In March 2016, the Austrian Takeover Commission ("Commission") initiated a formal investigation pursuant to section 33 para 1 sub-para 2 of the Austrian Takeover Act ("ATA") regarding whether several investing parties qualify as "parties acting in concert" pursuant to section 1 para 6 of the ATA. The Commission had reason to believe that a small group of shareholders of conwert Immobilien Invest SE ("conwert") collectively may have held a controlling stake in Conwert in 2015. If true, these controlling parties would have been legally obligated to make a mandatory tender offer to the remaining shareholders in 2015, immediately after becoming such controlling parties. In addition, if this group did hold a controlling stake at that time, then they failed to properly report and disclose appropriate financial and ownership information. Due to these reasons, the Commission initiated a formal investigation into this issue earlier this year on its own motion.
The Commission's decision dated 22 November 2016 was made publicly available under the reference number GZ 2016/1/2-317 on 6 December 2016 at the Commission's Website (http://www.takeover.at/entscheidungen/). In its decision, the Commission came to the conclusion that five parties (ADLER Real Estate AG, MountainPeak Trading Limited, Mr. Cevdet Caner, Westgrund AG, Petrus Advisers LLP) qualify as parties "acting in concert" under the ATA based on a broad interpretation of this term, that they gained a controlling stake in Conwert in September 2015, and ruled that they subsequently failed to make a mandatory takeover offer shortly thereafter in 2015. It is expected that the above five parties will not accept the Commission's ruling and appeal its decision to the Austrian Supreme Court. The investigation was discontinued with respect to the other parties concerned.
The Commission's decision should not have an impact on the take-over bid that was initiated by Vonovia SE earlier this year. ADLER Real Estate AG, conwert's largest shareholder, has already stated that it will accept Vonovia's buyout offer of €2.9 bn for conwert.
Rautner Attorneys-at-law represented one of the parties involved in this case.
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