NETHERLANDS Law and Practice Contributed by: Herald Jongen, Maarten de Boorder, Samuel Garcia Nelen and Jelmer Kalisvaart, Greenberg Traurig, LLP
11.4 Independent Outside Advice In a business combination, directors generally obtain outside advice from lawyers, financial advisers (eg, investment bankers) and/or other consultants and advisers. In addition, in case of a public offer, the boards of the target company may also obtain one or more fairness opinions regarding the financial rea- sonableness of the proposed transaction.
cial committee closely monitors the transaction pro- cess, provides the boards with solicited and unsolic- ited advice and prepares the decision-making. 11.3 Board’s Role The board is often actively involved in negotiations. In the Netherlands, it is generally permissible to use defensive measures (eg, a foundation that has a call option on preference shares) to block or impede an unsolicited takeover offer. Most of the time, however, such defensive measures are not exercised by the target company’s directors but by an independent foundation. It is not common practice to have share- holder litigation challenging the board’s decision to recommend an M&A transaction, although sharehold- er activism has occurred in the past.
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