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Mastercardvocalink Uils Acceptance

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Mastercardvocalink Uils Acceptance ANTICIPATED ACQUISITION BY MASTERCARD UK HOLDCO LIMITED (“MASTERCARD”) OF VOCALINK HOLDINGS LIMITED (“VOCALINK”) Undertakings given by Mastercard to the Competition and Markets Authority (“CMA”) pursuant to section 73 of the Enterprise Act 2002 Whereas: (a) Mastercard notified its proposed acquisition of VocaLink (the “Transaction”) to the CMA on 19 October 2016; (b) Under section 22(1) of the Enterprise Act 2002 (the “Act”), the CMA has a duty to refer a relevant merger situation for a Phase 2 investigation where it believes that it is or may be the case that the creation of that merger situation has resulted or may be expected to result in a substantial lessening of competition within any market or markets in the UK for goods or services; (c) Under section 73 of the Act the CMA may, instead of making such a reference and for the purpose of remedying, mitigating, or preventing the substantial lessening of competition concerned or any adverse effect which has or may have resulted from it or may be expected to result from it, accept undertakings to take such action as it considers appropriate, from such of the parties concerned as it considers appropriate. In particular, the CMA shall have regard to the need to achieve as comprehensive a solution as is reasonable and practicable to the substantial lessening of competition and any adverse effects resulting from it; (d) As set out in the CMA's decision of 4 January 2017 (the “Decision”), the CMA believes that, in the absence of appropriate undertakings, it would be under a duty to refer the Transaction for a Phase 2 investigation; (e) The CMA considers that the undertakings given below by Mastercard are appropriate to remedy, mitigate, or prevent the substantial lessening of competition, or any adverse effect which has or may have resulted from the Transaction, or may be expected to result from it as specified in the Decision. NOW THEREFORE Mastercard hereby gives to the CMA the following undertakings for the purpose of remedying, mitigating or preventing the substantial lessening of competition, or any adverse effect which has or may have resulted from it or may be expected to result from it. 1. EFFECTIVE DATE OF UNDERTAKINGS 1.1 These undertakings shall take effect from the date that having been signed by Mastercard, they are accepted by the CMA. 2. MASTERCARD'S UNDERTAKINGS 2.1 Prior to the acceptance of these undertakings by the CMA, Mastercard and VocaLink shall enter into a legally binding agreement (or agreements) with LINK Scheme Limited (“LSL”) pursuant to which the parties thereto shall commit to, on reasonable terms approved by the CMA in advance of acceptance of these undertakings: 194105-3-17875-v9.1 - 1 - 70-40621905 a) a “Network Access Remedy” by which Mastercard will procure that any party, other than a company in the group of companies (including Mastercard) that are controlled by Mastercard Incorporated (“Mastercard group”), selected by LSL to replace VocaLink as the provider of automatic teller machine (“ATM”) transaction processing services to the interbank network of ATM machines administered by LSL (“LINK”) (such party a “New Processor”) will be granted access by VocaLink to its existing communications infrastructure used in its provision of ATM transaction processing services to LINK, as follows: i. The duration of the Network Access Remedy (the “NAR Term”) will be until the earlier of: (A) the end of two consecutive periods of time, each period starting with the effective date of the contract for the provision of ATM transaction processing to LINK awarded by LSL following a competitive tender process, and finishing with the end of the term of that contract (each such period a “Tender Cycle”); (B) the commencement of either of the next two Tender Cycles, if at that time VocaLink is not the provider of ATM transaction processing services to LINK or the provider of the underlying communications infrastructure as set out in paragraph 2.1(a); (C) the date on which the New Processor notifies VocaLink that it no longer requires access to its communications infrastructure; (D) the date of award of the contract for the provision of ATM transaction processing to LINK pursuant to the second competitive tender process following the acceptance of these undertakings, if VocaLink is awarded the contract; (E) the release of the Network Access Remedy following review by the CMA pursuant to sub-paragraph 2.1(a)(xv); (F) 15 years from the commencement of the first Tender Cycle following the acceptance of these undertakings (the “First Tender Cycle”); and (G) 20 years from the date of acceptance of these undertakings; ii. VocaLink will be maintained as a separate legal entity within the Mastercard group for the NAR Term, unless another member of the Mastercard group acquires ownership or direct control of the ATM transaction processing business activities currently carried on by VocaLink prior to the expiration of the NAR Term, in