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Common use of IT IS FURTHER ORDERED that Clause in Contracts

IT IS FURTHER ORDERED that. If Respondent has not divested the AutoInfo Assets pursuant to and within the time required by Paragraph II.A., the Commission may appoint a trustee to divest the Trustee Assets. The trustee shall have all rights and powers necessary to permit the trustee to effect the divestiture of the Trustee Assets in order to assure the viability, competitiveness, and marketability of the Trustee Assets and to accomplish the remedial purposes of this Order. In the event that the Commission or the Attorney General brings an action pursuant to § 5(l) of the Federal Trade Commission Act, 15 U.S.C. § 45(l), or any other statute enforced by the Commission, Respondent shall consent to the appointment of a trustee in such action. Neither the appointment of a trustee nor a decision not to appoint a trustee under this Paragraph shall preclude the Commission or the Attorney General from seeking civil penalties or any other relief available to it, including a court-appointed trustee, pursuant to § 5(l) of the Federal Trade Commission Act, or any other statute enforced by the Commission, for any failure by the Respondent to comply with this Order. PROVIDED, HOWEVER, the trustee may, at his or her option and in satisfaction of his or her obligations under this Paragraph III.A., require ADP to terminate its role as the ARA Database Collector pursuant to the ARA Database Agreement. PROVIDED, HOWEVER, Respondent shall grant to any entity that becomes the ARA Database Collector, if such entity is not the Acquirer, a royalty-free license to the Xxxxxxxxx Interchange to use solely for purposes of collecting and transmitting data and managing and operating a database for the ARA pursuant to a data collection agreement with the ARA. PROVIDED, HOWEVER, Respondent may retain a non-exclusive, paid-up license to the AutoInfo Interchange as of the date of the divestiture, excluding supplier and service contracts, research and development, and other tangible and intangible assets used in the development and maintenance of the AutoInfo Interchange.

Appears in 1 contract

Samples: Consent Order

IT IS FURTHER ORDERED that. A. If Respondent has Respondents have not divested absolutely and in good faith the AutoInfo Rite Aid North Carolina/Charleston Retail Assets and the Thrift Retail Assets pursuant to and within the time required by Paragraph II.A.II.A. of this Order, the Commission may appoint a trustee to divest the Trustee Assets. The trustee shall have all rights and powers necessary to permit the trustee to effect the divestiture of the Trustee Assets in order to assure the viability, competitiveness, and marketability of the Trustee Rite Aid Retail Assets and the Thrift Retail Assets; or if the Respondents have not divested absolutely and in good faith the Thrift Retail Assets pursuant to accomplish the remedial purposes Paragraph II.B. of this Order, the Commission may appoint a trustee to divest the Thrift Retail Assets. In the event that the Commission or the Attorney General brings an action pursuant to § 5(l5( l) of the Federal Trade Commission Act, 15 U.S.C. § 45(l45( l), or any other statute enforced by the Commission, Respondent Respondents shall consent to the appointment of a trustee in such action. Neither the appointment of a trustee nor a decision not to appoint a trustee under this Paragraph shall preclude the Commission or the Attorney General from seeking civil penalties or any other relief available to it, including a court-appointed trustee, trustee pursuant to § 5(l5( 1) of the Federal Trade Commission Act, or any other statute enforced by the Commission, for any failure by the Respondent Respondents to comply with this Order. B. If a trustee is appointed by the Commission or a court pursuant to Paragraph III.A. of this Order, Respondents shall consent to the following terms and conditions regarding the trustee's powers, duties, authority, and responsibilities: 1. PROVIDEDThe Commission shall select the t rustee, HOWEVERsubject to the consent of Respondents, which consent shall not be unreasonably withheld. The trustee shall be a person with experience and expertise in acquisitions and divestitures. If Respondents have not opposed, in writing, including the reasons for opposing, the selection of any proposed trustee within ten (10) days after receipt of written notice by the staff of the Commission to Respondents of the identity of any proposed trustee, Respondents shall be deemed to have consented to the selection of the proposed trustee. 2. Subject to the prior approval of the Commission, the trustee mayshall serve as an agent of the Commission and shall have the exclusive power and authority to divest the Rite Aid Retail Assets and the Thrift Retail Assets. 3. Within ten (10) days after appointment of the trustee, Respondents shall execute a trust agreement that, subject to the prior approval of the Commission, and in the case of a court-appointed trustee, of the court, transfers to the trustee all rights and powers necessary to permit the trustee to effect the divestiture required by this Order. 4. The trustee shall have twelve (12) months from the date the Commission approves the trust agreement described in Paragraph III.B.3. to accomplish the divestiture, which shall be subject to the prior approval of the Commission. If, however, at the end of the twelve (12) month period, the trustee has submitted a plan of divestiture or believes that divestiture can be achieved within a reasonable time, the divestiture period may be extended by the Commission, or in the case of a court-appointed trustee, by the court; provided, however, the Commission may extend this period only two (2) times for up to twelve (12) months each time. 5. The trustee shall have full and complete access to the personnel, books, records and facilities related to the Rite Aid Retail Assets and the Thrift Retail Assets or to any other relevant information, as the trustee may reasonably request. Respondents shall develop such financial or other information as such trustee may reasonably request and shall cooperate with the trustee. Respondents shall take no action to interfere with or impede the trustee's accomplishment of the divestiture. Any delays in divestiture caused by Respondents shall extend the time for divestiture under this Paragraph in an amount equal to the delay, as determined by the Commission or, for a court- appointed trustee, by the court. 6. The trustee shall use his or her option best efforts to negotiate the most favorable price and terms available in satisfaction each contract that is submitted to the Commission, subject to the trustee s fiduciary duty to the Commission and to Respondents' absolute and unconditional obligation to divest at no minimum price. The divestiture shall be made to an acquirer that receives the prior approval of the Commission and only in a manner that receives the prior approval of the Commission. In the event that the trustee receives bona fide offers from more than one acquiring entity, the trustee shall submit all such bids to the Commission, and if the Commission determines to approve more than one such acquiring entity for the Rite Aid Retail Assets and the Thrift Retail Assets, the trustee shall divest to the acquiring entity selected by Respondents from among those approved by the Commission. 7. The trustee shall serve, without bond or other security, at the cost and expense of Respondents, on such reasonable and customary terms and conditions as the Commission or a court may set. The trustee shall have the authority to employ, at the cost and expense of Respondents, and at reasonable fees, such consultants, accountants, attorneys, investment bankers, business brokers, appraisers, and other representatives and assistants as are necessary to carry out the trustee s duties and responsibilities. The trustee shall account for all monies derived from the divestiture and all expenses incurred. After approval by the Commission and, in the case of a court-appointed trustee, by the court, of the account of the trustee, including fees for his or her obligations under this Paragraph III.A.services, require ADP to terminate its role as all remaining monies shall be paid at the ARA Database Collector pursuant direction of the Respondents, and the trustee's power shall be terminated. The trustee's compensation shall be based at least in significant part on a commission arrangement contingent on the trustee's divesting the Rite Aid Retail Assets and the Thrift Retail Assets. 8. Respondents shall indemnify the trustee and hold the trustee harmless against any losses, claims, damages, liabilities, or expenses arising out of, or in connection with, the performance of the trustee's duties, all reasonable fees of counsel and other expenses incurred in connection with the preparation for, or defense of any claim, whether or not resulting in any liability, except to the ARA Database Agreementextent that such liabilities, losses, damages, claims, or expenses result from misfeasance, gross negligence, willful or wanton acts, or bad faith by the trustee. 9. PROVIDED, HOWEVER, Respondent shall grant If the trustee ceases to any entity that becomes the ARA Database Collector, if such entity is not the Acquireract or fails to act diligently, a royalty-free license to substitute trustee shall be appointed in the Xxxxxxxxx Interchange to use solely for purposes same manner as provided in Paragraph III.A. of collecting and transmitting data and managing and operating this Order. 10. The Commission or, in the case of a database for court- appointed trustee, the ARA pursuant to a data collection agreement with court, may on its own initiative or at the ARA. PROVIDED, HOWEVER, Respondent may retain a non-exclusive, paid-up license to the AutoInfo Interchange as request of the date trustee issue such additional Orders or directions as may be reasonably necessary or appropriate to accomplish the divestiture required by this Order. 11. The trustee shall also divest such additional ancillary assets and businesses and effect such arrangements as are necessary to assure the marketability and the viability and competitiveness of the Rite Aid Retail Assets and the Thrift Retail Assets. 12. The trustee shall have no obligation or authority to operate or maintain the Rite Aid Retail Assets and the Thrift Retail Assets. 13. The trustee shall report in writing to Respondents and the Commission every sixty (60) days concerning the trustee's efforts to accomplish divestiture, excluding supplier and service contracts, research and development, and other tangible and intangible assets used in the development and maintenance of the AutoInfo Interchange.

