Model Mergers Timing Agreement

Draft for Public Consultation

This consultation takes place between July 16, 2019 and August 30, 2019.

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This TIMING AGREEMENT is made as of [date] between [Purchaser] and [Vendor/Target] (collectively the “Merging Parties”) and the Commissioner of Competition (the “Commissioner”).

Recitals

  1. Purchaser proposes to acquire [describe the proposed transaction] (the “Proposed Transaction”).
  2. The Commissioner is of the view that the Proposed Transaction may result in a substantial [prevention and/or lessening] of competition in [describe relevant markets], and desires to complete his assessment and, if necessary, implement an appropriate remedy, before the Merging Parties close the Proposed Transaction.
  3. The Merging Parties expect that the Proposed Transaction will generate efficiencies and desire that the Commissioner assess those efficiencies for the purpose of s. 96 of the Competition Act (the “Act”) before filing any application under s. 92 or s. 104 of the Act.
  4. The Merging Parties and the Commissioner desire to establish a schedule for the expeditious resolution of this matter with a view to avoiding, or narrowing the scope of litigation if appropriate.

Agreement

In consideration of the terms set out in this agreement, the sufficiency of which is acknowledged, the Parties agree as follows:

  1. The Merging Parties shall provide at least [30 days’] notice before closing the Proposed Transaction or any part of the Proposed Transaction, unless the Commissioner has issued a no action letter. The Merging Parties shall not provide such notice until at least 30 days after complying with the supplementary information requests pursuant to s. 114(2) of the Act (the “SIRs”). After the Merging Parties have provided such notice, the Commissioner and Competition Bureau shall have no further obligations under this agreement.
  2. The Commissioner shall not file an application under s. 92 or s. 104 of the Act unless the Merging Parties have provided the notice described in paragraph 1 of this agreement or waived compliance with this provision.
  3. The Merging Parties shall fully respond to the data specifications of the SIRs as soon as possible, and in any event no later than 30 days before full compliance with the SIRs. The Mergers case team shall pose and the Merging Parties shall promptly respond to any questions relating to the data.
  4. The Mergers case team shall provide an update on the status of their review, including a response to any requests [made prior to or in the 7 days following issuance of the SIRs] to modify the scope of the SIRs, no later than 30 days after SIR issuance.
  5. No later than 45 days after receipt of the data described in paragraph 3 of this agreement and provided that the merging parties have not fully complied with the SIRs until at least 30 days after responding to the data specifications, the Mergers case team shall provide an update on its quantitative assessment, including a description of the empirical methodology, model and preliminary findings.
  6. No later than 30 days after full SIR compliance, Mergers management and the case team will be available to meet with the Merging Parties (by phone or at the Bureau’s Gatineau office, at the Merging Parties’ option) and provide an update on its assessment including
    1. its assessment to date in respect of each market of concern,
    2. identifying any additional information or analysis likely to be of assistance in completing its assessment;
    3. a preliminary quantification of the range of deadweight loss in respect of each market of concern.
  7. Within 10 days after the meeting described in paragraph 6 of this agreement, the Merging Parties shall provide their submission on efficiencies that would be lost if a remedial order were made in respect of the concerns identified by Mergers management, together with all supporting documents and data. The Merging Parties acknowledge that the extent to which the Bureau is prepared to accept claimed efficiencies will depend on the quality of information in support of those claims, and that it is incumbent on them to provide complete information at this stageFootnote 1.
  8. No later than 30 days after receiving the information described in paragraph 7 of this agreement, each Merging Party shall identify and make available a representative to meet with the Mergers case team and be examined under oath on any matter relevant to the claimed efficiencies. Such examinations will be conducted no later than [10?] days after each Merging Party has identified a suitable representative.
  9. No later than 30 days after the interviews described in paragraph 8 of this agreement, Mergers management and the case team will
    1. identify the markets in which a remedy is required;
    2. provide an updated anticompetitive effects quantification and
    3. on a without prejudice basis, quantify the efficiencies that Mergers believes have been substantiated as likely to be lost in the event of a remedy.
  10. After the information described in paragraph 9 of this agreement has been provided, the Merging Parties may propose a meeting with the Commissioner, and the Parties shall make reasonable efforts to schedule that meeting at a mutually convenient time. The Parties acknowledge that it may be productive to advance settlement negotiations and consent agreement drafting as far as reasonably possible before such meeting.
  11. Nothing in this agreement precludes the Parties from communicating more frequently or earlier than required by this agreement. The Parties may amend any time periods in this agreement on consent, such consent not to be unreasonably withheld.

DATED this day of space to insert month, 20space to insert year

COMMISSIONER OF COMPETITION



space to insert signature

Name: Matthew Boswell
Title: Commissioner of Competition

[PURCHASER]

space to insert signature
I/We have authority to bind the corporation

Name: space to insert full name
Title: space to insert title

[VENDOR/TARGET]

space to insert signature
I/We have authority to bind the corporation

Name: space to insert full name
Title: space to insert title



Appendix I: Efficiencies Information Requirements

Information requirements will be based on the particular efficiencies claimed and the industry that the parties operate in such that it is not possible to assemble a complete and exhaustive list of necessary information. That said, the categories of information to be sought are generally as follows:

  • Information on parties’ operations and assets
    • EXAMPLES: Information on assets and their locations, capacity utilization by product line and by facility, any constraints on production, and headcount information
  • Plans for the merging parties’ businesses in the absence of the merger
    • EXAMPLES: Information on planned capital expenditures, cost savings plans, anticipated product introduction, and other strategies under consideration if the merger did not go forward
  • Analysis and planning documents relating to the implementation of the merger:
    • EXAMPLES: integration plans such as Board presentations and all underlying data and calculations, forward-looking costing (fixed vs variable) and capital expenditures planned post-merger.
  • Analysis of merger efficiencies:
    • EXAMPLES: models or other analyses that quantify the efficiencies, as well as the documents or data relied upon in those analyses and support for any underlying assumptions
  • Information from past comparable integrations
    • EXAMPLES: Documents fitting in the categories above with respect to past transactions, and backward looking documents assessing efficiencies achieved and costs incurred
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