DENMARK Law and Practice Contributed by: Morten Krogsgaard and Lennart Meyer Østenfjeld, Moalem Weitemeyer
• pre-funding, settlement process and ensuring shares are comprised by security. Structuring Considerations From a structuring point of view, it should be noted that if a debt pushdown is intended to be made within 12 months of completion, the offer document must contain information on the debt pushdown, including the amount. 10. Jurisdiction-Specific Features 10.1 Other Acquisition Finance Issues Foreign Direct Investment Filing The foreign direct investment (FDI) authorities in certain jurisdictions have determined that the granting of a pledge over shares of companies in strategic sectors triggers the filing requirement under the relevant FDI regime. This obligation to file arises not only at the time of enforcement but also at the time of the grant, extension and enforcement of the pledge. In Denmark, the FDI regime not only covers the acquisition of shareholdings or voting rights in a company or entity but also situations where similar control is achieved by means other than acquiring voting rights. This includes achieving similar control or significant influence through agreement-based control and influence, pur- chasing assets in the Danish company or through long-term and irrevocable leases.
A foreign investor directly or indirectly gains con- trol or significant influence in a Danish company or entity by: • acquisition of assets: acquiring all the assets in the Danish company or entity or a sig- nificant part of the assets or gaining control over all or a significant part of the assets as a result of long-term and irrevocable leases; and • potential voting rights: the existence and effect of potential voting rights, including warrants and call options on shares, must be considered when assessing whether a foreign investor obtains similar control by other means. However, the grant of a pledge over shares of companies in strategic sectors does not in itself trigger the filing requirement under the Danish FDI regime if the granting of the pledge does not entail any transfer of control over the company’s assets or voting rights. At the time of enforce- ment, the situation may be different and should be re-evaluated.
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