CELEX: 51990PC0416
Language: en
Date: 1990-09-10
Title: AMENDED PROPOSAL FOR A THIRTEENTH COUNCIL DIRECTIVE ON COMPANY LAW, CONCERNING TAKEOVER AND OTHER GENERAL BIDS

26. 9. 90                           Official Journal of the European Communities                            No C 240/7
                                                           II
                                                    (Preparatory Acts)
                                              COMMISSION
             Amended proposal for a thirteenth Council Directive on company law, concerning takeover and
                                                   other general bids
                                            COM(90) 416 final — SYN 186
             (Submitted by the Commission on 14 September 1990 pursuant to Article 149(3) of the EEC
                                                         Treaty)
                                                     (90/C 240/09)
                    ORIGINAL PROPOSAL                                                AMENDED PROPOSAL
THE COUNCIL OF THE EUROPEAN COMMUNITIES,                        THE COUNCIL OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European           unchanged
Economic Community, and in particular Article 54
thereof,
Having regard to the proposal from the Commission,              Having regard to the proposal from the Commission ('),
In cooperation with the European Parliament,                    In cooperation with the European Parliament (2),
Having regard to the opinion of the Economic and                Having regard to the opinion of the Economic and
Social Committee,                                               Social Committee (3),
Whereas it is necessary to coordinate certain safeguards        unchanged
which Member States require of companies and firms
within the meaning of the second paragraph of Article 58
of the Treaty for the protection of members and others,
in order to make such safeguards equivalent throughout
the Community;
Whereas it is necessary to protect the interests of the         Whereas it is necessary to protect the interests of the
shareholders of public companies limited by shares when         holders of the securities of companies governed by the
these are the subject of a takeover or other general bid;       law of a Member State when the securities of these
                                                                companies, admitted to trading on a regulated market
                                                                within the scope of this Directive, are the subject of a
                                                                takeover or other general bid;
                                                                 O OJ No C 64, 14. 3. 1989, p. 8.
                                                                 O OJ No C 38, 19. 2. 1990, p. 41.
                                                                 (3) OJ No C 298, 27. 11. 1989, p. 56.
 ---pagebreak--- N o C 240/8                             Official Journal of the European Communities                                  26. 9. 90
                       ORIGINAL PROPOSAL                                                 AMENDED PROPOSAL
Whereas shareholders who are in the same position                 deleted
should be treated equally;
Whereas this equality of treatment requires that the obli-        Whereas equality of treatment of holders of securities
gation to make a bid is imposed on persons wishing to             requires that persons wishing to attain a certain level of
attain a certain level of participation in a company and in       holdings in a company be obliged to make a bid;
order to ensure the protection of minority shareholders           whereas in order to protect persons having minority
and to avoid purely speculative partial bids, it is               holdings and avoid purely speculative partial bids, it is
necessary to require that these persons make a bid for all        necessary to require that persons who have acquired a
the shares of that company;                                       considerable holding make a bid for all the securities of
                                                                  the company; whereas, in order to attain greater flexi-
                                                                  bility in the application of this provision, the Member
                                                                  States may provide for a series of exemptions from this
                                                                  obligation;
Whereas each Member State should designate a super-               unchanged
visory authority or authorities to ensure that parties to a
takeover or other general bid fulfil their obligations; and
whereas it is necessary to determine which authority has
territorial jurisdiction in the case of cross-frontier bids
and to provide for the mutual recognition of offer
documents within the Community; whereas the different
authorities must cooperate with one another and their
present or former officers and servants should be bound
to preserve confidentiality;
                                                                  Whereas in taking decisions applying the requirements of
                                                                  this Directive the supervisory authority should be guided
                                                                  by a set of principles directing it to seek to ensure that:
                                                                  (a) all holders of securities of an offeree company who
                                                                       are in the same position are treated equally;
                                                                  (b) the addressees of a bid have sufficient time and
                                                                       information to enable them to reach a properly
                                                                       informed decision on the bid;
                                                                  (c) the board of an offeree company acts in the interests
                                                                       of all the shareholders, and cannot frustrate the bid;
                                                                  (d) false markets are not created in the securities of the
                                                                       offeree company, of the offeror company, or of any
                                                                       other company concerned by the bid;
                                                                  (e) offeree companies are not hindered in the conduct of
                                                                       their affairs beyond a reasonable time by an offer for
                                                                       their securities;
 ---pagebreak---  26. 9. 90                            Official Journal of the European Communities                             No C 240/9
                     ORIGINAL PROPOSAL                                              AMENDED PROPOSAL
Whereas to reduce the scope for insider dealing offerors        unchanged
should be required to announce their intention of
launching a bid as soon as possible and to inform the
supervisory authority and the offeree company's board
of the precise terms of the bid before they are made
public;
Whereas to avoid operations which frustrate the bid it is       unchanged
necessary to limit the powers of the board of directors of
the offeree company to engage in operations of an
exceptional nature;
Whereas to help ensure compliance with the obligations          unchanged
resulting from the Directive it should be compulsory for
offerors to be represented by a person or credit
institution licensed to deal on financial markets;
Whereas the addressees of a takeover or other general           unchanged
bid should be properly informed of the terms of the bid
by means of an offer document and, where the
consideration offered includes securities, should be
provided with certain additional information about the
company issuing those securities;
Whereas the offeror should be required to bring the             unchanged
offer document to the attention of all addressees of the
bid and where the offer document contains insufficient
information to clarify the real intentions of the offeror,
the supervisory authority should be able either to forbid
the publication of the offer document or to make the
offeror publish a revised document;
Whereas it is necessary to set a time limit for takeover        unchanged
bids;
Whereas, in the interests of the offeree company and the        Whereas, in the interests of the offeree company and the
addressees of the bid, it should be provided that once an       addressees of the bid, it should be provided that once an
offer document has been made public the bid may not be          offer document has been made public the bid may not be
withdrawn except in certain specified circumstances;            withdrawn or declared void except in certain limited
                                                                cases;
Whereas the board of the offeree company should be              Whereas the board of the offeree company should be
required to report in writing to its shareholders its view      required to make public a written opinion addressed to
of the bid, and whereas, where the consideration offered        holders of its securities, setting out its view of the bid;
in the bid includes securities for which at the time the
bid is made no official stock exchange listing has been
applied for, it should also be required to obtain and
make available to all addressees of the bid an additional
report by an independent expert;
 ---pagebreak--- No C 240/10                           Official Journal of the European Communities                                  26. 9. 90
                     ORIGINAL PROPOSAL                                               AMENDED PROPOSAL
Whereas offerors are entitled to revise their bids;             Whereas offerors are entitled to revise their bids;
whereas limits should be placed on that right in order to       whereas it may be necessary to limit that right with a
maintain an orderly market in the shares and it should be       view to the proper operation of the offeree company and
