On June 6, 2012, MOFCOM issued a revised template form for filing merger filing clearance applications in China. The new form is to be used for all merger notifications filed after July 7, 2012.
The new form contains extensive footnotes that provide some welcome clarifications and explanations about the scope of MOFCOM’s information and documentary requirements. The footnotes clarify, for example, the concept of a “business operator participating in the concentration” and the meaning of “affiliates” and provide details of the exchange rate to be used for currency conversions. They also clarify some procedural aspects of the filing process. For example, although the revised form requires the submission of copies of the signed transaction documents such as the Sale and Purchase Agreement, it provides that a filing is possible, in exceptional cases, on the basis of preliminary documents such as a Memorandum of Understanding, draft SPA, or framework agreement. However, the form also contains sections requiring the submission of research results, analyses and reports prepared by or for the board of directors and other senior management, including analyses and reports prepared by third parties. It also requires the merging parties to describe their products and services and to organize them in line with the categories of the National Bureau of Statistics. Such requirements seem likely to lead to an increase in the information and document production obligations of the merger parties. The Chinese text of the form is available here.