Everybody Wants to Rule Your Deal – A Practical Guide to International Merger Control

1. Everybody Wants to Rule Your Deal – A Practical Guide to International Merger Control Dave Anderson Partner, Berwin Leighton Paisner LLP Brussels 9 October, 2007 David.Anderson@blplaw.com

3. Initial questions… • Is everybody trying to rule my deal? • Why is everybody trying to rule my deal? • Who is trying to rule my deal? • Jurisdiction • What do we have to tell them? • Notification • How do I deal with all of these bodies trying to rule my deal? • Process and timing

4. Agenda for today • Merger regimes worldwide – common features • Around the world tour of major regimes – EMEA, Asia-Pacific, Americas • Handling international merger control • Where: jurisdictional information needed/filing decisions • What: notification requirements • How & when: process and timing • Q & A • Reception

5. Merger control regimes – common features • Jurisdiction – thresholds & exceptions • Notification – contacts & forms (Brussels effect) • Buyer usually files/responsible for filing • Fees • Suspension of closing/implementation • Investigations • Phase I/phase II and duration • clear/block/change deals • unwind, divestments, other commitments • Powers - failure to file on time, failure to reply to information requests, complete without clearance • Appeals

6. The good, the ok and the ugly • Around the world in minutes • Jurisdictional thresholds • Procedure • EMEA, Asia-Pacific, Americas • The ICN • Guidelines and Recommended Practices • Training officials

7. EMEA (1) • EC Merger Regulation – European Commission • EU Member States

8. EMEA (2) • Switzerland • Israel • Russia • South Africa • Turkey • Ukraine

9. Asia-Pacific • Japan • Korea • Australia and New Zealand • Welcome to the club • China – New Anti-monopoly law – comes into force 1 August, 2008 • India – New Competition Act due to come into force by mid-2008 – including mandatory merger notification • Singapore – voluntary; market share tests

10. The Americas • USA • Canada • Mexico • Brazil

11. More good, less ugly – the ICN effect • ICN Guidelines and Recommended Practices on mergers – major multilateral milestone • Reform successes – e.g., Belgium, Brazil, Czech, Estonia, Finland, Greece, US, Korea • Overall RP implementation • 2004 – less than 10% of ICN members had made changes • 2006 – 50% of ICN members with merger control regimes had made changes; seven planning changes • Major jurisdictions are leading by example – US, EC, Brazil • Peer pressure • Training new/young agencies/officials

12. Your deal – practical guide • Where: filing decisions • What: notification requirements • How & when: process and timing • Substantive assessment • market power • public interest

13. Where - jurisdiction • Deal-type/concentration analysis • Mergers, acquisitions, disposals • Watch - JVs, minority stakes, assets, outsourcing • Thresholds • Turnover – main tool • Market share • Asset value • Exceptions and special sectors • Buyer v.s. seller

14. Where - turnover • Calculation - general rules • Gross revenue (not profit) • Acquirer - “group” revenue • Target - only that part being sold • Geographic allocation • Main rule - location of customer • Last financial year • Adjust for post-year end acquisitions/disposals • Special cases – financial/insurance sectors • Brussels rules used most often • Consider maintaining turnover information for merger control purposes

15. Where - market share • It’s a bit early isn’t it? • Yes, but… • Approx. 25 jurisdictions still use market share for establishing jurisdiction • Strong lobby from ICN and businesses to remove • National market or relevant market? • Portugal v.s. Brazil • Aggregation needed? • Spain v.s. UK • ICN effect – Greece, Czech, Brazil, Slovenia, Portugal

16. Where - assessing jurisdiction • Assessment boxes • Box 1 - straightforward yes/no (and voluntary/mandatory) • Box 2 - unclear – more information required? • Box 3 - technical requirement – but candidate for not filing? • Box 3 – candidates for not filing • “We may have to file where? Are you crazy?” • Possible factors in considering taking a view: • limited/no effects: considering levels of local sales, local assets and local overlap • local sanctions/powers • aggressiveness of agency • risk tolerance • illegitimate exercise of jurisdiction – international law • Appointing coordinating outside counsel to manage jurisdictional assessment and notification process

17. What – notification information • Deal details • Parties’ details/turnover/subsidiaries • Internal documents assessing deal • Substantive information • Relevant markets • Market shares – parties and competitors • “Story telling” – e.g., entry barriers, buyer power • Top customer, supplier, competitor contact details • Power of attorney/ translations/ signatures/ authenticated copies • Pushing back when needed • Some regimes focus on form not substance • The weird and wacky – when to go with it, when not to

18. How – timing tips • Building merger control timing into deal timing • Preparation of filing • Pre-notification contacts/drafts • Suspension of closing and clock stopping • Contract – conditions/drop dead dates • Getting the clocks running • How early can we file? • How early do we have to file – filing deadline jurisdictions • Priority timing • filing deadline jurisdictions • substantive “lead” jurisdictions • longest investigation periods • Is there a short-form/simplified procedure?

19. How – process tips • Internal team – BD/marketing/strategy • Notification information • Post-filing requests for information • Aim to tell the same basic story everywhere • “Template” filing – deal/parties/substantive story • May be asked for “waivers”: int’l cooperation • Previous/next filings • What did we say last time? keep filings to hand • Merger filings as part of exit/growth strategy • avoiding hostages to fortune • Dealing with the agencies • Their agendas, capabilities, know-how

20. How – post-filing/clearance tips • Information requests • Fast reactions to avoid/minimise clock stopping • Will third parties be involved/consulted? • What form does the clearance decision take? • Published – protect business secrets • Advising agencies about other clearances (peer pressure/timing) • Post-clearance obligations (Germany, Greece) • Fees (pre/post filing)

21. Summary • Is merger control relevant • Obtaining turnover/asset information • Assessing jurisdictional thresholds • Identifying any lead jurisdictions on timing and substance • Preparing notifications – coordination • Getting the clocks running • Keeping them running • Clear and close!

22. Everybody wants to rule your deal – a practical guide to international merger control Dave Anderson Partner, Berwin Leighton Paisner LLP Brussels 9 October, 2007 David.Anderson@blplaw.com