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

Selected Topics – Specific Features of Public
Takeover Offers (2/3)
continued
No cash merger. German law does not allow for second-step cash merger, (reverse)
triangular merger or similar means to convert shares of existing shareholders into
other interest or payment claims in takeover situation.
Form and amount of consideration. Cash, shares or mix of both, whereby German
bidders offer mostly cash only consideration. Foreign bidders are more likely to opt
for shares or mix of cash and shares.
Bid Price. Bid price of voluntary and mandatory tender offers has to comply with
following rules:
- In absence of other floor (see below): at least average weighted stock exchange price during the three
month period preceding announcement of the decision to make a takeover bid.
- The highest price paid by bidder for target shares in the last six months preceding publication of offer
document.
- Note: automatic increase of offer if bidder buys shares in the one year period after finalization of bid outside
stock exchange for price higher than offer price.
- Conditions. Bids may only be made subject to conditions that are beyond the bidder‘s control (e.g., merger
clearance, acceptance level), no financing or maximum acquisition quota conditions are permissible.
- Financing/Financing Confirmation.
- Before publishing offer document, bidder must take all measures required to ensure that sufficient means
(cash or shares) are available when due. The bank confirming the availability of sufficient consideration
may be held liable if bidder is then unable to pay for shares obtained under offer.
- Financing confirmations for public takeover offers for German companies generally need to cover 100% of
the shares outstanding, however, now exceptions in case of certain non-tender commitments available (e.g.,
ENBW, Audi)
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