Under section 5 (1) of the WpÜG Offer Ordinance, the consideration offered in voluntary takeover bids and mandatory offers must be at least equal to the volume-weighted average stock exchange price in Germany of the shares the offeror intends to acquire during the last three months prior to the publication of the decision to make an offer or the publication of the attainment of control. This period is extended to six months in the case of delisting offers (see also section 39 (3) of the BörsG).

BaFin calculates this minimum price in accordance with the provisions of section 5 (3) of the WpÜG Offer Ordinance on the basis of transaction data reported or transmitted to BaFin pursuant to article 26 of MiFIR or by a central counterparty pursuant to section 22 (3) of the WpHG as on-exchange transactions. Each transaction is weighted according to its volume (units * price) relative to the total number of units across all transactions, such that a large transaction (measured by volume) has more influence than a smaller transaction. The minimum price is calculated as volume (sum of units * price of all relevant transactions) divided by the number of units of all relevant transactions.

The calculation includes all transactions of a share that have taken place on the regulated market of a German stock exchange in the three or six months prior to the publication of a decision to make an offer or the attainment of control.

The date used for the calculation of a minimum price is the day prior to the day of the publication of the decision to make an offer or the attainment of control.

Example: in the case of a publication on 8 December 2023 the minimum price shown in the database for the reference date of 7 December 2023 is the relevant price for the calculation of the minimum value of the consideration in accordance with section 5 of the WpÜG Offer Ordinance. The relevant three-month period runs from 8 September until 7 December 2023. The relevant six-month period runs from 8 June until 7 December 2023.

The period for the calculation of a minimum price may be shorter than the required three or six months if the shares the offeror intends to acquire have not yet been admitted to trading on an organised market for the respective three or six months. In this case, pursuant to section 5 (2) of the WpÜG Offer Ordinance, the value of the consideration must be at least equal to the weighted average stock exchange price of those shares since the date the shares were admitted to trading.

If the number of transactions used to calculate the minimum price is not sufficient, a minimum price might not be calculated for the relevant share under certain narrowly defined legal conditions. Under section 5 (4) of the WpÜG Offer Ordinance, this may be the case if stock exchange prices for the shares in the target company were fixed on less than one third of all trading days in the calculation period and if the stock exchange prices fixed on a number of successive occasions differ from one another by more than five percent.

Pursuant to section 7 of the WpÜG Offer Ordinance the described calculation method is also used if the consideration offered by the offeror consists of shares (exchange offer). The minimum price of the shares offered as consideration may also be disclosed if those shares are admitted to trading on an organised market in Germany. Taking into consideration the exchange ratio, the two minimum prices can be compared.

Request for minimum prices

If a publication either under section 10 of the WpÜG (decision to launch a takeover bid or make a delisting offer) or section 35 of the WpÜG (attainment of control) has been made, the offeror may submit a request to BaFin (including a power of attorney) via the specialised procedure “Company Takeovers (WpÜG)” on the MVP Portal for the minimum price.

Important notice:
A waiting period of seven days applies before the offeror can be notified of the minimum price. The minimum price will be released to the offeror only at the end of this period.

The prices are the minimum prices that the offeror must offer under any circumstances. The actual consideration to be offered may be higher than that stated by BaFin if the offeror has acquired securities for a higher price from a third party prior to the offer (so called earlier acquisition pursuant to section 4 of the WpÜG Offer Ordinance).