PUBLIC VERSION CT-2019-002 COMPETITION TRIBUNAL
IN THE MATTER OF the Competition Act, R.S.C. 1985, c. C-34, and the Competition Tribunal Rules, SOR/2008-141;
AND IN THE MATTER OF an application by the Commissioner of Competition for an order pursuant to section 92 of the Competition Act;
AND IN THE MATTER OF the filing and registration of a consent agreement pursuant to sections 92 and 105 of the Competition Act.
B E T W E E N : THE COMMISSIONER OF COMPETITION Applicant – and – THOMA BRAVO, LLC Respondent
CONSENT AGREEMENT RECITALS: A. Respondent, through its wholly-owned subsidiary Alpha One Acquireco B.C. Ltd., acquired the shares of Wrangler Holdings, Inc. (doing business as “Aucerna”) on May 13, 2019 (the “Acquisition”). Among other software products, Aucerna supplies reserve valuation and reporting software (“Reserves Software”). Respondent also owns Quorum Business Solutions, Inc. (“Quorum”) which provides, among other software products, Reserves Software.
B. The Commissioner has concluded that the Acquisition is likely to result in a substantial lessening of competition in the development, service and supply of Reserves Software for use by certain oil and gas producers and other users in Canada, and that the implementation of this Agreement is necessary to ensure that any substantial lessening of competition will not result from the Acquisition.
C. Respondent does not admit but will not for the purposes of this Agreement, including execution, registration, enforcement, variation or rescission, contest the
PUBLIC VERSION Commissioner’s conclusions that (i) the Acquisition is likely to result in a substantial lessening of competition in the supply of Reserves Software for use by certain oil and gas producers and other users in Canada; and (ii) the implementation of this Agreement is necessary to ensure that any substantial lessening of competition will not result from the Acquisition.
D. Nothing in this Agreement affects any investigation, inquiry or proceeding other than under section 92 of the Act in respect of the Acquisition.
THEREFORE Respondent and the Commissioner agree as follows: I. DEFINITIONS [1] Whenever used in this Agreement, the following words and terms have the meanings set out below:
(a) “Acquisition” means the transaction described in the first recital to this Agreement;
(b) “Act” means the Competition Act, R.S.C. 1985, c. C-34, as amended; (c) “Affiliate” has the meaning given to it in subsection 2(2) of the Act; (d) “Agreement” means this Consent Agreement, including the schedules hereto, and references to a “Part”, “Section”, “Paragraph” or “Schedule” are, unless otherwise indicated, references to a part, section, paragraph or schedule of or to this Agreement;
(e) “Business Day” means a day on which the Competition Bureau’s Gatineau, Quebec office is open for business;
(f) “Commissioner” means the Commissioner of Competition appointed under the Act and includes his authorized representatives;
(g) “Confidential Information” means competitively sensitive, proprietary and all other information that is not in the public domain, and that is owned by or pertains to a Person or a Person’s business, and includes, but is not limited to, manufacturing, operations and financial information, customer lists, price lists, contracts, cost and revenue information, marketing methods, patents, technologies, processes, or other trade secrets;
(h) “Divested Business” means Quorum’s MOSAIC Reserves Software business;
(i) “Divestiture” means the sale, conveyance, transfer, assignment or other disposal of the Divestiture Assets to a Purchaser pursuant to this Agreement and with the prior approval of the Commissioner, such that
PUBLIC VERSION Respondent will have no direct or indirect interest in the Divestiture Assets;
(j) “Divestiture Agreement” means a binding and definitive agreement between Respondent and a Purchaser to effect the Divestiture pursuant to this Agreement and subject to the prior approval of the Commissioner;
(k) “Divestiture Applicant” means Respondent during the Initial Sale Period or the Divestiture Trustee during the Divestiture Trustee Sale Period;
(l) “Divestiture Assets” means all of the right, title and interest in, to and under, or relating to, the tangible assets, Intangible Assets, property and undertaking owned or used by Respondent or held by Respondent primarily for use in, or primarily relating to, the Divested Business;
(m) “Divestiture Process Agreement” means the agreement described in Section [6] of this Agreement;
(n) “Divestiture Trustee” means the Person appointed pursuant to Part III of this Agreement (or any substitute appointed thereto) and any employees, agents or other Persons acting for or on behalf of the Divestiture Trustee;
(o) “Divestiture Trustee Sale” means the Divestiture to be conducted by the Divestiture Trustee pursuant to Part III of this Agreement;
(p) “Divestiture Trustee Sale Period” means the 6 month period commencing upon expiry of the Initial Sale Period;
(q) “Effective Date” means the date on which this Agreement is registered by the Tribunal;
(r) “First Reference Date” shall have the meaning set out in Paragraph 22(d) of this Agreement;
(s) “Hold Separate Agreement” means the Consent Hold Separate Agreement between Respondent and the Commissioner registered by the Tribunal on July 24, 2019;
(t) “Hold Separate Employees” has the meaning set out in the Hold Separate Agreement;
(u) “Hold Separate Manager” has the meaning set out in the Hold Separate Agreement;
(v) “Hold Separate Period” has the meaning set out in the Hold Separate Agreement as modified in accordance with Section 24 of this Agreement;
PUBLIC VERSION (w) “Initial Sale Period” means the period that commences on the Effective Date and ends at the time set out in Confidential Schedule A to this Agreement;
(x) “Intangible Assets” means intellectual property of any nature and kind, including:
(i) patents, copyrights, trademarks and software; (ii) trade dress, industrial designs, distinguishing guises, trade secrets, know-how, techniques, data, inventions, practices, methods and other confidential or proprietary technical, business, research, development and other information, and all rights in any jurisdiction to limit the use or disclosure thereof;
