NORWAY Law and Practice Contributed by: Fredrik Lykke, Christian P. N. Fenner and Magnus Brox, Advokatfirma DLA Piper AS Norway
exchange-traded derivatives are cleared and reported to the European Securities and Market Authority’s reg - ister in accordance with the EMIR regulation. The EU short selling regulation (Regulation EU 2012/236 SSR) is implemented in the Norwegian Securities Trading Act and applies in Norway. The NFSA is the Relevant Competent Authority. 4.6 Transparency When disclosing the crossing of a threshold, an inves - tor acquiring shares does not have to make known the purpose of the acquisition or further intentions. However, if an investor/bidder launches a voluntary offer, the takeover rules lay down information require - ments for the voluntary offer document. This includes commenting on the purpose of the acquisition and future plans for the target company, the effects the completion of the offer will have on the employees, and the legal and tax consequences of the offer. MAR has from 1 March 2021 been fully implemented into Norwegian law via a reference in the Securities Trading Act, and all aspects of MAR are Norwegian law. An issuer (target) listed on a regulated market or a multilateral trading facility (eg, the Euronext Growth) is required to make timely disclosure of “inside informa - tion” that directly concerns the issuer. The issuer may, however, decide to postpone the dis - closure of such inside information if immediate disclo - sure is likely to prejudice the legitimate interests of the issuer, if such delay is not likely to mislead the public, and if the issuer is able to ensure the confidential - ity of the information. In practice, in a friendly situ - ation, an issuer will, when entering into discussions with a bidder, use its right to delay public disclosure. An issuer is, in these circumstances, and under the Oslo (Euronext/Stock Exchange) Rule Book, obliged to report the situation to the Oslo Stock Exchange which will follow trading patterns closely. 5. Negotiation Phase 5.1 Requirement to Disclose a Deal In a takeover situation, the bidder and target issuer will co-ordinate public disclosure, typically immedi -
ately following signing of the transaction agreement between issuer and bidder. In a hostile situation, the issuer may, on the basis of the above main disclosure rules, decide to make pub - lic the fact that a possible bidder has approached the issuer with an indication to bid. 5.2 Market Practice on Timing Previously, there was a tendency in the Norwegian market for issuers to withhold inside information (imminent launch of bids) too long as this was required by the bidder. With the implementation of MAR in the Norwegian rules and now as direct law in Norway, this “issue” has to a large extent been resolved. 5.3 Scope of Due Diligence In public takeovers, it is often expected that the bid - der will conduct preliminary due diligence based on publicly available information before advanced nego - tiations are commenced with the issuer target. The obligation to launch the offer is normally subject to confirmatory due diligence which must be completed before a transaction agreement is executed and/or the bidder launches the tender offer. There are often discussions/negotiations concerning the scope and timeline for due diligence. The due dili - gence often comprises legal, tax, financial and opera - tional matters. The typical time span is two to three weeks. Issuers are generally focused on avoiding dragged-out processes which divert time from other Both standstills and exclusivity are typical matters for negotiation. If exclusivity is granted, it is typically for fairly short periods of time as the issuer wants to retain flexibility. The standstill obligation is often required by the issuer in public transactions and is of particular importance when disclosure of quarterly reports/ management accounts to the bidder is deemed to be inside information prior to public release. 5.5 Definitive Agreements It is quite common to detail tender offer terms in the definitive transaction agreement with the issuer. Fur - ther, it is also seen that well-advanced tender docu - strategic and operational matters. 5.4 Standstills or Exclusivity
973 CHAMBERS.COM
Powered by FlippingBook