5.11 Shares as a Means of Payment 277nominal value or, where there is no nominal value, the accountable par and, where
appropriate, to the premium on the shares to be issued for such consideration; (d) a
statement that no new qualifying circumstances with regard to the original valua-
tion have occurred.”^708
The Directive on takeover bids does not require the publication of external fair-
ness opinions or independent advice in the context of share exchange offers. The
Directive on takeover bids only requires the publication of an offer document
which reflects the opinion of the offeror’s board,^709 and the opinion of the of-
feree’s board.^710
However, such a requirement can be based on the rules applicable in a Member
State.^711 In some countries the publication of fairness opinions or independent ad-
vice is mandatory.
For example in England, Rule 3 of the City Code on Takeovers and Mergers (Takeover
Code) requires the board of the offeree company to obtain “competent independent advice”
on any offer and to make the substance of such advice known to the company’s sharehold-
ers (Rule 3.1). Sometimes the board of the offeror company has a similar duty (Rule 3.2).
In France, Chapters I and II of Title VI (Book II) of the General Regulation of the Autorité
des marches financiers (AMF) provides for independent appraisers and appraisals.
In many countries, external fairness opinions or the publication of independent
advice may be part of commercial practice, a way to signal the benefits of the
board’s proposal to shareholders, and a way to mitigate the personal liability of
board members.
Requirements as to the substance of the opinion or independent advice can re-
flect the choice of principal and agent in the legal framework. (a) In England, “ad-
vice should be as to whether or not the making of the offer is in the interests of the
company’s shareholders”.^712 Shareholders are thus regarded as the principal and
the board is regarded as their agent. This raises two problems. The first problem is
that real shareholders have different interests, their real interests may conflict with
those of the firm, and fictive shareholders do not exist. The second problem is that
the most important principal of the board of a limited-liability company should be
the firm itself (see Volume I and section 17.2). (b) The Directive on takeover bids
nevertheless requires that “the board of an offeree company must act in the inter-
ests of the company as a whole”.^713 A real shareholder may or may not benefit
from decisions that are in the interests of the company as a whole. Whether fictive
shareholders benefit from those decisions depends on what interests they are sup-
posed to have. In any case, as shareholders are free to sell their shares, the firm re-
(^708) Article 10b(1) of Directive 77/91/EEC (Second Company Law Directive), inserted by
Article 1(2) of Directive 2006/68/EC.
(^709) Article 6(2) of Directive 2004/25/EC (Directive on takeover bids).
(^710) Article 9(5) of Directive 2004/25/EC (Directive on takeover bids).
(^711) Article 3(2) of Directive 2004/25/EC (Directive on takeover bids).
(^712) City Code on Takeovers and Mergers, Notes on Rule 3.2.
(^713) Article 3(1)(c) of Directive 2004/25/EC (Directive on takeover bids).