(iii) rights to obtain and file for patents and registrations thereof; and (iv) rights to sue and recover damages or obtain injunctive relief for infringement, dilution, misappropriation, violation or breach of any of the foregoing;
(y) “Monitor” means the Person appointed pursuant to Part IX of this Agreement (or any substitute appointed thereto), and any employees, agents or other Persons acting for or on behalf of the Monitor, provided that if no Monitor is appointed, other than in Part IX of this Agreement Monitor means the Commissioner;
(z) “Monitor Agreement” means the agreement described in Section 31 of this Agreement;
(aa) “Person” means any individual, corporation or partnership, sole proprietorship, trust or other unincorporated organization capable of conducting business, and any Affiliates thereof;
(bb) “Purchaser” means the Person that acquires the Divestiture Assets pursuant to this Agreement and a Divestiture Agreement;
(cc) “Quorum” means Quorum Business Solutions, Inc.; (dd) “Records” means records within the meaning of subsection 2(1) of the Act;
(ee) “Respondent” means Thoma Bravo, LLC and its Affiliates and their directors, officers, employees, agents, representatives, successors and assigns;
(ff) “Second Reference Date” shall have the meaning set out in Paragraph 22(e) of this Agreement;
PUBLIC VERSION (gg) “Third Party” means any Person other than the Commissioner, Respondent or the Purchaser; and
(hh) “Tribunal” means the Competition Tribunal established by the Competition Tribunal Act, R.S.C. 1985, c.19 (2 nd Supp.). II. OBLIGATION TO COMPLETE DIVESTITURE [2] Respondent shall use commercially reasonable efforts to complete the Divestiture. [3] During the Initial Sale Period, Respondent shall use commercially reasonable efforts to complete the Divestiture in accordance with the provisions of this Part and Confidential Schedule A and subject to Part IV.
[4] During the Initial Sale Period, Respondent shall provide to the Commissioner and to the Monitor every 30 days a written report describing the progress of its efforts to effect the Divestiture. The report shall include a description of contacts, negotiations, due diligence and offers regarding the Divestiture Assets, the name, address and phone number of all parties contacted and of prospective Purchasers who have come forward. Respondent shall, within 5 Business Days, respond to any request by the Commissioner for additional information regarding the status of Respondent’s efforts to complete the Divestiture. An officer or other duly authorized representative of Respondent shall certify that he or she has examined the information provided in any such response and that such information is, to the best of his or her knowledge and belief, correct and complete in all material respects.
III. DIVESTITURE TRUSTEE SALE PROCESS [5] In the event that Respondent fails to complete the Divestiture during the Initial Sale Period, the Commissioner shall appoint a Divestiture Trustee to complete the Divestiture in accordance with this Agreement. Such appointment may be made at any time prior to the expiry of the Initial Sale Period or on such later date as the Commissioner determines.
[6] Within 5 Business Days after the appointment of the Divestiture Trustee, Respondent shall submit to the Commissioner for approval the terms of a proposed Divestiture Process Agreement with the Divestiture Trustee and the Commissioner that confers on the Divestiture Trustee all rights and powers necessary to permit the Divestiture Trustee to effect the Divestiture.
[7] Within 5 Business Days after receipt of the proposed Divestiture Process Agreement referred to in Section 6, the Commissioner shall advise Respondent whether or not he approves the terms of the proposed Divestiture Process Agreement. If the Commissioner does not approve the terms of the proposed Divestiture Process Agreement, he shall prescribe alternative terms that Respondent shall incorporate into a final Divestiture Process Agreement with the Divestiture Trustee and the Commissioner.
PUBLIC VERSION [8] Without limiting the Commissioner’s discretion to require additional terms, Respondent consents to the following terms and conditions regarding the Divestiture Trustee’s rights, powers and duties, and shall include such terms in the Divestiture Process Agreement:
(a) The Divestiture Trustee shall complete the Divestiture as expeditiously as possible, and in any event prior to expiry of the Divestiture Trustee Sale Period.
(b) The Divestiture Trustee shall use reasonable efforts to negotiate terms and conditions for the Divestiture that are as favourable to Respondent as are reasonably available at that time; however, the Divestiture shall not be subject to any minimum price. The Divestiture Trustee’s opinion of what constitutes favourable terms and conditions and what constitutes reasonably available terms and conditions, is subject to review and approval by the Commissioner.
(c) Subject to oversight and approval by the Commissioner, the Divestiture Trustee shall have full and exclusive authority during the Divestiture Trustee Sale Period:
(i) to complete the Divestiture in accordance with the provisions of this Part;
(ii) to solicit interest in a possible Divestiture by whatever process or procedure the Divestiture Trustee believes is suitable to allow a fair opportunity for one or more prospective good faith Purchasers to offer to acquire the Divestiture Assets, and for greater certainty, in determining whether to pursue negotiations with a prospective Purchaser, may have regard to the approval criteria in Section 23;
(iii) to enter into a Divestiture Agreement with a Purchaser that will be legally binding on Respondent;
(iv) to negotiate reasonable commercial covenants, representations, warranties and indemnities to be included in a Divestiture Agreement; and
(v) to employ, at the expense of Respondent, such consultants, accountants, legal counsel, investment bankers, business brokers, appraisers, and other representatives and assistants as the Divestiture Trustee believes are necessary to carry out the Divestiture Trustee’s duties and responsibilities.
