Information Bulletin on Merger Remedies in Canada : II. Designing Remedies

8. When designing remedies, terms must be clear and measures must be sufficiently well defined. This is to ensure timely implementation of the remedy and either no or minimal future monitoring by the Bureau. Additionally, clear terms and defined measures ensure that such remedies can be enforced by the Bureau or the Tribunal, which includes being enforced by way of contempt proceedings should a party not comply with them.¹⁵ The range of remedies considered by the Bureau is described below.

A. Structural Remedies¹⁶

9. The anti-competitive effects that are likely to arise from a merger result from a structural change to the market. Unless structural changes that have harmful effects on competition are challenged, they are often long lasting and can adversely affect innovation, economic performance and consumer welfare. Accordingly, structural remedies are usually necessary to eliminate the substantial lessening or prevention of competition arising from a merger.

10. Structural remedies are typically more effective than behavioural remedies. For example, behavioural remedies may prevent the merged entity from efficiently responding to changing market conditions and may restrain potentially pro-competitive behaviour by the merged entity and/or other market participants. Furthermore, it is difficult to determine the appropriate duration of a behavioural remedy, since it is often difficult to gauge how long it will take for new entry or expansion to be established in the relevant market(s). Competition authorities and courts generally prefer structural remedies over behavioural remedies because the terms of such remedies are more clear and certain, less costly to administer, and readily enforceable.¹⁷ Disadvantages with respect to the costs associated with behavioural remedies include:

• the direct costs of monitoring the activities of the merged entity, and the merged entity’s adherence to the terms of the remedy;
• the costs to other market participants, who must rely on arbitration proceedings arising from self-governing mechanisms; and
• the indirect costs associated with any efforts by the merged entity to circumvent the spirit of the remedy.

11. Most structural remedies involve a divestiture of asset(s) rather than an outright prohibition or dissolution of the merger.¹⁸ However, prohibition or dissolution will be required when less intrusive remedies, which would otherwise eliminate the substantial lessening or prevention of competition, are unavailable. The remainder of this section describes the essential components of designing remedies that require a divestiture of asset(s).

i. Divestitures

12. Divestitures seek to:

(i) preserve competition through the sale of asset(s) to a new market participant;¹⁹ or
(ii) strengthen an existing source of competition through the sale of asset(s) to an existing market participant.

13. The following criteria must be met for a divestiture to provide effective relief to an anti-competitive merger:

• the asset(s) chosen for divestiture must be both viable and sufficient to eliminate the substantial lessening or prevention of competition;
• the divestiture must occur in a timely manner; and
• the buyer must be independent and have both the ability and intention to be an effective competitor in the relevant market(s).

(a) Viability of the Asset(s) Chosen for Divestiture

14. Divestitures can include one (or more) standalone operating business(es) and/or one or more components of a standalone operating business(es). Importantly, divestitures must include all assets necessary for the buyer to be an effective long-term competitor who will preserve competition in the relevant market(s). While divestitures of asset(s) or business(es) within the relevant market are usually sufficient to address competition concerns, in certain circumstances it may be necessary to include asset(s) outside the relevant market. For example, this may be the case when economies of scale and/or scope are important or when the asset(s) related to the relevant market do not comprise a standalone operating business.

15. A divestiture of a standalone operating business(es) means that the whole of one of the merging parties’ overlapping businesses is to be divested. This includes all necessary management, personnel, manufacturing and distribution facilities, retail locations, individual products or product lines, intellectual property (e.g. including patents or brands), administrative functions, supply arrangements, customer contracts, government and regulatory approvals, leases, and other components of an operating business. Such a divestiture is required, for example, when something less than a standalone operating business cannot be separated or when the creation of a viable and effective competitor depends on the divestiture of the whole business unit and its associated asset(s).

16. A divestiture of one or more components of a standalone operating business means that less than the whole of one of the merging parties’ overlapping businesses is to be divested. Provided it eliminates the substantial lessening or prevention of competition arising from a merger, a divestiture of less than a standalone operating business may be acceptable when some of the components needed to run the business are otherwise available. For example, a potential buyer of certain discrete asset(s) may not require certain administrative functions (e.g. human resources, or accounting) or distribution asset(s) of an ongoing business unit to become a viable and effective competitor if it already owns these capabilities or can readily obtain them from sources outside of the merged entity.

