There is no requirement to disclose a deal when acquiring a non-public company, other than the requirement that a buyer intending to acquire a controlling stake in a non-public company must announce the transaction publicly through nationally circulated newspapers before the buyer and the seller can close the transaction.
In terms of public company acquisitions, a prospective controller can announce that it is in negotiations with the seller in a nationally circulated newspaper. This announcement is typically made if the buyer anticipates an increase in the price of the public company’s shares, which will affect the minimum price at which the buyer must purchase the shares during any subsequent Mandatory Tender Offer (MTO) process.
Once the negotiation process is announced, a 90-day period for determining the MTO price is locked, starting backwards from the date on which the announcement was made. If an announcement is not made, the 90-day period will be calculated backwards from the date of the closing (ie, the date on which the acquisition is effective).
To the extent that the prospective controller decides not to disclose to the public information resulting from the negotiations, the parties involved must keep confidential the information that results from the negotiations.
This first appeared in the Chambers Corporate M&A 2019 global guide, published by Chambers and Partners. You can find the full chapter here.
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