up for sale (commonly known as a ‘vendor due diligence’ or ‘VDD’), typically encountered in sizeable deals, while the buyer may still (legally) rely on the VDD findings, it often elects to conduct a supplementary review (top-up) departing from the VDD findings, aimed at identifying and filling out potential ‘gaps’.
In public M&A deals, standstill agreements imposing obligations on the bidder are in some cases concluded, but they are not common. In the context of a mandatory takeover bid, the law imposes a prohibition to the shareholder and persons acting in concert against acquiring shares in the issuer prior to carrying out the bid in question.
Typically, in private M&A deals, exclusivity is agreed upon for the benefit of the buyer via term sheets or similar, ie, restricting the vendor for a period of time estimated to cover all the main milestones of the transactional process (eg, from the commencement of due diligence, through the negotiation process and up to the (tentatively set) signing date of the definitive transaction documents), also effectively setting a time-cap on the deal itself, benefitting the vendor who, unless an extension is agreed, may walk away from the deal with that particular buyer, by the mere passage of time.
The terms and conditions offered within a bid are commonly documented in definitive agreements.
Further, in public M&A deals, the terms and conditions of any takeover must be included in the bidder’s offer document, which is subject to publicity to ensure that the offer is addressed to all the shareholders. The offer is irrevocable for the entire duration of the takeover bid.
In public M&A deals, the process is highly regulated (eg, the norms provide for a minimum of ten working days and maximum of 50 working days for the takeover bid) and involves obtaining approvals from the competent authority (the Financial Surveillance Authority) and compliance with publicity requirements.
The timeframe for the acquisition/sale of a business in non-public M&A deals may depend on a series of factors, eg, whether a share deal or asset deal is envisaged or, in case of a share deal, whether the target company is a limited liability or a joint stock company and the acquisition structure, whether subject to merger control (and if only phase I or phase II), whether it is subject to CSAT’s scrutiny, etc. In a typical acquisition structure, where an acquisition of shares in a limited liability company is pursued by a new investor, the effective transfer of title to the shares acquired by/sold to a new entrant is subject to a 30-day legal waiting period during which any opposition from an interested party would suspend the transaction.
In addition to the above, certain other prior clearances may be legally required with respect to a particular transaction that would naturally expand the process (eg, in the area of certain natural resources).
In terms of a share deal versus an asset deal, while an asset deal may prove beneficial for the buyer in terms of liability inheritance, which (generally) does not follow the transferred assets but rest with the seller (ie, company owning the transferred assets), the transfer process in itself may prove cumbersome and time consuming. This may be due to requirements imposing the renewal or re-issue of some licences to the new owner, individual re-registrations for registrable assets, assignment of contracts, etc.
Mandatory takeover requirements apply when persons, as a result of their purchases or of the persons with whom they act in concert, hold securities that entitle them, directly or indirectly, to more than 33% of the voting rights of the issuer. Here, the persons are required to launch a public offer addressed to all securities holders at a fair price and covering all their holdings, as soon as possible but no later than two months after the achievement of that holding.
However, the requirement to conduct a mandatory takeover bid does not apply if the holding reaching the above-mentioned threshold is the outcome of an ‘exempt transaction’, ie:
If more than 33% of the issuer’s voting rights are unintentionally acquired, the holder of such a position must, within three months:
The acquisition is considered ‘unintentional’ if it is the result of operations such as:
Generally, in public M&A deals, the preference is for cash consideration, although the norms regulating takeover bids allow for the bidder to offer cash, securities or a combination of the two. If the bidder offers other securities in exchange, an alternative consideration in cash must be proposed, so that the investors can opt to receive either cash or securities.
Likewise, in non-public business combinations, the consideration is typically cash.
In public M&A deals, the applicable norms do not regulate the possibility of making conditional takeover offers. By way of interpretation, the conditions for reaching a minimum threshold in a voluntary takeover bid or obtaining the clearance/approval of relevant competition authorities should be deemed acceptable, but it is recommended to seek the interpretation of the competent authority in relation to the opportunity to submit conditional offers.
