Order on Takeover Bids

Order on Takeover Bids 1)

Pursuant to Section 49 and Section 255, subsection 1, of the Capital Markets Act, cf. Statutory Order No. 198 of 26 February 2024, the following is enacted:

Scope of Application
Section 1. This Order applies to persons who make mandatory or voluntary takeover bids and to the target company.

Definitions
Section 2. In this Order, the following definitions apply:

1. Takeover bid or bid: A public offer to shareholders in a company that has one or more classes of shares admitted to trading on a regulated market, for the full or partial acquisition of their shares, which follows the acquisition of control of the target company or has the acquisition of control of the target company as its objective, regardless of whether the bid is mandatory or voluntary.
2. Target company: The company whose shares are the subject of a bid.
3. Offeror: A natural or legal person who gives notice of a bid either as a result of the obligation to make a bid or as a voluntary bid.
4. Persons acting in concert with the offeror or the target company: Natural or legal persons who cooperate with the offeror or the target company pursuant to an agreement, which may be express or tacit, oral or written, to acquire control of the target company or to hinder the bid.
5. Mandatory bid: A bid that an acquirer is obliged to make pursuant to Section 45 of the Capital Markets Act.
6. Competing bid: A bid for which notice is given in respect of a target company where notice of a takeover bid has already been given and which has not been concluded.
7. Voluntary bid: A bid made pursuant to Section 47 of the Capital Markets Act.
8. Alternative investment fund: An entity as defined in Section 3, subsection 1, no. 1, of the Act on Alternative Investment Fund Managers etc.

Mandatory Bids
Section 3. The offeror shall, as soon as possible after the obligation to make a bid arises, publish a notice containing information on when the obligation arose and on what grounds, cf. Section 20.
Subsection 2. The offeror shall, as soon as possible and no later than four weeks after the obligation to make a bid arises, publish a bid document that meets the requirements of Section 10.
Subsection 3. In the case of the conversion of convertible bonds, the exercise of subscription rights, options or warrants etc. into shares, the obligation to make a bid arises on the day when the voting rights can be exercised.

Voluntary Bids
Section 4. The offeror shall, as soon as possible after the offeror has made the decision to make a voluntary bid, publish a notice to that effect, cf. Section 20.
Subsection 2. The offeror shall, as soon as possible and no later than four weeks after the publication of the decision to make a voluntary bid, publish a bid document that meets the requirements of Section 10.

Equal Treatment
Section 5. The offeror shall treat all shareholders within the same class of shares equally.
Section 6. If the offeror or a person acting in concert with the offeror, after the bid document has been approved and before notice of the conclusion of the bid, cf. Section 21, subsection 3, enters into an agreement to purchase shares in the target company, the offeror must, as a minimum, raise its bid to the other shareholders correspondingly, if their shares are covered by the bid, and if the agreements are entered into on more favourable terms than those offered to shareholders in accordance with the bid document.
Subsection 2. If the offeror chooses for a takeover bid also to cover convertible bonds, subscription rights, options or warrants etc., the provisions in subsection 1 and in Section 5 apply mutatis mutandis to these securities.
Subsection 3. If the bid covers convertible bonds as mentioned in subsection 2, the owners must be offered a price that ensures them proportionate mutual equal treatment. The offered price must also ensure the owners of these securities proportionate equal treatment in relation to the price offered to shareholders in the company. Subsection 4. If the offeror improves the bid by an addendum to the bid document, cf. Section 25, subsection 1, shareholders who have already accepted the original bid from the offeror must be given the same improved terms as are contained in the addendum.
Section 7. If the offeror or a person acting in concert with the offeror, within a period of six months after notice of the conclusion of the bid, cf. Section 21, subsection 3, enters into an agreement to purchase shares in the target company on more favourable terms than those offered to shareholders in accordance with the bid document and any addenda thereto, the offeror must compensate the shareholders who accepted the bid.
Subsection 2. Compensation under subsection 1 must be a cash consideration in the same currency in which the bid was settled. The compensation must amount to the difference between the consideration in the bid and the consideration which the offeror subsequently acquired the shares for.

Obligation to Secure Consideration
Section 8. Before the offeror gives notice of a mandatory bid, cf. Section 3, subsection 1, or a voluntary bid, cf. Section 4, subsection 1, the offeror must ensure that it can fully meet any requirement regarding consideration in the form of cash. The offeror must also have taken all reasonable measures to ensure that any other form of consideration can be paid.

