NORWAY Law and Practice Contributed by: Robin Aker Jakobsen, Amund Fougner Bugge, Jan Magne Langseth and Stig Walle, Simonsen Vogt Wiig
8.3 Producing Financial Statements To the extent the offer is in cash, there is no legal requirement for an offerer to produce financial state- ments in its disclosure documents. However, if the offer is stock-for-stock and the offerer is required to prepare a prospectus under the EU Prospectus Regu- lation, the offerer is also required to produce financial statements in accordance with the prospectus rules. For EEA prospectuses, the issuer must in principle make public audited financial information covering the previous three financial years and the audit report in respect of each year. For national prospectuses, the issuer’s audited financial statements for the previous two years and possible interim accounts made public after the date of the last balance sheet date must be attached to the prospectus. For unlisted companies and companies listed on Euronext Growth Oslo, financial statement prepared in accordance with the Norwegian Generally Accepted Accounting Principles will be sufficient. For companies listed on regulated markets, Oslo Børs and Euronext Expand Oslo, financial statements must be prepared in accordance with the International Financial Report- ing Standards. 8.4 Disclosure of Transaction Documents If the target company in a regulated market has com- mitted to no-shop or non-solicitation undertakings towards the offerer, any such undertakings must be described in the offer document. The Norwegian FSA may in this regard request access to the documenta- tion describing such obligations in connection with its review of the offer document (normally, the transaction agreement). However, there is no requirement to make the transaction agreement public as such.
Although the formal, legal duty is to the company (and, indirectly, to the shareholders collectively), Nor- wegian law and practice also recognise that directors may – and, in certain situations, should – consider the interests of other stakeholders (such as employees, creditors, and the community), especially if the com- pany is in financial difficulty or insolvency. However, this broader stakeholder consideration is generally secondary to the primary duty to the company itself. 9.2 Special or Ad Hoc Committees In public transactions taking place in a company listed on a regulated market, if a bid has been made by someone who is a member of the board of directors of the target company or the bid has been made in concert with the board of directors of the company, the Norwegian FSA will require that the board of direc- tors’ statement regarding the bid is made by the non- conflicted members of the board of directors only. More generally, it is common for the board of direc- tors to establish committees for certain tasks such as remuneration and audit. In a Norwegian public limited liability company considered to be an enterprise of public interest under the Norwegian Auditors Act, an audit committee must be elected by and among the members of the board of directors. The committee has certain specific tasks under the Norwegian Public Limited Liability Companies Act. There have also been examples whereby a listed company in a takeover situation has established a committee among the board members (often includ- ing the chair of the board of directors) to negotiate terms of the offer with the offeror, but the result of such negotiations must be presented to the whole board of directors. 9.3 Role of the Board In Norway, the board of directors of a listed company would be expected to be actively involved in the whole transaction process, including: • the negotiations with the bidder; • deciding on whether to open for due diligence to a specific offerer; • giving advice to the management on the process; and
9. Duties of Directors 9.1 Principal Directors’ Duties
Under Norwegian law, members of the board of direc- tors owe their duties primarily to the company. In practice, this usually aligns with the interests of the shareholders as a whole. This obligation applies also to a business combination.
339 CHAMBERS.COM
Powered by FlippingBook