Advisory Board

  • Cai Hongbin
  • Peking University Guanghua School of Management
  • Peter Clarke
  • Barry Diller
  • IAC/InterActiveCorp
  • Fu Chengyu
  • China National Petrochemical Corporation (Sinopec Group)
  • Richard J. Gnodde
  • Goldman Sachs International
  • Lodewijk Hijmans van den Bergh
  • De Brauw Blackstone Westbroek N.V.
  • Jiang Jianqing
  • Industrial and Commercial Bank of China, Ltd. (ICBC)
  • Handel Lee
  • King & Wood Mallesons
  • Richard Li
  • PCCW Limited
  • Pacific Century Group
  • Liew Mun Leong
  • Changi Airport Group
  • Martin Lipton
  • New York University
  • Wachtell, Lipton, Rosen & Katz
  • Liu Mingkang
  • China Banking Regulatory Commission (CBRC)
  • Dinesh C. Paliwal
  • Harman International Industries
  • Leon Pasternak
  • BCC Partners
  • Tim Payne
  • Brunswick Group
  • Joseph R. Perella
  • Perella Weinberg Partners
  • Baron David de Rothschild
  • N M Rothschild & Sons Limited
  • Dilhan Pillay Sandrasegara
  • Temasek International Pte. Ltd.
  • Shao Ning
  • State-owned Assets Supervision and Administration Commission of the State Council of China (SASAC)
  • John W. Snow
  • Cerberus Capital Management, L.P.
  • Former U.S. Secretary of Treasury
  • Bharat Vasani
  • Tata Group
  • Wang Junfeng
  • King & Wood Mallesons
  • Wang Kejin
  • China Banking Regulatory Commission (CBRC)
  • Wei Jiafu
  • Kazakhstan Potash Corporation Limited
  • Yang Chao
  • China Life Insurance Co. Ltd.
  • Zhu Min
  • International Monetary Fund

