DENMARK Law and Practice Contributed by: Thomas Weitemeyer, Pernille Nørkær, Jonas Høst and Jacob Kreutzmann, Moalem Weitemeyer
of regulatory engagement (including remedies/condi - tions) through the SPA/offer documentation. Where timetables collide (eg, takeover deadlines ver - sus merger control or investment screening), parties commonly mitigate this through early pre-notification, prioritising the “critical path” authority, and (where legally available) extending the offer period to accom - modate pending approvals. In public takeovers, the offer period may be extended to obtain regulatory approvals, but only up to a maximum of nine months from the date the offer is made public. 6.5 Practical Issues and Common Pitfalls Common pitfalls include underestimating the “critical path” created by parallel review periods (especially where both merger control and investment screening apply), and treating below-threshold deals as auto - matically non-notifiable despite the Competition Act’s call-in power. In public M&A, the four-week offer document deadline and offer-period rules can become the binding con - straint, while investment screening is often driven by calendar-day deadlines and the risk of supplementary information requests that can affect the timetable. 7. Deal Structuring, Risk Allocation and Conduct Pending Closing 7.1 Conditions Precedent and Long-Stop Dates Conditions precedent typically cover merger control clearance, investment screening authorisation and, where relevant, financial supervisory and takeover approvals. Long-stop/outside dates are set by ref - erence to statutory review timelines with buffers for completeness issues, information requests and rem - edy negotiations, and the SPA typically allocates con - trol of the process, efforts standards and the buyer’s obligation to accept commitments/conditions. 7.2 Efforts Standards and “Hell or High Water” Clauses The “efforts” standard is deal-specific and reflects sectoral risk. In lower-risk filings, parties often commit
to “reasonable best efforts” or “commercially reason - able efforts” to obtain clearance. Where a buyer assumes greater regulatory risk, agree - ments may require the buyer to take all necessary steps to obtain clearance, often coupled with detailed provisions on remedies, co-operation and litigation strategy, sometimes subject to agreed limits. “Hell or high water” clauses are more common in cross-border transactions involving a Danish target or domestic transactions if the target is highly sought after. 7.3 Risk Allocation Mechanisms Regulatory and litigation risk is typically allocated through a combination of (i) conditions precedent and long-stop/outside dates, (ii) termination rights, (iii) fee mechanisms (eg, reverse break fees and, in some cases, ticking fees), and (iv) detailed “regulatory control” provisions specifying who leads the approval process and whether (and to what extent) the buyer must accept remedies or conditions (eg, divestitures or behavioural commitments). Where merger control or investment screening approv - als may be conditional, parties often include express obligations on (a) remedy design and implementation, (b) post-closing compliance with commitments/condi - tions, and (c) the allocation of costs and operational burden. In some transactions, this is supplemented by price adjustments or other economic terms reflecting regulatory delay or remedy impact. Reverse break fees are not common in the Danish market. 7.4 Interim Operating Covenants and Gun- Jumping Risk Between signing and closing, interim operating cov - enants are typically designed to keep the target oper - ating in the ordinary course, while protecting the buyer against value leakage and regulatory risk. They often include consent rights for the buyer over specified non-ordinary-course actions (eg, material contracts, disposals, significant capex, changes to key terms, or extraordinary dividends), combined with information and reporting covenants.
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