24 March 2026 – need2know

The strategic interplay of low-ball offers, creeping-in, share exchange offers and the absence of a ‘put-up or shut-up’ clause – under Austrian takeover law, things work differently.

The offer and its rationale

On 16 March 2026, the Italian UniCredit S.p.A. announced its decision to launch a voluntary public exchange offer to the shareholders of the German Commerzbank AG:

The share exchange offer carries an exchange ratio of 0.485 UniCredit shares for each Commerzbank share, corresponding to an implied price of around €30.80 per Commerzbank share — a premium of just 4% on the closing price of 13 March 2026.

Commerzbank CEO Bettina Orlopp described the offer as ‘at a very low price’ – it contained no premium whatsoever for shareholders. UniCredit CEO Andrea Orcel described the purpose of the offer as being solely to resolve the 30% cliff-edge issue under German law.

It is reasonable to presume that UniCredit has carefully considered the structuring and is making targeted use of German takeover law. For Austrian target companies, the rules of the game are different.

This article outlines the key elements and highlights the other limitations for Austrian target companies.

Step 1: The Austrian ‘put-up or shut-up’ approach prevents strategic ambiguity
Takeover Rumors involving UniCredit

As UniCredit increased its stake, it remained noncommittal — neither a clear ‘yes’ to an offer nor a clear ‘no’ to an offer was communicated. There were intense market rumors and price fluctuations. Under German law, this was permissible: The German Securities Acquisition and Takeover Act (WpÜG) does not require companies to respond to market rumors or price fluctuations with a binding statement.

The Austrian Takeover Act (ATA), on the other hand, requires bidders to disclose market rumors or significant price movements immediately — with concrete consequences:

• The announcement of an intention to launch a takeover triggers a 10-trading-day deadline for filing the offer document (extendable to 40 trading days).
• If the potential bidder does not publish an offer within 40 trading days, they are subject to a one-year lock-up period during which no further offer may be published (Section 21(2)(1) ATA).
• A lock-up period also applies if a ‘negative intention to acquire’ (i.e., an intention to submit an offer has been denied) has been declared (Section 21(3) ATA).

Austrian law requires clarity — and imposes a one-year lock-up period

The put-up or shut-up rule prevents strategic ambiguity. Target companies should be protected from a period of uncertainty in which neither a transaction takes place nor clarity exists. Takeover rumors can lead to distorted prices and valuations and may disrupt the target company’s business operations or be used to undermine planned or ongoing takeover proceedings.

The rule has significant implications for transactions that must be carefully considered by both bidders and the management of the target company:

• Even rumours in the market can bring confidential discussions with the target company’s management or shareholders into the spotlight, which can affect the pricing of an offer and also attract competing bidders.
• When preparing an offer, confidentiality between internal teams and advisory teams must be taken very seriously in order to minimise the risk of information leaks.
• The regulation forces bidders to come to the negotiating table already prepared and ready for swift implementation, as unprepared bidders run the risk of being subject to the lock-up period.

Step 2: Low-ball offer with the option to increase the bid

UniCredit CEO Andrea Orcel described the purpose of the offer as being solely to resolve the 30% cliff-edge issue under German law. At present, UniCredit has to regularly reduce its stake due to ongoing share buybacks in order to remain below 30% and avoid (unintentionally) triggering a mandatory offer.
Given the low premium, the offer is clearly not intended to consolidate the stake. UniCredit already holds over 26% (and more than 3% via total return swaps) and aims to exceed the 30% threshold as part of the offer. A ‘low-ball offer’ refers to control-seeking offers that meet the statutory minimum price but do not include a control or takeover premium — ‘the ball is kept low’. Through, following or in connection with the offer, the bidder acquires or may nevertheless acquire control, but is not required to submit a further offer.
The offer is subject (only) to the statutory minimum price — specifically, the volume-weighted three-month average price of Commerzbank shares, increased by any prior purchases made at higher prices over the last six months.

A market test applies in Austria:

• Voluntary takeover bids aimed at acquiring a controlling stake (i.e. 30% plus one share) are subject by law to a minimum acceptance threshold of more than 50% of the offer volume.
• The 50% threshold applies to the offer volume. Any shares already held (Launchpad) are not taken into account.

The 50% minimum acceptance threshold serves as a market test of an offer’s attractiveness (price).

However, such a low-ball offer can also be made in Austria if the 30% threshold is exceeded, thereby triggering a mandatory offer. Conceptually, the minimum acceptance threshold does not apply to this.

However, creeping-in sets limits on the advantages of low-ball offers

Step 3: Once the 30% threshold has been crossed, further purchases in Germany are possible without restriction — a structural advantage for the bidder
Austrian law: ‘Creeping-in’ sets limits on the purchase of additional shares

Section 22(4) ATA contains a ‘creeping-in’ provision: any person holding more than 30% but less than 50% triggers an obligation to make an offer upon purchasing 3% or more within a calendar year.

German law has no comparable provision: once a shareholder has exceeded the 30% threshold, they may purchase additional shares at any time without having to submit a new offer. This creates a ‘post-crossing privilege’, even in the case of a low-ball offer.

Step 4: The share exchange offer
Shares instead of cash

UniCredit has decided on a pure share exchange offer — no cash offer, no mixed offer. The exchange ratio (0.485 UniCredit shares for each Commerzbank share) is determined by BaFin in accordance with Section 31(1), second sentence, of the German Securities Acquisition and Takeover Act (WpÜG) in conjunction with Section 7 of the WpÜG-AngebVO, based on the three-month VWAPs of both shares.

Austrian law: shares only as an alternative

The Austrian Takeover Act prohibits offers consisting solely of a share swap for control-relevant offers. A cash offer is mandatory. Shares may only be offered in addition as an alternative form of consideration.

Conclusion: Different rules of the game for Austrian target companies

• Limits on strategic ambiguity: ‘Put-up or shut-up’ with a one-year lock-up period forces clarity.
• Creeping-in: Between 30% and 50% stake, the increase in shareholding – without a bid – is limited to 3% per calendar year. This reduces the attractiveness of low-ball offers.
• Mandatory cash offer: Consideration in shares (only) as an alternative for offer addressees.

Authors:
Patrick Nutz-Fallheier, Michal Dobrowolski, Christoph Nauer

Practice groups:
Corporate/M&A, Capital Markets, Finance & Regulatory

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