(d) Where any Person makes a good faith inquiry respecting a possible purchase of Divestiture Assets, the Divestiture Trustee shall notify such Person that the Divestiture is being made and shall provide to such Person
PUBLIC VERSION a copy of this Agreement, with the exception of the provisions hereof that are confidential pursuant to Section 56 of this Agreement.
(e) Where, in the opinion of the Divestiture Trustee, a Person has a good faith interest in purchasing the Divestiture Assets and has executed a confidentiality agreement, in a form satisfactory to the Commissioner, with the Divestiture Trustee protecting any Confidential Information that such Person may receive in the course of its due diligence review of the Divestiture Assets, the Divestiture Trustee shall:
(i) promptly provide to such Person all information respecting the Divestiture Assets that is determined by the Divestiture Trustee to be relevant and appropriate;
(ii) permit such Person to make reasonable inspection of the Divestiture Assets and of all financial, operational or other non-privileged Records and information, including Confidential Information, that may be relevant to the Divestiture; and
(iii) give such Person as full and complete access as is reasonable in the circumstances to the personnel involved in managing the Divestiture Assets.
(f) The Divestiture Trustee shall have no obligation or authority to operate or maintain the Divestiture Assets.
(g) The Divestiture Trustee shall provide to the Commissioner and to the Monitor, within 14 days after the later of the Divestiture Trustee’s appointment and the commencement of the Divestiture Trustee Sale Period and thereafter every 30 days, a written report describing the progress of the Divestiture Trustee’s efforts to complete the Divestiture. The report shall include a description of contacts, negotiations, due diligence and offers regarding the Divestiture Assets, the name, address and phone number of all parties contacted and of prospective Purchasers who have come forward. The Divestiture Trustee shall, within 3 Business Days, respond to any request by the Commissioner for additional information regarding the status of the Divestiture Trustee’s efforts to complete the Divestiture.
(h) The Divestiture Trustee shall notify Respondent and the Commissioner immediately upon the signing of any letter of intent or agreement in principle relating to the Divestiture Assets, and shall provide to Respondent a copy of any executed Divestiture Agreement upon receipt of the Commissioner’s approval of the Divestiture contemplated in such Divestiture Agreement.
[9] Respondent shall not be involved in the Divestiture process during the Divestiture Trustee Sale Period or in any negotiations with prospective Purchasers undertaken
PUBLIC VERSION by the Divestiture Trustee, nor will Respondent have contact with prospective Purchasers during the Divestiture Trustee Sale Period.
[10] Subject to any legally recognized privilege, Respondent and the Hold Separate Manager shall provide to the Divestiture Trustee full and complete access to all personnel, Records, information (including Confidential Information) and facilities relating to the Divestiture Assets, to enable the Divestiture Trustee to conduct its own investigation of the Divestiture Assets and to provide access and information to prospective Purchasers.
[11] Respondent shall take no action that interferes with or impedes, directly or indirectly, the Divestiture Trustee’s efforts to complete the Divestiture.
[12] Respondent and the Hold Separate Manager shall fully and promptly respond to all requests from the Divestiture Trustee and shall provide all information relating to the Divestiture Assets that the Divestiture Trustee may request. Respondent shall identify an individual who shall have primary responsibility for fully and promptly responding to such requests from the Divestiture Trustee on behalf of Respondent.
[13] Respondent will do all such acts and execute all such documents, and will cause the doing of all such acts and the execution of all such documents as are within its power to cause the doing or execution of, as may be reasonably necessary to ensure that the Divestiture Assets are divested in the Divestiture Trustee Sale Period and that agreements entered into by the Divestiture Trustee are binding upon and enforceable against Respondent.
[14] Respondent shall be responsible for all reasonable fees and expenses properly charged or incurred by the Divestiture Trustee in the course of carrying out the Divestiture Trustee’s duties and responsibilities under this Agreement. The Divestiture Trustee shall serve without bond or security, and shall account for all fees and expenses incurred. Respondent shall pay all reasonable invoices submitted by the Divestiture Trustee within 30 days after receipt and, without limiting this obligation, Respondent shall comply with any agreement it reaches with the Divestiture Trustee regarding interest on late payments. In the event of any dispute: (i) such invoice shall be subject to the approval of the Commissioner; and (ii) Respondent shall promptly pay any invoice approved by the Commissioner. Any outstanding monies owed to the Divestiture Trustee by Respondent shall be paid out of the proceeds of the Divestiture.
[15] Respondent shall indemnify the Divestiture Trustee and hold the Divestiture Trustee harmless against any losses, claims, damages, liabilities or expenses arising out of, or in connection with, the performance of the Divestiture Trustee’s duties, including all reasonable fees of counsel and other expenses incurred in connection with the preparation or defence of any claim, whether or not resulting in any liability, except to the extent that such losses, claims, damages, liabilities,
PUBLIC VERSION or expenses result from malfeasance, gross negligence or bad faith by the Divestiture Trustee.
[16] Respondent shall indemnify the Commissioner and hold the Commissioner harmless against any losses, claims, damages, liabilities or expenses arising out of, or in connection with, the performance of the Divestiture Trustee’s duties, including all reasonable fees of counsel and other expenses incurred in connection with the preparation or defence of any claim, whether or not resulting in any liability.
[17] If the Commissioner determines that the Divestiture Trustee has ceased to act or has failed to act diligently, the Commissioner may remove the Divestiture Trustee and appoint a substitute Divestiture Trustee. The provisions of this Agreement respecting the Divestiture Trustee shall apply in the same manner to any substitute Divestiture Trustee.
