Reflecting on Concerted Action in relation to Mandatory Takeover Bids : Shareholders Agreements and the Concerted Exercise of Voting Rights

This article deals with cases in which the obligation to launch a mandatory takeover bid is linked, not to the acquisition of a controlling interest, but to the signing of a simple voting agreement between shareholders that together exceed the mandatory bid threshold. The rationale behind this obligation is analysed in contrast to traditional acquisitions of shares, whilst highlighting the problems of legal uncertainty that this model has generated in many European countries, due to the open-ended trigger of the mandatory bid and its frequent overlap with regular shareholder collaboration/cooperation and activism. It also analyses the specific voting agreements that may entail a mandatory bid obligation under Spanish law, advocating the need to restrict them to genuine shareholders agreements only and excluding any other kind of agreement or understanding, in particular non-binding informal or tacit agreements. Finally, the recent Securities Markets and Investment Services Draft Bill is also critically analysed, which seeks to extend mandatory bids to the signing of other kinds of voting agreements