1 

 1510200 

UNITED STATES OF AMERICA

BEFORE THE FEDERAL TRADE COMMISSION

COMMISSIONERS: Edith Ramirez, Chairwoman 

 Maureen K. Ohlhausen

 Terrell McSweeny 

 

 ) 

In the Matter of ) 

 ) 

 ) 

HEIDELBERGCEMENT AG, ) 

a corporation; ) 

 ) Docket No. Cand ) 

 ) 

ITALCEMENTI S.p.A, ) 

a corporation. ) 

 ) 

 ) 

DECISION AND ORDER

[Public Record Version]

The Federal Trade Commission (“Commission”) having initiated an investigation of the 

proposed acquisition by Respondent HeidelbergCement AG (“Heidelberg”) of Respondent 

Italcementi S.p.A. (“Italcementi”) (collectively, “Respondents”), and Respondents having been 

furnished thereafter with a copy of a draft of Complaint that the Bureau of Competition proposed 

to present to the Commission for its consideration and which, if issued by the Commission, 

would charge Respondents with violations of Section 7 of the Clayton 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

 Respondents, their 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 said 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 that the facts alleged in such Complaint, other than jurisdictional facts, are true, 

and waivers and other provisions as required by the Commission’s Rules; and
2 

 The Commission having thereafter considered the matter and having determined that it 

has reason to believe that Respondents have violated the said Acts, and that a Complaint should 

issue stating its charges in that respect, and having thereupon issued its Complaint and Order to 

Maintain Assets (“Asset Maintenance Order”), and having accepted the executed Consent 

Agreement and placed such Consent Agreement on the public record for a period of thirty (30) 

days for the receipt and consideration of public comments, now in further conformity with the 

procedure described in Commission Rule 2.34, 16 C.F.R. § 2.34, the Commission hereby makes 

the following jurisdictional findings and issues the following Decision and Order (“Order”): 

1. Respondent Heidelberg is a corporation organized, existing, and doing business under 

and by virtue the laws of Germany, having its registered seat in Heidelberg, registered 

with the commercial register of the local court of Mannheim under no. HRB 330082, 

with its registered business address at Berliner Straße 6, 69120 Heidelberg, Germany. 

Heidelberg’s principal U.S. subsidiary, Lehigh Hanson, Inc., is a corporation organized, 

existing, and doing business under and by virtue of the laws of the State of Delaware, 

with its U.S. headquarters and principal place of business located at 300 East John 

Carpenter Freeway, Irving, TX 75062. 

2. Respondent Italcementi is a corporation organized, existing, and doing business under 

and by virtue of the laws of Italy, having its seat in Bergamo, registered with Bergamo 

Chamber of Commerce under no. 00637110164, with its registered business address at 

Via Camozzi 124, 24121 Bergamo, Italy. Italcementi’s principal U.S. subsidiary, Essroc 

Cement Corp., is a corporation organized, existing, and doing business under and by 

virtue of the laws of the State of Pennsylvania, with its U.S. headquarters and principal 

place of business located at 3251 Bath Pike, Nazareth, PA 18064. 

3. The Federal Trade Commission has jurisdiction over the subject matter of this proceeding 

and of Respondents, and this proceeding is in the public interest. 

ORDER

I.

IT IS HEREBY ORDERED that, as used in this Order, the following definitions shall 

apply: 

DEFINITIONS OF PERSONS

A. “Acquirer” means, as the context requires, either or both of the Martinsburg Acquirer and 

the Indianapolis Acquirer. 

B. “Cemex” means Kosmos Cement Company, a general partnership, organized, existing, 

and doing business under and by virtue of the laws of the State of Kentucky, with its 

offices and principal place of business located at 1501 Belvedere Road, West Palm 

Beach, FL 33406. 
3 

C. “Commission” means the Federal Trade Commission.

D. “Governmental Entity” means any federal, provincial, state, county, local, or other 

political subdivision of the United States or any other country, or any department or 

agency thereof, or any state or federal court.

E. “Heidelberg” means HeidelbergCement AG, its directors, officers, employees, agents, 

representatives, successors, and assigns; its joint ventures, subsidiaries, divisions, groups, 

and affiliates controlled by HeidelbergCement AG (including, but not limited to, Lehigh 

Hanson, Inc.), and the respective directors, officers, employees, agents, representatives, 

successors, and assigns of each.

F. “Indianapolis Acquirer” means either Cemex or another Person approved by the 

Commission to purchase the Indianapolis Terminal Assets. 

G. “Italcementi” means Italcementi S.p.A., its directors, officers, employees, agents, 

representatives, successors, and assigns; its joint ventures, subsidiaries, divisions, groups, 

and affiliates controlled by Italcementi S.p.A., (including, but not limited to, Essroc 

Cement Corp), and the respective directors, officers, employees, agents, representatives, 

successors, and assigns of each.

H. “Martinsburg Acquirer” means a Person approved by the Commission to acquire the 

Martinsburg Cement Business Assets. 

I. “Person” means any individual, partnership, joint venture, firm, corporation, association, 

trust, unincorporated organization, joint venture, or other business or Governmental 

Entity, and any subsidiaries, divisions, groups, or affiliates thereof. 

J. “Respondent” or “Respondents” means Heidelberg and Italcementi, individually and 

collectively. 

GENERAL DEFINITIONS

K. “Acquisition” means the proposed acquisition of approximately 45 percent of the 

outstanding voting securities of Italcementi by Heidelberg as described and contemplated 

by the Share Purchase Agreement dated July 28, 2015, as amended. 

L. “Acquisition Date” means the date the Acquisition is consummated. 

M. “Ashland Terminal” means the Terminal Assets relating to Italcementi’s Ashland

Terminal located at 9680 Old Ridge Road, Ashland, VA, that stores, distributes and sells 

Cement and related products. 

N. “Asset Maintenance Monitor” means the Person approved by the Commission to serve as 

an Asset Maintenance Monitor pursuant to the Asset Maintenance Order issued by the 

Commission.

O. “Asset Maintenance Order” means the Order to Maintain Assets issued by the 

Commission in this matter.
4 

P. “Assets To Be Divested” means: 

1. The Martinsburg Cement Business and, at the option of the Acquirer and subject 

to the prior approval of the Commission, the Columbus Terminal and the 

Middlebranch Terminal; and, 

2. The Indianapolis Terminal. 

Q. “Baltimore Terminal” means the Terminal Assets relating to Italcementi’s Baltimore

Terminal located at 5700 Chemical Road, Baltimore, MD, that stores, distributes and 

sells Cement and related products. 