Appears in 1 contract

Samples: Consent Order

IT IS FURTHER ORDERED that. A. If Respondent Novartis has not divested divested, absolutely and in good faith and with the AutoInfo Assets pursuant to and Commission's prior approval, the Sandoz Corn Herbicide Business within the time required by Paragraph II.A.II of this Order, the Commission may appoint one or more trustees, or direct the trustee appointed pursuant to Paragraph VIII of this Order, to divest the Sandoz Agricultural Chemical Business. CIBA-GEIGY LIMITED AND SANDOZ LTD. AGREEMENT CONTAINING CONSENT ORDER Page 26 of 36 B. If Respondent Novartis has not divested, absolutely and in good faith and with the Commission's prior approval, the Sandoz Animal Health Business within the time required by Paragraph III of this Order, the Commission may appoint a trustee or direct the trustee appointed pursuant to Paragraph VII of this Order, to divest the Sandoz Animal Health Business. C. If Respondents have not, by September 1, 1997, complied with the requirements of Paragraph IX. A. of this Order, the Commission may appoint a trustee to divest the Trustee Assets. The trustee shall have all rights and powers necessary HSV-tk Business to permit a buyer that receives the trustee to effect the divestiture prior approval of the Trustee Assets in order to assure the viability, competitivenessCommission, and marketability in a manner that receives the prior approval of the Trustee Assets and to accomplish the remedial purposes Commission, at no minimum price. If Respondent Novartis has not, by September 1, 1997, complied with requirements of Paragraph IX.D. of this Order. , the Commission may appoint a trustee to convert Respondent Novartis' exclusive rights to the beta-domain deleted Factor VIII gene from Genetics Institute to a non-exclusive license. D. In the event that the Commission or the Attorney General brings an action pursuant to § Section 5(l) of the Federal Trade Commission Act, 15 U.S.C. § Section 45(l), or any other statute enforced by the Commission, Respondent Respondents shall consent to the appointment of a trustee in such action. Neither the appointment or extension of responsibilities of a trustee nor a decision not to appoint or extend the responsibilities of a trustee trustee, under this Paragraph shall preclude the Commission or the Attorney General from seeking civil penalties or any other relief available to it, including a court-appointed trustee, pursuant to § Section 5(l) of the Federal Trade Commission Act, 15 U.S.C. Section 45(l), or any other statute enforced by the Commission, for any failure by the Respondent Respondents to comply with this Order. E. If a trustee is appointed or directed by the Commission or a court pursuant to Subparagraph A. of this Paragraph to divest the Sandoz Agricultural Chemical Business, or pursuant to Subparagraph B. of this Paragraph to divest the Sandoz Animal Health Business, or pursuant to Subparagraph C. of this Paragraph to divest the HSV-tk Business, Respondents shall consent to the following terms and conditions regarding the trustee's powers, duties, authority, and responsibilities: 1. PROVIDEDThe Commission shall select the trustee, HOWEVERsubject to the consent of Respondents, which consent shall not be unreasonably withheld. The trustee shall be a person with experience and expertise in acquisitions and divestitures. If Respondents have not opposed, in writing, including the reasons for opposing the selection of any proposed trustee within ten (10) days after notice by the staff of the Commission to Respondents of the identity of any proposed trustee, Respondents shall be deemed to have consented to the selection of the proposed trustee. 2. If a trustee is directed under Subparagraph A. of this Paragraph to divest the Sandoz Agricultural Chemical Business, the Commission may extend the authority and responsibilities of the trustee appointed under Paragraph VIII of this Order to include divesting the Sandoz Agricultural Chemical Business. 3. If a trustee is directed under Subparagraph B. of this Paragraph to divest the Sandoz Animal Health Business, the Commission may extend the authority and responsibilities of the trustee appointed under Paragraph VIII of this Order to include divesting the Sandoz Animal Health Business. 4. If a trustee is directed under Subparagraph C. of this Paragraph to divest the HSV-tk Business, the Commission may extend the authority and responsibilities of the trustee appointed under Paragraph VIII of this Order to include divesting the HSV-tk Business. If a trustee is directed under Subparagraph C. of this Paragraph to convert Respondent Novartis' exclusive rights to the beta-domain deleted Factor VIII gene from Genetics Institute to a non-exclusive license, the Commission may extend the authority and responsibilities of the trustee appointed under Paragraph VIII of this Order to include converting Respondent Novartis' exclusive rights to the beta-domain deleted Factor VIII gene from Genetics Institute to a non-exclusive license. 5. Subject to the prior approval of the Commission and consistent with Paragraphs II through IX, the trustee mayshall have the exclusive power and authority to divest the assets identified in the Commission's appointment or extension of the trustee's authority and responsibilities. 6. Within ten (10) days after the appointment of the trustee or the extension of the trustee's authority and responsibilities, Respondents shall execute a trust agreement, or shall amend the existing trust agreement in a manner that, subject to the prior approval of the Commission and, in the case of a court-appointed trustee, of the court, transfers to the trustee all rights and powers necessary to permit the trustee to effect the divestiture required by this Order. 7. The trustee shall have twelve (12) months from the date the Commission approves the trust agreement or the amended trust agreement, described in Subparagraph E. of this Paragraph, to accomplish the divestiture or divestitures, which shall be subject to the prior approval of the Commission. If, however, at the end of the applicable twelve- month period, the trustee has submitted a plan of divestiture or believes that divestiture can be achieved within a reasonable time, such divestiture period may be extended by the Commission, or, in the case of a court- appointed trustee, by the court; provided, however, the Commission may extend each divestiture period only two (2) times. 8. The trustee shall have full and complete access to the personnel, books, records and facilities related to the Sandoz Agricultural Chemical Business, the Sandoz Animal Health Business, the HSV-tk Business, the license to hemophilia patents and/or patent applications granted to Respondent Novartis by Genetics Institute, or to any other relevant information, as the trustee may request. Respondents shall develop such financial or other information as such trustee may request and shall cooperate with the trustee. Respondents shall take no action to interfere with or impede the trustee's accomplishment of the divestitures. Any delays in divestiture caused by Respondents shall extend the time for divestiture under this Paragraph in an amount equal to the delay, as determined by the Commission or, for a court-appointed trustee, by the court. 9. The trustee shall make every reasonable effort to negotiate the most favorable price and terms available in each contract submitted to the Commission, subject to Respondents' absolute and unconditional obligation to divest at no minimum price. The divestiture shall be made in the manner and to the Agricultural Chemical Acquirer as set out in Paragraph II of this Order, or to the Animal Health Business Acquirer as set out in Paragraph III of this Order, or to the acquirer of the HSV-tk Business as set out in Paragraph X.C. of this Order, as applicable; provided, however, if the trustee receives bona fide offers from more than one acquiring entity for the Sandoz Agricultural Chemicals Business, or for the Sandoz Animal Health Business, or for the HSV-tk Business, and if the Commission determines to approve more than one such acquiring entity, the trustee shall divest to the acquiring entity or entities selected by Respondents from among those approved by the Commission. 10. The trustee shall serve, without bond or other security, at the cost and expense of Respondents, on such reasonable and customary terms and conditions as the Commission or a court may set. The trustee shall have the authority to employ, at the cost and expense of Respondents, such consultants, accountants, attorneys, investment bankers, business brokers, appraisers, and other representatives and assistants as are necessary to carry out the trustee's duties and responsibilities. The trustee shall account for all monies derived from the divestiture and all expenses incurred. After approval by the Commission and, in the case of a court- appointed trustee, by the court, of the account of the trustee, including fees for his or her option services, all remaining monies shall be paid at the direction of the Respondents, and the trustee's power shall be terminated. The trustee's compensation shall be based at least in satisfaction significant part on a commission arrangement contingent on the trustee's divesting the Sandoz Agricultural Chemical Business, the Sandoz Animal Health Business, or the HSV-tk Business, as applicable. 11. Respondents shall indemnify the trustee and hold the trustee harmless against any losses, claims, damages, liabilities, or expenses arising out of, or in connection with, the performance of his the trustee's duties, including all reasonable fees of counsel and other expenses incurred in connection with the preparation for, or her obligations under defense of any claim, whether or not resulting in any liability, except to the extent that such liabilities, losses, damages, claims, or expenses result from misfeasance, gross negligence, willful or wanton acts, or bad faith by the trustee. 12. If the trustee ceases to act or fails to act diligently, a substitute trustee shall be appointed in the same manner as provided in Paragraph VIII or this Paragraph III.A.of this Order. 13. The Commission or, require ADP in the case of a court-appointed trustee, the court, may on its own initiative or at the request of the trustee issue such additional Orders or directions as may be necessary or appropriate to terminate its role as accomplish the ARA Database Collector divestiture required by this Order. 14. In the event that the trustee determines that he or she is unable to divest the Sandoz Agricultural Chemical Business, if directed to divest pursuant to Subparagraph A. of this Paragraph, in a manner consistent with the ARA Database Agreement. PROVIDED, HOWEVER, Respondent shall grant Commission's purpose as described in Paragraph II of this Order; or in the event that the trustee determines that he or she is unable to any entity that becomes divest the ARA Database CollectorSandoz Animal Health Business, if such entity directed to divest pursuant to Subparagraph B. of this Paragraph, in a manner consistent with the Commission's purpose as described in Paragraph III of this Order; or in the event that the trustee determines that he or she is not unable to divest the AcquirerHSV-tk Business, if directed to divest pursuant to Subparagraph C. of this Paragraph, in a royalty-free license manner consistent with the Commission's purpose as described in Paragraph IX.A.2. of this Order, the trustee may divest additional assets ancillary to the Xxxxxxxxx Interchange Sandoz Agricultural Chemical Business, ancillary to use solely for purposes the Sandoz Animal Health Business, or as applicable, ancillary to the HSV-tk Business, and effect such arrangements as are necessary to satisfy the requirements of collecting this Order. 15. The trustee shall have no obligation or authority to operate or maintain the Sandoz Agricultural Chemical Business, the Sandoz Animal Health Business, or the HSV-tk Business. 16. The trustee shall report in writing to Respondents and transmitting data the Commission every sixty (60) days concerning the trustee's efforts to accomplish divestiture. CIBA-GEIGY LIMITED AND SANDOZ LTD. AGREEMENT CONTAINING CONSENT ORDER Page 30 of 36 XI. IT IS FURTHER ORDERED that, Respondents shall comply with all terms of the Agreement to Hold Separate attached to this Order and managing made a part hereof as Appendix I. The Agreement to Hold Separate shall continue in effect until (a) with respect to the Sandoz Corn Herbicide Business, such time as Respondents have divested the Sandoz Corn Herbicide Business and operating a database for (b) with respect to the ARA Sandoz Animal Health Business, such time as Respondents have divested the Sandoz Animal Health Business pursuant to Paragraphs II and III of this Order; or, if a data collection agreement with trustee is appointed or the ARA. PROVIDEDtrustee's authorities and responsibilities have been extended pursuant to Paragraph X of this Order, HOWEVER, Respondent may retain a non-exclusive, paid-up license the Agreement to Hold Separate shall continue in effect until such time as Respondents or the AutoInfo Interchange as trustee have divested all of the date of Sandoz Animal Health Business and, as applicable, the divestiture, excluding supplier and service contracts, research and development, and other tangible and intangible assets used in Sandoz Corn Herbicide Business or the development and maintenance of the AutoInfo InterchangeSandoz Agricultural Chemical Business pursuant to this Order.