17. Divesting a standalone operating business increases the level of certainty that the remedy will be effective, since the business has proven its ability to compete in the market and survive independently. Accordingly, the Bureau applies greater scrutiny to divestitures of less than a standalone operating business since there is limited or no proven track record that the components of the business will be able to operate both effectively and competitively. Furthermore, when divestitures of less than a standalone operating business consist primarily of intellectual property or other limited categories of assets, the Bureau will typically need to be satisfied, in advance of consenting to a remedy, that willing buyers, with the necessary capabilities, are available to purchase the asset(s).²⁰

18. The Bureau also applies greater scrutiny to situations in which the proposed divestiture package is created out of a mixture of assets (i.e., referred to as a “mix and match” approach) from both merging parties. Mix and match remedies are often less successful at preserving competition, as such asset packages have an unproven track record of business viability and are subject to integration issues, which are usually more difficult to resolve than with divestitures comprised of a standalone operating business.

19. In light of these above reasons, the Bureau generally prefers a divestiture of a standalone operating business(es) from one merging party, normally the target company being acquired in the merger, to one buyer.²¹ This approach reduces the uncertainty associated with both the viability of the divestiture package and integration issues, and limits the detrimental effects that could arise from the acquiring party in the merger obtaining confidential information about the asset(s) to be divested.

20. Prior to agreeing to a divestiture package, the Bureau may seek information from the marketplace. Such “market testing” is particularly important in those situations where the marketability, viability, and ultimately the effectiveness of a divestiture package in eliminating the substantial lessening or prevention of competition arising from a merger, are uncertain or in doubt. Market testing may include seeking information from industry participants such as competitors, customers and suppliers, as well as from industry experts.²²

21. In addition to considering whether a divestiture consisting of one (or more) standalone operating business(es) and/or one or more components of a standalone operating business(es) is required, the following provisions are helpful in ensuring the viability of the asset(s) to be divested and are therefore given careful consideration when designing remedies.

Hold-separate Provisions

22. Once the Bureau determines that a merger is likely to lessen or prevent competition substantially, and identifies the scope of remedies necessary to address the competition concerns, the Bureau will normally require the merging parties to “hold separate” those asset(s) that could be the subject of a Tribunal order, until the divestiture is completed.²³ Hold-separate provisions preserve the Bureau’s ability to achieve an effective remedy pending its implementation.²⁴ Hold-separate provisions also reduce the likelihood that the asset(s) will deteriorate during the divestiture process. Moreover, such provisions ensure the merging parties do not combine their operations or share confidential information before the divestiture occurs, thereby avoiding the problem of “unscrambling the eggs” if the merger has to be restructured at a later date. Hold separate provisions also preserve the Tribunal’s flexibility to order an alternate remedy should the original divestiture not be effected.

23. The Bureau will usually require that hold-separate provisions apply to asset(s) beyond those that are to be divested pursuant to a consent agreement. In limited cases, such as those involving the divestiture of a standalone operating business, the Bureau may require the hold-separate provisions to cover only the portions of the merger that are likely to result in anti-competitive effects. Hold-separate provisions are further discussed in section III of this Bulletin: Implementing Remedies

Alternatives to Hold-Separate Provisions

24. In very limited circumstances, it may be sufficient to direct the acquiring party, which must divest the asset(s)/business(es) (“the vendor”), to maintain the competitive viability of the asset(s) to be divested, without having to hold such asset(s) separate from the vendor’s other operations. To this end, “maintenance provisions ” rather than hold-separate provisions may be sufficient when:

• the asset(s) to be divested cannot operate on a standalone basis, but are discretely identifiable such that it would not be difficult to “unscramble the eggs”; and
• it can be demonstrated that there is de minimus risk of disclosing confidential or competitively sensitive information (e.g. if pricing and cost information is transparent in the industry, or if there are specific provisions in the consent agreement that will prevent disclosure of such information).

25. In such cases, the vendor must provide sales, managerial, administrative, operational, and financial support, as necessary in the ordinary course of business, so as to promote the continued effective operation of the asset(s). The vendor may also be required to honour all material contracts (e.g. sales and employment contracts) and agree to other provisions to ensure the ongoing viability of the asset(s), including those provisions relating to maintaining employment. While the asset(s) may not need to be held separate, information about customers and sales for each of the merging parties’ businesses should be kept segregated in order to both facilitate due diligence for the buyer during the divestiture period, and to maintain the competitive viability of the asset(s) to be divested.