R. “Bessemer Terminal” means: 

1. The Terminal Assets relating to Italcementi’s Bessemer terminal located at 

Second Street, PO Box 779, Bessemer, PA, that stores, distributes and sells 

Cement and related products; and, 

2. An agreement approved by the Commission between Respondents and the 

Martinsburg Acquirer requiring Respondents to use or maintain any real property 

adjacent to the real property upon which the Bessemer terminal is located and any 

rights or easements retained by Respondents in or relating to the real property 

upon which the Bessemer terminal is located in a reasonable manner that does not 

interfere materially with the operation of the Bessemer Terminal by the 

Martinsburg Acquirer. 

S. “Books and Records” means any and all original, copies, drafts, and final versions of all 

books, records, files, customer files, customer lists, customer purchasing histories, vendor 

files, vendor lists, advertising and marketing materials, sales materials, technical 

information, architectural drawings and blueprints of any kind, databases, financial 

information, reports, regulatory materials, or documents, information, and files of any 

kind, regardless of whether the document, information, or files are stored or maintained 

in traditional paper format, by means of electronic, optical, or magnetic media or devices, 

photographic or video images, or any other format or media

T. “Chesapeake Terminal” means the Terminal Assets relating to Italcementi’s Chesapeake

terminal located at 100 Pratt Street, Chesapeake, VA, that stores, distributes and sells 

Cement and related products. 

U. “Cement” means the product that is the result of the combination of calcium (normally 

from limestone), silicon, aluminum, iron, and other raw materials, and that is produced by 

quarrying, crushing and grinding the raw materials, burning them in kilns at high 

temperatures, and then finely grinding the resulting pellets (“clinker”) with gypsum into 

an extremely fine powder. The term “Cement” includes, but is not limited to, Portland 

cement, masonry and mortar cement, and the clinker that is ground to produce Cement. 

V. “Cemex Agreement” means the agreement between Essroc Cement Corp. and Kosmos 

Cement Company dated May 5, 2016 attached as Confidential Appendix I to this Order. 
5 

W. “Columbus Terminal” means the Terminal Assets relating to Italcementi’s Columbus 

terminal located at 1550 Williams Road, Columbus, OH, that stores, distributes and sells 

Cement and related products. 

X. “Direct Costs” means cost not to exceed the cost of labor, material, travel, and other 

expenditures to the extent the costs are directly incurred to provide services under this 

Order or the Asset Maintenance Order. “Direct Cost” to an Acquirer for its use of any of 

Respondents’ employees’ labor shall not exceed the then-current average wage rate for 

such employee, including benefits. 

Y. “Divestiture Agreement” means any agreement between Respondents and an Acquirer (or 

a Divestiture Trustee appointed pursuant to Paragraph V. of this Order and an Acquirer) 

and all amendments, exhibits, attachments, agreements, and schedules thereto, related to 

any of the Assets To Be Divested that has been approved by the Commission to 

accomplish the requirements of this Order. The term “Divestiture Agreement” includes, 

as appropriate, the Indianapolis Terminal Divestiture Agreement and the Martinsburg 

Business Divestiture Agreement.

Z. “Divestiture Date” means the date any of the respective divestitures required by this 

Order are consummated. 

AA. “Divestiture Employees” means:

1. All employees of Respondents who perform duties at the locations of any one or 

more of the Assets to be Divested (including, but not limited to, the Solvay 

Terminal Assets) ; and, 

2. All employees of Respondents wherever located who perform duties at any 

location that are reasonably necessary for the operation in a manner that achieves 

the purposes of this Order of the Assets to be Divested (including, but not limited 

to, the Solvay Terminal Assets).

BB. “Divestiture Trustee” means any person or entity appointed by the Commission pursuant 

to Paragraph V. of this Order to act as a trustee in this matter. 

CC. “Essroc/EPA Consent Decree” means the consent decree in United States of America, et al, v. 

Essroc Cement Corp., Civil Action No. 11-1650, filed in the United States District Court 

for the Western District of Pennsylvania. 

DD. “Frederick Terminal” means the Terminal Assets relating to Italcementi’s terminal 

located at 4120 Buckeystown Pike, Frederick, MD that stores, distributes and sells 

Cement and related products. 

EE. “Grinding” means the process of grinding clinker or granulated blast furnace slag into the 

powder that is or is an ingredient used in making cement.

FF. “Indianapolis Terminal” means the Terminal Assets relating to Italcementi’s terminal 

located at 1051 South Emerson Avenue, Indianapolis, IN, that stores, distributes and sells 

Cement and related products. 
6 

GG. “Indianapolis Terminal Divestiture Agreement” means:

1. The Cemex Agreement; or,

2. Any other contracts and agreements that receive the approval of the Commission 

to divest the Indianapolis Terminal to an Acquirer approved by the Commission 

as required by this Order. 

HH. “Intellectual Property” means all intellectual property owned or licensed (as licensor or 

licensee) by Respondents in which Respondents have a proprietary interest, and all 

associated rights thereto, including all of the following in any jurisdiction throughout the 

world: (i) all Patents; (ii) all trade secrets, Know-How, and confidential or proprietary 

information (including ideas, research and development, formulas, compositions, 

manufacturing and production processes and techniques, technical data and information, 

blue prints, designs, drawings, specifications, protocols, quality control information, 

customer and supplier lists, pricing and cost information, business and marketing plans 

and proposals, and all other data, technology, and plans); (iii) all computer software 

(including source code, executable code, data, databases and related documentation); and 

(iv) all rights to sue and recover damages or obtain injunctive relief for infringement, 

dilution, misappropriation, violation, or breach of any of the foregoing. 

II. “Know-How” means know-how, trade secrets, techniques, data, inventions, practices, 

methods, and other confidential or proprietary technical, business, research, development, 

and other similar information.

JJ. “Leetsdale Terminal” means the Terminal Assets relating to Italcementi’s Leetsdale

terminal located at 500 W. Park Road, Leetsdale, PA, that stores, distributes and sells 

Cement and related products. 

