NETHERLANDS Law and Practice Contributed by: Herald Jongen, Maarten de Boorder, Samuel Garcia Nelen and Jelmer Kalisvaart, Greenberg Traurig, LLP
with a merger, nor for the admission to trading of such shares on a regulated market – provided that a docu- ment is made publicly available containing information describing the transaction and its impact on the issu- er. Any such document will include information that is similar to the information included in an approved prospectus, but it would not have to be approved by the AFM as a prospectus. It is not necessary for the buyer’s shares to be listed on a specified exchange in the home market or other identified markets. 10.3 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, proforma financial information about the bidder and the target will in principle have to be included. 10.4 Disclosure of 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 contain relevant infor- mation for shareholders regarding the public offer, including a summary of the transaction agreements. The target company will also publish a position state- ment, which includes information about the views of the target company on the consideration offered by the bidder, considerations and projections 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 consideration 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 tar- get company’s boards to obtain one or more fairness opinions. If these are obtained, they are required to be disclosed as an attachment to the position statement.
11. Duties of Directors 11.1 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). The fiduciary duties of the management board and supervisory board do not change if the company is involved in a contemplated business combination. 11.2 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 related decision-making. Such a committee can be composed of supervisory directors only, or a mix of supervisory and management directors. Establishing a special committee can ensure a proper balancing of interests and a proper decision-making process and, furthermore, prevent (the appearance of) conflicts of interest within the boards as much as possible. A spe-
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