Guiding Opinion on Reporting of Concentrations of Business Operators

(Issued by the Anti-monopoly Bureau of the Ministry of Commerce on January 5 2009.)

Pursuant to the PRC Anti-monopoly Law and the State Council, Provisions on the Reporting Threshold for Concentrations of Business Operators, if a concentration reaches the reporting threshold, the business operators shall report the same in advance to the Ministry of Commerce. With a view to facilitating the reporting of concentrations by business operators, the Anti-monopoly Bureau of the Ministry of Commerce provides the following guiding opinion for their reference.

Article 1: Before reporting, if the business operators need to discuss with the Anti-monopoly Bureau specific issues concerning the reporting of their concentrations, they shall satisfy the following conditions:

(1) the business operators shall first submit to the Anti-monopoly Bureau a written application for discussion and make an appointment for discussion;

(2) the written application shall include such information as the name of the applicant, the application particulars, an overview of the transaction, the issues to be discussed and the contact person; and

(3) the business operators shall submit to the Anti-monopoly Bureau necessary documents and information relating to the concentration transaction about which they intend to hold the discussion.

Article 2: Concentrations of business operators that are conducted by way of a merger shall be reported by all of the business operators that are parties to the merger. Concentrations of business operators that are conducted by other means shall be reported by the business operator that is in control or that is able to exercise a decisive influence, and the other business operators shall give their co-operation.

Article 3: Reporting parties may report the concentration themselves or, in accordance with relevant provisions, appoint a third party to report the concentration on their behalf.

Article 4: The business operators shall report the concentration after they are able to submit reporting documents and information that fulfil the requirements of Article 23 of the Anti-monopoly Law. The Anti-monopoly Bureau recommends that business operators make an appointment before reporting the concentration.

Article 5: Upon receipt of the reporting documents and information submitted by the business operator, the Anti-monopoly Bureau will issue a Form for the Registration of the Anti-monopoly Reporting Information of Concentration of a Business Operator, but the issuance of such form should not be taken to mean that the reporting documents and information satisfy the requirements of Article 23 of the Anti-monopoly Law.

Article 6: If some of the documents or information required to be submitted by the business operators are missing or if they are incomplete or inaccurate, the business operators shall submit the missing documents or information, or revise, clarify or explain the same by the deadline set by the Anti-monopoly Bureau. If the business operators fail to submit the missing documents or information, or revise, clarify or explain the same by the deadline, they shall be deemed as not having submitted the report.

Article 7: The Anti-monopoly Bureau shall check the documents and information submitted by the business operators. If the reporting party deliberately withholds material information or provides false information, the Anti-monopoly Bureau has the right to refuse to accept the submission or, if it has accepted the submission, to revoke it. If the documents and information submitted by the business operators satisfy the requirements of Article 23 of the Anti-monopoly Law, the Anti-monopoly Bureau shall conduct a preliminary review of the reported concentration of the business operator.

Article 8: The reporting documents and information shall include but not be limited to the following:

(1) A cover letter. The cover letter shall state the names, domiciles and scopes of business of the business operators that will be parties to the concentration and the anticipated date of the formation of the concentration; and the reporting party's proof of identity or proof of registration. Overseas reporting parties shall submit the notarisation and certification documents issued by the relevant local authorities. If an agent has been appointed to submit the report, it shall submit a power of attorney signed by the reporting party.

(2) An account of the effect that the concentration will have on competition in the relevant market, including an overview of the concentration transaction; the definition of the relevant market; the market share of the business operators that will be parties to the concentration in the relevant market and their control to such market; the main competitors and their market share; the degree of market concentration; market entry; current state of development of the industry; the effect of the concentration on the structure of market competition, industry development, technological progress, development of the national economy, consumers and other business operators; an assessment of the outcome of the effect of the concentration on the competition in the relevant market and the basis of such assessment; and the opinions of relevant parties such as the opinions of the local government and competent authorities.

(3) The concentration agreement, including various concentration agreement documents, such as an agreement or contract and the corresponding supplementary documents; various reports supporting the concentration agreement such as the feasibility study on the concentration transaction, due diligence reports, industry development research report and concentration planning report as well as post-transaction prospects and development forecast report.

(4) The financial accounting reports for the preceding financial year of the business operators that will be parties to the concentration audited by their accounting firms.

(5) Other documents and information that the Anti-monopoly Bureau requires be submitted.

Article 9: When the business operators submit the hard copies of the reporting documents and information, they shall at the same time submit identical electronic versions thereof on an optical disc. The hard copies of the reporting documents and information shall be rationally compiled and bound, and the electronic files shall be rationally organised to facilitate review.

Article 10: The business operators shall submit documents and information prepared in the Chinese language. If the documents or information are in a foreign language, both the originals in the foreign language and a standard Chinese translation thereof shall be submitted. If documents or information are duplicates, photocopies or facsimiles, the originals shall be presented for verification at the request of the Anti-monopoly Bureau.

Article 11: The business operators shall simultaneously submit public and confidential versions of the reporting documents and information. The business operators shall mark the trade secrets contained in the reporting documents and information.

Article 12: The Anti-monopoly Bureau shall assume an obligation of confidentiality of the trade secrets it learns in the course of the anti-monopoly discussions and in its work associated with the filing relating to the concentration of business operators.