5.11 Shares as a Means of Payment 275same securities by the offeror ... over a period, to be determined by Member
States, of not less than six months and not more than 12 before the bid ... If, after
the bid has been made public and before the offer closes for acceptance, the of-
feror ... purchases securities at a price higher than the offer price, the offeror shall
increase his/her offer so that it is not less than the highest price paid for the securi-
ties so acquired.”^696
However, the obligation to launch a mandatory bid will not apply, where “con-
trol has been acquired following a voluntary bid made in accordance with [the Di-
rective on takeover bids] to all the holders of securities for all their holdings”.^697
Where an offeror has made a public takeover bid, become a majority share-
holder as a result of the bid, and obtained a squeeze-out right as set out in the Di-
rective on takeover bids,^698 the price that the majority shareholder must pay to mi-
nority shareholders for their shares must be “fair”.^699
The consideration will nevertheless depend on whether the earlier bid was vol-
untary or mandatory. If the earlier bid was mandatory, the consideration offered in
the bid is presumed to be fair. If the earlier bid was voluntary, the consideration
offered in the earlier bid is presumed to be fair where, through acceptance of the
bid, the offeror acquired securities representing not less than 90% of the capital
carrying voting rights.
Again, the obligation to purchase (sell-out right) or sell (squeeze-out rights)
shares will not apply, where the threshold was exceeded other than as a result of
“a bid made to all the holders of the offeree company’s securities for all of their
securities”.
Where the provisions implementing the squeeze-out right or sell-out right under
the Directive on takeover bids do apply, the offeror may have no incentive to pay
a higher price to one shareholder. The presumption in the Directive on takeover
bids thus lays down the minimum price and, in practice, also the maximum price
that the offeror is prepared to pay.^700
Where the provisions on squeeze-out rights and sell-out rights do not apply, the
price can be determined in another way. In those cases, consideration for shares
can depend on the governing law.
Under Norwegian law, the price payable in a squeeze-out or sell-out situation is the “true
value” (virkelig verdi) of shares. According to the judgment of the Supreme Court (Høys-
terett) in the case of Norway Seafoods, the shares must, in that context, be valued as if the
company did not have a controlling shareholder.^701 When the transfer of shares is subject to
the company’s consent and the consent is not given, the shareholder may require the com-
pany to redeem his shares. In that context, the main rule according to the judgment in the
(^696) Article 5(4) of Directive 2004/25/EC (Directive on takeover bids).
(^697) Article 5(2) of Directive 2004/25/EC (Directive on takeover bids).
(^698) Articles 15 (squeeze-out) and 16 (sell-out) of Directive 2004/25/EC (Directive on take-
over bids).
(^699) Article 15(5) of Directive 2004/25/EC (Directive on takeover bids).
(^700) See nevertheless Article 3(2) of Directive 2004/25/EC (Directive on takeover bids) on
more stringent requirements.
(^701) Rt 2003 p 713 (Norway Seafoods). See also Chapter 4, section 25 of allmennaksjeloven.