Contributed By CHSH Cerha Hempel Spiegelfeld Hlawati
The bidder must disclose without undue delay its plan or intention to make an offer and it must inform the administrative bodies of the target company of the offer via press agencies and international news services (eg, APA, Bloomberg, Reuters) once its administrative bodies have decided to make an offer, or if circumstances oblige the bidder to make an offer (eg, acquisition of control), or in the event of rumours and speculations or market distortion.
After the bidder makes his or her intention public, he or she must file an offer (including all relevant documentation) with the Takeover Commission within ten trading days or within 20 trading days of acquiring a controlling interest.
Between the 12th and 15th trading day after the Takeover Commission is notified, the details of the offer must be published either in a nationwide Austrian newspaper or as a complimentary brochure that is provided to the public by the target company at its registered office and by the bodies entrusted with the task of paying the consideration.
Making a public offer triggers an obligation to produce a prospectus, as laid down in the Capital Market Act (Kapitalmarktgesetz), Section 2. The purpose of such a prospectus is to give investors the opportunity to gain greater knowledge of the risks involved in investing in securities and mutual funds. Before publishing the prospectus, the Austrian Financial Market Authority has to check it for completeness, coherence and comprehensibility. Only then may it approve the prospectus.
The prospectus must comply with the provisions of the Capital Market Act and must be published at least one banking day in advance. It is deemed available to the public if it is published in the Austrian Official Gazette (Amtsblatt zur Wiener Zeitung), in a nationwide newspaper, on the issuer's website, on the website of the regulated market to which admission to trading is being sought, on the website of the Financial Market Authority or in a printed form to be made available free of charge to the public at the competent bodies of the market on which the securities are being admitted to trading.
A prospectus must contain all necessary information to enable investors to make an informed assessment of the assets and liabilities, financial position, profit and losses, the prospects of the issuer and of any guarantor, and of the rights attached to such securities. To meet the principle of transparency, this information must be presented in a form which is easy to analyse and which is easily comprehensible.
Financial statements are to be included in the prospectus. Consolidated financial statements are prepared according to IFRS standards, whereas others (on a standalone level) apply Austrian GAAP standards. It is crucial that although the requirements regarding mandatory minimum contents are met, additional information may be needed to give the investor the chance to make a well-founded decision.
Parties to the takeover proceedings are under an obligation to co-operate with the Takeover Commission. The bidder, any party acting in concert and their advisers must provide comprehensive information as far as necessary for the Takeover Commission to fulfil its duties. All relevant documents (eg, share purchase agreements and shareholders' agreements) must be fully disclosed to the Takeover Commission. However, the bidder or the party obliged may only disclose extracts of certain documents if the bidder or the party obliged has an interest in ensuring that information is kept secret. There is no disclosure requirement vis-à-vis the recipients of the takeover offer.