Opposite interpretations of the law between offeror and Takeover Commission prevent exchange offer
On 13 January 2016 Pierer Industrie AG has announced to submit a voluntary public offer pursuant to sections 4 et seq. Austrian Takeover Act to the shareholders of Pankl Racing Systems AG. Pierer Industrie AG has filed an application to extend the deadline for the filing of the tender document with the Takeover Commission to a maximum of 40 trading days. On 17 February 2016 Pierer Industrie AG has filed the tender document including the confirmation of the external expert with the Takeover Commission. On 3 March 2016 the Board of Directors of CROSS Industries AG has been informed by Pierer Industrie AG that the Takeover Commission with notification dated 2 March 2016 has ordered that the tender document shall temporarily not be published as due to the complexity of the transaction and the corresponding legal issues relating to a public exchange offer the review of the tender document could not be completed by the Takeover Commission within the deadline provided by Section 11 para 1 Austrian Takeover Act.
On 23 March 2016 the Board of Directors of CROSS Industries AG has been informed by Pierer Industrie AG that the Takeover Commission with notification of 23 March 2016 has finally prohibited the publication of the tender document. The Takeover Commission is of the opinion that the calculation of the supplementary payment guarantee according to Section 16 para 7 Austrian Takeover Act should not be based on the average price over a given reference period but on the market price of the securities offered in exchange on a specific date. As in a transaction which has been executed in the past, Pierer Industrie AG has used the volume-weighted six-month average price prior to the publication of the offer intention (reference value: EUR 30.43) for the assessment of the value of the offered in kind consideration. On the contrary, the Takeover Commission is of the opinion that in the current case the market price on the day of the intended publication of the tender document (4 March 2016; reference value: EUR 27.63) has to be taken into account for the assessment of the value of the offered in kind consideration. Pierer Industrie AG does not share the Takeover Commission’s interpretation of the law. Due to the final prohibition of the publication of the tender document, the exchange offer must not be carried out.
This ad-hoc release does neither constitute an offer to sell or an offer to acquire nor an intimation to submit a proposal for the acquisition or sale of securities of Pankl Racing Systems AG and/or CROSS Industries AG.