The Bid Period
Section 9. The bid period must be at least four weeks and at most ten weeks calculated from the date of publication of the bid document, cf. however subsection 3 and Section 27, subsection 2, first sentence.
Subsection 2. Extension of the bid period must be made in increments of at least two weeks.
Subsection 3. The offeror may only extend the bid period beyond ten weeks with a view to regulatory approval. In this case, the bid period must not exceed nine months from the publication of the bid document.
Subsection 4. Extension of the bid period must be made by preparing an addendum to the bid document, which must be approved by the Danish Financial Supervisory Authority.
Subsection 5. The offeror must publish the addendum before the expiry of the deadline in Section 21, subsection 3.
Subsection 6. The total bid period must not exceed ten weeks, cf. subsection 1, or nine months, cf. subsection 3.

The Bid Document
Section 10. A bid document must contain the information mentioned in subsections 2-7.
Subsection 2. Information on the target company and the offeror's intentions regarding the target company:

1. Name, address and CVR number (Business Registration Number).
2. Current activity, key figures from the most recently published financial report and from the most recently published expectations for the current financial year.
3. The offeror's intentions regarding the target company and strategy for this, including the preservation of jobs and any significant changes to terms of employment.
4. Whether the offeror will allow the target company to make payments of the target company's funds, cf. Section 179, subsection 1, of the Companies Act, in the first 12 months after the completion of the takeover bid; this must be stated, including what payment is concerned and the amount thereof.
5. An overview of persons acting in concert with the target company and their relationship to the target company. If it concerns a company, the company form, CVR number, name and address must also be stated.
6. Any existing agreements on remuneration, incentive programmes etc. for the management of the target company, of which the offeror is aware in connection with the takeover bid.
   Subsection 3. Information on the offeror:
7. Name and address and CVR number and company form, if the offeror is a company.
8. An overview of persons acting in concert with the offeror and their relationship to the offeror. If it concerns a company, the company form, CVR number, name and address must also be stated.
9. The company's current activity, the management of the company and the owners of the company, if the offeror is a company.
10. The offeror's business and any changes thereto as a result of the bid, including information on the preservation of jobs and any significant changes to terms of employment.
11. What part of the voting rights or the extent of control which the offeror has already acquired or otherwise controls, including yet to be executed transfer agreements and special conditions attached to the acquired voting rights or control. Yet to be executed transfer agreements include inter alia convertible bonds, subscription rights, options, warrants etc.
12. Any agreements relevant to the takeover bid, including agreements on the exercise of voting rights attached to the target company's shares, if the offeror is a party to or has knowledge of these agreements.
13. The offeror's right to purchase shares in the target company during the bid period.
14. Whether the offeror has had contact with the management of the target company prior to the takeover bid and confirmation that the prohibition in Section 19 has been respected.
    Subsection 4. Information on consideration, financing and payment:
15. Name and address of the person or company that on behalf of the offeror carries out the execution of the bid.
16. The offered price for each of the target company's classes of shares, cf. for mandatory bids Sections 13 and 14.
17. The consideration, cf. for mandatory bids Section 16.
18. The compensation which the offeror offers shareholders, and the basis for calculating the compensation, cf. Section 344, subsection 2, of the Companies Act.
19. How the bid is financed.
20. How the cash payment is made, or, if shares in another company are offered, how the conversion ratio is determined. If a combination of cash payment and shares is offered, it must be stated how the combination of cash payment and conversion of shares is determined.
21. If the consideration is shares, it must be stated from which date the shares give right to dividends and from what time the voting rights can be exercised.
    Subsection 5. Information on the bid period, acceptance of the bid and publication of the result of the bid:
22. The bid period, cf. Section 9.
23. That shareholders retain their rights in relation to the target company until the conclusion of the bid.
24. The offeror's right to improve the terms of the bid, cf. Section 25, subsection 1.
25. What actions shareholders must take to accept the bid.
26. Where and when the result of the bid will be published.
    Subsection 6. Information on choice of law, withdrawal rights, redemption and admission to trading:
27. Which national legislation regulates the agreements entered into between the offeror and the shareholders as a result of the bid and the competent judicial authorities.
28. Withdrawal right in case of competing bids, cf. Section 30.
29. Intention to redeem remaining shareholders in the target company after the bid has been concluded.
30. Intention regarding whether the target company's shares shall continue to be admitted to trading.
    Subsection 7. Voluntary bids must furthermore contain information on:
31. The minimum and maximum amount of shares expressed in percentage or number, which the offeror commits to acquire.
32. Any conditions, cf. Section 18, and the offeror's possibility to reduce or waive these, cf. Section 25, subsection 2.
33. The offeror's obligation to make a mandatory bid if the conditions in Section 46, subsection 1, no. 1, of the Capital Markets Act are not met.
34. Whether it affects the price in the bid that dividends are paid during the bid period.
    Section 11. The Danish Financial Supervisory Authority must approve a bid document before publication may take place.
    Section 12. The offeror must, as soon as possible, publish a notice if, within the bid period, significant changes have occurred in the information given in the bid document, which cannot be considered improvements in accordance with Section 25, subsection 1, and which are necessary for shareholders to form a well-founded opinion on the bid.