Appears in 1 contract

Samples: Compensation Agreement (Chiron Corp)

IT IS FURTHER ORDERED that. A. If Respondent has not divested Respondents fail to divest absolutely and in good faith the AutoInfo Assets To Be Divested pursuant to and within the time required by Paragraph II.A.II.A. of this Order, the Commission may appoint a trustee to divest the Trustee Assets. The trustee shall have all rights and powers necessary to permit the trustee to effect the divestiture of the Trustee Assets in order to assure the viability, competitiveness, and marketability of the Trustee Assets and to accomplish the remedial purposes of this Order. To Be Divested. B. In the event that the Commission or the Attorney General brings an action pursuant to § 5(l) of the Federal Trade Commission Act, 15 U.S.C. § 45(l), or any other statute enforced by the Commission, Respondent Respondents shall consent to the appointment of a trustee in such action. Neither the appointment of a trustee nor a decision not to appoint a trustee under this Paragraph shall preclude the Commission or the Attorney General from seeking civil penalties or any other relief available to it, including a court-appointed trustee, pursuant to § 5(l) of the Federal Trade Commission Act, or any other statute enforced by the Commission, for any failure by the Respondent Respondents to comply with this Order. C. If a trustee is appointed by the Commission or a court pursuant to Paragraph III.A. of this Order, Respondents shall consent to the following terms and conditions regarding the trustee's powers, duties, authority, and responsibilities: 1. PROVIDEDThe Commission shall select the trustee, HOWEVERsubject to the consent of Respondents, which consent shall not be unreasonably withheld. The trustee shall be a person with experience and expertise in acquisitions and divestitures. If Respondents have not opposed, in writing, including the reasons for opposing, the selection of any proposed trustee within ten (10) days after notice by the staff of the Commission to Respondents of the identity of any proposed trustee, Respondents shall be deemed to have consented to the selection of the proposed trustee. 2. Subject to the prior approval of the Commission, the trustee mayshall have the exclusive power and authority to divest the Assets To Be Divested. 3. Within ten (10) days after appointment of the trustee, Respondents shall execute a trust agreement that, subject to the prior approval of the Commission and, in the case of a court-appointed trustee, of the court, transfers to the trustee all rights and powers necessary to permit the trustee to effect each divestiture required by this Order. 4. The trustee shall have twelve (12) months from the date the Commission or court approves the trust agreement described in Paragraph III.C.3. to accomplish the divestitures, which shall be subject to the prior approval of the Commission. If, however, at the end of the twelve-month period, the trustee has submitted a plan of divestiture or believes that divestiture can be achieved within a reasonable time, the divestiture period may be extended by the Commission, or, in the case of a court-appointed trustee, by the court; provided, however, the Commission may extend the period for each divestiture only two (2) times. 5. The trustee shall have full and complete access to the personnel, books, records, and facilities related to the Assets To Be Divested or to any other relevant information, as the trustee may request. Respondents shall develop such financial or other information as such trustee may reasonably request and shall cooperate with the trustee. Respondents shall take no action to interfere with or impede the trustee's accomplishment of the divestitures. Any delays in divestiture caused by Respondents shall extend the time for divestiture under this Paragraph in an amount equal to the delay, as determined by the Commission or, for a court- appointed trustee, by the court. 6. The trustee shall use his or her option best efforts to negotiate the most favorable price and terms available in satisfaction each contract that is submitted to the Commission, subject to Respondents’ absolute and unconditional obligation to make each divestiture required by this Order at no minimum price. Each divestiture shall be made in the manner consistent with the terms of this Order; provided, however, if the trustee receives bona fide offers for an asset to be divested from more than one acquiring entity, and if the Commission determines to approve more than one such acquiring entity, the trustee shall divest such asset to the acquiring entity or entities selected by Respondents from among those approved by the Commission. 7. The trustee shall serve, without bond or other security, at the cost and expense of Respondents, on such reasonable and customary terms and conditions as the Commission or a court may set. The trustee shall have the authority to employ, at the cost and expense of Respondents, such consultants, accountants, attorneys, investment bankers, business brokers, appraisers, and other representatives and assistants as are necessary to carry out the trustee's duties and responsibilities. The trustee shall account for all monies derived from the divestitures and all expenses incurred. After approval by the Commission and, in the case of a court-appointed trustee, by the court, of the account of the trustee, including fees for his or her obligations under this Paragraph III.A.services, require ADP to terminate its role as all remaining monies shall be paid at the ARA Database Collector pursuant direction of the Respondents, and the trustee's power shall be terminated. The trustee's compensation shall be based at least in significant part on a commission arrangement contingent on the trustee's divesting the Assets To Be Divested. 8. Respondents shall indemnify the trustee and hold the trustee harmless against any losses, claims, damages, liabilities, or expenses arising out of, or in connection with, the performance of the trustee's duties, including all reasonable fees of counsel and other expenses incurred in connection with the preparation for, or defense of any claim, whether or not resulting in any liability, except to the ARA Database Agreementextent that such liabilities, losses, damages, claims, or expenses result from misfeasance, gross negligence, willful or wanton acts, or bad faith by the trustee. 9. PROVIDED, HOWEVER, Respondent shall grant If the trustee ceases to any entity that becomes the ARA Database Collector, if such entity is not the Acquireract or fails to act diligently, a royaltysubstitute trustee shall be appointed in the same manner as provided in Paragraph III.A. of this Order. 10. The Commission or, in the case of a court-free license to appointed trustee, the Xxxxxxxxx Interchange to use solely for purposes of collecting and transmitting data and managing and operating a database for court, may on its own initiative or at the ARA pursuant to a data collection agreement with the ARA. PROVIDED, HOWEVER, Respondent may retain a non-exclusive, paid-up license to the AutoInfo Interchange as request of the date trustee issue such additional orders or directions as may be necessary or appropriate to accomplish each divestiture required by this Order. 11. The trustee may also divest such additional ancillary assets and businesses and effect such arrangements as are necessary to assure the marketability and the viability and competitiveness of the divestiture, excluding supplier Assets To Be Divested. 12. The trustee shall have no obligation or authority to operate or maintain the Assets To Be Divested. 13. The trustee shall report in writing to Respondents and service contracts, research and development, and other tangible and intangible assets used in the development and maintenance of Commission every sixty (60) days concerning the AutoInfo Interchangetrustee's efforts to accomplish each divestiture required by this Order.

Appears in 1 contract

Samples: Agreement Containing Consent Order

IT IS FURTHER ORDERED that. A. If Respondent has not divested (i) the AutoInfo Assets pursuant to and within the time required by Paragraph II.A., the Commission may appoint Divestiture Trustee or Respondents have submitted a trustee to divest the Trustee Assets. The trustee shall have all rights and powers necessary to permit the trustee to effect complete application in support of the divestiture of the assets, interests or businesses to be divested pursuant to Paragraph II. of this Order (including the buyer, manner of divestiture and all other matters subject to Commission approval) at least one month before the deadline for such divestiture; and (ii) the Commission has approved the divestiture and has not withdrawn its acceptance; but (iii) the Divestiture Trustee Assets in order or Respondents have certified to assure the viability, competitiveness, and marketability Commission within ten (10) days after the Commission's approval of the divestiture that a State, notwithstanding timely and complete application by Respondents to the State, has failed to approve the divestiture under a consent decree in an action commenced by any State requiring such divestiture, then, with respect to that divestiture, the time in which the divestiture is required under this Order to be complete shall be extended for sixty (60) days. During such sixty (60) day period, Respondents or the Divestiture Trustee Assets shall exercise utmost good faith and best efforts to accomplish resolve the remedial purposes concerns of the particular State. B. If any Trustee or Respondents are unable to comply with any obligation of this Order, with the exception of the obligations of Paragraph II. of this Order, because of any failure to act or any action by any State or any court pursuant to a consent decree in an action commenced by any State in connection with the Merger, the time in which such obligation of this Order must be completed shall be extended for sixty (60) days. During such sixty (60) day period, Respondents or the applicable Trustee shall exercise utmost good faith and best efforts to resolve the concerns of the particular State or court. By the Commission. Donald S. Clark Secretary UNITED STATES OF AMERICA BEFORE FEDERAL TRADE COMMISSION COMMISSIONERS: Timothy J. Muris, Chairman Sheilx X. Xxxxxxx Mozelle W. Thoxxxxx Orson Swindlx Thomas B. Leary ------------------------------------ In the event Matter xx: ) ) Chevron Corporation, ) a corporation, ) Docket No. C-4023 ) and ) ) Texaco Inc., ) a corporation. ) ) ------------------------------------ ORDER TO HOLD SEPARATE AND MAINTAIN ASSETS The Federal Trade Commission ("Commission") having initiated an investigation of the proposed merger (the "Merger") of Respondent Chevron Corporation ("Chevron") and Respondent Texaco Inc. ("Texaco"), and Respondents having been furnished thereafter with a draft of Complaint that the Bureau of Competition proposed to present to the Commission or for its consideration and that, if issued by the Attorney General brings an action pursuant to § 5(l) Commission, would charge Respondents with violations of Section 5 of the Federal Trade Commission Act, as amended, 15 U.S.C. § 45(l)ss. 45, and Section 7 of the Clayton Act, as amended, 15 U.S.C. ss. 18; and Respondents, xxxxx attorneys, and counsel for the Commission having thereafter executed an Agreement Containing Consent Orders ("Consent Agreement") containing an admission by Respondents of all the jurisdictional facts set forth in the aforesaid draft of Complaint, a statement that the signing of the Consent Agreement is for settlement purposes only and does not constitute an admission by Respondents that the law has been violated as alleged in such Complaint, or any that the facts as alleged in such Complaint, other statute enforced than jurisdictional facts, are true, and waivers and other provisions as required by the Commission's Rules; and The Commission having thereafter considered the matter and having determined that it had reason to believe that Respondents have violated said Acts, Respondent shall consent and that a Complaint should issue stating its charges in that respect, and having determined to accept the appointment executed Consent Agreement and to place such Consent Agreement containing the Decision and Order on the public record for a period of a trustee thirty (30) days for the receipt and consideration of public comments, now in such actionfurther conformity with the procedure described in Commission Rule 2.34, 16 C.F.R. ss. Neither the appointment of a trustee nor a decision not to appoint a trustee under this Paragraph shall preclude 2.34, the Commission or hereby issues its Complaint, makes the Attorney General from seeking civil penalties or any other relief available following jurisdictional findings and issues this Order to it, including a court-appointed trustee, pursuant to § 5(l) of the Federal Trade Commission Act, or any other statute enforced by the Commission, for any failure by the Respondent to comply with this Hold Separate and Maintain Assets ("Hold Separate Order. PROVIDED, HOWEVER, the trustee may, at his or her option and in satisfaction of his or her obligations under this Paragraph III.A., require ADP to terminate its role as the ARA Database Collector pursuant to the ARA Database Agreement. PROVIDED, HOWEVER, Respondent shall grant to any entity that becomes the ARA Database Collector, if such entity is not the Acquirer, a royalty-free license to the Xxxxxxxxx Interchange to use solely for purposes of collecting and transmitting data and managing and operating a database for the ARA pursuant to a data collection agreement with the ARA. PROVIDED, HOWEVER, Respondent may retain a non-exclusive, paid-up license to the AutoInfo Interchange as of the date of the divestiture, excluding supplier and service contracts, research and development, and other tangible and intangible assets used in the development and maintenance of the AutoInfo Interchange."):

