|Franco Aristotle G Larcina||Arlene M Maneja|
On August 31 2016, the Philippine Competition Commission (PCC) issued a new merger notification form, which applies to notification submissions from September 1 2016. Below are the noteworthy new requirements.
Firstly, the so-called ultimate parent entity (UPE) should identify all entities directly or indirectly controlled by the UPE (the notifying group). Further, it must provide the worldwide operations of the notifying group, the worldwide sales in the most recent year and a diagram or chart describing the relationship between the UPE, the acquiring or acquired entity, and each entity identified before and after the proposed transaction.
Secondly, the filing UPE should submit:
- all non-compete agreements (apart from those executed to implement the transaction); and
- any confidential information memoranda, bankers' books and other third-party consultant materials and synergy documents related to the transaction with the date on which the document was prepared.
Thirdly, the acquiring group should identify prior acquisitions over the past five years, and contemporaneous or concurrent related transactions, and submit an abstract of the proposed transaction along with a description of the parties. This will be posted on the PCC's website upon the parties receiving the PCC's decision in phase one.
Further, on September 16 2016, the PCC issued two clarificatory notes relating to the merger control regime. The first of these clarifies the compulsory notification requirement prior to the execution of definitive agreements and the possibility of a notification being made based on a binding preliminary agreement.
The second note clarifies that an internal restructuring within a group of companies is exempt from notification if the acquiring and acquired entities have the same UPE. Notwithstanding this exemption, mergers or acquisitions are not considered purely internal. Therefore, they do not qualify for the exemption if the restructuring leads to a change of control.
Franco Aristotle G. Larcina and Arlene M. Maneja