NAMIBIA Law and Practice Contributed by: James Smith and Daneale Beukes, Engling, Stritter & Partners
• firstly, statutory forms set out in a prescribed for - mat in the Rules, including: (a) Form 38 – Schedule 1 – outlining the impact the proposed transaction will have on employ - ment; (b) Form 39 – Schedules 2 to 5 – identification document, outlining information about the party such as annual turnover, assets, owners and controllers of the undertaking, the market in which the undertaking operates, what goods, products or services are offered and where these goods, products or services are offered, market shares in respect of products, and rela - tionships between the parties; (c) Form 38 and Form 39 – certifying the accuracy of the filing; and (d) affidavits from representatives of the target and acquiring undertakings confirming that information relating to the transaction has been provided and giving reasons as to why certain documents are not provided; • secondly, a detailed joint competitiveness report outlining the transaction, describing the parties and their activities, the rationale behind the transaction, the market in which the parties operate (defining a product and geographic market), the market shares of the acquirer and target in the relevant market, and the effect that the transaction would have on the market if it were to proceed both from a com - petitive aspect and from a public interest aspect; and • thirdly, supporting documents to accompany the merger notification including: (a) a group structure or organogram; (b) annual reports or financial statements of the immediately preceding financial year; (c) the transaction documents, such as a sale of shares or merger agreement; (d) minutes, reports, presentations and summaries prepared for the boards of directors regarding the transaction; (e) the rationale for the transaction; (f) the estimated market shares; (g) details of the five biggest competitors within the jurisdiction of the target and acquiring undertakings; (h) details of the five biggest customers of the target and acquiring undertakings by turnover;
and (i) a business plan, if available. 3.6 Penalties/Consequences of Incomplete or Inaccurate Notification There are no penalties for an incomplete notification per se; however, the NaCC will not consider a merger notification which is incomplete. If a notifying party is found to have provided materi - ally incorrect or misleading information, Section 48 of the Competition Act empowers the NaCC to revoke a decision approving the implementation of a proposed merger if the approval was based on such materially incorrect or misleading information. In terms of Section 63 (d) read with Section 64 (c), a person convicted of knowingly providing false information to the NaCC is liable to a fine of up to NAD20,000 (approximately USD1,205), a prison sen - tence of up to one year, or both. 3.7 Review Process The phases of review are set out in Sections 44 (2) and 45 of the Competition Act. The NaCC has an initial period of 30 calendar days after receipt of the filing to make a determination. The NaCC may within the initial period request further information from the parties, thereby extending the determination period by a further 30 days from the date of receipt of the requested information. Thereafter, the NaCC may extend the period for deter - mination further for a period not exceeding 60 days if it is of the view that, owing to the complexity of the matter, such an extension is warranted. If the NaCC is of the view that there are public interest considerations, it may call a stakeholders’ conference in terms of Section 46 of the Competition Act whereby interested stakeholders can make submissions in a public forum.
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