Representations and Warranties

26. To increase the attractiveness and viability of the divestiture package, the vendor must provide reasonable and ordinary commercial representations and warranties to the buyer. What is reasonable and ordinary will depend on the industry in question, as each industry may have unique requirements. Depending on the circumstances, such representations and warranties will usually need to remain in effect at least until all divestitures contemplated by the remedy are complete.²⁵ In addition, when necessary, the vendor must indemnify the buyer to offset liabilities that either cannot or should not be separated from the asset(s) to be divested. Following the appointment of a divestiture trustee (“trustee”), the trustee shall have the sole authority, with oversight and approval by the Bureau only, to determine the reasonable and ordinary commercial representations and warranties, for the purpose of effecting the divestiture. The vendor will agree to and accept such trustee determinations in the consent agreement.

(b) Ensuring Timeliness and Success of the Divestiture

27. A remedy is most effective when it is achieved in a timely manner. Timeliness reduces uncertainty for all affected parties by ensuring that competition is preserved as quickly as possible, by minimizing the competitive harm, and by mitigating potential asset deterioration.

Fix-it-First

28. To eliminate the risks and uncertainty associated with implementing a remedy post-closing, merging parties are strongly encouraged to remedy competition issues arising from a merger by resolving them before closing the merger. A “fix-it-first” solution occurs when:

(i) the vendor is able to divest the relevant asset(s) to an approved buyer²⁶ prior to, or simultaneously with, the closing of the merger; or
(ii) there is a purchase and sale agreement in place, which identifies an approved buyer for a specific set of assets, and the divestiture is executed simultaneously with the merger.

29. The Bureau strongly prefers fix-it-first solutions. This type of remedy often provides an optimal resolution because it resolves competition issues up-front while giving certainty to the merging parties.

30. Acceptable fix-it-first solutions are typically structural in nature. A fix-it-first solution alleviates concerns about whether the remedy package will be marketable, ensures that the asset(s) in question do not deteriorate, and preserves competition in the relevant market(s) as expeditiously as possible. While fix-it-first solutions are still subject to Bureau approval, the registration of a consent agreement is typically not required. However, if the Bureau believes that the divestiture may be delayed until after the merger closes, or may not occur at all, the Bureau will likely require a consent agreement, as the divestiture will no longer be effected on a fix-it-first basis. The consent agreement may not have to be registered if the divestiture is actually completed before the merger has closed.

31. When fix-it-first solutions are not available, the following provisions are important in ensuring a timely and successful divestiture after the merger closes.

Time Periods

32. Imposing and enforcing timely deadlines to the divestiture process improves the effectiveness of a remedy. The shorter the divestiture period, the less likely that factors such as the deterioration of assets, the loss of customers and/or key personnel, or otherwise, will cause the divestiture to be ineffective. Certain safeguards, such as hold-separate provisions, may lessen the degree to which the asset package may deteriorate. Such provisions are temporary and are designed to maintain the current state of the asset(s).

33. The Bureau typically agrees to provide the vendor with an initial fixed period of time (“initial sale period”) to sell the remedy package at the best price and terms that the vendor can negotiate with potential buyers. The initial sale period will be between three and six months,²⁷ which is considered sufficient time in which to both initiate and complete the divestiture. The actual time period allotted for the initial sale period will normally be confidential. The Bureau may grant a short extension of this time period in exceptional circumstances, which will be determined on a case-by-case basis. During the initial sale period, the vendor will normally be required to meet certain milestones, which will be pre-determined on a case-by-case basis.²⁸ Compliance with such milestones must be reported to the Bureau at the Bureau’s request.

34. As further explained in section IV of this Bulletin, if the vendor cannot sell the asset(s) within the initial sale period, a trustee appointed by the Bureau will have a period of time (“trustee period”), the duration of which will be made public at the outset of the trustee period, in order to complete the divestiture without any limitations on price. During the trustee period, the trustee shall have the authority to control the divestiture process, subject to oversight and approval by the Bureau only.

No Minimum Price

35. To increase the likelihood that the divestiture will occur, the Bureau will require that, during the trustee period, the remedy package be divested at no minimum price.²⁹ As the sale price and terms of which the divestiture package are to be determined by the trustee, the Bureau will not agree to provisions or terms that refer in any way to a minimum or floor price.³⁰ The trustee’s primary obligation is to divest the remedy package to a qualified buyer at no minimum price.

