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28 января 2011

Становление новых правил приобретения корпоративного контроля в Украине


Автор: Леонид Антоненко, Николай Сорочинский
Источник: IFLR. - 2011. - 28 січня

Статью можно прочитать ниже на языке оригинала.

Transition time for takeovers

In the last two years, Ukraine's takeover rules underwent significant changes and they are likely to see another big overhaul soon. In September 2008, the Joint-Stock Companies Law (JSC Law) was adopted.

This law, which came into effect on April 27 2009, for the first time introduced certain takeover rules into Ukrainian law.

The JSC Law provides that before acquiring at least 10% of shares, the potential acquirer must notify the target company about this intended acquisition through a buyout notice. The buyout notice must be sent at least 30 days before the acquisition and must also be sent to the State Securities and Stock Market

Commission (SEC) as well as to every stock exchange where the company's shares are listed (there are two prominent stock exchanges in Ukraine - PFTS and Ukrainian Exchange - but they lag far behind even their eastern European counterparts in terms of market capitalisation and the liquidity of securities traded on them).

Under the JSC Law, any person who has acquired at least 50% of common stock in a JSC had to make an offer to all remaining shareholders to buy their shares - a mandatory offer. The mandatory offer is made through the target company's supervisory board, while the SEC and the stock exchange where the shares are listed must be notified about the offer.

Few shares are listed on exchanges despite the requirement that shares of all JSCs with more than 100 shareholders be listed on a stock exchange. There are, therefore, relatively few companies whose shares have a transparent and easily-determined market price. For this reason, the supervisory council of the JSC (and, accordingly, the controlling shareholders) have substantial discretion in fixing the buyout price.

One problem in applying these requirements, in particular the buyout notice requirement, is that the JSC Law does not clearly outline the consequences of failure to comply with them. In Russia, for instance, from where most of the Ukrainian JSC Law's rules were borrowed, failure to send the buyout notice deprives the acquirer of the right to vote with the shares acquired in violation of the buyout notice rule.

There is no provision for such a sanction in Ukraine.

This does not mean, however, that the rule is entirely toothless. For example, the Ukrainian courts have shown themselves quite willing to invalidate transactions based on pure technicalities and therefore it cannot be ruled out that some courts will be willing to set aside share acquisitions carried out in violation of the buyout notice rules.

Such a sanction would, of course, be disproportionately disruptive as compared to the seriousness of the violation. The published court decisions on this point are still hard to come by given that the JSC Law's rules are just now being phased-in.

When do the rules apply?

Before the JSC Law was adopted, Ukrainian law had not required anything like a buyout notice or mandatory offer and for this reason determining the moment from which the takeover rules of the JSC Law apply presents an important challenge. The JSC Law provides for a rather lengthy phase-in period. It technically came into effect on April 29 2009. However, all Ukrainian JSCs have two years, until April 29 2011, to bring their operations into compliance with the new JSC Law.

The logical rule of thumb most companies use is that the old rules apply up until the moment when the company's charter is amended to bring it in compliance with the JSC Law. This rule is easy to apply because, among many changes introduced by the JSC Law, all joint-stock companies in Ukraine must change their names.

All JSCs which were previously named open JSCs must now be renamed public JSCs, while those which used to be named closed must now become private. In other words, it is always clear from any given company's name whether it is subject to the pre-2008 rules or the new rules under the JSC Law.

Unfortunately, not all courts follow this simple logic. In a recent case, the courts invalidated additional capitalisation of a major bank, Bank Forum (majority-owned by Commerzbank), because the procedures leading to this capitalisation failed to comply with the JSC Law - even though at the relevant moment the bank had not yet amended its charter.

The deadline of April 29 2011 is fast approaching and after that day there will be no exceptions from the rules of the JSC Law. All qualifying acquisition transactions involving shares in Ukrainian JSCs will have to comply with the buyout notice and mandatory offer requirements after that date.

Reform Bill problems

On December 22 2010, Parliament adopted a bill - the Reform Bill - which introduced a number of changes to the takeover rules as well as other rules governing joint-stock companies in Ukraine. The Bill was vetoed by the president and its future is uncertain. However, this highlights some of the problems with the existing takeover rules in Ukraine and points to the course which their reform is likely to take.

For instance, the 2008 JSC Law can be interpreted to mean that any purchase leading to the acquirer holding at least 10% of shares requires a buyout notice, even where the purchase is done by a controlling shareholder already owning a majority of shares and even where the acquisition transaction is itself quite small.

For instance, according to one interpretation of the law, where the acquirer already owns 10% of shares and intends to buy just a further 1% to accumulate 11% in total, the acquirer still needs to send a buyout notice. The Reform Bill seeks to correct this by providing that the buyout notice need not be sent by acquirers which already own at least 10% of shares.

Under the JSC Law, the mandatory offer requirement applies only to acquisitions of at least 50% of shares in a single transaction. Reformers seek to fine-tune this requirement which under the Reform Bill would apply to acquisitions of any number of shares leading to the acquirer's holding reaching more than 50% of shares.



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