NETHERLANDS Law and Practice Contributed by: Jan-Willem van Rooij, Anne Brugmans and Jordy Kusters, Loyens & Loeff
ods for prospectuses under the Prospectus Regula- tion (EU) 2017/1129. The Decree on Public Takeover Bids ( Besluit open- bare biedingen Wft (Wet op het financieel toezicht – Dutch Financial Supervisory Act, mentioned in 4.1 Stakebuilding )) sets out the information that must be included in the offer memorandum, depending on the type of offer, and in the position statement of the tar- get company. For a full offer, the required information includes: • the statement that the public offer is addressed to all holders of outstanding securities in the catego- ries or classes to which the public offer pertains; • the tender period and the way holders may offer their securities, also specifying that the tender period may be extended in accordance with the relevant legal provision; • the proposal to acquire securities in accordance with a specified final price or exchange ratio, listing the securities or, if applicable, the category, cat- egories, class or classes of securities to which the full offer pertains; and • any additional conditions by the offeror (if applica- ble). The AFM shall approve the document if the offer doc- ument contains the required information and meets the general requirements, which are: • all information necessary for a reasonably informed and diligent person to form a responsible opinion on the offer (the “completeness requirement”); • the information in the offer documents is not inconsistent or contradictory with other information available to the AFM about the target company or the bidder (the “consistency requirement”); and • it is presented in a manner understandable to a reasonably informed and diligent person (the “com- prehensibility requirement”). The offeror must make the public offer within six busi- ness days of the approval of the offer memorandum. The offer period is decided by the offeror and must run for a minimum of eight and a maximum of ten weeks (including extensions). This period commences no earlier than one business day and no later than three
business days following the publication of the offer. If a competing offer is announced before expiry of the tender period, the initial offeror may align its timetable with that of the competing offer, regardless of whether
an extension has already been used. 4.14 Timing of the Takeover Offer
The tender period may be extended once at the end of the initial period, if not all conditions have been met or waived. This allows the offeror additional time to satisfy outstanding offer conditions, such as reach- ing a minimum acceptance level or obtaining merger control clearance. In practice, regulatory and antitrust approvals are often obtained after the announcement of the offer but before it is declared unconditional, and, therefore, such approvals are a common reason for extending the tender period. 4.15 Privately Held Companies In the Netherlands, privately held companies are com- monly acquired through a share purchase, where the buyer acquires all shares in the target company. An alternative is an asset deal, in which only specific assets and selected liabilities are transferred, which allows the buyer to “cherry pick” individual assets and liabilities of the target company. Due diligence is important, covering legal, tax, envi- ronmental (including permits and zoning) and com- mercial aspects. Key considerations include tax expo- sures, ongoing litigation, customer/supplier contracts, insurance and compliance. A widely used tool in Dutch M&A transactions is war- ranty and indemnity (W&I) insurance. This W&I insur- ance coverage provides protection from loss due to breaches of warranties and the tax indemnity as included in the acquisition agreement. Buyers have additional comfort, while sellers can limit their post- closing liability and release proceeds earlier.
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