Which supporting documents, if any, must be filed with the authority?
When submitting the confidential notification form to MOFCOM, the supporting documents below shall be filed with MOFCOM:
- Certificate of incorporation of the notifying party;
- Power of attorney (POA) provided by each of the business operators to the concentration, respectively, if they are represented by attorneys;
- Annual reports and audited financial statements for the immediately preceding fiscal year of each of the business operators to the concentration;
- Fully signed version of the transaction documents provided by the notifying party;
- Market reports and comparable documents that were specifically prepared with respect to the concentration or the affected markets;
- Statement of authenticity (SOA) provided by the notifying party.
Generally speaking, all the supporting documents listed above shall be translated into Chinese, and both the original version and its translation shall be submitted to MOFCOM for review. However, if there is no ready-made Chinese translation and the original document is too long, a summary in Chinese may also be sufficient.
If the notifying party is a foreign company, a notarized certificate of incorporation is required. If the notifying party has submitted such document to MOFCOM in a recent merger filing, it may be exempted from submitting an updated original version for the next three years, provided that the information contained in the notarized certificate of incorporation remains unchanged.
Typically, the POA and SOA provided by the notifying party or parties to the concentration shall be signed by the legal representative or the authorized representative of such business operators, and be affixed with the business operator’s seal.
The parties will have to enclose the following documents when submitting the notification:
- the most recent audited annual financial statements and annual reports for each of the parties to the merger
- copies of the final or most recent versions of all documents concerning the merger, regardless of whether the merger is brought about by agreement be-tween the parties to the merger, acquisition of a controlling interest or a public takeover bid;
- analyses, reports, minutes of board meetings and similar documents related to the merger;
- flowcharts and similar overviews for each of the parties to the merger;
- a non-confidential version of the notification;
- documentation of payment of the merger fee; and
- a signed declaration in which the notifying party declares that the information stated in the notification is correct.
The documents may usually be provided by both parties to the transaction, and must be submitted in Danish, or in English if permitted by the DCCA.
The CCPC notification form sets out the documents that must accompany the notification. The requirements are similar to those for Form CO under the EU Merger Regulation and include the latest annual reports and accounts of the undertakings involved, along with copies of all surveys, reports, analyses, studies, presentations and comparable documents assessing or analysing the notified transaction. The parties are also required to provide a copy of the agreement bringing about the merger or acquisition. There is no obligation on the parties to notarise these documents.
The notification must be signed by an individual (director or officer) that is authorised to act for and on behalf of each undertakings making the notification. Alternatively, a legal representative may sign on behalf of an undertaking if given the power of attorney to do so. The signatory must declare that the information provided in the notification is, to the best of their knowledge and belief, accurate and complete and that all opinions and estimates provided in the notification are sincere.
The following supporting documents must be filed with the merger notifications:
- Annual reports for two years preceding the merger for each party.
- A full set of the transaction documents, including annexes.
- Any prospectuses issued by the parties in the five years preceding the mergers.
- The parties are allowed to file additional documents and information; to the extent these are relevant to the competitive analysis of the merger.
The merger notification forms include a statement of accuracy which must be signed by an officer of the company, whose name and role in the company are indicated on the form. Since the merger notification form itself will normally include the details of the outside attorney as the point of contact for the filing party, no additional power of attorney is required.
The notifying party(ies) must submit certain supporting documents. While the necessary supporting documents are slightly different depending on the types of transactions, they include a copy of the signed transaction agreement, a copy of the resolution approving the transaction, a financial statement, a list of shareholders and a power of attorney. They need not be notarised or otherwise authenticated.
The filing form must be written in Japanese. Some accompanying documents need to be translated into Japanese, but the translation may be limited to relevant sections only.
The following supporting documentation must be filed with the OFC:
- Transaction documents
- In a public bid, copy of the offer document (if unavailable at time of notification, to be submitted as soon as possible and not later than when posted to shareholders)
- Most recent annual reports and accounts of all parties to the concentration
- Where at least 1 market is identified, copies of analyses, reports, studies and surveys submitted to or prepared for any member(s) of the board of directors, the supervisory board, or the shareholders’ meeting, for the purpose of assessing or analysing the concentration with respect to competitive conditions, competitors (actual and potential), and market conditions.
The above must be submitted by the notifying undertaking, i.e. the undertaking acquiring control or either party to the merger or joint venture where applicable. The documents may be filed in English or Maltese, don’t need an apostille or other certification, and have no timing exceptions. The form may be signed by an attorney pursuant to a duly granted power of attorney.
