Contributed By CHSH Cerha Hempel Spiegelfeld Hlawati
Essentially, the Takeover Act regulates public offers aiming at the gaining or expanding of control by acquiring shares issued by a stock corporation having its corporate seat in Austria and being listed on a regulated market on the Vienna Stock Exchange. Furthermore, the Takeover Act also applies (partially) where only the requirement of a corporate seat or the listing is fulfilled in Austria and the other requirement is fulfilled in another jurisdiction.
The Takeover Act distinguishes between three types of offers, namely mandatory offers, voluntary offers and voluntary offers aimed at obtaining control. Furthermore, as of 3 January 2018 a new section has been introduced to the Takeover Act that governs offers for delisting securities from the Official Market of the Vienna Stock Exchange. Such offers are subject to the provisions governing mandatory offers whereby certain modifications apply (see 3.2 Significant Changes to Takeover Law, above).
Generally, the obligation to launch a mandatory offer is triggered if a bidder (be it an individual or parties acting in concert) seeks to acquire a controlling shareholding, which is defined by statute as a direct or indirect controlling interest of more than 30% of the voting stock. A shareholding that gives the holder between 26% and 30% of the voting rights must, however, be notified to the Takeover Commission. An exception to this rule applies in certain cases in which an obligation to launch an offer would exist in principle due to the acquisition of a controlling interest. In the following cases, the Takeover Commission only needs to be notified:
The Takeover Act also catches the so-called 'creeping in' by shareholders: If a shareholder obtains a controlling interest which does not, however, provide them with the majority of the voting rights, and within 12 months obtains at least additional 2% of the voting rights, a mandatory offer must be launched.
Besides that, under the Austrian implementation of the European Transparency Directive notification requirements need to be observed if certain thresholds (starting with 4% of the voting rights) in Austrian listed entities will be reached or (upwards or downwards) crossed by a transaction (note that certain transactions in financial derivatives may also be relevant).