merger regulation guidelines

For purposes of the procedural reach of premerger notification obligations under Hart-Scott-Rodino, a “merger” potentially includes any acquisition of assets, voting securities, or non-corporate interests (such as partnership interests or limited liability company membership interests) of another person. The FCCPA makes provision for protection of business secrets of parties during all the stages of an inquiry and any person who contrary to an order of the FCCPC prohibiting publication or communication of such information, publishes or communicates same, is liable on conviction to a fine of not less than N1,000,000 (one million Naira), in the case of a person, and not less than N50,000,000 (fifty million Naira) in the case of a body corporate.Under the FCCPA, the process ends with the approval with or without conditions or the prohibition by the FCCPC, and where the decision relates to the Tribunal or the Court of Appeal.It would appear that under the FCCPA, there is no provision to negotiate remedies but it is to be noted that the FCCPC may approve the merger subject to certain conditions. To ensure effective and efficient regulation of competition in the different industries, there was a need for these roles to be separated and handled by independent agencies, which is what the FCCPA intends to put in place.Merger Regulation in the digital economy is an important and unique aspect of competition regulation as countries are beginning to realise that all those commercial activities that are arising from the use of different internet platforms, mobile technology and are characterised by networks raises real competition issues even when the services being provided are ostensibly “free”. And this may be achieved in any manner, including purchase or lease of the shares, an interest or assets of the other undertaking in question, amalgamation or other combination with the other undertaking in question, or a joint venture.Under Section 92(4) and 93 of the FCCPA, small mergers and large mergers are caught transactions (that is transactions that falls within the threshold of notification), and as such are subject to the notification and approval by FCCPA. Notwithstanding the formal protections, commercially sensitive information does sometimes become known as a result of agency communications with the merging parties and with third parties such as customers, suppliers, and competitors.The Hart-Scott-Rodino process in the United States is a clearance process, not an approval process. The choice of expediting mechanisms is highly judgmental, reflecting the insights and experience of counsel.Acquiring and acquired persons are each responsible for filing a notification form containing their respective information.The acquiring person is responsible for paying the HSR filing fee, which currently ranges from $45,000 to $280,000, depending on the size of transaction.

The notification of the merger shall be published within five business days after receipt by FCCPC.The concept of “control” is defined under Section 92(2) and 92(3) of the FCCPA. This is due to the fact that the SEC was overburdened with the pressures of being both a securities and competition regulator, causing undue pressure and unintended inefficiency.

SEC acted as the temporary competition authority and had the mandate to consider the effect of foreign sales on the national market prior to or post-merger. The greatest antitrust concern arises with proposed mergers between direct competitors (horizontal mergers). The government may challenge a certification of substantial compliance if it believes that a party has failed to respond appropriately, and this may delay the start of the second waiting period. The Commission is yet to make any regulation as at the time of this response.See our response to question 7.1 above.

The agencies do not have formal regulations or notices, however, that specify standard terms and conditions.In most instances the parties are permitted to close the merger upon entry of a stipulation (or agreement) to be bound by the terms of a consent settlement that provides for executory remedies, which must be completed in a time frame specified in the consent settlement. It could withdraw its formal approval where, for instance, the remedies were negotiated at the pre-merger notice level. For example, notification at the lowest threshold (currently $90 million) for an acquisition of less than 50 per cent of an issuer’s outstanding voting securities will not enable the acquiring person to acquire a 50 per cent or greater stake, without making another filing, if the second filing is otherwise required.The mere passage of time between successive acquisitions of an issuer’s voting securities may also necessitate an additional filing.

The highlights of the Joint Advisory are as follows: (1) SEC regulations, guidelines and fees which were in existence before the enactment of the FCCPA would continue to apply to all pending/subsequent merger transactions until further notice; (2) all new notifications for mergers and requests for approval of mergers are to be filed at the FCCPC’s office in Abuja or at the SEC/FCCPA Interim Joint Merger Review Desk in Abuja or Lagos; and (3) all applicable fees are to be paid to the FCCPC. The waiting period may be terminated before it expires if the parties request early termination and the transaction raises no antitrust concern that cannot be resolved expeditiously. Various sectoral laws and national security laws do address foreign mergers that are within the scope of their jurisdictional provisions.The federal legislation granting authority for oversight of traditional regulated industries – for example, banking, communications, transportation, and certain utilities – often includes provisions for merger reviews by the sectoral regulator.
Where its jurisdiction is exclusive or primary, the sectoral regulator often receives comments from the FTC or DOJ.The primary substantive merger provision is Section 7 of the Clayton Act, codified at 15 U.S.C. Nigerian law allows for the consequential merger of local affiliates after global completion.

However, such provision is also conspicuously missing in the FCCPA. Indeed, the FCCPC and SEC recently issued a notice referred to as the “Joint Advisory and Guidance on Mergers, Acquisitions & Other Business Combinations Notifications” (“Joint Advisory”) to the effect that both organisations would jointly review all notifications of mergers and other business combinations until further notice.

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