[18] Respondent may require the Divestiture Trustee and each of the Divestiture Trustee’s consultants, accountants, legal counsel, investment bankers, business brokers, appraisers, and other representatives and assistants to sign an appropriate confidentiality agreement in a form satisfactory to the Commissioner; provided, however, that such agreement shall not restrict the Divestiture Trustee from providing any information to the Commissioner.
[19] The Commissioner may require the Divestiture Trustee and each of the Divestiture Trustee’s consultants, accountants, legal counsel, investment bankers, business brokers, appraisers, and other representatives and assistants to sign an appropriate confidentiality agreement relating to materials and information the Divestiture Trustee may receive from the Commissioner in connection with the performance of the Divestiture Trustee’s duties.
[20] Notwithstanding any term of this Agreement, the rights, powers and duties of the Divestiture Trustee under this Agreement shall not expire until the Divestiture is completed.
IV. COMMISSIONER APPROVAL OF DIVESTITURE [21] The Divestiture shall be made to a single Purchaser and with the prior approval of the Commissioner in accordance with this Part. For greater certainty, if a Divestiture is a notifiable transaction nothing in this Agreement affects the operation of Part IX of the Act.
[22] The Divestiture Applicant shall comply with the following process for seeking and obtaining a decision of the Commissioner regarding his approval of a proposed Divestiture:
(a) The Divestiture Applicant shall promptly: 9
PUBLIC VERSION (i) inform the Commissioner of any negotiations with a prospective Purchaser that are reasonably likely to lead to a Divestiture; and
(ii) forward to the Commissioner copies of any agreement that is signed with a prospective Purchaser, including non-binding expressions of interest.
(b) The Divestiture Applicant shall promptly notify the Commissioner that it intends to enter a Divestiture Agreement with a prospective Purchaser, or has entered into an agreement that, if approved by the Commissioner, will be a Divestiture Agreement within the meaning of this Agreement. If the Divestiture Applicant has entered into or intends to enter into more than one agreement in respect of the same Divestiture Assets, the Divestiture Applicant shall identify the agreement in respect of which it seeks the Commissioner’s approval and the remainder of this Part shall apply only to that agreement unless the Divestiture Applicant designates a substitute agreement.
(c) The notice described in Paragraph 22(b) shall be in writing and shall include: the identity of the proposed Purchaser; the details of the proposed Divestiture Agreement and any related agreements; and information concerning whether and how the proposed Purchaser would, in the view of the Divestiture Applicant, likely satisfy the terms of this Agreement.
(d) Within 14 days following receipt of the notice described in Paragraph 22(b), the Commissioner may request additional information concerning the proposed Divestiture from any or all of Respondent, the Monitor, the Hold Separate Manager, the prospective Purchaser and, in the Divestiture Trustee Sale Period, the Divestiture Trustee. These Persons shall each provide any additional information requested from them. When they have provided a complete response to the Commissioner’s request, these Persons shall comply with the following procedures:
(i) the Divestiture Trustee shall provide written confirmation to the Commissioner that the Divestiture Trustee has provided to the Commissioner all additional information requested from the Divestiture Trustee;
(ii) the Monitor shall Commissioner that the Monitor has provided to the Commissioner all additional information requested from the Monitor;
(iii) an officer or other duly authorized representative of Respondent shall certify that he or she has examined the additional information provided by Respondent in response to the Commissioner’s request and that such information is, to the best of his or her knowledge and belief, correct and complete in all material respects;
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provide written confirmation to the
PUBLIC VERSION (iv) the Hold Separate Manager shall certify that he or she has examined the additional information provided by the Hold Separate Manager in response to the Commissioner’s request and that such information is, to the best of his or her knowledge and belief, correct and complete in all material respects; and
(v) an officer or other duly authorized representative of the prospective Purchaser shall certify that he or she has examined the additional information provided by the prospective Purchaser in response to the Commissioner’s request and that such information is, to the best of his or her knowledge and belief, correct and complete in all material respects.
The date on which the last of the Divestiture Trustee, Respondent, the Monitor, the Hold Separate Manager and the prospective Purchaser provides to the Commissioner a confirmation or certification required under this Paragraph is the “First Reference Date”.
(e) Within 7 days after the First Reference Date, the Commissioner may request further additional information concerning the proposed Divestiture from any or all of the Persons identified in Paragraph 22(d). These Persons shall each provide any further additional information requested from them. When they have provided a complete response to the Commissioner’s request, if any, these Persons shall comply with the procedures outlined in Paragraph 22(d) in regard to the further additional information provided. The date on which the last of the Divestiture Trustee, Respondent, the Monitor, the Hold Separate Manager and the prospective Purchaser provides to the Commissioner a confirmation or certification required under this Paragraph is the “Second Reference Date”.
(f) The Commissioner shall notify the Divestiture Applicant of the approval of, or the objection to, the proposed Divestiture as soon as possible, and in any event within 14 days after the date on which the Commissioner receives the notice described in Paragraph 22(b) or, if he requests any additional information under Paragraph 22(d) or further additional information under Paragraph 22(e), within 14 days after the later of:
(i) the First Reference Date; and (ii) the Second Reference Date, if any. (g) The Commissioner’s determination as to whether to approve a proposed Divestiture shall be in writing.
