PROCEDURE FOR FILING AND INFORMATION REQUIREMENTS FOR CONSOLIDATION APPLICATIONS |
1. ADMINISTRATIVE REQUIREMENTS| (a) | In submitting the Consolidation Application, the Applicant is required to submit one master copy, 6 photocopies, and one soft copy (in CD-ROM) of the following: | (i) | the Consolidation Application and its supporting documents (including any ancillary agreements which are the subject of the Consolidation Application), with any confidential information in the Consolidation Application or documents clearly identified; | | (ii) | a non-confidential version of the Consolidation Application and its supporting documents, with confidential information removed; and | | (iii) | a separate annex to the non-confidential version of the Consolidation Application or document, identifying the confidential information and furnishing reasons as to why the information should be treated as confidential. |
| | (b) | The soft copies of the Consolidation Application (and the non-confidential version) are to be in Microsoft Word format. Supporting documents accompanying the Consolidation Application must, where possible, be in a format which allows for text to be edited. Non-confidential versions need not be filed if the Applicant is of the view that the relevant Consolidation Application or document can be shared in its entirety with third persons either by publishing them on MDA’s website or through other means. | | (c) | If the Applicants engage legal assistance to file the Consolidation Application on the Applicants’ behalf, MDA should be furnished with a letter of authorisation signed by the Applicants. The Applicants should appoint a joint representative. Where the joint Applicants have appointed separate representatives, the Applicants should explain why a joint representative could not be appointed. |
|
2. APPLICATION PROCEDURE| When submitting a Consolidation Application, Applicants must follow the application procedure set out in this paragraph (the “Application Procedure”). To do so, the Applicants must submit a Consolidation Application and must provide the information specified in the paragraphs below in Appendix 4 of this Code. The structure of an Application will be as follows: |
| The Application must contain a title page setting out the full names of the Applicants, the title “Consolidation Application” and the date of the application. |
| The application must contain a fully detailed table of contents. |
| 2.3 General Contact Information |
| The application must set out the following general contact information: |
| 2.3.1 Summary Information Regarding the Application |
| (a) Please state which of the Applicants is an acquiring person or an acquired person; |
| (b) Please state if the Consolidation is a cash tender offer. If not, please state the mode of payment for the Consolidation; |
| (i) | please state if the Consolidation is a result of bankruptcy or insolvency of one of the Applicants; |
|
| | (ii) | please state if the Consolidation is subject to filing requirements of a local or foreign authority other than MDA. If yes, please state the country and authority to which the filing is made or to be made, and all decisions and directions issued by the local or foreign authorities in respect of the Consolidation; and |
|
| | (iii) | please state whether ancillary restrictions are notified as part of this application. |
|
|
|
| 2.3.2 General Contact Information |
| (a) For each Applicant making the application, the joint representative of the Applicants (where appointed) or separate representatives for the Applicants (where appointed), please provide the following: |
| (i) | full name, address (registered office or principal place of business, where appropriate), telephone and fax numbers, and e-mail address (where available) of the joint or separate representative(s); |
|
| | (ii) | full name, address, telephone and fax numbers, and email address of, and designation or position held by, a contact person; and |
|
| | (iii) | address for service to which documents and, in particular, MDA’s correspondences may be delivered, as well as the full name, telephone and fax numbers, and email address of a person at each address who is authorised to accept service. |
|
|
|
| (i) | indicate if each Applicant is a partnership, sole proprietorship or other unincorporated body trading under a business name; |
|
| | (ii) | provide a brief description of the nature of each Applicant’s business; and |
|
| | (iii) | provide the full name(s) and address(es) of the partners, proprietor(s), or director(s), quoting any reference which should be used. |
|
|
|
| (c) Where any representative(s) has been authorised to act for the Applicants, please indicate clearly whom the representatives represent and in what capacity (e.g. a solicitor). Where separate representatives have been appointed in a joint application, please explain why a joint representative could not be appointed. |
| (d) Where the declaration set out in this Appendix is signed by a solicitor or other representative of the Applicant(s), please provide written proof of that representative’s authority to act on the Applicant(s)’s behalf. The written proof must contain the name and position of the persons granting such authority. |