ensured that the addressees of the bid are informed in          the maintenance of an orderly market and it should be
time; whereas it is necessary that the offeror draw up          ensured that the addressees of the bid are informed in
and make public a fresh document setting out the                time; whereas it is necessary that the offeror draw up
amendments to the original bid and whereas adressees            and make public a fresh document setting out any
who have already accepted the bid should be entitled to         amendments to the original bid; and whereas addressees
accept the revised bid;                                         who have already accepted the bid should be entitled to
                                                                accept the revised bid;
Whereas in order to ensure equal treatment of                   unchanged
addressees of the bid, an acquisition by the offeror, or by
certain persons associated with him, of shares which are
the subject of the bid at a higher price than that laid
down in the offer document or one of its revisons, must
itself be considered as a revision;
Whereas to be able to perform their functions satisfac-         Whereas to be able to perform their functions satisfac-
torily, supervisory authorities need to be able to find out     torily, supervisory authorities must at all times be able to
at any time how many acceptances have been received to          require the parties to the bid to provide information on
date and whereas, from the time the intention to make a         it; whereas after the offeror has announced his intention
bid is announced by the offeror, any dealing in the             to make a bid certain transactions concerning the
securities concerned must be made public by any person          securities of the companies concerned by the bid must be
already having a significant shareholding;                      notified to the supervisory authorities;
Whereas the result of the bid must be made public and           unchanged
notified to the supervisory authority;
Whereas taking into account the social policy of the            unchanged
Community, it is necessary that representatives of the
employees of the offeree company be informed with
regard to the bid and that they should receive all the
documents concerning that bid;
Whereas competing bids for the securities of a company          Whereas competing bids for the securities of a company
are necessarily to the advantage of its shareholders;           are necessarily to the advantage of the holders of its
whereas all such bids should be subject to the same rules       securities; whereas all such bids should be subject to the
as the original bid and the original offeror should be          same rules as the original bid and the original offeror
entitled to withdraw his bid in such a case;                    should be entitled to withdraw his bid in such a case;
                                                                whereas addressees who have already accepted the initial
                                                                bid must be able to accept the competing bid;
Whereas this Directive does not until subsequent coordi-        unchanged
nation affect the capacity of Member States to forbid a
takeover or other general bid where the offeror is either
a national or a company from a third country, in
particular where Community nationals and companies do
not benefit from reciprocal treatment as regards the
acquisition of shares by means of such a bid in a
company governed by the law of that third country.
 ---pagebreak--- 26. 9. 90                               Official Journal of the European Communities                             No C 240/11
                        ORIGINAL PROPOSAL                                              AMENDED PROPOSAL
HAS ADOPTED THIS DIRECTIVE:                                       HAS ADOPTED THIS DIRECTIVE:
                             Article 1                                                      Article 1
                              Scope                                                          Scope
The coordination measures prescribed by this Directive            (1)     The coordination measures prescribed by this
shall apply to the laws, regulations and administrative           Directive shall apply to the laws, regulations and admin-
provisions of the Member States relating to takeover and          istrative provisions of the Member States relating to
other general bids addressed, on the same terms, to all           takeover and other general bids for the securities of a
holders of the securities, or the securities of a particular      company governed by the law of a Member State where
class or classes, of any of the following types of                these securities are admitted to trading on a market in
company:                                                          one or more Member States which is regulated and
                                                                  supervised by authorithies recognized by public bodies,
                                                                  operates regularly and is accessible, directly or indirectly,
— in Germany:                                                     to the public.
    die Aktiengesellschaft, die Kommanditgesellschaft auf
    Aktien,
                                                                  (2)     After a period of five years following the date
                                                                  referred to in Article 22 (2), the Commission shall submit
— in Belgium:                                                     to the Council a report on the extension of the scope of
                                                                  this Directive to some or to all companies governed by
    la societe anonyme / de naamloze vennootschap, la             the law of a Member State whose securities are not
    societe en commandite par actions / de comman-                accepted for trading on one of the markets referred to in
    ditaire vennootschap op aandelen,                             paragraph 1 and, if appropriate, shall put forward a
                                                                  proposal to the Council to that end.
— in Denmark:
    aktieselskaber, kommanditaktieselskaber,
— in Spain:
    la sociedad anonima, la sociedad en comandita por
    acciones;
— in France:
    la societe anonyme, la societe en commandite par
    actions;
— in Greece:
    T) av(bvi)|i,T| eiaipeta, n exEp6ppi)#UT| Kaxd \iexo%tq
    Etaipeta;
— in Ireland:
    the public company, limited by shares;
— in Italy:
    la societa per azioni, la societa in accomandita per
    azioni;
— in Luxembourg:
    la societe anonyme, al societe en commandite par
    actions;
 ---pagebreak---  No C 240/12                          Official Journal of the European Communities                                  26. 9. 90
                      ORIGINAL PROPOSAL                                              AMENDED PROPOSAL
— in the Netherlands:
    de naamloze vennootschap;
— in Portugal:
    sociedade anonima, sociedade em comandita por
    accoes;
— in the United Kingdom:
    the public company, limited by shares.
                           Article 2                                                     Article 2
                         Definitions                                                    Definitions
1.    For the purposes of this Directive, 'offeree              For the purposes of this Directive:
company' shall mean a company whose securities are the
subject of a takeover or other general bid (hereinafter         — 'takeover or other general bid' ('bid') shall mean an
referred to as 'a bid').                                           offer made to the holders of the securities of a
                                                                   company to acquire all or part of these securities by
                                                                   payment in cash or in exchange for other securities,
                                                                — 'offeree company' shall mean a company whose
                                                                   securities are the subject of a bid,
2.    For the purposes of this Directive, 'offeror' shall       — 'offeror' shall mean any natural person or legal entity
mean any person or company including, where appro-                 in public or private law making a bid,
priate, the directors of the offeree company, who
launches a bid in accordance with the obligation set out
in Article 4 or on a voluntary basis.
3.    For the purposes of this Directive, 'securities' shall    — 'securities' shall mean transferable securities carrying
mean securities carrying voting rights in a company or             voting rights in a company or conferring entitlement
which can be converted into securities carrying such               to obtain transferable securities carrying such rights,
rights.
4.    For the purposes of this Directive, 'parties to the       — 'parties to the bid' shall mean the offeror, the
bid' shall mean the offeror, the representative of the             representative of the offeror within the meaning of
offeror within the meaning of Article 9, the directors of          Article 9, the directors of the offeror, if the latter is a
the offeror, if the latter is a company, the addressees of         company, the addressees of the bid and the directors
the bid and the directors of the offeree company.                  of the offeree company,
5.    For the purposes of this Directive, 'persons acting       — 'persons acting in concert' shall mean persons who,
in concert' shall mean persons who, pursuant to an                 through concerted practices or pursuant to an
agreement, cooperate with one another with the aim of              agreement, cooperate with one another in connection
acquiring the securities of a company.                             with a bid.
 ---pagebreak--- 26. 9. 90                             Official Journal of the European Communities                            No C 240/13
                     ORIGINAL PROPOSAL                                               AMENDED PROPOSAL
                          Article 3                             deleted
                      Equal treatment
Shareholders who are in the same position shall be
treated equally.
