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15 January 2009
The Federal Competition Law provides that pre-merger filings are required if a transaction meets any of three monetary thresholds. However, certain exceptions apply to so-called 'risk-free' transactions, for which a post-closing notice is sufficient. One such exception applies to corporate reorganizations that meet certain requirements.
In order for a corporate restructuring to qualify for exemption, at least 98% of the shares or partnership interests of the economic agents involved must have been held, either directly or indirectly, by the same economic agent (ie, the ultimate parent company of a corporate group):
If none of these requirements is met, the parties may not be entitled to the pre-merger filing exemption.
The post-closing notice that must be filed with the commission need contain only a description of the reorganization and certain limited corporate information (eg, copies of bylaws and shareholding information) on the economic agents involved in the transaction. This notice must be filed no later than 15 business days after the closing of the reorganization. However, the commission also allows parties to file such a notice before closing on the basis of certain internal criteria. No filing fees are payable for such a notice.
If the post-closing notice is not filed on time or the transaction does not comply with the requirements, the parties must file a pre-merger filing (which, among other things, involves the payment of filing fees). The parties may also be subject to fines for the late submission of a pre-merger filing. Therefore, such notice should be filed before closing if possible.
However, parties considering a restructuring should remember that a reorganization which does not involve a direct change of ownership of shares issued by Mexican companies is not subject to filing or notice with the commission, provided that the ultimate parent company in the relevant corporate group remains the same.
For further information on this topic please contact Luis Gerardo García Santos Coy or José Ruíz López at Creel, García-Cuéllar, Aiza y Enríquez by telephone (+52 55 1105 0600) or by fax (+52 55 1105 0690) or by email (firstname.lastname@example.org or email@example.com).
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Luis Gerardo Garcia Santos Coy
José Ruiz López