Mergers and Acquisitions
The main laws relating to M&A in Ukraine include the Civil Code, the Commercial Code, the Law on Companies, the Law “On Renewing a Debtor’s Solvency or Declaring Bankruptcy,” and the Law “On Protecting Economic Competition.”
Under Ukrainian law, mergers may take place in two ways: as a consolidation and as a joining. Both types of merger entail termination of at least one merging company by transferring all its assets, rights and obligations to its legal successor.
Consolidation is when two or more companies join together or merge, establishing a new entity. In this case, the merging companies are dissolved and all their assets, rights and obligations are transferred to a new company established as a result of the merger.
Joining is when one company is absorbed into another existing company. In this case, the company that is joining an existing company is dissolved and all its assets, rights and obligations are transferred to the other, existing company (AT).
Any merger requires the approval of the highest decision-making bodies of the companies involved: 3/4 of the votes of shareholders taking part in a general meeting of a joint-stock company or a simple majority of votes in a limited liability company (TOV).
Since a merger leads to the dissolution of a particular company, such termination is supposed to be performed in accordance with special procedures. In particular, a liquidation commission must be established, which, among others, is obliged to notify all the creditors of the companies, as well as the state registrar on the dissolution and merger, draw up the act of the transfer, and so on. Dissolution procedures differ according to the organizational form of the particular company.
Ukrainian legislation does not provide a definition of “acquisition.” However, in practice, it means one company has gained control over the shares or assets of another company. There are three basic types of acquisition:
1. The acquisition of shares. In this case, the buyer acquires the company together with all its assets, liabilities and obligations.
2. The acquisition of assets. In this case, only the identified assets (and liabilities) that the buyer agrees to obtain are acquired.
3. The acquisition of debts. In accordance with the Law on Bankruptcy, an insolvency plan can include the option of exchanging a creditor’s demands for shares and/or assets of the target company (the debtor).
M&A: Competition issues
Under Ukrainian legislation, mergers and acquisitions are considered a concentration and are subject to prior approval by the Anti-Monopoly Committee of Ukraine if stipulated thresholds are exceeded (see section on Competition for more).
A merger or acquisition that is subject to approval by the Anti-Monopoly Committee of Ukraine cannot be concluded until such approval has been granted. In the meantime, participants to merger or acquisition must refrain from any action that might restrict competition.
It should be noted that Ukraine’s competition legislation applies to any merger or acquisition that affects or could affect competition in Ukraine. Accordingly, M&As involving foreign companies (foreign-to-foreign M&A) are caught if they meet the stipulated requirements.
M&As in specific sectors
Ukraine’s current legislation provides for specific rules to apply to M&As in specific sectors. Specifically, there are certain restrictions with regard to companies recognized as monopolies, including natural monopolies. For example, certain restrictions are imposed by the Law “On the Power Industry,” the Law “On Communication,” and so on. There are special rules with regard to specific sectors of the economy.
The activity of commercial banks in Ukraine is regulated by the Law “On Banks and Banking Activities,” according to which the National Bank of Ukraine is empowered to regulate the activity of commercial banks. Any type of reorganization of commercial banks, including M&As, is subject to NBU approval.
An agreement on a merger or acquisition with the participation of commercial banks must be concluded in writing and comes into force after its approval by a two-thirds majority of vote of the shareholders of each bank.
The main laws regulating television and radio broadcasting include the Law “On Television and Radio Broadcasting” and the Law “On Telecommunication.” These laws provide for special rules for the establishment and operation of TV and radio broadcasting organizations.
Only Ukrainian citizens, Ukrainian legal entities, the Verkhovna Rada and the President of Ukraine have the right to establish TV and radio broadcasting companies in Ukraine. Foreign legal entities and citizens of other states cannot establish them here. Moreover, foreign investment in domestic TV and radio broadcasters is limited to 30 % of the chartered capital of an existing company. Foreign investments in TV and radio broadcasters are subject to the approval of the National Radio and Television Council of Ukraine.
Print media can be established by Ukrainian and foreign citizens, as well as by Ukrainian and foreign companies. But neither an individual citizen nor a company may establish or control more than 5 % of socio-political print media in Ukraine.