해외 M&A의 ë²•ì  ìŸì  - Sullivan & Cromwell

Selected Topics – Specific Features of Public
Takeover Offers (1/3)
continued
Acquisition of Public Companies. After securing (or to secure) a major (or majority)
shareholding in listed target company, there are typically two possible structures
to approach shareholders of a public company:
- mandatory tender offer after closing of share purchase agreement for (some or all of) the shares currently
held by seller if shareholdings exceed 30% of (voting) shares of target, or
- voluntary public tender offer immediately after signing of share purchase agreement for (some or all of)
shares of seller in target with intent to acquire more than 30% of (voting) shares of target.
- Typically, choosing voluntary tender offer is preferable of these two structures.
- Note: Unsolicited/hostile bids are traditionally less common (legally entrenched interests of stakeholders
other than shareholders, management not shareholder dominance and a culture of consensus).
Acceptance Level. Ideally, takeovers of public companies in Germany are
coordinated upfront with both major shareholders and management of target.
- Goal is to achieve acceptance levels above 75% or even 95% of the shares.
- The 75% threshold is relevant under German corporate law for structural measures such as a merger or
implementation of a domination and profit transfer agreement, which is necessary to establish a fiscal unity
between acquirer and target for tax purposes.
- The 95% threshold is generally required for a squeeze-out of remaining minority shareholders.
- In recent times it has become difficult for bidder to achieve high acceptance levels of the past, in particular
due to hedge funds speculating on higher price to be paid to minority shareholders in squeeze-out or under
domination agreement. Even if bidder achieves shareholding above 75%, actions of minority shareholders
might still block major shareholder in consummating corporate transactions.
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