UKRAINE Law and Practice Contributed by: Mykyta Nota and Anton Arkhypov, AVELLUM
2.14 Exceptions to Suspensive Effect There are no general exceptions to the suspensive effect. The suspension effect applies globally, and the Ukrainian merger control rules do not provide for any possibilities to obtain an individual waiver or deroga - tion from the suspensive effect. 2.15 Circumstances Where Implementation Before Clearance Is Permitted Closing prior to clearance constitutes an infringement of the Ukrainian merger control rules. As described in 2.14 Exceptions to Suspensive Effect , the sus- pensive effect applies globally. Simply carving out the Ukrainian business or assets and proceeding with global closing will not absolve parties of liability. Yet, the AMC may consider ring-fence or hold sepa - rate arrangements as a mitigating factor when deter - mining the amount of a fine. It is crucial for parties to inform the AMC in advance about any carve-out arrangement before closing and provide a detailed explanation of how it will work. 3. Procedure: Notification to Clearance 3.1 Deadlines for Notification In general, there are no deadlines for notification. Obtaining merger clearance before closing is the only requirement. If a concentration is carried out through auctions or similar methods, the parties can make the notification before or after the start of the auction but no later than 30 days from the date of announcing the winner. 3.2 Type of Agreement Required Prior to Notification A binding agreement is not required prior to notifi - cation. Parties can file on the basis of a less formal agreement (eg, a draft of transactional documents, letter of intent or memorandum of understanding) as long as such a document sufficiently outlines the key terms and conditions of the transaction. 3.3 Filing Fees The filing fee is UAH42,500 per notifiable event (around EUR820). Multiple notifications may be nec -
essary depending on the transaction’s structure. The filing fees must be paid before notification. 3.4 Parties Responsible for Filing The buy-side and the sell-side are jointly responsible for filing. The following undertakings can act as the applicants depending on the transaction structure: • the acquirer and the target; • the controlling parents of the acquirer and the target; • the founders of the joint venture; or • the controlling parents of the merging undertak - ings. In the case of a hostile takeover, the AMC may agree to accept a notification submitted by one of the par - ties. 3.5 Information Included in a Filing The information and documents required for filing • information on the parties’ worldwide and Ukraini - an activities, indicating undertakings that are active and/or registered in Ukraine; • a description of the transaction structure, indicat - ing the transaction stages and the timeline for their implementation; • information on merger clearance sought or granted in other jurisdictions; • parties’ asset and turnover data globally and in Ukraine for the previous financial year; • for the relevant markets, value and volume-based sales and market share data, indicating competi - tors and their estimated market shares on overlap - ping markets for the preceding three years and, in practice, the latest reporting period; • corporate structures of parties to a concentration before and after closing; • a description of the source of funds and docu - ments: (a) confirming the availability of own funds to pay the consideration (eg, financial statements, excerpts from a bank account); and depend on the review procedure. For the simplified review procedure: • filing fee payment orders;
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