Corporate, Mergers and Acquisitions

What is corporate mergers and acquisitions (M&A)?

Corporate mergers and acquisitions — internationally known as M&A — concerns the buying, selling, combining, or restructuring of companies. It revolves around the transaction itself: exploring, investigating, negotiating, and legally finalizing a deal. Our lawyers and in-house counsel guide the entire process, from initial exploratory talks to the transfer of ownership. We do this for companies of all sizes — from international corporations to the baker on the corner selling their business.

For most entrepreneurs, an acquisition is a one-off event with major consequences. It is precisely then that it matters that the party on your side knows the pitfalls. While the top of the market focuses primarily on large corporations, we make specialist M&A knowledge accessible and practical for SMEs — legally sharp, without unnecessary jargon.

Share transaction or asset and liability transaction?

The first question in any acquisition is the structure. In a share transaction, you purchase the shares and thereby the entire company, including all known and unknown liabilities. In an asset-liability transaction, you purchase only the components specified in the agreement; in principle, anything not described is not transferred. The choice has significant consequences for risk, taxation, and the transfer of contracts and personnel. We weigh these against your situation and select the structure that best serves your interests.

Please note: in an asset and liability transaction involving the transfer of an undertaking, the personnel and terms of employment transfer by operation of law pursuant to the regulations governing the transfer of undertakings (Articles 7:662 to 7:666 of the Dutch Civil Code). In a share transaction, legally only the shareholder changes, and the personnel remain in their positions.

Due diligence: knowing what you are buying

Before you sign, we map out the company through a due diligence investigation: its legal, financial, tax, commercial, and employment position. We examine contracts, permits, title and security rights, ongoing disputes, employment agreements, and tax returns. This investigation is particularly important in the case of a share transaction: after all, you are also acquiring claims that do not appear on the balance sheet. We translate the findings directly into the price and into the guarantees and indemnities in the purchase agreement.

From confidentiality to letter of intent

An acquisition begins with confidentiality. With a non-disclosure agreement (NDA), you protect your figures, customers, and personnel data if the deal falls through. Next, you set out the main outlines in a Letter of Intent: the indicative price, exclusivity, and the subsequent steps. Note that an LOI can be partially binding—an exclusivity clause is generally enforceable, even if other parts are still subject to reservation. Breaking off negotiations can, under certain circumstances, be unlawful and lead to liability for damages (Article 6:162 of the Dutch Civil Code).

The purchase agreement: guarantees and indemnities

The heart of every transaction is the purchase agreement. In the case of a share deal, this is the share purchase agreement (also known as a Share Purchase Agreement or SPA). In it, you regulate the purchase price and payment structure (lump sum, in installments, a subordinated loan, or an earn-out), the suspensive conditions, a non-compete clause, and—crucially—the warranties and indemnities. Warranties are promises made by the seller regarding the state of the company; indemnities cover specific, known risks for which the seller assumes liability for damages. What comes to light during the due diligence investigation is recorded in a disclosure letter. If a warranty fails to materialize, this constitutes a breach of contract with a right to damages (Article 6:74 of the Dutch Civil Code).

Delivery of shares and board resolutions

The transfer of shares in a BV or NV must be done by notarial deed (Article 2:196 of the Dutch Civil Code for the BV and Article 2:86 of the Dutch Civil Code for the NV). In addition, an acquisition often requires approval from the general meeting or the supervisory board, and statutory blocking provisions and any rights of co-shareholders must be taken into account. We ensure that the decision-making process is legally valid, so that the transaction does not fail due to a formal error afterwards.

Competition: notification to the ACM or the European Commission

Larger mergers and acquisitions may be subject to notification to the Authority for Consumers & Markets (ACM) or, above the European thresholds, to the European Commission. A concentration subject to notification may only be executed after approval (Article 34 of the Competition Act). These thresholds do not apply to most SME transactions, but we assess this in advance so that you are not faced with any surprises.

The ongoing business: see corporate law

This page focuses on transactions: buying, selling, and merging. If you are concerned with the legal internal aspects of your ongoing business — shareholder relations, management, governance, and shareholder disputes — please visit our corporate law. There you can read about, among other things, the shareholders' agreement and the statutory dispute resolution mechanism.