Contributed By CHSH Cerha Hempel Spiegelfeld Hlawati
In Austria, a private M&A acquisition is usually structured either as a purchase of shares in the target company (share deal) or of business assets (asset deal). In case of a share deal, the buyer directly acquires the shares in the target and (only) indirectly the target's business; the assets and liabilities pertaining to the business remain with the target. In an asset deal, the buyer acquires a business from a seller, which means that the assets and liabilities need to move from the seller to the buyer (subject to limitations, in particular with respect to liabilities, the parties may further define the details of the scope of the purchased assets). Whether the one or other method is applied, often depends on tax considerations, but also on the scope, shape and complexity of the business that shall be acquired, liability issues and results of due diligence, etc.
If the intention is to acquire shares in a stock corporation (Aktiengesellschaft) based in Austria, the shares of which are admitted to trading on the Vienna Stock Exchange (Wiener Börse) on a regulated market, with the aim to obtain or expand the control in such listed company, a strictly regulated procedure must be followed. This is governed by the Austrian Takeover Act (Übernahmegesetz). Since there are not many listed Austrian stock corporations, takeovers are not seen as often as in other jurisdictions.
In addition, alternative ways of acquisition are noteworthy, eg, statutory mergers, either by absorption (one company is merged into another) or by combination (two companies are merged into a newly established company). However, these techniques are typically employed within a group of companies rather than among unaffiliated entities, but may be employed as a preparatory step preceding a share deal with an unaffiliated entity to establish the envisaged target structure.