UKRAINE Law and Practice Contributed by: Illya Tkachuk, Igor Krasovskiy and Inna Kostrytska, INTEGRITES
level. In most cases, strategic and operational control can be achieved by acquiring more than 75% of shares. Therefore, even if a bidder can- not obtain a 100% share in the target company, they would be entitled to exercise control of the strategic management of the company, as long as they hold the majority (or better-qualified majority) of the shares in the target company. Although the law provides minority shareholders with some rights, the scope of which depends on the share owned (up to 5% or more), they cannot usually obstruct the management pow- ers exercised by the majority shareholder. 6.12 Irrevocable Commitments The irrevocable commitments can be given and enforced only based on a shareholders’ agree- ment. As a result, this is not a common remedy for supporting the transaction. 6.13 Securities Regulator’s or Stock Exchange Process As a rule, no prior approval from the regulator (National Securities and Stock Market Commis- sion) or a stock exchange should be sought to make an offer. However, in case of a mandatory offer, the regulator may – either on its own initia- tive or following a complaint from the interested persons – request documents proving adher- ence to the offer procedure and determination of the purchase price of shares. 6.14 Timing of the Takeover Offer Statutory offer duration is established only for mandatory offers. As a rule, such an offer is made after the acquisition of the controlling stake of shares, and necessary regulatory and antitrust approvals are obtained at this stage. No extension of mandatory offers is provided for by the law.
For voluntary takeover offers, the possibility of extending the offer is typically something that is negotiated with the other party.
7. Overview of Regulatory Requirements 7.1 Regulations Applicable to a Technology Company
Generally, the creation and/or operation of a new technology company in Ukraine does not require any specific permit/licence. In certain cases, the technology company may fall within the sectorial regulation. If a fintech company is recognised as a financial institution, for example, it will be subject to the regulations by the National Bank of Ukraine (NBU). Specific regulation also applies to technology companies created in the form of a joint-stock company. Their activity will be supervised by the National Securities and Stock Market Commis- sion. 7.2 Primary Securities Market Regulators The National Securities and Stock Market Com- mission acts as the primary securities market regulator for M&A transactions in Ukraine. If the M&A is done through the stock exchange, the latter will also exercise certain supervising powers. The National Depositary of Ukraine will also be involved in any transfer of shares but its function is rather formal. Additional control can be exercised by the sec- torial regulator, such as the NBU in the case of fintech companies that are financial institutions.
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