Oslo Børs as the Norwegian Takeover Supervisory Authority

Takeover bids related to more than one EEA state

The document attached sets out which provisions in Chapter 6 of the Securities Trading Act that will apply in connection with takeover bids on companies with relations to other EEA states than Norway.

The split clarifies the division set out in Section 6-14 of the Securities Regulations, cf. Art 4(2)(e) of the Directive on takeover bids (2004/25/EC). We emphasise that in case of inconsistency between the statutory provision and our document, the statutory provision will take precedence.

Decisions and statements made by Oslo Børs

Oslo Børs’ annual publication Decisions and statements contains decisions and statements made by Oslo Børs the preceding year and which are considered of interest as they illustrates interpretation of relevant rules and current practices. Statements and decisions made in connection with takeovers bids are included in a separate chapter of the publication.

Please note that not all decisions and statements are available in English.

Useful links

 Resolutions by The Stock Exchanges Appeals Committee

Circulars, decisions and statements

Previous decisions and statements are contained in annual collections published by Oslo Børs. The collection consists of excerpts from Oslo Børs' decisions, letters and other statements that are assumed to be of interest because they illustrate interpretations or practices. In addition, all circulars for the year are included.

The collections are only available in Norwegian, but some decisions and statements are in English.

Circulars, decisions and statements

Shared jurisdiction and supervision - takeover bids with connection to several EU/EEA states

A bid for shares issued by a company with registered office in an EEA state other than Norway will be subject to the EU/EEA rules regarding shared jurisdiction and supervision.

Oslo Børs has made available an overview of listed companies that inter alia includes information on whether a company is subject to the rules regarding shared jurisdiction and supervision; Overview of listed companies’ home state etc.

The document below sets out which provisions in Chapter 6 of the Securties Trading Act that will apply in connection with takeover bids on companies with relations to other EEA states than Norway.

The split clarifies the division set out in Section 6-14 of the Securities Regulations, cf. Art 4(2)(e) of the Directive on takeover bids (2004/25/EC). We emphasise that in case of inconsistency between the statutory provision and our document, the statutory provision will take precedence; Rule document cross border bids.

Exemption from the mandatory bid obligation in the case of acquisition by someone with whom the acquirer is consolidated

The mandatory bid obligation is also applicable in the event of acquisition by someone with whom the acquirer is consolidated, when the acquirer alone or together with one or more related parties crosses the mandatory bid threshold as a result of the acquisition. The expression “related party” is further defined in Section 2-5 of the Securities Trading Act. Oslo Børs may, in its capacity as takeover supervisory authority, “in special cases” make exemptions from the mandatory bid obligation in the case of acquisitions by someone with whom the acquirer is consolidated pursuant to section 6-5, cf. section 6-1 (6). According to the preparatory works of the Securities Trading Act the rules regarding the mandatory bid obligation should not prevent a practical and appropriate restructuring of a consolidated group of companies. On the other hand, the exemption rule must not undermine the purpose of the mandatory bid obligation.

Exemptions are normally granted in connection with transfers of shares between a parent company and a wholly-owned subsidiary or between two wholly-owned companies. According to the preparatory works the main assessment regarding whether or not an exemption from the mandatory bid obligation should be granted is whether the transfer represents a change of control or is a part of a chain of transactions that may lead to a change of control.

An application for exemption from the mandatory bid obligation should be addressed to the legal department at Oslo Børs. The decision made by Oslo Børs may be appealed to The Stock Exchange Appeals Committee.

Below are the decisions regarding exemptions from the mandatory bid obligation in the case of transfers within a consolidated group which have been made since 2014. Please note that not all decisions are available in English. Decisions from previous years are available in the annual publication Decisions and Statements (available in Norwegian only).

Code of practice for information to be provided on the company website

A large portion of the companies listed on Oslo Børs are foreign, and the proportion of foreign shareholders in many of the listed companies is high. It can be challenging for investors and other market participants to locate and digest the information they need about legal provisions that are relevant to trading in listed companies. Oslo Børs therefore recommends that companies listed on Oslo Børs or Oslo Axess post information on their website about the rules that apply in relation to the company. Oslo Børs has prepared a Code of practice for legal provisions of relevance for investors on the website and an example of such presentation of information for Norwegian listed companies.

In the Code of practice it is recommended that the companies post on their web sites a brief description of the rules governing takeover bids of the company, including:

• Which country’s takeover rules that apply, and which authority that supervise the rules. If governing law and supervision are subject to shared jurisdiction, the presentation should include a summary of the substantive delimitiations.
• The thresholds triggering the duty to make a mandatory offer.
• The rules on minimum offer price.
• When a potential offer must be publicly disclosed.
• Any provisions in the articles of association that may be of relevance to takeover bids. 

The Securities Trading Act Chapter 6

Regulations to the The Securities Trading Act Chapter 6

Directive 2004/25/EC on takeover bids

Approval of the bid and the offer document

Oslo Børs, in capacity of the Norwegian Supervisory Authority, is responsible for approving bids and offer documents prepared in connection with mandatory and voluntary bids, as well as ensuring that bidders and target companies comply with the provisions of the Securities Trading Act Chapter 6 through the takeover process.

