10.3 Third Party as a Source of Remuneration 357company’s securities are admitted to trading, without its being necessary to obtain the ap-
proval of the supervisory authorities of that Member State. Those authorities may require
the inclusion of additional information in the offer document only if such information is
specific to the market of a Member State or Member States on which the offeree company’s
securities are admitted to trading and relates to the formalities to be complied with to accept
the bid and to receive the consideration due at the close of the bid as well as to the tax ar-
rangements to which the consideration offered to the holders of the securities will be sub-
ject.”^123
Contents of the opinion of the board of the offeree company. The board of the of-
feree company will give an opinion of the bid and the reasons on which its opinion
is based. In the opinion, the board must give its views on: the effects of implemen-
tation of the bid on the company’s interests in general (and on employment in par-
ticular); the offeror’s strategic plans for the offeree company; and the likely reper-
cussions of the offeror’s strategic plans on employment and the locations of the
company’s places of business.^124
Fairness opinions. As said above, the Directive on takeover bids does not re-
quire the use of external fairness opinions. Fairness opinions are nevertheless
usual in takeovers.
Some external opinions are required in a company that issues shares – typically,
the offeror rather than the offeree – under other Company Law Directives and the
provisions of Member States’ national company laws implementing those Direc-
tives.^125 However, such statutory opinions are not regarded as “fairness opinions”
in market practice.
In many countries, the use of external fairness opinions is based on market
practice rather than law. It is a legal requirement in England. The City Code on
Takeovers and Mergers requires the board of the offeree company to appoint an
“independent adviser” and to make the independent adviser’s advice known to
shareholders.^126
Board members and managers have an incentive to use external fairness opin-
ions. External fairness opinions can signal that they have not acted negligently. In
addition, external fairness opinions can be used for marketing reasons to signal the
benefits of the offer.
Restrictions on the use of takeover defences. The Directive on takeover bids re-
stricts the use of takeover defences during the bid (without prohibiting them, see
sections 17.2 and 17.4).
Before the bid, the board can take defensive measures within the limits of na-
tional company law. The company must nevertheless disclose structural takeover
defences in its annual report.^127
(^123) Article 6(2) of Directive 2004/25/EC (Directive on takeover bids).
(^124) Article 9(5) of Directive 2004/25/EC (Directive on takeover bids).
(^125) See, in particular, Article 27 of Directive 77/91/EEC (Second Company Law Directive)
and Article 10 of Directive 78/855/EEC (Third Company Law Directive).
(^126) Rule 3.1 of the City Code on Takeovers and Mergers.
(^127) Article 10 of Directive 2004/25/EC (Directive on takeover bids).