| 2.4 Summary of the Application |
| The Application must set out a brief summary of the following information: |
| (a) the nature of the Consolidation and other general information; |
| (b) information on markets; |
| (c) information on the groups to which the Applicants belong; and |
| (d) additional information set out in paragraph 2.6 of this Appendix. |
| 2.5 Description, Competitive Impact and Public Interest Statement |
| The Applicants must submit a statement (referred to in this Appendix as the “Statement”) that provides a clear, accurate and comprehensive description of the Consolidation, a good-faith assessment of the likely impact of the Consolidation on competition in any relevant media market, and a discussion of why approval of the Consolidation would serve the public interest. The competitive assessment should generally include, but is not limited to, information as set out below: |
| 2.5.1 General Information |
| (a) Describe the nature of the Consolidation. In doing so, please state: |
| | (ii) | the nature of the Consolidation, for example, whether the Consolidation is an acquisition of sole or joint Control, a full-function joint venture or a contract, or other means of conferring direct or indirect Control; |
|
| | (iii) | the value of the Consolidation (the purchase price or the value of all the assets involved, as the case may be); |
|
| | (iv) | for each of the Applicants and their Affiliates, the relevant media markets and other markets in which they participate and turnover worldwide and in Singapore for the last financial year; |
|
| | (v) | whether the whole or parts of the business of the Applicants are subject to the Consolidation; |
|
| | (vi) | the markets on which the Consolidation will have an impact (including the main reportable media markets as set out in paragraph 2.5.2 of this Appendix); |
|
| | (vii) | a brief explanation of the economic and financial structure of the Consolidation; |
|
| | (viii) | the proposed, expected or past dates of major events designed to bring about the completion of the Consolidation; and |
|
| | (ix) | any efficiencies that would likely result from the Consolidation. |
|
|
|
| (b) Where applicable, please also state: |
| (i) | whether any public offer for the securities of an Applicant by another Applicant has the support of the former’s supervisory boards of management or other representation of that person; |
|
| | (ii) | any financial or other support received from any source (including public authorities) by any of the Applicants, and the nature and amount of this support; and |
|
| | (iii) | the strategic and economic rationale of the Consolidation, and why the Consolidation should be allowed to proceed. |
|
|
|
| 2.5.2 Information on Markets |
| Information on markets should include information on all reportable media markets: |
| 2.5.2.1 Market Definition |
| Identify all “reportable media markets”. A reportable media market comprises a relevant product or geographic media market, as well as plausible alternative relevant product or geographic market(s), on the basis of which: |
| (a) 2 or more of the Applicants and their Affiliates are engaged in business activities in the same relevant market (horizontal relationships); or |
| (b) one or more of the Applicants and their Affiliates are engaged in business activities in a product market which is upstream or downstream of a market in which the Applicants and their Affiliates are engaged, regardless of whether there is or is not any existing supplier and customer relationship between the Applicants and their Affiliates (vertical relationships). |
| 2.5.2.2 Reportable Media Market Information |
| (a) For each reportable media market, please provide: |
| | (i) | an estimate of the total size of the market in terms of sales value (in Singapore dollars) and volume (units)1, for the preceding year. Indicate the basis and sources for the calculations and provide documents, where available, to confirm these calculations; |
|
| 1 The value and volume of a market should reflect output less exports plus imports for the geographic areas under consideration where possible. |
| | | (ii) | the sales in value and volume for the preceding year, as well as an estimate of the market shares, of each of the Applicants. Indicate if there have been significant changes to the sales and market shares for the last 3 years; and |
|
| | | (iii) | an estimate of the market share that the Post-Consolidation Entity is likely to have. |
|
|
|
| (b) Where applicable, please also provide: |
| | (i) | estimates of the market shares in value (and, where appropriate, volume) for the preceding year of the 3 largest competitors, suppliers and Consumers, including the basis for the estimates. Provide the name, address, telephone number, fax number and e-mail address of the head of the legal department (or other person exercising similar functions, and in cases where there is no such person, the chief executive) for these entities; |
|
| | | (ii) | whether the Consolidation could be expected to have an impact on the relevant media market; |
|
| | | (iii) | the level of concentration of the relevant media market and how it has changed over time; |
|
