260 5 Equity and Shareholders’ Capital
triggered where that threshold has been exceeded following the bid.^628 Those provisions
may again be complemented by articles of association.
According to the statutory rules, the minimum price payable by the majority shareholder
is in both cases the “fair price”. Where the threshold has been exceeded following a manda-
tory bid, the consideration offered in the bid shall be presumed to be fair. Where the thresh-
old has been exceeded following a voluntary bid, the consideration offered in the bid shall
be presumed to be fair where, through acceptance of the bid, the offeror has acquired secu-
rities representing not less than 90% of the capital carrying voting rights comprised in the
bid.
Where the target is a listed company, the offeror can thus mitigate legal risk by making
it a condition of the share exchange offer that the offeror obtains a sufficient percentage of
the capital carrying voting rights.
5.11.6 Share Exchanges and Securities Markets Law
If one of the participating companies is a listed company, parties to the merger or
share exchange must comply with the provisions of EU securities markets law.
Their application to share exchanges can be illustrated by the 2007 Eurotunnel
case. The Eurotunnel case is very complicated and includes even a restructuring
process. However, it is interesting, because it gives an opportunity to compare
French and English law and to understand the common core of rules based on
Community law.
The Eurotunnel case. In early 2007, Eurotunnel was an enterprise with two
holding companies, Eurotunnel plc, an English company, and Eurotunnel SA, a
French company. “Eurotunnel Units” comprising one share of Eurotunnel plc and
one share of Eurotunnel SA were admitted to listing on the London Stock Ex-
change and Euronext, the Paris stock exchange.
On 15 January 2007, the Paris Commercial Court approved the restructuring of
Eurotunnel. As part of the restructuring, Eurotunnel was to get a new group hold-
ing company, Groupe Eurotunnel SA (GET SA). GET SA would own all shares in
Eurotunnel Group UK plc. The latter would function as a holding company in
England.
The implementation of the restructuring meant: the listing in Paris and London
of the shares in GET SA; the issue of hybrid Notes Redeemable in Shares (NRS)
by Eurotunnel Group UK plc; and the launch of an Exchange Tender Offer (ETO)
by GET SA for the shares in Eurotunnel SA and Eurotunnel plc.
GET SA was thus to launch an exchange tender offer for the shares in Eurotun-
nel SA and Eurotunnel plc.
Jurisdiction. There was a question of dual jurisdiction. Dual jurisdiction was
caused by the structure of Eurotunnel and the transaction: the shares of Eurotunnel
SA were admitted to trading on Eurolist by Euronext Paris; the shares of Eurotun-
nel plc were admitted to trading on the London Stock Exchange; the offer covered
Units consisting of shares in both companies; one offeror and issuer (GET SA)
(^628) Article 15(1) of Directive 2004/25/EC (Directive on takeover bids).