NETHERLANDS Law and Practice Contributed by: Maarten de Boorder, Samuel Garcia Nelen, Jelmer Kalisvaart and Bas Vletter, Greenberg Traurig, LLP
does not apply to securities offered in connection with a takeover by means of an exchange offer or offered or allotted in connection with a merger nor for the admission to trading of such shares on a regulated market, provided that a document is made publicly available containing information describing the trans - action and its impact on the issuer. Any such docu - ment will include information which is similar to the information included in an approved prospectus, but it would not have to be approved by the AFM as a prospectus. 7.3 Producing Financial Statements In case of a public offer, the bidder will have to include in the offer memorandum a comparative overview of the target’s consolidated balance sheet, income statement and cash flow statement covering the last three financial years as well as the target’s latest published annual accounts, including the explanatory notes thereto. The auditor will need to issue a report on these comparative financials. If the target pub - lishes semi-annual accounts after the latest annual accounts, these will also have to be included in the offer memorandum, including a review statement. In case of an exchange offer, the offer memorandum will also have to contain information describing the transaction and its impact on the issuer (ie, the bid - der). Consequently, in line with the prospectus rules, pro forma financial information about the bidder and the target will generally have to be included. 7.4 Transaction Documents There is no statutory requirement to disclose full trans - action agreements and it is not market practice to do so. The offer memorandum will have to contain all rel - evant information for shareholders regarding the public offer, including a summary of the transaction agreements. The target company will also publish a position statement, which includes information about the views of the target company on the considera - tion offered by the bidder, considerations and projec - tions used to determine the offer price (or exchange ratio), including the quantitative basis of which the target has based its position vis-à-vis the considera - tion offered and the consequences of the public offer
on employees, employment conditions and the target company’s place(s) of business. It is common practice for the target company’s boards to obtain one or more fairness opinions and to disclose the full opinions as attachments to the position statement.
8. Duties of Directors 8.1 Principal Directors’ Duties
The management board is responsible for the man - agement of the company and its business, under the supervision of the supervisory board. The manage - ment board’s responsibilities include, inter alia, the day-to-day management of the company’s opera - tions. The management board may perform all acts necessary or useful for achieving the company’s objectives, with the exception of those acts that are prohibited or expressly attributed to the general meet - ing or supervisory board by law or by the company’s articles of association. In performing their duties, the management board and supervisory board are required to be guided by the interests of the company and its business. Based on case law, this is understood to mean that the boards must promote the sustainable success of the business of the company. While doing so, they should take into account the interests of the company’s stakeholders (which generally includes various parties, such as shareholders, creditors, employees and customers). In addition to requiring the prior approval from the general meeting and/or supervisory board for certain matters, the management board should also keep in mind to, where applicable, seek advice from other corporate bodies of the company, such as the works council. The fiduciary duties of the management board and supervisory board do not change if the company is involved in a contemplated business combination. 8.2 Special or Ad Hoc Committees In Dutch takeover situations, it is common for the management board to work closely with the super - visory board. To this end, it is not uncommon for the target company to establish a special committee to intensively supervise the transaction process and the
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