“Crown Jewel” Provisions

36. The Bureau’s goal is to design a remedy package that will eliminate the substantial lessening or prevention of competition arising from a merger without going beyond what is necessary to resolve such competition concerns. However, given the prospective nature of proposed divestitures, there is frequently some uncertainty as to whether the remedy will be viable (i.e., whether the divestiture will be completed). Thus, an additional asset package (commonly referred to as a “crown jewel”) may be required as part of the remedy in order to reduce any such uncertainty.

37. Crown jewel provisions allow for specified asset(s) to be added or substituted into the initial divestiture package of asset(s), which limits any uncertainty by increasing the viability of the remedy. Importantly however, while crown jewel provisions do provide the vendor with an incentive for a timely completion of the initial divestiture package, such provisions are not intended to be punitive. That is, those asset(s) that comprise the crown jewel will, as much as possible, relate to the competitive harm.³¹ In other words, crown jewel provisions are intended to not only provide the vendor with an incentive to divest the initial divestiture package, but also to provide the Bureau with confidence that if the initial divestiture package is unsuccessful, there will still be a viable remedy available.

38. While crown jewel provisions are usually determined before the trustee period commences, such provisions are triggered only during the trustee period. Both the existence and content of crown jewel provisions are not made public until the trustee period commences. Crown jewel provisions are not required in a fix-it-first solution.

(c) Independence and Competitiveness of the Buyer

39. The suitability of a buyer (i.e., a market participant) is directly related to the viability and sufficiency of an asset package. An acceptable buyer must have both the ability and incentive to compete, so that competition will be preserved in the relevant market(s). The buyer must operate independently of the merged entity in all aspects of competition, even if various means of support (e.g. supply arrangements and other forms of technical assistance) are part of the remedy package for a transitional period of time. Ultimately, the acceptability of a buyer will depend on the particular facts of the case and will be guided by the Bureau’s understanding of the competitive dynamics in the market and the theory of competitive harm (e.g. unilateral and/or coordinated effects). The approval of any buyer, whether proposed by the vendor or the trustee, during either the initial or trustee sale period respectively, is a matter for the Bureau alone to determine.

40. The capabilities and resources of prospective buyers are especially critical with divestitures consisting of less than an autonomous business where the package of assets lacks an established infrastructure. In such cases, a successful outcome depends on finding an appropriate match between the asset package and the buyer. It may therefore sometimes be necessary for the vendor to identify the buyer up-front before the Bureau agrees to the remedy package. This is known as an “up-front buyer provision”.

41. An up-front buyer provision is different from a fix-it-first solution in that the buyer of the divested asset(s) must be approved by the Bureau in advance of registering a consent agreement, but the asset(s) are divested after the merger closes. This approach helps ensure the timeliness of the divestiture and the viability of the asset(s) to be divested, and may avoid the need for hold-separate provisions.³² Since up-front buyer provisions do not entail an open bidding process or public offering, the Bureau will exercise increased vigilance to ensure the buyer and vendor are independent of one another.

B. Quasi-Structural Remedies³³

42. In certain circumstances, an effective remedy may require the merging parties to take some action, in addition to or other than a divestiture, to remedy competition concerns. While allowing the merged entity to retain ownership of the asset(s) acquired in the merger, certain actions may have structural implications for the marketplace. This includes those actions that reduce barriers to entry, provide access to necessary infrastructure or key technology, or otherwise facilitate entry or expansion. Examples, under certain circumstances, include:

• licensing intellectual property;
• removing anti-competitive contract terms, such as non-competition clauses and restrictive covenants;
• granting non-discriminatory access rights to networks, especially when horizontal overlap is coupled with both vertical integration and a risk of foreclosure of inputs; or
• supporting the removal or reduction of quotas, tariffs, or other impediments imposed by regulatory bodies or industry groups, which may be achieved with the help of efforts by the merged entity.

43. While such measures may help preserve a competitive environment, it is necessary to fully examine their effects in the context of the particular industry as a whole. The Bureau will only accept quasi-structural remedies, if, once fully implemented, they adequately eliminate the substantial lessening or prevention of competition arising from the merger in the relevant market(s) on a continuing basis without the need for future intervention or monitoring. In other words, such remedies must satisfy the same requirements as any other structural remedy.

