BELGIUM Law and Practice Contributed by: Michel Bonne, Hannelore Matthys and Virginie Lescot, Van Bael & Bellis
digital, data and technology, life sciences/pharma - ceutical, (bio)technology, (renewable) energy, finan - cial services and healthcare industries remain highly valued in Belgium. Belgium is also home to various energy-intensive manufacturing industries, where the current economic environment may lead to vibrant M&A activity in the coming months/years.
route for deals involving distressed companies, where potential tax and bankruptcy liability issues may be at stake. In the case of an asset deal, the assets may be pur - chased individually (ut singuli), or as a “universality of goods” (ut universali) or a “branch of activities”. In the case of a transfer of individual assets and lia - bilities, all legal formalities required to transfer such individual assets and liabilities must be complied with. For example, the transfer of an agreement requires the consent of the other contracting party. In addition, specific, rather onerous and time-consuming formali - ties apply to the transfer of intellectual property rights, real property and permits. In the case of a transfer of a universality of goods or a branch of activities in accordance with the proce - dure set out in the BCAC, all assets and liabilities that are part of the universality of goods or the branch of activities are automatically transferred by opera - tion of law, provided that the specific requirements for the transfer of these assets have been fulfilled. As a result, the acquirer has less flexibility to cherry-pick the assets and liabilities of the business. 2.2 Primary Regulators Private M&A transactions typically do not require the involvement of a primary regulator. Public M&A trans - actions (such as public takeovers, IPOs, secondary offerings and bond issues) require the involvement of the Financial Services and Markets Authority (FSMA). M&A activity in certain sectors may be regulated by sector-specific regulators, for example the Belgian National Bank for transactions involving financial insti - tutions or insurance companies, the Belgian Federal Agency for the Safety of the Food Chain for transac - tions in the food industry, the Belgian Federal Agency for Medicines and Health Products for transactions in the healthcare/pharmaceutical sector, the Belgian Institute for Postal Services and Telecommunications for the telecoms sector, etc. For more information on other regulators, see 2.3 Restrictions on Foreign Investments , 2.4 Antitrust Regulations and 2.6 National Security Review .
2. Overview of Regulatory Field 2.1 Acquiring a Company
The acquisition of a company may be structured as a share deal or an asset deal. Tax considerations, and the scope of the envisaged acquisition, play an important role when considering the acquisition of a business through a transfer of shares or a transfer of assets. Alternatively, and less commonly, an acquisition of a business could be structured through a (de)merger. The Belgian Companies and Associations’ Code (BCAC) contains a regime for mergers through the acquisition of an existing company or the incorpo - ration of a new company. The BCAC also contains provisions on demergers into an existing company or a newly incorporated company, as well as mixed A share deal is the most straightforward structure used to acquire a business as formalities for transfer - ring shares are fairly limited. However, a share deal implies that all the underlying assets and liabilities of the acquired business are also (indirectly) transferred. The acquirer cannot pick and choose certain assets and liabilities of the business, unless those assets and liabilities were to be transferred from the target com - pany into a new company prior to the closing of the share transfer (through an asset deal, a demerger, a transfer of a branch of activities, or any other similar demergers. Share Deal
operation). Asset Deal
By contrast, an asset deal does allow the acquirer to pick and choose the assets and liabilities it deems useful or necessary. The other assets and liabilities remain with the business. This is often the preferred
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