2023 edition: for the year 2022
Welcome to the latest edition of BAHR’s Norwegian Public Takeover Deal Study. In this survey, we have examined the latest developments and key terms for takeovers on the Oslo Stock Exchange for the year 2022.
BAHR continues to advise on a significant number of public M&A transactions in Norway, each year giving us even deeper insight into prevailing market terms and trends. In our annual study of public takeover bids in the Norwegian market, we have examined the latest developments on key terms and figures for takeovers on the Oslo Stock Exchange, which have been sourced from transactions in the period spanning 2015 – 2022.
This study focuses on some recurring and emerging issues in public takeover acquisitions in Norway. The topics covered in this study range from overall transaction structure and timing, such as the strategic review process and alternatives for dealing with management and significant shareholders, to specific contractual provisions, such as material adverse change clauses and nonsolicitation provisions.
As per last year’s edition, we have included both standalone and consolidated figures from previous years to offer a basis for comparison and share the insight we have gained over recent years. This year we have also seen a series of takeovers on the Euronext Growth Oslo market. New for this year’s edition is that we have included key figures from these transactions in our study. We invite you to review the results of the study, which we hope will provide valuable insight for you in future transactions.
Yours sincerely,
Lars Knem Christie, Martin Kloster Aasen and Camilla IversenOver the past years, the Norwegian market experienced unprecedented years for listings on the Oslo Stock Exchange, both in terms of record numbers of IPOs as well as deal values. At the same time, we saw that the amount of public takeover offers followed suit and grew to an all-time high, with takeover battles for major entities that gained broad public attention.
The number of listings on the Oslo Stock Exchange in 2022 dropped from a record high 68 in 2021 to 16 in 2022, returning to numbers on par with averages from the past decade. However, the total amount of public takeover offers for listed entities in the Norwegian market remained high, despite a decrease from 14 total offers made in 2021 compared to the completed offers on 10 target entities in 2022. Still, the number of completed takeover
offers in 2022 remains significantly higher than the annual average for the years 2015 to 2020. The 4 completed takeover offers on Euronext Growth Oslo contributed to the total number of offers in 2022 remaining high compared to previous years.The predominant transaction structure for take private transactions in the Oslo markets remains recommended conditional voluntary tender offers for cash based on a transaction agreement with the target board. Customary conditions for completion of voluntary tender offers are also fairly established, but SalMar ASA’s offer for the shares in NTS ASA included a hell or high water clause for obtaining competition clearance – a feature that is rare in the Norwegian public takeover sphere.
This year a majority of the takeover offers were made by industrial bidders, whereas in previous years transactions have on average been somewhat less
dominated by industrial bidders. Another key feature for 2022 is that the amount of target entities operating in IT and technology sectors is close to double the average from previous years.
In a case before the Norwegian Stock Exchange Appeals Committee in 2022 it was ruled that there were not sufficient grounds for imposing the mandatory offer regime where a listed entity’s entire material business and assets were sold in a private transaction. In that case circumvention was alleged, but the ruling from the appeals committee implies that the threshold for triggering an obligation to put forward a mandatory offer for a transaction structured as a private acquisition is very high, if applicable at all.
Year 2022 saw the first public tender offers on companies listed on Euronext Growth Oslo, the multilateral trading facility of the Oslo Stock Exchange. Since Euronext Growth Oslo, unlike Oslo Børs and Euronext Expand, is not a regulated market the ordinary laws and regulations for takeover offers do not apply. Specifically, the lack of an obligation to put forward a mandatory offer is a distinctive feature for this venue. Further, the rules for major shareholding disclosure do not apply either (save for the issuer’s obligation to announce a shareholder passing 50% and 90% ownership thresholds). In practice, these features enable bidders to explore alternative transaction structures from those that are practiced on the regulated marketplaces.
The very high listing activity on the growth market over recent years, combined with the added potential flexibility for bidders, has generated particular interest and anticipation as to the structure and form of future takeover offers for companies listed on Euronext Growth Oslo. However, the offers that have been made thus far have, to a large extent, followed along the lines of what is established practice in the realm of the regulated markets and in line with the Oslo Stock Exchange’s informal encouragement.
However, the full potential and opportunities in this market remain to be completely explored and we very much look forward to seeing what general market standards emerge and which practices are established.
Transactions reviewed: 53 (2015 – 2022)
Transactions reviewed: 8 (2022)
Take-over bid with cash
Take-over bid with all shares
Take-over bid with cash and shares
Transactions reviewed: 53 (2015 – 2022) Transactions reviewed: 8 (2022)
If combination of cash and shares o ered, how much of the total consideration did the share consideration constitute?
80% or more
51% - 79%
50% or less
Transactions reviewed: 2 (2022) New for 2023 edition
Take-over bid with cash
Take-over bid with all shares
Take-over bid with cash and shares
If combination of cash and shares o ered, how much of the total consideration did the share consideration constitute?
