DENMARK Law and Practice Contributed by: Dan Moalem, Jacob Bier, Thomas Enevoldsen and Poul Guo, Moalem Weitemeyer
commitments from key shareholders before making contact with the target board. In other cases, irrevo - cable undertakings are obtained following discussions with the board, often with the board’s support. Carve-Outs for Competing Offers Irrevocable commitments in the Danish market typi - cally include a carve-out permitting the shareholder to withdraw its commitment if a competing offer is made at a materially higher price. This reflects the expectation that shareholders should retain the ability to accept a genuinely superior alternative, consist - ent with the board’s fiduciary obligations to act in the interest of all shareholders. The obligation to make a takeover bid public arises when the bidder has taken a firm decision on such bid, or when the bidder acquires control and thereby becomes obliged to make a mandatory offer. The announcement must be made as soon as possible after the decision is taken or following the acquisi - tion of control. In addition, if credible rumours emerge during the preparation phase, before a firm decision has been made, and confidentiality is no longer pos - sible, the Danish Financial Supervisory Authority may require an earlier announcement to ensure timely and proper disclosure. Method of Publication 7. Disclosure 7.1 Making a Bid Public Timing of Announcement The announcement is made public by way of a formal company announcement ( Selskabsmeddelelse ) pub - lished via Nasdaq Copenhagen’s electronic disclosure system. The announcement is made available on Nas - daq’s official website and is also accessible through the Danish Financial Supervisory Authority’s official channels. In addition, it is typically published on the bidder’s and/or the target’s own website. 7.2 Type of Disclosure Required General Framework Where shares are issued as consideration in a business combination, the disclosure framework is dependent
on whether the issuance constitutes a public offer or admission to trading. Inside Information and Prospectus Requirements For listed Danish issuers, the intended transaction and the related share issuance will typically qualify as inside information and must be disclosed promptly. In addition, the issuance of shares in a business combi - nation may, in itself, trigger a prospectus requirement. As a starting point, a prospectus must be published where the issuance constitutes an offer of securities to the public or an admission of the new shares to trading on a regulated market. Exemptions Several exemptions apply to the main rule – eg, no prospectus is required where the offer is directed solely at qualified investors, addressed to fewer than 150 persons per Member State, or where minimum denomination or investment thresholds are met. 7.3 Producing Financial Statements The Danish takeover rules focus primarily on trans - parency regarding the terms of the offer, financing arrangements and the bidder’s intentions. However, the bidder must provide sufficient information about its financial capacity to complete the transaction, including confirmation that the offer is fully financed. In public M&A, the offer document must include infor - mation on the target’s key financials from the most recent published financial statement as well as fore - casting for the financial year. 7.4 Transaction Documents There is no general requirement to disclose transac - tion documents in full in connection with public M&A transactions. The bidder must publish the offer document. The tar - get board of directors must, in turn, publish a rea - soned statement assessing the offer. However, the full share purchase agreement or merger agreement is not typically made public. While material terms may need to be summarised in the offer document, and inside information must be disclosed under the Market Abuse Regulation, commercially sensitive provisions
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