[Last updated: 1 January 2025, unless otherwise noted]

There are three main forms of takeover bids in Poland:

• a mandatory (follow-up) takeover bid, which a bidder is required to make if it exceeds (alone or acting in concert with other entities) a threshold of 50% of the votes in the target company;
• a voluntary (prior) takeover bid, in which a bidder voluntarily makes an offer for all of the shares issued by the target company without triggering the mandatory takeover bid and irrespective of the exceeding of any thresholds; and
• a delisting bid, which a bidder is required to make prior to delisting the target company.

As a result of the amendments to the Public Offering Act, the obligation to announce a prior takeover bid in order to exceed the 33% or 66% thresholds of the total number of votes in the target was replaced with a single takeover bid threshold set at the level of 50% of the total number of votes in the target, requiring the announcement of a follow-up takeover bid for all the remaining shares in the target. According to a temporary provision, shareholders holding more than 50% and less than 66% of the total number of votes in the target company will be obligated to announce a takeover bid for all the remaining shares if, after 30 May 2022, their stake in the company is increased for any reason (including, among other things, the acquisition of shares or redemption of shares held by other shareholders).

A bidder that intends to launch a voluntary, mandatory or delisting takeover bid must file, via a broker, a notification of the intention to announce a takeover bid by means of a several-page takeover circular with the PFSA as well as proof of the establishment of collateral in favor of the broker an amount corresponding to not less than 100% of the value of the shares to be acquired during the takeover bid.

The collateral must be established in one of the forms set forth in the Tender Offer Regulation, i.e., a guarantee or assurance issued by a bank or another financial institution; insurance cover; the blocking of cash funds on a bank account, or the blocking of shares or bonds.

No prospectus needs to be prepared in connection with a takeover bid, except for an exchange offer where securities are offered as consideration.

During the takeover bid period (starting on the date of the filing with the PFSA of the intention to announce a takeover bid), the bidder (or its affiliates and persons acting in concert) may not purchase directly or indirectly any shares in the target company outside the public takeover bid (nor sell or agree to sell shares in the target company).

4.1 Mandatory public takeover bid

(a) Threshold

When the threshold of 50% of the votes in the target company is exceeded (by the bidder, together with affiliates and persons acting in concert), the bidder is obliged to announce a follow-up takeover bid for all the remaining shares of the target company within three months of exceeding the threshold.

The mandatory takeover bid is triggered regardless of whether the bidder crossed the 50% threshold intentionally or unintentionally, e.g., due to a share capital reduction. There is no obligation to announce a mandatory takeover bid if the threshold of 50% of the total number of votes in the company has been exceeded as a result of a prior voluntary takeover bid.

(b) Exceptions

The main exceptions to the mandatory takeover bid obligation include situations where:

• the stake is acquired from an affiliate;
• the stake is acquired as party of a bankruptcy estate or from a court bailiff;
• the target's shares are traded exclusively on an MTF;
• the stake is acquired through the enforcement of a security interest, and
• the stake is acquired from the State Treasury in certain instances of privatization.

Also, the announcement of the mandatory takeover bid is not required under the following circumstances:

• the 50% threshold was exceeded as a result of the announcement of a prior voluntary takeover bid, or
• within three months after exceeding the 50% threshold, the bidder's stake falls below 50% due to:
  • an increase in the target's share capital;
  • a change in the target's articles of association; or
  • the expiry of the shares privilege (but not the disposal of shares).

The obligation to announce a takeover bid prevails even if the bidder reduces its stake to below the 50% of votes threshold, as such situation is not covered by the exceptions stated above.

(c) Conditions precedent

As mandatory takeover bids cannot be conditional:

• Any potential antitrust clearance or other regulatory approvals (including the FDI procedure) should take place before the mandatory takeover bid is announced.
• The bidder may recall an announced mandatory takeover bid only if another entity announces another unconditional takeover bid in which the share price is higher.

(d) Dual-listing and foreign-incorporated companies listed in Poland

In the case of a foreign-incorporated public company whose shares:

• are admitted to trading on a regulated market exclusively on the territory of the Republic of Poland;
• have been admitted to trading for the first time on a regulated market on the territory of the Republic of Poland and are admitted to trading on a regulated market in another Member State which is not the target's country of incorporation;
• have been simultaneously admitted to trading on a regulated market on the territory of the Republic of Poland and in another Member State that is not the country of the company's headquarters - if the company has designated the PFSA as the authority competent to supervise takeover bids,

the obligation to launch a mandatory takeover bid based on Polish regulations does not apply and the bidder is required to undertake the process in accordance with the regulations relevant to the target's country of incorporation with the exception of the Public Offering Act and Tender Offer Regulation provisions concerning the subject of the consideration offered in the takeover bid, the price of the shares proposed in the takeover bid and the procedure for conducting the takeover bid, especially with regard to its content and the procedure for announcing it.

