The Art of Acquisition, 2nd Ed
Written by leading legal and banking professionals, and academics from across Europe, 'European Takeovers' will help you navigate national takeover legislation and its implementation, and discusses recent ground-breaking and controversial takeovers from across the Continent.
This second edition further explores the area following the partial harmonisation of takeover regulation within the European Union since the introduction of the European Takeover Directive and is an exhaustive reference source for anyone preparing, participating in and responding to takeover activity in the EU. In addition, US takeover law is examined in depth to provide a comparative perspective.
This new edition will also prove to be an invaluable guide for students and academics studying this area of law. Written by leading legal and banking professionals, and academics from across Europe, 'European Takeovers' will help you navigate national takeover legislation and its implementation, and discusses recent ground-breaking and controversial takeovers from across the Continent. Notable transactions examined include Akzo Nobel-PPG, Syngenta-ChemChina, Actelion-J&J, Celesio-McKesson, Abertis-ACS/Atlantia and SAB Miller-AB InBev.
Table of Contents
|Table of contents||3|
|The Takeover Directive andjudicial enforcement ofshareholder rights in practice||7|
|Creeping acquisitions in Europe||27|
|Convertible bonds and the best price rule: the Celesio case||39|
|About the authors||363|
|About Globe Law and Business||373|
The chapters of this edited book, which are written by prominent academics and practitioners, are also excellent from a substantive point of view. It is certainly a welcome addition to the ongoing debate about the harmonisation of takeovers at EU level.
International Company and Commercial Law Review
Jülide A Bredée
Legal adviser, Deminor Recovery Services
Jülide A Bredée is a legal adviser at Deminor Recovery Services (DRS). DRS assists funds, institutional investors and private individuals in recovering economic losses caused by misconduct. She completed her LLB (Hons) at the University of Aberdeen and her LLM at King’s College London.
Partner, Deminor Recovery Services
Charles Demoulin is a partner at Deminor Recovery Services (DRS). DRS assists funds, institutional investors and private individuals in recovering economic losses caused by misconduct. Mr Demoulin joined DRS in 1999 and became partner in 2008. Prior to joining DRS, he worked as an attorney at law at the Brussels office of Allen & Overy (formerly Loeff Claeys Verbeke), where he specialised in commercial and company law and litigation. Mr Demoulin holds a master of laws from the University of Louvain and a postgraduate degree in corporate finance from the University of Leuve.
Sophie de Beer
Counsel, Cleary Gottlieb Steen & Hamilton LLP
Sophie de Beer’s practice focuses on mergers and acquisitions as well as on banking and financial regulatory matters. Her experience in public M&A transactions includes assisting Total in its tender offer for Saft Groupe (2016), Lafarge in the combination with and tender offer by Holcim (2015) and InvestIndustrial in its proposed competitive tender offer for Club Med (2014). She also has wide experience in private M&A especially in the banking and financing sectors, including Amundi in its €3.5 billion all-cash acquisition of Pioneer Investments from UniCredit (2016) and BNP Paribas in its acquisition of fintech outfit Compte Nickel (2017). Ms de Beer became a counsel in 2005. She lectures on group corporate strategies at HEC business school.
Christiaan de Brauw
Partner, Allen & Overy
Christiaan de Brauw is a partner in the corporate department of Allen & Overy, Amsterdam. He specialises in corporate law and M&A transactions, with a strong focus on public M&A. He has a wide range of experience in friendly and contested scenarios, acting for bidders, targets, controlling and large shareholders and investment banks. He also regularly advises on corporate governance and shareholder activism.
Mr de Brauw is a fellow at the Business and Law Research Centre of the Van der Heijden Institution for Corporate Law of the Nijmegen University and teaches regularly on public M&A and related matters. He has published a comprehensive textbook on Dutch public takeovers.
