NEW ZEALAND Law and Practice Contributed by: Sarah Keene, Jordan Cox, Antonia Horrocks and Victoria Fowler, Webb Henderson
tions. Once a transaction has been completed, the only option for the NZCC is to sue. If parties complete a transaction while a clearance or authorisation application is still under considera - tion but before approval has been granted, the NZCC will treat the application as withdrawn. However, the NZCC would typically continue its investigation and, if not satisfied that the transaction would not sub - stantially lessen competition, may seek pecuniary penalties and potentially pursue orders to unwind the transaction. 2.13 Penalties for the Implementation of a Transaction Before Clearance There are no penalties for implementation prior to clearance. However, if the NZCC investigates a merg - er and determines it was likely to substantially lessen competition in any market it will seek penalties in the High Court, and this has occurred recently. For exam - ple, in 2022 a NZD1.54 million penalty was imposed on Objective Corporation Limited for proceeding with an anti-competitive merger in the building consent software industry. 2.14 Exceptions to Suspensive Effect The Commerce Act does not include a suspensory regime. 2.15 Circumstances Where Implementation Before Clearance Is Permitted There are no circumstances in which the NZCC will permit closing before clearance. The NZCC loses jurisdiction to grant clearance if the transaction closes. 3. Procedure: Notification to Clearance 3.1 Deadlines for Notification New Zealand operates a voluntary regime. As such, there are no deadlines for notification. However, the NZCC may only consider clearance or authorisation applications in respect of proposed acquisitions. Once a transaction has completed, the parties can no longer apply for clearance or authorisation. For parties considering notification, the length of the NZCC process should be taken into account when
deciding when to file. The first phase is 40 working days and there is currently no statutory timeframe for the second phase of review. There are proposals before Parliament to introduce statutory timeframes for this. 3.2 Type of Agreement Required Prior to Notification The NZCC will engage in pre-notification discussions if it is satisfied that a potential applicant has a good- faith intention to proceed with a merger. No formal agreement is needed at this stage. It will review a draft merger notification form and indicate what fur - ther material it requires, in order to deem the filing complete and register it. For filing, the NZCC will require transaction docu - mentation. Formal filings cannot be made based on a good-faith intention to reach an agreement, given the uncertainty as to whether this intention will proceed The fee for filing a clearance application is NZD3,686 (inclusive of taxes) and the fee for filing a merger authorisation application is NZD36,800 (inclusive of taxes). 3.4 Parties Responsible for Filing The acquirer of the assets or shares is responsible for filing the application for clearance or authorisation in respect of the proposed merger. 3.5 Information Included in a Filing Filings with the NZCC must include both substantive information about the merger and supporting docu - mentary evidence. The level of detail required will depend on the complexity of the transaction and the competitive issues it raises, and the NZCC encour - ages pre-notification engagement to calibrate what is sufficient for a given filing to be registered. Transaction Documents Applicants must provide copies of the final or most recent versions of all documents bringing about the merger, including sale and purchase agreements, con - tracts, ancillary agreements and offer documents. to a transaction. 3.3 Filing Fees
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