                          Article 4                                                       Article 4
                 Obligation to make a bid                                        Obligation to make a bid
1.    Any person aiming to acquire a number or                  1.     Any person ('the acquirer') who as a result of
percentage of securities, which, added to any existing          acquisition by himself or by a person referred to in
holdings, gives him a percentage of the voting rights in a      paragraph 2 holds securities which added to any existing
company which may not be fixed at more than 33 lA %,            holdings give him a percentage of the voting rights in a
shall be obliged to make a bid to acquire all the securities    company which may not be fixed at more than one-third
of that company.                                                of the voting rights existing at the date of acquisition
                                                                shall be obliged to make a bid to acquire all the securities
                                                                of the company.
2.    To calculate the threshold referred to in paragraph       2.     To calculate the threshold referred to in paragraph
1, the following must be added to the voting rights held        1, the following shall be added to the voting rights held
by the offeror:                                                 by the acquirer:
(a) voting rights held by persons acting in their own           (a) voting rights held by other persons or entities in their
    name but on behalf of the offeror;                              own names but on behalf of the acquirer;
(b) where appropriate, voting rights held by companies          (b) voting rights held by undertakings controlled by the
    belonging with the offeror to the same group of                 acquirer within the meaning of Article 8 of Council
    undertakings within the meaning of Article 1 of                 Directive 88/627/EEC of 12 December 1988 on the
    Council Directive 83/349/EEC O ;                                information to be published when a major holding in
                                                                    a listed company is acquired or disposed of (*);
(c) voting rights held by persons acting in concert with        (c) voting rights held by any other person acting in
    the offeror;                                                    concert with the acquirer;
(d) where appropriate voting rigths by directors of the         (d) voting rights attached to securities held by the
    offeror company.                                                acquirer which are lodged by way of security, except
                                                                    where the holder of the security controls the voting
                                                                     rights and declares his intention of exercising them,
                                                                     in which case they shall be regarded as his voting
                                                                     rights.
                                                                2a.     To calculate the threshold referred to in
                                                                paragraph 1, the voting rights held by the acquirer or by
                                                                any of the other persons or entities referred to in
                                                                subparagraphs (a) to (d) of paragraph 2 shall be deemed
                                                                to include the voting rights attached to the following
                                                                securities :
(') OJ No L 193, 18. 7. 1983, p. 1                              (') OJ No L 348 17. 12. 1988, p. 62.
 ---pagebreak--- No C 240/14                 Official Journal of the European Communities                                   26. 9. 90
            ORIGINAL PROPOSAL                                               AMENDED PROPOSAL
                                                      (a) securities in which they have the life interest;
                                                      (b) securities which they are entitled to acquire, on their
                                                           own initiative alone, under a formal agreement;
                                                      (c) securities deposited with them carrying voting rights
                                                           which they can exercise at their discretion in the
                                                           absence of specific instructions from the holders.
                                                      2b.     Voting rights whose exercise is prevented by
                                                      Article 22 of Council Directive 77/91/EEC of 13
                                                      December 1976 on the formation of public limited
                                                      liability companies and the maintenance and alteration of
                                                      their capital (') shall not be taken into account in calcu-
                                                      lating the threshold referred to in paragraph 1.
                                                      2c.     Member States may make provision for exemption
                                                      from the obligation laid down in paragraph 1 where:
                                                      (a) the securities have been acquired by transmission
                                                           without consideration;
                                                      (b) the acquirer has undertaken to carry out a merger
                                                           within the scope of Article 3 of Council Directive
                                                           78/855/EEC of 9 October 1978 concerning mergers
                                                           of public limited liability companies (2) with the
                                                           company whose securities have been acquired;
                                                      (c) the acquisition results from a division within the
                                                           scope of Article 2 of Council Directive 82/891/EEC
                                                           of 17 December 1982 concerning the division of
                                                           public limited liability companies ( 3 );
                                                      (d) the acquirer acquires a percentage of the voting
                                                           rights which exceeds the threshold referred to in
                                                           paragraph 1, but not by more than 3 % of the total
                                                           of these rights, and gives a written undertaking to
                                                           transfer the securities necessary to come within the
                                                           threshold within a period which may not exceed one
                                                           year;
                                                      (e) the company whose securities have been acquired is
                                                           already controlled within the meaning of Article 8 of
                                                           Council Directive 88/627/EEC by the acquirer or by
                                                           another undertaking controlling the acquirer or
                                                           controlled by him within the meaning of that Article;
                                                      0) OJ No L 26, 31. 1. 1977, p. 1.
                                                      (2) OJ No L 295, 20. 10. 1978, p. 36.
                                                      (3) OJ No L 378, 31. 12. 1982, p. 47.
 ---pagebreak--- 26. 9. 90                             Official Journal of the European Communities                           No C 240/15
                     ORIGINAL PROPOSAL                                              AMENDED PROPOSAL
                                                                (f) the company whose securities have been acquired       is
                                                                    already controlled within the meaning of Article 8   of
                                                                    Council Directive 88/627/EEC by a shareholder        or
                                                                    jointly by a number of shareholders who give           a
                                                                    written undertaking not to transfer their securities to
                                                                    the acquirer on the conditions he offers;
                                                                (g) the securities have been acquired following an
                                                                    increase in the subscribed capital and the acquirer
                                                                    has exercised his right of pre-emption in accordance
                                                                    with Article 29 of Council Directive 77/91/EEC.
3.    The supervisory authority may grant exemptions to         3.    The supervisory authority may grant exemption
the rule laid down in paragraph 1, giving reasons for its       from the obligation laid down in paragraph 1, giving
decision and adopting all measures necessary to ensure          reasons, in cases other than those specified in the
equal treatment of all shareholders.                            foregoing paragraph.
                         Article 5                              deleted
Exemptions on the basis of size of the offeree company
Article 4 shall not apply:
(a) where the securities of the offeree company have not
    been admitted to official stock exchange listing or
    have not been the subject of a request for such
    admission at the moment when the bid is announced
    in accordance with Article 7; and
(b) where the offeree company, or, where appropriate,
    the group of undertakings within the meaning of
    Article 1 of Directive 83/349/EEC to which the
    company belongs, do not exceed, at the
    balance-sheet date, the amounts of two of the three
    criteria laid down in Article 27 of Council Directive
    78/660/EEC (1).
                            Article 6                                                      Article 6
                     Supervisory authority                                           Supervisory authority
     1.    Member States shall designate the authority or           1.    unchanged
    authorities which must discharge the functions
    specified in this Directive. The authorities thus
    designated may delegate all or part of their powers
    to other authorities or to associations or private
    bodies. Member States shall inform the Commission
    of these designations and of any delegation of
    powers and shall specify all divisions of functions
    that may be made.
O OJ No L 222, 14. 8. 1978, p. 11.