Allen & Overy Professor of Corporate Law, University of Oxford
Luca Enriques is the Allen & Overy Professor of Corporate Law, Faculty of Law, University of Oxford and a European Corporate Governance Institute (ECGI) research fellow. He holds degrees in law and has consulted with private entities as well as governments and international organisations for over 15 years.
He is a co-author of The Anatomy of Corporate Law (3rd edition, 2017) and Principles of Financial Regulation (2016). He has published widely in the fields of corporate law, securities regulation and banking law. He has held visiting positions, among others, at Harvard Law School, the University of Cambridge Faculty of Law, the Instituto de Impresa (Madrid) and the Interdisciplinary Centre Hertzliya. Between 2007 and 2012 he was a commissioner at the Italian securities market authority. Before joining the Oxford Faculty of Law, he was professor of law at the University of Bologna (2002–7) and at LUISS Guido Carli University in Rome (2013–14), and a consultant to Cleary, Gottlieb, Steen & Hamilton (2003–7).
Alejandro Fernández de Araoz
Partner, Araoz & Rueda
Alejandro Fernández de Araoz is a partner in the corporate department of Madrid-based law firm Araoz & Rueda. He co-founded Araoz & Rueda in 1994 after obtaining LLM degrees at the London School of Economics and NYU. He was also a visiting researcher at Harvard Law School and has taught corporate and commercial law at Complutense University in Madrid for a number of years.
Since then, he has developed his practice advising in general corporate and commercial matters and, especially, in mergers and acquisitions and capital markets, where he has extensive experience and has written and lectured on a broad variety of legal and practice topics. Furthermore, he regularly advises on litigation and restructuring/insolvency matters.
Bruno Ferreira is a partner on PLMJ’s finance and capital markets team. He has over 15 years’ experience advising on a wide range of banking, finance and capital markets transactions. Mr Ferreira specialises in assisting on a wide range of complex transactions, both local and international, handling a unique mix of transactional and regulatory advisory work in some of the most challenging financial areas, including some of the most significant equity capital markets transactions in Portugal. Having graduated from Coimbra Law School in 2001, Mr Ferreira obtained an LLM in banking law from Lisbon Law School in 2010. He is a prolific researcher and has published numerous articles in scholarly reviews and contributions to books. Mr Ferreira is a member of Portuguese thinktank Governance Lab and the Portuguese Institute for Corporate Governance.
Łukasz Gasiński is a legal adviser admitted to practise in Poland, a US-qualified attorney, a partner in Weil’s corporate department and head of the Warsaw office’s regulatory team. He joined Weil in 2002.
In 2003 Dr Gasiński obtained a PhD from the Faculty of Law and Administration of the University of Warsaw, and in 2016 was awarded the title of doktor habilitowany. He was admitted to the Bar Association of the State of New York in 2004 and qualified as a Polish legal adviser in 2009. A specialist in corporate law and securities law, he has participated in significant privatisation projects, corporate restructurings and public M&A transactions. He has also advised leading financial institutions on regulatory matters and proceedings before the Polish Financial Supervisory Authority.
Dr Gasiński lectures on commercial law at the University of Warsaw. He has authored more than 40 publications. He is ranked by numerous international legal rankings.
Professor of Law, Rutgers Law School
Matteo Gatti is professor of law at Rutgers Law School where he teaches business organisations, M&A and corporate finance. His main academic interests are US and European M&A law, international corporate governance and shareholder voting. Professor Gatti is the author of a book on tender offers and his scholarly articles have been published in US law journals (including the Hastings Law Journal, Stanford Journal of Law, Business and Finance and Columbia Journal of European Law), as well as in European, UK and Italian publications. He received his JD summa cum laude from the University of Milan, his LLM from Harvard Law School and his SJD from the University of Brescia. He began his teaching career at the University of Milan School of Law. After receiving his LLM, he taught securities regulation, mergers and acquisitions and corporate finance as an assistant professor at the University of Milan Bicocca School of Law. Professor Gatti practised in corporate and M&A matters at a New York law firm and spent a few years as in-house counsel.
