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Frequently Asked Questions - #64

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FAQ-64

For purposes of the Part 1 Application, an entity no longer remains the Same Entity if, during a period between the qualification of bidders and three business days after the Board renders a decision on the results of the BGS-RSCP Auction, the entity consolidates into, amalgamates into, or merges into another corporate entity, regardless of whether such an event leads to a change in the entity’s legal or trade name.  Certifications required by the Part 1 Application ask the applicant to certify that it will remain the Same Entity.  

Energy Marketer A’s parent (“Parent A”) has plans to acquire another entity (“Parent B”).  Although timing is uncertain, these plans could receive all required regulatory approvals at some point between the qualification of bidders and three business days after the Board renders a decision on the results of the BGS-RSCP Auction.  Parent B will initially be a wholly owned subsidiary of Parent A.  Energy Marketer A will not be consolidated, amalgamated, or merged into another corporate entity as a result of the proposed merger.  Energy Marketer A will remain a direct, wholly owned subsidiary of its parent.

Would Energy Marketer A remain the Same Entity for purposes of these certifications required by the Part 1 Application?  Would Energy Marketer A be subject to additional requirements to participate in the BGS-RSCP Auction?


If Energy Marketer A continues to stand alone and conduct its business independently, and has not legally or effectively combined with any subsidiaries of the company with which its parent has merged, it would not be considered to have substituted, assigned or transferred its rights as a Qualified or Registered Bidder and would be considered the Same Entity.

We are assuming that no other subsidiary of the merging parents is participating in the auctions.  If, on the contrary, Parent A and Parent B do merge between the time of qualifications and three days after the Board renders a decision on the auction results and a subsidiary of Parent B is a Qualified Bidder, then an additional and immediate issue arises with respect to the Association and Confidential Information Rules.  Energy Marketer A will have certified in its Part 2 Application that it is not associated with any other Qualified Bidder.  Energy Marketer A would violate this certification of the Part 2 Application upon the merger of Parent A with Parent B if a subsidiary Parent B was also a Qualified Bidder.  Indeed, in this case, Energy Marketer A and Energy Marketer B, the subsidiary of Parent B and another Qualified Bidder in the auction, would become sister companies and thereby associated with each other.  Bidders that are known to be associated or to have become associated and have not declared an association in the Part 2 Application, and have not declared in the Part 1 Application a bidding agreement, joint venture for the purpose of bidding in the auction, bidding consortium, or other arrangement pertaining to bidding in the auction, are subject to sanctions, including forfeiting the right to any further participation in the auctions.

Even if, as it appears from your description of the situation, Energy Marketer A will remain the Same Entity and will not be considered to have substituted, assigned or transferred its rights as a Qualified or Registered Bidder, the Auction Manager may ask Energy Marketer A to certify that procedures are in place to keep its business separate from other affiliates including through corporate personnel who may communicate across affiliates.  Furthermore, the Auction Manager may require additional information or additional undertakings to ensure continued compliance with the Association and Confidential Information Rules, such as ensuring that no confidential information (relative to its bidding strategy or regarding the Auction Process) would be exchanged with its affiliates as a result of the merger of its parent.



11/15/2021, in Association and Confidential Information Rules.

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