276 5 Equity and Shareholders’ Capital
case of Flesberg is that the “true value” (virkelig verdi) of shares is determined on the basis
of their market value.^702
Where the articles of association of the target provide for an obligation to launch a
mandatory bid or for sell-out rights, the articles of association tend to set out how
the price will be determined.
Special remarks: fairness opinion, independent advice. In formal mergers, the
merger plan will be reviewed by independent experts who will submit a report to
the general meeting.^703
Whether an external fairness opinion or the publication of independent advice
are required in share exchange offers depends on whether the issuing of shares is
governed by the Second Company Law Directive, whether the offer is a public bid
governed by the Directive on takeover bids, and the governing law.
The Second Directive requires the drawing up of a report on any consideration
other than in cash by one or more independent experts.^704 After the partial mod-
ernisation of the Directive in 2006,^705 that report has become optional for Member
States: where the consideration consists of securities admitted to trading on a regu-
lated market or money market instruments and they are valued at a certain
weighted average price; or where the consideration consists of other assets which
have already been subject to a fair value opinion.^706
For example, Member States may decide not to apply that requirement “where,
upon a decision of the administrative or management body, assets ... have already
been subject to a fair value opinion by a recognised independent expert and where
the following conditions are fulfilled: (a) the fair value is determined for a date not
more than six months before the effective date of the asset contribution; (b) the
valuation has been performed in accordance with generally accepted valuation
standards and principles in the Member State, which are applicable to the kind of
assets to be contributed.” In the case of new qualifying circumstances that would
significantly change the fair value of the asset at the effective date of its contribu-
tion, a revaluation must be carried out.^707
In the absence of an expert’s report, a declaration containing the following must
be published within one month after the effective date of the asset contribution:
“(a) a description of the consideration other than in cash at issue; (b) its value, the
source of this valuation and, where appropriate, the method of valuation; (c) a
statement whether the value arrived at corresponds at least to the number, to the
(^702) Rt 2007 p 1392 (Flesberg). Generally, see Truyen F, Vederlaget ved innløsning av
aksjer: Hvor langt rekker Flesberg-dommen? NTS 2008:1 pp 62–70.
(^703) Article 10 of Directive 78/855/EEC (Third Company Law Directive); Article 8 of Direc-
tive 2005/56/EC (Directive on cross-border mergers); Article 22 of Regulation
2157/2001 (SE Regulation).
(^704) Articles 27(2) and 10(2) of Directive 77/91/EEC (Second Company Law Directive).
(^705) Directive 2006/68/EC amending Council Directive 77/91/EEC as regards the formation
of public limited liability companies and the maintenance and alteration of their capital.
(^706) Article 1(2) of Directive 2006/68/EC inserting new Articles 10a and 10b.
(^707) Article 10a of Directive 77/91/EEC (Second Company Law Directive), inserted by Arti-
cle 1(2) of Directive 2006/68/EC.