Appears in 1 contract

Samples: Agreement Containing Consent Orders (Texaco Inc)

IT IS FURTHER ORDERED that. A. If Respondent has Respondents have not divested divested, absolutely and in good faith, and with the AutoInfo Commission’s prior approval, the Groton Large Parts Facility Assets pursuant to and or Groton Facility Assets within the time required by Paragraph II.A.IV.A. of this Order, then the Commission may appoint a trustee to divest the Trustee Groton Facility Assets. The trustee shall have all rights and powers necessary to permit may be the same person as the trustee to effect the divestiture of the Trustee Assets appointed in order to assure the viability, competitiveness, and marketability of the Trustee Assets and to accomplish the remedial purposes Paragraph III.A. of this Order. In the event that the Commission or the Attorney General brings an action pursuant to § 5(l) of the Federal Trade Commission Act, 15 U.S.C. § 45(l), or any other statute enforced by the Commission, Respondent Respondents shall consent to the appointment of a trustee in such action. Neither the appointment of a trustee nor a decision not to appoint a trustee under this Paragraph shall preclude the Commission or the Attorney General from seeking civil penalties or any other relief available to it, including a court-appointed trustee, pursuant to § 5(l) of the Federal Trade Commission Act, or any other statute enforced by the Commission, for any failure by the Respondent Respondents to comply with this Order. B. If a trustee is appointed by the Commission or a court pursuant to Paragraph V.A. of this Order, Respondents shall consent to the following terms and conditions regarding the trustee’s powers, duties, authority and responsibilities: 1. PROVIDEDThe Commission shall select the trustee, HOWEVERsubject to the consent of the Respondents, which consent shall not be unreasonably withheld. The trustee shall be a person with experience and expertise in acquisitions and divestitures. If Respondents have not opposed, in writing, including the reasons for opposing, the selection of any proposed trustee within ten (10) days after notice by the staff of the Commission to Respondents of the identify of the proposed trustee, Respondents shall be deemed to have consented to the selection of the proposed trustee. 2. Subject to the prior approval of the Commission, the trustee mayshall have the exclusive power and authority to divest the Groton Facility Assets. 3. Within ten (10) days after appointment of the trustee, Respondents shall execute a trust agreement that, subject to the prior approval of the Commission and, in the case of a court-appointed trustee, of the court, transfers to the trustee all rights and powers necessary to permit the trustee to effect the divestiture required by this Order. 4. The trustee shall have twelve (12) months from the date the Commission approves the trust agreement described in Paragraph V.B.3. to accomplish the divestiture, which shall be subject to the prior approval of the Commission. If, however, at the end of the twelve-month period, the trustee has submitted a plan of divestiture or believes that divestiture can be achieved within a reasonable time, the divestiture period may be extended by the Commission or, in the case of a court-appointed trustee, by the court; provided, however, the Commission may extend this period only two (2) times. 5. The trustee shall have full and complete access to the personnel, books, records and facilities related to the Groton Facility Assets or to any other relevant information, as the trustee may request. Respondents shall develop such financial or other information as such trustee may request and shall cooperate with the trustee. Respondents shall take no action to interfere with or impede the trustee’s accomplishment of the divestiture. Any delays in divestiture caused by Respondents shall extend the time for divestiture under this Paragraph in an amount equal to the delay, as determined by the Commission or, for a court-appointed trustee, by the court. 6. The trustee shall use his or her option best efforts to negotiate the most favorable price and terms available in satisfaction of his or her obligations under this Paragraph III.A., require ADP to terminate its role as the ARA Database Collector pursuant each contract that is submitted to the ARA Database AgreementCommission, subject to Respondents’ absolute and unconditional obligation to divest expeditiously at no minimum price. PROVIDED, HOWEVER, Respondent The divestiture shall grant to any entity that becomes the ARA Database Collector, if such entity is not the Acquirer, a royalty-free license to the Xxxxxxxxx Interchange to use solely for purposes of collecting and transmitting data and managing and operating a database for the ARA pursuant to a data collection agreement with the ARA. PROVIDED, HOWEVER, Respondent may retain a non-exclusive, paid-up license to the AutoInfo Interchange as of the date of the divestiture, excluding supplier and service contracts, research and development, and other tangible and intangible assets used be made in the development manner and maintenance of the AutoInfo Interchange.to an acquirer as set out in Paragraph

Appears in 1 contract

Samples: Consent Agreement

IT IS FURTHER ORDERED that. A. If Respondent has Respondents have not divested divested, absolutely and in good faith and with the AutoInfo Commission’s prior approval, the Albany Facility Assets pursuant to and within the time required by Paragraph II.A.II.A. of this Order, the Commission may appoint a trustee to divest the Trustee Albany Facility Assets. The trustee shall have all rights and powers necessary to permit the trustee to effect the divestiture of the Trustee Assets in order to assure the viability, competitiveness, and marketability of the Trustee Assets and to accomplish the remedial purposes of this Order. In the event that the Commission or the Attorney General brings an action pursuant to § 5(l) of the Federal Trade Commission Act, 15 U.S.C. § 45(l), or any other statute enforced by the Commission, Respondent Respondents shall consent to the appointment of a trustee in such action. Neither the appointment of a trustee nor a decision not to appoint a trustee under this Paragraph shall preclude the Commission or the Attorney General from seeking civil penalties or any other relief available to it, including a court-appointed trustee, pursuant to § 5(l) of the Federal Trade Commission Act, or any other statute enforced by the Commission, for any failure by the Respondent Respondents to comply with this Order. B. If a trustee is appointed by the Commission or a court pursuant to Paragraph III.A. of this Order, Respondents shall consent to the following terms and conditions regarding the trustee’s powers, duties, authority and responsibilities: 1. PROVIDEDThe Commission shall select the trustee, HOWEVERsubject to the consent of the Respondents, which consent shall not be unreasonably withheld. The trustee shall be a person with experience and expertise in acquisitions and divestitures. If Respondents have not opposed, in writing, including the reasons for opposing, the selection of any proposed trustee within ten (10) days after notice by the staff of the Commission to Respondents of the identify of the proposed trustee, Respondents shall be deemed to have consented to the selection of the proposed trustee. 2. Subject to the prior approval of the Commission, the trustee mayshall have the exclusive power and authority to divest the Albany Facility Assets. 3. Within ten (10) days after appointment of the trustee, Respondents shall execute a trust agreement that, subject to the prior approval of the Commission and, in the case of a court-appointed trustee, of the court, transfers to the trustee all rights and powers necessary to permit the trustee to effect the divestiture required by this Order. 4. The trustee shall have twelve (12) months from the date the Commission approves the trust agreement described in Paragraph III.B.3. to accomplish the divestiture, which shall be subject to the prior approval of the Commission. If, however, at the end of the twelve-month period, the trustee has submitted a plan of divestiture or believes that divestiture can be achieved within a reasonable time, the divestiture period may be extended by the Commission or, in the case of a court-appointed trustee, by the court; provided, however, the Commission may extend this period only two (2) times. 5. The trustee shall have full and complete access to the personnel, books, records and facilities related to the Albany Facility Assets or to any other relevant information, as the trustee may request. Respondents shall develop such financial or other information as such trustee may request and shall cooperate with the trustee. Respondents shall take no action to interfere with or impede the trustee’s accomplishment of the divestiture. Any delays in divestiture caused by Respondents shall extend the time for divestiture under this Paragraph in an amount equal to the delay, as determined by the Commission or, for a court-appointed trustee, by the court. 6. The trustee shall use his or her option best efforts to negotiate the most favorable price and terms available in satisfaction each contract that is submitted to the Commission, subject to Respondents’ absolute and unconditional obligation to divest expeditiously at no minimum price. The divestiture shall be made in the manner and to an acquirer as set out in Paragraph II.A. of this Order; provided, however, if the trustee receives bona fide offers from more than one such acquiring entity, and if the Commission determines to approve more than one such acquiring entity, the trustee shall divest to the acquiring entity selected by Respondents from among those approved by the Commission; provided further, however, that Respondents shall select such entity within five (5) business days of receiving notification of the Commission’s approval. 7. The trustee shall serve, without bond or other security, at the cost and expense of Respondents, on such reasonable and customary terms and conditions as the Commission or a court may set. The trustee shall have the authority to employ, at the cost and expense of Respondents, such consultants, accountants, attorneys, investment bankers, business brokers, appraisers, and other representatives and assistants as are necessary to carry out the trustee’s duties and responsibilities. The trustee shall account for all monies derived from the divestiture and all expenses incurred. After approval by the Commission and, in the case of a court-appointed trustee, by the court, of the account of the trustee, including fees for his or her obligations under this Paragraph III.A.services, require ADP to terminate its role as all remaining monies shall be paid at the ARA Database Collector pursuant direction of Respondents, and the trustee’s power shall be terminated. The trustee’s compensation shall be based at least in significant part on a commission arrangement contingent on the trustee’s divesting the Albany Facility Assets. 8. Respondents shall indemnify the trustee and hold the trustee harmless against any losses, claims, damages, liabilities, or expenses arising out of, or in connection with, the performance of the trustee’s duties, including all reasonable fees of counsel and other expenses incurred in connection with the preparation for or defense of any claim, whether or not resulting in any liability, except to the ARA Database Agreementextent that such losses, claims, damages, liabilities or expenses result from misfeasance, gross negligence, willful or wanton acts, or bad faith by the trustee. 9. PROVIDED, HOWEVER, Respondent shall grant If the trustee ceases to any entity that becomes the ARA Database Collector, if such entity is not the Acquireract or fails to act diligently, a royaltysubstitute trustee shall be appointed in the same manner as provided in Paragraph III.A. of this Order. 10. The Commission or, in the case of a court-free license appointed trustee, the court, may on its own initiative or at the request of the trustee issue such additional orders or directions as may be necessary or appropriate to accomplish the Xxxxxxxxx Interchange divestiture required by this Order. 11. In the event the trustee reasonably determines that he or she is unable to use solely for purposes of collecting and transmitting data and managing and operating divest the Albany Facility Assets in a database for the ARA pursuant to a data collection agreement manner consistent with the ARA. PROVIDEDCommission’s purpose as described in Paragraph II.B., HOWEVERthe trustee may also divest such additional ancillary assets and business and effect such arrangements as are necessary to maintain the marketability, Respondent may retain a non-exclusive, paid-up license to the AutoInfo Interchange as viability and competitiveness of the date of Albany Facility Assets. 12. The trustee shall have no obligation or authority to operate or maintain the Albany Facility Assets. 13. The trustee shall report in writing to Respondents and the Commission every sixty (60) days concerning the trustee’s efforts to accomplish the divestiture, excluding supplier and service contracts, research and development, and other tangible and intangible assets used in the development and maintenance of the AutoInfo Interchange.