 ---pagebreak--- No C 240/16                          Official Journal of the European Communities                                     26. 9. 90
                     ORIGINAL PROPOSAL                                                 AMENDED PROPOSAL
2.    The authorities and, where appropriate, the associ-      2.     The supervisory authorities, and, where appro-
ations or private bodies referred to in paragraph 1 must       priate, the associations or private bodies referred to in
have all the necessary powers to ensure that this              paragraph 1, shall have all the powers necessary for the
Directive is put into effect and, in any case, either the      exercise of their functions, which shall include responsi-
power to forbid the publication of an offer document           bility for ensuring that the parties to a bid comply with
which is incomplete by reference to the requirements of        their obligations under this Directive. The authorities'
this Directive or the power to oblige the offeror to           powers shall include either the power to forbid the publi-
correct an inadequate offer document and to make it            cation of an offer document which is incomplete by
public by the means set out in Article 11 (1).                 reference to the requirements of this Directive or the
                                                               power to oblige the offeror to correct an inadequate
                                                               offer document and to make it public in accordance with
                                                               Article 11 (1).
                                                               2a.     If a Member State requires the offer document to
                                                               be approved by the supervisory authority prior to publi-
                                                               cation, the authority shall have a maximum period of
                                                               three working days from lodging of the document within
                                                               which to grant or withhold approval. If the authority
                                                               fails to take a decision within that period approval shall
                                                               be deemed to be granted.
3.    The authority competent for supervising the              3.    The authority competent for supervising the
drawing-up and publication of the offer document shall         drawing-up and publication of the offer document shall
be that of the Member State in which the offeree               be that of the Member State in which the offeree
company has its registered office. Where the bid is made       company has its registered office if the securities of the
in several Member States simultaneously, the offer             company are admitted to trading on a regulated market
document as prepared under the supervision of the              in that Member State. Otherwise the competent
national authority responsible shall be accepted in the        authority shall be that of the Member State on whose
other Member States, without their supervisory auth-           regulated market the securities of the company were first
orities having the right to require the inclusion of any       admitted to trading. If the document so drawn up has
additional particulars in the document.                        received prior approval it shall be accepted by the other
                                                               Member States, whose supervisory authorities may not
                                                               require the inclusion of any additional particulars.
4.    After an offer document has been made public in          4.    The competent authorities of the Member States
accordance with Article 11 (1), the competent authorities      shall cooperate notwithstanding paragraph 5, in so far as
of the Member States shall give each other any                 necessary for the performance of their duties and for this
cooperation required for the performance of their duties       purpose shall supply each other with any information
and for this purpose shall supply each other with any          that may be necessary.
information that may be necessary.
5.    All present or former officers or servants of super-     5. (a) Each Member State shall provide that all present
visory authorities shall be bound by the rules of                       or former officers or servants of supervisory auth-
professional secrecy. Information that has come to their                orities shall be bound by the rules of professional
knowledge in the course of performing their professional                secrecy. Information covered by professional
duties shall not be disclosed to any person or body not                 secrecy shall not be disclosed to any person or
legally entitled to receive it.                                         authority not legally entitled to receive it.
                                                                   (b) Without prejudice to their obligations in judicial
                                                                        proceedings in criminal matters, the supervisory
                                                                        authorities in receipt of the information referred
                                                                        to in paragraph 4 may use such information only
                                                                        for the discharge of their functions under
                                                                        paragraph 1 and in connection with administrative
                                                                        or legal proceedings specifically relating to the
                                                                        discharge of their functions.
 ---pagebreak--- 26. 9. 90                            Official Journal of the European Communities                             No C 240/17
                    ORIGINAL PROPOSAL                                                 AMENDED PROPOSAL
                                                                        Nevertheless, if the supervisory authority which
                                                                        has supplied information consents, the recipient
                                                                        supervisory authority may make use of the infor-
                                                                        mation for other purposes or transmit it to the
                                                                        supervisory authorities of other states.
6.    This Directive shall not affect the legislation of       6.     unchanged
Member States concerning the liability of competent
authorities.
                                                                                         Article 6a
                                                               Principles applicable to the discharge of the functions of
                                                                                 the supervisory authority
                                                               In discharging the functions referred to in Article 6 (2)
                                                               and in granting exemptions pursuant to Articles 4 (3),
                                                               8 (1) (b), 10 (5), 11 (1), 12 (2), 13 (1) (e) and (f), 15 (5)
                                                               and 20 (3), the supervisory authority shall seek to ensure
                                                               that:
                                                               (a) all holders of securities of an offeree company who
                                                                    are in the same position are treated equally;
                                                               (b) the addressees of a bid have sufficient time and
                                                                    information to enable them to reach a properly
                                                                    informed decision on the bid;
                                                               (c) the board of an offeree company acts in the interests
                                                                    of all the shareholders, and cannot frustrate the bid;
                                                               (d) false markets are not created in the securities of the
                                                                    offeree company, of the offeror company, or of any
                                                                    other company concerned by the bid;
                                                                (e) offeree companies are not hindered in the conduct of
                                                                    their affairs beyond a reasonable time by a bid for
                                                                    their securities.
                         Article 7                                                        Article 7
  Procedure prior to publication of the offer document            Procedure prior to publication of the offer document
1.    As soon as it decides to make a bid, the offeror          1.    As soon as he decides to make a bid, the offeror
shall make public its intention of doing so by one of the       shall inform the competent supervisory authority and the
means provided for in Article 11 (1). It shall inform the      board of the offeree company and then make his
competent supervisory authority accordingly.                    decision public in accordance with Article 11 (1) (a).
 ---pagebreak---  N o C 240/18                        Official Journal of the European Communities                                   26. 9. 90
                     ORIGINAL PROPOSAL                                               AMENDED PROPOSAL
2.     The offeror shall then immediately draw up an            2.    The offeror shall then immediately draw up an
offer document in accordance with Article 10 and make           offer document in accordance with Article 10 and make
it public in accordance with Article 11 (1).                    it public, accompanied where appropriate by the other
                                                                documents referred to in that Article, in accordance with
                                                               Article 11 (1).
 3.    Before the offer document is made public, the            3.    Before the offer document is made public, the
offeror shall communicate it to the competent super-           offeror shall communicate it to the supervisory authority,
visory authority and to the board of the offeree               which shall exercise the powers referred to in Article 6
company.                                                        (2) where appropriate, and to the board of the offeree
                                                               company.
                         Article 8                                                        Article 8
Restriction of the powers of the board of the offeree          Restriction of the powers of the board of the offeree
                         company                                                          company
After receiving the information referred to in Article 7        1.    After receiving the information referred to in
(1) and until the expiry of the period for accepting the       Article 7 (1) and until the result of the bid is made
bid, the board of the offeree company shall not, without       public, the board of the offeree company shall not,
the authorization of the general meeting of shareholders,      without obtaining the authorization of the general
decide:                                                        meeting of shareholders within the period for
                                                               acceptance, decide:
(a) to issue securities carrying voting rights or which        (a) to issue securities within the meaning of the fourth
     may be converted into such securities:                         indent in Article 2;
(b) to engage in transactions which do not have the            (b) to engage in transactions which would have the
     character of current operations concluded under                effect of altering significantly the assets or liabilities
     normal conditions unless the competent supervisory             of the company or resulting in the company entering
     authority has authorized them, giving its reasons for          into commitments without consideration, unless the
     such authorization.                                            supervisory authority authorizes such transactions,
                                                                    giving reasons;
                                                               (c) to have the company acquire its own shares, as
                                                                    provided for in Article 19 (1) (a) and (2) of Council
                                                                    Directive 77/91/EEC.