In the case of a foreign-incorporated public company whose shares:

• are admitted to trading on a regulated market in the Member State in which the company has its registered office and are admitted to trading on a regulated market on the territory of the Republic of Poland,
• are admitted to trading for the first time on a regulated market in a Member State other than the Republic of Poland, which is not the country of the company's headquarters, and are admitted to trading on a regulated market on the territory of the Republic of Poland,
• are simultaneously admitted to trading on a regulated market on the territory of the Republic of Poland and on a regulated market in a Member State other than the Republic of Poland that is not the country of the company's registered office - if the company has designated the supervisory authority in that other country as the authority competent to supervise takeover bids,

Polish law provisions regarding public takeover bids do not apply.

In the case of a dual-listing carried out without the consent of the company (possible in cases when the shares in such company are already listed on another regulated market), the entity that has applied for the admission of such shares to trading on a regulated market in Poland, in the event of their withdrawal from trading on another regulated market, must announce a takeover bid for all of the shares in such company that have been acquired as a result of transactions concluded in Poland and that are recorded in securities accounts maintained in Poland.

4.2 Voluntary public takeover bid

(a) Threshold

The acquisition of more than 50% of the total number of votes at the target company's general meeting can be executed by a prior takeover bid for 100% of the shares in the target company.

If the threshold of 50% of the total number of votes in the target company is exceeded as a result of a voluntary bid before the threshold is exceeded, the bidder is not required to launch a follow-up mandatory bid (which would otherwise be the case once the 50% threshold is crossed – please see 4.1(a)).

No takeover bid needs to be announced if a bidder wants to reach up to 50% of the total number of votes in the target company.

(b) Conditions precedent

The bidder is free to make the takeover bid subject to merger control clearance (if relevant merger control thresholds are met) and certain other conditions precedent, such as a minimum acceptance level (jointly with the shares held by the bidder, its affiliates and persons acting in concert, capped at 50% of the votes in the target company), that the target company enters into a certain agreement, that the target company's general meeting passes a particular resolution or that the bidder's general meeting or another governing/supervisory body gives its consent to the transaction, as required by applicable law. Lack of material adverse change or satisfactory results of due diligence are not acceptable conditions. As a rule, the bidder may waive the conditions precedent (other than those relating to the competent authority's approval) during the subscription period.

Unless the target company is in a regulated industry, e.g., banking or insurance, no prior approval of any regulatory authority is required to launch a takeover bid. Polish law imposes restrictions on the acquisition of large shareholdings (over 20%) in certain companies of strategic importance for the Polish state. The list of such companies is updated from time to time by the Polish government.

4.3 Delisting public takeover bid

(a) Threshold

A delisting takeover bid is announced if the bidder wants to delist the target from the WSE and holds less than 100% of the total number of votes in the target company. In practice, a delisting takeover bid is announced if the bidder holds between 90% and 95% of the total number of votes in the target (i.e., enough to vote for a delisting at the target company's shareholders' meeting but not enough to squeeze out the minority shareholders of the target company). It is a prior public takeover bid for 100% of the shares in the target, applicable to all listed companies (regulated market and MTF) and should be announced prior to a shareholder request on the adoption of a delisting resolution by the target's shareholders' meeting. The procedure for a delisting takeover bid is substantially the same as the procedure applicable to voluntary and mandatory takeover bids (i.e., a step plan and price calculation mechanism).

(b) Conditions precedent

A delisting takeover bid cannot be conditional. To delist the target, investors can decide to announce either a voluntary takeover bid or a delisting takeover bid. In practice, if any conditions precedent are envisaged, investors may prefer to first announce a voluntary takeover bid for all the shares of the target. However, if as a result of the voluntary takeover bid, the bidder acquires less than 95% of the total number of votes in the target (this threshold allows a squeeze-out procedure to be initiated), an additional delisting takeover bid may be required.