KK. “Martinsburg Business Divestiture Agreement” means any contracts and agreements that 

receive the approval of the Commission to divest the Martinsburg Cement Business to an 

Acquirer approved by the Commission as required by this Order. 

LL. “Martinsburg Cement Business” means the

1. Martinsburg Cement Plant;

2. Ashland Terminal; 

3. Baltimore Terminal;

4. Bessemer Terminal;

5. Chesapeake Terminal; 

6. Frederick Terminal; 

7. Leetsdale Terminal;

8. Newport News Terminal, and, 

9. Solvay Terminal. 
7 

Provided, however, the Martinsburg Cement Business does not include: 

1. Books and Records that contain only information that relates solely to assets 

properly retained by Respondents under this Order; 

2. Books and Records: 

a. That contain information that relates both to Assets To Be Divested and 

to assets properly retained by Respondents under this Order; and, 

b. From which Respondents, using best efforts, have redacted information

about the dates, products, quantity of products, prices, credit terms, and 

other commercial information about transactions with customers at any of 

the Assets To Be Divested;

3. A copy of those portions of Primary Books and Records and a copy of Redacted 

Books and Records divested to an Acquirer that: 

a. Respondents are required to keep or maintain for legal, regulatory, tax, or 

bona fide document retention purposes; and, 

b. Respondents keep or maintain at a location and under conditions of access 

that allow only Respondents’ agents and employees who perform legal or 

accounting services for Respondents to access; 

4. Contracts with common carriers to use any vehicles, railcars, barges, or other 

transportation vessels, other than contracts for such vehicles, railcars, barges, or 

other transportation vessels in number, type, quantity, and quality as are 

reasonably necessary for an Acquirer to operate the Assets To Be Divested in a 

manner to achieve the purposes of this Order; and, 

5. Other Cement plants, or other sources of Cement or related products, in addition

to the Martinsburg Cement Plant; and, 

6. Other Cement terminals in addition to the Terminals To Be Divested and the 

Optional Terminals. 

MM. “Martinsburg Cement Plant” means Italcementi’s Plant Assets relating to Italcementi’s 

Cement plant located at 1826 S. Queen Street, Martinsburg, WV, that produces, stores, 

distributes and sells Cement and related products. 

NN. “Material Confidential Information” means any material non-public information relating 

to the Assets To Be Divested either prior to or after the applicable Divestiture Date, 

including, but not limited to, business and strategic plans, customer or supplier lists, 

customer or supplier contract terms, information about sales to customers or purchases 

from suppliers, manufacturing volumes or costs, price lists, marketing methods, or 

Know-How, and:

1. Obtained by Respondents prior to the Divestiture Date; or, 
8 

2. Obtained by Respondents after the Divestiture Date, in the course of performing 

Respondents’ obligations under any Remedial Agreement(s) or the Asset 

Maintenance Order; 

Provided, however, that Material Confidential Information shall not include:

1. Information that is in the public domain when received by Respondents; 

2. Information that is not in the public domain when received by Respondents and 

thereafter becomes public through no act or failure to act by Respondents; 

3. Information that Respondents develop or obtain independently, without violating 

any applicable law or this Order, and without breaching any confidentiality 

obligation with respect to the information; and, 

4. Information that becomes known to Respondents from a third party not in breach 

of applicable law or a confidentiality obligation with respect to the information.

OO. “Middlebranch Terminal” means the Terminal Assets relating to Italcementi’s 

Middlebranch terminal located at8282 Middlebranch Ave. NE, Middlebranch, OH, that 

stores, distributes and sells Cement and related products. The Middlebranch Terminal

includes all assets located at the Middlebranch terminal relating to Grinding that takes 

place at the Middlebranch terminal, including, but not limited to: 

1. Real property, whether owned or leased, and including any storage areas, 

quarries, pits, or other natural resource rights (together, in each case, with all 

easements, rights of way, buildings, improvements, and appurtenances);

2. All personal property, equipment, machinery and tools, furniture and fixtures; 

3. Such vehicles, railcars, barges, or other transportation vessels in number, type, 

quantity, and quality (wherever located) as are reasonably necessary for an 

Acquirer to operate the Assets To Be Divested in a manner to achieve the 

purposes of this Order; 

4. Storage facilities at the Middlebranch terminal for any products produced by 

Grinding or sold at the plant, or shipped to any terminal, in bagged, bulk, or other 

form;

5. Assets related to or used for receiving raw materials used in or related to Grinding 

or shipping products produced by Grinding; 

6. Inventory, supplies, and raw materials; 

7. Primary Books and Records and Redacted Books and Records, in each case 

wherever located;

8. Contracts; 

9. Customer and vendor lists; and, 

10. Licenses, government approvals, registrations, permits, and applications (to the 

extent transferable); 
9 

Provided, that, the Middlebranch Terminal does not include Terminal Assets 

relating to Grinding at other than the Terminals To Be Divested and the 

Columbus Terminal. 

Provided, further, that, Contracts do not include contracts for granulated blast 

furnace slag not exclusively used by the Middlebranch Terminal Assets. 

PP. “Monitor” means any Person appointed by the Commission pursuant to Paragraph IV. of 

this Order to act as a monitor in this matter. 

QQ. “Newport News Terminal” means the Terminal Assets relating to Italcementi’s terminal 

located at 1900 Harbor Access Road, Newport News, VA that stores, distributes and sells 

Cement and related products. 

RR. “Optional Terminals” means the Columbus Terminal and the Middlebranch Terminal.

