Modernisation of the takeover rules

14 December 2018

The Takeover Bid Act, the Takeover Bid Decree and the Squeeze-out Decree have been amended recently, in particular to strengthen the role and independence of the expert who has to intervene in certain public takeover bids.

  • The threshold for a mandatory bid is increased from 30% to 50% of the voting securities for companies with voting securities (partially) listed on Euronext Growth Brussels (the new name of Alternext Brussels) or Euronext Access Brussels (the new name of the Free Market).
  • The prospectus obligation is abolished for takeover bids by issuers on their (own) debt instruments. It is replaced by the obligation to make public a note, which must be pre-approved by the FSMA.
  • Credit institutions established in a member state of the European Economic Area (and not necessarily in Belgium) are also authorised to confirm that the aggregate bid price is (or will be) available. The same applies to stockbroking firms, which are authorised to receive acceptances and to pay the bid price.
  • The role and independence of the expert who has to deliver a valuation report in the event that the bidder controls the target company (offre de ramassage) are strengthened in many areas.
  • The same goes for the expert who intervenes in a squeeze-out bid, who has to confirm that the bid price does not deny the interests of the security holders. Some other provisions of the squeeze-out decree have also been changed, in the light of recent court cases, with a view to better protecting the interests of the minority security holders.
  • FSMA approval is no longer required for the documents and notices that relate to a public takeover bid (e.g. corporate documents) but which are not specifically aimed at influencing the acceptance of the bid. Actual advertisements, of course, still have to be pre-approved by the FSMA.
  • Certain securities transactions during the bid period no longer have to be notified to the FSMA, such as transactions by important security holders of the bidder or securities lending transactions.

The new rules apply to takeover bids for which the acceptance period started after 14 October 2018. The new rules on advertisements already apply to ongoing bids.