80% or more
51% - 79%
50% or less
Voluntary o er followed by a mandatory o er followed by squeeze-out
Voluntary o er followed by squeeze-out
Threshold for squeeze-out not obtained
90% and above 2/3 - <90%
50% - <2/3
Below 50%
Transactions reviewed: 4 (2022)
Did the target publicly disclose that it undertook a review of strategic alternatives before contact with bidder was established?
Did the bidder and the target enter into a formal transaction agreement?
Transactions reviewed: 28 (2015 – 2022) Voluntary o ers only
Transactions reviewed: 3 (2022)
Target board of directors' statement to the o er
Transactions reviewed: 53 (2015 – 2022)
Transactions reviewed: 8 (2022)
Initiation of Transaction Process – Euronext Growth Oslo
Target board of directors' statement to the o er
Recommended Neutral Negative
None
Transactions reviewed: 4 (2022)
How many fairness opinions were obtained by target?
Transactions reviewed: 53 (2015 – 2022)
Transactions reviewed: 8 (2022)
How many fairness opinions were obtained by target? None 1 Opinion 2 Opinions
Bidder’s ownership in the target at the launch of the o er
Transactions reviewed: 53 (2015 – 2022)
Transactions reviewed: 8 (2022)
Bidder’s ownership in the target at the launch of the o er
Transactions reviewed: 4 (2022)
What percentage of target securities were pre-accepted? Above 50%
Transactions reviewed: 31 (2015 – 2022)
Voluntary o ers only
Transactions reviewed: 3 (2022)
If pre-acceptances were obtained, was it hard (no right to withdraw) or soft (right to tender in higher o er)?
Soft
Soft, but with matching right for rst bidder Hard
Several types
Transactions reviewed: 26 (2015 – 2022)
Voluntary o ers only
Transactions reviewed: 3 (2022)
What percentage of Target securities were pre-accepted?
Above 50%
31% - 50%
11% - 30%
0% - 10%
None
2022
If pre-acceptances were obtained, was it hard (no right to withdraw) or soft (right to tender in higher o er)?
Hard
Soft, but with matching right for rst bidder
Soft
Several types
2022
Transactions reviewed: 4 (2022)
Did Oslo Stock Exchange require that an independent third party delivered the statement on the o er pursuant to section 6-16 (4) of the Securities Trading Act?
Transactions reviewed: 50 (2015 – 2022)
Transactions reviewed: 8 (2022)
Where transaction agreements have been entered into
Non-solicitation obligation for the target with respect to soliciting other potential buyers?
Was the target board able to withdraw its recommendation of the o er?
Transactions reviewed: 21 (2015 – 2022)
Transactions reviewed: 2 (2022)
Voluntary o ers with transaction agreements only
Non-solicitation obligation for the target with respect to soliciting other potential buyers?
Was the target board able to withdraw its recommendation of the o er?
Transactions reviewed: 4 (2022)
Was the transaction subject to a break fee payable by target?
Not disclosed
Transactions reviewed: 21 (2015 – 2022)
Transactions reviewed: 2 (2022)
Voluntary o ers with transaction agreements only
Amount equal to incurred transaction costs
Above MEUR 20
How much was the break fee/cost cover fee? 100% 9% 0%
64%
33% 0%
100% 67% 0% 2015 - 2022 2020 2021 2022
What percentage of the enterprise value was the break fee/cost cover fee?
Transactions reviewed: 11 (2015 - 2022)
Transactions reviewed: 2 (2022)
*Where break fees are set to the amount of incurred transaction fees it is often capped at a certain level.
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How much was the break fee/cost cover fee?
Amount equal to incurred transaction costs
Above MEUR 20
Below MEUR 5
Transactions reviewed: 4 (2022)
What percentage of the enterprise value was the break fee/cost cover fee?
Above 1.5% 1.0% - 1.5%
Below 1.0%
*Where break fees are set to the amount of incurred transaction fees it is often capped at a certain level.
Voluntary offers and Euronext Growth Oslo offers
Transactions reviewed: 28 (2015 – 2022)
reviewed: 3 (2022)
Transactions reviewed: 28 (2015 – 2022) Transactions reviewed: 3 (2022)
Completion of the o er by the bidder being subject to no material adverse change in, or material adverse e ect on, the target company having occurred between the period of launch and completion of the o er.
2022
100%
Completion of the o er being subject to the target not taking or proposing any action that could materially a ect the o er.
2022
33%
67%
Transactions reviewed: 3 (2022) New for 2023 edition
A hell or high water clause entails that the o eror at a certain time has to complete the o er although certain terms and conditions for completion have not been met. For example competition clearance or third party approvals.
What was the number of days between the date of the announcement of the intention to make the o er and the closing date?
1 month - 2 months
2 months - 3 months
3 months - 4 months
4 months - 5 months
5 months - 1 year
Transactions reviewed: 51 (2015 - 2022)
Transactions reviewed: 8 (2022)
What was the number of days between the date of the announcement of the intention to make the o er and the closing date?