[23] In exercising his discretion to determine whether to approve a proposed Divestiture, the Commissioner shall take into account the likely impact of the Divestiture on competition, and may consider any other factor he considers
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PUBLIC VERSION relevant. Prior to granting his approval, the Commissioner must also be satisfied that:
(a) the proposed Purchaser is fully independent of and operates at arm’s length from Respondent (subject to any transitional services that may be provided by Quorum to the proposed Purchaser, on prior approval of the Commissioner);
(b) Respondent will have no direct or indirect interest in the Divestiture Assets following the Divestiture;
(c) the proposed Purchaser is committed to carrying on the Divested Business; (d) the proposed Purchaser has the managerial, operational and financial capability to compete effectively in the development, service and supply of Reserves Software in Canada; and
(e) the proposed Purchaser will (i) if the Commissioner grants his approval during the Initial Sale Period, complete the Divestiture prior to the expiry of the Initial Sale Period; or (ii) if the Commissioner grants his approval during the Divestiture Trustee Sale Period, complete the Divestiture during the Divestiture Trustee Sale Period.
V. HOLD SEPARATE [24] The provisions of the Hold Separate Agreement shall continue until the completion of the Divestiture. For greater certainty, the Hold Separate Period, as defined in the Hold Separate Agreement, shall continue until the completion of the Divestiture. Following the completion of the Divestiture, Respondent’s Continuing Employees shall not use any Confidential Information respecting the Hold Separate Assets except as required in respect of any transitional services requested by the Purchaser or to the extent necessary to comply with securities laws, prepare financial and regulatory reports and tax returns or defend litigation.
VI. THIRD PARTY CONSENTS [25] It shall be a condition in any Divestiture Agreement (whether negotiated by Respondent or by the Divestiture Trustee) that Respondent shall, as a condition of closing, obtain any consents and waivers from Third Parties that are necessary to permit the assignment to, and assumption by, a Purchaser of all material contracts, approvals and authorizations relating to the Divestiture Assets; provided, however, that Respondent may satisfy this requirement by certifying that the Purchaser has executed agreements directly with one or more Third Parties which make such assignment and assumption unnecessary.
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PUBLIC VERSION VII. EMPLOYEES [26] Respondent (during the Initial Sale Period), the Divestiture Trustee (during the Divestiture Trustee Sale Period) and the Hold Separate Manager (for the Hold Separate Employees) shall provide to any prospective Purchaser, the Commissioner and the Monitor information relating to the Hold Separate Employees, to enable such Purchaser to make decisions regarding offers of employment to such employees. The Monitor shall review the information provided to ensure that it is sufficient to enable the Purchaser to make such decisions.
[27] Respondent shall: (a) not interfere, directly or indirectly, with any negotiations by a Purchaser to employ any Hold Separate Employees;
(b) not offer any incentive to such employees to decline employment with the Purchaser or to accept other employment with Respondent;
(c) remove any impediment within Respondent’s control that may deter such employees from accepting employment with the Purchaser;
(d) waive any non-compete or confidentiality provisions of employment or other contracts that could impair the ability of such employees to be employed by the Purchaser, provided that Respondent shall not be required to waive confidentiality obligations with respect to Respondent’s businesses other than the Divested Business; and
(e) pay or transfer to the employees subsequently employed by the Purchaser all current and accrued bonuses, pensions and other current and accrued benefits to which such employees would otherwise have been entitled had they remained in the employment of Respondent.
[28] For a period of one year following completion of the Divestiture, Respondent shall not, without the prior written consent of the Commissioner, directly or indirectly solicit or employ any Persons employed in connection with the Divestiture Assets who has accepted an offer of employment with the Purchaser unless such Person’s employment has been terminated by the Purchaser.
VIII. FAILURE OF DIVESTITURE TRUSTEE SALE [29] If, by the end of the Divestiture Trustee Sale Period, the Divestiture has not been completed, or if the Commissioner is of the opinion that the Divestiture likely will not be completed prior to the end of the Divestiture Trustee Sale Period, the Commissioner may apply to the Tribunal, at his election, for either (i) such order as is necessary to complete the Divestiture; or (ii) such order as is necessary to ensure that the Acquisition is not likely to prevent or lessen competition substantially.
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PUBLIC VERSION IX. MONITOR [30] The Commissioner shall appoint a Monitor, responsible for monitoring compliance by Respondent with this Agreement. Such appointment may occur at any time following registration of this Agreement. A reference in this Agreement to specific monitoring functions or tasks that are to be undertaken by the Monitor shall in no way detract from the Monitor’s general right, power and duty to monitor all aspects of Respondent’s compliance with this Agreement.
[31] Within 5 Business Days after the appointment of the Monitor, Respondent shall submit to the Commissioner for approval the terms of a proposed Monitor Agreement with the Monitor and the Commissioner that confers on the Monitor all rights and powers necessary to permit the Monitor to monitor compliance by Respondent with this Agreement.
[32] Within 5 Business Days after receipt of the proposed Monitor Agreement referred to in Section 31, the Commissioner shall advise Respondent whether or not he approves the terms of the proposed Monitor Agreement. If the Commissioner does not approve the terms of the proposed Monitor Agreement, he shall prescribe alternative terms for the Monitor Agreement that Respondent shall incorporate into a final Monitor Agreement with the Monitor and the Commissioner.
[33] Respondent consents to the following terms and conditions regarding the Monitor’s rights, powers and duties and shall include such terms in the Monitor Agreement:
(a) The Monitor shall have the power and authority to monitor Respondent’s compliance with this Agreement, and shall exercise such power and authority and carry out the duties and responsibilities of the Monitor in a manner consistent with the purposes of this Agreement and in consultation with the Commissioner.