SS. “Plant Assets” means all of Respondents’ rights, title, and interest in and to all assets, 

tangible and intangible, located or used at the Martinsburg Cement Plant relating to, used 

in, or reserved for use in, its Cement plant operations, including but not limited to, all: 

1. Real property, whether owned or leased, and including any quarries, pits, or other 

natural resource rights (together, in each case, with all easements, rights of way, 

buildings, improvements, and appurtenances); 

2. Personal property, equipment, machinery and tools, furniture and fixtures; 

3. Such vehicles, railcars, barges, or other transportation vessels in number, type, 

quantity, and quality (wherever located) as are reasonably necessary for an 

Acquirer to operate the Assets To Be Divested in a manner to achieve the 

purposes of this Order; 

4. Storage facilities for any Cement produced or sold at the plant, or shipped to any 

terminal, in bagged, bulk, or other form; 

5. Terminal Assets located at the Cement plant used to ship from the plant, or sell or 

deliver at the plant, any Cement (whether produced at the plant or some other 

location); 

6. Inventory, supplies, and raw materials; 

7. Primary Books and Records and Redacted Books and Records, in each case 

wherever located; 

8. Contracts; 

9. Customer and vendor lists; 

10. Intellectual Property used in or necessary for the operation of any Cement plant 

required to be divested by this Order; 

11. Licenses, government approvals, registrations, permits, and applications (to the 

extent transferable); 

12. Telephone and fax numbers; and, 
10 

13. Goodwill. 

Provided, however, that Plant Assets do not include those assets consisting of or 

pertaining to any of the Respondents’ trademarks, trade dress, service marks, or trade 

names, except with respect to any purchased inventory or as may be provided in any 

Remedial Agreement(s).

Provided further that, Plant Assets do not include any terminals other than the Terminals 

To Be Divested and the Optional Terminals.

TT. “Primary Books and Records” means Books and Records containing information relating

solely to the Plant Assets, Terminal Assets, or other assets divested under this Order. 

UU. “Proposed Acquirer” means any proposed acquirer of any of the Assets To Be Divested 

submitted to the Commission for its approval under this Order. “Proposed Acquirer” 

includes Cemex.

VV. “Redacted Books and Records” means Books and Records: 

1. That prior to a Divestiture Date contained information relating both to: 

a. The Plant Assets, Terminal Assets, or other assets divested under this 

Order; and, 

b. Assets retained by Respondents because the Order does not require their 

divestiture; and, 

2. From which Respondents have removed or redacted information relating solely to 

assets retained by Respondents before divesting the Books and Records to an 

Acquirer. 

WW. “Remedial Agreement(s)” means:

1. Any Divestiture Agreement; and, 

2. Any other agreement between a Respondent and a Commission-approved 

Acquirer (or between a Divestiture Trustee and a Commission-approved 

Acquirer), including but not limited to any Transition Services Agreement and 

any Cement supply, throughput, storage or transportation agreement, and all 

amendments, exhibits, attachments, agreements, and schedules thereto, related to 

the Assets To Be Divested, that have been approved by the Commission to 

accomplish the requirements of this Order. 

XX. “Solvay Terminal” means the Terminal Assets relating to Heidelberg’s terminal located 

at 1515 Willis Avenue, Solvay, NY, that stores, distributes and sells Cement and related 

products. 

YY. “Terminal Assets” means all of Respondents’ rights, title, and interest in and to all assets, 

tangible and intangible, located at the Terminals To Be Divested relating to, used in, 

and/or reserved for use in, its Cement terminal operations, including but not limited to, 

all: 
11 

1. Real property, whether owned or leased (together, in each case, with all 

easements, rights of way, buildings, improvements, and appurtenances); 

2. Personal property, equipment, machinery and tools, furniture and fixtures; 

3. Such vehicles, railcars, barges, or other transportation vessels in number, type, 

quantity, and quality (wherever located) as are reasonably necessary for an 

Acquirer to operate the Assets To Be Divested in a manner to achieve the 

purposes of this Order; 

4. Storage facilities for any Cement shipped to or sold at the terminal in bagged, 

bulk, or other form; 

5. Inventory, supplies, and raw materials; 

6. Books and Records (wherever located); 

7. Contracts; 

8. Customer and vendor lists; 

9. Intellectual Property used in or necessary for the operation of any of the 

Terminals To Be Divested; 

10. Licenses, government approvals, registrations, permits, and applications (to the 

extent transferable); 

11. Telephone and fax numbers; and, 

12. Goodwill. 

Provided, however, that Terminal Assets do not include those assets consisting of or 

pertaining to any of the Respondents’ trademarks, trade dress, service marks, or trade 

names, except with respect to any purchased inventory or as may be provided in any 

Remedial Agreement(s).

Provided further that, Terminal Assets do not include: 

1. Books and Records that contain only information that relates solely to assets 

properly retained by Respondents under this Order; 

2. Books and Records: 

a. That contain information that relates both to Assets To Be Divested and 

to assets properly retained by Respondents under this Order; and, 

b. From which Respondents, using best efforts, have redacted information 

about the dates, products, quantity of products, prices, credit terms, and 

other commercial information about transactions with customers at any of 

the Assets To Be Divested;
12 

3. A copy of those portions of Primary Books and Records and a copy of Redacted 

Books and Records divested to an Acquirer that: 

a. Respondents are required to keep or maintain for legal, regulatory, tax, or 

bona fide document retention purposes; and, 

b. Respondents keep or maintain at a location and under conditions of access 

that allow only Respondents’ agents and employees who perform legal or 

accounting services for Respondents to access; 

4. Contracts with common carriers to use any vehicles, railcars, barges, or other 

transportation vessels, other than contracts for such vehicles, railcars, barges, or 

other transportation vessels in number, type, quantity, and quality as are 

reasonably necessary for an Acquirer to operate the Assets To Be Divested in a 

manner to achieve the purposes of this Order; and, 

5. Cement plants other than the Martinsburg Cement Plant and terminals other than 

the Terminals To Be Divested and the Optional Terminals.

ZZ. “Terminals To Be Divested” means the Ashland Terminal, Baltimore Terminal, 

Bessemer Terminal, Chesapeake Terminal, Frederick Terminal, Indianapolis Terminal,

Leetsdale Terminal, Newport News Terminal, and Solvay Terminal.

AAA. “Transition Services Agreement” means an agreement that receives the prior approval of 

the Commission between one or both Respondents and an Acquirer of any of the assets 

divested under this Order to provide, at the option of the Acquirer and at no more than the 

Direct Costs of the Respondents, any services (or training for the Acquirer to provide 

services for itself) reasonably necessary to transfer the divested assets to the Acquirer in a 

manner consistent with the purposes of this Order, and may include, but are not limited 

to, payroll, employee benefits, accounting, IT systems, supply, distribution, warehousing, 

terminal or throughput services, access to Know-How, use of trademarks or trade names, 

or other logistical and administrative support. 

II.