                                                               2.    The board of the offeree company may call a
                                                               general meeting of shareholders before the expiry of the
                                                               period for acceptance referred to in the foregoing
                                                               paragraph.
                         Article 9                                                        Article 9
               Representative of the offeror                                  Representative of the offeror
The offeror shall be represented either by a qualified         unchanged
person authorized to deal on the Community financial
markets or by a credit institution authorized within the
Community.
 ---pagebreak--- 26. 9. 90                               Official Journal of the European Communities                             No C 240/19
                       ORIGINAL PROPOSAL                                                 AMENDED PROPOSAL
                           Article 10                                                        Article 10
                        Offer document                                                    Offer document
1.    The offeror shall draw up an offer document in               1.   The offeror shall draw up an offer document
respect of the bid stating at least:                              containing the information necessary to enable the
                                                                  addressees to reach a properly informed decision on the
                                                                  bid and stating at least:
(a)   the type, name and registered office of the offeree          (a)  unchanged
      company
(b)   the name and address of the offeror or, where the            (b)  unchanged
      offeror is a company, the type, name and registered
      office of that company;
(c)   the name and address or, where appropriate, name             (c)  unchanged
      and registered office of the representative of the
      offeror referred to in Article 9;
                                                                   (ca) the persons responsible for the offer document, and
                                                                        their names and positions, together with a
                                                                        declaration that to the best of their knowledge and
                                                                        belief the particulars contained in the offer
                                                                        document are correct and that no material fact has
                                                                        been omitted from the document;
(d)   the securities or class or classes of securities for         (d)  unchanged
      which the bid is made;
                                                                   (da) the maximum and minimum percentages or quan-
                                                                        tities of securities which the offeror undertakes to
                                                                         acquire;
 (e)   the securities, or the securities of the relevant class      (e) the securities, or the securities of the relevant class
       or classes, already held by:                                      or classes, already held by:
       (aa) the offeror;                                                 (aa) the offeror;
       (bb) other persons for the account of the offeror;                (bb) other persons or entities acting in their own
                                                                               name but on behalf of the offeror;
 ---pagebreak--- No C 240/20                           Official Journal of the European Communities                                  26. 9. 90
                     ORIGINAL PROPOSAL                                                AMENDED PROPOSAL
    (cc) companies belonging with the offeror to the                 (cc) undertakings controlled by the offeror within
          same group of undertakings within the                            the meaning of Article 8 of Council Directive
          meaning      of    Article   1     of   Directive                 88/627/EEC;
          83/349/EEC;
    (dd) persons acting in concert with the offeror;                 (dd) any other person acting in concert with the
                                                                           offeror;
    (ee) where the offeror is a company, its directors;              (ee) the offeror or one of the other persons or
                                                                           entities referred to in points (bb) to (dd) if the
                                                                           securities have been lodged by way of security,
                                                                           except where the holder of the security
                                                                           controls the voting rights and declares his
                                                                           intention of exercising them, in which case the
                                                                           securities shall be regarded as his securities;
          and the voting rights attached to those                          and the voting rights attached to those
          securities and the date and the price at which                   securities, and the date and price of any
          they were acquired;                                              acquisition or disposal of such securities within
                                                                           the    12 months preceding           the    public
                                                                           announcement required by Article 7 (1) and
                                                                           until the offer document is made public;
                                                                           the securities held by the offeror or by any of
                                                                           the other persons or entities referred to in
                                                                           points (bb) to (dd) shall be deemed to include:
                                                                           — securities in which they have the             life
                                                                               interest,
                                                                               securities which they are entitled to
                                                                               acquire, on their own initiative alone,
                                                                               under a formal agreement,
                                                                               securities deposited with them carrying
                                                                               voting rights which they can exercise at
                                                                               their discretion in the absence of specific
                                                                               instructions from the holders;
(f) where the offeror is a company, the securities, or          (f)  where the offeror is a company, the securities or
    the securities of a particular class or classes, of the          the securities of a particular class or classes of the
    offeror held by the offeree company, and the voting              offeror held by the offeree company or by other
    rights attached to them and the date and the price               persons on behalf of the offeree company and the
    at which they were acquired;                                     voting rights attached to them so far as the offeror
                                                                     is aware of them;
(g) the consideration offered for each security and the         (g)  the consideration offered for each security or class
    basis of the valuation used in determining it and, in            of securities and the basis of the valuation used in
    the case of a cash consideration, the guarantees                 determining it, with particulars of the way in which
    provided by the offeror regarding payment of that                that consideration is to be given, and
    consideration, and, where appropriate, a statement
    concerning any future indebtedness of the offeree                — where the consideration comprises cash, the
    company to finance the bid;                                          steps that have been or will be taken with a view
                                                                         to payment.
 ---pagebreak--- 26. 9. 90                               Official Journal of the European Communities                             No C 240/21
                      ORIGINAL PROPOSAL                                                AMENDED PROPOSAL
                                                                       — where the consideration comprises securities,
                                                                           particulars establishing that the offeror has these
                                                                           securities at his disposal or, where appropriate,
                                                                           an undertaking to call a general meeting of the
                                                                           offeror's shareholders in order that they may
                                                                           authorize the issue of the securities in question;
                                                                  (ga) a statement concerning any future indebtedness of
                                                                       the offeror and, where appropriate, of the offeree,
                                                                       to finance the bid;
(h)  where the     consideration comprises securities, the        (h)  where the consideration comprises securities, the
      date from    which those securities will entitle their           date from which they will entitle their holders to a
      holders to   a share in the profits and any special              share in dividends or interest and any special
      conditions  affecting that entitlement;                          conditions affecting that entitlement;
(i)   any conditions authorized by the competent super-           (i)  any condition beyond the offeror's control and
     visory authority which the offeror places on the                  authorized by the supervisory authority, on which
      bid;                                                             the bid is dependent;
                                                                  (ia) the cases in which the bid may be withdrawn or
                                                                       declared void in accordance with Article 13;
(j)   the latest date on which the bid may be accepted,           (j)  the beginning and the end of the period during
                                                                       which the bid may validly be accepted;
(k)   the steps to be taken by the addressees of the bid in       (k)  unchanged
      order to signify their acceptance and to receive the
      consideration for the securities which they transfer
      to the offeror;
(1)   the intentions of the offeror, explicitly expressed,        (1)  the objectives of the offeror in making the bid and
      regarding the continuation of the business of the                his intentions towards the offeree company if the
      offeree company, including the use of its assets, the            bid succeeds, in particular regarding the use of its
      composition of its board and its employees;                      assets, the continuation of its business, the location
                                                                       where the offeror will establish the registered office
                                                                       of the offeree company, any restructuring of the
                                                                       offeree company and of companies controlled by it
                                                                       within the meaning of Article 8 of Council
                                                                       Directive 88/627/EEC, the continuation in office
                                                                       of members of the board of the offeree company,
                                                                       employment policy in the offeree company and
                                                                       companies controlled by it within the meaning of
                                                                       the said Article 8: and any special arrangements
                                                                       concerning employees' rights of participation which
                                                                       the offeror intends to maintain or to introduce, any
                                                                       amendments to the statutes or instrument of incor-
                                                                       poration of the offeree company, any measures
                                                                       concerning the listing of the securities of the offeree
                                                                       company and any policy on return on capital;
 ---pagebreak--- No C 240/22                              Official Journal of the European Communities                                  26. 9. 90
                      ORIGINAL PROPOSAL                                                  AMENDED PROPOSAL
(m) any special advantages which the offeror intends to            (m) unchanged
      grant to the directors of the offeree company;
(n) all agreements concerning the exercise of the voting           (n) all agreements to which the offeror is a party or of
      rights attached to the securities of the offeree                   which he is aware concerning the bid or the exercise
      company.                                                           of the voting rights attached to the securities of the
                                                                         offeree company.
