Vrijwillig overnamebod

The Takeover Directive defines a voluntary bid as a bid intended to acquire control of the target company. The Takeover Act does not further define the voluntary bid, so that the condition defined in the Directive that a voluntary bid should have as its objective the acquisition of control has lapsed in the Act. Thus, also bids not intended to acquire control or squeeze-out offers by controlling shareholders fall under the scope of the Act. Only bids on the Belgian territory that are aimed at securities as defined in the Law fall within the scope of the Law.

As regards to the preparation and announcement of the bid, the Takeover Act introduces an additional “put up or shut up” rule. This is aimed at giving the FSMA greater powers to intervene in market rumours concerning impending public offers. It means that if a person has made statements that raise questions in the mind of the public about his intention to launch a bid, and that person has not yet made a formal notification of a public bid, the FSMA may request that person to publish a communication in which he clarifies his intentions with regard to launching a bid. The FSMA may grant the person concerned a period of 10 working days in which to make such an announcement. If, however, the person concerned does not confirm his intention

to launch a bid within a reasonable period of time, or if he confirms that he will not launch a bid, that person will not be able to launch a bid for the securities of the offeree company concerned during a period of six months as from the publication of the communication or the expiry of the period imposed by the FSMA.

Anyone intending to make a public bid must first notify the FSMA. The notification must be accompanied by a dossier containing, in addition to the draft prospectus, proof that the eligibility requirements for the bid have been met. The FSMA makes the bid notification public at the latest on the working day following its receipt.

Unlike in the case of a mandatory bid, the determination of the price for a voluntary public bid is a matter for the bidder itself. In principle, the price is left to the functioning of the market, provided that equal treatment of security holders is guaranteed. The FSMA does not have the power to impose a price increase or to refuse approval of a prospectus on the grounds of an underpricing. The prospectus must contain all information necessary to enable the security holders of the offeree company to make a well-founded assessment of the transaction, given that the prospectus requires a detailed valuation base.