IT IS FURTHER ORDERED that: 

A. Respondents shall divest the Assets To Be Divested, absolutely and in good faith, as 

follows: 

1. Within ten (10) days of the Acquisition Date, the Indianapolis Terminal shall be 

divested, absolutely and at no minimum price, to: 

a. Cemex pursuant to and in accordance with the Indianapolis Terminal 

Divestiture Agreement; or,

b. A Person who receives the prior approval of the Commission and in 

accordance with an Indianapolis Terminal Divestiture Agreement that 

receives the prior approval of the Commission; 
13 

Provided further that, if prior to the date this Order becomes final, 

Respondents have divested the Indianapolis Terminal pursuant to 

Paragraph II.A.1. and if, at the time the Commission determines to make 

this Order final, the Commission notifies Respondents that: 

1. Any Indianapolis Acquirer identified in Paragraph II.A.1. is not an 

acceptable Acquirer, then Respondents shall, within five days of 

notification by the Commission, rescind such transaction with that 

Indianapolis Acquirer, and shall divest such assets, absolutely and 

in good faith, at no minimum price, to another Acquirer that 

receives the prior approval of the Commission and in a manner that 

receives the prior approval of the Commission, within 90 days of 

the date the Commission notifies Respondents that such 

Indianapolis Acquirer is not an acceptable Acquirer; or, 

2. The manner in which any divestiture identified in Paragraph II.A.1. 

was accomplished is not acceptable, the Commission may direct 

the Respondents, or appoint a Divestiture Trustee pursuant to 

Paragraph V.A. of this Order, to effect such modifications to the 

manner of divesting those assets to such Acquirer (including, but 

not limited to, entering into additional agreements or arrangements, 

or modifying the relevant Divestiture Agreement) as may be 

necessary to satisfy the requirements of this Order. 

and, 

2. Within one hundred and twenty (120) days of the Acquisition Date, the 

Martinsburg Cement Business shall be divested, absolutely and at no minimum 

price, to an Acquirer that receives the prior approval of the Commission, and in a 

manner that receives the prior approval of the Commission. 

Provided that, at the option of the Acquirer and subject to the prior approval of 

the Commission, Respondents shall divest the Columbus Terminal and the 

Middlebranch Terminal to the Acquirer of the Martinsburg Cement Business. 

B. All Remedial Agreement(s) approved by the Commission: 

1. Shall be deemed incorporated by reference into this Order, and any failure by 

Respondents to comply with the terms of any such Remedial Agreement(s) shall 

constitute a violation of this Order; and 

2. Shall not limit or contradict, or be construed to limit or contradict, the terms of 

this Order, it being understood that nothing in this Order shall be construed to 

reduce any rights or benefits of any Acquirer or to reduce any obligation of 

Respondents under such agreement. If any term of any Remedial Agreement(s) 

varies from the terms of this Order (“Order Term”), then to the extent that 

Respondents cannot fully comply with both terms, the Order Term shall 

determine Respondents’ obligations under this Order. 
14 

C. At the option of each Acquirer, and subject to the prior approval of the Commission, 

Respondents shall enter into a Transition Services Agreement for a term extending up to 

two years following the relevant Divestiture Date, which agreement may be terminated at 

any time by the Acquirer without penalty upon commercially reasonable notice to 

Respondents. 

D. Prior to each applicable Divestiture Date: 

1. Respondents shall secure, at their sole expense, consents from any Person that are

necessary to effect the complete transfer of the Assets To Be Divested to each 

Acquirer (including, but not limited to, any approvals of use or ownership of any 

of the Assets To Be Divested relating to the Essroc/EPA Consent Decree), and for 

each Acquirer to operate the Assets To Be Divested in a manner consistent with 

the purposes of this Order; 

Provided, however, that Respondents shall not be required to secure the consent 

of any Governmental Entity relating to any permit, license, or right that 

Respondents have no legal right to divest or transfer to the Acquirer; and, 

2. Respondents shall use best efforts to assist each Acquirer to obtain from any 

Governmental Entity the transfer from Respondents or issuance to the Acquirer of 

any permit, license, or right that Respondents have no legal right to divest or 

transfer to the Acquirer. 

E. Pending divestiture of any of the Assets To Be Divested, Respondents shall: 

1. Take such actions as are necessary to maintain the full economic viability, 

marketability, and competitiveness of the Assets To Be Divested, to minimize any 

risk of loss of competitive potential for the Assets To Be Divested, and to prevent 

the destruction, removal, wasting, deterioration, or impairment of the Assets To 

Be Divested, except for ordinary wear and tear; and, 

2. Not sell, transfer, encumber, or otherwise impair the Assets To Be Divested (other 

than in the manner prescribed in this Decision and Order and in the Asset 

Maintenance Order) nor take any action that lessens the full economic viability, 

marketability, or competitiveness of the Assets To Be Divested. 

F. With respect to each of the divestitures of Assets to be Divested required by this Order: 

1. Respondents shall provide reasonable opportunity in advance of the Divestiture 

Date for the Proposed Acquirer to: 

a. Meet personally, and outside of the presence or hearing of any employee

or agent of Respondents, with any or all of the Divestiture Employees 

pursuant to the applicable Divestiture Agreement; and

b. Make offers of employment to any or all of the Divestiture Employees 

pursuant to the applicable Divestiture Agreement; 
15 

2. Respondents shall: (i) not directly or indirectly interfere with the hiring by the 

Acquirer of Divestiture Employees; (ii) not directly or indirectly attempt to 

persuade any one or more of the Divestiture Employees to decline any offer of 

employment from any Acquirer, or offer any incentive to any Divestiture 

Employee to decline employment with any Acquirer; (iii) remove any 

impediments within the control of Respondents that may deter those Divestiture 

Employees from accepting employment with such Acquirer (including, but not 

limited to, any non-compete or confidentiality provisions of employment or other 

contracts with Respondents that would affect the ability or incentive of those 

individuals to be employed by such Acquirer); (iv) not make any counteroffer to 

any Divestiture Employee who has an outstanding offer of employment, or who 

has accepted an offer of employment, from an Acquirer; and (v) continue to 

extend to any Divestiture Employee, prior to the applicable Divestiture Date, all 

Divestiture Employee benefits offered in the ordinary course of business, 

including regularly scheduled or merit raises and bonuses, and regularly 

scheduled vesting of all pension benefits; 

3. Respondents shall not, directly or indirectly, for a period of two (2) years from the 

applicable Divestiture Date, solicit, negotiate, hire, or enter into any arrangement 

for the services of any Divestiture Employee who has accepted an offer of 

employment with, or who is employed by, an Acquirer.