Appears in 1 contract

Samples: Consent Agreement

IT IS FURTHER ORDERED that. A. If Respondent has Respondents have not divested the AutoInfo Assets pursuant to divested, absolutely and within the time required by Paragraph II.A., the Commission may appoint a trustee to divest the Trustee Assets. The trustee shall have all rights in good faith and powers necessary to permit the trustee to effect the divestiture of the Trustee Assets in order to assure the viability, competitiveness, and marketability of the Trustee Assets and to accomplish the remedial purposes of this Order. In the event that the Commission or the Attorney General brings an action pursuant to § 5(lwith the (1) of the Federal Trade Commission Act, 15 U.S.C. § 45(l), or any other statute enforced by the Commission, Respondent Respondents shall consent to the appointment of a trustee in such action. Neither the appointment of a trustee nor a decision not to appoint a trustee under this Paragraph shall preclude the Commission or the Attorney General from seeking civil penalties or any other relief available to it, including a court-appointed trustee, pursuant to § 5(lss. 5 (1) of the Federal Trade Commission Act, or any other statute enforced by the Commission, for any failure by the Respondent Respondents to comply with this Order. B. If a trustee is appointed by the Commission or a court pursuant to Paragraph III.A. of this Order, Respondents shall consent to the following terms and conditions regarding the trustee's powers, duties, authority and responsibilities: 1. PROVIDEDThe Commission shall select the trustee, HOWEVERsubject to the consent of the Respondents, which consent shall not be unreasonably withheld. The trustee shall be a person with experience and expertise in acquisitions and divestitures. If Respondents have not opposed, in writing, including the reasons for opposing, the selection of any proposed trustee within ten (10) days after notice by the staff of the Commission to Respondents of the identify of the proposed trustee, Respondents shall be deemed to have consented to the selection of the proposed trustee. 2. Subject to the prior approval of the Commission, the trustee mayshall have the exclusive power and authority to divest the Albany Facility Assets. 3. Within ten (10) days after appointment of the trustee, at his or her option and in satisfaction of his or her obligations under this Paragraph III.A.Respondents shall execute a trust agreement that, require ADP to terminate its role as the ARA Database Collector pursuant subject to the ARA Database Agreement. PROVIDEDprior approval of the Commission and, HOWEVERin the case of a court-appointed trustee, Respondent shall grant to any entity that becomes of the ARA Database Collectorcourt, if such entity is not the Acquirer, a royalty-free license transfers to the Xxxxxxxxx Interchange trustee all rights and powers necessary to use solely for purposes of collecting and transmitting data and managing and operating a database for permit the ARA pursuant trustee to a data collection agreement with effect the ARAdivestiture required by this Order. 4. PROVIDED, HOWEVER, Respondent may retain a non-exclusive, paid-up license to the AutoInfo Interchange as of The trustee shall have twelve (12) months from the date of the divestiture, excluding supplier and service contracts, research and development, and other tangible and intangible assets used Commission approves the trust agreement described in the development and maintenance of the AutoInfo Interchange.Paragraph III.B.

Appears in 1 contract

Samples: Consent Agreement (Precision Castparts Corp)

