Article 44Supplement v1, p. 44

COMMERCIAL LAWS SUPPLEMENT

SECTION 5. Procedure for Notification and Review. —

(a) Each party to a merger or acquisition required to give

notification

to

the

Commission

shall

submit

the

Notification Form and pay such applicable fees as may be

determined by the Commission. An electronic copy of the

Form and a scanned copy of the certification referred to

in subparagraph (b) of this Section, contained in a secure

electronic storage device, shall likewise be submitted to

the Commission, simultaneous with the filing of the

aforementioned hard copy.

(b) The Form must be signed by a general partner of a

partnership, an officer or director of a corporation, or in

the case of a natural person, the natural person or his/her

legal representative, and certified that the contents of the

Form

are

true

and

accurate

of their own personal

knowledge and/or based on authentic records. In all

cases,

the

certifying

individual

must

possess

actual

authority to make the certification on behalf of the entity

filing the notification.

(c) The parties may notify, on the basis of a binding

preliminary

agreement

in

any

form,

such

as

a

memorandum of agreement, term sheet, or letter of

intent. Each of the acquired and acquiring entities must

submit an affidavit with their Forms, attesting to the fact

that a binding preliminary agreement has been executed

and that each party has an intention of completing the

proposed transaction in good faith.

(d) Both the certification and the affidavit must be

notarized or otherwise authenticated.

(e) Except as described below, the waiting period begins

after all notifying entities have filed their respective

Forms, together with the corresponding certifications

and affidavits, and have been notified by the Commission

that the Forms are complete.

(1) In voting securities acquisitions, such as tender offers,

third party and open market transactions, in which the

acquiring entity proposes to buy voting securities from

shareholders of the acquired entity, rather than from the

entity itself:

i. the acquiring entity is required to serve notice on the

issuer of those shares to ensure the acquired entity is

aware of its reporting obligation;

ii. only the acquiring entity must submit an affidavit. The

acquiring entity must state in the affidavit that it has an

intention of completing the proposed transaction in good

faith, and that it has served notice on the acquired entity

as to its potential reporting obligations (and in tender

offers, the acquiring entity also must affirm that the

intention to make the tender offer has been publicly

announced); and

iii. the waiting period begins after the acquiring entity

files a complete Form.

(f) Upon submission of the Form, the Commission shall

determine within fifteen (15) days whether the Form and

other relevant requirements have been completed in

accordance with applicable rules or guidelines, and shall

inform the parties of other information and/or documents

it may have failed to supply, or issue a notice to the

parties that the notification is sufficient for purposes of

commencing Phase I review of the merger or acquisition.

(g) The waiting period under this Section shall commence

only upon the Commission's determination that the

notification has been completed in accordance with

applicable rules and guidelines.

(h) Within thirty (30) days from commencing Phase I

review, the Commission shall, if necessary, inform the

parties of the need for a more comprehensive and

detailed analysis of the merger or acquisition under a

Phase II review, and request other information and/or

documents that are relevant to its review.

(i) The issuance of the request under the immediately

preceding paragraph has the effect of extending the

period

within

which

the

agreement

may

not

be

consummated for an additional sixty (60) days. The

additional sixty (60) day period shall begin on the day

after the request for information is received by the

parties; Provided, that, in no case shall the total period for

review by the Commission of the subject agreement

exceed

ninety

(90)

days

from

the

time

the

initial

notification

by

the

parties

is

deemed

complete

as

provided under paragraph (f) of this Section; Provided

further,

that

should

the

parties

fail

to

provide the

requested

information

within

fifteen

(15)

days

from

receipt of the said request, the notification shall be

deemed

expired

and

the

parties

must

refile

their

notification.

Alternatively, should the parties wish to

submit the requested information beyond the fifteen (15)

day period, the parties may request for an extension of

time

within

which

to

comply

with the request for

additional information, in which case, the period for

review shall be correspondingly extended.

(j) Parties to a proposed transaction under review shall

inform the Commission of any substantial modifications

to the transaction. On the basis of the information

provided,

the Commission shall determine if a new

notification is required.

(k) Where notification of a transaction is not required,

then the periods provided above for the Commission to

conclude its review shall not apply.

(l) The Commission, in its discretion, may terminate a

waiting period prior to its expiration.

(m) When either waiting period set out ends on a

Saturday,

Sunday

or

holiday,

the

waiting

period

is

extended until the next business day.

(n) When the above periods have expired and no decision

has been promulgated for whatever reason, the merger

or acquisition shall be deemed approved and the parties

may proceed to implement or consummate it.

(o) All notices, documents, and information provided to or

emanating from the Commission under Sections 4 and 5

of this Rule shall be subject to the confidentiality rule

under Section 34 of the Act and Section 13 of this Rule,

except for the purpose of enforcing the Act or these

Rules, or when the release of information contained

therein is with the consent of the notifying entity or is

mandatorily required to be disclosed by law or by a valid

order

of

a

court of competent jurisdiction, or of a

government or regulatory agency, including an exchange.

SECTION 6. Effect of Notification. —

If within the relevant periods stipulated in the preceding

section, the Commission determines that the merger or

acquisition agreement is prohibited under Section 20 of

the Act and Section 9 of this Rule, and does not qualify for

exemption under Section 21 of the Act and Section 10 of

this Rule, the Commission may:

(a) Prohibit the implementation of the agreement;

(b) Prohibit the implementation of the agreement unless

and until it is modified by changes specified by the

Commission; or

(c) Prohibit the implementation of the agreement unless

and until the pertinent party or parties enter into legally

enforceable agreements specified by the Commission.

SECTION 7. Publication of Notification Summary. —

(a) When additional information or documents requested

by the Commission for the purpose of a Phase II review of

a notified merger or acquisition has been submitted by

the parties, the Commission shall publish on its website

the following information related to the notification on

the basis of the Form submitted by the parties:

(1) the name of the involved entities;

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