DENMARK Law and Practice Contributed by: Simon Milthers, Thomas Bøgedal Kristiansen, Mikkel Friis Rossa and Emil Steenberg, Bech-Bruun
to pursue a Danish listing of the shares (following the offer) for commercial and settlement purposes. Such listing is typically contingent on the publication of a separate listing prospectus. Shares offered in a voluntary exchange offer may be unlisted shares or shares listed on another regulated market. However, if the offered shares are not fungible with securities already listed on a regulated market, the FSA must review and approve the exemption doc- ument prior to publication (otherwise an exemption document is generally not subject to regulatory scru- tiny/approval). For those and various other reasons, it is rare for unlisted shares to be offered in regulated voluntary exchange offers. If unlisted or illiquid shares that are not admitted to trading on a regulated market are offered in a man- datory exchange offer, shareholders must be given the option to choose full cash consideration instead of shares. This also applies if the buyer in the six- month period prior to publication of an offer docu- ment against cash consideration has acquired shares that represent at least 5% of the voting rights in the company. Otherwise, a buyer is permitted to only offer shares as consideration in a mandatory exchange offer. 10.3 Producing Financial Statements In a cash takeover offer for a listed company, the bid- der does not need to produce or disclose financial statements. The disclosure requirements concerning a bidder in a cash offer document are very limited. In a stock-for-stock (exchange) offer, the bidder will typically need to prepare an exemption document, which must include the bidder’s (annual and semi- annual) financial statements that have been published in the 12 months prior to publication of the exemp- tion document. If the exchange offer constitutes a significant financial commitment of the bidder or a significant financial gross change (considering the size of the transaction relative to the size of the bidder’s business), the bidder must prepare pro forma finan- cial statements for disclosure in the exemption docu- ment (prepared on the assumption that the transaction had been completed) by the beginning of the relevant
financial period for which the pro forma financial state- ments are prepared. Financial statements must be prepared in accordance with the International Financial Reporting Standards. Pro forma financial statements must be prepared in accordance with the applicable rules for the bidder’s financial statements and the accounting principles applied by the bidder in its most recent financial state- ments (or its next financial statements). Financial statements are generally also required to be included in a listing prospectus. 10.4 Disclosure of Transaction Documents In Denmark, the requirements for filing transac- tion documents depend on whether the transaction involves a private or public company. Private M&A Transactions For private companies, transaction documents gen- erally do not need to be disclosed to or filed with the authorities. Certain information included in the transaction documents, such as revised articles of association and the minutes of general meetings that approve changes to the articles, must be submitted to the DBA’s Central Business Register. Public M&A Transactions In a public takeover offer, the offer document must be approved by the FSA prior to publication and will be filed and published through the FSA’s system. Filing and approval requirements for exemption documents for share exchange offers depend in part on whether the offered shares are fungible with securities already listed on a regulated market – if they are, no FSA filing or approval should be necessary.
11. Duties of Directors 11.1 Principal Directors’ Duties
The principal duties of directors in a business combi- nation are primarily owed to the shareholders of the company as a whole. These duties include the fol- lowing.
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