DENMARK Law and Practice Contributed by: Simon Milthers, Thomas Bøgedal Kristiansen, Mikkel Friis Rossa and Emil Steenberg, Bech-Bruun
10. Disclosure 10.1 Making a Bid Public
Target companies are not specifically required to provide the same information to all bidders but often do so in practice to facilitate the best possible offer being made to the shareholders. The board may allow detailed technology due diligence, balancing access to sensitive information with the need for protection, especially when bidders are competitors. The board and management may make themselves available for Q&A sessions with bidders. 9.3 Data Privacy Data privacy restrictions in Denmark can result in limi- tations in the due diligence of a target company. The primary regulation governing data privacy is the EU’s GDPR, which applies to the processing of personal data. When conducting due diligence, the following considerations must be taken into account. • Compliance with GDPR – any disclosure of per- sonal data during due diligence must comply with GDPR requirements. This includes ensuring that the data processing is lawful, transparent, and limited to what is necessary for the purposes of the transaction. • Anonymisation and minimisation – personal data should be anonymised or pseudonymised where possible to protect the privacy of individuals. Only the minimum amount of personal data necessary for the due diligence process should be disclosed. • Justification for disclosure – the disclosure of per- sonal data must be justified as necessary for the purposes of the transaction. This means that the data shared should be relevant and limited to what is required for the due diligence process. • Confidentiality agreements – parties involved in the due diligence process should enter into confi- dentiality agreements to ensure that any personal data disclosed is protected and not used for any purposes other than the transaction. • Data security – appropriate technical and organisa- tional measures must be in place to protect per- sonal data from unauthorised access, disclosure, alteration or destruction during the due diligence process.
Private M&A transactions involving non-listed par- ties/target companies are typically not required to be publicly disclosed, but parties often issue press releases at signing or closing. Change of ownership of any Danish limited liability company must, however, be registered in the DBA’s Central Business Register ( Det Centrale Virksomhedsregister ). If a listed company is involved in a transaction with a non-listed target company, the (potential) transaction may qualify as inside information normally requiring disclosure by the time of signing (assuming delayed disclosure of inside information is permitted), regard- less of any outstanding regulatory approvals/other conditions. Disclosure of takeover offers for listed companies is specifically regulated in the Danish Takeover Order (in addition to provisions on disclosure set out in the Market Abuse Regulation). Pursuant to the Danish Takeover Order, a bidder must announce a voluntary offer as soon as possible following the decision to make an offer. A mandatory offer (triggered by the bidder having acquired a controlling stake of the target company) must be announced as soon as possible once the obligation to make a mandatory offer has been triggered. 10.2 Prospectus Requirements A takeover offer with a stock consideration compo- nent (an “exchange offer”) or a business combination (eg, a merger with merger consideration being made in shares in the continuing company) prima facie consti- tutes an offer of securities to the public, which triggers an obligation to prepare a prospectus pursuant to the EU Prospectus Regulation. Generally, however, such offerings will qualify for an exemption from the prospectus obligation, provided that the buyer instead publishes an exemption docu- ment (together with the offer document in case of a takeover). The disclosure regime for exemption docu- ments is somewhat lighter compared to prospectus- es, albeit still somewhat labour-intensive to prepare. In an exchange offer, it is not uncommon for a buyer
93 CHAMBERS.COM
Powered by FlippingBook