Introduction
The Securities and Stock Exchange Act provides for a mandatory
offer obligation when a shareholder, or a group of shareholders
acting in concert, exceeds a threshold of 33.3% of the voting
rights in a company listed on the stock exchange (or 49% when a
company has introduced an opt-up clause). The shareholders of a
listed company can choose to opt out of the mandatory offer
obligation according to Article 22 of the act, by including an
opt-out clause in the articles of association. Such an opt-out
clause can be included before or after the listing of the shares on
the stock exchange. The introduction of an opt-out clause is, in
principle, invalid when it is selective either in a formal sense
(ie, the name of the beneficiary of such clause is explicitly
stated in the articles of association) or in a material sense (ie,
such a clause was introduced in view of a specific beneficiary or a
particular transaction, without stating explicitly such beneficiary
or
