DENMARK Law and Practice Contributed by: Simon Milthers, Thomas Bøgedal Kristiansen, Mikkel Friis Rossa and Emil Steenberg, Bech-Bruun
regulated market. However, if the shares are not fungible with securities already listed on a regulated market, the Danish FSA must review and approve the exemption document prior to publication (otherwise an exemption document is generally not subject to regulatory scrutiny/ approval). For those and various other reasons, it is rare for unlisted shares to be offered in regu- lated voluntary exchange offers. If unlisted or illiquid shares that are not admitted to trading on a regulated market are offered in a mandatory exchange offer, shareholders must be given the option to choose full cash consid- eration instead of shares. This also applies if the buyer in the six-month period prior to publication of an offer document 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 con- sideration in a mandatory exchange offer. 10.3 Producing Financial Statements In a cash takeover offer for a listed company, the bidder does not need to produce or disclose financial statements. The disclosure require- ments concerning a bidder in a cash offer docu- ment are very limited. In a stock-for-stock (exchange) offer, the bidder will typically need to prepare an exemption doc- ument, which must include the bidder’s (annual and semi-annual) financial statements that have been published in the 12 months prior to publica- tion of the exemption document. If the exchange offer constitutes a significant financial commit- ment 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 financial state- ments for disclosure in the exemption document (prepared on the assumption that the transaction
had been completed) by the beginning of the relevant financial period for which the pro forma financial statements are prepared. Financial statements must be prepared in accordance with the International Financial Reporting Standards. Pro forma financial state- ments must be prepared in accordance with the applicable rules for the bidder’s financial state- ments and the accounting principles applied by the bidder in its most recent financial statements (or its next financial statements). Financial statements must also be included in a listing prospectus, if required. 10.4 Disclosure of Transaction Documents In Denmark, the requirements for filing transac- tion documents depend on whether the transac- tion involves a private or public company. Private M&A Transactions For private companies, transaction documents generally 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 Busi- ness Register. Public M&A Transactions In a public takeover offer, the offer document must be approved by the Danish FSA prior to publication and will be filed and published through the Danish FSA’s system. Filing and approval requirements for exemption docu- ments for share exchange offers depend in part on whether the offered shares are fungible with securities already listed on a regulated market –
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