Legal Roundtable

  • Dimitry Afanasiev
  • Egorov Puginsky Afanasiev and Partners (Moscow)
  • William T. Allen
  • NYU Stern School of Business
  • Wachtell, Lipton, Rosen & Katz (New York)
  • Johan Aalto
  • Hannes Snellman Attorneys Ltd (Finland)
  • Nigel P. G. Boardman
  • Slaughter and May (London)
  • Willem J.L. Calkoen
  • NautaDutilh N.V. (Rotterdam)
  • Peter Callens
  • Loyens & Loeff (Brussels)
  • Bertrand Cardi
  • Darrois Villey Maillot & Brochier (Paris)
  • Santiago Carregal
  • Marval, O’Farrell & Mairal (Buenos Aires)
  • Martín Carrizosa
  • Philippi Prietocarrizosa & Uría (Bogotá)
  • Carlos G. Cordero G.
  • Aleman, Cordero, Galindo & Lee (Panama)
  • Ewen Crouch
  • Allens (Sydney)
  • Adam O. Emmerich
  • Wachtell, Lipton, Rosen & Katz (New York)
  • Rachel Eng
  • WongPartnership (Singapore)
  • Sergio Erede
  • BonelliErede (Milan)
  • Kenichi Fujinawa
  • Nagashima Ohno & Tsunematsu (Tokyo)
  • Manuel Galicia Romero
  • Galicia Abogados (Mexico City)
  • Danny Gilbert
  • Gilbert + Tobin (Sydney)
  • Vladimíra Glatzová
  • Glatzová & Co. (Prague)
  • Juan Miguel Goenechea
  • Uría Menéndez (Madrid)
  • Andrey A. Goltsblat
  • Goltsblat BLP (Moscow)
  • Juan Francisco Gutiérrez I.
  • Philippi Prietocarrizosa & Uría (Santiago)
  • Fang He
  • Jun He Law Offices (Beijing)
  • Christian Herbst
  • Schönherr (Vienna)
  • Lodewijk Hijmans van den Bergh
  • De Brauw Blackstone Westbroek N.V. (Amsterdam)
  • Hein Hooghoudt
  • NautaDutilh N.V. (Amsterdam)
  • Sameer Huda
  • Hadef & Partners (Dubai)
  • Masakazu Iwakura
  • TMI Associates (Tokyo)
  • Christof Jäckle
  • Hengeler Mueller (Frankfurt)
  • Michael Mervyn Katz
  • Edward Nathan Sonnenbergs (Johannesburg)
  • Handel Lee
  • King & Wood Mallesons (Beijing)
  • Martin Lipton
  • Wachtell, Lipton, Rosen & Katz (New York)
  • Alain Maillot
  • Darrois Villey Maillot Brochier (Paris)
  • Antônio Corrêa Meyer
  • Machado, Meyer, Sendacz e Opice (São Paulo)
  • Sergio Michelsen Jaramillo
  • Brigard & Urrutia (Bogotá)
  • Zia Mody
  • AZB & Partners (Mumbai)
  • Christopher Murray
  • Osler (Toronto)
  • Francisco Antunes Maciel Müssnich
  • Barbosa, Müssnich & Aragão (Rio de Janeiro)
  • I. Berl Nadler
  • Davies Ward Phillips & Vineberg LLP (Toronto)
  • Umberto Nicodano
  • BonelliErede (Milan)
  • Brian O'Gorman
  • Arthur Cox (Dublin)
  • Robin Panovka
  • Wachtell, Lipton, Rosen & Katz (New York)
  • Sang-Yeol Park
  • Park & Partners (Seoul)
  • José Antonio Payet Puccio
  • Payet Rey Cauvi (Lima)
  • Kees Peijster
  • COFRA Holding AG (Zug)
  • Juan Martín Perrotto
  • Uría & Menéndez (Madrid/Beijing)
  • Philip Podzebenko
  • Herbert Smith Freehills (Sydney)
  • Geert Potjewijd
  • De Brauw Blackstone Westbroek (Amsterdam/Beijing)
  • Qi Adam Li
  • Jun He Law Offices (Shanghai)
  • Biörn Riese
  • Jurie Advokat AB (Sweden)
  • Mark Rigotti
  • Herbert Smith Freehills (Sydney)
  • Rafael Robles Miaja
  • Robles Miaja (Mexico City)
  • Alberto Saravalle
  • BonelliErede (Milan)
  • Maximilian Schiessl
  • Hengeler Mueller (Düsseldorf)
  • Cyril S. Shroff
  • Cyril Amarchand Mangaldas (Mumbai)
  • Shardul S. Shroff
  • Shardul Amarchand Mangaldas & Co.(New Delhi)
  • Klaus Søgaard
  • Gorrissen Federspiel (Denmark)
  • Ezekiel Solomon
  • Allens (Sydney)
  • Emanuel P. Strehle
  • Hengeler Mueller (Munich)
  • David E. Tadmor
  • Tadmor & Co. (Tel Aviv)
  • Kevin J. Thomson
  • Barrick Gold Corporation (Toronto)
  • Yu Wakae
  • Nagashima Ohno & Tsunematsu (Tokyo)
  • Wang Junfeng
  • King & Wood Mallesons (Beijing)
  • Tomasz Wardynski
  • Wardynski & Partners (Warsaw)
  • Xiao Wei
  • Jun He Law Offices (Beijing)
  • Xu Ping
  • King & Wood Mallesons (Beijing)
  • Shuji Yanase
  • OK Corporation (Tokyo)
  • Alvin Yeo
  • WongPartnership LLP (Singapore)