IT IS FURTHER ORDERED that. A. If Respondent has Respondents have not divested or have not caused to be divested, absolutely and in good faith the AutoInfo ARCO Alaska Assets pursuant and ARCO Beluga, Inc. to and Xxxxxxxx within the time period required by Paragraph II.A.II of this Order or the ARCO Xxxxxxx Assets within the time period required by Paragraph III of this Order, respectively, the Commission may appoint a trustee to divest or cause to be divested, respectively, the Trustee ARCO Alaska Assets. The trustee shall have all rights , ARCO Beluga, Inc., or obtain the Alaska Approval Asset Consents and powers necessary divest the Alaska Approval Assets, or to permit divest the trustee to effect the divestiture of the Trustee Assets in order to assure the viability, competitiveness, and marketability of the Trustee Assets and to accomplish the remedial purposes of this Order. ARCO Xxxxxxx Assets. B. In the event that the Commission or the Attorney General brings an action pursuant to § 5(l) of the Federal Trade Commission Act, 15 U.S.C. § 45(l), or any other statute enforced by the Commission, Respondent Respondents shall consent to the appointment of a trustee in such action. Neither the appointment of a trustee nor a decision not to appoint a trustee under this Paragraph shall preclude the Commission or the Attorney General from seeking civil penalties or any other relief available to it, including a court-appointed trustee, pursuant to § 5(l) of the Federal Trade Commission Act, or any other statute enforced by the Commission, for any failure by the Respondent Respondents to comply with this Order. C. If a trustee is appointed by the Commission or a court pursuant to Paragraph V.A. of this Order, Respondents shall consent to the following terms and conditions regarding the trustee's powers, duties, authority, and responsibilities: 1. PROVIDEDThe Commission shall select the trustee, HOWEVERsubject to the consent of the Respondents, which consent shall not be unreasonably withheld. The trustee shall be a person with experience and expertise in acquisitions and divestitures. If Respondents have not opposed, in writing, including the reasons for opposing, the selection of any proposed trustee within ten (10) days after receipt of written notice by the staff of the Commission to Respondents of the identity of any proposed trustee, Respondents shall be deemed to have consented to the selection of the proposed trustee. The trustee may be the same person or entity as any trustee appointed pursuant to the Order to Hold Separate and Maintain Assets. 2. Subject to the prior approval of the Commission, the trustee mayshall have the exclusive power and authority to divest or cause to be divested, respectively, the ARCO Alaska Assets, ARCO Beluga, Inc. and to obtain the Alaska Approval Asset Consents and divest the Alaska Approval Assets, or to divest the ARCO Xxxxxxx Assets. 3. Within ten (10) days after appointment of the trustee, Respondents shall execute a trust agreement that, subject to the prior approval of the Commission and, in the case of a court-appointed trustee, of the court, transfers to the trustee all rights and powers necessary to permit the trustee to effect the divestitures and obtain the consents required by this Order. 4. The trustee shall have twelve (12) months from the date the Commission approves the trust agreement described in Paragraph V. C. 3. to accomplish the divestitures and obtain the consents, which shall be subject to the prior approval of the Commission. If, however, at the end of the twelve-month period the trustee has submitted a plan of divestiture or believes that divestiture can be achieved within a reasonable time or that consents can be obtained in a reasonable time, the divestiture period may be extended by the Commission, or, in the case of a court-appointed trustee, by the court; provided, however, the Commission may extend this period only two (2) times. 5. The trustee shall have full and complete access, subject to any legally recognized privilege of Respondents, to the personnel, books, records and facilities related to the ARCO Alaska Assets, ARCO Beluga, Inc., the Alaska Approval Assets, or ARCO Xxxxxxx Assets or to any other relevant information, as the trustee may request. Respondents shall develop such financial or other information as the trustee may request and shall cooperate with the trustee. Respondents shall take no action to interfere with or impede the trustee's accomplishment of the divestiture. Any delays in divestiture caused by Respondents shall extend the time for divestiture under this Paragraph in an amount equal to the delay, as determined by the Commission or, for a court-appointed trustee, by the court. 6. The trustee shall use his or her option best efforts to negotiate the most favorable price and terms available in satisfaction each contract that is submitted to the Commission, but shall divest expeditiously at no minimum price. The divestitures shall be made only to an acquirer that receives the prior approval of the Commission, and the divestitures and consents shall be accomplished only in a manner that receives the prior approval of the Commission; provided however, if the trustee receives bona fide offers from more than one acquiring entity, and if the Commission determines to approve more than one such acquiring entity, the trustee shall divest to the acquiring entity or entities selected by Respondents from among those approved by the Commission; provided further, however, that Respondents shall select such entity within five (5) days of receiving written notification of the Commission’s approval. 7. The trustee shall serve, without bond or other security, at the cost and expense of Respondents, on such reasonable and customary terms and conditions as the Commission or a court may set. The trustee shall have the authority to employ, at the cost and expense of Respondents such consultants, accountants, attorneys, investment bankers, business brokers, appraisers, and other representatives and assistants as are necessary to carry out the trustee's duties and responsibilities. The trustee shall account for all monies derived from the divestiture and all expenses incurred. After approval by the Commission and, in the case of a court-appointed trustee, by the court, of the account of the trustee, including fees for his or her obligations under this Paragraph III.A.services, require ADP to terminate its role as all remaining monies shall be paid at the ARA Database Collector pursuant direction of the respondent, and the trustee's power shall be terminated. The trustee's compensation shall be based at least in significant part on a commission arrangement contingent on the trustee's divesting the ARCO Alaska Assets, ARCO Beluga, Inc. and obtaining the Alaska Approval Asset Consents and divesting the Alaska Approval Assets or divesting the ARCO Xxxxxxx Assets, depending on the circumstances. 8. Respondents shall indemnify the trustee and hold the trustee harmless against any losses, claims, damages, liabilities, or expenses arising out of, or in connection with, the performance of the trustee's duties, including all reasonable fees of counsel and other expenses incurred in connection with the preparation for, or defense of any claim, whether or not resulting in any liability, except to the ARA Database Agreementextent that such liabilities, losses, damages, claims, or expenses result from misfeasance, gross negligence, willful or wanton acts, or bad faith by the trustee. 9. PROVIDED, HOWEVER, Respondent shall grant If the trustee ceases to any entity that becomes the ARA Database Collector, if such entity is not the Acquireract or fails to act diligently, a royaltysubstitute trustee shall be appointed in the same manner as provided in Paragraph V.A. of this Order. 10. The Commission or, in the case of a court-free license appointed trustee, the court, may on its own initiative or at the request of the trustee issue such additional orders or directions as may be necessary or appropriate to accomplish the divestitures required by this Order. 11. In the event that the trustee determines that he or she is unable to divest or cause to be divested the ARCO Alaska Assets, ARCO Beluga, Inc. or to obtain the Alaska Approval Asset Consents and divest the Alaska Approval Assets in a manner consistent with the Commission's purpose as described in Paragraph II or to divest the ARCO Xxxxxxx Assets in a manner consistent with the Commission’s purpose as described in Paragraph III, the trustee may divest assets similar and corresponding to the Xxxxxxxxx Interchange ARCO Alaska Assets, ARCO Beluga, Inc. or the ARCO Xxxxxxx Assets, of Respondents, respectively, as necessary to use solely for achieve the remedial purposes of collecting this Order. 12. The trustee shall have no obligation or authority to operate or maintain the ARCO Alaska Assets, ARCO Beluga, Inc., the Alaska Approval Assets, or the ARCO Xxxxxxx Assets. 13. The trustee shall report in writing to Respondents and transmitting data and managing and operating a database for the ARA pursuant to a data collection agreement with the ARA. PROVIDED, HOWEVER, Respondent may retain a non-exclusive, paid-up license to the AutoInfo Interchange as of the date of the divestiture, excluding supplier and service contracts, research and development, and other tangible and intangible assets used in the development and maintenance of the AutoInfo Interchange.Commission every sixty

Appears in 1 contract

Samples: Consent Agreement

IT IS FURTHER ORDERED that. If Respondent has not A. Respondents shall divest the Exxon Guam Assets to a single acquirer, absolutely and in good faith and at no minimum price, within nine (9) months from the date Respondents execute the Agreement Containing Consent Orders. B. Respondents shall offer the acquirer of the Exxon Guam Assets an indemnity, subject to the prior approval of the Commission and to be effective upon the Effective Date of Divestiture of the Exxon Guam Assets, which indemnity shall allocate among Respondents and the acquirer, on such terms as the Respondents and the acquirer agree, responsibility with respect to potential claims and liabilities arising out of failure to comply with local, state, and federal environmental obligations in connection with the Retail Sites that are divested the AutoInfo Assets or assigned pursuant to this Paragraph. C. Respondents shall divest the Exxon Guam Assets and within enter into the time agreement as required by Paragraph II.A.subparagraphs III.A. and III.B., only to a single acquirer that receives the prior approval of the Commission may appoint and only in a trustee manner that receives the prior approval of the Commission; provided, however, that, with respect to assets that are to be divested or agreements entered into pursuant to this paragraph at the acquirer’s option, Respondents need not divest such assets or enter into such agreements only if the Trustee acquirer chooses not to acquire such assets or enter into such agreements and the Commission approves the divestiture without such assets or agreements. D. No later than the Effective Date of Divestiture of the Exxon Guam Assets, Respondents shall cancel all Existing Lessee Agreements and Existing Supply Agreements between Exxon and Exxon Lessee Dealers and Exxon Branded Sellers with respect to Retail Sites in Guam. Respondents shall not sell Branded Fuels to such Lessee Dealers or Branded Sellers for a period of seven (7) years from the Effective Date of Divestiture of the Exxon Guam Assets. The trustee For a period of ten (10) years from the Effective Date of Divestiture of the Exxon Guam Assets, Respondents shall have all rights and powers be prohibited from using the Exxon brand for the sale of Branded Fuels at Retail Sites in Guam. E. Until the Effective Date of Divestiture of the Exxon Guam Assets, Respondents shall take such actions as are necessary to permit maintain the trustee viability and marketability of the Exxon Guam Assets and to effect prevent the destruction, removal, wasting, deterioration, or impairment of any of the assets, except for ordinary wear and tear, including but not limited to renewing or extending any base leases or ground leases that expire or terminate prior to the Effective Date of Divestiture of the Exxon Guam Assets. F. The purpose of the divestiture of the Trustee Exxon Guam Assets is to ensure the continued use of the Exxon Guam Assets in order to assure the viability, competitivenesssame businesses in which they were engaged at the time of the announcement of the proposed Merger, and marketability to remedy the lessening of competition in the Trustee Assets importation, terminaling, and to accomplish wholesale and retail sale of gasoline in Guam resulting from the remedial purposes of this Order. In the event that the Commission or the Attorney General brings an action pursuant to § 5(l) of the Federal Trade Commission Actproposed Merger, 15 U.S.C. § 45(l), or any other statute enforced by as alleged in the Commission, Respondent shall consent to the appointment of a trustee in such action. Neither the appointment of a trustee nor a decision not to appoint a trustee under this Paragraph shall preclude the Commission or the Attorney General from seeking civil penalties or any other relief available to it, including a court-appointed trustee, pursuant to § 5(l) of the Federal Trade Commission Act, or any other statute enforced by the Commission, for any failure by the Respondent to comply with this Order. PROVIDED, HOWEVER, the trustee may, at his or her option and in satisfaction of his or her obligations under this Paragraph III.A., require ADP to terminate its role as the ARA Database Collector pursuant to the ARA Database Agreement. PROVIDED, HOWEVER, Respondent shall grant to any entity that becomes the ARA Database Collector, if such entity is not the Acquirer, a royalty-free license to the Xxxxxxxxx Interchange to use solely for purposes of collecting and transmitting data and managing and operating a database for the ARA pursuant to a data collection agreement with the ARA. PROVIDED, HOWEVER, Respondent may retain a non-exclusive, paid-up license to the AutoInfo Interchange as of the date of the divestiture, excluding supplier and service contracts, research and development, and other tangible and intangible assets used in the development and maintenance of the AutoInfo Interchange's Complaint.

