Getting merger control clearances for corporate deals

Getting Merger Control Clearances for Corporate Deals: EU and multi-jurisdictional merger control in practice

A one-day CPD Course organised by the UCL Centre for Law, Economics and Society

Speakers

• Kyriakos Fountoukakos (Herbert Smith Freehills LLP)
• Peter Rowland  (Herbert Smith Freehills LLP)
• Nick Root  (Herbert Smith Freehills LLP)

About the course

Merger control is an essential part of a competition practitioner’s every day work and is also of importance to other advisors (corporate lawyers, bankers) involved in transactions. It needs to be considered in every corporate deal including private acquisitions of whole companies, shares or assets, public takeover bids, minority investments in companies and joint venture agreements. This is because merger control will impact key aspects of a transaction: the transaction time table (“when can I close the deal?”) and even the “deliverability” of a transaction (“can I do the deal?” “Will remedies be imposed?”).

More than 100 countries around the world now have merger control laws. Most of them, like the EU regime, are “mandatory” and “suspensory” regimes: a filing must be made and the deal cannot close before clearance has been received from the relevant regulators.

Despite the central importance of merger control for competition lawyers, corporate lawyers, investment bankers and businesses, merger control is a topic that is often not taught in detail and from a hands-on perspective in undergraduate or even post-graduate courses.

With the aid of a practical case study, this course will cover the key basic aspects of what an advisor needs to know from a practical perspective to:

• analyse corporate transactions to decide whether a transaction triggers a merger filing requirement with the EU and/or in other jurisdictions around the world
• deal with timelines of each relevant jurisdiction as well as consequences for failure to file (fines, unwinding the transaction etc.) to assess exact possible impact on the transaction
• negotiate corporate documentation such as conditions precedent, cooperation between purchaser and seller in making filings, and conduct pre-completion. The course will also cover other aspects of the corporate documentation relevant to competition law such as exchange of information in the due diligence process (e.g. Non-Disclosure Agreements and clean team processes), non-compete clauses, warranties and indemnities
• prepare an EU merger control filing on Form CO (information needed and process, practical tips)
• guide clients through the procedures for clearance (emphasis on the EU procedure).

The key focus of the course will be on jurisdictional and procedural issues with only a brief discussion of substantive issues (how regulators review a merger from a substantive perspective). The course will aim to give participants the practical experience needed to understand and/or work on merger control aspects of a corporate deal, by simulating as closely as possible the work that a practitioner would undertake in a live transaction.

Who should attend

The course is mainly designed associates, trainees or prospective trainees wishing to gain practical experience which they can apply in a post with an international law firm doing merger control work. It is also suitable for post-graduate students on competition law or mergers and acquisitions courses.

Attenders need not have day-to-day experience of corporate deals or merger control, however some understanding (academic or practical) of transaction agreements would be useful.

The course is split into two distinct sessions which can be attended independently:

• The Morning Sessions:  covering where to file and the consequences, and negotiating the corporate documents; and
• The Afternoon Session: covering drafting filings and procedural aspects of the process.

Programme

08:45 Registration
09.15 Introduction to the course and outline of the case study

09:30 Session 1: Where to file and consequences

• Multi-jurisdictional analysis – deciding where a merger filing is triggered
• Impact on the transaction – timelines and consequences for failure to file

11:00 Coffee

11:30 Session 2: Negotiating the corporate documents

• Merger control aspects – conditions precedent, cooperation between purchaser and seller in making filings, their conduct pre-completion
• Competition law aspects – exchange of information in the due diligence process (e.g. Non-Disclosure Agreements and clean team processes), non-compete clauses, warranties and indemnities

13:00 Lunch

14:00 Session 3: Drafting the filings; procedural aspects

• Information needed and process, practical tips for drafting filings with a focus on the EU “Form CO”
• Guiding clients through the procedures for clearance, with a focus on the EU procedure
• Brief overview of how regulators conduct a substantive review

16:00 Course ends

About the tutors

The course has been designed, and will be run, by Kyriakos Fountoukakos, a partner at the Brussels office of Herbert Smith Freehills LLP. Kyriakos is a competition law specialist and deals with all aspects of EU and UK competition law including merger control, cartels, antitrust investigations and advice, distribution agreements, dominance and competition litigation before the EU courts.

In the merger control area, Kyriakos is an expert in advising international clients in obtaining clearances from the EU and national regulators around the world. He has particular expertise through his background as an EU official, having held positions as a European Commission official at DG Competition’s Merger Task Force and then as a Référendaire (Legal Assistant) in the cabinet of the President of the General Court of the EU.

While at the Commission, Kyriakos dealt with a number of high profile merger transactions and was part of the team that drafted the current Merger Regulation and accompanying notices.Kyriakos is acknowledged as a leading competition law expert in major legal directories including Chambers and Partners and the International Who’s Who of Competition Lawyers and Economists. He was selected as one of 40 top competition lawyers under the age of 40 by a Global Competition Review survey.

Kyriakos is an officer of the IBA’s Antitrust Committee. He is co-editor of the mergers chapter of Jones & Van der Woude’s “EU Competition Law Handbook”; Member of the editorial advisory board of Competition Policy International and contributor to e-competitions.

Key merger control credentials

• Cutrale and Safra on obtaining EU and other merger control clearances for their acquisition of Chiquita; AbbVie on obtaining EU and other merger control clearances for its (now aborted) proposed acquisition of Shire plc; BSkyB on obtaining EU merger control clearance for its proposed acquisition of Sky Deutschland and Sky Italia from News Corp; Time Warner on obtaining EU merger control clearance for its acquisition of a controlling stake in CME (a large Central and Eastern Europe broadcaster) ; Arriva plc on obtaining EU merger clearance for the £1.585 billion public takeover offer by Deutsche Bahn (Phase I clearance with remedies); Stanley Black and Decker Stanley Works on obtaining EU Phase I merger clearance and clearances from authorities around the world for its US$4.5 billion acquisition of Black & Decker

Kyriakos will be assisted by Peter Rowland and Nick Root, Senior Associates from the Herbert Smith Freehills team. Both are UK-qualified solicitors with significant experience of advising clients on competition law, in particular in relation to merger control:

• Peter Rowland has advised international clients on major transactions, including Time Warner, SINOPEC, INEOS, BASF, Reckitt Benckiser, Boots, and Punch Taverns. In the last year Peter has advised Sky on its acquisition of Sky Deutschland and Sky Italia; Cutrale and Safra on their acquisition of Chiquita; and Arrow Electronics on its bid for Data Modul AG.
• Nick Root has provided merger control advice to major clients across a range of industries including, in particular, the broadcasting, telecoms, and aviation sectors. In particular, he advised Sky on its acquisition of Sky Deutschland and Sky Italia, Virgin Atlantic on aspects of its transatlantic joint venture with Delta Airlines and Telefónica UK on its network sharing joint venture with Vodafone UK.