Exercise of public authority

When acting in capacity as takeover supervisory authority, Oslo Børs exercises public authority. This means that several of the provisions of the Norwegian Public Administration Act apply to the procedures and decisions made by Oslo Børs in connection with the approval and supervision of the bid. Decisions made by Oslo Børs in this respect may be appealed to the Stock Exchange Appeals Committee.

Review and approval of offer documents

A standard check list with references to the content requirements stipulated in the Securities Trading Act must be filled out and submitted together with the first draft of the offer document to Oslo Børs. The bidders must also provide answers to certain standard questions with regard to offer price and equal treatment of shareholders.  The standard check list and questions regarding offer price and equal treatment are available on this web page.

The process of reviewing and approving the offer document and the offer takes approximately 12-14 business days. However the processing time may vary depending on the complexity of the case and the issues arising. The procedure of approving a cross-border takeover subject to shared jurisdiction may take longer time as the review has to be coordinated with the other competent authority.

Check list and control questions in connection with mandatory and voluntary bids

A standard check list with references to the content requirements stipulated in the Securities Trading Act must be filled out and submitted together with the first draft of the offer document to Oslo Børs.

The bidders must also provide answers to certain standard questions with regard to offer price and equal treatment of shareholders.

Exemptions from the Norwegian rules on takeover bids

Oslo Børs, in its capacity as takeover supervisory authority, may by individual decision make exceptions from the Norwegian rules on takeover bids in respect of:

• Norwegian companies whose shares are quoted on both Oslo Børs/Oslo Axess and a regulated marked in state outside the EEA, or
• companies with their registered office in a state outside the EEA whose shares are quoted on Oslo Børs or Oslo Axess.

For more information on the rules on exemptions from the Norwegian rules on takeover bids please refer to Cirular no. 11/2007.

In the overview of listed companies' home state it is indicated whether or not the company is subject to Norwegian takeover rules.

It follows from the securities trading act section 6-15 that Oslo Børs, in capacity as takeover supervisory authority, may charge the offeror a fee in connection with approval of the bid and the offer document.

Upon request Oslo Børs may begin the process of reviewing the offer document on a confidential basis before the offer is publicly announced. The fee is incurred when a document is submitted for inspection and approval.

The relevant fees are listed in the schedules of fees applicable to issuers at Oslo Børs/Euronext Expand (Oslo Axess).

Relevant directives, regulations and ESMA statements

Direktivet om overtakelsestilbud (2004/25/EF)

Bid notification

Notification regarding mandatory bid obligation

Where an agreement on acquisition triggering a mandatory bid obligation is entered into, the person who is or will be subject to such obligation shall without delay notify to Oslo Børs (the takeover supervisory authority) and the target company accordingly (section 6-8 of the Securities Trading Act). The notification shall state whether a bid will be made to buy the remaining shares in the target company or whether a sale will take place.

The notification should be submitted to ma@oslobors.no. Oslo Børs will then make the notification available to the public.

Notification regarding a decision to make a voluntary bid

Whoever has made a decision to make a voluntary bid shall forthwith notify Oslo Børs (the takeover supervisory authority) and the target company accordingly (section 6-19 of the Securities Trading Act). 

The notification should be submitted to ma@oslobors.no. Oslo Børs will then make the notification available to the public.

Changes to takeover bids

Changes to an approved takeover bid (which is based on the terms stipulated when the original offer was made), and the document presenting the change, must be approved by Oslo Børs (takeover supervisory authority). Changes to the bid must be made before the end of the offer period.

More information on the procedure for changes to takeover bids can be found in Circular No. 9/2012.

Compulsory acquisition of shares following a voluntary offer

Pursuant to the Norwegian Securities Trading Act section 6-22 sub-section (3) an offeror who, after making a voluntary bid, has acquired more than nine tenths of the voting shares of the target company, may decide to force the transfer of the remaining shares without a prior mandatory bid having been made provided the following conditions are met: 

• The redemption is initiated at the latest four weeks after the acquisition of shares by voluntary bid,
• the redemption price corresponds at least to the lowest bid price that would have resulted from a mandatory bid, and
• the same guarantee is provided as in the case of a mandatory bid under section 6-10 subsection (7). The Public Limited companies Act section 4-25 subsection (5) does not apply to the extent that such guarantee is made available.

Oslo Børs in its capacity as takeover supervisory authority will supervise whether the conditions for the redemption without prior mandatory offer is fulfilled.

In line with Oslo Børs’ standard procedures the offeror must provide answers to certain standard questions (see below) that may be relevant to determine the minimum redemption price as well as a draft of the guarantee text. In order for Oslo Børs to approve the redemption Oslo Børs must receive a transcript from VPS, which must be confirmed by the account operator (no: “kontofører utsteder”), evidencing that the offeror owns more than 90 of the shares of the target company, an authorised copy of the minutes of the board meeting resolving the redemption as well as the signed guarantee. Further it must be confirmed that the redemption is initiated within at the latest four weeks after the acquisition of shares from the mandatory bid.

Please note that Oslo Børs should be contacted in due time in order to determine the time line and process for approval of the redemption. This is also important in order to determine when the shares of the target company are to be suspended. Oslo Børs will publish a copy of the approved bank guarantee together with an announcement stating that the conditions for the redemption without a prior mandatory offer are fulfilled.