44. Remedial action involving intangible assets, such as intellectual property, is often accomplished through licensing rather than through an outright divestiture. While licensing agreements allow the merged entity to retain ownership rights to patents, trademarks, or other intellectual property, they may be quasi-structural when they reduce or eliminate an important barrier to entry by enabling one or more third parties (i.e., parties who otherwise possess the necessary capabilities) to participate in markets that, in the absence of the licence, would be foreclosed to them. Licensing can also be efficiency enhancing since it is less likely to discourage future research and development.

45. Before accepting a licensing agreement as a remedy, the Bureau will determine whether the scope of the licence must be:

(i) exclusive to the licensee;
(ii) co-exclusive, such that the merged firm can retain certain rights to use these asset(s), including the right to operate under the licensed intellectual property; or
(iii) non-exclusive, such that multiple firms can have access to the intellectual property through sub-licensing provisions.

46. The scope of the licensing agreement depends on the nature of the competitive harm and the particular facts of the case. For example, a licence will likely be exclusive only to the licensee when the intellectual property is product-specific and the merged entity can rely on its other intellectual property to compete effectively with the licensee in the relevant market. In contrast, it may be appropriate to allow the merged entity to retain certain usage rights when the intellectual property being licensed is primarily used for other products that are not part of the relevant market, and the merged entity requires such intellectual property for such other products. Sub-licensing may be appropriate when the owner of the intellectual property, pre-merger, previously licensed to multiple licensees and will likely engage in sub-licensing to other firms in the future.

C. Combination Remedies

47. A combination remedy refers to a structural divestiture combined with other relief that is behavioural in nature. Certain behavioural terms may help ensure an effective remedy is ultimately implemented when they supplement or complement the core structural remedy, especially if used during a transition or bridging period until a competitive market structure develops. Including behavioural components in a remedy may be useful if such components provide a buyer and/or other industry participants with the ability to operate effectively and as quickly as possible.

48. Examples of behavioural remedies that may support structural remedies include:

• short-term supply arrangements for the buyer of the asset(s) to be divested, at a price defined to approximate direct costs. This is especially effective if the buyer requires an immediate supply of inputs, but needs a short period of time to establish its own supply management capabilities;
• the provision of technical assistance to help a buyer or licensee train employees in complex technologies, especially for those technologies related to intellectual property;
• a waiver by the merged entity of restrictive contract terms that lock-in customers for long periods of time. This is especially effective when other switching costs deter customers from moving their business to the buyer of the divested asset(s); and
• codes of conduct, which can be readily monitored and expeditiously enforced by a third party (e.g. through binding arbitration procedures).

While such behavioural remedies may be important to the success of the buyer, and thus the preservation of competition, they would not, on their own, be effective alternatives to a successful structural remedy. Furthermore, as with all remedies, such behavioural remedies must require either minimal or no ongoing monitoring by the Bureau. Additionally, such remedies must be enforceable by either the Bureau or the Tribunal. If behavioural remedies do not meet such monitoring and enforceability criteria, the Bureau will neither agree to such remedies nor seek to impose them.

D. Standalone Behavioural Remedies

49. Standalone behavioural remedies are seldom accepted by the Bureau. It is difficult to design a behavioural remedy that will adequately replicate the outcomes of a competitive market. Even if such a remedy can be designed in clear and workable terms, it is likely to be less effective and more difficult to enforce than a structural remedy. Moreover, any attempt to provide for a standalone behavioural remedy usually imposes an ongoing burden on the Bureau and market participants, including the merged entity, rather than providing a permanent solution to a competition problem.

50. Standalone behavioural remedies may be acceptable when they are sufficient to eliminate the substantial lessening or prevention of competition arising from a merger, and there is no appropriate structural remedy. Additionally, as stated previously, standalone behavioural remedies must require either no or minimal future monitoring by the Bureau, and be enforceable by either the Bureau or the Tribunal. Otherwise, the Bureau will neither agree to such remedies nor seek to impose them.

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¹⁵ As stated by the Tribunal in Canada (Director of Investigation & Research, Competition Act) v. Imperial Oil Limited (1989) 89/03 at 86 - 88, “Orders which are sought from the Tribunal should be precise and enforceable without the need to return to the Tribunal for a variation or interpretation of those orders before they can be enforced. The Tribunal is not a regulatory agency. It does not see its role as one of continually monitoring an industry participant by reference to general standards. It has neither the staff nor the expertise to do so.” It also noted that “terms have to be sufficiently precise and unambiguous so that they can be enforced by way of contempt proceedings should a party not comply with them.”