2.     In addition, the offer document shall identify:             2.     In addition, the offer document shall identify the
                                                                   persons or entities referred to in paragraph 1 (e) (bb) to
                                                                   (ee).
(a) any person for whose account the offeror is acting;            2a.     If the offeror is acting in his own name but on
                                                                   behalf of another person or entity, the information
(b) any companies belonging with the offeror to the                referred to in paragraphs 1 and 2 shall relate to that
     same group of undertakings within the meaning of              person or entity and not to the offeror.
     Article 1 of Directive 83/349/EEC;
(c) any person acting in concert with the offeror.
3.     Where the consideration offered includes newly              3.     Where the consideration comprises securities which
issued securities for which at the time of the bid an              have been admitted to official listing on a stock
official stock exchange listing has been applied for,              exchange situated or operating within a Member State in
the offer document shall be accompanied by the                     the 12 months preceding the public announcement
listing particulars required by Council Directive                  required by Article 7 (1) the offer document shall be
80/390/EEC 0).                                                     accompanied by listing particulars drawn up in
                                                                   accordance with Council Directive 80/390/EEC of 17
                                                                   March 1980 on the listing particulars to be published for
                                                                   the admission of securities to official stock exchange
                                                                   listing 0).
4.     Where the consideration offered includes securities         4.     Where the consideration comprises securities other
for which at the time of the bid no official stock                 than those referred to in paragraph 3, the offer
exchange listing has been applied for, the offer document          document shall contain all the information equivalent to
shall contain all the facts necessary to enable the                that contained in the listing particulars referred to in
addressees of the bid to form an informed judgment as              paragraph 3 enabling the offerees to form an informed
to the assets and liabilities, financial position, record and      judgment as to the assets and liabilities, financial
prospects of the issuer.                                           position, record and prospects of the issuer.
(*) OJ No L 100, 17. 4. 1980, p. 1.                                (') OJ No L 100, 17. 4. 1980, p. 1.
 ---pagebreak--- 26. 9. 90                              Official Journal of the European Communities                           No C 240/23
                     ORIGINAL PROPOSAL                                                 AMENDED PROPOSAL
                                                                 5.     The supervisory authority may require the inclusion
                                                                 in the offer document of additional information. Where
                                                                 an item of information cannot be obtained in time or
                                                                 without excessive cost, or is not considered necessary for
                                                                 the protection of the shareholders or employees of the
                                                                 offeree company, the supervisory authority may exempt
                                                                 the offeror from the obligation to make it public giving
                                                                 reasons.
                         Article 11                                                        Article 11
            Publication of the offer document                                         Forms of disclosure
1.    The offer document and, where appropriate, the              1.    Without prejudice to Article 7(1), where this
documents required by Article 10 (3) or (4) shall be             Directive requires that a document or information be
either:                                                          made public, the Member States shall select not less than
                                                                 one of the forms of disclosure set out below:
(a) published in full in one or more national or mass-           (a) publication in one or more national or mass-circu-
    circulation newspapers and in the national gazette                lation newspapers or in the national gazette
    designated under Article 3 (4) of Council Directive               designated under Article 3 (4) of Council Directive
    68/151/EECO;or                                                    68/151/EEC of 9 March 1968 on disclosure
                                                                      requirements (*), or by other means affording wide
                                                                      circulation of the information and approved by the
                                                                      supervisory authority;
(b) made available to the addressees of the bid at               (b) making available to the adressees of the bid at
    addresses announced in notices in the newspapers                  addresses announced in notices in the newspapers
    and the gazette referred to at (a) or by equivalent               and the gazette referred to at (a) or by equivalent
    means approved by the competent supervisory                       means approved by the supervisory authority;
    authority; or
(c) where all the securities comprised in the bid are            (c) circulation to all the addressees of the bid, where all
    registered, circulated to all addressees of the bid.              the securities which are the subject of the bid are
                                                                      registered.
                                                                  la.    Where the securities of the offeree company are
                                                                  admitted to trading on the market of Member States
                                                                  other than the State in which the company has its
                                                                  registered office, disclosure shall take place in each
                                                                  Member State in accordance with the law in force in that
                                                                  state. In that case, the offer document may be made
                                                                  public at a later date in these Member States than in the
                                                                  Member State where the offeree company has its
                                                                  registered office, provided that, taking account of the
                                                                  period for acceptance fixed in the offer document, the
                                                                  addressees of the bid in these Member States have
                                                                  sufficient time to reach a properly informed decision on
                                                                  the bid.
O OJ No L 65, 14. 3. 1968, p. 8.                                  (') OJ No L 65, 14. 3. 1968, p. 8.
 ---pagebreak--- N o C 240/24                          Official Journal of the European Communities                                 26. 9. 90
                     ORIGINAL PROPOSAL                                                AMENDED PROPOSAL
2.    The offer document and, where appropriate, the            2.    The Member States shall take appropriate measures
documents referred to in Article 10 (3) and (4) shall also      to ensure that documents and information made public
be filed with the competent supervisory authority.              in accordance with paragraph 1 are communicated to the
                                                                supervisory authority.
                         Article 12                                                       Article 12
                   Period for acceptance                                           Period for acceptance
 1.   The period for accepting the bid indicated in the          1.   Member States shall provide that the period for
offer document in accordance with Article 10 (1) (j) may        acceptance of the bid to be specified by the offeror in the
not be less than four weeks or more than 10 weeks from          offer document in accordance with Article 10 (1) (j) may
the date of publication of the document in accordance           not be less than four weeks or more than 10 weeks from
with Article 11 (1).                                            the date on which the document is made public in
                                                                accordance with Article 11 (1).
2.    The period may not be modified without the auth-          2.    Without prejudice to Articles 15 (2) and 20 (4), the
orization of the supervisory authority, giving its reasons,     period may not be modified without the authorization of
without prejudice to Article 20.                                the supervisory authority, giving its reasons.
