TAKEOVERS IN ENGLISH AND GERMAN LAW potx

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TAKEOVERS IN ENGLISH AND GERMAN LAW00 Prelims 1037 3/10/02 2:37 pm Page i00 Prelims 1037 3/10/02 2:37 pm Page iiTakeovers in English andGerman LawEdited byJENNIFER PAYNETravers Smith Braithwaite lecturer in Corporate Finance law,University of Oxford and Fellow of Merton CollegeHART PUBLISHINGOXFORD AND PORTLAND, OREGON200200 Prelims 1037 3/10/02 2:37 pm Page iiiHart PublishingOxford and Portland, OregonPublished in North America (US and Canada) byHart Publishingc/o International Specialized Book Services5804 NE Hassalo StreetPortland, Oregon97213-3644USADistributed in Netherlands, Belgium and Luxembourg byIntersentia, Churchillaan 108B2900 SchotenAntwerpenBelgium© The contributors severally 2002The contributors severally have asserted their right under the Copyright,Designs and Patents Act 1988, to be identified as the authors of this work.Hart Publishing is a specialist legal publisher based in Oxford, England. To order further copies of this book or to request a list of other publications please write to:Hart Publishing, Salters Boatyard, Folly Bridge, Abingdon Rd, Oxford, OX1 4LBTelephone: ϩ44(0)1865 245533 Fax: ϩ44(0)1865 794882email: mail@hartpub.co.ukWEBSITE: http//:www.hartpub.co.ukBritish Library Cataloguing in Publication DataData AvailableISBN 1–84113–340–X (hardback)Typeset by J&L Composition, Filey, North YorkshirePrinted and bound in Great Britain byT J International, Padstow, Cornwall.00 Prelims 1037 3/10/02 2:37 pm Page ivTable of ContentsForeword ixROY GOODE1 Introduction 1JENNIFER PAYNE2 The Notion of Equality in European Takeover Regulation 9PAUL L DAVIESI The Potential Scope of Equality Rules in Takeover Regulation 9II Rationales for Equality Rules 131 Undistorted Choice 142 Protection of Those Not Close to the Market 183 Protection of Non-Controlling Shareholders 20III Conclusion 303 Takeovers, Secrecy and Conflicts of Interest: Problems for Boardsand Banks 33KLAUS J HOPTI The German Draft Act on Public Securities Offers and Takeoversof 11 July 2001 331 General Observation on the New Rules of the Draft TakeoverAct and on their Relation to German Law of Groups ofCompanies 332 Special Problems concerning Secrecy and Conflicts of Interest 37II Secrecy and Disclosure 381 Secrecy Before an Offer 382 Instant Disclosure of Takeover Plans 393 Mandatory Disclosure of Shareholdings 454 Selected Problems of Information and Liability of the Offeror and the Offeree 465 White Knights, Inside Information and Due Diligence 48III Conflicts of Interest of Boards and Banks 501 Board Responsibility Beyond Shareholders’ Interests UnderGeneral Company Law 502 Inducement Fees, Views of the Board and Conflicts of Interest 523 Conflicts of Interest of Banks in Takeovers: A Special Problemfor Continental European All-Purpose Banks 5400 Prelims 1037 3/10/02 2:37 pm Page v4 Possible Solutions: Preventing Future Conflicts or SolvingPresent Conflicts 565 Rule of Law and Self-Regulation: Differences in History,Corporate Governance and Financial Culture Between theUK and Germany 58IV Summary 604 Regulatory Structures: The Relationship Between the Takeover Panel,the FSA and the Courts 65PATRICK DRAYTONI Introduction 65II Legislative Changes 66III Market Abuse 671 The Substantive Overlap with Takeover Regulation 672 The FSA’s Powers 683 Safe Harbours 694 FSA’s Policies 705 Practical Implications 725 Regulatory Structures 75THORSTEN PÖTZSCHI Introduction 75II A Brief Look at the Economic Situation 76III Prior Takeover Regulation in Germany: The ‘Soft Law’ Approach 76IV Key Points of the Government Draft on Takeovers 781 General Aim 782 Scope of Application 793 General Principles 794 Timetable 805 The Offer Document 806 Consideration 817 Mandatory Bid 818 ‘Cooling Off’ Period 829 Duties of the Target’s Management 8210 Sanctions 8411 Supervisory Authority 8412 Relationship Between the Supervisory Authority and the Courts 8513 Ensuring Flexibility of the Regulations with the Use ofOrdinances 86V Outlook 86vi Table of Contents00 Prelims 1037 3/10/02 2:37 pm Page vi6 Defence Tactics 87WILLIAM UNDERHILL AND ANDREAS AUSTMANNI Introduction 871 Hostile Takeovers in the UK 872 Hostile Takeovers in Germany 87II Legal and Regulatory Framework 901 Legal and Regulatory Framework in the UK 902 Legal and Regulatory Framework in Germany 94III Defence Tactics—Before the Bid 981 Staggered Board 982 Board Designation Rights 993 Shark Repellents, Maximum Voting Rights and EnhancedVoting Rights 1004 Cross Shareholdings 1025 Restrictions on Share Transfers 1036 Poison Pills 104IV Defence Tactics—After the Bid 1061 Sale of ‘Crown Jewels’ 1062 Significant Acquisition 1073 Pacman 1084 Recapitalisation 1095 Standstill Agreements 1106 Golden Parachutes 1117 White Squire 1128 White Knight 1149 Anti-trust 11610 Litigation 