Provided, however, a violation of this provision will not occur if: 

a. The Divestiture Employee’s employment has been terminated by the

Acquirer;

b. Respondents advertise for employees in newspapers, trade publications, or 

other media not targeted specifically at any one or more of the Divestiture 

Employees of the Acquirer(s); or, 

c. Respondents hire a Divestiture Employee who has applied for 

employment with Respondents, provided that such application was not, 

directly or indirectly, solicited or induced by Respondents in violation of 

this Order. 

G. The purpose of the divestitures is to ensure the continuation of the Assets To Be Divested 

as ongoing, viable facilities engaged in the Cement business and to remedy the lessening 

of competition resulting from the Acquisition as alleged in the Commission’s Complaint. 

III.

IT IS FURTHER ORDERED that: 

A. Respondents shall not: 

1. Provide, disclose, or otherwise make available any Material Confidential 

Information to any Person except as required or permitted by this Order, the Asset 

Maintenance Order, or any Remedial Agreement(s); or 
16 

2. Use any Material Confidential Information for any reason or purpose other than as 

required or permitted by this Order, the Asset Maintenance Order, or any of the

Remedial Agreement(s), and shall limit access to Material Confidential 

Information to only those employees necessary for Respondents to fulfill their 

obligations under the Order, the Asset Maintenance Order, or the Remedial 

Agreement(s). 

B. Respondents shall devise and implement measures to protect against the storage, 

distribution, and use of Material Confidential Information that is not permitted by this 

Order, the Asset Maintenance Order, or the Remedial Agreement(s). These measures 

shall include, but not be limited to, restrictions placed on access by persons to 

information available or stored on any of Respondents’ computers or computer networks. 

C. Notwithstanding anything else in paragraph III of this Order and subject to the Asset 

Maintenance Order, Respondents may use and disclose Material Confidential 

Information: 

1. In the ordinary course of business in the operation of Respondents’ retained 

businesses and assets if:

a. The Material Confidential Information relates both to the Assets To Be 

Divested and to Respondents’ retained businesses or assets;

b. The Divestiture Agreement permits Respondents to retain Material 

Confidential Information that also relates to Respondents’ retained 

businesses or assets; and

c. Respondents protect against the disclosure or use of such Material 

Confidential Information in the same way Respondents protect against the 

disclosure or use of Respondents’ other confidential information; 

2. For the purpose of performing Respondents’ obligations under this Order, the 

Asset Maintenance Order, or the Remedial Agreement(s); 

3. To ensure compliance with legal and regulatory requirements including, but not 

limited to:

a. Retaining a copy of Material Confidential Information for the sole purpose 

of complying with any applicable law, regulations, and other legal 

obligations; and, 

b. Requirements of the rules and regulations of the Securities and Exchange 

Commission and of any stock, the performance of necessary audits and the 

maintenance of effective internal controls and procedures for required 

disclosures of financial information; 

4. To provide accounting, information technology, and credit-underwriting services; 

5. To provide legal services associated with actual or potential litigation and 

transactions;

6. To monitor and ensure compliance with financial, tax reporting, governmental 

environmental, health, and safety requirements; or 
17 

7. As otherwise provided by this Order and the Asset Maintenance Order. 

IV.

IT IS FURTHER ORDERED that:

A. The Commission appoints William Hill as Monitor, and approves the agreement between the 

Monitor and Respondents, attached as Appendix II (“Monitor Agreement”). The Monitor is 

appointed to assure that Respondents expeditiously comply with all of their obligations and 

perform all of their responsibilities as required by this Order and the Remedial 

Agreement(s). 

B. The Monitor’s duties and responsibilities shall include the following, among other 

responsibilities that may be required: 

1. The Monitor shall act in a fiduciary capacity for the benefit of the Commission; 

2. The Monitor shall serve until such time as Respondents have complied fully with 

all of their obligations under the Remedial Agreement(s); 

3. The Monitor shall have the power and authority to monitor Respondents’ 

compliance with this Order and the Remedial Agreement(s);

4. The Monitor shall have power and authority to review and audit, at the 

Respondents’ sole cost and expense, the books and records of Respondents to 

determine whether Respondents have complied fully with their obligations under 

the Order and the Remedial Agreement(s); 

5. The Monitor shall exercise such power and authority and carry out his or her 

duties and responsibilities in a manner consistent with the purposes of this Order 

and in consultation with the Commission and its staff; 

6. The Monitor shall review all reports submitted to the Commission by 

Respondents under this Order and, within thirty (30) days from the date the 

Monitor receives a report, the Monitor shall report in writing to the Commission 

concerning performance by Respondents of their obligations under the Order and 

the Remedial Agreement(s); and, 

7. The Monitor shall provide written reports to the Commission every thirty (30) 

days, or upon a schedule determined by Commission staff, that provides the 

Commission with timely information to determine if Respondents have complied 

and are complying with their obligations under this Order and the Remedial 

Agreement(s). In addition, the Monitor shall provide such additional written 

reports as Commission staff may request that reasonably are related to 

determining if Respondents have complied and are complying with their 

obligations under this Order and the Remedial Agreement(s). The Monitor shall 

not provide to Respondents, and Respondents shall not be entitled to receive, 

copies of these reports. 
18 

C. Respondents shall grant and transfer to the Monitor, and such Monitor shall have, all rights, 

powers, and authority necessary to carry out the Monitor’s duties and responsibilities, 

including, but not limited to, the following: 

1. Respondents shall cooperate with any reasonable request of the Monitor and shall 

take no action to interfere with or impede the Monitor’s ability to monitor 

Respondents’ compliance with this Order and the Remedial Agreement(s); 

2. Subject to any demonstrated legally recognized privilege, Respondents shall 

provide the Monitor full and complete access to Respondents’ personnel, books, 

documents, records kept in the ordinary course of business, facilities and technical 

information, and such other relevant information as the Monitor may reasonably 

request, related to Respondents’ compliance with its obligations under this Order 

and the Remedial Agreement(s); 