4.4 Public takeover price

The bidder is, in principle, free to determine the price and the form of consideration offered to the target shareholders, subject to the following key terms:

• The price offered is payable in cash, securities or a combination of both. Consideration consisting of securities may generally comprise the shares in another Polish-listed company or other securities admitted to trading on a regulated market or introduced to trading in an alternative trading system which grant voting rights in a Polish-listed company (provided that a cash alternative is also offered in an amount corresponding to the cash value of the consideration in securities).
• The price in the takeover bid may not be lower than the minimum price required by law. The price for the shares in a public takeover bid may not be less than:
  • the arithmetic mean of the market price for which the shares were sold on the WSE established on the basis of the daily volume-weighted average price (VWAP) in the last six months and three months (or a shorter period if the shares were traded on the WSE for a period shorter than six months) prior to submitting the notice on the intention to announce a takeover bid to the PFSA,
  • the highest price paid (or the payment of which has been agreed, by way of a put option, for example) or the highest value of items or rights given away by the bidder, its subsidiary, its dominant entity or any entity acting "in concert" with the bidder during the 12 months prior to submitting the notice on the intention to announce a takeover bid to the PFSA (if applicable),
  • the indirect share purchase price paid by the bidder, its subsidiary, its dominant entity or any entity acting "in concert" with the bidder for the target company's shares in connection with the indirect acquisition of the target company's shares that took place in the 12 months prior to the submission to the PFSA of notification of the intention to launch a takeover bid (as determined by an audit firm selected by the bidder),
• The fair value of the shares (as determined by an audit firm selected by the bidder), if:
  • it is not possible to determine the price as described above, or if the target company is subject to restructuring or bankruptcy proceedings,
  • during the last three months, shares of the target were traded in less than 1/3 of the sessions and if at least 1/3 of those sessions noted a difference of at least 5% in the closing price of the shares compared with the closing price in the previous session in that period,
  • the volume of trading of the target company's shares on a regulated market or on a MTF (in the case of delisting bids) in the six months preceding the delivery of a notice of the intention to announce a takeover bid constitutes less than 1% of all the target's shares admitted to trading on a regulated market or introduced to trading on a MTF.
• There may be different prices paid for different voting classes of shares in the target. Usually however, one price is offered for all the shares in the target, regardless of their voting rights. However, the price may be lower than that calculated pursuant to the principles discussed above if at least 5% of the total number of the target company’s shares are to be acquired from a particular shareholder, and both the bidder and such shareholder agree to set the price at such lower level.
• In the course of a takeover bid, the price for the tendered shares may be changed (increased or decreased) by the bidder not more often than every five business days. If a competitive takeover bid was announced or the price in such takeover bid was changed, the period of five days is not applicable.
• If the price is changed: (i) the amount of the collateral needs to be immediately supplemented by an amount corresponding to not less than 100% of the value of the tendered shares; (ii) the bidder should pay a new increased price to all shareholders who have subscribed for the shares before the price increase was announced; and (iii) the bidder should pay the initial price to all shareholders who subscribed for the shares before the price decrease was announced.
• If, within six months from the end of a takeover bid, the bidder has directly or indirectly acquired further shares in the target, other than during the course of the takeover bid, at a price higher than the price specified in the previous takeover bid, it is obliged, within one month of that acquisition, to pay the difference in price to all shareholders who sold shares in that takeover bid, excluding shareholders from whom the shares were acquired at a reduced price. This obligation does not arise in the event of a squeeze-out.
• In the event of the approval by means of a valid court judgment of a claim for payment of a price in a takeover bid that is higher than that determined by the bidder on the basis of the abovementioned principles, the bidder is obliged to pay the difference in price to all shareholders who sold shares in the takeover bid, regardless of whether they were the ones who instituted the claim, within one month of the court judgment becoming valid.
• In the case of a delisting takeover bid for shares in a target listed on an MTF (NewConnect), the price for the shares may not be lower than the arithmetic mean of the market price for which the shares were sold on such market in the last six months as established on the basis of the daily VWAP, and if the shares were sold within a shorter period of time, the average market price for such shorter period (but, in any case, for not less than the average market price for the last three months).
• The price in a public takeover bid for the exchange of shares should be the value of the shares to be exchanged for the target company’s shares, which is determined as follows:
  • for shares traded on a regulated market: on the basis of the arithmetic mean of the market price for which the shares were sold established on the basis of the daily VWAP in the six months prior to the date of the announcement of the takeover bid (if the shares were traded on a regulated market for less than six months, the average daily VWAP for such shorter period),
  • for shares whose value cannot be determined pursuant to the above rules: on the basis of their fair value.

4.5 Follow-on squeeze-out and sell-out right

1. Follow-on squeeze-out – a bidder will be able to squeeze out the residual minority shareholders if, for any reason (including successful completion of a takeover bid), it holds, alone or in concert with others, 95% of the total number of votes in the target.
2. Sell-out right – if the bidder is not itself launching a squeeze- out – minority shareholders have a sell-out right if, for any reason (including successful completion of a takeover bid), the bidder holds, alone or in concert with others, 95% of the total number of votes in the target.
3. The squeeze-out and sell-out may be effected within three months following the date on which the bidder crosses the threshold of 95% of the total number of votes in the target.