¹⁶ In general, a structural remedy addresses the anti-competitive effects arising from a merger by directly intervening in the competitive structure of the market. Divestitures are the most common form of structural remedy. In some cases, a divestiture (or licensing) of intellectual property, so long as no ongoing monitoring and enforcement is required, may also be considered a structural remedy. A behavioural remedy, on the other hand, addresses the anti-competitive harms stemming from a merger by modifying or constraining the behaviour of the merging firms. Behavioural remedies are normally ongoing and require a substantial amount of monitoring and enforcement.

¹⁷ In its remedy decision, the Tribunal in Canada (Commissioner of Competition) v. Canadian Waste Services Holdings Inc. (October 3, 2001), CT-2000/002, stated at 110, “once there has been a finding that a merger is likely to substantially prevent or lessen competition, a remedy that permanently constrains that market power should be preferred over behavioural remedies that last over a limited period of time and require continuous monitoring of performance. This is not to say that, in cases where both the respondents and the Commissioner consent, behavioural remedies cannot be effective. However, the Tribunal notes that enforcing the remedy proposed by the respondents would have the potential of being cumbersome and time-consuming and that monitoring such order would involve the Commissioner in commercial conduct more than would the administration of the divestiture order.” Also see paragraph 111 where the Tribunal notes that divestitures are described by the U.S. Supreme Court as “simple, relatively easy to administer, and sure.”

¹⁸ In some cases, the severing of structural links through the elimination of interlocking directorates may be an effective alternative to the divestiture of assets.

¹⁹ A new market participant is a company that is not presently competing in the relevant market, but has the necessary capabilities (e.g. financial, managerial, or otherwise) to become an effective competitor. A newly formed entity with no significant experience in the market will not normally be an acceptable buyer.

²⁰ In such cases, the Bureau is also more likely to require crown jewel provisions, which are discussed further below.

²¹ This approach is commonly referred to as a “clean sweep”.

²² In some cases, before agreeing to a divestiture package, the Bureau may consult with industry experts to determine the market value of possible asset(s) to be divested.

²³ The Bureau will not normally agree to hold-separate arrangements prior to the merger closing.

²⁴ This is the primary objective of hold-separate provisions. In contrast, the Bureau will not normally agree to hold-separate provisions pending completion of a merger investigation. Moreover, if the Bureau has identified competition issues that require remedial action, but has not reached agreement with the merging parties regarding appropriate remedies, the Bureau will not normally agree to hold-separate provisions pending completion of negotiations.

²⁵ In some cases, depending on the circumstances, certain representations and warranties might need to be extended past the divestiture period.

²⁶ For the criteria in which the Bureau’s approval of a buyer is based, see the section in this Bulletin entitled Obtaining Bureau Approval of a Qualified Buyer.

²⁷ Based on both the Bureau’s past experience in Canada and the experience of competition authorities in other jurisdictions, the Bureau has determined that three to six months is an appropriate initial sale period. Nonetheless, within this range, the actual time period in a given case will be a reflection of the business realities in question.

²⁸ For example, such milestones will normally include: the preparation of offering materials, soliciting interest in the asset(s) to be divested, and entering into negotiations.

²⁹ The term “no minimum price” also includes those uncommon situations whereby the vendor will have to compensate (i.e., make payment to) the buyer. For example, in cases where the asset(s) to be divested cannot be separated from certain liabilities, the vendor will have to compensate the buyer for any costs associated with such liabilities. Similarly, in cases where the costs associated with such liabilities are uncertain, the vendor may need to indemnify the buyer.

³⁰ For example, this includes terms and provisions such as, but not limited to, “fair market value,” “going concern,” “liquidation price,” “going out of business,” and “fire sale.”

³¹ In other words, a crown jewel is essentially a mechanism for correcting an unsuccessful remedy by making the remedy more viable. When determining the contents of a crown jewel, the Southam standard, as discussed in section I of this Bulletin, will apply.

³² Up-front buyer provisions, however, do not obviate the need for “maintenance provisions.” See the section on Alternatives to Hold-Separate Provisions in this Bulletin for more information concerning maintenance provisions.

³³ Quasi-Structural Remedies are a sub-category of structural remedies in that they effect structural change.