Senior associate, Arendt & Medernach
Noémi Gémesi is a senior associate in the capital markets practice of Arendt & Medernach, where she specialises in securities law and capital markets regulation. She advises clients including financial institutions and corporate and sovereign issuers on a wide range of matters, including initial public offerings, placements and buybacks of securities, consent solicitations and exchange offers, takeovers, applications for listing and admission to trading and ongoing obligations resulting from such listings. She was admitted to the Luxembourg Bar in 2014. Ms Gémesi completed her education at the University of Eötvös Lorand (Hungary) and Université Paris II Panthéon Assas (France). She speaks English, French and Hungarian.
London School of Economics
Jeremy Grant worked in technology, media and telecoms M&A at JP Morgan on international transactions, as a consultant examining antitrust regulation and as an equity research analyst. He was employed in the latter role for JP Morgan, Crédit Industriel et Commercial (CIC) and Berenberg. At CIC he was ranked Number 1 Research Analyst for Special Situations in the Extel Pan-European Awards. Currently, Dr Grant is a researcher on academic sabbatical at the London School of Economics. Previously he was executive director of the Centre for Corporate Governance at London Business School.
Dr Grant’s research has been published in top peer-reviewed journals, including the Review of Financial Studies, European Business Organisational Law Review and Journal of Competition Law and Economics. He has provided analysis to the op-ed pages of the Wall Street Journal and Financial Times Deutschland. He earned a law degree and MSc degrees in management and international relations from the London School of Economics. He also holds a PhD in finance from Cambridge University.
Associate, Cleary Gottlieb Steen & Hamilton LLP
Matthew Hamilton-Foyn is an associate in the London office of Cleary Gottlieb Steen & Hamilton. His practice focuses on UK public takeovers, cross-border mergers and acquisitions and international joint ventures. He has acted for a range of corporates, private equity firms and financial institutions on complex public and private M&A transactions, including Fidessa on its competitive takeover offers from ION and Temenos; Loxam on its successful competitive bid for Lavendon Group; and The Raine Group as financial adviser to SoftBank in its acquisition of ARM Holdings. From 2014 to 2016, Mr Hamilton- Foyn was seconded to the UK Takeover Panel, during which time he regulated a large number of takeovers, investigations and other transactions governed by the UK Takeover Code, including Royal Dutch Shell’s takeover of BG Group and Aviva’s takeover of Friends Life Group.
Partner, Schellenberg Wittmer Ltd
Pascal Hubli is a partner in Schellenberg Wittmer’s M&A group in Zurich. His practice focuses on M&A and capital markets transactions, public takeover law, corporate restructurings, complex corporate and commercial law matters, contract law and stock exchange law. Mr Hubli has wide experience in advising national and international listed and non-listed companies and groups, as well as entrepreneurs and investors from various industries. Mr Hubli studied law at the Universities of Zurich and Geneva, as well as at the University of Sydney (LLM, 2010). He was admitted to the Bar in Switzerland in 2007. Mr Hubli is a member of the Swiss Bar Association, the Zurich Bar Association – where he serves as co-head of the U40 Group, the young practitioners group – the International Bar Association and the International Association of Young Lawyers.
Klaus R Ilmonen
Partner, Hannes Snellman Attorneys Ltd
Klaus Ilmonen, LLD, is a partner and head of capital markets, Finland, with Hannes Snellman Attorneys Ltd. His practice includes equity capital markets, public takeovers and other corporate transactions involving public corporations. He has served on a consultative working group for the European Securities Markets Authority and participated in drafting the Finnish takeover regulations. He teaches securities regulation at the University of Helsinki. Dr Ilmonen holds a doctorate in law from the University of Helsinki and an LLM from the Columbia University School of Law, and has been a visiting researcher at Harvard Law School. He has also qualified as an attorney in the State of New York and practised US securities law in London. He has also served as an officer with the Finnish forces in Kosovo and Afghanistan.