Transactions reviewed: 4 (2022)
Oslo Børs and Euronext Expand
Mercell Holding ASA Spring Bidco (Norway) AS
Magseis Fair eld ASA
TGS ASA
Q-Free ASA Rieber & Søn AS
5thPlanet Games A/S
Skybound Game Studios, Inc.
Northern Drilling Ltd Hemen Holding Limited
NTS ASA SalMar ASA
Euronext Growth Oslo
House of Control Group AS
Visma Norge Holding AS
EcoOnline Holding AS Erling Bidco (Apax Funds)
Ørn Software Holding AS
EG Norge AS
Play Magnus AS Chess Growthco LLC
KMC Properties ASA (Originally named Storm Real Estate ASA)
EBE Eiendom AS and Kverva Industrier AS
Q-Free ASA Rieber & Søn AS
Axactor SE Geveran Trading Co. Limited
Infront ASA Dash Bidco AS
NattoPharma ASA (Expand) Compagnie des Levures Lesa re
Bank Norwegian ASA
Nordax Bank AB (publ)
Avance Gas Holding Limited Hemen Holding Limited
Sbanken ASA DNB Bank ASA
Norway Royal Salmon ASA
Ocean Yield ASA
Solon Eiendom ASA
NTS ASA
Octopus Bidco AS
Samhällsbygnadsbolaget i Norden AB
Entra ASA Fastighets AB Balder (publ)
Target Bidder
Torghatten ASA
EQT Partners AB
Entra ASA Castellum AB
Entra ASA Samhallsbyggnadsbolaget i Norden AB
Funcom N.V Tencent Holding Ltd.
Data Respons ASA AKKA Techonologies SA
Target Bidder
Scottish Salmon Company P/F Bakkafrost
Belships ASA Kontrari AS and Kontrazi AS
Cxense ASA Piano Software B.V
NextGentel Holding ASA Telecom Holding 3
Oslo Børs VPS Holding ASA Nasdaq AB
Oslo Børs VPS Holding ASA Euronext
Target Bidder
Saferoad ASA SRH Investco AS
Ekornes ASA QuMei Home Furnishings Group Co. Ltd
Link Mobility Group ASA Victory Partners VIII Norway AS
Uni ed Messaging System ASA Everbridge Holdings Limited
Songa O shore SE Transocean Ltd.
Weifa ASA
Hafslund ASA
MultiClient Geophysical ASA
Solvang ASA
Tide ASA
Serodus ASA
Techstep ASA
Aurora LPG ASA
Norwegian Property ASA
Hav sk ASA
Siem O shore Inc.
S.D. Standard Drilling plc
Zoncolan ASA
Interoil Exploration and Production ASA
Eitzen Chemical ASA
Cellcura ASA
Eltek ASA
Karo Pharma AB
Oslo Energi Holding AS
Geoex Ltd
AS Clipper
Det Stavangerske Dampskibsselskab AS
Viggo Harboe Holding 2006 ApS
Zono Holding AS (Middelborg Invest AS, Datum AS, Cipriano AS and more)
BW LPG
Geveran Trading Co Ltd
Lerøy Seafood Group ASA
Siem Europe S.a.r.l.
Saga Tankers AS
Ousdal AS
Andes Energia
Team Tankers International
Dag Dvergsten
Delta Electronics
In compiling the study, BAHR has solely reviewed publicly available information, including offer documents, press releases and other related publicly available documents.
The disclosure documents that form the basis of the study each include specific drafting tailored to the particular transaction in question. The terms of many transactions are not directly comparable. Accordingly, BAHR has relied on its judgment and discretion in summarising, categorising, and reflecting these provisions in the study. Non-public information may be relevant to the analysis, but is not reflected in the study.
The results of the study do not reflect the views of BAHR or legal advice. Whether a specific term of an acquisition should apply or not is highly dependent on the facts and circumstances of each particular transaction. Accordingly, the applicability of any aspect of the study to a specific transaction merits close consideration based upon the facts and circumstances of that transaction.
LARS KNEM CHRISTIE PARTNER
T +47 924 95 977
E lkc@bahr.no
ARNE TJAUM
PARTNER
T +47 950 39 85
E at@bahr.no
LARS KRISTIAN SANDE
PARTNER
T +47 908 58 464
E lks@bahr.no
CAMILLA IVERSEN
MANAGING ASSOCIATE
T +47 474 16 227
E caive@bahr.no
SIMON GUNNHEIM
SENIOR ASSOCIATE
T +47 932 69 373
E sigun@bahr.no
ROBIN BAKKEN
PARTNER
T +47 934 09 900
E rba@bahr.no
SVEIN GERHARD SIMONNÆS
PARTNER
T +47 920 21 027
E sgs@bahr.no
PERNILLE WOXEN
BURUM
SPESIALIST
PARTNER
T +47 926 17 440
E pwb@bahr.no
MARTIN KLOSTER
AASEN
MANAGING ASSOCIATE
T +47 481 53 538
E makaa@bahr.no
SAM KRONENBERG
U.S. LAWYER (ADMITTED IN CALIFORNIA)
T +47 465 43 15
E samkr@bahr.no
