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David Moalem og Dan Moalem

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David Moalem og Dan Moalem

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Dan Moalem og David Moalem

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Dan Moalem og Henning Hedegaard Thomsen

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.

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Dan Moalem, Henning Hedegaard Thomsen, og Jeanette Kjeldgaard Rasmussen

The article examines the competence of the Board of Directors in Danish listed companies in connection with takeover bids to allow for the amendment of warrant terms, e.g. to permit transfer or early exercise. It is thus examined whether the Board of Directors may allow a potential bidder to acquire or exercise warrants, otherwise subject to restrictions or prohibitions on transfer and exercise, and thus reach the threshold necessary to complete a takeover bid and subsequent compulsory redemption. Further, the article examines other actions that could possibly be taken by the Board of Directors to facilitate a takeover bid, and the interests that the Board of Directors should protect and take into consideration. In addition to considering the provisions of specific takeover-legislation, the article also addresses the protection of individual rights under Danish law, and the reluctance by Danish courts to limit especially ownership rights. It is thus concluded that the shareholders and not the Board of Directors should decide on the acceptance of a takeover bid, and that a bidder wishing to obtain a majority sufficient for carrying out compulsory resolution, must do so by obtaining necessary acceptance from shareholders and not through decisions made by the Board of Directors.

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Dan Moalem, Henning Hedegaard Thomsen, og Marcus Alexander Svendsen

On 3 January 2018 the Danish Securities Trading Act was replaced by the Danish Capital Markets Act. Pursuant to the Securities Trading Act, Danish listed companies were entitled to de-listing, provided that such would not be likely to be to the detriment of the interests of the investors or the proper functioning of the market. In a landmark decision, the Danish Company Appeals Board (in Danish »Erhvervsankenævnet«) had decided that the fact that the issuer following a de-listing would not be subject to the same disclosure obligations as listed companies, and that shareholders would no longer have access to trade their shares on a regulated market, were consequences of any de-listing and could thus not be deemed detriment to the interests of the investors or the proper functioning of the market. In connection with the introduction of the Capital Markets Act, these provisions on de-listing were repealed. It is stated in the preparatory works that this was due to the fact that they, along with a number of other provisions, were over-implementing EU-legislation and were not deemed necessary to uphold in order to ensure, among other things, sufficient investor protection. Also, it is stated that the reason was an overall intent to reduce the burdens on businesses. Instead, the preparatory works state that any such rules should be set out in the issuer rules set by the operator of the regulated market. Accordingly, Nasdaq Copenhagen stated in its issuer rules, that the established practice would be upheld, while evaluating the future structuring of such internal rules. Proposed new internal rules are expected to generally require approval of the de-listing by a general meeting of the issuer, where the resolution must be passed with a 9/10 majority of the votes cast and the share capital represented, along with a requirement that the shareholders must be entitled to dispose of their shares prior to de-listing at a certain price. The article provides an analysis of the legal implications under Danish law of the introduction of such requirement through an amendment of the issuer rules and thus on a contractual basis. This takes into consideration capital markets law, company law, contracts law and competition law. Based on this analysis, the article concludes that it is doubtful, whether such requirements can be upheld in case of a request for de-listing.