Section 92 Federal Competition and Consumer Protection Act 2018
Section 92 of the Federal Competition and Consumer Protection Act 2018 is about Merger defined. It is under Part XII (Price Mergers) of the Act.
(1) For the purposes of this Act-
(a) a merger occurs when one or more undertakings directly or indirectly acquire or establish direct or indirect control over the whole or part of the business of another undertaking; and
(b) a merger contemplated in paragraph (a) of this subsection may be achieved in any manner, including through –
(i) the purchase or lease of the shares, an interest or assets of the other undertaking in question,
(ii) the amalgamation or other combination with the other undertaking in question, or
(iii) a joint venture.
(2) For the purposes of subsection (1), an undertaking has control over the business of another undertaking if it –
(a) beneficially owns more than one half of the issued share capital or assets of the undertaking;
(b) is entitled to cast a majority of the votes that may be cast at a general meeting of the undertaking or has the ability to control the voting of a majority of those votes, either directly or through a controlled entity of that undertaking;
(c) is able to appoint or to veto the appointment of a majority of the directors of the undertaking;
(d) is a holding company, and the undertaking is a subsidiary of that company as contemplated under the Companies and Allied Matters Act.
(e) in the case of an undertaking 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) has the ability to materially influence the policy of the undertaking 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).
(3) For the purposes of subsection (1), an undertaking shall not be deemed to exercise control over the business of another undertaking where –
(a) credit institutions or other financial institutions or insurance companies, the normal activities of which include transactions and dealing in securities for their own account or for the account of others, hold on a temporary basis securities which they have acquired in an undertaking with a view to reselling them, provided that they do not exercise voting rights in respect of those securities with a view to determining the competitive behaviour of that undertaking or provided that they exercise such voting rights only with a view to preparing the disposal of all or part of that undertaking or of its assets or the disposal of those securities and that any such disposal takes place within one year of the date of acquisition; that period may be extended by the Commission on request where such institutions or companies can show that the disposal was not reasonably possible within
the period set; or
(b) control is acquired by an office-holder according to the laws of the Federation relating to liquidation, winding up, insolvency, cessation of payments, compositions or analogous proceedings.
(4) For the purposes of this Act –
(a) a “small merger” means a merger with a value at or below the threshold stipulated by the Commission by regulations; and
(b) a “large merger” means a merger with a value above the threshold stipulated by the Commission by regulations.
