Shares held by close associates must be taken into account when calculating whether the threshold of 40% of the voting rights in a listed company at which the duty to make an offer arises has been reached. Section 1-4, item 5, of the Securities Trading Act defines a close associate as "a party with whom the shareholder must be assumed to be acting in concert in the exercise of rights accruing to the owner of a financial instrument". Where there is no written agreement between the parties Oslo Børs has to consider whether there are sufficient grounds to assume that there is in fact an implicit and mutually binding agreement between the parties with a view to exercising control over the company sufficient to breach the threshold. By way of example, an agreement that only extends to collaboration on purchases or sales of shares and does not relate to how the parties exercise their rights as shareholders in the company would not be seen as sufficient to reach such a conclusion. In addition the collaboration in question must have attained a certain degree of continuity and scope rather than being restricted to collaboration on specific matters.
Oslo Børs has carried out investigations through discussions and correspondence with the companies in question, and has gathered written documentation from the companies and other sources. Its investigations have not identified any written or verbal agreements to act in concert as shareholders in Elkem. It is clear that the shareholders subject to this investigation have played a role in preventing Alcoa from gaining representation on Elkem´s Board of Directors, and a number of them have, as buyers of the company´s shares, helped to maintain the Elkem share price above Alcoa´s partial offer of NOK 175 per share. These parties have therefore helped to ensure the minimal level of acceptance seen for the Alcoa bid. There has been contact between several of the parties investigated in connection with the Alcoa bid, and this has involved exchanges of views on the Alcoa bid and mutual interests. However this does not in itself represent sufficient grounds to assert that any of the shareholders investigated have collaborated in a manner that gives grounds to consolidate their shareholdings pursuant to the Securities Trading Act.
Oslo Børs has advised Orkla and Nordstjernen Holding that current circumstances would cause an evaluation of whether their shareholdings in Elkem should be consolidated which may differ from the conclusion taken by Kredittilsynet (the Banking, Insurance and Securities Commission) the Ministry of Finance and Oslo Børs in 1999/2000. Since Orkla and Nordstjernen Holding currently own in total less than 40% of Elkem´s shares, Oslo Børs will only reach a decision on this matter if this becomes necessary.