3. Within one (1) calendar day of submitting a report required by this Order, 

Respondents shall deliver a copy of such report to the Monitor; 

4. Except as otherwise set forth in this Order, the Monitor shall serve, without bond 

or other security, at the expense of Respondents, on such reasonable and 

customary terms and conditions to which the Monitor and Respondents agree and 

that the Commission approves; 

5. The Monitor shall have authority to employ, at the expense of Respondents, such 

consultants, accountants, attorneys and other representatives and assistants as are 

reasonably necessary to carry out the Monitor’s duties and responsibilities;

6. Respondents shall indemnify the Monitor and hold the Monitor harmless against 

any losses, claims, damages, liabilities, or expenses arising out of, or in 

connection with, the performance of the Monitor’s duties, including all reasonable 

fees of counsel and other reasonable expenses incurred in connection with the 

preparations 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, willful or wanton acts, or bad faith by the Monitor; 

and, 

7. Respondents may require the Monitor and each of the Monitor’s consultants, 

accountants, attorneys and other representatives and assistants to sign a customary 

confidentiality agreement. 

Provided, however, that such agreement shall not restrict the Monitor from 

providing any information to the Commission or its staff, or require the Monitor 

to report to Respondents the substance of communications to or from the 

Commission, its staff, or an Acquirer.
19 

D. Respondents shall comply with all terms of the Monitor Agreement, and any breach by 

Respondents of any term of the Monitor Agreement shall constitute a violation of this 

Order. Notwithstanding any paragraph, section, or other provision of the Monitor 

Agreement, any modification of the Monitor Agreement, without the prior approval of 

the Commission, shall constitute a failure to comply with this Order.

E. The Commission may, among other things, require the Monitor and each of the Monitor’s 

consultants, accountants, attorneys and other representatives and assistants to sign an 

appropriate confidentiality agreement related to Commission materials and information 

received in connection with the performance of the Monitor’s duties. 

F. If the Commission determines that the Monitor has ceased to act or failed to act 

diligently, the Commission may appoint a substitute Monitor. The Commission shall 

select the substitute Monitor, subject to the consent of Respondents, which consent shall 

not be unreasonably withheld. If Respondents have not opposed, in writing, including the 

reasons for opposing, the selection of any proposed substitute Monitor within ten (10) 

days after notice by the staff of the Commission to Respondents of the identity of any 

proposed substitute Monitor, Respondents shall be deemed to have consented to the 

selection of the proposed substitute Monitor. Not later than ten (10) days after the 

appointment of the Monitor, Respondents shall execute an agreement that, subject to the 

prior approval of the Commission, confers on the Monitor all the rights and powers 

necessary to permit the Monitor to monitor Respondents’ compliance with the relevant 

requirements of this Order and the Remedial Agreement(s) in a manner consistent with 

the purpose of this Order. If a substitute Monitor is appointed, Respondents shall consent 

to the terms and conditions regarding the powers, duties, authorities, and responsibilities 

of the Monitor as set forth in this Paragraph. 

G. The Commission may on its own initiative, or at the request of the Monitor, issue such 

additional orders or directions as may be necessary or appropriate to assure compliance 

with the requirements of this Order.

H. A Monitor appointed pursuant to this Order may be, but need not be, the same person 

appointed as the Divestiture Trustee pursuant to Paragraph V. of this Order and as Asset 

Maintenance Monitor appointed pursuant to the Asset Maintenance Order. 

V.

IT IS FURTHER ORDERED that:

 

A. If Respondents have not divested all of the Assets To Be Divested in the time and manner 

required by Paragraph II of this Order, the Commission may appoint a Divestiture 

Trustee to divest the remaining Assets To Be Divested, and to enter into Transition 

Services Agreements and other Remedial Agreement(s), and perform Respondents’ other 

obligations, in a manner that satisfies the requirements of this Order. 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. § 45(l), or any other statute enforced by the 
20 

Commission, Respondents shall consent to the appointment of a Divestiture Trustee in 

such action to divest the required assets. Neither the appointment of a Divestiture 

Trustee nor a decision not to appoint a 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 one or more court-appointed Divestiture Trustees, 

pursuant to Section 5(l) of the Federal Trade Commission Act, or any other statute 

enforced by the Commission, for any failure by Respondents to comply with this Order. 

B. The Commission may select a Divestiture Trustee, subject to the consent of Respondents, 

which consent shall not be unreasonably withheld. The Divestiture Trustee shall be a 

person with experience and expertise in acquisitions and divestitures. If Respondents 

have not opposed, in writing, and stated in writing their reasons for opposing, the 

selection of any proposed Divestiture Trustee within ten (10) days after notice by the staff 

of the Commission to Respondents of the identity of any proposed Divestiture Trustee, 

Respondents shall be deemed to have consented to the selection of the proposed 

Divestiture Trustee.

1. Not later than ten (10) days after the appointment of a Divestiture Trustee, 

Respondents shall execute a trust agreement for any divestitures required by 

Paragraph II. of this Order 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 effectuate the divestitures required by, and satisfy the 

additional obligations imposed by, this Order. Any failure by Respondents to 

comply with a trust agreement approved by the Commission shall be a violation 

of this Order.

2. If a Divestiture Trustee is appointed by the Commission or a court pursuant to this 

Paragraph, Respondents shall consent to the following terms and conditions 

regarding the Divestiture Trustee’s powers, duties, authority, and responsibilities: 

a. Subject to the prior approval of the Commission, the Divestiture Trustee 

shall have the exclusive power and authority to effectuate the divestitures 

required by, and satisfy the additional obligations imposed by, this Order. 

b. The Divestiture Trustee shall have one (1) year after the date the 

Commission approves the trust agreement described herein to accomplish 

the divestiture required by this Order, which shall be subject to the prior 

approval of the Commission. If, however, at the end of the one (1) year 

period, the Divestiture Trustee has submitted a plan to satisfy the 

divestiture obligations of this Order, or believes that such obligation can 

be achieved within a reasonable time, the 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. 
21 

c. Subject to any demonstrated legally recognized privilege, any 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 by this Order and to any other relevant information, as the 

Divestiture Trustee may request. Respondents shall develop such 

financial or other information as any Divestiture Trustee may request and 

shall cooperate with the Divestiture Trustee. Respondents shall take no 

action to interfere with or impede any Divestiture Trustee’s 

accomplishment of the divestiture. Any delays caused by Respondents 

shall extend the time under this Paragraph for a time period equal to the 

delay, as determined by the Commission or, for a court-appointed 

Divestiture Trustee, by the court.

d. Any Divestiture Trustee shall use commercially reasonable efforts to 

negotiate the most favorable price and terms available in each contract that 

is submitted to the Commission, subject to Respondents’ absolute and 

unconditional obligation to divest expeditiously and at no minimum price. 