| | | (iv) | the market structure and the extent to which it facilitates unilateral conduct or concerted action by multiple Regulated Persons or Ancillary Media Service Providers; |
|
| | | (v) | information regarding the likelihood that existing market participants or new entrants would respond to a significant and non-transitory price increase by the Post-Consolidation Entity entering the market; and |
|
| | | (vi) | set out the likelihood of Consumers switching in response to a significant and non-transitory price increase (where the Post-Consolidation Entity will be a seller) or the likelihood of sellers switching in response to a significant and non-transitory price decrease (where the Post-Consolidation Entity will be a Consumer). |
|
|
|
| 2.5.3 Optional Information |
| The following information may be included, if applicable, but is optional: |
| 2.5.3.1 Information on Groups to which the Applicant Belongs |
| (a) A list of all persons belonging to the same group to which each Applicant belongs, specifying the nature and means of Control for each person (including any preferential or special rights). Persons belong to the same “group” when one person Controls another or when the persons concerned are under common Control. This list should include all persons Controlling or Controlled by each of the Applicants, directly or indirectly |
| (b) The information sought in paragraph 2.5.3.1(a) of this Appendix may be illustrated by the use of organisation charts or diagrams. Applicants who are unable to submit such information pertaining to the other persons should provide reasons for the inability to do so. |
| 2.5.3.2 Market Information on Groups to which the Applicant Belongs |
| (a) Please provide a list of all persons active in each reportable media market identified in paragraph 2.5.2.1 of this Appendix, that is Controlled, directly or indirectly, by: |
| | (i) | each of the Applicants; and |
|
| | | (ii) | any other persons identified in paragraph 2.5.3.1 of this Appendix; |
|
| | | | specifying the nature and means of Control for each person (including any preferential or special rights). |
|
|
|
| (b) With respect to the Applicants and each person identified in response to paragraph 2.5.3.1 of this Appendix, where applicable, please provide: |
| | (i) | a list of all other persons who participate in each reportable media markets in which persons of the group hold, individually or collectively, 5 percent or more of the voting rights, issued share capital or other securities. In each case, also identify the holder and state the percentage held;each of the Applicants; and |
|
| | | (ii) | for each person, a list of the members of their boards of directors (or equivalent) who are also members of the boards of directors (or equivalent) of any other persons in each reportable media market. In each case, also identify the other persons and the positions held by the members of the boards of directors; and |
|
| | | (iii) | for each person, a list of acquisitions of undertakings in each reportable media market made during the last 3 years. |
|
|
|
| (c) The information sought in paragraph 2.5.3.2(a) of this Appendix may be illustrated by the use of organisation charts or diagrams to provide a better understanding. |
| 2.5.4 Supporting Documents |
| (a) The Applicants must also submit: |
| (i) | if paragraph 2.3.2(c) of this Appendix applies, written proof of the representative’s authority to act on the Applicant(s)’ behalf; |
|
| | (ii) | copies of the final or most recent version of all documents bringing about the Consolidation, whether by agreement between the Applicants, acquisition of a Controlling interest or a public bid; |
|
| | (iii) | copies of the most recent annual report and accounts (or equivalent for unincorporated bodies) or audited financial statements for the current and previous 2 years for all the Applicants; and |
|
| | (iv) | copies of all business plans for each Applicant for the current year and the preceding 5 years which should include all financial projections. |
|
|
|
| (b) Where applicable, the Applicants must also submit: |
| (i) | in the case of a public bid, a copy of the offer document. If it is unavailable at the time of notification, it should be submitted as soon as possible and not later than when it is posted to shareholders; |
|
| | (ii) | copies of any supporting document that would assist MDA in assessing the likely competitive effect of the Consolidation which, at a minimum, must include copies of all analyses, reports, studies, surveys, or any comparable documents, prepared by or for any member(s) of the board of directors (or equivalent), other person(s) exercising similar functions (or to whom such functions have been delegated or entrusted), or the shareholders’ meeting, for the purpose of assessing or analysing the Consolidation with respect to market shares, competitive conditions, competitors (actual and potential), the rationale of the Consolidation, potential for sales growth or expansion into other product or geographic markets, and general market conditions; and a chart indicating each Applicant’s Affiliates and the relevant ownership interests. For each of these documents, indicate (if not contained in the document itself) the date of preparation and, the name and title of each person who prepared the document; and |
