NETHERLANDS Law and Practice Contributed by: Maarten de Boorder, Samuel Garcia Nelen, Jelmer Kalisvaart and Bas Vletter, Greenberg Traurig, LLP
ings and corporate inquiry proceedings, which is expected to save both time and money. The Wagevoe provides the Enterprise Chamber with an instrument to force parties to diverge. Furthermore, the Wagevoe introduces the following changes: • Depositary receipt holders can request the Enter - prise Chamber to order a forced acquisition of their depositary receipts. • The Enterprise Chamber can assess the sharehold - er’s conduct in other capacities (eg, as a director or private individual) in squeeze-out proceedings. • The amended shareholder dispute resolution proceedings scope is expanded to all BVs (private limited companies) and NVs (public limited compa - nies). • Shareholders and depositary receipt holders in all listed companies who represent 1% or more of the issued capital or if they represent a capital value of EUR20 million or more have the right to request a corporate inquiry. One year after the entry into force of the Wagevoe, we conclude that this new act has been successful, given the dozens of cases that have been settled by the Enterprise Chamber under the new legislation. 3.2 Significant Changes to Takeover Law On 1 June 2023, the NDI Act entered into force. For more information, see 2.6 National Security Review . 4. Stakebuilding 4.1 Principal Stakebuilding Strategies It is not uncommon for a bidder to acquire shares in the target prior to launching a public offer or during the offer period. Stakebuilding strategies are tailored to specific circumstances and the phase of (prepara - tions for) an offer. Stakebuilding in on-market transactions is only allowed if a bidder does not possess inside information. Even if a bidder possesses inside information, they could still acquire a large stake from one or more target shareholders in a block trade (off-market), assuming
that the bidder and the selling shareholder(s) have the same inside information and therefore the bidder does not use the information for the block trade. In the phase prior to announcement, taking a stake above the disclosure threshold of 3% could trigger market rumours and therefore complicate a takeover process. Because of these complexities, on-market stakebuild - ing generally is only done after the announcement of an offer. Stakebuilding is subject to disclosure require - ments (see 4.2 Material Shareholding Disclosure Threshold ) and other rules and obligations (see 4.3 Hurdles to Stakebuilding ). 4.2 Material Shareholding Disclosure Threshold Anyone who acquires or disposes of shares or voting rights in a listed company as a result of which the per - centage of capital or votes held reaches, exceeds or falls below certain thresholds, must report this to the AFM without delay. The same applies to the acquisi - tion or disposal of financial instruments that represent a short position with respect to shares. The following thresholds trigger a notification obligation: 3%, 5%, 10%, 15%, 20%, 25%, 30%, 40%, 50%, 60%, 75% and 95%. The notifications are published in a public register on the AFM website. The notification should set out whether the interest held is a direct or an indirect holding of shares or vot - ing rights and whether it concerns an actual or poten - tial interest. If two or more shareholders enter into an agreement to pursue a sustained joint voting policy (ie, for more than one general meeting), they will be deemed to be “acting in concert”. In that event, they will each have to notify the AFM of their combined shareholding, except if that combined shareholding is below the 3% threshold. 4.3 Hurdles to Stakebuilding The main disclosure thresholds are explained in 4.2 Material Shareholding Disclosure Threshold . Com - pliance with these thresholds is based on mandatory law and a listed company cannot include higher or lower disclosure thresholds in its articles of associa - tion.
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