Partner, Cleary Gottlieb Steen & Hamilton LLP
Simon Jay is a partner in the London office of Cleary Gottlieb Steen & Hamilton and advises on all types of mergers and acquisitions, as well as joint ventures and restructurings. He has represented both large corporates and private equity funds on a broad range of public and private M&A transactions, often involving crossborder issues. Mr Jay is recognised as a leading M&A lawyer by Chambers Global, Chambers Europe, Chambers UK, the Legal 500 UK and IFLR 1000. Mr Jay’s experience includes advising Fidessa on its competitive takeover offers from ION and Temenos; Coca-Cola on a combination of businesses to form a new Western European bottler, Coca-Cola European Partners; The Raine Group as financial adviser to SoftBank in its acquisition of ARM Holdings; and Warburg Pincus and General Atlantic in the joint acquisition from Banco Santander of a 50% stake in Santander Asset Management and the subsequent divestment.
Professor, Copenhagen Business School; Visiting senior fellow, London School of Economics
Tom Kirchmaier is professor of governance, regulation, risk and compliance at the Copenhagen Business School, and visiting senior fellow, Centre for Economic Performance, at the London School of Economics. He is an empirical economist interested in developing novel insights into risk and performance of financial and nonfinancial organisations using large firm-level datasets. The aim is to answer questions that are of interest in economics, corporate finance and management. In the governance space, he is interested in issues of governance models, boards, shareholder rights and ownership. He is also working on an array of questions around the economics of policing and crime.
Partner, Cleary Gottlieb Steen & Hamilton LLP
Valérie Lemaitre’s practice focuses on corporate and financial matters, including acquisition transactions involving public companies, financing transactions and securities offerings. She has notable experience in public M&A transactions, including Gecina in its acquisition of Eurosic. She also has wide experience in capital market transactions and financing transactions, in particular in the context of public M&A transactions, including Thales in the financing of its tender offer for Gemalto and Investindustrial in the financing of its proposed competitive tender offer for Club Med. She joined the firm in 1994 and became a partner in 2002.
Lawyer, ELR LEX
Gianluca Leotta is the founding partner of Italian law firm ELR LEX, which has offices in Milan and Rome. He has significant experience in several fields of corporate law, with a focus on M&A transactions and the structuring of private equity and venture capital deals. In the last 15 years, Mr Leotta has been involved in turnaround operations in M&A transactions, in the establishment of private equity funds and in the structuring of investment transactions in the nonperforming loan and real estate sectors.
Mr Leotta is known in the Italian market as a dealmaker in private equity and venture capital, with a background in the creation of innovative solutions for investors and shareholders. Mr Leotta also assists private and listed companies in the IT and internet sectors due to strong knowhow acquired and being one of the Italian lawyer experts in the blockchain and initial coin offering process.
Partner, Mannheimer Swartling
Patrik Marcelius is a partner at Mannheimer Swartling and specialises in public takeovers and equity capital markets. He is a member of the Swedish Bar Association. He received his law degree from the University of Stockholm in 1998 and his LLM from the University of Cambridge in 2000. Recent transactions include advising Nordax on a recommended bid by Nordic Capital and Sampo in 2018; Schörling & Partners on its management buyout of Melker Schörling AB in 2017; Haldex on its successful defence against a hostile bid by Knorr-Bremse in 2017; Altor on its recommended bid for Transcom in 2017; Nordic Capital and Lindorff on the combination with Intrum Justitia in 2016; Meda on a recommended bid by Mylan in 2016; the Independent Committee of Scania on an unsolicited bid by Volkswagen AG in 2014; and Nordic Capital and Thule Group on the listing of Thule Group at Nasdaq Stockholm in 2014.
Alexander S Metallinos
Partner, Karatzas and Partners
Alexander Metallinos has been a partner with Karatzas and Partners since 2000. He holds an LLB from the National and Kapodistrian University of Athens, an LLM and a doctorate in European law from the Westfälische Universität Münster and an LLM from Yale Law School.