11711 ‘Winning the Argument’ 118V Conclusion 1217 Legal Issues On Cross-Border Mergers between UK Companies andGerman Companies 123ULRICH BLECH AND ROBERT STERNI Introduction 123II UK Holding Company Structure 1241 German Implications of UK Holding Company Structure 1242 UK Implications of UK Holding Company Structure 128III German Holding Company Structure 1301 UK Implications of German Holding Company Structure 1312 German Implications of German Holding Company Structure 134IV Index Considerations 137Table of Contents vii00 Prelims 1037 3/10/02 2:37 pm Page viiV Summary of the Advantages/Disadvantages of Various SingleHolding Company Structures 138VI Dual-Headed Structures 1411 Introduction 1412 The Joint Venture Structure 1413 The Parallel Structure 1454 Combining Joint Venture and Parallel Structures 1485 Further Tax Considerations Relevant to Dual-Headed Structures 1496 The Discount Problem 150VII Conclusions 150Appendix 1 The German Takeover Act 153Appendix 2 A New Takeover Regime for Germany: German Acton Acquisition of Securities and Takeovers 173viii Table of Contents00 Prelims 1037 3/10/02 2:37 pm Page viiiForewordThis volume represents the collected and edited papers of the second biennialOxford Anglo-German law conference held at St. John’s College, Oxford, on13–15 September 2001. The conference series, jointly organised by leadingGerman and English law firms and the Oxford University Law Faculty andhosted by Oxford, was the brainchild of Nikolas Tarling, and its purpose is toprovide a congenial forum for discussion of key issues in fields of mutual inter-est by comparisons and contrasts between English and German law in the con-text of international and European Community developments. The 2001conference was attended by some 32 delegates and, as in 1999, was marked bya combination of intense work and convivial gatherings, the highlights being adinner at Pembroke College, where we were warmly welcomed by the newMaster, Giles Henderson, who by a happy coincidence was the previous man-aging partner of Slaughter and May and a dinner at Worcester College, whoseVice-Provost, Professor James Campbell, gave a witty account of the history ofthe college. The first volume in the series, Joint Ventures in English and German Law,edited by Dr Eva Michaeler and Professor Dan Prentice, was highly regarded,and I have no doubt that the same warm welcome will be extended to this newvolume, skilfully collated and edited by Jennifer Payne. The subject of takeoversis of great topicality and importance. It was ironic that shortly before the con-ference the proposed EC Takeover Directive failed to be adopted by the nar-rowest of margins—273 votes for, 273 against!—but it is now being revisedand this will allow appropriate account to be taken of the various commentsmade on the earlier text by the conference speakers. In England the takeoverscene has been significantly affected by the regulatory regime introduced by theFinancial Services and Markets Act 2000, with an all-powerful FinancialServices Authority as the universal regulator, and the Human Rights Act 1998,which is beginning to have a pervasive effect on both the substance and the pro-cedure of regulation in a variety of forms. In Germany the Wertpapiererwerbs-und Übernahmegeset (WpÜG), the Act on Acquisition of Securities andTakeovers, came into force on 1 January 2002. The text is contained inAppendix 1 and a commentary will be found in Appendix 2.The nine contributors to Takeovers in English and German Law have com-bined analytical rigour with a profound practical knowledge of takeovers andcross-border mergers. This book is therefore informative not merely on the lawbut also on such practical issues as the management of conflicts of interest anddefence tactics to a hostile takeover.00 Prelims 1037 3/10/02 2:37 pm Page ixMy first pleasurable task is to express the warm appreciation of the OxfordLaw Faculty to Hengeller Mueller and Slaughter and May for their financialcontribution to the conference. This helps to provide the resources needed toenhance the study of German law in Oxford, which has expanded significantlyin recent years with the strong support of the German government and of gen-erous private benefactors. I should also like to thank Nick Tarling, who servedas Conference Director, and to the steering group members of the two firms,Ulrich Blech of Hengeler Mueller and George Goulding of Slaughter and May.Especial words of appreciation are due to Slaughter and May’s conferenceorganiser, Alison Hahn, who with the assistance of her colleagues Louise Stokerand Frances Jamieson, organised the 2001 conference with wonderful efficiency,supported at the Oxford end by Alison Beech, Domestic Manager of St. John’sCollege, other college staff, Arianna Pretto of Brasenose College and my ownhardworking secretary, Pat Dibb. Finally, we are grateful to Richard Hart ofHart Publishing, who published the first volume, for undertaking the publica-tion of this attractively produced second book in the series, which should berequired reading for all those who are involved or interested in takeovers.Oxford Law Faculty ROY GOODE20 August 2002.x Foreword00 Prelims 1037 3/10/02 2:37 pm Page x[...]