NETHERLANDS Law and Practice Contributed by: Jan-Willem van Rooij, Anne Brugmans and Jordy Kusters, Loyens & Loeff
4. Acquisitions of Public (Exchange- Listed) Energy and Infrastructure Companies 4.1 Stakebuilding Stakebuilding vs Prohibition of Insider Dealing The practice of acquiring and/or (rapidly) increasing ones stake in a publicly listed company (“stakebuild- ing”), prior to making a public offer, is not uncommon in the Netherlands. However, depending on the cir- cumstances of the case, stake-building in connection with an intended public offer may fall under the pro- hibition of insider dealing based on the Market Abuse Regulation (EU) No 596/2014 (as amended, the MAR) if the potential offeror is in the possession of inside information. Major Holding Notifications Pursuant to the Dutch Financial Supervision Act (DFSA) the direct or indirect capital interest and/or voting rights in: • a Dutch public limited liability company (Dutch N.V.) listed on an EEA regulated market; • a company from another EU member state solely listed on a Dutch regulated market; or • a third country company listed on a Dutch regu- lated market, must be notified to the Dutch Authority for the Finan- cial Markets ( Stichting Autoriteit voor de Financiele Markten , AFM) without delay of such capital inter- est and/or voting rights reaching, exceeding or fall- ing below one of the following thresholds: 3%, 5%, 10%, 15%, 20%, 25%, 30%, 40%, 50%, 60%, 75% or 95%. “Put Up or Shut Up” Requirement A shareholder is not required to state the purpose of crossing the thresholds or its plans or intentions with respect to the company. However, if information that is made publicly available by a person creates the impression that this person is preparing a public offer, the potential target company may request that the AFM impose an obligation on a potential offeror to:
• announce a public offer (which is not a mandatory offer) for the shares in the target company (put up); or • make a public announcement that it does not have an intention to announce or make a public offer (shut up), within six weeks; and • publicly announce the imposed “put up or shut up” requirement without delay. If the potential offeror chooses to “shut up”, he/she may not announce or make a public offer on the shares in that target for a period of six months. 4.2 Mandatory Offer The DFSA contains a mandatory takeover regime, according to which, any person, acting alone or in concert with others, acquiring, directly or indirectly, predominant control ( overwegende zeggenschap ) (ie, the ability to exercise at least 30% of the voting rights at the general meeting) in a Dutch N.V. listed on an EEA regulated market, is obligated to make a manda- tory public takeover offer for all issued shares in the capital of that company and all depositary receipts for shares issued with the co-operation of that company. However, certain exemptions apply, the most notable being: • a person who already had predominant control when the shares in the company were first listed on the regulated market (ie, the grandfathering exemption); and • persons who lose predominant control within 30 calendar days of acquiring such predominant con- trol, provided that: (a) the loss of predominant control is not the result of a transfer of capital interest of voting rights to a person who is exempted from the manda- tory takeover regime; and (b) the person who acquired predominant control did not exercise its voting rights prior to losing predominant control (ie, the “grace period”). 4.3 Transaction Structures The typical and most common transaction structure for the acquisition of a publicly listed company is a full public tender offer, aimed at obtaining 100% of the shares in the target company, followed by a compul-
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