DENMARK Law and Practice Contributed by: Simon Milthers, Thomas Bøgedal Kristiansen, Mikkel Friis Rossa and Emil Steenberg, Bech-Bruun
A target company may represent that it is not in possession of undisclosed inside information and that it is in compliance with its disclosure obligations. Otherwise, the target companies does typically not provide representations or warranties. 6.7 Minimum Acceptance Conditions The minimum acceptance condition is typically set at 90%, as this provides the offeror with the opportunity to initiate a squeeze-out of the remaining shareholders and pursue a fast-track delisting from Nasdaq Copenhagen. Depending on the specific deal, an offeror may settle for a lower acceptance rate (eg, two-thirds of voting rights, which enables the offeror to amend the company’s articles of association, whereas 50% enables the offeror to control the A statutory squeeze-out can be initiated by a majority shareholder holding more than 90% of the shares and voting rights in a company. The majority shareholder must provide the minority shareholder(s) with a four-week notice/disposal period – during which, the minority shareholder(s) can voluntarily accept an offer to dispose shares (or sell them on the market). Upon expiry of the four-week notice/disposal period, the voluntar- ily transferred shares are settled, followed by redemption of the the remaining shares. The redemption price in the squeeze-out is (and should be) the same price as in the preceding takeover offer. Minority shareholders are entitled to demand an independent appraisal of the redemption price. The conclusion of the appraiser may be chal- lenged by either party through legal proceed- ings. The minority shareholder(s) demanding election of the board of directors). 6.8 Squeeze-Out Mechanisms
an appraisal will, as a starting point, be liable for the appraisal costs. However, the court may decide that costs should be held by the majority shareholder if it is determined that the redemp- tion price should have been higher. 6.9 Requirement to Have Certain Funds/ Financing to Launch a Takeover Offer Certain funds are required when a takeover offer is launched (ie, at the time the intention to launch a takeover offer is announced or, in the case of mandatory offers, at the time it is announced that the buyer is obligated to make a mandatory offer). If a takeover offer is debt-financed, the debt financing must be committed prior to launch, which generally means having a signed and committed loan facility agreement in place. The Danish FSA accepts that the financing may still be conditional on customary conditions prece- dent; however, it is the buyer’s responsibility that any conditions for the financing will not hinder the completion of the takeover offer. The Dan- ish FSA may demand evidence for a committed financing. The buyer must describe how the takeover is financed in the offer document. Funds must be available for settlement of the takeover offer, which typically takes place four or five days after expiry of the offer period. Financing banks are not deemed to be making an offer. In the event of share exchange offers, the buyer must have taken all reasonable measures to ensure its ability to deliver the shares before launching the offer. The Danish FSA interprets this as meaning that the buyer must have obtained the necessary corporate authorisations
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