... 1 Introduction JENNIFER PAYNE* T HIS BOOK ORIGINATED at a conference held in St John’s College, Oxford in September 2001 Takeovers are a topic of interest to lawyers, investment bankers and their corporate clients alike It is a topic which has recently taken on a new dimension in Europe and the timing of this conference, investigating the similarities and differences in the approaches adopted in English. .. Meanwhile, in England, difficulties have been raised for the existing structure of takeover regulation both by the potential impact of the Human Rights Act 1998 and by the impact of the Financial Services and Markets Act 2000 (FSMA) These are therefore interesting times for those concerned with takeovers, particularly in England and Germany The conference in Oxford proved an invaluable forum for discussing... 3/10/02 2:38 pm Page 3 Introduction 3 issue to be dealt with under general insider dealing principles rather than adopting takeover-specific rules This does not seem ideal, and Klaus Hopt points out the obvious conflict between insider dealing regulations and takeover law which can arise, arguing that the presently ambiguous situation surrounding the passing on of information in the context of a takeover... takeover law is an intensely practical topic and no review of English and German law on this topic would be complete without an analysis of some of the principal legal issues which arise in relation to takeovers involving listed companies in the two jurisdictions Ulrich Blech and Robert Stern undertake such an analysis, concentrating their attention on share-for-share offers They first consider ‘single-headed... are at risk in a takeover, and directors have an incentive to oppose takeovers which are beneficial from the shareholders’ point of view The approach in both England and Germany is to side-line the board in a bid process As William Underhill and Andreas Austmann’s detailed survey of defence tactics in both jurisdictions makes clear, there is little scope for the target’s management to engage in technical... requires an effective Chinese wall to be put in place and at present English law on this point is unclear, particularly in relation to single departments within a firm The Bolkiah decision suggests that Chinese 3 4 5 6 7 8 German Securities Trading Act (WpHG), s 15 Takeover Act, s 10 [1999] 1 All ER 517 [1999] 3 All ER 524 CP 57 paras 7.6–7.11 and CP 59 para 6.37 See Financial Services and Markets Act 2000,... from a supportive standpoint, see M Lipton and P Rowe, ‘Pills, Polls and Professors: A Reply to Professor Gilson’ New York University Center for Law and Business, Working Paper #CLB-01-006, 2001, available from 5 See n 11 below 6 Panel on Takeovers and Mergers, City Code on Takeovers and Mergers, 7th edn., May 2002 (hereafter ‘City Code’) General Principle 7 and rule 21 7 Since the non-frustration... reason, it is not surprising to observe that the mandatory bid rule goes hand -in- hand with controls over partial bids: indeed, to maintain a mandatory bid rule, whilst permitting offerors freely to launch partial bids, would be incoherent.52 A partial bid may be preferable to permitting the building up of a controlling stake through market purchases because it is more likely to involve equal treatment... could still be problems in practice In particular the Panel and the FSA are likely to seek to ensure that their decisions are secure in the face of potential legal challenge, and in the case of the FSA this will include any decision on its part not to intervene in a Panel decision The speed of decision-making in takeovers is likely to deteriorate as a 9 10 R v Panel on Takeovers and Mergers ex p Datafin... various changes on takeover law in the two jurisdictions This book, which has arisen directly out of the papers and discussions at that conference, demonstrates what a lot there is to be learned by comparing and contrasting the two systems * Travers Smith Braithwaite lecturer in Corporate Finance law, University of Oxford and fellow of Merton College 1 Common Standpoint, interinstitutional dossier 1995/0341 . TAKEOVERS IN ENGLISH AND GERMAN LAW 00 Prelims 1037 3/10/02 2:37 pm Page i00 Prelims 1037 3/10/02 2:37 pm Page ii Takeovers in English and German Law Edited. jointly organised by leading German and English law firms and the Oxford University Law Faculty and hosted by Oxford, was the brainchild of Nikolas Tarling,
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