NETHERLANDS Law and Practice Contributed by: Herald Jongen, Maarten de Boorder, Samuel Garcia Nelen and Jelmer Kalisvaart, Greenberg Traurig, LLP
hold a substantial interest in the target. Irrevo- cable undertakings generally require the share- holder to offer its shares in the offer, and to vote in favour of certain resolutions that will be put on the agenda during the general meeting of the target company prior to the end of the tender period. Irrevocable undertakings usually provide deal certainty. However, a shareholder will typically only agree to commit to an irrevocable undertaking if it may terminate the irrevocable commitment in the event of a superior competing offer. There are no statutory rules on the timing of the signing of irrevocable commitments. However, such commitments are generally negotiated concurrently with the (final) negotiations on the merger protocol and signed (just) prior to the ini- tial public announcement. To prevent the qualification of entering an irrevo- cable commitment as acting in concert, which would trigger the obligation to launch a manda- tory offer, the Dutch offer rules provide for a safe harbour provision (subject to certain conditions). Finally, the Market Abuse Regulation (MAR) provides for rules on market sounding, which include approaching shareholders in the context of a public offer. 6.13 Securities Regulator’s or Stock Exchange Process In a public M&A transaction, the offer rules man- date a public announcement once the bidder and the target company have reached (condi- tional) agreement on the offer. After this initial announcement, it generally takes two to three months to obtain approval from the AFM for the offer memorandum and to formally launch the offer. The offer period must be eight to ten
weeks, with an optional extension of two to ten weeks. Any further extensions require AFM approval. After the offer period closes, a post- offer tender period of up to two weeks is typical- ly announced by the bidder. The timeline for the announcement of a public offer does not change if there is a competing bid, except that the initial bidder can extend the acceptance period for its offer until the end of the acceptance period for the competing offer. 6.14 Timing of the Takeover Offer Regulatory/antitrust approval(s) may be required, depending on the sector the target company is operating in. An example of a regulated sector in which many tech companies operate is finance. If the mandatory regulatory/antitrust approval(s) are not obtained prior to the expiry of the offer period, the bidder can extend the offer period once by two to ten weeks. If the necessary regu- latory/antitrust approval(s) are not secured within the extended timeframe, the bidder can request an exemption from the AFM until the approvals are received.
7. Overview of Regulatory Requirements 7.1 Regulations Applicable to a Technology Company
Starting a new company in certain sectors of the technology industry in the Netherlands is subject to specific regulations. The level of regulatory scrutiny and the time to obtain necessary per- mits depend on the sector and business activi- ties. Key sectors and regulatory bodies include the following.
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