(b) The Monitor shall have the authority to employ, at the expense of Respondent, such consultants, accountants, legal counsel and other representatives and assistants as the Monitor believes are necessary to carry out the Monitor’s duties and responsibilities.
(c) The Monitor shall have no obligation or authority to operate or maintain the Divestiture Assets or Hold Separate Assets.
(d) The Monitor shall act for the sole benefit of the Commissioner, maintain all confidences and avoid any conflict of interest.
(e) The Monitor shall have no duties of good faith (except as required by law), of a fiduciary nature, or otherwise, to Respondent.
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PUBLIC VERSION (f) The Monitor shall provide to the Commissioner every 30 days after the date of the Monitor’s appointment until the Divestiture is complete and thereafter annually on or before the anniversary of the Divestiture, a written report concerning performance by Respondent of its obligations under this Agreement. The Monitor shall, within 3 Business Days, respond to any request by the Commissioner for additional information regarding Respondent’s compliance.
[34] Subject to any legally recognized privilege, Respondent shall provide to the Monitor full and complete access to all personnel, Records, information (including Confidential Information) and facilities relevant to monitoring Respondent’s compliance with this Agreement.
[35] Respondent shall take no action that interferes with or impedes, directly or indirectly, the Monitor’s efforts to monitor Respondent’s compliance with this Agreement.
[36] Respondent shall fully and promptly respond to all requests from the Monitor and, subject to any legally recognized privilege, shall provide all information the Monitor may request. Respondent shall identify an individual who shall have primary responsibility for fully and promptly responding to such requests from the Monitor on behalf of Respondent.
[37] Respondent may require the Monitor and each of the Monitor’s consultants, accountants, legal counsel and other representatives and assistants to sign an appropriate confidentiality agreement in a form satisfactory to the Commissioner; provided, however, that such agreement shall not restrict the Monitor from providing any information to the Commissioner.
[38] The Commissioner may require the Monitor and each of the Monitor’s consultants, accountants, legal counsel and other representatives and assistants to sign an appropriate confidentiality agreement relating to materials and information the Monitor may receive from the Commissioner in connection with the performance of the Monitor’s duties.
[39] Respondent shall be responsible for all reasonable fees and expenses properly charged or incurred by the Monitor in the course of carrying out the Monitor’s duties under this Agreement. The Monitor shall serve without bond or security, and shall account for all fees and expenses incurred. Respondent shall pay all reasonable invoices submitted by the Monitor within 30 days after receipt and, without limiting this obligation, Respondent shall comply with any agreement it reaches with the Monitor regarding interest on late payments. In the event of any dispute: (i) such invoice shall be subject to the approval of the Commissioner; and (ii) Respondent shall promptly pay any invoice approved by the Commissioner. Any outstanding monies owed to the Monitor by Respondent shall be paid out of the proceeds of the Divestiture.
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PUBLIC VERSION [40] Respondent shall indemnify the Monitor and hold the Monitor harmless against any losses, claims, damages, liabilities or expenses arising out of, or in connection with, the performance of the Monitor’s duties, including all reasonable fees of counsel and other expenses incurred in connection with the preparation or defence of any claim, whether or not resulting in any liability, except to the extent that such losses, claims, damages, liabilities, or expenses result from malfeasance, gross negligence or bad faith by the Monitor.
[41] If the Commissioner determines that the Monitor has ceased to act or has failed to act diligently, the Commissioner may remove the Monitor and appoint a substitute Monitor. The provisions of this Agreement respecting the Monitor shall apply in the same manner to any substitute Monitor.
[42] The Monitor shall serve for such time as is necessary to monitor Respondent’s compliance with this Agreement.
X. COMPLIANCE [43] Respondent shall provide a copy of this Agreement to each of its own and its Affiliates’ directors, officers, employees and agents having managerial responsibility for any obligations under this Agreement, within 3 Business Days after the date of registration of this Agreement. Respondent shall ensure that its directors, officers, employees and agents with responsibility for any obligations under this Agreement receive sufficient training respecting Respondent’s responsibilities and duties under this Agreement, and the steps that such individuals must take in order to comply with this Agreement.
[44] Respondent shall not, for a period of 10 years after the date when the Divestiture is completed, directly or indirectly acquire any interest in the Divestiture Assets, without the prior written approval of the Commissioner.
[45] For a period of 2 years after the date when the Divestiture is completed, Respondent shall not, without providing advance written notification to the Commissioner in the manner described in this Section, directly or indirectly:
(a) acquire any assets or shares of, or any other interest in, any Reserves Software business that competes with Quorum’s MOSAIC product or Aucerna’s ValNav product in Canada; or
(b) consummate any merger or other combination relating to any Reserves Software business that competes with Quorum’s MOSAIC product or Aucerna’s ValNav product in Canada.
If a transaction described in (a) or (b) is one for which notice is not required under section 114 of the Act, Respondent shall supply to the Commissioner the information described in section 16 of the Notifiable Transactions Regulations at least 30 days before completing such transaction (or such shorter period as the
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PUBLIC VERSION Commissioner may agree). Respondent shall certify such information in the same manner as would be required if section 118 of the Act applied. The Commissioner may accept a competitive impact brief from Respondent instead of such information. The Commissioner may, within 30 days after receiving the information described in this Section, request that Respondent supply additional information that is relevant to the Commissioner’s assessment of the transaction. In the event that the Commissioner issues such a request for additional information, Respondent shall supply information to the Commissioner in the form specified by the Commissioner and shall not complete such transaction until at least 30 days (or such shorter period as the Commissioner may agree) after Respondent has supplied all such requested information in the form specified by the Commissioner.
