JAPAN Law and Practice Contributed by: Tsuyoshi Ikeda, Aya Yasui, Takuya Ohata and Kohei Kohara, Ikeda & Someya
3.2 Type of Agreement Required Prior to Notification No definitive agreement binding the parties is required prior to the notification. The parties can notify the JFTC on the basis of an agreement at an earlier stage, such as by a letter of intent or memorandum of under - standing. The JFTC even regularly accepts filings with less formal agreements, but, in such cases, it requests a notifying party to submit a draft or other documents indicating that the parties have a good-faith inten - tion to consummate the transaction. In such cases, the notifying party needs to provide the JFTC with a signed binding agreement as soon as said agreement is executed. 3.3 Filing Fees There are no filing fees. 3.4 Parties Responsible for Filing In share acquisitions and business/asset transfers, the acquiring party is responsible for filing. In the other types of transactions noted in 2.3 Types of Transac- tions , all the parties are obliged to jointly file a noti - fication. 3.5 Information Included in a Filing To file a notification with the JFTC, a company must comply with the prescribed format, which can be downloaded from the JFTC’s website. It should be noted that different forms are set out for different types of transactions. The notification form and the required materials to be attached must be completed in Japanese, while summary translations are accepted in general regarding additional information requested from the JFTC on a voluntary basis. The information to be included in the notification is as follows: • a brief explanation of the purpose, background and method of the transaction; • descriptions of the notifying company group, such as domestic sales, assets and the major business of each company involved; • high-level market information, including types of products or services subject to horizontal overlap or vertical relationships between the parties; and
shares of a target company in this way is required to file a notification prior to implementation. 2.14 Exceptions to Suspensive Effect There is no exception to the suspensive effect; it is not permissible to seek a waiver or derogate from the regulation. Meanwhile, because a notification can be filed before a definitive agreement is executed, the related company will be able to consummate a tender offer bid, for instance, by filing a notification 30 days prior to the consummation of the bidding process. Furthermore, the JFTC can shorten the period of sus - pensive effect in response to a paper-based request from the notifying party when it is appropriate to do so. 2.15 Circumstances Where Implementation Before Clearance Is Permitted Although the related parties can theoretically imple - ment transactions after the statutory 30-day waiting period, they tend not to implement the transactions in practice before the subsequent review (if any) is completed. Even under a pressing schedule in the case of foreign- to-foreign mergers, the JFTC would not permit an implementation of the transaction before clearance, implying the possibility of filing an urgent injunction order. It seems to be technically possible for the par - ties to propose a carve-out agreement; nevertheless, as far as is known, there has been no case in which the JFTC agreed to such a proposal. 3. Procedure: Notification to Clearance 3.1 Deadlines for Notification There is no deadline for notification. However, taking into account the 30-day statutory waiting period, a notification must be filed with the JFTC at least 30 days prior to the completion of the transaction (see 3.10 Accelerated Procedure ). The notification can be submitted even before a binding agreement between the parties is made.
359 CHAMBERS.COM
Powered by FlippingBook