Om overtagelsestilbud og sikkerhed for modydelsen

Pursuant to the Danish Executive Order on Takeover Bids, an offeror must, prior to the announce­ ment of a takeover bid, ensure that the offeror can fulfill any claim for cash consideration, and must have taken all reasonable steps to secure that claims for other types of consideration can be fulfilled by the offeror. The provision implements the corresponding provision of Directive 2004/25/EC of the European Parliament and of the Council of 21 April 2004 on Takeover Bids. The article provides an analysis of the legal requirements under Danish law with respect to these requirements. This includes the responsibility for ensuring compliance, documentation requirements and whether an actual »certain funds documentation«­requirement applies. It is also analyzed, whether the obligations of an offeror may be reduced by obtaining a binding undertaking from a shareholder not to accept the takeover bid. Also, it is considered to what extent the offeror must take into consideration possible increases of the consideration, including as a result of such being imposed by the Danish Financial Supervisory Authority. It is concluded that although Danish offer documents generally only contain a statement that the requirements have been complied with, without stating any details, it is market practice to have »certain funds documentation«, in place, even when not required by the target company. The fact that the Da­ nish Financial Supervisory Authority is entitled to request documentation in practice also means that this must be in place no later than at the time of the announcement of the intend to make the offer. Any conditions in the financing documentation must relate exclusively to fulfilment of the offer, as sufficient security cannot otherwise be deemed to exist. It is further concluded that an undertaking not to accept a takeover bid, provided this has sufficient clarity, is legally binding under general principles of Danish contract law and may thus reduce the requirement to have fi­ nancing in place with respect to shares comprised by the undertaking. Further, the offeror cannot be required to take into consideration any potential increase of share price, and the obligations of the offeror must thus, at the time the intent to make the offer is announced, be limited to the share price set out in the offer. Finally, it is concluded that although market practice exists, it would be beneficial if the written guidelines issued by the Financial Supervisory Authority were expanded to include this practice, without reducing the flexibility of the Danish rules. This should include guidance on share­for­share consideration in »exchange offers«, where current limited administrative case law if considered on a stand­alone basis, poses a number of difficulties if new shares are be issued by the offeror for the purpose of ensuring compliance with the requirements.