NORWAY Law and Practice Contributed by: Karoline Ulleland Hoel, Sigurd Opedal, Ole Henrik Wille and Daniel Nygaard Nyberg, Wikborg Rein Advokatfirma AS
• no material breach occurring in the period between signing and closing; and • due diligence-specific findings, such as key third- party consents. Material adverse change clauses (MACs) are some - times included in private deals, but their use has declined significantly in recent years. In public takeovers, MACs are usually included; in the period 2008–2024, 85 out of 100 voluntary offer documents approved by the Euronext Oslo Børs contained a MAC. Transaction agreements for W&I-insured deals not subject to an auction process sometimes include a right for the buyer to terminate the agreement if new circumstances arise during the period between sign - ing and closing which are not covered by the W&I insurance, unless the seller compensates the buyer for any downside. 6.5 “Hell or High Water” Undertakings It is highly unusual for private equity-backed buyers to accept “hell or high water” undertakings to assume all of the antitrust or other regulatory risks related to the completion of the transaction. Typically, the buyer can walk away from the transaction if merger control approval, FSR or FDI clearance is not obtained. 6.6 Break Fees In conditional deals with a private equity-backed buy - er, a break fee in favour of the seller is uncommon. For public deals, out of 101 voluntary offer documents approved by the Oslo Børs in the period from 2008 to July 2025, 60 involved a transaction agreement, of which 30 contained provisions for break fees. There are no specific legal limits on break fees if applied to the sellers in private and public deals. How - ever, Norwegian company law is not entirely clear as to the extent to which the target can pay a break fee. According to the Norwegian Corporate Governance Code – particularly relevant for listed companies – the target should be cautious of undertaking break-fee liabilities, and any fee should not exceed the costs incurred by the bidder. The market level of break fees is usually in the range of 0.8% to 2% of the transac - tion value.
Norwegian private equity deals rarely use reverse break fees. 6.7 Termination Rights in Acquisition Documentation In private equity deals the acquisition agreement can be terminated if conditions precedent are not met or waived within the agreed long-stop date. Termina - tion rights are otherwise limited, with certain excep - tions under Norwegian background law for cases like fraud, gross negligence or wilful misconduct, which are highly unusual. Long stop dates vary, but typically reflect the expected time for obtaining regulatory approvals, plus a buffer In Norwegian private equity transactions, a private equity-backed seller (or buyer) is hesitant to accept any deal risk and usually requires a clean exit. Such seller usually opposes accepting indemnities. To miti - gate risk the warranty catalogue is usually covered under W&I insurance. If the deal is not insured, which is rare for private equity-backed sellers, they gener - ally only offer fundamental warranties. In contrast, industrial sellers tend to provide more comprehensive warranties, regardless of insurance coverage. In auc - tion processes, the number of conditions precedent is usually limited to no material breach, regulatory approvals and necessary third-party consents. The main limitations on liability for the seller are linked to the buyer’s knowledge, financial thresholds (basket, de minimis and total cap) and time limitations; see 6.9 Warranty and Indemnity Protection . 6.9 Warranty and Indemnity Protection With W&I insurance becoming the norm in private equity deals, warranties provided by private equity- backed sellers are usually comprehensive. This does not significantly differ where the buyer is also private equity-backed. The following are the customary financial limits on warranty liability. • De minimis: 0.1–0.2%. of one to several months. 6.8 Allocation of Risk
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