In terms of formalities/supporting documents, the parties need to submit the signed or latest version of the transaction document that brings about the concentration along with its sworn Turkish translation. Moreover, a signed, notarized and apostilled power of attorney(s) would be required to be able to represent the notifying party(ies) before the Turkish Competition Authority. The signed, notarized and apostilled power of attorney will require local legalization that needs to be performed by the notary public in Turkey (which concerns the notarization of the sworn Turkish translation of the executed, notarized and apostilled power of attorney).
The transaction parties will also need to submit officially approved documents (i.e. approved balance sheets) that show their latest accounts. In addition, where applicable, for the Turkish subsidiaries and/or affiliated entities of the parties, the latest certified balance sheets and/or profit and loss statements (as approved by the relevant Tax Office in Turkey) should be submitted along with the merger control filing.
Finally the parties will need to submit organizational (corporate structure) charts or list of subsidiaries demonstrating each person or economic entity directly or indirectly controlled by the Parties. There is no formal requirement applicable for organizational (corporate structure) chart or list of subsidiaries for the parties.
For the sake of completeness, it is not required to submit certification of incorporation and articles of association as annexes to the merger control filing.
All of the required supporting documents should be submitted together with the notification form, otherwise notification form would be incomplete and the notification is deemed filed only on the date when such information is completed upon the Competition Board’s subsequent request for further data. Furthermore any written request by the Competition Board for missing information and documents resets the clock and the review period starts again from day one once the responses and documents are provided.
The following documents must be filed with the AMC:
- powers of attorney from the parties, which must be notarised and apostilled, with the Ukrainian translation;
- draft of the Articles of Association of a JV, if applicable;
- certificate of incorporation/good standing/extract from the trade register (if the parties are non-residents of Ukraine only), which must be notarised and apostilled, with the Ukrainian translation;
- copies of passports and tax identification numbers (if the applicants are individuals);
- scheme of the relations of control of the parties (before and after the implementation of the transaction);
- share purchase/shareholders’ agreements, which must be notarised and apostilled, with the Ukrainian translation, or their final drafts;
- documents proving the sources of the financing of the acquisition (annual report/financial statements of the purchaser/loan agreement (or its final draft), which must be notarised and apostilled, with the Ukrainian translation.
All the above documents must be true, accurate and valid as of the date of the merger control notification.
In addition to a copy of the transaction agreement, any noncompetition agreements, and annual financial statements, the HSR Act requires parties to produce the following deal-related documents if they were prepared by or for an officer or director of one of the parties: (1) confidential information memorandum; (2) synergy or efficiency studies; and (3) any document that analyses the proposed transaction with respect to markets, competition, competitors, market share, potential for sales growth, or expansion into product or geographic markets. The parties may also need to produce documents addressing these topics that were prepared by advisors such as consultants or investment bankers. If the documents are in a foreign language, they need not be translated into English. However, if an English translation exists, it must be produced along with the foreign language version.
The Form includes two signature pages. One is an affidavit in which the filing party attests that an agreement has been executed relating to the transaction described in the Form, and that the party has the good-faith intent to complete the transaction. The second is a certification page in which the party certifies that the Form is complete and accurate. Both signature pages must either be notarized or signed under penalty of perjury.
Again, as with the information to be included on the filing form, the specific list of documents depends on the deal. Yet there are certain standard documents always provided to the authority. In particular:
- Power of attorney (for the applicant`s representative);
- Certificate of incorporation (for both the applicant and the target);
- Articles of Association (for both the applicant and the target);
- Financial statement or balance sheet for the last reporting period (for the applicant, the target and consolidated statements for their groups);
- Transaction documents;
- Licences (government permissions to perform certain types of activity) (for the applicant, the target and companies of their groups);
- Tables with information on activities on the Russian market for the last two years (information on sales and purchases) (in general, required for all entities acting on the Russian market);
- Group charts (for both the applicant and the target);
- Information on more than 5% shareholders in the applicant and the target and also information on more than 5% shareholdings held by the applicant and the target in any company.
All documents provided to the FAS should be valid on the filing date. Documents containing information on the activities of the parties on the market should include the information actually available at the time.
All documents filed with the FAS should be provided in Russian or translated into Russian (the translation should be notarised). Foreign official documents should also be notarised and apostilled (or otherwise legalised when the apostille option is not available).
