NORWAY Law and Practice Contributed by: Robin Aker Jakobsen, Amund Fougner Bugge, Jan Magne Langseth and Stig Walle, Simonsen Vogt Wiig
are furnished for performance of the offeror’s obli- gations (but, for a voluntary offer, there is no obliga- tion to actually have the funds in place). Irrespec- tive of this requirement, bidders in voluntary offers would generally expected to have arranged financing before announcement, and target companies normally require confirmation of such as a condition for issuing a positive board recommendation. A voluntary offer in a regulated market can be con- ditional on the bidder obtaining financing. In market practice, this is quite rare ‒ although the authors have been involved in offers subject to a financing condi- tion. There are no legal requirements for financing related to an offer in an MTF or with regard to information on financing in the offer document related to such an offer. 4.10 Types of Deal Protection Measures There are no statutory prohibitions on deal protection measures under Norwegian law. Target companies may in principle agree to various forms of protection mechanisms, provided that the board complies with its fiduciary duties and acts in the best interests of the company and its shareholders. The most common deal protection measures in Nor- wegian public takeover transactions include: • break-up or termination fees; • non-solicitation or no-shop clauses; • matching rights; and • voting undertakings and lock-ups. Overall, any deal protection measure must be reason- able, proportionate, and justified as being in the best interests of the company and its shareholders. Norwe- gian regulators emphasise that the board of directors must not take any action that may frustrate a bona fide bid without shareholder approval. 4.11 Additional Governance Rights If a bidder does not obtain full ownership of the tar- get company, the bidder’s governance rights are gov- erned by the ordinary thresholds under Norwegian company law.
A simple majority of the votes is sufficient to control board elections and other ordinary resolutions at the general meeting. Mergers, demergers, amendments to the articles of association, increases of equity through issuance of new shares, and other structural changes require the approval of at least two-thirds of both the votes cast and the share capital represented. Shareholder agreements that regulate profit sharing, voting, or similar arrangements are uncommon among issuers listed on Norwegian trading venues, includ- ing both regulated markets and MTFs. Such arrange- ments may be considered to restrict the free transfer- ability of shares, which is a requirement for admission It is standard practice for bidders to obtain irrevoca- ble undertakings from major shareholders to accept or support the offer. These commitments are usually provided prior to the announcement and disclosed in the offer document. The undertakings are typically conditional upon no superior competing offer being announced ‒ although fully binding undertakings are also used. Such prac- tice is consistent both across transactions in regulated markets and in MTFs. 4.13 Securities Regulator’s or Stock Exchange Process Approval Process for Offers in a Regulated Market In relation to an offer in a regulated market, the offer document must be reviewed and approved by the Norwegian FSA before the offer can be launched. The Norwegian FSA reviews the offer document to ensure that it complies with the requirements set out in the Norwegian Securities Trading Act. The review focuses on the completeness and accuracy, rather than on the commercial merits of the offer. to and trading in these marketplaces. 4.12 Irrevocable Commitments The Norwegian FSA does not approve the offer price or other financial terms, except to verify compliance with the minimum price rule applicable to mandatory offers (ie, that the price is at least equal to the high- est price paid by the bidder during the preceding six months).
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