Status of Regulatory Approvals/Submissions on AMAT + TEL merger, extracted from the following document filed by AMAT to SEC dated 14 May 2014
Definitive proxy statement relating to merger or acquisition (Form DEFM14A)
http://investors.appliedmaterials.com/ph...p=irol-sec
(vested)
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Antitrust and Other Regulatory Approvals (page 137)
……………………. Pursuant to the Business Combination Agreement, Applied and TEL have made or will make filings under:
—
the Hart-Scott-Rodino Antitrust Improvements Act (United States);
— the Antimonopoly Law (China);
— the Act Against Restrictions of Competition (Germany);
— the Restrictive Trade Practices Law (Israel);
— the Act on Prohibition of Private Monopolization and Maintenance of Fair Trade (Japan);
— the Monopoly Regulation and Fair Trade Law (South Korea); and
— the Fair Trade Law (Taiwan).
The antitrust laws referred to in the preceding bullet points are referred to in this document as the “ Specified Antitrust Laws .”
In addition, Applied and TEL have submitted a joint voluntary notice under the Exon-Florio Amendment to the Defense Production Act of 1950 pursuant to their obligations under the Business Combination Agreement to seek a written notice from CFIUS clearing the Business Combination (which written notice is described in greater detail in the definition of “CFIUS Approval” set forth in Exhibit A to the Business Combination Agreement and is referred to in this
document as the “CFIUS Approval”).
On February 20, 2014, the CFIUS Approval was obtained.
REGULATORY APPROVALS RELATED TO THE BUSINESS COMBINATION (page 150)
Competition and Antitrust
General
Applied’s and TEL’s obligations to consummate of the Business Combination are subject to satisfaction of the Antitrust Condition (which is summarized under “The Business Combination Agreement—Closing Conditions—Conditions to All Parties’ Obligations to Consummate the Business Combination”). The Antitrust Condition requires the expiration of all waiting periods imposed by, and the obtaining of all governmental authorizations required under, the Specified Antitrust Laws (that is, the antitrust laws of the United States, China, Germany, Israel, Japan, South Korea and Taiwan). Satisfaction of the Antitrust Condition depends on such expirations occurring and such approvals being obtained without the imposition of a Substantial Detriment (which is summarized under “ The Business Combination Agreement—Covenants—Antitrust and Other Regulatory Approvals” beginning on page 137 of this document).
At any time before consummation of the Business Combination, the Federal Trade Commission, the Antitrust Division of the U.S. Department of Justice (which is referred to in this document as the “ Antitrust Division”), non-U.S. competition authorities or others could take action under antitrust laws with respect to the Business Combination, including seeking to enjoin consummation of the Business Combination, or to condition approval of the Business Combination on the divestiture of assets of Applied, TEL or their respective subsidiaries or to impose restrictions on the operations of HoldCo, Applied, TEL or their respective subsidiaries that would apply after consummation of the Business Combination. Private parties may also bring objections or legal actions under antitrust laws under certain circumstances.
There can be no assurance that the Business Combination will not be challenged on antitrust grounds or, if such a challenge is made, that the challenge will not be successful. Similarly, there can be no assurance that Applied or TEL will obtain the antitrust approvals necessary to consummate the Business Combination and the other transactions contemplated by the Business Combination Agreement or that the granting of these approvals will not involve the imposition of conditions to such consummation. These conditions or changes could result in the conditions to Applied’s and TEL’s obligations to consummate the Business Combination not being satisfied prior to the Business Combination end date (which is summarized above under “ The Business Combination Agreement—Termination of the Business Combination Agreement—Termination by Either Applied or TEL” beginning on page 145 of this document) or any extensions thereof, which would give Applied or TEL the right to terminate the Business Combination Agreement without consummating the Business Combination.
See “The Business Combination Agreement—Covenants—Antitrust and Other Regulatory Approvals ” beginning on page 137 of this document and “The Business Combination Agreement—Closing Conditions—Conditions to All Parties’ Obligations to Consummate the Business Combination ” beginning on page 141 of this document for information concerning Applied’s and TEL’s covenants and closing conditions related to antitrust filings and approvals.
United States Antitrust Clearance
The expiration or termination of the applicable waiting periods under the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended (which is referred to in this document as the “ HSR Act”) and the rules thereunder is a required condition to consummation of the Business Combination. Under the HSR Act, the Business Combination may not be consummated until the expiration or termination of a 30-day waiting period following the filing of notification and report forms with the Antitrust Division and the Federal Trade Commission (unless early termination of this waiting period is granted) or, if the Antitrust Division or the Federal Trade Commission issues a request for additional information, commonly known as a “second request”, 30 days after Applied and TEL have each substantially complied with such request for additional information (unless this period is shortened pursuant to a grant of earlier termination).
Applied and TEL filed their respective notification and report forms pursuant to the HSR Act with the Antitrust Division and the Federal Trade Commission on November 12, 2013. On December 12, 2013, the Antitrust Division issued a second request, and Applied and TEL are continuing to work cooperatively with the Antitrust Division staff as it conducts its review of the proposed Business Combination.