The application and the whole package of documents are provided to the authority by the applicant and may be signed by the applicant`s authorised representative acting on the basis of a PoA. Yet, please note that the specific documents issued by certain companies (not the applicant) should be signed by the director or duly authorised person of such company.
The merger filing form requires submission of the following supporting documents:
- press releases and details of any notifications to listing authorities;
- transaction documents (including any heads of terms, memorandum of understanding and sale and purchase agreement) or drafts of such documents, if not finalised;
- if the offer is subject to the UK takeover code (for acquisitions and mergers of listed companies), copies of the offer document and listing particulars, or drafts of such documents;
- the most recent annual report and accounts and last set of monthly management accounts for each of the parties;
- copies of the most recent business plan for each of the parties, and for any specific division or brand of the parties that is relevant to horizontal or vertical overlaps between them;
- copies of any documents (e.g. minutes of meetings, studies, reports, presentations, surveys, analyses etc.), prepared by, or for, or received by, any member of the board of directors (or equivalent body) or senior management or shareholders of either party, which either set out the rationale for the merger; or analyse the merger with respect to various factors of competition (e.g. competitors, market conditions, pricing, potential for sales growth or expansion into new product or geographic areas etc.); this includes information memoranda relating to the transaction and post-merger business plans (including integration plans and financial forecasts); and
- copies of recently-prepared documents (e.g. reports, presentations, studies, analysis, marketing and advertising strategies, industry/market reports, including customer research and pricing studies) which set out the competitive conditions, market conditions, market shares, or competitors in the industry or business areas where the merger parties have a horizontal overlap.
In some cases, it is possible to agree a narrower scope of required supporting documents, during pre-notification discussions with the CMA.
The CMA can also – and usually does – request these documents (or a sub-set of them) where there has been no notification and it has commenced a review of the transaction on its own initiative.
Documents that are submitted do not need to be legalised, certified or apostilled in any way. Where supporting documentation is in a foreign language, the parties are encouraged to provide a translation (if translations are not supplied, the CMA can ask for them).
A statutory merger notice must be signed by an 'authorised person', being a person with authority to bind the notifying party (or each notifying party, if the notification is submitted jointly).
A notification in Belgium requires the filing of extensive supporting documents. The documents that must be submitted include:
- The final or most recent draft documents constituting the concentration (e.g., a Share Purchase Agreement).
- In the case of a public tender, a copy of the offer. If the offer is not available at the time of notification, it must be provided to the Authority when it is submitted to the shareholders.
- Copies of the most recent articles of association, annual report and annual accounts of each party to the concentration.
- A document from the works council of each party to the concentration showing that they have been duly informed of the transaction.
- A document identifying the unions that represent the majority of the parties’ employees.
- Copies of all analyses, reports, studies, research or similar documents prepared by or for any member of the board of directors, or a supervisory board, or any other person exercising similar functions, or the general shareholder meeting, for the purpose of assessing the concentration.
All supporting documents must be submitted in their original language and must be accompanied by a translation in the language of the case (i.e., French or Dutch), unless the original is in English. The parties may submit either original documents or copies of the originals; if the latter, the copies must be certified.
The notification form may be signed by representatives of the notifying parties (e.g., their attorneys), in which case the representatives must submit a written mandate establishing their power of representation.
According to the form provided by the BWB, the following documents should be submitted: (i) annual reports of the undertakings involved, (ii) organizational charts and/or graphs illustrating the ownership structure before and after the merger, (iii) copies of all analysis, reports etc and other documents, on which the market definition(s) are based, (iv) documents proving reasons for justification, (v) documents supporting market information provided, (vi) relevant business plan(s), (vii) brochure(s) with product descriptions and price list(s).
In practice, often very view such supporting documents are enclosed with notifications.
In particular, there is also no need to present written powers of attorney, articles of associations and transaction documents or the like. Of course, the authorities may in the course of their investigation ask for the provision of such and additional documents.
Austrian merger control law also does not contain explicit “age restrictions” for documents. However, typically the last business year before the concentrations is of particular interest. In the case of affected markets (see on the definition above), it is the three ultimate business years. There are also no strict provisions as to the form of documents to be submitted. Hence, typically copies are sufficient.
The following supporting documents must be filed with the authority.