Founding Directors

  • William T. Allen
  • NYU Stern School of Business
  • Wachtell, Lipton, Rosen & Katz
  • Nigel P.G. Boardman
  • Slaughter and May
  • Cai Hongbin
  • Peking University Guanghua School of Management
  • Adam O. Emmerich
  • Wachtell, Lipton, Rosen & Katz
  • Robin Panovka
  • Wachtell, Lipton, Rosen & Katz
  • Peter Williamson
  • Cambridge Judge Business School
  • Franny Yao
  • Ernst & Young

Monthly Archives: May 2019

GLOBAL UPDATE – Cross-Border M&A Guide

Cross-Border M&A Guide

Wachtell, Lipton, Rosen & Katz recently published the inaugural edition of their Cross-Border M&A Guide, which is available here. This new Cross-Border M&A Guide covers the key U.S. legal considerations not only for acquisitions of U.S. companies by non-U.S. companies (or “inbound” M&A transactions), but also for acquisitions of non-U.S. companies, including under federal securities laws, state laws, securities exchange listing requirements and antitrust and national security laws. The Guide should prove to be a useful resource.

The views expressed herein are solely those of the author and have not been endorsed, confirmed, or approved by XBMA or any of the editors of XBMA Forum, nor by XBMA’s founders, members, contributors, academic partners, advisory board members, or others. No inference to the contrary should be drawn.

DUTCH UPDATE – Bill implementing the Shareholders’ Rights Directive: what it means for Dutch listed companies

Contributed by: Leo Groothuis (Partner), Geert Raaijmakers (Partner), Paul van der Bijl (Partner) and Maarten Buma (Partner), NautaDutilh (The Netherlands).

Editor’s Note: Leo Groothuis advises clients on public M&A and on a wide variety of other domestic and cross-border transactions, as well as take-over defenses and shareholder activism. Geert Raaijmakers specializes in corporate governance, corporate structuring and joint ventures and on pension fund governance.  Paul van der Bijl specializes in IPOs, follow-on offerings, public M&A, anti-takeover defenses, corporate governance and complex cross-border transactions. Maarten Buma specializes in corporate law. 

Bill implementing the Shareholders’ Rights Directive: what it means for Dutch listed companies

On 2 April 2019, the bill implementing the revised Shareholder Rights Directive was adopted by the Lower House of Parliament. The bill was amended to take into account a number of modifications to the initial draft. The implementation of Directive 2017/628/EU to encourage long-term shareholder engagement is now in the home stretch. The Upper House will have to act quickly, however, given that the deadline for implementation of the directive in national law is 10 June 2019. This newsletter sheds light on the latest amendments and explains how the bill will affect listed companies. Please see our newsletters of November 2018 and March 2018 for more detailed information about the most important changes.

Adopted Amendments

 

Greater majority for decisions relating to remuneration policy

The bill now stipulates that a majority of at least 75% is required to approve a change to the company’s remuneration policy, unless the articles of association provide for a lower majority. According to the drafters, this amendment will make it easier for the general meeting of shareholders (GMS) to block changes to the remuneration policy. And as a result, this should lead to a more sustainable and responsible policy and encourage long-term shareholder involvement.

Automatic appointment to the remuneration committee of supervisory board members recommended by the works council

Within companies which are subject to the structure regime (structuurvennootschappen), the works council (ondernemingsraad or OR) has by law a strengthened right to recommend a third of the members of the supervisory board (raad van commissarissen or RvC). This amendment ensures that if the supervisory board establishes an incentives or remuneration committee from amongst its members, the board members appointed further to the works council’s recommendation will automatically sit on this committee.

Advisory vote on the remuneration report required for all listed companies

The bill provides that the remuneration report must be submitted to the AGM for an advisory vote. In the last draft bill, an exception was provided for listed SMEs: they only had to discuss the remuneration report at the AGM. The amendment does away with this exception. All listed companies must also explain in their next remuneration report how the vote on the preceding report was taken into account. It should be noted that a negative advisory vote by the AGM on the remuneration report has no consequences for the remuneration granted to individual directors.