Price and Consideration in a Mandatory Bid
Section 13. The offered price in a mandatory bid must at least correspond to the highest price which the offeror or persons acting in concert with the offeror have paid for the already acquired shares in the target company in the six months preceding the approval of the bid document.
Subsection 2. If control of the target company has been obtained by the offeror acquiring shares indirectly, the offered price must be determined based on the prices on a regulated market.
Section 14. If the target company has several classes of shares, the offeror must determine an offer price for each class of shares. For the classes of shares where the offeror has acquired shares, the principle of highest price, cf. Section 13, subsection 1, must be applied. For classes of shares where the offeror has not acquired shares, the principle of market price, cf. Section 13, subsection 2, must be applied.
Subsection 2. If only some classes of shares are admitted to trading on a regulated market, the offeror must not determine a price for the non-admitted classes of shares that is more than 50 percent higher than the price determined for the admitted shares.
Section 15. The Danish Financial Supervisory Authority may regulate the offered price, which has been determined in accordance with Sections 13 and 14, up or down, when

1. the price of the relevant shares has been manipulated,
2. the price generally or in the present case has been affected by extraordinary events,
3. the bid is made with a view to saving an insolvent company,
4. the pricing is an expression of circumvention of the principle of equal treatment, or
5. the offer price is significantly lower than the market price.
   Subsection 2. The Danish Financial Supervisory Authority may, when determining the offer price according to subsection 1, use
6. the highest price at which the offeror has acquired shares in the 12 months preceding the offeror's notice, cf. Section 3, subsection 1,
7. the average price in the 12 months preceding the offeror's notice pursuant to Section 3, subsection 1,
8. the target company's liquidation value, or
9. other objective criteria.
   Subsection 3. If the offeror requests a change of the highest price according to subsection 1, the request must be submitted to the Danish Financial Supervisory Authority as soon as possible after the offeror's publication of notice of bid, cf. Section 3, subsection 1. Subsection 4. If the Danish Financial Supervisory Authority has published a decision on the regulation of the offered price, the Danish Financial Supervisory Authority forwards the decision to the European Single Access Point (ESAP).
   Section 16. The offeror may, as consideration in a mandatory bid, offer voting shares, cash or a combination thereof.
   Subsection 2. The consideration must include cash as an option when the offered consideration does not consist of liquid shares admitted to trading on a regulated market.
   Subsection 3. Notwithstanding subsections 1 and 2, the offeror must offer cash consideration as an alternative if the offeror or persons acting in concert with the offeror, in a period going six months prior to the publication of the bid document and until notice of the conclusion of the bid, cf. Section 21, subsection 3, against cash have acquired shares representing at least 5 percent of the voting rights in the target company.

Conditions
Section 17. The offeror must not attach conditions to a mandatory bid.
Section 18. The offeror must not attach conditions to a voluntary bid if the fulfilment of which the offeror has control.

Agreements on Bonus or Similar Benefits
Section 19. The offeror or a person acting in concert with the offeror, and the management of the target company must, from the point in time when negotiations with the target company are initiated and until the negotiations are broken off or a takeover bid is implemented, not enter into agreements or make changes to existing agreements on bonus or similar benefits to the management of the target company.

Publication
Section 20. Publication in accordance with this Order must be made by a notice that via electronic media reaches the public in the countries where the target company's shares are admitted to trading on a regulated market in accordance with the Capital Markets Act Section 24.
Subsection 2. The offeror or the target company must, no later than simultaneously with the publication, report the notice to the Danish Financial Supervisory Authority in accordance with the Capital Markets Act Section 25 and send the notice to the operator of the regulated market where the shares are admitted to trading. Subsection 3. The highest management bodies of the target company and the offeror must, after the publication of a notice, inform the representatives of the employees or, if no such representatives exist, the employees directly about the takeover.
Section 21. Notice of a mandatory bid, cf. Section 3, subsection 1, and a voluntary bid, cf. Section 4, subsection 1, must be published in the manner prescribed in Section 20, before any other publication is permitted.
Subsection 2. The offeror must, as soon as possible after receiving the Danish Financial Supervisory Authority's approval of documents that must be prepared and approved in accordance with this Order, publish these.
Subsection 3. The offeror must, no later than 18 hours after the expiry of the bid period, publish a notice on whether the bid is extended or concluded. The notice must contain the preliminary result of the bid. No later than three working days after the conclusion of the bid, the final result must be published.