His main publications include Die europarechtskonforme Auslegung, 1994; Insurance Contracts in Private International Law, in Greek, 1997; commentary on Articles 4 to 33 (private international law) in Concise Commentary of the Civil Code, Georgiadis (ed), 2010; “The Greek sovereign debt restructuring” in Sovereign Debt and Debt Restructuring, Bruno (ed), 2013; commentary on Articles 23, 24, 42, 44, 45, 53 and 54, in Crossborder inheritance law, Article-by-article commentary on EU Regulation 650/2012, Pamboukis (ed), 2016; and “Applicable law on companies and other legal entities – The current state of play in Greek private international law”, Commemorative Volume Leonidas Georgakopoulos, 2016, p551.
Casimiro A Nigro
PhD candidate, LUISS Guido Carli; Goethe Universität
Casimiro Nigro obtained a summa cum laude law degree in 2006 from the Perugia University Law School and an LLM in 2012 from the London School of Economics. He is currently based in Frankfurt, where he is completing his doctoral research. In addition, he is a research fellow at the Sustainable Architecture for Finance in Europe Research Centre.
His research interests focus on corporate governance and corporate law, with emphasis on conflicts of interests in fundamental transactions, as well as financial intermediation.
As a licensed lawyer, between 2006 and 2018 he has practised law with both national and international law firms, specialising in corporate law and financial services regulation.
Schellenberg Wittmer Ltd
Lorenzo Olgiati heads Schellenberg Wittmer’s M&A group in Zurich. His practice focuses on domestic and cross-border mergers and acquisitions, public takeovers, securities and stock exchange regulation, private equity transactions and other significant corporate and commercial matters, including advice on corporate governance matters and shareholder activism. His clients include Swiss and international private and listed companies, including multinational groups of companies, institutional investors, entrepreneurs and Swiss public authorities.
Mr Olgiati is consistently ranked as a leading corporate/M&A practitioner by Chambers Global, in which he is praised for “his creative and resultsoriented approach” and described as “very fast, responsive and precise”. He is also recognised as a leading lawyer by IFLR 1000 and Who’s Who Legal, in which he is rated “excellent” and lauded for his “fabulous expertise” and “enviable client list”.
Partner, Linklaters LLP
Philippe Remels is a partner in the corporate/M&A department of Linklaters LLP in Brussels. He has extensive experience in corporate law, cross-border (private and public) M&A, corporate restructurings, joint ventures and private equity transactions. He also specialises in equity capital markets transactions (initial public offerings, rights issues and private placements). He holds a law degree from the University of Leuven and an LLM from the University of Cambridge.
Partner, Arendt & Medernach
Laurent Schummer is a partner and a member of the corporate law, M&A, private equity and real estate and capital markets practices of Arendt & Medernach. In addition to general company law, mergers and acquisitions, joint ventures and group restructuring matters, he handles takeover, equity offering and listing matters. He has been a member of the Luxembourg Bar since May 1998. Mr Schummer is a standing member of the M&A Commission of the Union Internationale des Avocats. He is a lecturer in corporate law at the University of Luxembourg. Prior to joining Arendt & Medernach, he was a partner at Linklaters LLP, Luxembourg, which he joined in 1997. Mr Schummer holds a master’s in law from the Catholic University of Louvain and an LLM from the University of Chicago Law School. He speaks English, French, German and Luxembourgish.
Associate, Allen & Overy
Olivier Valk is an associate at Allen & Overy, specialising in corporate law and M&A transactions, with a strong focus on public M&A. He joined Allen & Overy in 2011 after obtaining an LLM from Utrecht University, the Netherlands, and Durham University, United Kingdom. As part of the corporate department in Amsterdam, he works on a wide variety of public offers and crossborder legal mergers.
