Mylan/Upjohn Undertaking and related Pfizer Undertaking

Mylan/Upjohn Undertaking

On 10 September 2020, the ACCC announced it had accepted an undertaking (the Mylan/Upjohn Undertaking) given by Mylan N.V. and its subsidiary Alphapharm Pty Ltd (together, Mylan Parties) and Upjohn Inc. and its subsidiary Upjohn Australia Pty Ltd (together, Upjohn Parties) pursuant to s 87B of the Competition and Consumer Act 2010 (Cth) in connection with Mylan N.V’s proposed combination with a new entity (Viatris) comprised of Pfizer’s Upjohn Inc. division, including Greenstone LLC (the Proposed Transaction).

The ACCC was concerned that without the Mylan/Upjohn Undertaking, the Proposed Transaction would have the effect, or would be likely to have the effect, of substantially lessening competition for the supply of pharmaceutical products based on:

1. the molecule Latanoprost;
2. the combination of the molecules Latanoprost/Timolol; and
3. the combination of the molecules Amlodipine/Atorvastatin

to (i) pharmacies and (ii) hospitals in Australia (each a Relevant Market and together Relevant Markets).

The objective of the Mylan/Upjohn Undertaking is to address the ACCC’s competition concerns, as set out above, that would otherwise arise because of the Proposed Transaction by divesting the Divestiture Business (comprising the Divestiture Brands Caduet, Xalatan, and Xalacom).

The Mylan/Upjohn Undertaking aims to achieve this objective by placing obligations on the Mylan Parties and Upjohn Parties to:

1. ensure that the Divestiture Business is sold to an Approved Purchaser that will result in the creation or strengthening of a viable, effective, stand-alone, independent and long term competitor in each of the Relevant Markets;
2. ensure the purchaser of the Divestiture Business has all the necessary associated assets and rights to compete effectively with the Mylan Parties and Upjohn Parties in the supply of each of the Divestiture Brands in Australia;
3. maintain the economic viability, marketability, competitiveness and goodwill of the Divestiture Business prior to divestiture; and 
4. provide for the effective oversight of the Mylan Parties and Upjohn Parties’ compliance with the Mylan/Upjohn Undertaking.

Pfizer Undertaking

To support the Mylan/Upjohn Undertaking (outlined above), the ACCC announced it had also accepted an undertaking given by Pfizer Inc. and Pfizer Australia Pty Ltd (together, Pfizer) pursuant to s 87B of the Competition and Consumer Act 2010 (Cth) in connection with the Proposed Transaction (the Pfizer Undertaking).

The objective of the Pfizer Undertaking is to support the operation of the Mylan/Upjohn Undertaking, by ensuring that Pfizer enables and facilitates, and does not hinder or prevent the Mylan Parties and Upjohn Parties complying with the Mylan/Upjohn Undertaking. This Undertaking achieves this objective by placing obligations on Pfizer to:

1. promptly facilitate, and not unreasonably withhold any required consents, to the disposal of the Divestiture Business to an Approved Purchaser pursuant to the Mylan/Upjohn Undertaking;
2. maintain the economic viability, marketability, competitiveness and goodwill of the Divestiture Business prior to completion of the Proposed Transaction; and
3. provide or cause to be provided, to the Mylan Parties and Upjohn Parties the same transitional services that would have been provided to the Mylan Parties and Upjohn Parties, notwithstanding that such Divestiture Business will have been divested to the applicable Approved Purchaser.