Mergers & Acquisitions Fifth Edition Editors: Michael E. Hatchard & Scott V. Simpson Published by Global Legal Group CONTENTS Preface Michael E. Hatchard & Scott V. Simpson, Skadden, Arps, Slate, Meagher & Flom (UK) LLP General chapter Renewable Energy: Cross-Border M&A John P. Cook, Anthony S. Riley, George T. Rigo & Kerstin Henrich, Orrick, Herrington & Sutcliffe LLP 1 Austria Markus Fellner & Irena Gogl-Hassanin, Fellner Wratzfeld & Partner Rechtsanwälte GmbH 13 Bulgaria Yordan Naydenov & Dr. Nikolay Kolev, Boyanov & Co, Attorneys at Law 21 Canada Kurt Sarno, Shlomi Feiner & Matthew Mundy, Blake, Cassels & Graydon LLP 30 Cayman Islands Ramesh Maharaj, Rob Jackson & Melissa Lim, Walkers 41 Chile Carlos Urzúa, Pablo Bravo & Sebastián Garrido, Larraín, Rencoret & Urzúa Abogados 49 China Will Fung, Yu Xie & Jean Zhang, Grandall Law Firm (Beijing) 53 Croatia Tarja Krehić, Law Offi ce Krehić 59 France Coralie Oger, FTPA 68 Germany Kolja Petrovicki & Sebastian Graf von Wallwitz, SKW Schwarz 76 Hong Kong Joshua Cole, Ashurst 86 India Apoorva Agrawal, Sanjeev Jain & Premnath Rai, PRA Law Offi ces 94 Indonesia Theodoor Bakker, Herry N. Kurniawan & Ms. Hilda, Ali Budiardjo, Nugroho, Reksodiputro 103 Ireland Alan Fuller, Aidan Lawlor & William Dillon-Leetch, McCann FitzGerald 109 Ivory Coast Annick Imboua-Niava, Osther Tella & Hermann Kouao Imboua-Kouao-Tella & Associés 118 Japan Yuto Matsumura & Hideaki Roy Umetsu, Mori Hamada & Matsumoto 124 Macedonia Kristijan Polenak & Tatjana Shishkovska , Polenak Law Firm 132 Malta David Zahra, David Zahra & Associates Advocates 139 Mexico Daniel Del Río & Jesus Colunga, Basham, Ringe y Correa, S.C. 148 Netherlands Alexander J. Kaarls, Johan W. Kasper & Willem J.T. Liedenbaum, Houthoff Buruma 158 Nigeria Busayo Adedeji & Kelvina Ifejika, Bloomfi eld Law Practice 167 Norway Ole K. Aabø-Evensen, Aabø-Evensen & Co Advokatfi rma 171 Romania Lucian Cumpănașu, Alina Movileanu & Cristina Mihălăchioiu, Cumpănașu & Partners 190 Russia Maria Miroshnikova, Sergei Kushnarenko and Anna Shirokova, Ivanyan & Partners 197 Serbia Radivoje Petrikić, Petrikić & Partneri AOD in cooperation with CMS Reich-Rohrwig Hainz 207 Singapore Farhana Siddiqui & Sandy Foo, Drew & Napier LLC 215 Spain Marta Gil de Biedma, Ventura Garcés & López-Ibor, Abogados 224 Switzerland Dr. Mariel Hoch & Dr. Christoph Neeracher, Bär & Karrer AG 232 Turkey Dr. U mut Kolcuoğlu, Begüm İnceçam & Aslı Tamer, Kolcuoğlu Demirkan Koçaklı Attorneys at Law 238 United Kingdom Adam Bogdanor & Tessa Hastie, Berwin Leighton Paisner LLP 244 USA Eric L. Cochran & Robert Banerjea, Skadden, Arps, Slate, Meagher & Flom LLP 255 Macedonia Kristijan Polenak & Tatjana Shishkovska Polenak Law Firm Overview The legal framework governing mergers and acquisitions (M&A) in the Republic of Macedonia comprises several laws defi ning the corporate and contractual steps, and reporting obligations of companies participating in mergers and acquisitions, as well as the legal consequences that occur on the basis of mergers and acquisitions. The Law on Trade Companies, published in 2004 (Company Law), and the Takeover Law, published in 2013 (Takeover Law), are recognised as primary sources of law relating to M&A. The Company Law stipulates the general conditions, processes and procedures for M&A and other forms of company reorganisation, applicable to all the companies. Under the Company Law, M&A are carried out either as a share purchase deal, on the basis of notarised share purchase agreement, or as regulated reorganisation of the companies, on the basis of the merger agreement entered in a form of notarial deed, following strict corporate steps and disclosure requirements by the companies involved. M&A transactions are subject to registration in the trade registry maintained by the Central Registry of the Republic of Macedonia. A revised Takeover Law was passed in May 2013, regulating the takeover procedure applicable to companies that issue securities listed on the Macedonian Stock Exchange and securities issued by joint stock companies with special reporting requirements pursuant to the Law on Securities. The provisions of the Takeover Law apply for a period of one year after a company ceases to meet these criteria. The control takeover threshold that triggers a mandatory takeover bid is acquisition of more than 25% of the voting shares in a company. The additional takeover thresholds are acquisition of an additional 5% of the voting shares of the target company within a period of two years of the successful takeover, and the highest takeover threshold is 75% of the voting shares. The provisions of the Takeover Law do not apply to purchase of shares owned by the Republic of Macedonia, including shares owned by benefi ciaries of funds from the State Budget, agencies, funds