[Last updated: 1 January 2025, unless otherwise noted]

4.1 Types of offers

• Full offer – an offer for the entire issued share capital of a listed company. This is the most commonly used form of public offer;
• Partial offer – an offer to acquire less than 30% of the voting rights of a target company;
• Tender offer – an offer whereby the shareholders are invited by the offeror to state, on an individual basis, the consideration which they wish to receive in exchange for their shares. The offeror may only acquire less than 30% of the voting rights of a target company; and
• Mandatory offer – an offer whereby the offeror is required to make an offer for all remaining shares of the target company if the offeror has acquired 30% or more of the voting rights in the target company.

Certain situations are exempted from the requirement to make a mandatory offer. These include, among others, a shareholder having a 30% interest in the company prior to an IPO. If a shareholder that has a 30% interest in the company is able to reduce its shareholding within the so-called "30-day grace period", it will not be required to make a mandatory offer.

4.2 Launching the offer

In a friendly offer situation, the offer process usually starts with a joint public announcement by the offeror and the target company. The announcement will contain the intention to make an offer. Such announcement usually follows once the offeror and the target company have executed the merger protocol.

The first public announcement in a friendly or hostile offer marks the formal announcement of the offer and, from the moment the announcement is made, strict rules on the disclosure of information about the offer apply. In addition, a timetable within which the offer must be made and completed will commence. This first public announcement is also referred to as the "initial announcement".

Under the Public Offer Rules, the offeror is not allowed to make an offer for securities listed on a regulated market in the Netherlands before having an offer document approved by the AFM or a similar supervisory market authority in another EU/EEA Member State. The definition of securities as defined under the FSA includes shares, DRs, rights equivalent to transferable shares, bonds and other transferable debt instruments.

The offer document must at least touch upon the following information, as worked out in the Decree:

• The offer price, including a substantiation thereof.
• The conditions to completion of the offer, such as:
  • the offer acceptance threshold, usually somewhere between 80% and 95%;
  • regulatory approvals (anti-trust);
  • no competing offer;
  • no withdrawal of the target company board's support;
  • no material adverse change; and
  • no court orders or investigations having been started that hinder the offer or make it impossible to complete.
• The tender acceptance period (aanmeldingstermijn), during which shareholders can tender their securities. For a full offer, the tender acceptance period has to be between eight and 10 weeks. For a partial or tender offer, this period can be between two and 10 weeks. The tender acceptance period for a full, partial or tender offer can be extended only once, for a period between two and 10 weeks.
• Rationale behind the offer and the strategic plans for the target company post-acquisition.
• Financial information about the offeror and the target company.
• If a fairness opinion has been obtained, this must be included in the offer document.
• In the case of a friendly offer, the main terms of the merger protocol must be described in the offer document.

4.3 Conditional and unconditional offers

The conditions to the completion of an offer must be announced no later than at the launch of the offer, i.e., when the approved offer document has been made publicly available. As previously mentioned, these conditions must be included in the offer document. If it becomes clear that one or more of the conditions will not be met, e.g., the acceptance threshold has not been met, the offeror must make a public announcement describing the possible consequences for the offer. In such case, the offeror can decide to not declare the offer unconditional or waive those conditions and declare the offer unconditional. A mandatory offer should be unconditional and can therefore not be made dependent on the fulfilment of such conditions.

The offer cannot be withdrawn once the offer document is made publicly available. Amendments to or revisions of the offer are not possible, unless the AFM has given its approval, e.g., in case of errors, if it concerns an extension of the offer acceptance period or a change in the offer price. The offeror must complete the offer unless one of the offer conditions has not been met.

4.4 Offer price

The offer price can be in cash or securities, or a combination thereof. If it concerns a mandatory offer, the consideration can be cash and securities, albeit that if it includes securities, these must be liquid and traded on a regulated market. Furthermore, the offer price in a mandatory offer must be "fair" (billijk). A fair price is defined as the highest price that the offeror, or persons acting in concert with the offeror, has paid for the same kind of securities in the year prior to the announcement of the mandatory offer. If the offeror did not acquire any securities in the year prior to the announcement of the mandatory offer, the average share price as quoted on the stock exchange during that preceding year will be deemed "fair".

4.5 The certain funds announcement

The offeror has to publish a "certain funds" announcement when the offer document is submitted to the AFM for approval (at the latest). The certain funds announcement must include a detailed description setting out the manner in which the offeror has secured the payment of the offer price. The AFM assesses whether the public announcement regarding the certain funds rule contains the required accurate description and necessary transparency, and there is no requirement to demonstrate that the offeror has the necessary funds in place, for example, by submitting a commitment letter to the AFM.

4.6 Informative EGM

No later than on the sixth business day before the expiry of the tender acceptance period, the target company must hold an extraordinary general meeting of shareholders, during which the offer will be discussed with the target company's shareholders. There will not be a vote on the offer, as such. However, the shareholders' meeting is requested to vote on certain matters relating to the post-offer period  and integration (e.g. the amendment of the articles of association, the change of the management board's composition, the pre-wired asset sale and liquidation).

4.7 Friendly versus hostile takeovers

Most public offers in the Netherlands are friendly and have the consent of or are recommended and supported by, the management board of a target company. A friendly public offer is generally more successful than a hostile or unsolicited public offer. At the beginning of a friendly offer, the offeror and target company will usually enter into a non-disclosure agreement ("NDA") and a standstill agreement, upon which the terms of the merger protocol will be negotiated and due diligence will be conducted. Furthermore, the boards of the target company recommend the public offer to the shareholders for acceptance. However, during a hostile offer, the offeror will not be given the opportunity to perform due diligence and its offer will not be recommended. In a hostile situation, the boards of the target company may seek to eliminate the hostile offer by invoking a defense measure or seeking an alternative offeror.

In its judgment of 29 May 2017 (AkzoNobel v. Elliot), the Enterprise Chamber ruled - in line with case law - that the determination of the strategy of a company and its enterprise is an affair of the management board under supervision of the supervisory board. This also applies to the company's response to a (hostile) takeover proposal. The management board does not have an obligation to consult with its shareholders prior to its response to the bidder. However, the board of management remains accountable to shareholders for its decision-making conduct.

4.8 Competing offers

In the event of a serious competing offer, the management board of the target company is obligated to at least consider such offer and, under certain circumstances, provide the competing offeror with similar information as provided to the friendly offeror. In practice, the merger protocol will usually define under what circumstances a competing offer is considered a superior offer. If a competing offer is superior, the boards of the target company may revoke their support for the friendly offer and choose to support and recommend the superior offer. If the target company chooses a superior offer, this may trigger the payment of a break fee, see 6.5.