NIGERIA Law and Practice Contributed by: Chiagozie Hilary-Nwokonko, Chukwuyere Ebere Izuogu and Priscilla Bidemi Ben-Okoh, Streamsowers & Köhn
the combined turnover of the merging companies in the preceding financial year (whichever is higher). The applicable percentages are: • 0.45% of the first NGN500 million; • 0.45% of the next NGN500 million; and • 0.35% of any sum thereafter. The relevant turnover for calculating the applicable fees for mergers involving foreign entities with a local component is the turnover based on or attributable to the business of or in the local component in Nigeria. There are no deadlines for payments, but a merger notification will not be considered satisfactory if no payments are made. 3.4 Parties Responsible for Filing The primary acquiring undertaking and the primary target undertaking, collectively referred to as the merger parties, are responsible for filing the merger application at the FCCPC, although it is common for such organisations to instruct local counsel to make such filings and notifications on their behalf. 3.5 Information Included in a Filing The FCCPC requires the submission of copies of specific internal documents prepared or received by any member(s) of the board of management, board of directors, supervisory board or shareholders’ meeting, or other individuals with similar functions or to whom such functions have been delegated or entrusted. Such documents include minutes of meetings where the transaction was discussed and reports, surveys, studies, presentations and related documents that assess or analyse the merger in terms of its rationale, potential for sales growth, market shares, competitive conditions, competitors (actual and potential), expan - sion into other markets, and general market condi - tions. Analyses, reports, studies, surveys and related docu - ments from the last two years that assess the affect - ed market(s) – including market shares, competitors (actual and potential), competitive conditions and potential for sales growth or expansion into other mar - kets – should also be submitted. In the case of a full
merger, the most recent business plan of both merging parties should be included. Lastly, the FCCPC requires the information provided to be comprehensive, factual, detailed and translated into English (Nigeria’s official language) before sub - mission. 3.6 Penalties/Consequences of Incomplete or Inaccurate Notification The FCCPA does not impose penalties for submit - ting an incomplete merger notification; however, the FCCPC will treat such submissions as deficient and decline to treat the filing as complete for the purposes of commencing or continuing its substantive review. In such circumstances, the applicable review timelines may be suspended or remain in abeyance pending the submission of all required information, documents, and supporting materials necessary for the FCCPC’s assessment of the transaction. The FCCPC can revoke its decision to approve or may conditionally approve a merger where the application was based on incorrect information supplied by the merging parties, subject to the provisions of Section 99 1 (a) of the FCCPA. It can also prohibit the merger in its entirety. Subject to Section 112 of the FCCPA, an undertaking that gives the FCCPC or an authorised officer of the FCCPC any information that the undertaking knows to be false or misleading commits an offence, leading to the following penalties: • where the undertaking is a natural person: liabil - ity on conviction to imprisonment for a term not exceeding two years or to a fine not exceeding NGN10 million, or both; and • where the undertaking is a body corporate: liabil - ity on conviction to a fine not exceeding 10% of its turnover in the preceding business year, and each director of the entity is liable to be proceeded against and, on conviction, dealt with as a natural person. In addition, the appointed legal representative of a merger party is required to submit a sworn decla - ration attesting that the information provided in the
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