and public companies and other institutions and legal entities performing activities of public interest established by state-owned assets. In addition, the Securities Law, passed in 2005, regulates the manner and conditions for issuance and trading in shares, and sets the general legal framework of the capital market and the licensed market participants, disclosure obligations of joint-stock companies with special reporting obligations, and other issues with regard to shares. The Macedonian Security and Exchange Commission (SEC) and the Commission for Protection of Competition (CPC) are the principal regulators related to M&A transactions. GLI - Mergers & Acquisitions Fifth Edition 132 www.globallegalinsights.com © Published and reproduced with kind permission by Global Legal Group Ltd, London Polenak Law Firm Macedonia The SEC is established as an autonomous and independent regulatory body with public authorisations prescribed by the Securities Law, the Law on Investment Funds and the Takeover Law. It extends the regulatory framework with secondary legislation relative to M&A, and in particular the acquisitions of listed and reporting companies, to which Takeover Law applies. The CPC is a state body with the status of a legal entity, independent of its work and decision-making process within the competencies provided by the Law on Protection of Competition. It controls the application of the provisions stipulated in the Law on Protection of Competition, and monitors and analyses the conditions on the market to the extent necessary for the development of free and effi cient competition. The CPC, inter alia, gives clearance in cases of mergers and acquisitions that meet the regulatory thresholds. The CPC records show the following statistics: • 37 merger notifi cations were reviewed and approved by the Commission for Protection of Competition in 2015, of which: • 8 transactions involved Macedonian companies directly, and the relevant M&As were performed in the Republic of Macedonia; and • 29 M&As were performed outside of the Republic of Macedonia and between foreign companies. The CPC clearances involved various sectors, including but not limited to telecommunications, construction, production and sale of pharmaceutical products, mining and extraction of minerals, entertainment services, etc. Most of the transactions performed in the Republic of Macedonia were acquisitions of shares by way of execution of a notarised share purchase agreements in accordance with the Law on Trade Companies. The trend, pursuant to the statistical data of the CPC, shows an increase of transactions relative to 2014, when the CPC reviewed and approved: • 7 M&As performed in the Republic of Macedonia; and • 21 M&As performed outside the Republic of Macedonia. Based on this statistical source, the number of notifi cations of concentrations approved by the CPC has increased by nearly 22%. The number of the transactions performed in the Republic of Macedonia increased by 12.5%.1 Signifi cant deals and highlights The mergers that occurred in the telecommunications sector in 2015 are the most signifi cant deals to have taken place in the last 12 months in the Republic of Macedonia. Merger of T-Mobile Macedonia AD Skopje into Makedonski Telekom AD Skopje Makedonski Telekom, a subsidiary of Magyar Telekom and member of Deutsche Telekom Group, acquired its 100% subsidiary, T-Mobile Makedonija, by way of accession. The transaction was closed on 1 July 2015. The accession was driven by and implemented due to economic and market factors which, in the view of the management of the participating companies, would generate better economic results and improvement of the business venture in the future operations. The expectations are that this merger will create better conditions for Makedonski Telekom to cope with the competition in the market for electronic communications via a competitive portfolio of integrated fi xed and mobile products and services. Merger of VIP Operator DOOEL Skopje and ONE DOOEL Skopje The merger of two other providers of mobile and other telecommunication services in the GLI - Mergers & Acquisitions Fifth Edition 133 www.globallegalinsights.com © Published and reproduced with kind permission by Global Legal Group Ltd, London Polenak Law Firm Macedonia Republic of Macedonia, VIP Operator DOOEL Skopje, a subsidiary of Telekom Austria Group, and ONE DOOEL Skopje, a subsidiary of Telekom Slovenije, represents the second most signifi cant M&A deal in the telecommunications sector in 2015. The transaction was closed on 1 October 2015, causing termination of the merging companies and a creation of a new entity named one.Vip DOO Skopje. The parties expect that this merger will result in improvement of the relevant services to fi nal