NETHERLANDS Law and Practice Contributed by: Maarten de Boorder, Samuel Garcia Nelen, Jelmer Kalisvaart and Bas Vletter, Greenberg Traurig, LLP
under the MAR if the following cumulative conditions are met: • there is a legitimate interest of the company; • the delay will not mislead the public; and • the confidentiality of the information can be guar - anteed. An example of a legitimate interest for a company is ongoing negotiations, when publication may affect the normal conduct of those negotiations. In order to guarantee confidentiality, all parties sign an NDA. Immediate disclosure is required at the earlier of:
• material agreements; • financing; • employment (and pensions); • intellectual property; • information technology; • data protection; • real estate; • environmental (and zoning); • insurance; and • litigation. 5.4 Standstills or Exclusivity
A standstill agreement is typically entered into between a bidder and a target company, preventing the bidder from increasing its stake in the target. Generally, the standstill provision terminates upon the signing of the merger protocol and announcement of the proposed offer. A bidder and a listed target company can agree on (temporary) exclusivity prior to concluding a merger protocol. In a private M&A context, exclusivity is often agreed upon in a letter of intent which governs the pre-contractual relationship between a purchaser and seller. 5.5 Definitive Agreements In general, the terms and conditions of the tender offer are laid down in a merger protocol, which inter alia, includes provisions relating to conditions for initiating and completing the offer, break fees and so-called “no-shop” provisions, and non-financial covenants. While the parties are not required to disclose the merger protocol, the main terms and conditions of the agreement are included in an offer memorandum as well as in the initial public announcement regarding the tender offer. 6. Structuring 6.1 Length of Process for Acquisition/Sale Private M&A Transactions For private M&A transactions, the length of the pro - cess will vary on a case-by-case basis depending on, inter alia, the structure of the transaction (bilateral negotiations or an auction process), the complexity of
• the signing of a merger protocol; or • the leakage of inside information.
The EU Listing Act entered into force on 4 December 2024, changing some of the rules on disclosure obli - gations and delay of publication under the MAR. One of the key changes to the MAR is that passive trading (ie, the transaction is solely dependent on external factors or the actions of third parties) will be permitted for insiders during a closed period if certain conditions are complied with. Additionally, from 5 June 2026, one of the cumula - tive conditions for delaying disclosure will be revised. Instead of it being required that “the delay will not mislead the public”, it will be required that “the inside information is not in contrast with the latest public announcement of the issuer”. 5.2 Market Practice on Timing In general, the market practice on the timing of dis - closure of public offers does not differ from the legal requirements. In a friendly transaction, the offer rules require that a public announcement of the intention to make an offer is ultimately made when the bidder and the target have reached (conditional) agreement on the public offer (ie, have entered into a merger pro - tocol). 5.3 Scope of Due Diligence The scope of the due diligence investigation usually covers the following matters: • corporate (target and subsidiaries, if applicable);
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