360 10 Exit of Shareholders
First, the Directive lays down general rules on the disclosure of information, on
equivalent treatment, and on board duties during a public takeover bid.
Second, minority shareholders have a sell-out right following a public takeover
bid provided that the ownership of the bidder has exceeded the threshold of 90%-
95%.
Third, the Directive provides for a duty to make a mandatory bid where the
holdings of a shareholder exceed a certain threshold other than following a public
takeover bid. The requirements under the Directive on takeover bids are minimum
requirements and Member States may lay down more stringent rules and addi-
tional conditions.^140
Duty to make a bid. The duty to make a mandatory bid is triggered when a cer-
tain threshold is exceeded, but the Directive is silent on the threshold. The thresh-
old is a percentage of voting rights which confers control. The threshold and the
method of its calculation are determined by the rules of the Member State in
which the company has its registered office.^141
In any case, the percentage of the voting rights of the offeror will be combined
with the voting rights of “persons acting in concert” (section 19.9).^142 “Persons
acting in concert” mean “natural or legal persons who cooperate with the offeror
... on the basis of an agreement, either express or tacit, either oral or written,
aimed ... at acquiring control of the offeree company ...”^143 The minimum equita-
ble price payable by the offeror is increased by the price paid by persons acting in
concert.^144
Notes on Rule 9.1 of the City Code on Takeovers and Mergers contain detailed guidance on
the meaning of acting in concert. In Germany, such rules can be found in § 30(2) WpÜG.^145
There is no retroactivity for old shareholdings. Recital 10 of the Directive states:
“The obligation to make a bid to all the holders of securities should not apply to
those controlling holdings already in existence on the date on which the national
legislation transposing this Directive enters into force.”
For example, Volkswagen acquired shares corresponding to 34% of the voting rights in
Scania in 2000. When the mandatory bid threshold was introduced in the Swedish Takeover
Act on 1 July 2006, VW could represent 34% of the votes at the general meeting of Scania.
The Takeover Act exempted any shareholder holding 30% or more of the votes on 1 July
2006 from the mandatory bid rule. In 2008, Volkswagen increased its holdings to 68.6% of
(^140) Article 3(2) and recital 25 of Directive 2004/25/EC (Directive on takeover bids).
(^141) Articles 5(1) and 5(3) of Directive 2004/25/EC (Directive on takeover bids).
(^142) Article 5(1) of Directive 2004/25/EC (Directive on takeover bids).
(^143) Article 2(1)(d) of Directive 2004/25/EC (Directive on takeover bids).
(^144) Article 5(4) of Directive 2004/25/EC (Directive on takeover bids).
(^145) For Swiss law, see Art. 27 BEHV-EBK (Börsenverordnung-EBK, Verordnung der
Eidgenössischen Bankenkommission über die Börsen und den Effektenhandel). For
Austrian law, see § 1 number 6 ÜbG (Übernahmegesetz). See also Fleischer H, Finanz-
investoren im ordnungspolitischen Gesamtgefüge von Aktien-, Bankaufsichts- und
Kapitalmarktrecht, ZGR 2008 pp 198–199.