Access to Information on the European Single Access Point (ESAP)
Section 22. The offeror or the target company must, simultaneously with the publication of the information referred to in Section 4, Section 23 and Section 32, subsections 3 and 4, submit the information to the Danish Financial Supervisory Authority, which forwards it to the European Single Access Point (ESAP).
Subsection 2. The offeror or the target company must ensure that the information is submitted in a data-extractable or machine-readable format, cf. Article 2, nos. 3 and 4, of the Regulation of the European Parliament and of the Council on the establishment of a European Single Access Point and its functioning, which provides centralized access to publicly available information relevant to financial services, capital markets and sustainability, and accompanied by the following data:

1. The legal name of the company to which the information relates.
2. The company's legal entity identification code.
3. The company's size category.
4. The industrial sector of the company's economic activities.
5. The type of information, including whether the information is submitted on a mandatory or voluntary basis.
6. Indication of whether the information contains personal data.
   Subsection 3. In order to meet the requirement in subsection 2, no. 2, the company must acquire a legal entity identification code.

Target Company's Obligations
Section 23. The highest management body of the target company must prepare a correct and comprehensive statement, which must contain the management body's attitude towards the bid and the reasoning therefor, including the management body's attitude to the consequences for all the company's interests and to the offeror's strategic plans for the target company and their probable consequences for employment and places of business.
Subsection 2. The highest management body may prepare a consolidated statement for all takeover bids when notice has been given of several takeover bids.
Subsection 3. The statement must be published before the expiry of the first half of the bid period. In the case of several takeover bids, the deadline must be calculated based on the bid period of the most recently published bid document.
Subsection 4. If the highest management body receives a separate statement from the representatives of the employees regarding the consequences for employment, the management body must publish the statement as soon as possible.
Subsection 5. The highest management body must, if the offeror publishes an addendum pursuant to Section 25, subsection 1, publish a supplementary statement regarding the changes, if the addendum means that the highest management body's original statement is no longer accurate. The statement must be published before the expiry of half of the remaining bid period or, if the remaining bid period is two weeks or less, within one week after the publication of the addendum. Subsection 6. The target company must, after publication in accordance with subsections 3-5, publish the statement or statement on its website.
Section 24. The target company must, as soon as possible, send the following to the registered shareholders in the target company at the offeror's expense:

1. Notice of the bid document with reference to where it can be read.
2. The statement, cf. Section 23.
3. Other information that the offeror wishes to be sent to the registered shareholders of the target company.
   Subsection 2. The offeror may require the target company to send at most three communications with information, cf. subsection 1, no. 3. Thereafter, the target company may refuse to forward the information.

Change of the Bid
Section 25. The offeror may, until the expiry of the deadline specified in Section 21, subsection 3, first sentence, change the terms attached to the bid, if it concerns an improvement. In the case of improvements, the offeror must prepare an addendum to the bid document, which must be approved by the Danish Financial Supervisory Authority and published, cf. Section 20.
Subsection 2. The offeror may, in voluntary bids, waive or reduce determined conditions. In the case of waiver or reduction of determined conditions, the offeror must prepare an addendum to the bid document, which must be approved by the Danish Financial Supervisory Authority and published, cf. Section 20. Subsection 3. If changes are made in accordance with subsections 1 and 2 within the last two weeks of the bid period, the bid period must be extended so that it expires two weeks after the publication of the addendum. The total bid period must not exceed ten weeks, cf. Section 9, subsection 1, or nine months, cf. Section 9, subsection 3, unless Section 27 applies.

Competing Bids
Section 26. The offeror of a competing bid must publish notice of the submitted competing bid before the expiry of the bid period for the or already existing bids, cf. Section 20. The provisions of this Order apply mutatis mutandis to competing bids.
Subsection 2. A competing bid may only be withdrawn if notice is given of a new competing bid, cf. Section 28. Change of an already submitted takeover bid, cf. Section 25, does not constitute a new competing bid.
Section 27. The bid period must not be shorter than the bid period in an already published bid document.
Subsection 2. The bid period in an already published bid document must be extended to the expiry of the bid period in the most recently published bid document, cf. however Section 28, if the bid period in the most recently published bid document is longer than in the already published bid document. Extension must be made by addendum.
Section 28. Offerors for already submitted voluntary bids may withdraw the bid when a competing bid is submitted, cf. subsection 2. The withdrawal of the bid must be published, cf. Section 20.
Subsection 2. The offeror may withdraw the bid at the following times:

1. When notice has been given, cf. Section 4, of a competing bid and up to five working days after the notice.
2. When the bid document for the competing bid has been published and up to five working days after the publication.
   Section 29. F