DENMARK Law and Practice Contributed by: Simon Milthers, Thomas Bøgedal Kristiansen, Mikkel Friis Rossa and Emil Steenberg, Bech-Bruun
• Anonymisation and minimisation – per- sonal data should be anonymised or pseu- donymised 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 personal data must be justified as neces- sary for the purposes of the transaction. This means that the data shared should be rel - evant and limited to what is required for the due diligence process. • Confidentiality agreements – parties involved in the due diligence process should enter into confidentiality agreements to ensure that any personal data disclosed is protected and not used for any purposes other than the transac- tion. • Data security – appropriate technical and organisational measures must be in place to protect personal data from unauthorised access, disclosure, alteration or destruction during the due diligence process. Private M&A transactions involving non-listed parties/targets are typically not required to be publicly disclosed, but parties often issue press releases at signing or closing. Change of own- ership of any Danish limited liability company must, however, be registered in the DBA’s Cen- tral Business Register ( Det Centrale Virksomhed- sregister ). If a listed company is involved in a transaction with a non-listed target, the (potential) transac- tion may qualify as inside information normal- ly requiring disclosure by the time of signing (assuming delayed disclosure of inside informa- 10. Disclosure 10.1 Making a Bid Public
tion is permitted), regardless of any outstanding regulatory approvals/other conditions. Disclosure of takeover offers for listed compa- nies is specifically regulated in the Danish Takeo- ver Order (in addition to provisions on disclosure set out in the Market Abuse Regulation). Pursu- ant to the Danish Takeover Order, a bidder must announce a voluntary offer as soon as possi- ble following the decision to make an offer. A mandatory offer (triggered by the bidder having acquired a controlling stake of the target com- pany) 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 component (an “exchange offer”) or a business combination (eg, a merger with merger consid- eration being made in shares in the continuing company) prima facie, constitutes an offer of securities to the public, which triggers an obli- gation to prepare a prospectus pursuant to the EU Prospectus Regulation. Generally, however, such offerings will qualify for an exemption from the prospectus obliga- tion, provided that the buyer instead publishes an exemption document (together with the offer document in case of a takeover). The disclosure regime for exemption documents is somewhat lighter compared to prospectuses, albeit still somewhat labour-intensive to prepare. In an exchange offer, it is not uncommon for a buyer to pursue a Danish listing of the shares (follow- ing the offer) for commercial and settlement pur- poses. 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
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