                         Article 13                                                       Article 13
                    Withdrawal of bids                                       Withdrawal or nullity of the bid
1.    Once a bid has been made public by the means              1.    When a bid has been made public in accordance
provided for in Article 11 (1), it may be withdrawn only        with Article 11 (1), it may be withdrawn or declared void
in the following circumstances:                                 onlv in die following circumstances:
(a) where there are competing bids and the offeror              (a) unchanged
    decides to withdraw his bid in accordance with
    Article 20 (4);
(b) in a bid in which new securities are        offered in      (b) unchanged
    exchange for the securities bid for,        where the
    approval of the general meeting of         the offeror
    company is not obtained for the issue      of the new
    securities;
(c) in a bid in which securities are offered in exchange        (c) unchanged
    for the securities bid for, where the securities fail to
    obtain an official stock exchange listing as the
    offeror intended;
(d) where the necessary judicial or administrative auth-        (d) where the necessary judicial or administrative auth-
    orization is not obtained for the acquisition of the            orization for the acquisition of the securities for
    securities for which the bid is made, and in particular         which the bid is made is refused or is not obtained,
    in the event of lack of authorization of the                    in particular if the operation is not authorized by the
    acquisition by the merger control authorities;                  merger control authorities;
 ---pagebreak--- 26. 9. 90                             Official Journal of the European Communities                            No C 240/25
                       ORIGINAL PROPOSAL                                                AMENDED PROPOSAL
(e) where a condition of the bid announced in the offer          (e) unchanged
    document in accordance with Article 10 (1) (i) and
    approved by the competent supervisory authority is
    not fulfilled
(f) in exceptional    circumstances and with the auth-           (f) unchanged
    orization of     the supervisory authority, giving
    reasons, where   the bid cannot be put into effect for
    reasons beyond   the control of the parties to the bid.
2.    The withdrawal of the bid shall be made public by         2.    The fact that the bid has been withdrawn or
the means provided for in Article 11 (1) and                    declared void shall be made public in accordance with
communicated to the competent supervisory authority.            Article 11 (1).
                          Article 14                                                      Article 14
           Report of board of offeree company                              Opinion of board of offeree company
1.    The board of the offeree company shall draw up a           1.   The board of   the offeree company shall draw up a
detailed report giving its views on the bid and setting out     document setting     out its opinion, together with the
the arguments for and against acceptance. The report            reasons on which     it is based, on the bid and on any
shall state whether the board is in agreement with the          revisions of it. The document shall specify as a minimum:
offeror on the bid and specify any agreements on the
exercice of the voting rights attached to the securities of      (a) whether the board of the offeree company is in
the offeree company.                                                 agreement with the offeror on the bid and any
                                                                     agreements on the exercise of the voting rights
                                                                     attached to the securities of the offeree company, so
                                                                     far as the board is aware of them;
                                                                 (b) whether the members of the board of the offeree
                                                                     company who hold securities in it themselves intend
                                                                     to accept the bid.
 2.   Where the consideration offered              comprises           deleted
securities for which at the time of the bid no official
stock exchange listing has been applied for, the board's
 report shall be accompanied by the report of an expert
 independent of the parties to the bid appointed or
 approved by the competent supervisory authority. This
report shall in all cases state whether, in the expert's
opinion, the consideration offered is fair and reasonable
and shall give the expert's views on the basis of valuation
used to determine the consideration.
 ---pagebreak---  No C 240/26                           Official Journal of the European Communities                                26. 9. 90
                      ORIGINAL PROPOSAL                                                AMENDED PROPOSAL
 3.   The reports shall, in good time before the expiry of        3.    In good time before the expiry of the period for
 the period for acceptance, be made public by the means           acceptance of the bid, the document referred to in
 provided for in Article 11 (1) and filed with the                paragraph 1 shall be made public in accordance with
 competent supervisory authority.                                Article 11 (1). The failure of the board of the offeree
                                                                  company to fulfil its obligation to draw up the document
                                                                  referred to in paragraph 1 in good time shall not have
                                                                  any suspensory effect concerning the bid.
4.    Where the board of the offeree company is in                      deleted
agreement with the offeror, the board's report, ac-
companied, where appropriate, by the expert's report as
referred to in paragraph 2, may be attached to the offer
document provided for in Article 10.
5.    The provisions of this Article shall also apply to                deleted
revisions of the bid and to competing bids.
                          Article 15                                                      Article 15
                      Revision of bids                                                 Revision of bids
1.    At any time before the last week of the period for         1.    At any time before the last week of the period for
acceptance announced in accordance with Article                  acceptance announced in accordance with Article
10 (1) (j), the offeror may revise the terms of the bid.         10 (1) (j), the offeror may revise the terms of the bid.
Article 7 (1) shall apply as regards the public                  Article 7 (1) and (3) shall apply to the public
announcement of the offeror's intention to revise the bid.       announcement of the offeror's intention to revise the bid.
2.    Where a bid is revised, the previous period for            2.     unchanged
acceptance shall be automatically extended by one week.
                                                                 2a.     The Member States may take appropriate steps to
                                                                 ensure that any successive revisions of the bid do not
                                                                 improperly impede the operation of the offeree company
                                                                 and of the market.
3.    The offeror shall draw up a document setting out           3.    The offeror shall draw up a document setting out
the amendments to the offer document and making it               the amendments to the offer document and make it
public by the means provided for in Article 11 (1).              public in accordance with Article 11 (1) in good time
                                                                 before the expiry of the period for acceptance of the bid.
4.    Member States shall ensure that persons who have           4.     unchanged
already accepted the previous bid by the offeror may
accept the revised bid.
 ---pagebreak--- 26. 9. 90                            Official Journal of the European Communities                            No C 240/27
                     ORIGINAL PROPOSAL                                               AMENDED PROPOSAL
5.    The periods provided for in paragraphs 1 and 2            5.     unchanged
may be modified with the authorization of the competent
supervisory authority, which must set out the reasons on
which it is based.
                         Article 16                                                      Article 16
                    Automatic revision                                              Automatic revision
The acquisition by the offeror, by persons acting in           Where after the public announcement required by Article
concert with him or by persons acting in their own name        7 (1), until the end of the period for acceptance, the
but on behalf of the offeror, during the acceptance            offeror, other persons or entities acting in their own
period, of securities in respect of which the bid is made       name but on behalf of the offeror, undertakings
at a price higher than that established in the offer           controlled by the offeror within the meaning of Council
document or one of its revisions, will itself be considered    Directive 88/627/EEC, or any other person acting in
as a revision of the bid and have the effect of increasing     concert with the offeror, acquires securities which are
the consideration offered to those who have accepted           the subject of the bid on more favourable conditions
previously.                                                    than those in the offer document, or any revisions
                                                               thereof, the Member States shall ensure that the
                                                                addressees of the bid qualify for the more favourable
                                                                conditions.
                         Article 17                                                      Article 17
   Provision of information to the supervisory authority           Provision of information to the supervisory authority
1.     Throughout the period for acceptance of the bid          1.     Throughout the period for acceptance of the bid,
the offeror shall provide the competent supervisory             all parties to the bid shall provide the supervisory
authority at any time on request with information as to         authority at any time on request with all information in
the number of acceptances received to date.                     their possession concerning the bid and necessary to the
                                                                discharge of the functions of the authority.