Opinion of the works council on the remuneration policy in listed companies

The works council has the right to render an opinion on the proposed remuneration policy adopted by the AGM at least every four years. If the works council’s opinion is not followed or not followed in full, a written justification for derogating from the opinion shall be provided to the AGM.

Mention of how directors’ remuneration fits into the remuneration policy

The bill introduces new requirements for the content of the remuneration policy. This amendment adds an additional requirement, namely that, henceforth, the remuneration policy must explain how the identity, mission and values of the company and its affiliated companies, the company’s internal remuneration ratios and those of its affiliates, and public consensus have been taken into account. As a result, the remuneration policy should become more stakeholder-oriented.

What it means for Dutch listed companies

 

Listed companies incorporated in the Netherlands are advised to check which of these changes will have consequences for them. It should be noted that companies listed only outside Europe fall outside the scope of the new rules, including after the latest amendments. Please find below two points for attention as well as information about when these obligations should be fulfilled.

1. Submission of a remuneration report

The obligations relating to the remuneration report will apply as from entry into force of the new legislation. This means that a remuneration report must be prepared for the first full financial year and submitted to the AGM for an advisory vote.

2. Evaluation of remuneration processes and policy

It is advisable to assess whether remuneration processes and policy require adjustment as a result of the new rules. Please find below an overview of the most important changes:

  • It must be assessed whether the remuneration policy meets the new – more detailed and stringent – rules. The remuneration policy should comply with the new requirements as from its introduction in mid-2019; there is no transition period for compliance. As the new rules will enter into force after the regular AGM season, we consider it reasonable to submit any policy changes to the 2020 AGM and that listed companies not be obliged to call an extraordinary general meeting solely for this reason. In our opinion, listed companies that (wish to) hold their AGM after the implementation date should consider putting the amended remuneration policy to a vote this year and make the necessary arrangements to do so.
  • In addition, it should be noted that the remuneration policy must now be approved by the AGM at least every four years, rather than only in the event of changes, and the works council must be asked to render an opinion on the remuneration policy beforehand. The requirement of approval every four years by the AGM will apply as from entry into force of the new legislation. This means that a remuneration policy which does not comply with the new rules must be aligned to them as soon as possible and submitted to the 2020 AGM for approval. A remuneration policy which is already compliant must be submitted to the AGM two years after the date on which it took effect. Thus, for example, if the policy has been in effect for two years on the date of entry into force of the bill, it will need to be submitted to the AGM in two years’ time.
  • The supervisory board, or the board of directors for companies with a one-tier management structure, will have the right to approve material transactions with related parties. Shareholders will have no right to vote on approved material transactions. Listed companies must disclose material transactions with related parties no later than conclusion of the transaction. These provisions apply as from entry into force of the new legislation.
  • Attention should also be paid to the procedure for voting at the AGM as shareholders who vote electronically are now entitled to subsequently verify whether their vote has been validly registered and counted. This provision also applies as from entry into force of the new legislation.
  • Finally, it is advisable to determine whether the composition of the remuneration committee needs to be adjusted given that the supervisory board members appointed further to the recommendation of the works council must now sit on the committee. Once again, no provision has been made for a transition period. Depending on deliberations in the Upper House, it should for the time being be assumed that such supervisory board members must form part of the remuneration committee as from the entry into force of the bill. It should be noted, however, that this provision will not apply to all listed companies per se, only to so-called structure NVs.

The bill has been sent to the Upper House for consideration and, in principle, can no longer be amended, only accepted or rejected. Nevertheless, the bill could still be modified by means of an amending bill, should this prove necessary. The Upper House’s preliminary examination will take place on 21 May 2019. The directive must be implemented no later than 10 June 2019. We will of course keep you informed of further developments.

The views expressed herein are solely those of the author and have not been endorsed, confirmed, or approved by XBMA or any of the editors of XBMA Forum, nor by XBMA’s founders, members, contributors, academic partners, advisory board members, or others. No inference to the contrary should be drawn.

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