9. Takeover bids ***II
A5-0368/2000
European Parliament legislative resolution on the Council common position for adopting a direc-
tive of the European Parliament and of the Council on company law concerning takeover bids
(8129/1/2000 )dash C5-0327/2000 )dash 1995/0341(COD))
(Codecision procedure: second reading)
TheEuropeanParliament,
kdash having regard to the Council common position (8129/1/2000 kdash C5-0327/2000),kdash having regard to its position at first reading(
1) on the Commission proposal to Parliament and the
Council (COM(1995) 655)(2),
kdash having regard to the Commission’s amended proposal (COM(1997) 565)(3),
kdash having regard to Article 251(2) of the EC Treaty,
kdash having regard to Rule 80 of its Rules of Procedure,kdash having regard to the recommendation for second reading of the Committee on Legal Affairs and the
Internal Market (A5-0368/2000),
1. Amends the common position as follows;
2. Instructs its President to forward its position to the Council and Commission.
COUNCIL
COMMON POSITIONAMENDMENTS
BY PARLIAMENT
(Amendment 1)
Recital5
(5) Member States should take the necessary steps in order to
protect holders of securities having minorityholdings after the
acquisition of control of their company. Such protectionshould be ensured by obliging the person who acquired controlof a company to make a bid to all holders of securities for allof their holdings. Itshouldbeallowed,duringatransitionalperiod,
to ensure this protection through other appropriate and at-least-equivalent means on condition that these means are specific to thetransferofcontrolandincludespecificfinancialcompensationfortheminorityshareholders.MemberStatesmay,inadditiontotheprotec-tionprovidedforbyamandatorybidorotherequivalentmeans,pro-videforfurtherinstrumentsaimedattheprotectionoftheinterestsofholdersofsecurities.(5) Member States should take the necessary steps in order to
protect holders of securities having holdings after the acquisi-
tion of control of their company. Such protection should beensured by obliging the person who acquired control of a com-pany to make a bid to all holders of securities for all of theirholdings.
(1) OJ C 222, 21.7.1997, p. 20.
(2) OJ C 162, 6.6.1995, p. 5.
(3) OJ C 378, 13.12.1997, p. 10.C 232/168 EN 17.8.2001 Official Journal of the European Communities
Wednesday 13 December 2000
(Amendment 2)
Article2(a)
(a) ‘takeover bid’ and ‘bid’ mean apublicoffer (other than by
the offeree company itself) made to the holders of thesecurities of a company to acquire all or part of such secu-rities. A bidmaybeeithermandatoryorvoluntary,and must
followorhave as its objective the acquisition of control;(a) ‘takeover bid’ and ‘bid’ mean anoffer (other than by the
offeree company itself) made to the holders of the securi-ties of a company to acquire all or part of such securities.A bid must have as its objective the acquisition of control;
(Amendment 3)
Article2(e)
(e) ‘securities’ means transferable securities carrying voting
rights in a company;(e) ‘securities’ means transferable securities carrying voting
rights in a company or which may carry such rights as
a consequence of their being exercised or converted ;
(Amendment 4)
Article3(1)(b)
(b) holders of securities of an offeree company are to have
sufficient time and information to enable them to reach aproperly informed decision on the bid;(b) holders of securities of an offeree company and its
employees or their representatives are to have sufficient
time and information to enable them to reach a properlyinformed decision on the bid;
(Amendment 5)
Article3(1)(c)
(c) the board of an offeree company is to act in the interests
of the company as a whole, and must not deny the holders
of securities the opportunity to decide on the merits of the
bid;(c) the board of an offeree company is to act in the interests
of the company as a whole, in particular in the interests
of corporate policy and its continuation, shareholdersand staff, and with a view to safeguarding jobs, and
must not deny the holders of securities the opportunity
to decide on the merits of the bid;
(Amendment 7)
Article4(5),secondsubparagraph
Provided that the general principles referred to in Article 3(1)
are respected, Member States may provide in their rules madeor introduced pursuant to this Directive that their supervisory
authorities may in particular types of cases and, on the basis of
a reasoned decision, in specific appropriate cases grant derogation
fromtheserules .Provided that the general principles referred to in Article 3(1)
are respected, Member States may provide in their rules madeor introduced pursuant to this Directive that their supervisory
authorities may in particular types of cases grantderogat ion
from these rules andthat in such cases they do so on the
basis of a reasoned decision.