[46] Six months after the date of registration of this Agreement and annually on the six month anniversary of the date of registration, and at such other times as the Commissioner may require, Respondent shall file an affidavit or certificate, substantially in the form of Schedule B to this Agreement, certifying its compliance with the obligations in Parts VII and X of this Agreement that continued in force after the Respondent’s previous certification and setting out the following information in detail:
(a) the steps taken to ensure compliance; (b) the controls in place to verify compliance; and (c) the names and titles of employees who have oversight of compliance. [47] If any of Respondent, the Hold Separate Manager, the Divestiture Trustee or the Monitor becomes aware that there has been a breach or possible breach of any of the terms of this Agreement, such Person shall, within 5 Business Days after becoming aware of the breach or possible breach, notify the Commissioner thereof, and shall provide details sufficient to describe the nature, date and effect (actual and anticipated) of the breach or possible breach, provided that notification of a possible breach is not required if such Person determines within those 5 Business Days that it could not reasonably be considered a breach of any of the terms of this Agreement. Respondent shall provide confirmation of its compliance with this provision in all affidavits and certificates of compliance filed with the Commissioner pursuant to Section 46 of this Agreement.
[48] Respondent shall notify the Commissioner at least 30 days prior to: (a) any proposed dissolution of Respondent; or (b) any other change in Respondent if such change may affect compliance obligations arising out of this Agreement including, but not limited to, a reorganization, material acquisition, disposition or transfer of assets, or any fundamental change for purposes of Respondent’s incorporating statute.
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PUBLIC VERSION [49] For purposes of determining or securing compliance with this Agreement, and subject to any legally recognized privilege, Respondent shall, upon written request given at least 5 Business Days in advance to Respondent, permit any authorized representative(s) of the Commissioner, without restraint or interference:
(a) to access, during regular office hours of Respondent on any Business Day(s), all facilities and to inspect and copy all Records in the possession or control of Respondent related to compliance with this Agreement, which copying services shall be provided by Respondent at its expense; and
(b) to interview such officers, directors or employees of Respondent as the Commissioner requests regarding such matters.
XI. DURATION [50] This Agreement shall become effective on the date when it is registered, and shall remain in effect for 10 years following the Divestiture, except that Parts II, III, IV, V and VI of this Agreement shall be effective only until the Divestiture is completed.
XII. NOTICES [51] A notice or other communication required or permitted to be given under this Agreement is valid if it is:
(a) in writing and delivered by personal delivery, registered mail, courier service, facsimile or electronic mail; and
(b) addressed to the receiving party at the address(es) listed below, or to any other address designated by the receiving party in accordance with this Section.
if to the Commissioner: Commissioner of Competition Competition Bureau Canada Place du Portage, 21st Floor 50 Victoria Street, Phase I Gatineau, Quebec K1A 0C9
Attention: Commissioner of Competition Fax: (819) 953-5013 Email address: ic.avisdefusionmergernotification.ic@canada.ca
with a copy to:
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PUBLIC VERSION Executive Director and Senior General Counsel Competition Bureau Legal Services Department of Justice Place du Portage, 22nd Floor 50 Victoria Street, Phase I Gatineau, Quebec K1A 0C9 Fax: (819) 953-9267 Email address: ic.cb_lsu_senior_general_counsel- avocat_general_principal_usj_bc.ic@canada.ca
if to Respondent: Thoma Bravo, LLC 600 Montgomery Street, 20th Floor San Francisco, California USA 94111
Attention: Tara Gadgil Fax: (415) 392-6480 Email: tgadgil@thomabravo.com
with a copy to: McMillan LLP 181 Bay Street, Suite 4400 Toronto, Ontario M5J 2T3
Attention: Casey Halladay, Partner and David Kent, Partner Fax: (416) 865-7048 Email: casey.halladay@mcmillan.ca; david.kent@mcmillan.ca
[52] A notice or other communication under this Agreement is effective on the day that it is received by the receiving party and is deemed to have been received as follows:
(a) if it is delivered in person, by registered mail or by courier, upon receipt as indicated by the date on the signed receipt;
(b) if it is delivered by facsimile, upon receipt as indicated by the time and date on the facsimile confirmation slip; or
(c) if it is delivered by electronic mail, when the recipient, by an email sent to the email address for the sender stated in this Section or by a notice delivered by another method in accordance with this Section, acknowledges having received that email, with an automatic “read receipt” not constituting acknowledgment of an email for purposes of this Section.
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PUBLIC VERSION If a notice or other communication is received after 5:00 p.m. local time, or on a day that is not a Business Day, it shall be deemed to have been received on the next Business Day.
[53] Notwithstanding Sections 51 and 52, a notice or other communication that is not communicated in accordance with Sections 51 and 52 is valid if a representative of the party to this Agreement that is the recipient of such communication confirms the receipt of such communication and does not, at the time of such confirmation, request that it be delivered differently.
XIII. GENERAL [54] In this Agreement: (a) Number and Gender – Unless the context otherwise requires, words importing the singular include the plural and vice versa and words importing gender include all genders.
(b) Time Periods – Computation of time periods shall be in accordance with the Interpretation Act, R.S.C. 1985, c. I-21, and the definition of “holiday” in the Interpretation Act shall include Saturday.