The key control thresholds in Romanian public companies are:
• the 33% threshold, which triggers the bidder’s obligation to launch a mandatory tender offer; the threshold is also relevant for a voluntary takeover bid where the bidder intends to acquire more than this percentage of the voting rights in the target (see 6.2 Mandatory Offer Threshold)
• the 75% threshold: if, following a takeover bid, the offeror holds 75% or more of the capital carrying voting rights, no restrictions on the transfer of securities or on voting rights, nor any extraordinary rights of shareholders concerning the appointment or removal of board members provided for in the articles of association of the offeree company shall apply; and
• the 90%/95% threshold, which enables the bidder to initiate the squeeze-out procedure (see 6.10 Squeeze-out Mechanisms).
In public M&A deals involving a takeover bid, the offer cannot be conditional upon obtaining financing, as the offer document to be submitted to the competent authority for approval must include either proof of a deposited guarantee representing at least 30% of the total offer value in a bank account of the bidder’s broker (the amount to be blocked for the entire period of the offer), or a bank guarantee letter covering the entire value of the offer, issued in favour of the bidder’s broker and valid until the settlement date of the transaction related to the offer.
A non-public business combination may be conditional on the bidder obtaining financing, although the condition usually consists of requiring the bidder to prove the financial capacity to ensure the payment of the consideration, whether or not with additional financing. Furthermore, sellers are obviously cautious with bidders who have not yet secured financing.
In the bidding phase, buying participants do not usually have the option to resort to such means of securing the deal, although there are regular attempts to negotiate break-up fees and match rights.
Outside of its shareholdings, additional protection within the decision-making process may be sought at the company’s managing bodies level, by securing a position for the appointee(s) within such bodies, together with the right of that/those appointee(s) of becoming involved in all decisions that may adversely affect the interests of the appointer, pre-agreed selection of company auditor(s), etc.
In the case of companies listed on the regulated market, shareholders have the right to grant a valid proxy for a period of no more than three years to their respective representatives for voting on all aspects of the GMS of an issuer or a category of issuers, either by inserting a specific wording or by using a more generic language. Such general proxies may be granted only to an authorised intermediary or to a lawyer.
In non-public companies, voting by proxy is permitted, subject to certain limitations prescribed by law or the bylaws of the company in question (eg, Power of Attorney is granted for a single and specific shareholders meeting; the proxy may not be member of the company managing bodies; publicity rules must be observed).
Squeeze-out procedures are regulated in Romania and to date have been applied quite often for publicly traded companies.
Following a tender offer addressed to all shareholders and for all their shares, the bidder is entitled to require those shareholders who have not subscribed to the offer to sell all their shares at an equitable price, if one of the following conditions is met:
The latest norms on the squeeze-out right of the ‘supermajority’ shareholder impose a term of a maximum three months as of the finalisation of the tender offer to exercise the squeeze-out right.
Sell-out procedures are also regulated and applicable in case the bidder is in one of the cases described above. Under a sell-out procedure, the minority shareholder who has not subscribed to the takeover bid is entitled to ask the bidder to buy its shares at an equitable price.
Practices such as obtaining irrevocable commitments to tender or to vote by the target company’s principal shareholders are rare in Romania.
In the case of a voluntary takeover bid, the offeror must submit to the competent authority (the FSA) a preliminary announcement. Following approval by the FSA, the announcement must be sent to:
Following the publication of the preliminary announcement, the bidder must submit an offer document and related materials to the FSA within 30 days. The FSA will make a decision on approval of the offer document within ten working days.
Where the bidder issues shares as consideration for the offer, the offer document must include information about these securities similar to that in a prospectus of a public offer of the relevant securities, as well as an exchange report.
In the case of voluntary or mandatory takeovers, the offer document and preliminary announcement must contain economic and financial data pertaining to the bidder, in line with the latest approved financial statements (eg, total assets, total equity, turnover, result of the financial exercise).