|
| | (iii) | copies of any agreement that, while not directly addressing the Consolidation, are an integral part of the Consolidation (such as covenants not to compete or licensing agreements), or that are necessary to fully assess the likely competitive impact of the Consolidation. |
|
|
|
| (c) Where applicable, the Applicants should also indicate any situation in which the ownership interest grants the holder a special or preferential right. Applicants should also indicate any pending changes in the ownership structure of either Applicant in addition to the change that is the subject of their Application. |
| (d) Where applicable, the Applicants should also indicate whether they wish to propose any possible conditions (such as partial divestiture or the imposition of behavioural safeguards) that could reduce any potential adverse competitive impact of the Consolidation. If the Applicants choose to propose such conditions, they should provide a complete description of the proposed conditions and an assessment of why such conditions would be adequate to address any competitive concern that might arise from the Consolidation. |
| 2.6 Additional Information to be Provided (Where Applicable) |
| 2.6.1 Ancillary Restrictions |
| (a) The following information should be provided in regard to ancillary restrictions, where applicable: |
| (i) | details of each ancillary restriction; |
|
| | (ii) | an explanation as to why each ancillary restriction is directly related and necessary to the implementation of the merger; and |
|
| | (iii) | an explanation of why each ancillary restriction may contravene any part of this Code. |
|
|
|
| 2.6.2 Cooperative Effects of a Joint Venture (To be Completed if the Consolidation is a Joint Venture) |
| (a) Please state whether 2 or more parent companies retain activities in the same market as the joint venture or in a market which is upstream or downstream from that of the joint venture, or in a neighbouring market closely related to this market. |
| (b) Where applicable, provide for each of the markets referred to: |
| (i) | the activities retained by the parents; |
|
| | (ii) | the turnover of each parent in the preceding financial year and the expected turnover of the joint venture; and |
|
| | (iii) | the market share of each parent. |
|
|
|
| (c) Where applicable, please provide reasons why, in your view, the creation of the joint venture does not lead to an agreement that restricts or distorts competition under the Code. |
| 2.6.3 Any Other Information |
| Please provide any other information which may be relevant to the Consolidation Application. Supporting documents should be included, where relevant. |
| 2.7 Duty to Update Pending Consolidation Applications to Reflect Material Changes |
| During the period between the date on which the Applicants submit the Consolidation Application and the date on which MDA issues its decision (referred to as the “Consolidation Review Period”), the Applicants must promptly inform MDA, in writing, of any new or different fact that is reasonably likely to have a material impact on MDA’s consideration of the Consolidation Application. In the event that MDA determines that the Applicants’ subsequent submission has substantially altered the terms of the Consolidation, MDA may require the Applicants to withdraw the pending Consolidation Application and file a new Consolidation Application. The Applicants will not be entitled to a refund of the Consolidation Application Fee and will be required to pay an additional Consolidation Application Fee at the time they file the new Consolidation Application. |
| 2.8 Applicants Required to Make Reasonable and Diligent Efforts |
| The Applicants should make reasonable and diligent efforts to collect all necessary information to fulfil the above criteria. The applicants should note that MDA may, at its discretion, make the Statement available to the public. If the Statement contains proprietary or commercially sensitive information, the Applicants should put such information in a separate appendix and request for confidential treatment of such information pursuant to paragraph 10.8 of this Code, pending a written explanation as to why the information should be treated as confidential. |
|
3. DECLARATION| The following declaration should be included in all Consolidation Applications: |
| “Under section 57 of the MDA Act (Cap. 172), it is an offence, punishable by a fine or imprisonment or both to provide information which is false or misleading in a material particular if the undertaking or person providing it knows that it is false or misleading, or is reckless as to whether it is. If the undertaking or person is a body corporate, its officers may be guilty of an offence under section 57 of the MDA Act. |
| The undersigned declare and confirm that all information given in this Form and all pages annexed hereto are correct to the best of their knowledge and belief, and that all estimates are identified as such and are their best estimates based on the underlying facts. |
| Signature(s) _____________________ |
| Name(s) (in block capitals): |
| [S 380/2011 wef 02/07/2011] |
|
|