Which supporting documents, if any, must be filed with the authority?
Merger Control (2nd Edition)
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).
Notifying parties are required to produce all the transaction documents, the annual reports of the parties of the last three years, and a power of attorney for the representative signing the notification. Parties can also enclose any documents (economic studies, surveys, etc.) useful to support their views.
The notification must be in Italian. The supporting documents can be submitted also in English.
Several supporting documents must be submitted as part of the premerger notification filing. These include a copy of the documents that constitute the agreement along with any ancillary non-compete agreements (per item 3(b)), and certain annual reports and annual audit reports (per item 4(b)). In addition, parties are required to submit all final documents prepared by or for an officer or director for the purpose of evaluating the transaction to the extent the analysis relates to markets, market shares, competition, competitors, opportunities for sales growth or product or geographic expansion (per item 4(c)). These items also require the parties to provide certain information memoranda, documents prepared by investment bankers or other consultants, and certain documents related to synergies (per item 4(d)).
There are no requirements to file any supporting documents. It is customary to sign the notification which can be done by a legal representative. Usually the FCO does not require the provision of a power of attorney, unless the FCO enters into Phase 2 of the review.
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.
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 few 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.
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.
The Regulation requires the following supporting documents to be filed:
(i) Powers of attorney of the notifying parties;
(ii) A certificate signed by the legal representative of each party, identifying the company’s administrators;
(iii) Corporate charts or diagrams of the notifying parties’ business group, prior and post operation;
(iv) Annual report, balance sheet and financial statements of the parties or of the entities of its business group which participate in the affected market(s), for the last three financial years;
(v) Any document related to the operation and/or its effects in Chile, such as: (i) ordinary and extraordinary board meetings minutes and shareholders meetings minutes of the parties or of the equivalent decision-making body held during the last three years; (ii) minutes, presentations and/or internal or external reports that have been prepared for the purpose of evaluating or analyzing the operation; (iii) analysis, studies, presentations and/or internal or external reports prepared for the purpose of evaluating or analyzing the operation, or alternative concentration operations; and (iv) commercial programs and/or general business plans that have been issued, commissioned and/or discussed by the parties or the entities of its business group in the last three years for the affected market(s) in Chile;
(vi) Databases, sources and criteria used by the notifying parties to estimate market shares;
(vii) Copies of studies, reports, analysis, surveys and any comparable document prepared in the last three years to analyze the affected market(s), conditions of competition, actual or potential competitors, consumer preferences, brand strength and potential growth or expansion to new products or geographic areas, among others;
(viii) List and copy of collaboration agreements, whether horizontal, vertical or otherwise, between the parties and/or between them and other players operating in the affected markets;
(ix) Statements of the parties whereby they declare that: (i) their intention is to, in good faith, materialize the notified operation; and (ii) the information provided is true, sufficient and complete, and that they understand the administrative and criminal sanctions that may be applied in case of providing false information or hiding information.
All these documents must be submitted in Spanish. However, the FNE may grant a special authorization to submit certain information in English.
The notification requires a signature, which can be made by an attorney designated by the notifying parties. In such case, a power of attorney must be submitted, which needs to be legalized.
Filing fees are fixed by the Law at €1,000. Where a concentration becomes subject to a full investigation (Phase II), the undertakings concerned are bound to pay a fee of €6,000 to the CPC.
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 parties must submit one original, three hard copies and two copies on CD or DVD-ROM of the Form CO and the supporting documentation (such as the transaction documents, audited accounts and relevant internal documents, for example board presentations, surveys, analyses, reports and studies discussing the proposed concentration). The supporting documents shall be submitted in their original language. Where the original language is not one of the official languages of the EU, a translation into the language of the proceeding has to be submitted as well.
The supporting documents shall be either originals or copies of the originals. In the latter case the notifying parties have to certify that they are true and complete.
The following main documents shall be submitted together with the filing form: a copy of the agreement bringing about the concentration; the last annual report and annual accounts.
Depending on the complexity of the transaction and the potential antitrust issues, the FCA may request market studies, economic analysis, statistical reports, internal documents.
In principle, all documents must be provided in French. In practice, the FCA may accept in certain circumstances that the notifying parties submit documents in English or in a French version limited to the excerpts of documents that are relevant for its assessment.
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.
