KUWAIT Law and Practice Contributed by: Alex Saleh, Asad Ahmad, Khaled Al Makhezeem and Liana Rashid, GLA & Company
3. Procedure: Notification to Clearance 3.1 Deadlines for Notification An application must be filed at least 60 days from the date of the contract or agreement regarding the transaction. 3.2 Type of Agreement Required Prior to Notification No binding agreement is required before notification. It is sufficient for parties to file on the basis of a less formal agreement, such as a letter of intent, memoran - dum of understanding or a good-faith intent to reach an agreement. 3.3 Filing Fees There are filing fees and applications must be accom - panied by a receipt of payment of a fee equal to the lesser of: • one-tenth (0.1%) of the paid-up capital of both par - ties to the economic concentration; or • of the combined assets of both parties in Kuwait, whichever is less and not exceeding KWD100,000. It is worth noting that the filing fees cannot be zero. 3.4 Parties Responsible for Filing Persons directly involved in the economic concentra - tion must submit an application to the Kuwait CPA. These are typically the parties to the transaction agreement. Legal counsel usually handles the filing procedures on behalf of their clients using powers of attorney. 3.5 Information Included in a Filing An application requires considerable information and detail about the entities involved in the transaction and the subsequent financial consequences. An applica - tion requires the following information to be included (to the extent it is available and appropriate). • An asset appraiser’s report indicated that it belongs to one of the auditing offices approved by the CMA, with the relevant payable fee included (see 3.3 Filing Fees ). However, this will only be required if the parties choose to submit filing fees based on their combined assets in Kuwait.
• The memorandum of association, articles of association, commercial register and commercial licences of the parties to the economic concentra - tion. • The names of the board members of each of the parties to the concentration or their legal repre - sentatives. • Financial statements for the last two fiscal years for all relevant persons in the economic concentra - tion’s operation and their branches. • A copy of the contract executed or in draft form and any other documents of a public or private offering and information on the number of shares or assets that will be acquired. • A report containing the economic details of the proposed transaction. • Fully completing the economic concentration appli - cation, which must include: (a) information about the concentration parties: (i) the names of the parties of the concen - tration operation, memorandum of as - sociation, articles of association (if any), commercial licences and the commercial register; (ii) the activity of the parties in the concentra - tion operation; (iii) the addresses, phone numbers and email addresses of the parties of the concentra - tion operation; (iv) the name, title, copy of ID, phone number and email address of the liaison officer for the parties of the concentration; (v) the capital; (vi) the most important customers and their percentages in the market; (vii) the volume, value and percentage of sales in the market; and (viii) a description of competitors and their shares in the market; (b) data of the concentration operation: (i) the type of transaction (ie, merger, acquisi - tion or joint venture); (ii) a description of whether the transaction relates to all or some parts of the parties to the economic concentration; (iii) a brief explanation of the economic and financial structure of the economic con - centration;
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