Securities Acquisition and Takeover Act
| Basic data | |
|---|---|
| Title: | Securities Acquisition and Takeover Act |
| Abbreviation: | WpÜG |
| Type: | Federal law |
| Scope: | Federal Republic of Germany |
| Legal matter: | Commercial law |
| References : | 4110-7 |
| Issued on: | December 20, 2001 ( BGBl. I p. 3822 ) |
| Entry into force on: | January 1, 2002 |
| Last change by: |
Art. 3 G of March 19, 2020 ( Federal Law Gazette I p. 529, 535 ) |
| Effective date of the last change: |
March 28, 2020 (Art. 13 G of March 19, 2020) |
| GESTA : | D046 |
| Please note the note on the applicable legal version. | |
The Securities Acquisition and Takeover Act (WpÜG) regulates public offers for the acquisition of shares in companies if the trading of the securities issued by the company is permitted on an organized market in Germany or - under certain conditions - in other countries of the European Union . The open market segment does not belong to the organized markets within the meaning of this law.
Systematics
Section 3 of the Act regulates public offers as a general case ( offers to purchase securities ); Section 4 deals with the additional provisions for offers aimed at acquiring control of the target company ( takeover offers ). Section 5 contains the additional provisions for mandatory offers; Finally, section 5a contains the provisions for the so-called squeeze-out under takeover law ( exclusion ) and the right to tender. The implementing ordinances issued for this law are also of particular importance .
Offers to purchase securities
The law determines the form and duration of an offer. The duration of the acceptance period is a minimum of four and a maximum of ten weeks. If the acceptance period for the takeover offer ends and a possibly specified minimum acceptance rate has been reached, the remaining shareholders who have not accepted the offer have two more weeks to decide in favor of the offer in accordance with Section 16 (2) WpÜG. This regulation is also known as the wren regulation , which is derived from the bird wren . This is considered a clever and cunning bird and symbolizes a shareholder sitting on the fence , who has the overview and two additional weeks to decide whether he wants to accept the offer or not (while other shareholders are already binding their shares to have). Offers to purchase securities are partial offers that are not designed to gain control.
Offers that are not aimed at gaining control can also be designed as partial offers; in the event of an excess tender, the assumptions of individual shareholders will be reduced proportionally in this case.
Takeover offer
control
“Control is the holding of at least 30 percent of the voting rights in the target company” ( Section 29 (2) WpÜG). The quota of 30% was chosen because this means that the majority of the voting rights represented in a general meeting is often achieved.
Provisions
Takeover bids are offers aimed at acquiring control ( section 29 (1) WpÜG). The takeover offer must contain an “appropriate consideration” ( Section 31 WpÜG in conjunction with Section 3 WpÜG Offer Ordinance) for the shares, whereby the minimum value specified in the WpÜG must not be fallen below. The equivalent usually consists of a cash payment or shares in your own company, i.e. a share swap .
Minimum value
The minimum value (minimum price in the takeover offer) is determined on the basis of the recent market price development. In the case of shares that are admitted to trading on a domestic stock exchange , the equivalent value according to Section 5 WpÜG regulation must at least correspond to the weighted domestic stock exchange price of these shares during the last three months prior to the publication of an offer. The weighting is based on the turnover of the transactions reported to the Federal Financial Supervisory Authority (BaFin) according to § 22 WpHG (the same applies according to § 6 WpÜG regulation for shares and securities that are only traded on foreign stock exchanges).
In the event that the buyer has paid a higher average price than the average price calculated above or was willing to pay within the last six months prior to the publication of the offer, the offer price must at least equal this price.
The following calculation example, shortened to five imaginary trading days, illustrates the principle of determining the minimum value.
| Day | course | Trading volume pieces | Price x trading vol. |
|---|---|---|---|
| 1 | 100 | 1,000 | 100,000 |
| 2 | 110 | 2,000 | 220,000 |
| 3 | 115 | 5,000 | 575,000 |
| 4th | 120 | 10,000 | 1,200,000 |
| 5 | 125 | 20,000 | 2,500,000 |
| to hum | 570 | 38,000 | 4,595,000 |
derived from this:
- unweighted average price: 114.00 (570: 5)
- sales-weighted average rate: 120.92 (4,595,000: 38,000)
The stock exchange price on the last trading day (= last trading day before the publication of the takeover offer ). is 125. The unweighted average price from all underlying trading days is 114. The turnover-weighted average price and thus the minimum price of a takeover offer is 120.92. This value is the minimum amount for a cash benefit per share or determines the subscription ratio for any stock swap that may be offered . If the offer is to be made exactly at the level of the minimum value and the market price of the bidder's share offered for exchange on the relevant cut-off date is, for example, 181.38, the exchange ratio is 3: 2, i.e. H. for every three shares in the company to which the exchange offer applies, the shareholder receives two shares in the bidding company (3 × 120.92 = 2 × 181.38).
