Financial Institutions & Fintech

De Brauw is advising the Partners of leading infrastructure manager DIF Capital Partners on the sale of the business to CVC Capital Partners.The acquisition provides CVC with a leading infrastructure platform, directly adjacent and highly complementary to its existing private equity, secondary and credit strategies. In addition, the acquisition accelerates the growth of DIF, which will continue to operate under the DIF brand and retain independence over its operations and investment decisions. DIF will continue to be led by its current CEO and Partners. The combination creates a global private markets manager with seven complementary strategies and approximately €177 billion of total assets under management. DIF is headquartered in Amsterdam with €16 billion of assets under management, a team of over 225 professionals across 11 offices and operating two different investment strategies – the Core / Build-to-Core funds and the Core-plus funds. DIF was founded in 2005 and has built a leading position in mid-market infrastructure investments, primarily in Europe, North America and Australia.

De Brauw partner Ferdinand Hengst was appointed by the Amsterdam court as the first observer to monitor the interests of the joint creditors in a combined US Chapter 11, Dutch scheme (WHOA) and US Chapter 15 proceedings. The successful global preventive restructuring process were initiated by Diebold Nixdorf (the cash-strapped cash machine manufacturer) in the US and in the Netherlands, reducing its debt burden by USD 2.1bn. Although supported by a large group of creditors, the cross-border restructuring was complex, involving two parallel restructuring proceedings in the US and the Netherlands, subsidiaries in multiple jurisdictions and creditors under 13 different tranches of notes and term loans. The role of the observer in this case was to supervise the drafting and negotiation of the restructuring plan for the benefit of the joint creditors. Ferdinand provided an extensive opinion on the plan and its implications, an opinion that was followed by the court. The WHOA plan is recognized as a foreign main proceeding under Chapter 15 in the US so that the WHOA plan can also be enforced against creditors in the US. This is the first time that the WHOA is recognized in the US, making the WHOA even a more compelling option for cross-border restructurings.

On 30 June 2023, Aegon announced its intention to change its legal seat to Bermuda. As a result of the sale of its Dutch business to a.s.r., Aegon will no longer have a regulated insurance business in the Netherlands. DNB will therefore no longer be able to be Aegon's group supervisor, with group supervision to instead transfer to the Bermuda Monetary Authority (BMA). Aegon will maintain its headquarters in the Netherlands, will remain a Dutch tax resident and will continue to be listed on Euronext Amsterdam and on the New York Stock Exchange (NYSE). Aegon will also make certain amendments to its governance pursuant to becoming a Bermuda Ltd., including changing to a one-tier board. The matter involved many interesting aspects such as: - designing an unprecedented double cross border conversion: first a conversion from Aegon N.V. into Aegon S.A. - a Luxembourg entity - and subsequently from Aegon S.A. into Aegon Ltd. This was further complicated by the pending implementation of the Mobility Directive into Dutch law, which would have far reaching implications on the structure of the conversion if implemented prior to publication of the conversion proposal- designing a new governance structure for Aegon Ltd that (i) continues to take into account the interests of Aegon and its stakeholders, (ii) applies well-recognized and accepted international governance standards and (iii) preserves the current governance to the extent possible and practical in view of the change in legal domicile- extensive regulatory analysis and interaction with the various involved supervisors in order to arrive at a suitable solution for group supervision following the transaction with a.s.r.- due to Aegon's US listing, a US prospectus is required for the change in legal domicile, impacting the potential timelines for implementation- ensuring a set-up that would ensure that Aegon remains tax residence in the Netherlands, a key aspect for AegonThe matter showcased perfectly the integrated offering by De Brauw, with MACM, Corporate Advisory, FMR, Tax, F&R, EEB and Litigation teams working together seamlessly to be able to advise Aegon on the myriad of questions and issues that arose during the project.

On 28 June 2023, the European Commission proposed a new set of rules to further modernise payment services and open financial services data. In part, this package revises the Second Payment Services Directive (PSD2) and introduces a new Payment Services Regulation (PSR). According to the Commission, a revision of PSD2 was necessary as the payment services market has changed rapidly in recent years.

On 1 July 2023, the Future of Pensions Act (WTP) entered into force, leading to a major overhaul of the Dutch pension system, with future pension accrual being based on a defined contribution scheme. In our new guide – available in Dutch and English – we discuss the key elements of the WTP.

The Digital Operational Resilience Act (DORA) – EU legislation in force since 16 January 2023 – sets out requirements for ICT security systems that support the business processes of financial entities. DORA's aim is to centralise legislation related to ICT compliance, but this does not mean it is a mere collection of existing obligations. The requirements laid down in DORA are likely to have a substantial impact on how financial entities arrange the governance of their ICT risks. The industry has been given two years to prepare and implement the necessary changes before DORA starts applying on 17 January 2025. While this may seem far away, significant action is likely to be needed, and financial entities are advised to start preparations as soon as possible.