- A competitiveness report (in the event of any substantive competition analysis required due to overlaps between the merging parties)
- The most recent versions of all documents constituting the merger agreements
- Any report or other document assessing the transaction with respect to competitive conditions
- Any documents including minutes, reports, presentations and summaries prepared for the board of directors regarding the transaction from both the acquiring and target firms (strategic documents)
- The most recent annual report for the primary acquiring and primary target firm
- The most recent business plan for the primary acquiring firm and primary target firm
- The most recent report submitted by either party to the South African Securities Regulation Panel during the past year
If any of the above required information is unavailable, an affidavit must be filed by the relevant party explaining that fact.
As indicated in above, the filing is accompanied by statutory forms signed by a representative of each merging party to confirm the accuracy of the filing.
Certain documents listed in annex 4-3 of Book IV of the regulatory part of the FCC must be submitted along with a merger notification, including: (a) a copy of the agreement bringing about the concentration; (b) a non-confidential summary of the operation; (c) a presentation of the economic objectives of the transaction; (d) a list of the countries where the transaction is notifiable; (e) annual accounts; and (f) the last annual report. None of these documents requires notarisation or any types of certification.
In principle, all documents must be translated in French. In practice, the FCA may accept in certain circumstances that the notifying parties submit documents in English or a French translation limited to the excerpts of documents that are relevant for its assessment.
The notification form must be signed by or on behalf of the notifying party(-ies). Any representative signing the notification must submit a mandate establishing his/her power of representation.
The FECL sets the specific information that will be minimally required in the filing. For instance, given the obligation that all parties that directly intervene in the transaction have the obligation to file, each party shall be represented in means of a power of attorney dully legalized to have legal effects in Mexico (for example, granted before a Public Notary and dully apostilled) by a legal representative who will have the obligation to sign the filing form. Other corporate information that is statutorily required includes incorporation documents (such as certificates of incorporation, articles of association or similar along with current bylaws), financial information of all parties (audited financial statements, annual reports or similar) and full and detailed description of all products and services that involve business in Mexico.
For complex transactions that might have raise competition concerns, recent practice from the authority is to request internal documents related to the transaction, business and market including board presentation and market surveys, among many others and documents that prove or evidence the rationale behind it (similar to Item 4 documents generally required under HRS filings).
Two additional aspects regarding support documentation is that documents prepared in foreign languages require an official translation into Spanish and privileged documents cannot necessarily be retained as attorney-client privilege doctrine in Mexico is still a hot under-discussion topic before federal courts.
No supporting documents are required by law. Parties typically provide documents supporting their market share estimates or calculations, or transaction documents where relevant. Documents can usually be provided in English or German.
A legal representative (counsel) can submit the notification on behalf of one or more notifying parties. A formal written POA is not required.
The notifying parties are required to enclose to the filing form all documents related to the transaction, the balance sheets and the annual reports of the companies involved in the transaction, relating to the three financial years preceding the transaction. In addition, a power of attorney for the representative signing the filing must be included in the documentation to be provided. Concerning the language of such material, the notification must be submitted in Italian, while all the attachments (i.e. transaction documents) can be submitted in the original language. The party which notifies the transaction may indicate in the filing which information is to be treated as strictly confidential and the reason why it constitutes business secret.
There are no mandatory supporting documents with respect to an application for informal clearance.
The prescribed forms for formal clearance and authorisation include mandatory supporting documents, in particular annual reports and the transaction documents. There is no requirement for a power of attorney. A court enforceable undertaking must also be provided by the applicant.
Along with the notification form, each filing party must submit the most recent draft of the transaction agreement, annual reports, and all documents evaluating the proposed transaction with respect to competitive factors (equivalent to ‘4(c)’ documents in the US). None of these supporting documents need to be notarized or apostilled. Powers of attorney, certificates of incorporation, and articles of association are not required.
The Bureau accepts notifications in either French or English (Canada’s two official languages). It is not necessary to translate pre-existing documents (e.g., ‘4(c)’ documents) for the purpose of a notification; however, if, at the time of filing, there is an English or French language outline, summary, extract or verbatim translation of any part of a foreign language document that is required to be submitted with the notification, all such English or French language versions (or one complete translation) must be filed along with the foreign language document. Note that a different rule applies for foreign language documents submitted in response to a SIR. Documentary materials or information in a foreign language required to be submitted in response to a SIR must be translated into either English or French. The foreign language document must be submitted with the English or French translation attached thereto.
A certification on oath or solemn affirmation of correctness and completeness of the information by a person who has the authority to bind the notifying party is required for the notification to be considered complete. A Commissioner must administer the oath or solemn affirmation.