2.     From the time a bid is publicly announced in             2.     From the time a bid is publicly announced in
 accordance with Article 7 (1), the offeror or any holder       accordance with Article 7 (1) until the end of the period
 of 1 % or more of the voting rights of the offeree             for acceptance of the bid:
 company, of the offeror company if the offeror is a
 company, or of any other company whose securities are          — the offeror or any person or entity holding 5 % or
 offered by way of consideration, shall declare to the               more of the voting rights of the offeree company, or
 competent supervisory authority all acquisitions of                 where appropriate the offeror company, or any other
 securities of the said companies by the offeror or the              company      whose    securities   are   offered    as
 holder, persons acting in concert with them or persons              consideration, shall immediately inform the super-
 acting in their own name but for their account, and the             visory authority of all acquisitions of securities of
 purchase price of such securities.                                  these companies by the offeror or the holder, other
                                                                     persons or entities acting in their own name but on
                                                                     behalf of the offeror or the holder, undertakings
                                                                     controlled by them within the meaning of Article 8 of
                                                                     Council Directive 88/627/EEC, or any other person
                                                                     acting in concert with them, and of the price of these
                                                                     securities, and of any voting rights already held in
                                                                     the company in question,
 ---pagebreak---  No C 240/28                           Official Journal of the European Communities                                26. 9. 90
                        ORIGINAL PROPOSAL                                               AMENDED PROPOSAL
                                                                     any person or entity acquiring 0,5 % or more of the
                                                                     voting rights of the offeree company, or where
                                                                     appropriate, the offeror, or where appropriate any
                                                                     other company whose securities are offered as
                                                                     consideration,    shall    immediately   inform     the
                                                                     competent supervisory authority of that acquisition
                                                                     and of any subsequent acquisitions of the securities of
                                                                     these companies by him, other persons or entities
                                                                     acting in their own name but on his behalf,
                                                                     companies controlled by him within the meaning of
                                                                     Article 8 of Council Directive 88/627/EEC, or any
                                                                     other person acting in concert with him, of the price
                                                                     of these securities, and of any voting rights be
                                                                     already holds in the company in question.
                         Article 18                                                       Article 18
                Publication of result of bid                                     Disclosure of result of bid
Once the period for acceptance has expired, the result of        On the expiry of the period for acceptance, the result of
the bid shall be made public by the means provided for           the bid shall be made public immediately in accordance
in Article 11 (1) and shall be communicated to the               with Article 11 (1).
competent supervisory authority by the offeror.
                         Article 19                                                       Article 19
Information for representatives of employees of the              Information for representatives of employees of the
                      target company                                                  offeree company
The board of the offeree company, shall communicate to           1.    The board of the offeree company shall
its workers' representatives, as designated by national          communicate to its employees' representatives, as
legislation or customary practice in Member States, the          designated by national legislation or customary practice
offer document and, where appropriate, the documents             in the Member States, the offer document and, where
referred to in Article 10 (3) and (4), as well as its own        appropriate, the documents referred to in Article 10 (3)
report as referred to in Article 14 and, if appropriate, the     and (4), the opinion required by Article 14 (1) and all
expert's report as referred to in Article 14 (2).                documents or information made public in accordance
                                                                 with Article 11 (1) concerning the revision, withdrawal
                                                                 and result of the bid.
                                                                 2.    Such    documents      or information     shall   be
                                                                 communicated immediately after they are made public in
                                                                 accordance with Article 11 (1).
                         Article 20                                                       Article 20
                      Competing bids                                                  Competing bids
1.    Where competing bids are made for the securities           1.    unchanged
of the offeree company, this Directive shall apply to each
such bid.
2.    Competing bids shall be publicly announced in              2.    deleted
accordance with Article 7 (1). The offeror shall draw up
an offer document in accordance with Article 10 and
shall make it public by the means provided for in Article
11 (1) before the period for acceptance of the initial bid
expires.
 ---pagebreak--- 26. 9. 90                                Official Journal of the European Communities                          No C 240/29
                      ORIGINAL PROPOSAL                                                AMENDED PROPOSAL
3.     Except with the authorization of the competent              3.     unchanged
supervisory authority, which must set out the reasons on
which it is based, persons acting in concert with the
offeror or acting in their own name but for the account
of the offeror may not make a bid competing with the
initial bid.
4.     Where there are competing bids and the initial              4.     unchanged
offeror does not withdraw his bid, the period for
acceptance of the initial bid shall be extended auto-
matically to the date of expiry of the period for
acceptance of the competing bid. The extension shall be
made public by the means provided for in Article 11 (1)
and communicated to the competent supervisory
authority.
                                                                    5.    The Member States shall ensure that the addressees
                                                                   of a competing bid who have already accepted a prior
                                                                   bid qualify for the competing bid.
                                                                    6.    The Member States may take appropriate steps to
                                                                    ensure that the existence of competing bids does not
                                                                   improperly impede the operation of the offeree company
                                                                    and of the market.
                                                                    7.    Member States may refrain from applying
                                                                   paragraph 5 to irrevocable acceptances in cases of
                                                                    competing bids if such acceptances are permitted under
                                                                    their legislation.
                           Article 21                                                      Article 21
                      Contact committee                                                Contact committee
 1.     A contact committee shall be set up under the               unchanged
auspices of the Commission. Its function shall be:
 (a) without prejudice to the provisions of Articles 169
      and 170 of the Treaty, to facilitate the uniform
      application of this Directive through regular consul-
      tations on, in particular, practical problems arising in
      its implementation;
 (b) to ensure concerted action upon the policies
      followed by the Member States in order to obtain
      reciprocal treatment for Community nationals and
      companies as regards the acquisition of securities of
      a company by means of a takeover bid;
 (c) to advise the Commission, if necessary, on additions
      or amendments to this Directive.
 ---pagebreak---  N o C 240/30                         Official Journal of the European Communities                              26. 9. 90
                       ORIGINAL PROPOSAL                                              AMENDED PROPOSAL
 2.    The contact committee shall be composed of repre-
 sentatives of the Member States and representatives of
 the Commission. The chairman shall be a representative
 of the Commission. Secretarial services shall be provided
 by the Commission.
 3.    The Commission shall be convened by the
chairman either on his own initiative or at the request of
one of its members.
                         Article 22                                                     Article 22
               Transposition of the Directive                                Transposition of the Directive
 1.    Member States shall adopt before . . . the laws,          1.   Member States shall adopt before 1 January 1992
regulations and administrative provisions necessary to          the laws, regulations and administrative provisions
comply with this Directive. They shall forthwith inform         necessary to comply with this Directive. They shall
the Commission thereof.                                         forthwith inform the Commission thereof.
2.     Member States shall fix the date of entry into force     2.    The date of entry into force which Member States
of these provisions in any case at the latest by . . .          lay down for these provisions shall be no later than
                                                                1 January 1993.
3.    Member States shall communicate to the                    3.    unchanged
Commission the texts of the main provisions of national
law which they adopt in the field covered by this
Directive.
                                                                4.    The provisions adopted pursuant to paragraph 1
                                                                shall make express reference to this Directive.
                         Article 23                                                    Article 23
                Addressees of the Directive                                   Addressees of the Directive
This Directive is addressed to the Member States.               unchanged