INDIA Law and Practice Contributed by: Anshuman Sakle, Anisha Chand, Pranjal Prateek and Soham Banerjee, Khaitan & Co
2.15 Circumstances Where Implementation Before Clearance Is Permitted The suspensory regime of the CCI is global in nature. Therefore, awaiting CCI approval, the Indian limb of a transaction cannot be suspended while the global legs are closed. Based on amendments brought forth in 2024 to the Competition Act and the Combination Regulations, suspensory effects are relaxed for on-market trans - actions. Accordingly, transacting parties can con - summate an on-market transaction and seek a CCI approval afterwards, subject to certain conditions. These include: • the parties must notify the transaction within 30 calendar days from the date of initial acquisition; • parties must refrain from exercising voting rights in relation to the acquired shares (except in specific matters like liquidation/insolvency); and • parties must exercise only economic benefits (divi - dends, bonus shares, stock splits) associated with the acquired shares. 3. Procedure: Notification to Clearance 3.1 Deadlines for Notification In an acquisition, the filing can be made any time after the trigger document has been executed. In a merger or amalgamation, the filing can be made any time after the boards of the merging parties have passed the relevant resolution. In all cases, the filing must be made before the trans - action is consummated, whether in whole or in part. 3.2 Type of Agreement Required Prior to Notification Executed transaction documents (in an acquisition) or board resolution (in a merger/amalgamation) are mandatory prerequisites to notifying a transaction to the CCI. However, there have been a few instances in the past where the CCI has commenced its review of a transaction on the basis of a binding memorandum of understanding or letter of agreement.
3.3 Filing Fees Under the Indian merger control regime, a notifica - tion to the CCI is ordinarily made in Form I. However, a merger notice will have to be filed in Form II if the combined market share of the acquirer group and the target in any horizontally overlapping market exceeds 15% or if the individual or combined market share in any vertically overlapping market exceeds 25%. The filing fees for a Form I are INR3 million (approxi - mately USD31,370) and for a Form II are INR9 million (approximately USD94,112). A Form II requires more extensive information as compared to a Form I. 3.4 Parties Responsible for Filing For a notifiable acquisition, the acquirer is obligated to file the merger notice to secure the CCI approval. For a notifiable merger or amalgamation, all merging/ amalgamating parties are required to file the merger notice to secure the CCI approval. Where a notifiable transaction has interconnected transactions, acquirers or merging/amalgamating par - ties to the interconnected steps may also be required to be notifying parties. 3.5 Information Included in a Filing A filing before the CCI is required to be made in Eng - lish. Across Form I (short form) and Form II (long form), the following information is typically required: • basic details of the parties and their authorised representatives; • explanation regarding how the notification thresh - olds are breached; • description of the transaction, including details of rights being acquired; • economic/strategic rationale for the transaction; • details of approvals required from other antitrust regulators across jurisdictions; • details of the activities of the parties (their group entities and affiliates); • identification of overlaps (whether horizontal, verti - cal or complementary) between the parties; • if there are overlaps, market-facing information (regarding market sizes, market shares, competi - tors) for each identified relevant market;
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