12/4/23 New conditions for purchasing businesses from owners from unfriendly countries

The conditions for acquiring businesses from owners from unfriendly countries have become tougher again. An analysis of these conditions was published in the magazine "Company Lawyer", No. 12, December 2023, which we recommend studying.

Short list of recommendations:

Determine market value through appraisers from the Ministry of Finance list

The price of the transaction determines whether the Government Commission will give permission to it. For an assessment, you will have to contact expert organizations from the list of the Ministry of Finance. Although the department indicated on its website that this is a list of recommended appraisers, it is now necessary to order research only from them. For the transaction, you will need to obtain a report on the assessment of the market value of shares or shares, as well as an expert opinion on this report. It is prepared by the SRO of which the appraiser is a member. The report must be up to date — he must be no more than six months old at the time the Government Commission considers your application.

Determine the discount from the price and calculate the amount of voluntary contribution to the budget

During negotiations on the price of repurchase of shares or interests, it is necessary to take into account the requirement of the Government Commission on a discount. A seller from an unfriendly country has the right to sell his share in the company for a maximum of 50% of its market value. This value must be determined based on the appraiser's report.

When structuring a deal, it is also important to take into account the additional financial burden in the form of a voluntary contribution to the budget. This fall, officials increased the fee again. Now it does not depend on the size of the discount and in any case is 15% of the market value of assets.

Develop performance indicators for the new management

Before purchasing, you need to involve specialists so that they evaluate the performance indicators for the new owners. It is important for officials that the company continues to make a profit after the transaction. A government commission will evaluate how the new owners plan to manage the company after the transaction.

Agree with the foreign participant how he will receive payment

It is necessary to decide in advance with the foreign participant how he will receive payment for his share in the company. It is important to determine whether he will withdraw funds from the Russian Federation. The choice of option for how a foreign participant can receive money depends on this.

Allow at least 4 months for approval of the transaction

The regulations do not contain a deadline within which the Government Commission is obliged to consider the application. Practice shows that it needs four months or more.

Agree on a transaction with securities if they are accounted for in the account of a foreign depository

Now it is necessary to coordinate with the Government Commission all transactions, the party of which is connected with unfriendly countries and as a result of which ownership of Russian securities arises. Permission will have to be obtained, even if transactions take place in a foreign perimeter.

Note of the REAB Consortium: since the acquisition of a business from an owner from an unfriendly state is becoming an increasingly difficult task, it is obvious that it is necessary to involve not only an appraiser from the list recommended by the Ministry of Finance, but also a professional business broker who will help you go through all the difficult stages of this path.