The Comparison and the Reality of German and the UK Takeover Law

Abstract

This is the transcript of a discussion meeting held with German and UK M&A lawyers on takeover rules and practices. Dr. Burian, a German lawyer, and Mr. Robinson, an English lawyer, are both specialized in M&A and corporate affairs. Also, they have worked as registered foreign lawyers in Japan and have been familiar with Japanese corporate law practices. The meeting was held on June 2, 2009, at Waseda University in Tokyo.

The Issues discussed in this interview are as follows.

1. “Shareholder decision-making” and “Maximizing shareholder value”

2. EU Takeover Directive

3. Reality of the defensive measures in the UK

4. Reality of the defensive measures in Germany

5.“Cold shouldering” and “self regulation under the shadow of statutory rules” in the UK

6. Role of the financial adviser and cash confirmation in Germany

7. Change of control clause

8. Equity derivatives and “hidden ownership”

9. Recent movement on the case of Schaeffler/Continental and the case of Porsche/Volkswagen in Germany

10. Threshold for a mandatory offer

11. Principle of whole solicitation and the strategy for adjusting the ratio of acquiring target shares

12. Schemes of arrangements in the UK

Keywords: takeover, UK, Germany, Japan, EU Takeover Directive, defensive measures, cold shouldering, mandatory offer, shareholder decision-making, hidden ownership, Schaeffler/Continental, Porsche/Volkswagen, whole solicitation, schemes of arrangements, Herbert Smith, Gleiss Lutz, change of control clause

JEL Classification: G28, G34, G38, K23, K42