DENMARK Law and Practice Contributed by: Morten Jensen, Elise Ross-Hansen, Frederik André Bork and Paula Grønlund, Bruun & Hjejle
Inside Information As mentioned in 5.1 Requirement to Disclose a Deal , a transaction may be regarded as inside information if a listed company participates in the transaction (either as the seller, the buyer or the target). To the extent that the transaction constitutes inside information, disclosure of the transaction must be made no later than at sign - ing and cannot be postponed based on any required regulatory approvals. In the case of a public takeover, the mere approach by a bidder to the listed company’s board may be regarded as inside information depending on the firmness of the approach. In a recent ruling relating to inside information in connection with a takeover, the FSA stated that even an indicative offer should be considered sufficiently serious to be deemed inside informa - tion. In the present case, the indicative offer was made by a consortium of a global financial ser - vice group and three large Danish pension funds, and was made after a thorough examination of the company and the Danish market. In addition, the indicative offer was already fully financed. Public Takeover For public takeovers, the Danish Takeover Order stipulates that a takeover offer must be made public. A bidder launching a voluntary offer must disclose its intention to do so as soon as pos - sible following the bidder’s decision to submit such offer. In the case of a mandatory offer, the bidder must disclose the obligation to launch a mandatory offer as soon as possible after the bidder’s acquisition of a controlling interest (see 6.1 Length of Process for Acquisition/Sale for the definition of “controlling interest” ). As regards the manner in which the announce - ment must be made, the Danish Takeover Order prescribes that this must be by means of a
shareholder wishes to vote by proxy, a dated power of attorney must be provided in writing. The power of attorney can be given to a specific person or to the holder of the power of attorney – it does not need to be limited in time and can be withdrawn at any time. 6.10 Squeeze-Out Mechanisms See 6.9 Voting by Proxy . 6.11 Irrevocable Commitments In connection with a public takeover, bidders may obtain irrevocable commitments from larger shareholders as an alternative to stakebuilding. Depending on the shareholder structure and the transaction, the bidder may enter into irrevoca - ble commitments prior to contacting the target’s board of directors in order to put pressure on the board. Bidders sometimes also enter into irrevo - cable commitments following discussions with the board, and in such cases with the board’s blessing. Irrevocable commitments will usually contain an “out” , in case of competing offers that present a better price.
7. Disclosure 7.1 Making a Bid Public
Private M&A transactions are not required to be made public, but are often disclosed by the par - ties involved through a press release, either at signing or at closing. As previously mentioned, antitrust filing, registration of ownership in the public register and other corporate actions will preclude the option of keeping the transaction secret.
604 CHAMBERS.COM
Powered by FlippingBook