If all or part of the offer is to be settled in securities, a disclosure equivalent to a prospectus must be included, in line with EU Regulation (EC) 809/2004 regulating prospectus disclosure.
In public M&As, the terms and conditions of the transactions are included in the offer document. This is made public and there are no requirements to disclose other transaction documents. However, full disclosure of some transaction documents to the competent authority may be required, eg, the underwriting agreement).
As the principal duty of directors is to manage the company, their attention is all the more required where the company is involved in an M&A process, to assess the findings of due diligence procedures; to consider/decide with respect to the transaction structure; and to ensure that all the necessary formalities are followed, etc.
The directors’ duties are mainly owed to the company and its shareholders. Under certain circumstances, the directors may be liable to other stakeholders. Yet, even in this instance, a third party having suffered damage as result of an action or omission of the director, should normally sue the company, not the director, to the extent that the director acted within the apparent limits of his or her powers as a director. If the director acted outside his or her powers as a director, a third party could directly file a claim against the director based on his or her personal tort liability.
The establishment of ‘ad hoc’ committees is not common in business combinations in Romania.
In Romania, courts of law rule on the legality of matters and not on opportunity or business-related aspects.
In more complex business combinations, especially where the buyer offers to retain the company’s management following the deal closing, legal, financial and tax advice is often sought on behalf of the managers.
The legislation contains specific provisions in respect of shareholders and directors and potential conflicts of interest, and there have been disputes on such matters, eg, involvement in the decision-making process despite existing conflicts of interest.
Romanian law does not distinguish between hostile and friendly offers. Consequently, the rules mentioned above with respect to the conduct of takeover bids will apply accordingly.
Romanian legislation has implemented the board neutrality rule and consequently, as of the takeover announcement and until the closing of the offer, the board of directors cannot take actions that would affect the possible takeover. That is, they are prohibited from taking any measures that may affect the property or the objectives of the takeover bid, except for ordinary administration measures.
The board neutrality rule prevents the board of directors from taking any adverse action without the specific post-bid approval of an extraordinary general meeting (EGM) of shareholders, except in the course of ordinary business.
However, directors may seek out another more favourable bidder (or ‘white knight’) and attempt to build a defence by expressing a negative opinion of the strategy to be implemented by an offeror, or the potential consequences of this strategy, thereby attempting to convince the shareholders to resist to the hostile takeover bid. The opinion of the board of directors must be sent to the competent authority, the bidder and the regulated market.
The most common defensive measure when facing a hostile takeover bid is probably for the EGM of shareholders to empower the board to search for an alternative bid.
Since directors must comply with the board neutrality rule, their primary duties are to comply with applicable legal requirements in cases of takeover bids seeking to obtain control of the target company. For example, expressing the board’s opinion within five working days of the receipt of the preliminary offer announcement and deciding whether to convene the EGM of shareholders to inform the shareholders about the board’s opinion and to seek the approval for the implementation of defensive measures.
In taking these measures, the general duties of the directors apply, including observance of the legal prohibition against abuse of their position as directors by using disloyal or fraudulent measures, which may prejudice the shareholders.
Directors may not take measures aiming to affect the hostile bid in the absence of a decision of the EGM of shareholders. However, by presenting a well-grounded opinion they may prevent a business combination by convincing the shareholders of the negative consequences of the transaction.
In Romania, litigation is not common in connection with M&As.
M&A-related litigation is not common in Romania.
Shareholder activism is not systematic; however, it is seen increasingly. An obstacle that remains is the need for resources and access to sufficient information. Focus seems placed on intra-group/related party arrangements, directors’ duties to the company and alleged conflicts of interest at the level of the main shareholder.
Activists seek to encourage companies to enter into M&A transactions as they look for opportunities to exit or consolidate their position.
Activists seek to interfere with the completion of announced transactions, although these remain rare in Romania.