DENMARK Law and Practice Contributed by: Dan Moalem, Jakob Skafte-Pedersen, Poul Guo and Thomas Enevoldsen, Moalem Weitemeyer
Tender Offer – Specific Disclosure In the context of a voluntary tender offer, bidders are also subject to additional disclosure requirements under the Danish Takeover Order. These include the identity of the bidder, terms of the offer, financing arrangements, and any intentions regarding the future business or governance of the target. Transparency is especially relevant for private equity bidders to avoid regulatory delays or public criticism. 7.3 Mandatory Offer Thresholds Mandatory Bid Obligation at 33.3% Control Threshold Under Danish law, a mandatory takeover offer must be made if a shareholder, alone or acting in concert, acquires control of a company listed on a regulated market in Denmark. Control is presumed when the shareholder holds one-third (33.3%) or more of the voting rights unless it extraordinarily can be docu - mented not to result in control (eg, if an existing major shareholder holds more shares). Acting in Concert and Indirect Control Risks Private equity sponsors must consider acting-in- concert rules when planning acquisitions, particu - larly where control is acquired through multiple fund entities, co-investment vehicles, or existing portfolio companies. Regulatory Enforcement and Transaction Structuring Failure to launch a mandatory bid can result in the suspension of voting rights and potential regulatory enforcement. As a result, legal assessments of control, attribution and co-ordination are critical in structuring acquisitions. In certain cases, exemption requests may be submitted to the Danish Financial Supervisory Authority, such as for purely passive investments or technical breaches. 7.4 Consideration Cash is the Prevailing Form of Consideration In Danish public tender offers, cash is by far the most common form of consideration. This reflects market expectations for liquidity and certainty, especially among institutional investors and minority sharehold - ers. Share consideration may occasionally be used,
but primarily in strategic or cross-border transactions involving industrial buyers or listed acquirers. Minimum Price Rules in Tender Offers Under the Danish Takeover Order, a mandatory offer must be made at a price that is at least equal to the highest price paid by the bidder (or parties acting in concert) for shares in the target company within the preceding six months. This minimum price rule ensures equal treatment of all shareholders. In voluntary offers, there is no statutory minimum price, but a post-offer six months cooling period dur - ing which acquiring additional shares above the offer price will trigger compensation to shareholders having In Danish public takeover offers, conditions are gen - erally permitted as long as they are objective, clear and not discretionary in nature (ie, where the offeror is in control of the condition). The Danish Financial Supervisory Authority may intervene if conditions are deemed too vague or give the bidder undue flexibil - ity. Common conditions include minimum acceptance thresholds, regulatory approvals, and no material adverse change. Financing Conditions Are Not Allowed Private equity-backed bidders are expected to have secured financing in place or provide sufficient cer - tainty of funds, often through equity commitment let - ters and debt commitment documentation. The take- over offer must include information on its financing, and the offer cannot be conditional on obtaining such financing. Deal Security Measures Bidders may seek deal protection mechanisms such as: • irrevocable undertakings from major shareholders to accept the offer; • match rights or notification rights in case of com - peting bids; tendered their shares in the offer. 7.5 Conditions in Takeovers Conditions Are Permitted but Subject to Regulatory Oversight
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