(Amendment 8)
Article5(1)
1. Where a natural person or legal entity who, as a result of
his own acquisition or the acquisition by persons acting in
concert with him, holds securities of a company referred to in1. Where a natural person or legal entity who, as a result of
his own acquisition or the acquisition by persons acting in
concert with him, holds securities of a company referred to in17.8.2001 EN C 232/169 Official Journal of the European Communities
Wednesday 13 December 2000
COUNCIL
COMMON POSITIONAMENDMENTS
BY PARLIAMENT
Article 1(1) which, added to any existing holdings and the
holdings of persons acting in concert with him, directly orindirectly give him a specified percentage of voting rights in
that company, conferring on him the control of that company,
Member States shall ensure that rules are in force which obligethis person to make a bid as a means to protect the minorityshareholders of that company. This bid shall be addressed to allholders of securities for all their holdings at an equitable price.When the consideration offered by the offeror does not consist
of liquid securities admitted to trading on a regulated market,
such consideration has to include a cash consideration at leastas an alternative.Article 1(1) which, added to any existing holdings and the
holdings of persons acting in concert with him, directly orindirectly give him a specified percentage of voting rights in
that company, conferring on him the control of that company,
Member States shall ensure that rules are in force which obligethis person to make a bid as a means to protect the minorityshareholders of that company. This bid shall be addressed to allholders of securities for all their holdings at an equitable price.
An equitable price is at least the highest price paid by theofferor on a regulated market within the meaning ofDirective 88/627/EEC in the twelve months preceding dis-closure of the bid. The competent supervisory authority
within the meaning of Article 4 may authorise a lower
bid price in justified and justifiable exceptional cases.When the consideration offered by the offeror does not consistof liquid securities admitted to trading on a regulated market,such consideration has to include a cash consideration at leastas an alternative.
The equitable price must be paid in cash if the offeror,
alone or in conjunction with a person acting in concertwith him, has, in the six months before the bid wasmade, acquired more than 5% of the shares or votingrights in the offeree company or does so after publication
of the bid and before expiry of the period for acceptance.
(Amendment 12)
Article5a(new)
Article 5a
Consolidating the position of the offerorIf, as a result of a takeover bid, the offeror receives pos-
session of more than 95% of the securities with votingrights, he is entitled, no later than six months after conclu-sion of the bid, to take over in cash the remaining securi-ties with voting rights at the fixed price in the takeoverbid.
However, he mustatleastpay t he maximum price paid
for securities of the company in question in the threemonths prior to notification of the offer.
(Amendment 13)
Article6(3)(h)
(h) the offeror’s intentions with regard to the future business
of the offeree company, itsemployees anditsmanagement,
including any material change in the conditions ofemployment;(h) the offeror’s intentions with regard to the future business
ofboth the offeror and the offeree company, and the
future of the employees and management, as well as
the supervisory authority , including any material change
in the conditions of employment . This relates in particu-
lar to the offeror’s strategic planning for the offereecompany, the effect of such plans on jobs and loca-tions, their impact on labour law standards, socialC 232/170 EN 17.8.2001 Official Journal of the European Communities
Wednesday 13 December 2000
COUNCIL
COMMON POSITIONAMENDMENTS
BY PARLIAMENT
standards and collective undertakings and the conse-
quences for bodies representing the interests of theworkers;
(Amendment 14)
Article6(3)(la)(new)
(la) the law which governs the contracts between the
offeror and the holders of securities of an offereecompany which arise as a resultof t he bid .
(Amendment 15)
Article6(4)
4. Member States shall ensure that rules are in force requir-
ing the parties to a bid to provide the supervisory authoritiesof their Member State at any time on request with all informa-tion in their possession concerning the bid which is necessaryforthesupervisoryauthority to dischargeitsfunctions.4. Member States shall ensure that rules are in force requir-
ing the parties to a bid to provide the supervisory authoritiesof their Member State , the board of the offeree company
and the workers’ representatives at any time on request
with all information in their possession concerning the bidwhich is necessary for themto discharge theirfunctions.
(Amendment 16)
Article7
1. Member States shall provide that the period for accep-
tance of the bid to be specified by the offeror in the offer docu-ment in accordance with Article 6(3)(i) may not be less thantwo weeks or more than tenweeksfrom the date of publication
of the offer document. MemberStatesmayprovidethattheperiod
oftenweeksmaybeprolongedontheconditionthattheofferorgivesatleasttwoweekspriornoticeofitsintentiontoclosethebid.1. Member States shall provide that the period for accep-
tance of the bid to be specified by the offeror in the offer docu-ment in accordance with Article 6(3)(i) may not be less thantwo weeks or more than three months from the date of pub-
lication of the offer document.