The divestiture shall be made in the manner that receives the prior 

approval of the Commission and to an Acquirer that receives the prior 

approval of the Commission as required by this Order; provided, however,

if any Divestiture Trustee receives bona fide offers for any asset to be 

divested 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 Respondents from 

among those approved by the Commission; provided further, however,

that Respondents shall select such entity within five (5) days after 

receiving notification of the Commission’s approval. 

e. Any Divestiture 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. Any Divestiture 

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 Divestiture Trustee’s duties and 

responsibilities. Any Divestiture Trustee shall account for all monies 

derived from the divestitures and all expenses incurred. After approval by 

the Commission of the account of the Divestiture Trustee, including fees 

for the Divestiture Trustee’s services, all remaining monies shall be paid at 

the direction of Respondents, and the Divestiture Trustee’s power shall be 

terminated. The compensation of any 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.
22 

f. Respondents shall indemnify any 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, malfeasance, willful or wanton 

acts, or bad faith by the Divestiture Trustee.

g. The Divestiture Trustee shall have no obligation or authority to operate or 

maintain the relevant assets required to be divested by this Order. 

h. The Divestiture Trustee shall report in writing to Respondents and to the 

Commission every thirty (30) days concerning the Divestiture Trustee’s 

efforts to accomplish the divestitures.

i. Respondents may require the Divestiture Trustee and each of the 

Divestiture Trustee’s consultants, accountants, attorneys, and other 

representatives and assistants to sign a customary confidentiality 

agreement; provided, however, such agreement shall not restrict the 

Divestiture Trustee from providing any information to the Commission.

j. The Commission may, among other things, require the Divestiture Trustee 

and each of the Divestiture Trustee’s consultants, accountants, attorneys 

and other representatives and assistants to sign an appropriate 

confidentiality agreement related to Commission materials and 

information received in connection with the performance of the 

Divestiture Trustee’s duties.

C. If the Commission determines that the Divestiture Trustee has ceased to act or failed to 

act diligently, the Commission may appoint a substitute Divestiture Trustee in the same 

manner as provided in this Paragraph. 

D. The Commission or, in the case of a court-appointed Divestiture Trustee, the court, may 

on its own initiative or at the request of any Divestiture Trustee, issue such additional 

orders or directions as may be necessary or appropriate to accomplish the divestitures 

required by this Order.

E. The Divestiture Trustee appointed pursuant to this Paragraph may be, but need not be, the 

same person as the Monitor appointed under this Order and as Asset Maintenance

Monitor appointed pursuant to the Asset Maintenance Order.
23 

VI.

IT IS FURTHER ORDERED that:

A. Within thirty (30) days after the date this Order is issued, and every thirty (30) days 

thereafter until the completion of the last divestiture required by this Order, Respondents 

shall submit to the Commission (and a complete copy to the Monitor appointed under this 

Order, and the Asset Maintenance Monitor appointed under the Asset Maintenance

Order) 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. For the period 

covered by this report, the report shall include, but not be limited to, among other things 

that are required from time to time, a full description of the efforts being made to comply 

with Paragraph II. of this Order, including a description of all substantive contacts or 

negotiations for the divestitures and the identity and contact information of all parties 

contacted. Respondents shall include in the reports copies of all material written 

communications to and from such parties, all internal memoranda reviewing or 

evaluating possible acquirers or divestiture proposals, and all reports and 

recommendations concerning completing the obligations. 

B. On the first anniversary of the date this Order is issued, and thereafter on each subsequent 

anniversary until Respondents have satisfied in full all of their obligations under 

Paragraph II. of this Order and all of the Remedial Agreement(s), 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. 

For the period covered by each such report, Respondents shall state the name and contact 

information for each Person that maintains or claims (regardless of whether Respondents 

agree or disagree with such Person, and regardless whether a judicial or arbitration action 

has been threatened or commenced) that one or more Respondents have failed to comply 

fully with the Order (including any Remedial Agreement(s) made a part thereof), briefly 

describe the Person’s claim, and provide copies of any written communications between 

Respondents and the Person concerning the claim. 

VII.

IT IS FURTHER ORDERED that Respondents shall notify the Commission at least 

thirty (30) days prior to: 

A. Any proposed dissolution of Respondents; 

B. Any proposed acquisition, merger or consolidation of Respondents; or 

C. Any other change in the Respondents, including, but not limited to, assignment and the 

creation or dissolution of subsidiaries, if such change might affect compliance obligations 

arising out of the Order. 
24 

VIII.

IT IS FURTHER ORDERED that for purposes of determining or securing compliance 

with this Order, and subject to any legally recognized privilege, and upon written request and 

upon five (5) days’ notice to Respondents made to either Respondent’s principal United States 

offices, registered office of its United States subsidiary, or its headquarters address, Respondents 

shall, without restraint or interference, permit any duly authorized representative of the 

Commission:

A. Access, during business office hours of Respondents and in the presence of counsel, to all 

facilities and access to inspect and copy all books, ledgers, accounts, correspondence, 

memoranda, and all other records and documents in the possession or under the control of 

Respondents related to compliance with this Order, which copying services shall be 

provided by Respondents at the request of the authorized representative(s) of the 

Commission and at the expense of the Respondents; and 

B. To interview officers, directors, or employees of Respondents, who may have counsel 

present, regarding such matters. 

IX.

IT IS FURTHER ORDERED that this Order shall terminate ten (10) years after the 

date this Order is issued.

By the Commission.

 Donald S. Clark 

 Secretary

SEAL: 

ISSUED:
25 

APPENDIX I

Indianapolis Terminal Divestiture Agreement 

[Redacted From the Public Record Version, But Incorporated By Reference]
26 

APPENDIX II 

Monitor Agreement

[Redacted From the Public Record Version, But Incorporated By Reference]