Takeovers are among the most complex legal transactions, requiring a lot of human and financial resources and coordination between the parties to be successfully completed. Due to the specific nature of the sale of shares or securities of a company, the bidding offer must also be interpreted in the context of the interests and needs of both the seller and the buyer. In examining a takeover bid, it is thus possible to see a contrast between the statutory binding nature of the buyer’s commitment to the offer and, consequently, its obligation to conclude a sales contract with the content as set out in the offer, and the practices and mechanisms that buyers as commercial entities use in the course of the takeover procedure to limit as far as possible their commitment to remain bound by the offer. Taking into account the main differences between the takeover of a public or a private company, it can be noted that there are many statutory mechanisms which weaken the binding nature of the offer, and the contractual freedom of the parties has led to the introduction of various clauses as integral components of the offer which completely eliminate the binding nature of the offer. The binding effect of a takeover bid for the securities of a publicly listed company is thus already limited by legal institutions such as the takeover threshold, amendment of the takeover bid, the expiry date of the offer, withdrawal of the offer, the absence of an obligation to enter into a contract, and the conduct of the other participants in the takeover procedure (sectoral regulators and accepting parties). In the case of a takeover bid for the securities of a private company, the acquirer's commitment to it depends primarily on the exercise of the contractual freedom of the parties, in accordance with the principle of the dispositive nature of civil law. The acquirer may make a purely non-binding offer, include conditions in the offer which either postpone its entry into force or, if fulfilled, terminate its commitment, withdraw the offer, exercise a pre-determined right of withdrawal and/or pay a break fee, fix a period of validity for the offer until the expiry of which it feels bound by the offer, and so forth. In this context, the specific nature of the takeover procedure is also relevant, since, due to the separation of the signing and closing phases of the transaction, the acquirer is not obliged to execute the takeover under the statutory or contractually agreed conditions, notwithstanding the possible acceptance of an otherwise binding offer by the seller.
|
