NETHERLANDS Law and Practice Contributed by: Jan-Willem van Rooij, Anne Brugmans and Jordy Kusters, Loyens & Loeff
mation may only be shared if strictly necessary in the ordinary course of business and subject to confiden- tiality undertakings, with particular caution required for non-public financial data that materially deviates from market expectations. In transactions between strategic parties, competition law concerns may fur- ther require the use of clean terms. While questions may arise as to whether all offerors should receive the same information, unequal treatment is permissible where objectively justified. 7.2 Restrictions Companies must be careful not to violate antitrust laws (specifically the prohibition of cartels) until a transac- tion has been closed. This is particularly important when exchanging information between competing companies, for example, in the context of a due dili- gence investigation. It is therefore advisable to only share sensitive information via a clean team, to limit the risk of collusion. In a friendly takeover, the bid must be announced by way of a public press release, simultaneously provided to the AFM, once the bidder and target have reached agreement, whether conditional or not, and such announcement may not be delayed. The announce- ment contains the names of the bidder and the target, and (if applicable) the intended purchase price, the exchange ratio (of shares) and the offer conditions. In case no agreement has been reached or in a hostile process, the offer is supposed to be announced if specific information (ie, the intended purchase price and timeline of the course of the intended public offer) with respect to the bid has been made public. 8. Disclosure 8.1 Making a Bid Public A mandatory offer must be announced if the 30% vot- ing rights threshold has been reached or crossed and the position is not reduced within one month, unless an exception applies. If the bidder fails to comply, the Enterprise Chamber may order the launch of a pub- lic offer at the request of the target company or its shareholders. In case an offer must be made public based on the rules of another EU member state and
an announcement in line with Article 17 of the MAR has been made, the offer is made public according to the Dutch rules. Within 12 weeks of the announcement of the public offer, the offeror must submit a request for approval of the offer memorandum to the AFM. It is not required that this request already contains all the prescribed information for approval of the offer memorandum. In practice, a draft of the offer memorandum is first submitted. The AFM has a statutory review period of ten business days. Once the AFM has provided its comments, the draft is revised and submitted again for review. Once the AFM has no further comments, usually after several review rounds, the final offer memorandum is approved. Once the offer memorandum is approved, the offeror must make the public offer by making the approved offer memorandum publicly available by means of: • an announcement in a nationally distributed news- paper; • a printed document that is available free of charge at the offices of the holder of each regulated market where the securities have been admitted to trading; • publication on the website of the offeror or the website of the target company; • publication on the website of the holder of each regulated market where the securities have been admitted to trading; or • publication on the website of the AFM (if available). 8.2 Prospectus Requirements In the case of a stock-for-stock takeover offer, there is no requirement that the offeror’s shares be listed on a particular exchange. However, the offeror is in principle required to publish a prospectus, as securi- ties are offered to the public within the meaning of the Prospectus Regulation. An exemption may apply under Article 1 (4)(f) of the Prospectus Regulation, provided that a document is made available which contains information considered equivalent to a pro- spectus, and that the shares that are used as con- sideration are fungible with shares that are already listed on an EEA regulated market and the takeover is not a reverse acquisition. As a result, in practice
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