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CMS Advises BDI on Take-over Offer by Majority Shareholder and Subsequent Delisting

CMS Advises BDI on Take-over Offer by Majority Shareholder and Subsequent Delisting

Austria
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CMS Vienna has advised Styria-based BioEnergy International AG (BDI) on its intended delisting of its free-float shares from the Frankfurt Stock Exchange, which is expected to follow a take-over offer from its majority shareholder, BDI Beteiligungs GmbH. According to CMS, "this is one of the first delisting proceedings after the new German provisions on delisting came into force at the end of 2015."

BDI Beteiligungs holds 72.46% of BDI shares. According to CMS, "it intends to make the free float shareholders an offer for their BDI shares. BDI also intends, in consultation with the main shareholder, to carry out a delisting of its shares in due course after the offer documents have been published and will, for this purpose, make an application for the revocation of the listing of its shares from the regulated market of the Frankfurt Stock Exchange."

The CMS team was led by Partner Martin Zuffer, supported by Attorneys-at-Law Mark Philipp and Katharina Grafenhofer. Zuffer stated, "we are very pleased that we are able to support BDI in this transaction, which is extremely interesting from a legal perspective. Much attention was paid to the topic of delisting in both theory and practice after two parallel decisions by the German Federal Constitutional Court in 2012, and there was a lively discussion about what the requirements are on an application by the issuer for revocation of admission to trading on the regulated market. With its 'Frosta' decision in 2013, the German Federal Court of Justice abandoned its case law from 2002 ('Macrotron') and decided that a delisting requires neither a resolution by a general shareholders meeting nor is a compensation for the shareholders necessary. The calls arising after this decision for more investor protection showed that a legal provision was becoming increasingly necessary. The German legislators responded to this very quickly and embedded a legal provision for delistings in the German Stock Exchange Act. The transaction at hand is one of the first proceedings under these new legal provisions in Germany and is the very first case where an Austrian issuer is involved. This is why the transaction is of particular interest to us."