DENMARK Law and Practice Contributed by: Jakob Østervang, Peter Østergaard Nielsen, Anders Hørlyck Jensen and Tejs Degn Leth Ernst, Accura Advokatpartnerselskab
Domination and Profit-Sharing Agreements While Denmark does not have specific provisions for domination and profit-sharing agreements, the offeror can still achieve significant control through the owner- ship levels mentioned above. Additionally, the offeror may enter into shareholder agreements with other shareholders to establish certain governance arrange- ments. 4.12 Irrevocable Commitments It is common in Denmark to obtain irrevocable com- mitments from principal shareholders of the target company to tender their shares in the offer. These commitments help provide certainty to the bidder that a significant portion of the shares will be tendered, increasing the likelihood of the offer’s success. Such commitments are legally binding and are typically in the form of either a “hard” commitment or a “soft” commitment, allowing shareholders to withdraw their commitment if a superior competing offer is made in the offer period. The commitments typically remain in effect until the transaction is completed, or a speci- fied end date is reached. It is most common to enter into “soft” irrevocable undertakings, which allow the relevant shareholders to accept a competing offer on better terms. 4.13 Securities Regulator’s or Stock Exchange Process In Denmark, a takeover offer document must be approved by the Danish FSA before it is published. The Danish FSA oversees compliance with the Danish Capital Markets Act and the Danish Executive Order on Takeover Bids. Since the offer document must be published no later than four weeks after the publica- tion of the decision to make an offer, only four weeks are available for the approval process with the Danish FSA. The Danish FSA does not explicitly approve the offer price but ensures that the offer complies with regula- tory requirements. In relation to mandatory offers, the offer price must be at least equal to the highest price paid by the offeror for any shares within the six months preceding the offer. Any subsequent purchases at a higher price within six months after the offer’s comple- tion may trigger a compensation obligation to share- holders who accepted the offer.
The timeline for approval and publication of the offer document must be approved by the Danish FSA, and any extension of the offer period must be approved by the Danish FSA. The Danish FSA also oversees that the timeline, as informed in the takeover offer docu- ment, follows regulatory requirements. The offer period must be at least four weeks and no more than ten weeks from the date of publication of the offer document. The offer period may be extended on one or more occasions subject to: • the extension being at least two weeks long; • the extension being made through an explanatory addendum to the offer document which must be approved by the Danish FSA and be published; and • the extension not exceeding the offer period above a total of ten weeks. In case a competing offer is submitted during the offer period, the period of the original takeover offer will be extended until the end of the offer period of the competing offer to allow shareholders to consider the competing offer. For voluntary takeover offers that are conditioned on necessary regulatory approvals, the offer period may be extended up to a total period of nine months. 4.14 Timing of the Takeover Offer In Denmark, the initial offer period must be at least four weeks and no more than ten weeks. If regulatory or antitrust approvals have not been obtained before the expiry of the offer period, the offer period may be extended beyond ten weeks and up to a maxi- mum of nine months from the date the offer document was published. This extension is only permitted for voluntary tender offers and must be made through an addendum to the offer document, which must be approved by the Danish FSA and published before the original offer period expires. This option is not avail- able for mandatory offers, which must be uncondi- tional. It is typical for parties to seek necessary regulatory approvals after announcing a voluntary tender offer but before publishing the offer document. This approach
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