Generally, no government filings are necessary in connection with a business combination. However, filings may be necessary in the following situations.
Tender offers and delistings
Voluntary and mandatory takeover bids as described above in section 3 must be filed with the Danish FSA. If more than 90 per cent of the shares in a publicly traded company is successfully taken over by a single shareholder, the company typically submits a request for delisting of its shares to the regulated market in question.
Pursuant to the Danish Companies Act, shareholders of both listed and unlisted companies shall notify the company of substantial shareholdings (ie, upon attaining 5 per cent of the share capital’s voting rights or nominal value and upon subsequently exceeding or falling below the threshold of 5, 10, 15, 20, 25, 33.33, 50, 66.66, 90 or 100 per cent of the voting rights or nominal value of the share capital, respectively). This information shall be registered by the company, and the register is available for inspection by public authorities, shareholders and board members.
Further, a company must register such notifications of substantial shareholdings in the Danish Business Authority’s (DBA) IT-system (the Public Shareholders’ Register) in which this information is made publicly available.
With regard to listed companies, the above information shall also be notified immediately (on the date of the transaction) by the purchaser to the Danish Financial Supervisory Authority and the company shall make the information available to the market without delay.
Violation of the notification obligations is punishable by a fine.
Holders of bearer shares in public limited companies attached with less than 5 per cent of the share capital’s voting rights or nominal value are obligated to register their shareholding with the DBA. This requirement does not apply to shareholders in listed companies. The registered information is not made publicly available and is only accessible by public authorities for inspection purposes.
Depending on the nature of the acquired assets, notifications to public authorities may be required or be advisable.
All rights over real estate, including ownership rights, rights of use of another person’s real estate, mortgages and other rights must be perfected by registration with the Danish Land Registry in order to obtain protection against legal proceedings against the property and in relation to subsequent bona fide beneficiaries of rights to the real estate. The registration fee varies depending on the type of right to be registered, the most expensive being ownership rights and mortgage where the fee amounts to a percentage of the purchase price and of the secured amount, respectively.
Ownership rights to industrial property under Danish law, including registered trademarks, industrial designs, patents and utility models, are registered with the Danish Patent and Trademark Office and a business transfer will often necessitate amendments to the registered information.
In general, all amendments to the articles of association of limited companies shall be registered with the DBA, for example, change of company name, increases or reductions of the share capital, and so on.
With regard to mergers, the DBA shall receive a copy of the joint merger plan executed by the boards of directors of both companies. Any subsequent resolutions to carry out the merger shall be notified to the DBA within two weeks of the resolution date.
Mergers and acquisitions shall be notified to the Danish Competition and Consumer Authority in the event that one of the following thresholds is exceeded:
- the aggregate annual turnover in Denmark of all of the undertakings involved is at least 900 million Danish kroner and the aggregate annual turnover in Denmark of each of at least two of the undertakings concerned is at least 100 million Danish kroner; or
- the aggregate annual turnover in Denmark of at least one of the undertakings involved is at least 3.8 billion Danish kroner and the aggregate annual worldwide turnover of at least one of the other undertakings concerned is at least 3.8 billion Danish kroner.
If a merger or acquisition has an EU dimension as defined in the EC Merger Regulation (2004/139/EC) (for example, if the aggregate worldwide annual turnover of all the undertakings concerned exceeds €5 billion and the aggregate turnover within the EU of each of at least two of the undertakings concerned exceeds €250 million), the merger or acquisition shall be notified to the European Commission instead of the Danish Competition and Consumer Authority.
Registration with the DBA of incorporation of and subsequent changes made to limited liability companies are subject to fees. The registration fee varies depending on whether the registration is made using a paper registration form or online via the DBA’s IT system. Further, a fee must be paid when filing a merger notification with the Danish Competition and Consumer Authority. The fee for a simplified notification is 50,000 Danish kroner, while the fee for a full notification amounts to 0.015 per cent of the combined annual turnover in Denmark of the undertakings concerned, subject to a maximum of 1.5 million Danish kroner. Otherwise no fees are charged with regard to the above notifications.
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