DENMARK Law and Practice Contributed by: Jakob Østervang, Peter Østergaard Nielsen, Anders Hørlyck Jensen and Tejs Degn Leth Ernst, Accura Advokatpartnerselskab
the following percentages: 5%, 10%, 15%, 20%, 25%, 1/3%, 50%, 2/3%, 90%. The obligation applies to both direct and indirect hold- ings, including financial instruments that confer enti- tlement to acquire shares with voting rights. Shareholders whose holdings reach, exceed, or fall below any of the above thresholds due to a transac- tion initiated by the shareholder must notify the com- pany and the Danish FSA immediately, and no later than four business days after the shareholder sub - ject to the notification obligation becomes or ought to have become aware that the transaction has been completed. Where the transaction is carried out by a third party on behalf of the shareholder subject to the notification obligation, the shareholder is deemed to have become aware of the transaction and the notifi- cation obligation no later than two business days after the transaction. Upon receipt of the notification, the company must publish an announcement to the market within three trading days. Stating the Purpose and Plans Pursuant to the Danish rules on major shareholders, a buyer is only obliged to notify the size of the stake acquired. For strategic reasons, buyers may voluntar- ily choose to disclose the purpose of acquisition of a significant stake, and their strategic plans or inten- tions with respect to the company, although this is not a legal requirement under the major shareholder notification regime. However, if a mandatory tender offer is triggered as set out in 6.2 Key Developments in Renewable Energy and Cutting Emissions , the disclosure requirements in connection with tender offers must be followed. “Put Up or Shut Up” Requirement Denmark does not have a formal “put up or shut up” rule like some other jurisdictions. 4.2 Mandatory Offer In Denmark, a mandatory tender offer is triggered if the buyer, directly or indirectly, or by acting in concert with any persons, obtains control over the target com-
pany, which means an acquisition of shares result- ing in (i) at least one-third of the voting rights (unless it can be clearly demonstrated in special cases that such ownership does not constitute control)); or (ii) obtaining control over at least one-third of the voting rights by virtue of an agreement, or having the right to appoint or dismiss the majority of the members of the company’s central management body. The concept of “acting in concert” is interpreted broadly under Danish law and includes parties who cooperate based on an agreement – formal or informal – regarding the acquisition or exercise of voting rights. Once the threshold is reached, the buyer must, within four weeks, submit a mandatory takeover offer to all remaining shareholders. The offer must be uncondi- tional and include a cash alternative. The Danish FSA may grant exemptions from the mandatory bid. In practice, exemptions are typically granted in relation to capital increases in distressed companies. Moreover, the obligation to make a mandatory takeo- ver offer does not apply if the threshold is reached under the following circumstances: (i) the acquisition results from a voluntary takeover bid; (ii) where the acquisition of shares occurs by way of inheritance, enforcement proceedings, or intra-group transfers; or (iii) where the acquisition of shares results from an underwriting commitment in connection with a capital increase or from an agreement with the issuer or one or more shareholders regarding the resale of shares, provided that the acquirer disposes of such shares within five business days after the acquisition to the extent that control is no longer held, and the voting rights during the interim period are not exercised or In Denmark, acquisitions of listed companies are typi- cally carried out as a public tender offer or by way of a merger. Public Tender Offer The most common way to acquire a public company is to make a voluntary tender offer to all shareholders otherwise used to exert control. 4.3 Transaction Structures
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