[55] The Commissioner shall file this Agreement with the Tribunal for registration in accordance with section 105 of the Act. Respondent hereby consents to such registration. Upon registration, the proceedings under section 92 of the Act in respect of this matter are terminated.
[56] Information in Confidential Schedule A shall be made public upon the expiry of the Initial Sale Period.
[57] The Commissioner may, after informing Respondent, extend any of the time periods contemplated by this Agreement other than Sections 44, 45 and 50. If any time period is extended, the Commissioner shall promptly notify Respondent of the revised time period.
[58] Nothing in this Agreement precludes Respondent or the Commissioner from bringing an application under section 106 of the Act. Respondent will not, for the purposes of this Agreement, including execution, registration, enforcement, variation or rescission, contest the Commissioner’s conclusions that: (i) the Acquisition is likely to result in a substantial lessening of competition in the development, service and supply of Reserves Software for use by certain oil and gas producers and other users in Canada; and (ii) the implementation of this Agreement is necessary to ensure that any substantial lessening of competition will not result from the Acquisition.
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PUBLIC VERSION [59] Respondent attorns to the jurisdiction of the Tribunal for the purposes of this Agreement and any proceeding initiated by the Commissioner relating to this Agreement.
[60] This Agreement, together with the Hold Separate Agreement, constitute the entire agreement between the Commissioner and Respondent, and supersede all prior agreements, understandings, negotiations and discussions, whether written or oral, with respect to the subject matter hereof.
[61] This Agreement shall be governed by and interpreted in accordance with the laws of Ontario and the laws of Canada applicable therein, without applying any otherwise applicable conflict of law rules.
[62] In the event of a dispute regarding compliance with or the interpretation, implementation or application of this Agreement, the Commissioner or Respondent may apply to the Tribunal for directions or an order. In the event of any discrepancy between the English language version of this Agreement and the French language version of this Agreement, the English language version of this Agreement shall prevail. In no event shall any dispute suspend the Initial Sale Period or the Divestiture Trustee Sale Period.
[63] This Agreement may be executed in two or more counterparts, each of which shall be an original instrument, but all of which shall constitute one and the same Agreement.
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PUBLIC VERSION The undersigned hereby agree to the filing of this Agreement with the Tribunal for registration.
DATED this 20 th day of August, 2019 COMMISSIONER OF COMPETITION
_[Original signed by Matthew Boswell]__ Name: Matthew Boswell Title: Commissioner of Competition THOMA BRAVO, LLC _[Original signed by S. Scott Crabill]___ I/We have authority to bind the corporation
Name: S. Scott Crabill Title: Managing Partner 22
PUBLIC VERSION CONFIDENTIAL SCHEDULE A INITIAL SALE PERIOD [CONFIDENTIAL]
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PUBLIC VERSION SCHEDULE B FORM OF COMPLIANCE CERTIFICATION/AFFIDAVIT I, [name], of [place], hereby certify 1 in accordance with the terms of the Registered Consent Agreement dated ● between Thoma Bravo, LLC (“Respondent”) and the Commissioner of Competition, that:
1. I am the [title] of Respondent, and have personal knowledge of the matters deposed to herein, unless they are stated to be on information and belief, in which cases I state the source of such information and believe it to be true.
2. On [date], Respondent entered into a Consent Agreement (the “Consent Agreement”) with the Commissioner of Competition (the “Commissioner”) in connection with Respondent’s acquisition of Wrangler Holdings, Inc. (the “Acquisition”).
3. The Divestiture (as defined in the Consent Agreement) to [Purchaser] was completed on [date]. 2 4. Pursuant to Section 47 of the Consent Agreement, Respondent is required to file [annual reports/reports when requested by the Commissioner] certifying its compliance with Parts VII, VIII and XI of the Consent Agreement.
Oversight of Compliance 5. [Names/titles] have primary responsibility for overseeing compliance with this Agreement.
Circulation of Consent Agreement 6. Pursuant to Section 43 of the Consent Agreement, Respondent is required to provide a copy of the Consent Agreement to each of its own and its Affiliates’ directors, officers, employees and agents having managerial responsibility for any obligations under the Consent Agreement, within 3 Business Days after the date of registration of the Consent Agreement. The Consent Agreement was circulated by [whom] to [provide list] on [dates].
7. Pursuant to Section 43 of the Consent Agreement, Respondent is required to ensure that its directors, officers, employees and agents with responsibility for any obligations under the Consent Agreement receive sufficient training respecting Respondent’s responsibilities and duties under the Consent Agreement. The
1 If this is drafted as an affidavit, the words “hereby certify” should be removed and should be replaced with “make oath and say”. An affidavit should be sworn under oath. A certification should be certified by a Commissioner for taking affidavits.
2 Paragraphs 3 and 6 need only be included in the first certification/affidavit. 24
PUBLIC VERSION following training has been provided: [provide list of who was trained and by whom as well as a general statement of the content of the training]
Employees 8. Sections 26 and 27 of the Consent Agreement require Respondent to take various steps in regard to its employees whose responsibilities involved the operation of the Divestiture Assets. Respondent has fully complied with the terms of those Sections and, more particularly:
[Note: Describe steps taken to facilitate employee transfer to Purchaser, having regard to the terms of Sections 26 and 27; provide data on the # of employees who have transferred to the Purchaser.]
Notification of Breach 9. Based on my personal knowledge and my inquiries of [provide names], I am not aware of any breach or possible breach of any of the terms of the Consent Agreement within the meaning of Section 47 of the Consent Agreement.
DATED . Commissioner of Oaths Name and Title of Certifying Officer 25