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

Joint Aspects – Regulatory Restrictions for M&A
Transactions (2/2)
Important points with respect to the Act and the related Foreign Trade and
Payments Regulation (“Regulation”)
- No notification obligation for the investor/bidder.
- Ministry may only initiate formal review of transaction and require information from the parties within
three months after
▶ signing of the transaction, publication of a takeover offer or the publication of the acquisition of voting
rights.
- Acquisition may be prohibited or made subject to specific orders within two months following
submission of complete documentation in the formal review process.
- During review process, any binding agreement (e.g., SPA) between the parties is subject to a
(statutory) condition subsequent. The transfer of shares as such will, however, not be legally void.
- Investor can obtain legally binding certificate of non-objection from the Ministry prior to the
acquisition.
Background/Practical impact
- The Act and the Regulation were amended in 2009 and became significantly broader in scope (i.e.,
not limited to any specific industry sectors).
- Whereas the impact of this new legislation and its message to foreign investors was subject to
intensive debate, the practical consequences have been limited:
▶ To date, no prohibitions have been issued with respect to foreign investments in Germany under the
(amended) Act. (e.g., German government publicly expressed no concerns for Norddeutscher Lloyd
purchasing Hapag-Lloyd)
▶ Very few formal review proceedings have been initiated.
▶ The number of applications for non-objection certificates has been limited
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