Appears in 1 contract

Samples: Consent Agreement

IT IS FURTHER ORDERED that. A. If Respondent has Respondents have not divested the AutoInfo Assets pursuant Hemodialysis Business to and Be Divested within four (4) months of either (i) the time required by Paragraph II.A.date this Order becomes final, or (ii) the closing of the NMC Acquisition, whichever is later, the Commission may appoint a trustee to divest the Trustee Assets. The trustee shall have all rights and powers necessary Hemodialysis Business to permit the trustee Be Divested pursuant to effect the divestiture of the Trustee Assets in order to assure the viability, competitiveness, and marketability of the Trustee Assets and to accomplish the remedial purposes Paragraph II of this Order. In the event that the Commission or the Attorney General brings an action pursuant to § 5(l) of the Federal Trade Commission Act, 15 U.S.C. § 45(l), or any other statute enforced by the Commission, Respondent Respondents shall consent to the appointment of a trustee in such action. Neither the appointment of a trustee nor a decision not to appoint a trustee under this Paragraph shall preclude the Commission or the Attorney General from seeking civil penalties or any other relief available to it, including a court-appointed trustee, pursuant to § 5(l) of the Federal Trade Commission Act, or any other statute enforced by the Commission, for any failure by the Respondent Respondents to comply with this Order. PROVIDEDThe Commission shall select the trustee under this Paragraph, HOWEVERsubject to the consent of Respondents, which consent shall not be unreasonably withheld. The trustee shall be a person with experience and expertise in acquisitions, divestitures, and licensing. If Respondents have not opposed, in writing, including the reasons for opposing, the selection of any proposed trustee within ten (10) days after notice by the staff of the Commission to Respondents of the identity of any proposed trustee, Respondents shall be deemed to have consented to the selection of the proposed trustee. B. If a trustee is appointed by the Commission or a court pursuant to Paragraph III.A of this Order, Respondents shall consent to the following terms and conditions regarding the trustee’s powers, duties, authority, and responsibilities: 1. Subject to the prior approval of the Commission and consistent with the provisions of Paragraph II of this Order, the trustee mayshall have the exclusive power and authority to divest the Hemodialysis Business to Be Divested. 2. Within ten (10) days after the appointment of the trustee, Respondents shall execute a trust agreement that, subject to the prior approval of the Commission, and in the case of a court-appointed trustee, of the court, transfers to the trustee all rights and powers necessary to permit the trustee to effect the divestiture required by this Order. 3. The trustee shall have twelve (12) months from the date the trust agreement described in this Paragraph III.B is approved by the Commission to accomplish the divestiture of the Hemodialysis Business to Be Divested, which shall be subject to the prior approval of the Commission. If, however, at the end of this twelve (12) month period, the trustee has submitted a plan of divestiture or believes that divestiture can be achieved within a reasonable time, the divestiture period may be extended by the Commission, or, in the case of a court-appointed trustee, by the court. 4. The trustee shall have full and complete access to the personnel, books, records and facilities related to the Hemodialysis Business to Be Divested and to any other relevant information as the trustee may reasonably request. Respondents shall develop such financial or other information as the trustee may reasonably request and shall cooperate with the trustee. Respondents shall take no action to interfere with or impede the trustee’s accomplishment of the divestiture. Any delays in divestiture caused by Respondents shall extend the time for divestiture under this Paragraph in an amount equal to the delay, as determined by the Commission or, for a court- appointed trustee, by the court. 5. The trustee shall use his or her option best efforts to negotiate the most favorable price and terms available in satisfaction each contract that is submitted to the Commission, subject to Respondents' absolute and unconditional obligation to divest at no minimum price. The divestiture shall be made in the manner and to an acquirer as set out in Paragraph II of this Order; provided however, if the trustee receives bona fide offers from more than one acquiring entity, and if the Commission determines to approve more than one such acquiring entity, the trustee shall divest to the acquiring entity or entities selected by Respondents from among those approved by the Commission. 6. The trustee shall serve without bond or other security at the cost and expense of Respondents, and on such reasonable and customary terms and conditions as the Commission or a court may set. The trustee shall have the authority to employ, at the cost and expense of Respondents, such consultants, accountants, attorneys, investment bankers, business brokers, appraisers, and other representatives and assistants as are reasonably necessary to carry out the trustee’s duties and responsibilities. The trustee shall account for all monies derived from the divestiture and all expenses incurred. After approval by the Commission and, in the case of a court-appointed trustee, by the court, of the account of the trustee, including fees for his or her obligations under services, all remaining monies shall be paid at the direction of the Respondents, and the trustee’s power shall be terminated. The trustee’s compensation shall be based at least in significant part on a commission arrangement contingent on the trustee’s divesting the Hemodialysis Business to Be Divested. 7. Respondents shall indemnify the trustee and hold the trustee harmless against any losses, claims, damages, liabilities, or expenses arising out of, or in connection with, the performance of the duties of the trustee, including all reasonable fees of counsel and other expenses incurred in connection with the preparation for, or defense of any claim, whether or not resulting in any liability, except to the extent that such liabilities, losses, damages, claims, or expenses result from misfeasance, gross negligence, willful or wanton acts, or bad faith by the trustee. 8. If the trustee ceases to act or fails to act diligently, a substitute trustee shall be appointed in the same manner as provided in Paragraph III.A of this Order. 9. The Commission or, in the case of a court- appointed trustee, the court, may on its own initiative or at the request of the trustee issue such additional orders or directions as may be necessary or appropriate to accomplish the divestiture required by this Order. 10. The trustee shall have no obligation or authority to operate or maintain the Hemodialysis Business to Be Divested. 11. The trustee shall report in writing to Respondents and the Commission every thirty (30) days concerning efforts to accomplish the divestiture. IT IS FURTHER ORDERED that: A. Within twenty (20) days after the date this Order becomes final and every thirty (30) days thereafter until Respondents have fully complied with the provisions of Paragraphs II and III of this Order, Respondents shall submit to the Commission a verified written report setting forth in detail the manner and form in which they intend to comply, are complying, and have complied with this Order. Respondents shall include in their compliance reports, among other things that are required from time to time, a full description of the efforts being made to comply with Paragraph II of the Order, including a description of all substantive contacts or negotiations for the divestiture and the identity of all parties contacted. Respondents shall include in their compliance reports copies of all written communications to and from such parties, all internal memoranda, and all reports and recommendations concerning divestiture. Provided, however, that this Paragraph III.A.V shall not be deemed to require Prior Notification to the Commission for (i) the construction of new facilities by Fresenius, require ADP (ii) the acquisition of new or used equipment in the ordinary course of business from a person other than the acquirer of the Hemodialysis Business to terminate its role Be Divested, or any other present producer of Hemodialysis Concentrate; or (iii) the purchase or lease by Fresenius of a facility that has not been operated as a Hemodialysis Concentrate manufacturing facility at any time during the year immediately prior to the purchase or lease by Fresenius. "Prior Notification to the Commission" required by Paragraph V shall be given on the Notification and Report Form set forth in the Appendix to Part 803 of Title 16 of the Code of Federal Regulations, as amended (hereinafter referred to as "the Notification Form"), and shall be prepared and transmitted in accordance with the requirements of that part, except that no filing fee will be required for any such notification, notification shall be filed with the Secretary of the Commission, notification need not be made to the United States Department of Justice, and notification is required only of Fresenius and not of any other party to the transaction. Fresenius shall provide the Notification Form to the Commission at least thirty (30) days prior to consummating any such transaction (hereinafter referred to as the ARA Database Collector "first waiting period"). If, within the first waiting period, representatives of the Commission make a written request for additional information, Fresenius shall not consummate the transaction until twenty (20) days after substantially complying with such request for additional information. Early termination of the waiting periods in this paragraph may be requested and, where appropriate, granted by letter from the Bureau of Competition. Notwithstanding, Fresenius shall not be required to provide Prior Notification to the Commission pursuant to this order for a transaction for which notification is required to be made, and has been made, pursuant to Section 7A of the ARA Database AgreementXxxxxxx Act, 15 U.S.C. § 18a. PROVIDEDin the corporations that may affect compliance obligations arising out of the Order. A. Access, HOWEVERduring office hours and in the presence of counsel, Respondent shall grant to inspect and copy all books, ledgers, accounts, correspondence, memoranda and other records and documents in the possession or under the control of Respondents relating to any entity matters contained in this Order; and B. Without restraint or interference from Respondents, to interview Respondents' officers, directors, or employees, who may have counsel present, regarding such matters. Signed this day of May, 1996. FOR THE BUREAU OF COMPETITION FOR FRESENIUS AG AND FEDERAL TRADE COMMISSION FRESENIUS USA, INC. Xxxxxx X. Xxxxxx Xxx Xxxxx Attorney Chief Financial Officer Xxxxxxxxx AG M. Xxxxxx Xxxxx Assistant Director Xx. Xxxxxx Xxxxx Counsel Fresenius AG Xxxxxx X. Xxxx Senior Deputy Director Xxx X. Xxxxx, Ph.D. President Fresenius USA, Inc. Xxxxxxx X. Xxxx FOR O'MELVENY & XXXXX Director Xxxxxxx X. Xxxxxx Xxxxx X. Xxxxxx Counsel to Fresenius AG and Fresenius USA, Inc. Pursuant to the provisions of the Federal Trade Commission Act and of the Xxxxxxx Act, and by virtue of the authority vested in it by said Acts, the Federal Trade Commission, having reason to believe that becomes Xxxxxxxxx AG, the ARA Database Collectorparent company of Fresenius USA, Inc. (collectively "Fresenius"), has entered into an Agreement and Plan of Reorganization with X.X. Xxxxx & Co. ("Grace") whereby Fresenius will acquire from Grace the businesses comprising National Medical Care, Inc. ("NMC"), and that such acquisition, if consummated, would violate Section 7 of the Xxxxxxx Act, as amended, 15 U.S.C. § 18, and Section 5 of the Federal Trade Commission Act, as amended, 15 U.S.C. § 45, and having reason to believe that Fresenius has entered into such entity is not agreement in restraint of trade in violation of Section 5 of the AcquirerFederal Trade Commission Act, a royalty-free license and it appearing to the Xxxxxxxxx Interchange to use solely for purposes of collecting and transmitting data and managing and operating Commission that a database for the ARA pursuant to a data collection agreement with the ARA. PROVIDED, HOWEVER, Respondent may retain a non-exclusive, paid-up license to the AutoInfo Interchange as of the date of the divestiture, excluding supplier and service contracts, research and development, and other tangible and intangible assets used proceeding in respect thereof would be in the development and maintenance of the AutoInfo Interchange.public interest, hereby issues its complaint stating its charges as follows:

