BELGIUM Law and Practice Contributed by: Michel Bonne, Hannelore Matthys and Virginie Lescot, Van Bael & Bellis
1.3 Key Industries As mentioned in 1.2 Key Trends , the Belgian M&A landscape is marked by a majority of small - er and medium-sized transactions, in relation to which publicly available information is rather lim - ited. Overall, the life sciences/pharmaceutical, (bio)technology, (renewable) energy and health - care industries remain highly valued in Belgium. Belgium is also home to various energy-inten - sive manufacturing industries, where the current economic environment may lead to vibrant M&A activity in the coming months/years. 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 considera - tions, and the scope of the envisaged acquisi - tion, 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 Associa - tions’ Code (BCAC) contains a regime for merg - ers through the acquisition of an existing com - pany or the incorporation of a new company. The BCAC also contains provisions on demerg - ers into an existing company or a newly incor - porated company, as well as mixed demergers. Share Deal A share deal is the most straightforward struc - ture used to acquire a business as formalities for transferring 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 company 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 operation). Asset Deal By contrast, an asset deal does allow the acquir - er 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 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 purchased individually (ut singuli), or as “uni- versality of goods” (ut universali) or “branch of activities” . In the case of a transfer of individual assets and liabilities, all legal formalities required to trans - fer 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 formalities 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 procedure set out in the BCAC, all assets and liabilities that are part of the universality of goods or the branch of activities are automati - cally transferred by operation 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.
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