[MERGER NOTIFICATION PROCEDURE TEMPLATE]

1 MERGER NOTIFICATION AND procedures template South Africa May 2009 IMPORTANT NOTE: This template is intended to provide initial background on the jurisdiction s merger NOTIFICATION and review procedures . Reading the template is not a substitute for consulting the referenced statutes and regulations. 1. Merger NOTIFICATION and review materials (please provide title(s), popular name(s), and citation(s)/web address) A. NOTIFICATION provisions The Competition Act, No 89 of 1998, as amended (the "Competition Act or Act"). Chapter 3 deals with merger control.

2 See: B. NOTIFICATION forms or information requirements The Competition Commission Rules, enacted pursuant to the Act, specify the NOTIFICATION forms in terms of which parties are required to submit information. These forms are: (i) A Merger Notice; Form CC4(1) and (ii) A Statement of Merger Information; Form CC4 (2). The Competition Commission's merger forms can be found at C. Substantive merger review provisions Competition Act, Section 12 A. The substantive test is a substantial prevention or lessening of competition (see sections 12A. (1) and 12A. (2) of the Act).

3 Additionally, there is also a public interest test that is limited to four issues (see section 12A. (3) of the Act.) D. Implementing regulations Competition Commission Rules, Part 6 ("Merger procedures "). Where proceedings are before the Competition Tribunal additionally the Competition Tribunal Rules, Division C ("Merger Proceedings"). The Competition Commission's Rules can be found at and the Competition Tribunal's Rules can be found at E. Interpretive guidelines and notices The Competition Commission has not issued any merger guidelines at this stage. However, it makes available nonbinding advisory opinions to merging parties on request.

4 These advisory opinions are not made public. However, the Competition Commission issues practitioners' notes from time to time on specific topics. A number of these notes have been published. See: 12. Authority or authorities responsible for merger enforcement. A. Name of authority. If there is more than one authority, please describe allocation of responsibilities. Two separate bodies, the Competition Commission and the Competition Tribunal, are responsible for merger enforcement. The Competition Commission exercises investigative functions in respect of so-called "large" mergers and makes recommendations to the Competition Tribunal regarding the said mergers .

5 The Competition Commission exercises both investigative and adjudicative functions in respect of so-called "small" and "intermediate" mergers . See 4 below, for the definition of small, intermediate and large mergers ). Also see section 11 of the Competition Act. The Competition Tribunal exercises adjudicative functions in respect of "large" mergers . The Tribunal also has appellate jurisdiction ion respect of decisions by the Competition Commission regarding "small" and "intermediate" mergers The Competition Appeal Court exercises appellate jurisdiction in respect of decisions of the Competition Tribunal.

6 B. Address, telephone and fax (including country code), e-mail, website address and languages available. Competition Commission: Block C, Mulayo Building, 77 Meintjies Street, Sunnyside, Pretoria. Private Bag X 23, Lynnwood Ridge, 0040 Telephone: 027 12 394 3200 / 3332 Facsimile: 027 12 394 0166 / 4332 Language: English Competition Tribunal: Telephone: 027 12 394 3300 Facsimile: 027 12 394 0169 Private Bag X24, Sunnyside, 0132 Language: English Competition Appeal Court: Telephone: 027 12 394 3355 Facsimile: 027 12 394 0169 C. Is agency staff available for pre- NOTIFICATION consultation?

7 If yes, please provide contact points for questions on merger filing requirements and/or consultations. Yes. The Manager mergers & Acquisitions Division Competition Commission Telephone: 027 12 394 3295 2 3. Covered transactions A. Definitions of potentially covered transactions ( , concentration or merger) Section 12 of the Competition Act defines a merger as: (1)(a) For purposes of this Act, a merger occurs when one or more firms directly or indirectly acquire or establish direct or indirect control over the whole or part of the business of another firm.

8 (b) A merger contemplated in paragraph (a) may be achieved in any manner, including through- (i) purchase or lease of the shares, an interest or assets of the other firm in question; or (ii) amalgamation or other combination with the other firm in question. B. If change of control is a determining factor, how is control defined? Section 12 of the Competition Act provides that control may be achieved in any manner, including through purchase or lease of shares, an interest or assets of the other firm in question or amalgamation or other combination with the other firm in question.

9 However, the central issue that is considered by the competition authorities is whether the acquiring firm has in fact acquired control over the target firm(s), described as the transferred firm(s) in the Rules. Section 12 (2) then sets out the various examples of situations where a firm may be deemed to have acquired control in terms of the Act. In terms of section 12(2) of the Competition Act, a person controls a firm if that person (a) beneficially owns more than one half of the issued share capital of the firm; (b) is entitled to vote a majority of the votes that may be cast at a general meeting of the firm, or has the ability to control the voting of a majority of those votes, either directly or through a controlled entity of that person; (c) is able to appoint or to veto the appointment of a majority of the directors of the firm.

10 (d) is a holding company, and the firm is a subsidiary of that company as contemplated in section 1(3)(a) of the Companies Act, 1973 (Act No. 61 of 1973); (e) in the case of a firm that is a trust, has the ability to control the majority of the votes of the trustees, to appoint the majority of the trustees or to appoint or change the majority of the beneficiaries of the trust; (f) in the case of a close corporation, owns the majority of members interest or controls directly or has the right to control the majority of members votes in the close corporation; or 3(g) has the ability to materially influence the policy of the firm in a manner comparable to a person who, in ordinary commercial practice, can exercise an element of control referred to in paragraphs (a) to (f).