Topic Company takeovers Company takeovers
Article from the Annual Report 2016 of the BaFin
Offer procedures
In 2016, BaFin checked a total of 22 offer documents (previous year: 19) and approved their publication in all cases (previous year: 18; see Figure 20 "Offer procedures").
Figure 20 Offer procedures
Offer procedures
Source: BaFin
Deutsche Börse takeover bid
The planned merger of Deutsche Börse AG (DBAG) and London Stock Exchange Group plc (LSEG) generated much public interest in 2016. On 16 March 2016, the Executive Board of Deutsche Börse AG, with the consent of the Supervisory Board, published its decision to submit a takeover bid for London Stock Exchange Group plc in accordance with the UK City Code on Takeovers and Mergers (UK Code). According to these plans, the merger was to be achieved through a new holding company (UK TopCo) domiciled in London. Under the planned arrangement, the shareholders of DBAG would have held an interest of approximately 54.4% and the shareholders of LSEG an interest of approximately 45.6% in the share capital of the future joint company, UK TopCo. The European Commission prohibited the proposed merger in March 2017 in accordance with the EU Merger Regulation.
Delisting offer procedure
New delisting rules
The new delisting rules in the modified section 39 of the Stock Exchange Act entered into force on 26 November 2015. Since then, issuers planning to delist their shares from the regulated market completely or to downlist them to the regulated unofficial market must submit a delisting compensation offer to the non-controlling shareholders in accordance with section 39 of the Stock Exchange Act in conjunction with the German Securities Acquisition and Takeover Act (Wertpapiererwerbs- und Übernahmegesetz). Unlike the already familiar acquisition offer in accordance with sections 10 et seq. of the Securities Acquisition and Takeover Act, securities are not eligible as consideration; instead, the delisting compensation offer must specify a cash amount in euros. What is more, the offer must not be made subject to any conditions. In addition, the minimum pricing provisions that are otherwise only mandatory for takeover bids and mandatory offers apply, subject to the proviso, among other factors, that they are based on a volume-weighted six-month average price. Moreover, the bidder has to ensure that the delisting will only take effect at the end of the acceptance period of the delisting compensation offer. Depending on the periods specified in the respective stock exchange rules and regulations, the delisting/downlisting application may therefore only have to be submitted at the end of the acceptance period.
At the end of November 2015, new delisting rules entered into force in the form of the modified section 39 of the German Stock Exchange Act (Börsengesetz) (see info box). In 2016, BaFin clarified initial questions about application.
There was an atypical delisting offer in the first half of 2016: the offer submitted by LSREF4 ARIA Beteiligungs GmbH & Co. KG to the shareholders of ISARIA Wohnbau AG. The bidder linked its takeover bid to a delisting compensation offer. In this context, BaFin clarified that a takeover bid or mandatory offer may be combined with a delisting compensation offer. Such a combined delisting offer must, however, meet the requirements of the delisting compensation offer, which are for the most part more stringent.
In the second half of 2016, there were three typical delisting compensation offers in each of which the issuer's major shareholder submitted an offer: the offers of Sachsenmilch Anlagen Holding GmbH to the shareholders of Sachsenmilch AG, of BDI Beteiligungs GmbH to the shareholders of BDI – BioEnergy International AG and of Amadeus Corporate Business AG to the shareholders of i:FAO Aktiengesellschaft.
In all the offers, the coordination between bidder and target company with regard to the offer procedure in accordance with the Securities Acquisition and Takeover Act and the delisting/downlisting application process at the respective stock exchange proceeded without any problems.
Exemption procedures
BaFin received 41 applications for exemption or non-consideration (previous year: 83). In 21 cases, holders of voting rights requested non-consideration of voting rights in accordance with section 36 of the Securities Acquisition and Takeover Act (previous year: 31), while the other 20 applications for exemption were applications for exemption from the publication requirement and from the obligation to submit an offer in accordance with section 37 of the Securities Acquisition and Takeover Act (previous year: 52). BaFin approved 65 applications. 6 applications were withdrawn and 12 were still being processed at the end of 2016.
