NETHERLANDS Law and Practice Contributed by: Herald Jongen, Maarten de Boorder, Samuel Garcia Nelen and Jelmer Kalisvaart, Greenberg Traurig, LLP
nology companies where equity-based incentives are a key element of remuneration. 7.7 Currency Control/Central Bank Approval The Netherlands does not have foreign exchange controls. M&A transactions involving financial institu- tions are subject to the supervision of sector-specific regulators, such as the European Central Bank (for banks) or the Dutch Central Bank (for other financial institutions such as insurance companies). 8. Recent Legal Developments 8.1 Significant Court Decisions or Legal Developments The first court decision involving the Vifo Act (described in 7.1 Regulations Applicable to a Technology Com- pany ) has been issued by the district court of Rot- terdam on 25 April 2024 (ECLI:NL:RBROT:2024:3747) regarding the acquisition of a former Philips subsidiary. According to the court, there was no notification obli- gation, since there was no acquisition activity within the meaning of the Vifo Act (the “acquirer” already had control over the company prior to the transaction). Another significant legal development in the Nether- lands related to technology M&A in recent years is the 2023 ruling by the ACM regarding the acquisition of Talpa Network by RTL Group. The ACM blocked the acquisition on antitrust grounds, citing concerns about potential harm to competition for television advertise- ments and for the transmission of the channels via telecommunications companies. Telecom providers such as KPN and Vodafone-Ziggo are including com- mercial TV channels in their channel offering. After the acquisition, they would not be able to ignore RTL/ Talpa, whose combination would then also be able to charge higher prices to consumers for a television subscription. This decision was significant as it reflected an increas- ingly stringent approach by Dutch regulators towards (tech) mergers, particularly in markets where consum- er choice and innovation could be adversely affected. The ruling not only set a precedent for future mergers in the technology and telecommunications sectors
but also highlights the growing importance of antitrust considerations in M&A transactions.
9. Due Diligence/Data Privacy 9.1 Due Diligence Process No response has been provided in this jurisdiction. 9.2 Technology Company Due Diligence There are no hard-and-fast rules on what information a public company is allowed to provide to bidders in the Netherlands. Generally, any information that is relevant for investors is already disclosed. The due diligence typically focuses on verification of public information and testing strategic plans (including potential syner- gies) of the bidder based on a detailed assessment of available information. Generally, bidders try to avoid obtaining inside information (ie, non-public informa- tion that is share price-sensitive) from the public com- pany. A sales process of a public company with mul- tiple bidders is generally set up informally, based on public information, after which one bidder is granted exclusivity and allowed to perform due diligence. The level of technology due diligence that a board of directors may allow depends on the strategic impor- tance of the technology assets and the intellectual property involved. The board has a duty to safeguard the company’s critical assets while balancing the bidders’ need to conduct thorough due diligence. For companies in sectors like software, AI or cyber- security, the board may restrict access to sensitive intellectual property until later stages of the process – potentially after signing non-disclosure agreements or letters of intent. This ensures that proprietary tech- nology is not prematurely exposed. The management board has a fiduciary duty to act in the best interests of the company, its business and stakeholders (including its shareholders). This includes determining what level of due diligence is reasonable and appropriate while ensuring that the process does not compromise the company’s competitive position should the M&A process be aborted. In some cases, the board may limit or structure the due diligence process to protect sensitive data (eg, source code or
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