2.Member States may provide for rules modifying the period
mentioned in paragraph 1 in specific appropriate cases. MemberStatesmayauthorisethesupervisoryauthoritytograntaderogationfrom the period mentioned in paragraph 1 in order to allow theoffereecompanytoorganiseageneralmeetingtoconsiderthebid.2. The period laid down in paragraph 1 may be
extended by the competent supervisory body only in theevent of alternative take-over bids by up to a maximum ofthree months, starting when the documentation concern-ing the most recent alternative bid is made public.
(Amendment 20)
Article9(1)(a)and(b)
(a) at the latest after receiving the information referred to in
Article 6(1), first sentence, concerning the bid and until
the result of the bid is made public or the bid lapses, the
board of the offeree company shall abstain from complet-ing any action other than seeking alternative bids whichmay result in the frustration of the bid, and notably fromthe issuing of shares which may result in a lasting impedi-
ment to the offeror obtaining control over the offeree
company, unless it has the prior authorisation of the gen-eral meeting of the shareholders given for this purpose,during the period of acceptance of the bid;(a) at the latest from the time when, by whatever means,
the existence of a bid becomes known and at alleventsafter receiving the information referred to in Arti-
cle 6(1), first sentence, concerning the bid and until theresult of the bid is made public or the bid lapses, the
board of the offeree company shall abstain from complet-
ing any action other than seeking alternative bids whichmay result in the frustration of the offer, and notablyfrom the issuing of shares which may result in a lastingimpediment to the offeror to obtain control over theofferee company, unless it has the prior authorisation ofthe general meeting of the shareholders and the supervi-
sory board (if any) given for this purpose, during the
period of acceptance of the bid;17.8.2001 EN C 232/171 Official Journal of the European Communities
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COUNCIL
COMMON POSITIONAMENDMENTS
BY PARLIAMENT
(b) the board of the offeree company shall draw up and make
public a document setting out its opinion on the bid,together with the reasons on which it is based, including
its views on the effects of implementation on all the inter-
ests of the company, including employment.(b) the board of the offeree company shall draw up and make
public a document setting out its opinion on the bid,together with the reasons on which it is based, including
its views on the effects of implementation on all the inter-
ests of the company, including employment. Where a
separate opinion of the employees’ representativebody is available itshall be enclosed.
(Amendment 17)
Article9(2a)(new)
2a. If the board proposes any action other than that
provided for in the foregoing articles it must act accordingto one of the following alternatives.
(a) Supervisory authorities may, in conformity with
national law, adopt guidelines as to the permissibilityof any other defensive measures.
(b) In addition, Member States may opt for one of the
following models:
(i) the board must obtain prior authorisation by the
competent supervisory authority of defensivemeasures other than those provided for in thisarticle or under the guidelines established accord-ing to subparagraph (a);
(ii) the competent supervisory authority may, upon
request from holders of securities representing atleast 1% of the voting rights, forbid defensivemeasures if they are covered neither by this arti-cle nor by guidelines drawn up according to sub-paragraph (a).
(c) In any event, holders of securities may also arrange
for the courts to determine whether the limits of the
room for manoeuvre have been wilfully exceeded and
whether the company is entitled to claim compensa-tion from the members of the board.
(d) In any event, all defensive measures which have the
prior authorisation of the general meeting of theshareholders given for this purpose, during the periodof acceptance of the bid, are permissible and can inparticular not be forbidden by the competent supervi-sory authority.
(Amendment 18)
Article15(1),firstsubparagraph
1. Member States shall ensure that the laws, regulations,
administrative provisions or other arrangements necessary forthem to comply with this Directive are in force before …(
*).
They shall forthwith inform the Commission thereof.1. Member States shall ensure that the laws, regulations,
administrative provisions or other arrangements necessary forthem to comply with this Directive are in force before …(
*).
They shall forthwith inform the Commission thereof.
(*)Fouryears after the entry into force of this Directive. (*)Twoyears after the entry into force of this Directive.C 232/172 EN 17.8.2001 Official Journal of the European Communities
Wednesday 13 December 2000
COUNCIL
COMMON POSITIONAMENDMENTS
BY PARLIAMENT