NETHERLANDS Law and Practice Contributed by: Maarten de Boorder, Samuel Garcia Nelen, Jelmer Kalisvaart and Bas Vletter, Greenberg Traurig, LLP
(subject to shareholder approval). These alterna - tive possibilities allow for a squeeze-out of minority shareholders if a bidder, following a successful tender offer, holds less than 95% of the target’s issued share capital. Transaction structures that are regularly seen include: • the triangular merger of the target into a subsidi - ary of the bidder with the subsequent liquidation of the entity in which the non-tendering shareholders have received securities; • a sale and transfer of all assets and liabilities of the target to a subsidiary of the bidder with the subse - quent liquidation of the target; and • a combination of an asset sale and a (triangular) merger. In order to mitigate any concerns over the efficacy of alternative squeeze-out measures and to enhance deal certainty, there is a consistent trend in public takeovers in the Netherlands to “prewire” any alter - native squeeze-out measures. Pre-wired means that the decision to implement an alternative squeeze-out measure is put to a vote at the general meeting of the target prior to closing of the offer (subject to the bid - der having acquired less than 95%, but at least the alternative percentage, of the target company’s issued share capital, following completion of the public offer). 6.11 Irrevocable Commitments It is common for a bidder to approach, and subse - quently enter into irrevocable commitments with, one or more principal shareholders that hold a substantial interest in the target. Irrevocable undertakings gener - ally require the shareholder to offer its shares in the offer and to vote in favour of certain resolutions that will be put on the agenda during the general meeting of the target company prior to the end of the tender period. Irrevocable undertakings provide deal certain - ty. However, a shareholder will typically only agree to commit to an irrevocable undertaking if it may ter - minate the irrevocable commitment in the event of a superior competing offer. There are no statutory rules on the timing of the sign - ing of irrevocable commitments. However, such com - mitments are generally negotiated concurrently with
the (final) negotiations on the merger protocol and signed (just) prior to the initial public announcement. To prevent the qualification of entering an irrevocable commitment as acting in concert, which would trigger the obligation to launch a mandatory offer, the Dutch offer rules provide for a safe harbour provision (subject to certain conditions). Finally, the MAR provides for rules on market sound - ing, which includes approaching shareholders in the context of a public offer. In case of a public offer, the offer memorandum must be filed for approval with the AFM ultimately within 12 weeks following the initial announcement of the offer. The review and approval process generally takes three to five weeks. Within six business days after obtaining the AFM’s approval of the offer memorandum, the bid - der must either launch the offer or publicly renounce its decision to launch an offer. The offer is launched by making the offer memoran - dum publicly available, typically by publishing the offer memorandum on the website of the offeror and/or the target. The tender period may not commence earlier than on the first business day following the day that the offer is launched and no later than the ninth busi - ness day after the date on which the AFM has given its approval of the offer memorandum (ie, within three business days after the six business day deadline for 7. Disclosure 7.1 Making a Bid Public If a bidder offers securities as consideration, they will generally be required to make an approved prospec - tus available, except to the extent exemptions apply. This obligation also applies to the admission of such securities to trading on a regulated market, such as Euronext Amsterdam. The Prospectus Regulation provides for certain exemptions with respect to the prospectus obligation. For example, the obligation to publish a prospectus launch of the offer, as noted above). 7.2 Type of Disclosure Required
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