DENMARK Law and Practice Contributed by: Jakob Østervang, Peter Østergaard Nielsen, Anders Hørlyck Jensen and Tejs Degn Leth Ernst, Accura Advokatpartnerselskab
Tender Offers (Offer Document) There are no formal requirements to produce financial statements (pro forma or otherwise) in an offer docu- ment related to a tender offer. Mergers (Merger Plan) There are no formal requirements to produce financial statements (pro forma or otherwise) in connection with a merger. 8.4 Disclosure of Transaction Documents Depending on the transaction structure, certain trans- action documents must be filed with the relevant authorities to ensure regulatory oversight and com- pliance with applicable laws. Key Filing Requirements (Takeovers) The offer document must be filed with and approved by the Danish FSA. There is no requirement to file any transaction agreement between the target company and the offeror. Furthermore, there is no requirement to file copies of irrevocable undertakings entered into with major shareholders of the target company. If a prospectus is prepared in connection with a stock- for-stock takeover offer, it must be filed with and approved by the Danish FSA. Key Filing Requirements (Mergers) For mergers involving Danish listed companies, trans- action documents such as the merger plan, the merg- er statement, and the decision/shareholder approval must be filed with the Danish Business Authority. There is no requirement to file the business combina- tion agreement between the merging companies. If a transaction meets certain thresholds, it may need to be notified to the Danish Competition and Con- sumer Authority for approval.
of the existing securities over a 12-month period; and • public offers and admissions of fungible securities that have been continuously listed for at least 18 months. Listing Requirements for Buyer’s Shares The offeror’s shares do not necessarily need to be listed on a specified exchange in the home market or other identified markets for the transaction to pro- ceed. However, if the shares are to be offered to the public or admitted to trading on a regulated market (eg, Nasdaq Copenhagen), they must meet the listing requirements of that market. 8.3 Producing Financial Statements Prospectus If an offeror is required to publish a prospectus in connection with a stock-for-stock transaction, the EU Prospectus Regulation stipulates that, where the transaction constitutes a significant gross change, the prospectus must include a description of how the transaction might have affected the offeror’s assets, liabilities, and earnings had the transaction been undertaken at the commencement of the reporting period or at the date being reported. This requirement is typically satisfied by including pro forma financial information, accompanied by a report prepared by independent accountants or auditors. The pro forma financial information must consist of: • an introduction setting out, among other things, the details of the transaction; • a profit and loss account, a balance sheet, or both; • accompanying notes; and • where applicable, the financial and interim finan- cial information of the acquired (or to-be-acquired) businesses or entities used in the preparation of the pro-forma financial information. Accounting Policies The pro forma financial information must be prepared in a manner consistent with the accounting policies adopted by the offeror in its most recent or forthcom- ing financial statements.
9. Duties of Directors 9.1 Principal Directors’ Duties
No specific or additional duties arise for the board of directors in connection with a business combination. Under Danish law, the members of the board of direc- tors have a general duty to look after the interests
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