NETHERLANDS Law and Practice Contributed by: Herald Jongen, Maarten de Boorder, Samuel Garcia Nelen and Jelmer Kalisvaart, Greenberg Traurig, LLP
issue a decision regarding such request within two months. Furthermore, at the corporate and/ or shareholder level, a request for certainty on whether the spin-off is not predominantly aimed at avoiding or deferring taxation may be sub- mitted to the Dutch tax authorities prior to the spin-off. Typically, the Dutch tax authorities issue a decision in response to such request within two months. 6. Acquisitions of Public (Exchange-Listed) Technology Companies 6.1 Stakebuilding It is not uncommon for a bidder to acquire shares in the target prior to launching a public offer or during the offer period. This so-called stakebuilding is subject to disclosure require- ments. Anyone who acquires or disposes of shares or voting rights in a listed company, as a result of which the percentage of capital or votes held reaches, exceeds or falls below cer- tain thresholds, must report this to the Dutch Authority for the Financial Markets ( Autoriteit Financiële Markten or AFM) without delay. The same applies to the acquisition or disposal of financial instruments that represent a short posi- tion with respect to shares. The following thresh- olds trigger a notification obligation: 3%, 5%, 10%, 15%, 20%, 25%, 30%, 40%, 50%, 60%, 75% and 95%. The notifications are published in a public register on the AFM website. There is no general obligation for shareholders to disclose the purpose of their acquisition or their intention regarding control of the company. The Dutch Corporate Governance Code includes rules that require institutional investors to dis- close their engagement policy and the imple- mentation thereof on their website. If someone
creates the impression that it is preparing a pub- lic offer, the target can request the AFM to force the alleged bidder to publicly state its intentions. This is the so-called put up or shut up rule. In that case, the alleged bidder must issue a press release in which it announces a public offer or that it has no intention of making a public offer. If the press release states that the party in ques- tion has no intention of making an offer, they (and the persons with whom they are acting in con- cert) are prohibited from announcing or making a public offer for a period of six months after that press release. If a bidder launches a public offer, the offer memorandum should include informa- tion on the intentions of the bidder regarding the activities, locations, employees, management and governance of the target after declaring the offer unconditional. 6.2 Mandatory Offer There is a mandatory offer threshold in the Neth- erlands for bidders exercising, directly or indi- rectly, at least 30% of the voting rights in the general meeting of a Dutch company listed on a regulated market (alone or together with others with whom the bidder is acting in concert). A bid- der meeting these requirements will be obliged to make a mandatory offer. “Acting in concert” is defined as persons co-operating under an (oral or written) agreement with the aim of acquiring control in the target company. Unfortunately, guidance on when persons are acting in concert is limited. Contrary to other EU jurisdictions where similar mandatory offer rules apply, there is no possibility to obtain guidance from any regulatory authority, since in the Neth- erlands a Dutch court will ensure compliance with the mandatory offer rules and not the AFM. A mandatory offer should be made at a fair price that will, in principle, be equal to the highest
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