The transaction agreement including appendixes, as well as annual reports and accounts for the last year for all involved parties and transaction documents (including schedules and annexes) must be provided with the notification. However, such documents are not required in a simplified notification. In more complex matters, the NCA will regularly request internal decision-making documents, internal correspondence regarding the transaction, market analysis, etc. The parties must also prepare a non-confidential version of the filing that can be disclosed to third parties. The statutory deadline for the NCA’s phase 1 decision does not commence until such non-confidential version is submitted.
Along with the notification form, the notifying party/parties must provide: the transaction document(s), the balance sheets of the concerned parties for the previous financial year or the most recent annual reports and accounts of the concerned parties, market reports and comparable documents that were specifically prepared with respect to the concentration or the affected markets.
Documents may be filed in original or in photocopy (photocopies must be certified for conformity with the originals by the notifying party/parties). In case of documents drafted in other languages than Romanian, a translation into Romanian by an authorized translator must also be submitted. If such documents are official documents, the translation must also be super-legalised or, as the case may be, bear the apostille set out by the Hague Convention abolishing the requirement of legalisation for foreign public documents.
The notification form must be signed by the legal representative(s) of the notifying party/parties. In case the notification form is signed by proxies of the notifying party/parties, a written power of attorney must be filed along with the notification form.
KN: Merger notification has to be signed by the applicant or its proxy (e.g. its lawyer). Also, each page of the merger notification has to be initialed. In practice, usually the applicant’s lawyers signed the notification based on the power of attorney and there is no need for a direct involvement of the applicant.
In terms of documents and information that are required for the notification, there is a difference between whether a filing qualifies for a “short-form” notification or a “long” notification as explained under the previous answer. The main difference, however, lies in the number of previous years for which the documents and information have to be provided (i.e. three previous years in a “long” notification and a previous year in a “short” notification). Also, the amount of information/documents required, depends on the exact structure of the transaction (e.g. whether it is an acquisition of sole or joint control).
Effectively exists mainly with respect to the information part and the relevant year(s) for which the financial reports should be provided – both with the ‘short-form’ and with the ‘full’ merger filing the following supporting documents need to be submitted:
- registry excerpts of the parties (and their registered subsidiaries in Serbia),
- financial statements of the parties for the year preceding the filing,
- the transactional agreement or other basis for concentration,
- the group structures of the parties to concentration,
- local and worldwide turnover figures for the year preceding the filing,
- the largest suppliers and customers of the parties on the relevant market in Serbia for the year preceding,
- description of the products sold on the relevant market(s) in Serbia in the previous year,
- description of the distribution network on the relevant market(s) in Serbia,
- the largest competitors (and estimates of their market shares) on the relevant market(s) in Serbia,
- estimates of the parties’ market shares on the relevant market(s) in Serbia etc.
Some documents have to be submitted in Serbia as certified copies supplied with an Apostille (e.g. PoA, the SPA) or simple copies (majority of documents). Also, all documents in foreign languages have to be translated into Serbian language by a certified court translator.
There are no specific rules on how recent a document has to be.
In order to avoid subsequent information requests, however, it is advisable that the documents submitted to the Competition Commission are not older than 3 months.
The following supporting documentation, in addition to the prescribed forms, are required to be filed:
- Annual report (if applicable);
- Financial statements;
- Transaction documents;
- Market reports and comparable documents that were specifically prepared with respect to merger;
- Strategic documents (including, but not limited, business plans, marketing documents, minutes, reports, presentations and summaries) prepared for the Boards of Directors of the respective parties regarding the transaction and the affected markets;
- Attestations confirming that all documents in the parties’ possession relating to the proposed transaction have been submitted.
With respect to South African notifications, there is no formalisation of documentation required nor any restriction on how old the document may be.
In respect of signing, the prescribed forms need to be signed by the merging parties or the party’s legal representative, if authorised to do so.
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 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.
The following documents are mandatory, besides the agreement(s) which embody the transaction itself:
a) Copy of the final version of all the contractual instruments, listing the supporting documents submitted;
b) Shareholders’ agreement and non-competition agreement, if there is any;
c) Copy of analysis, reports, studies, inquiries and presentations drafted by any member of the management and fiscal boards, the general shareholders meeting or anyone with similar attributions;
d) Documents that were generated due to the transaction, such as: agreements for supplying imputs, minutes of the meetings related to the transaction; documents related to the IPO -- if any -- sent to the Brazilian Securities and Exchange Commission (CVM).