Appears in 1 contract

Samples: Consent Order

IT IS FURTHER ORDERED that. If A. Respondent has not divested shall divest the AutoInfo Assets To Be Divested to Spraylat pursuant to and within in accordance with the Divestiture Agreement (which agreement shall not vary from or contradict or be construed to vary from or contradict the terms of this Order). The divestiture shall be made no later than ten (10) days after Respondent consummates the Acquisition. Provided, however, that if Respondent has divested the Assets To Be Divested to Spraylat prior to the date the Order becomes final, and if, at the time the Commission determines to make the Order final, the Commission notifies Respondent that Spraylat is not an acceptable purchaser or that the manner of divestiture or the proposed transaction is not acceptable, then Respondent shall immediately rescind the transaction with Spraylat and shall divest the Assets To Be Divested, absolutely and in good faith, within six (6) months of the date the Order becomes final. Respondent shall divest the Assets To Be Divested only to an Acquirer that receives the prior approval of the Commission and only in a manner that receives the prior approval of the Commission. B. Respondent shall obtain all Third-Party Consents prior to the closing of the divestiture pursuant to the Divestiture Agreement required by Paragraph II.A., the Commission may appoint a trustee to divest the Trustee Assets. The trustee shall have all rights and powers necessary to permit the trustee to effect the divestiture of the Trustee Assets in order to assure the viability, competitiveness, and marketability of the Trustee Assets and to accomplish the remedial purposes II.A. of this Order. In . C. Respondent shall comply with all of the event that terms of the Divestiture Agreement approved by the Commission pursuant to which the Assets To Be Divested are divested to the Acquirer (either Spraylat or the Attorney General brings an action entity approved by the Commission to acquire the Assets To Be Divested pursuant to § 5(l) of this Order). The Divestiture Agreement with the Federal Trade Commission Act, 15 U.S.C. § 45(l), or any other statute enforced Acquirer shall be deemed incorporated by the Commission, Respondent shall consent to the appointment of a trustee in such action. Neither the appointment of a trustee nor a decision not to appoint a trustee under reference into this Paragraph shall preclude the Commission or the Attorney General from seeking civil penalties or any other relief available to it, including a court-appointed trustee, pursuant to § 5(l) of the Federal Trade Commission Act, or any other statute enforced by the Commission, for Order and any failure by Respondent to comply with the Respondent terms of the Divestiture Agreement shall constitute a failure to comply with this Order. PROVIDED, HOWEVER, . D. The purpose of the trustee may, at his or her option and in satisfaction of his or her obligations under this Paragraph III.A., require ADP to terminate its role as the ARA Database Collector divestiture pursuant to this Order is to ensure the ARA Database Agreement. PROVIDED, HOWEVER, Respondent shall grant to any entity that becomes the ARA Database Collector, if such entity is not the Acquirer, a royalty-free license to the Xxxxxxxxx Interchange to continued use solely for purposes of collecting and transmitting data and managing and operating a database for the ARA pursuant to a data collection agreement with the ARA. PROVIDED, HOWEVER, Respondent may retain a non-exclusive, paid-up license to the AutoInfo Interchange as of the date Assets To Be Divested in the same businesses in which they were engaged at the time of the divestiture, excluding supplier announcement of the proposed Acquisition and service contracts, research and development, and other tangible and intangible assets used to remedy the lessening of competition resulting from the Acquisition as alleged in the development and maintenance of the AutoInfo InterchangeCommission’s Complaint.

Appears in 1 contract

Samples: Consent Order

IT IS FURTHER ORDERED that. A. If Respondent Xxxxx has not divested the AutoInfo Liquid Finishing Business Assets pursuant to and within otherwise fully complied with the time obligations as required by Paragraph II.A.II.A. of this Order, the Commission may appoint a trustee (“Divestiture Trustee”) to divest the Trustee Assets. The trustee shall have all rights and powers necessary to permit Liquid Finishing Business Assets and/or perform Respondent Xxxxx’s other obligations in a manner that satisfies the trustee to effect the divestiture of the Trustee Assets in order to assure the viability, competitiveness, and marketability of the Trustee Assets and to accomplish the remedial purposes requirements of this Order. The Divestiture Trustee appointed pursuant to this Paragraph may be the same Person appointed as Hold Separate Trustee pursuant to the relevant provisions of the Hold Separate entered in this matter. B. In the event that the Commission or the Attorney General brings an action pursuant to § 5(l) of the Federal Trade Commission Act, 15 U.S.C. § 45(l), or any other statute enforced by the Commission, Respondent Graco shall consent to the appointment of a trustee Divestiture Trustee in such actionaction to divest the relevant assets in accordance with the terms of this Order. Neither the appointment of a trustee Divestiture Trustee nor a decision not to appoint a trustee Divestiture Trustee under this Paragraph shall preclude the Commission or the Attorney General from seeking civil penalties or any other relief available to it, including a court-appointed trusteeDivestiture Trustee, pursuant to § 5(l) of the Federal Trade Commission Act, or any other statute enforced by the Commission, for any failure by the Respondent Respondents to comply with this Order. C. The Commission shall select the Divestiture Trustee, subject to the consent of Respondent Graco, which consent shall not be unreasonably withheld. PROVIDEDThe Divestiture Trustee shall be a person with experience and expertise in acquisitions and divestitures. If Respondent Xxxxx has not opposed, HOWEVERin writing, including the reasons for opposing, the trustee mayselection of any proposed Divestiture Trustee within ten (10) days after notice by the staff of the Commission to Respondent Graco of the identity of any proposed Divestiture Trustee, Respondent Graco shall be deemed to have consented to the selection of the proposed Divestiture Trustee. D. Within ten (10) days after appointment of a Divestiture Trustee, Respondent Xxxxx shall execute a trust agreement that, subject to the prior approval of the Commission, transfers to the Divestiture Trustee all rights and powers necessary to permit the Divestiture Trustee to effect the relevant divestiture or transfer required by this Order. E. If a Divestiture Trustee is appointed by the Commission or a court pursuant to this Order, Respondents shall consent to the following terms and conditions regarding the Divestiture Trustee’s powers, duties, authority, and responsibilities: 1. Subject to the prior approval of the Commission, the Divestiture Trustee shall have the exclusive power and authority to divest, assign, grant, license, transfer, deliver or otherwise convey the relevant assets that are required by this Order to be divested, assigned, granted, licensed, transferred, delivered or otherwise conveyed. 2. The Divestiture Trustee shall have twelve (12) months from the date the Commission approves the trust agreement described herein to accomplish the divestiture, which shall be subject to the prior approval of the Commission. If, however, at his the end of the twelve (12) month period, the Divestiture Trustee has submitted a plan of divestiture or her option believes that the divestiture can be achieved within a reasonable time, the divestiture period may be extended by the Commission, or, in the case of a court-appointed Divestiture Trustee, by the court; provided, however, that the Commission may extend the period only two (2) times. 3. Subject to any demonstrated legally recognized privilege, the Divestiture Trustee shall have full and complete access to the personnel, books, records, and facilities related to the relevant assets that are required to be divested, assigned, granted, licensed, delivered or otherwise conveyed by this Order and to any other relevant information, as the Divestiture Trustee may request. Respondents shall develop such financial or other information as the Divestiture Trustee may request and shall cooperate with the Divestiture Trustee. Respondents shall take no action to interfere with or impede the Divestiture Trustee’s accomplishment of the divestiture. Any delays in satisfaction of his or her obligations divestiture caused by Respondents shall extend the time for divestiture under this Paragraph III.A.V in an amount equal to the delay, require ADP as determined by the Commission or, for a court-appointed Divestiture Trustee, by the court. 4. The Divestiture Trustee shall use commercially reasonable best efforts to terminate its role negotiate the most favorable price and terms available in each contract that is submitted to the Commission, subject to Respondent Xxxxx’s absolute and unconditional obligation to divest expeditiously and at no minimum price. The divestiture shall be made in the manner and to a Commission-approved Acquirer as required by this Order; provided, however, if the Divestiture Trustee receives bona fide offers from more than one acquiring entity, and if the Commission determines to approve more than one such acquiring entity, the Divestiture Trustee shall divest to the acquiring entity selected by Respondent Graco from among those approved by the Commission; provided further, however, that Respondent Graco shall select such entity within five (5) days of receiving notification of the Commission’s approval. 5. The Divestiture Trustee shall serve, without bond or other security, at the cost and expense of Respondent Graco, on such reasonable and customary terms and conditions as the ARA Database Collector pursuant Commission or a court may set. The Divestiture Trustee shall have the authority to employ, at the ARA Database Agreement. PROVIDEDcost and expense of Respondent Graco, HOWEVERsuch Exhibit 10.1 consultants, Respondent shall grant to any entity that becomes the ARA Database Collectoraccountants, if such entity is not the Acquirerattorneys, a royalty-free license to the Xxxxxxxxx Interchange to use solely for purposes of collecting and transmitting data and managing and operating a database for the ARA pursuant to a data collection agreement with the ARA. PROVIDEDinvestment bankers, HOWEVERbusiness brokers, Respondent may retain a non-exclusive, paid-up license to the AutoInfo Interchange as of the date of the divestiture, excluding supplier and service contracts, research and developmentappraisers, and other tangible representatives and intangible assets used assistants as are necessary to carry out the Divestiture Trustee’s duties and responsibilities. The Divestiture Trustee shall account for all monies derived from the divestiture and all expenses incurred. After approval by the Commission and, in the development and maintenance case of a court-appointed Divestiture Trustee, by the court, of the AutoInfo Interchangeaccount of the Divestiture Trustee, including fees for the Divestiture Trustee’s services, all remaining monies shall be paid at the direction of Respondent Graco, and the Divestiture Trustee’s power shall be terminated. The compensation of the Divestiture Trustee shall be based at least in significant part on a commission arrangement contingent on the divestiture of all of the relevant assets that are required to be divested by this Order. 6. Respondent Graco 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 for, or defense of, any claim, whether or not resulting in any liability, except to the extent that such losses, claims, damages, liabilities, or expenses result from gross negligence or willful misconduct by the Divestiture Trustee. For purposes of this Paragraph V.E.6., the term “Divestiture Trustee” shall include all Persons retained by the Divestiture Trustee pursuant to Paragraph V.E.5. of this Order.

Appears in 1 contract

Samples: Consent Agreement (Graco Inc)