NETHERLANDS Law and Practice Contributed by: Herald Jongen, Maarten de Boorder, Samuel Garcia Nelen and Jelmer Kalisvaart, Greenberg Traurig, LLP
standard contractual clauses (SCCs) must be in place to legally transfer data during the due diligence process.
made publicly available containing information describing the transaction and its impact on the issuer. Any such document will include informa- tion 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 compara- tive overview of the target’s consolidated bal- ance 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 publishes semi-annual accounts after the lat- est 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 memo- randum will also have to contain information describing the transaction and its impact on the issuer (ie, the bidder). Consequently, in line with the prospectus rules, proforma financial infor- mation 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 transaction agreements, and it is not market practice to do so. The offer memorandum will contain relevant information for shareholders regarding the pub- lic offer, including a summary of the transaction
10. Disclosure 10.1 Making a Bid Public
In case of a public offer, the offer memorandum must be filed for approval with the AFM within 12 weeks following the initial announcement. The review and approval process generally takes three to four weeks. Within six business days after obtaining the AFM’s approval for the offer memorandum, the bidder must either launch the offer or publicly renounce its decision to do so. The offer is launched by making the offer memo- randum publicly available, typically by publish- ing the offer memorandum on the website of the offeror and/or the target. The tender period may not commence earlier than the first business day following the day that the offer is launched and no later than the ninth business day after the date on which the AFM has given its approval for the offer memorandum. 10.2 Prospectus Requirements If a bidder offers securities as consideration, they will generally be required to make an approved prospectus available. This obligation also applies to the admission of such securities to trading on a regulated market, such as Euronext Amsterdam. The Prospectus Regulation pro- vides for certain exemptions with respect to the prospectus obligation. For example, the obliga- tion to publish a prospectus does not apply to securities offered in connection with a takeover by means of an exchange offer, nor to securities offered or allotted in connection with a merger or for the admission to trading of such shares on a regulated market, provided that a document is
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