Paul Van Hooghten
Paul Van Hooghten was a corporate partner at Linklaters from 1995 to April 2018. He is a Belgian-qualified lawyer admitted at the Bar of Brussels. He has more than 30 years of experience in advising on corporate law and corporate restructurings, international and domestic mergers and acquisitions, joint ventures, private equity, takeover bids and equity offerings. His clients include several private equity houses, multinational companies, financial institutions and organisations. He serves as a director and secretary of the board of Amcham (Belgian Chamber of Commerce) and as a director of non-profit organisation United Fund for Belgium. He is the author of several publications in the field of corporate law and regularly speaks at conferences and seminars.
Mr Van Hooghten holds a JD from the University of Leuven and a master’s degree from the University of Illinois at Urbana-Champaign.
Felix von Zwehl
Senior legal counsel, Deminor Recovery Services
Felix von Zwehl is a German-qualified lawyer and senior legal counsel at Deminor Recovery Services (DRS). DRS assists funds, institutional investors and private individuals in recovering economic losses caused by misconduct. During his career, he has worked on several high-profile M&A transactions, including the Volkswagen/Porsche takeover battle in Germany. At DRS, Mr von Zwehl focuses on securities litigation, particularly in an M&A and corporate governance context. He holds a degree in law from the University of Munich and a degree in economics from the University of Bayreuth.
Partner, Mannheimer Swartling
Thomas Wallinder is a partner at Mannheimer Swartling and specialises in public takeovers and equity capital markets. He is a member of the Swedish Bar Association and is admitted to the New York Bar. He received his law degree from the University of Stockholm in 1990 and an LLM from Duke University School of Law in 1991. Recent transactions include representing SSAB on a 2016 Skr5 billion rights issue; Lundin Petroleum in the acquisition of an additional 15% interest in the Edward Grieg field from Statoil in 2016; the underwriters in the initial public offering of Dustin on Nasdaq Stockholm 2015; SSAB in its 2014 exchange offer for Rautauukki; Scandinavian Airlines in a 2013 preference share offering; Sandvik in a 2012 exchange offer for Seco Tools; Biovitrum in its 2009 acquisition of Swedish Orphan International and related rights issue; and China Petroleum & Chemical Corporation (Sinopec) in its 2008 recommended public cash offer for Tanganyika Oil.
Partner, Schellenberg Wittmer Ltd
Martin Weber is a partner in Schellenberg Wittmer’s corporate/M&A group in Zurich. His main areas of practice are private and public mergers and acquisitions, capital markets, corporate governance and corporate restructurings. He has extensive experience in advising publicly listed and closely held companies, including multinational corporate groups, on cross-border mergers and acquisitions, including public takeovers. He also regularly assists clients on a variety of other international business transactions, including joint ventures and stake buildings in publicly listed companies. He is the co-editor of takeoverpractice.ch, Schellenberg Wittmer’s innovative website on Swiss takeover law. Following his legal studies at the University of Zurich, Dr Weber was admitted to the Bar in Switzerland in 1986. He earned his LLM from the University of Chicago Law School in 1988, before joining Schellenberg Wittmer. In 1993, he graduated as a doctor of law from the University of Zurich.
Senior associate, Weil
Jakub Zagrajek is an advocate admitted to practise in Poland and a senior associate in the corporate department of the Warsaw office of Weil. He joined Weil in 2009.
In 2010, he graduated from the Faculty of Law and Administration of the University of Warsaw and from the Faculty of Finance and Accounting of the Warsaw School of Economics. In 2015, he obtained a PhD in company law from Akademia Leona Kozminskiego in Warsaw. He is a CFA® charterholder.
A specialist in commercial law and capital markets regulations, Dr Zagrajek has participated in M&A transactions in Poland, initial public offerings and secondary public offerings, as well as public offerings of debt securities listed on Polish and foreign regulated markets. He also advises Warsaw Stock Exchange-listed public companies on issues involving trading in financial instruments and issuer disclosure obligations on a regular basis.