Kvinnherad Energi has a pre-emption right to shares in Kvinnherad Breiband [broadband]

Following the completion of a complex transaction involving both a merger and a demerger, a minority shareholding in a subsidiary got a new owner. The owner of the majority shareholding in the subsidiary exercised a pre-emptive right to the shares in accordance with a previously concluded shareholder agreement. The new owner of the minority shareholding contested that the pre-emptive right could be exercised. The Supreme Court assumed that the so-called continuity principle implies that the transfer of shares following a merger and a demerger does not in principle trigger an agreed pre-emptive right, but that a concrete interpretation of the legal basis for the pre-emptive right may provide special grounds for a different solution. A majority of four justices found, after an individual assessment, that the agreed pre-emptive right in this case had to be considered so far-reaching that it was also triggered by merger and demerger. An alternative contention that the pre-emptive right had been waived did not succeed. Dissenting opinions 4-1.

Read the whole judgment (Norwegian only)

Area of law: Company law. Contract law. 

Key paragraphs: 59–60, 73–77

Justices: Webster, Normann, Bergsjø, Østensen Berglund og kst. dommer Remen