Mandatory offer (§§ 35 ff. WpÜG)
Anyone who gains control over a target company within the meaning of Section 2 (3 ) WpÜG is subject to the obligations of Section 35 (1) and (2 ) WpÜG. The law refers to the person affected by the obligation to make an offer as a "bidder" ( Section 2 (4) WpÜG). Control is legally defined in Section 29 (2) WpÜG as holding at least 30% of the voting rights in the target company. This limit is based on regulations in other European countries and at the same time takes into account the average attendance at general meetings of German companies. The bidder's share of the voting rights in the target company consists of the voting rights held by the bidder himself and those voting rights that are attributed to the bidder in accordance with Section 30 WpÜG. Pursuant to Section 36 WpÜG and Section 20 WpÜG, voting rights upon request are not taken into account in the calculation of the voting rights share in certain cases. For other matters, the Federal Financial Supervisory Authority (BaFin) has the discretion to exempt the acquirer of control from his obligations under Section 35 WpÜG in spite of exceeding the control threshold ( Section 37 WpÜG in conjunction with Section 9 WpÜGAngebVO). The consideration that the latter has to offer is uniform for (voluntary) takeover offers and the mandatory offer in Section 31 WpÜG in conjunction with. § § 3 ff. Offer Regulation. Section 38 WpÜG standardizes the shareholders' claim to interest against the defaulting bidder. Finally, Section 39 WpÜG refers to the provisions of Sections 3 and 4, which also apply to mandatory offers.
If a bidder gains control of the company (at least 30% of the voting rights of the target company) due to a takeover offer, he does not meet the obligations according to Section 35 WpÜG (mandatory offer). This was the case at the end of 2010, for example, when the Spanish construction company ACS obtained a share of voting rights of more than 30% in the German construction company Hochtief with a takeover offer .
Exclusion of the other shareholders
If a bidder owns at least 95% of the company's voting share capital after a takeover or mandatory offer , the remaining voting shares are to be transferred to the bidder upon request in return for adequate compensation . The consideration granted in the context of the takeover and mandatory offer is to be regarded as appropriate if the bidder has acquired shares in the amount of 90% of the share capital affected by his offer ( section 39a WpÜG).
This means that if a bidder who, for example, holds exactly 30% of the voting share capital of a company, dutifully submits a takeover offer to the other shareholders, he can achieve 70% of the voting share capital with this offer. If he now acquires 63% (i.e. 90% of 70%) of the share capital on the basis of his offer, one of the two conditions is met, that this offer price can also be applied to the remaining share capital to exclude the other shareholders. However, since the bidder must also have fulfilled the condition of holding at least 95% of the share capital with voting rights in order to exercise this option, but in this example only holds 93% (30% + 63%), he can benefit from the provision of Section 39a WpÜG make no use.
If a bidder acquires more than 95% of the voting rights of the target company, the remaining existing shareholders have the right to accept the last offer within three months of the expiry of the acceptance period (right to tender ; Section 39c WpÜG).
Options for action
If a potential acquirer (the bidder) wants other shareholders to respond to his takeover offer (which is in the nature of things in the case of voluntary offers), he will submit an offer that is well above the minimum price, usually above the last stock exchange price, because the shareholders to whom the offer is addressed, otherwise the more advantageous for them sell at the current market price would choose also to further increases in stock prices speculate and could thus frustrate the intention of the Offeror to acquire control of the company.
If the offeror, who has to make a mandatory offer, is not interested in taking over further shares, i.e. if he is only fulfilling his obligation under the WpÜG, he will base his offer on the minimum price. This constellation existed, for example, in March 2007 when Porsche , after the company had increased its stake in VW to more than 30% through acquisitions, made the other VW shareholders a mandatory offer in the amount of the minimum price, which was around 15% below the previous price Stock market price was. Nevertheless, even in such a case, the bidder cannot avoid securing the financing of the takeover of further shares, as he cannot know whether his offer will lead to a sharp decline in the price and thus the acceptance of the takeover offer, which appears low at the beginning of the acceptance period, is contrary to Expectations and goals of the bidder for other shareholders during the acceptance period can become economically advantageous. This case can occur, for example, if a speculative bubble that has arisen in the run-up to the takeover offer dissolves.
Literature (selection)
- Theodor Baums, Georg F. Thoma (Ed.): WpÜG Commentary on the Securities Acquisition and Takeover Act. 3rd edition 11/2008, ISBN 978-3-8145-8100-2 .
- Wilhelm Haarmann, Matthias Schüppen (Ed.): Frankfurt Commentary on the WpÜG. 3. Edition. Verlag Recht und Wirtschaft, 2008, ISBN 978-3-8005-1457-1 .
- Ulrich Ehricke, Jens Ekkenga , Jürgen Oechsler: Securities Acquisition and Takeover Act. Comment. 2003, ISBN 3-406-51199-6 .
- Christoph Faden: The mandatory offer under the Securities Acquisition and Takeover Act (WpÜG). Cuvillier Verlag, Göttingen 2008, ISBN 978-3-86727-511-8 .
- Stephan Geibel, Rainer Süßmann (Ed.): Securities Acquisition and Takeover Act (WpÜG). Comment. 2002, ISBN 3-406-48838-2 .
- Heribert Hirte, Christoph von Bülow: Cologne Commentary on the WpÜG. Comment. 2nd Edition. 2010, ISBN 978-3-452-27045-0 .
- Arne Kießling: The squeeze-out under takeover law pursuant to Sections 39a, 39b WpÜG. Verlag Peter Lang, 2008, ISBN 978-3-631-58490-3 .
- H. Wirtz: The Takeover of Listed Stock Companies - An Economic Analysis of the Securities Acquisition and Takeover Act. Monsenstein and Vannerdat publishing house , Münster 2004, ISBN 3-937312-39-0 .
See also
Individual evidence
- ↑ Deutsche Börse Group: FAQ catalog for Open Market / Entry Standard (on the Internet DBAG). P. 5 ( PDF; 283 KB Accessed September 21, 2015).
- ^ Ordinances on the WpÜG
- ↑ Christoph Faden: The mandatory offer according to the Securities Acquisition and Takeover Act (WpÜG) . 2008, p. 5 f.
