DENMARK Law and Practice Contributed by: Jakob Østervang, Peter Østergaard Nielsen, Anders Hørlyck Jensen and Tejs Degn Leth Ernst, Accura Advokatpartnerselskab
of the company. This is identical to the interests of the company’s shareholders up until the time when it becomes clear that the company is at the risk of going bankrupt. From this time onwards, the interest of the company becomes identical with the interest of the company’s creditors. 9.2 Special or Ad Hoc Committees It is possible for boards of directors to establish spe- cial or ad hoc committees – eg, to handle specific aspects of a business combinations or to avoid con- flicts of interest. In large business combinations, it is common for the board of directors to make use of committees while they are uncommon in smaller business combinations. 9.3 Role of the Board In Denmark, it is common for the boards of directors to be included in the whole transaction process, includ- ing negotiations, setting up a virtual data room and providing other necessary assistance. Most transac- tions are completed with the assistance of the board of directors. It is seldom the case that the board of directors’ deci- sion to recommend a transaction is challenged by the shareholders. 9.4 Independent Outside Advice In Denmark, most transactions are carried out with the support of external advisers, including legal counsel and other professionals, depending on the nature and
• Financial advisers these play a key role in evaluat- ing the financial implications and commercial fea- sibility of a transaction. They assist in valuing the target company, structuring the deal, and analys- ing the financial benefits and risks. In public M&A transactions, they are often engaged to provide a fairness opinion. In some cases, they also advise on matters related to the investor base and inves - tor relations strategy. • Accountants accountants may be engaged to perform an “outside-in” analysis of the target company’s financials, including the expected post- transaction equity structure. They may also advise on tax implications and accounting treatment of the transaction. • Public relations firms PR firms may be engaged to manage communications and public perception, helping to maintain a positive image and stake- holder confidence during the takeover process. • Settlement agent a settlement agent, typically a bank, must be engaged to handle acceptances, clearance, and settlement with the Danish Central Securities Depository (Euronext Securities Copen- hagen), including settlement in a subsequent com- pulsory acquisition or squeeze-out. This agent is appointed by the offeror, not the target company’s board. A fairness opinion is commonly obtained from a finan- cial adviser, particularly in public M&A transactions. While not legally required, it is considered best prac- tice for the target company’s board to obtain such an opinion to support its assessment of the offer. This helps directors fulfil their fiduciary duties by providing an independent evaluation of the financial fairness of the transaction.
complexity of the transaction. Types of Independent Advice
• Legal advisers legal advisers provide guidance on the legal aspects of the transaction, including compliance with applicable laws and regulations, drafting and reviewing transaction documents, and advising on potential legal risks.
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