Japan Antitrust Clearance
The receipt of a clearance decision from the Japanese Fair Trade Commission (which is referred to in this document as the “ JFTC”) or the expiration of the review period, in each case, under Chapter 4 of the Act on Prohibition of Private Monopolization and Maintenance of Fair Trade, as amended, and the relevant provisions of the Cabinet Ordinance and Regulations for the Law (which are referred to collectively in this document as the “ Japan Antimonopoly Law”) is a required condition to consummation of the Business Combination.
Applied and TEL submitted formal notification to the JFTC under the Japan Antimonopoly Law on March 12, 2014. On April 11, 2014, the JFTC announced that it opened a secondary review of the transaction, and Applied and TEL are continuing to work cooperatively with the JFTC as it conducts its review of the proposed Business Combination.
China Antitrust Clearance
The approval of the Business Combination by the Ministry of Commerce of the People’s Republic of China (which is referred to in this document as “MOFCOM”) under the Chinese Anti-Monopoly Law of 2008 is a required condition to consummation of the Business Combination. Under the Chinese Anti-Monopoly Law of 2008, transactions involving parties with sales above certain revenue levels cannot be completed until they are reviewed and approved
by MOFCOM.
Applied and TEL filed their respective notification and report forms under the Chinese Anti-Monopoly Law of 2008 on November 15, 2013. On January 26, 2014, MOFCOM accepted the filing to begin its formal review. Applied and TEL are continuing to work cooperatively with MOFCOM as it conducts its review of the proposed Business Combination.
Antitrust Clearance in Other Jurisdictions
Applied and TEL also derive revenues in other jurisdictions where antitrust filings or antitrust approvals are or may be required. It is currently expected that the only such filings or approvals that are required or will be sought are those under the Specified Antitrust Laws (that is, the antitrust laws of the United States, China, Germany, Israel, Japan, South Korea and Taiwan). With respect to antitrust laws, Applied’s and TEL’s obligations to consummate the Business Combination are subject only to expiration of waiting periods imposed by, or obtaining requisite approvals under, the Specified Antitrust Laws, though other antitrust filings or approvals (such as under the antitrust laws of
Singapore) are being or may be sought by Applied or TEL.
On December 4, 2013, Applied and TEL obtained the consent to the Business Combination of the Controller of Restrictive Trade Practices of Israel under the Restrictive Trade Practices Law.
CFIUS, FEFTA and Other Regulatory Approvals
Applied’s and TEL’s obligations to consummate the Business Combination are subject to satisfaction of the CFIUS Condition (which is summarized under “The Business Combination Agreement—Closing Conditions —Conditions to All Parties’ Obligations to Consummate the Business Combination” beginning on page 141 of this document), which involves the review and approval of the Business Combination by CFIUS under the Exon-Florio Amendment to the Defense Production Act of 1950 (which is referred to in this document as the “ Exon-Florio Amendment ”) without the imposition of conditions that would reasonably be expected to have a material adverse effect on HoldCo. Under the Exon-Florio Amendment, the President of the United States is authorized to prohibit or suspend acquisitions, mergers or takeovers by non-U.S. persons of persons engaged in interstate commerce in the United States if the President determines, after investigation, that such non-U.S. persons in exercising control of such acquired persons might take action that threatens to impair the national security of the United States and that other provisions of existing law do not provide adequate authority to protect national security.
On February 20, 2014, the CFIUS Approval was obtained. Accordingly, the CFIUS condition has been satisfied
In addition, under the Foreign Exchange and Foreign Trade Act (which is referred to in this document as “ FEFTA”), the Minister of Finance and other ministers who supervise the subject business are authorized to prohibit or suspend acquisitions by a foreign investor of Japanese companies engaged in the production of certain categories of semiconductor manufacturing and testing equipment if the ministers determine, after investigation, that such acquisitions by a foreign investor impairs national security of Japan and meet other requirements. TEL is required to file a notification of inward direct investment ( tainai chokusetu toushi tou) with the Bank of Japan, and Applied and TEL are required to use their reasonable best efforts to obtain the approval from the relevant ministers, subject to such efforts not resulting in a Substantial Detriment (which is summarized under “ The Business Combination Agreement —Covenants—Antitrust and Other Regulatory Approvals—Reasonable Best Efforts and Limitations ” beginning on page 138 of this document). However, obtaining such approval is not a condition to the parties’ obligations to consummate the Business Combination.
In addition to CFIUS and FEFTA, other governmental bodies may have jurisdiction over HoldCo, Applied, TEL or the other persons involved in the Business Combination. In addition to their obligations to seek specifically identified governmental and regulatory approvals, Applied and TEL have general obligations to use commercially reasonable efforts to cause the transactions contemplated by the Business Combination Agreement to be consummated, which may include obligations to seek governmental or regulatory approvals other than those identified above. Additionally, Applied’s and TEL’s obligations to consummate the Business Combination are subject to the absence of orders preventing or restraining consummation of the Business Combination by courts or governmental bodies and the absence of certain legal proceedings brought by governmental bodies related to the Business Combination. See “ The Business Combination Agreement—Covenants—Antitrust and Other Regulatory Approvals” beginning on page 137 of this document for further information regarding Applied’s and TEL’s obligations to seek approvals and consummate the Business Combination. See “The Business Combination Agreement—Closing Conditions—Conditions to All Parties’ Obligations to Consummate the Business Combination ” beginning on page 141 of this document for further information on the closing conditions related to absence of orders and legal proceedings by governmental bodies.