Management Boards of listed companies get a new tool to protect the company against unwanted shareholder activism or an impending (hostile) takeover. The possibility of invoking a 250-day cooling-off period is introduced. What does this entail exactly?
On 23 March 2021, the Dutch Senate approved the legislative proposal that provides the Management Boards of listed companies with the opportunity to invoke a cooling-off period. On the basis of this, it will be possible for listed companies to invoke a cooling-off period of a maximum of 250 days from 1 May 2021 onwards. The Management Board can invoke this period in two situations:
If one of these situations arises and the Management Board is of the opinion that the request or bid is substantially in violation of the interest of the company and its affiliated enterprise, the Board can invoke the cooling-off period.
The Management Board must take a motivated decision for this. If the listed company has a Supervisory Board (SB), this management decision must be approved by the SB.
In an unwanted takeover bid the careful balancing of interests of the company may come under pressure. The same applies if activist, short-term oriented shareholders interfere with the company policy. These shareholders can use the authority for dismissal, suspension or appointment of directors or supervisory directors and an amendment of the articles of association to this end as leverage to get the Board change course.
The statutory cooling-off period is meant to counter the risk that short-term interests may prevail or that not all consequences have thoroughly been thought through. This period provides the Management Board of listed companies with more scope to map out interests of the company and its stakeholders (such as employees and shareholders).
The maximum period is 250 days, from (1) the latest day by which the request by shareholders for the next General Meeting of Shareholders (GMS) must be received or (2) the day on which the public bid was made. The maximum duration of 250 days applies regardless of when the cooling-off period is invoked by the Board.
The Management Board may at all times terminate the cooling-off period early. This termination decision also requires approval of the SB. The period ends in any case on the day after the public bid has been honoured.
Shareholders with an interest of at least 3% can request the Enterprise Chamber of the Amsterdam Court of Appeal to terminate the cooling-off period.
The cooling-off period means that the authority of the GMS to appoint, suspend or dismiss a director or supervisory director and to amend the articles of association in this context is suspended.
During this period, the Management Board must gather all information that is necessary for a careful policy determination. In doing so, the Management Board must in any case consult the shareholders with an interest of 3% or more and the works council. If they agree to it, the position of the consulted shareholders and the SB will be put on the website of the company.
No later than one week after the end of the cooling-off period, the Management Board has to publish a report about the policy pursued and the course of events since the invocation of the cooling-off period. This report has to be published on the website of the company as well. The report also has to be discussed during the next GMS.
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