which case Mastercard will require that such entity observes the terms of these undertakings in all respects as if it were VocaLink; 194105-3-17875-v9.1 - 2 - 70-40621905 iii. VocaLink, pursuant to an agreement to be entered into with the New Processor and/or LSL1, will connect the New Processor into its existing communications infrastructure that provides connectivity between VocaLink's switching capability and each LINK member's point of access to the system, enabling the New Processor to take advantage of a single connection (plus a back-up connection) to this infrastructure rather than having to connect separately to each individual LINK member. This agreement will specify the date on which VocaLink will commence providing the network access services to the New Processor, including provision for a period of migration prior to the date when the New Processor will replace VocaLink as provider of the ATM transaction processing services to LINK. Mastercard and VocaLink will cooperate with both the New Processor and LSL in good faith with the aim of ensuring an orderly transition and exit from VocaLink's provision of services to LSL; iv. VocaLink will only allow LINK Network Restricted Information to be used for the purposes of providing network access services, and will restrict the access of VocaLink personnel to any LINK Network Restricted Information as follows: (A) promptly following the appointment of the New Processor, VocaLink shall provide to LSL a written list of VocaLink personnel who shall require access to certain network level data to provide network access services VocaLink shall require such personnel to comply with the provisions of this sub-paragraph 2.1(a)(iv), and shall ensure that such personnel have received appropriate training and signed an appropriate confidentiality undertaking in respect of the information prior to being given such access; (B) VocaLink shall promptly notify LSL of any changes to that list; (C) if the New Processor requires services from VocaLink that require access to any LINK Network Restricted Information (for example, in respect of ‘troubleshooting’), VocaLink shall notify LSL of such and maintain a record of any such information accessed by VocaLink personnel for such purpose; (D) any LINK Network Restricted Information required to be reported by VocaLink personnel to others within VocaLink 1 The agreement will be between VocaLink and the New Processor, unless LSL (in its absolute discretion) notifies VocaLink that it wishes to enter into either a tripartite agreement between VocaLink, LSL and the New Processor or a direct agreement between VocaLink and LSL. Upon such notice, the parties will use their reasonable endeavours to agree the terms of such an agreement. If VocaLink enters into the agreement with LSL and not the New Processor, any obligation of VocaLink to the New Processor in these undertakings shall be construed as an obligation of VocaLink to LSL. 194105-3-17875-v9.1 - 3 - 70-40621905 or elsewhere will be only for a lawful legitimate purpose2 and appropriately anonymised or aggregated so that transactional activity of individual LINK members or competitively sensitive information related to LSL, a LINK member and/or a New Processor is not provided or cannot be determined; and (E) VocaLink shall not disclose any LINK Network Restricted Information to any personnel of any Mastercard group company whose responsibilities include providing any service or function primarily for or primarily relating to, or otherwise integral to the operation, marketing or management of, any Mastercard group company scheme without the prior written consent of LSL (such consent not to be unreasonably withheld), except in accordance with the current Amended and Restated Switching and Settlement Agreement between VocaLink, LSL and the current LINK members (“S&S Agreement”). v. VocaLink will charge the New Processor for the relevant costs it incurs in providing the network from its external communications provider (“ECP”); vi. VocaLink will charge the New Processor for its direct, reasonable and substantiated costs (up to 10% of the costs charged to it by the ECP, excluding VAT) as compensation for its monitoring and maintaining of the network. VocaLink will provide reasonable evidence of these costs (and the costs it incurs from the ECP) to the New Processor and to the Trustee , upon request; vii. VocaLink will allocate a reasonable proportion of the costs incurred in connection with its communications infrastructure network to the New Processor, using a transparent cost allocation methodology based on objective criteria set out in the agreement implementing these undertakings; viii. VocaLink will respond to reasonable requests from the New Processor for changes to the network (such as, but not limited to, data centre moves or the addition, removal or merging of LINK scheme members) within five Working Days (or such shorter timeframe agreed with the New Processor), and agree a reasonable time for implementation of such requests, at the New Processor's cost and expense; ix.
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