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0910068

UNITED STATES OF AMERICA

BEFORE THE FEDERAL TRADE COMMISSION

COMMISSIONERS: Jon Leibowitz, Chairman

Pamela Jones Harbour

William E. Kovacic

J. Thomas Rosch

 In the Matter of

 AGRIUM INC.,

 a corporation.

Docket No. C-4277

ORDER TO HOLD SEPARATE AND MAINTAIN ASSETS

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

proposed acquisition of CF Industries Holdings, Inc., by Agrium Inc. (“Respondent Agrium”),

and Respondent Agrium having been furnished thereafter with a copy of a draft Complaint that

the Bureau of Competition proposed to present to the Commission for its consideration and

which, if issued by the Commission, would charge Respondent Agrium 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

Respondent Agrium, its attorneys, and counsel for the Commission having thereafter

executed an Agreement Containing Consent Orders (“Consent Agreement”), containing an

admission by Respondent Agrium of all the jurisdictional facts set forth in the aforesaid draft

Complaint, a statement that the signing of said Consent Agreement is for settlement purposes

only and does not constitute an admission by Respondent Agrium that the law has been violated

as alleged in such Complaint, or that the facts as alleged in such Complaint, other 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 Respondent Agrium has violated the said Acts, and that a Complaint

should issue stating its charges in that respect, 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 issues

its complaint, makes the following jurisdictional findings and issues the following Order to Hold

Separate and Maintain Assets (“Hold Separate Order”):
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1. Respondent Agrium Inc. is a corporation organized, existing and doing business under and

by virtue of the laws of Canada, with its office and principal place of business located at

13131 Lake Fraser Drive SE, Calgary, Alberta, T2J7E8, Canada.

2. The Federal Trade Commission has jurisdiction of the subject matter of this proceeding and

of Respondent Agrium, and the proceeding is in the public interest.

ORDER

I.

IT IS ORDERED that, as used in this Hold Separate Order, the following definitions

and the definitions in Paragraph I of the Decision and Order attached to the Agreement

Containing Consent Orders in this matter and, when made final, Paragraph I of the Decision and

Order, which are incorporated herein by reference and made a part hereof, shall apply:

A. “Decision and Order” means:

1. the Proposed Decision and Order contained in the Consent Agreement in this matter

until the issuance of a final Decision and Order by the Commission; and

2. the Final Decision and Order issued and served by the Commission.

B. “Hold Separate Trustee” means the person appointed pursuant to Paragraph III of this Hold

Separate Order.

C. “Monitor” means any monitor appointed pursuant to Paragraph VII of this Hold Separate

Order.

D. “Orders” means the Decision and Order and this Order to Hold Separate and Maintain

Assets.

E. “Ritzville Held Separate Business” means the Ritzville Terminal and the on-going supply,

storage, and sale of Anhydrous Ammonia at the Ritzville Terminal.
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II.

IT IS FURTHER ORDERED that from the Agrium-CF Acquisition Date until the

Ritzville Terminal Divestiture Date:

A. Respondent Agrium shall:

1. take such actions as are necessary to maintain the viability and marketability of the

Ritzville Terminal and Carseland Facility and to prevent the destruction, removal,

wasting, deterioration, or impairment of the Ritzville Terminal and Carseland Facility,

except for ordinary wear and tear;

2. maintain the operations of the Ritzville Terminal and Carseland Facility in the regular

and ordinary course of business and in accordance with past practice (including regular

repair and maintenance of the assets, as necessary) and/or as may be necessary to

preserve the marketability, viability, and competitiveness of the Ritzville Terminal and

Carseland Facility; and 

3. use its best efforts to preserve the existing relationships with suppliers, vendors,

distributors, customers, governmental agencies, employees, and others having business

relations with the Ritzville Terminal and Carseland Facility.

B. Respondent Agrium’s responsibilities shall include, but are not limited to, the following:

1. Respondent Agrium shall not sell, transfer, encumber or otherwise impair the economic

viability, marketability, or competitiveness of the Ritzville Terminal and Carseland

Facility;

2. Respondent Agrium shall retain all of Respondent Agrium’s rights, title, and interest in

the Ritzville Terminal and Carseland Facility, until the Ritzville Terminal Divestiture

Date;

3. Respondent Agrium shall maintain a work force at the equivalent or larger size, and

with equivalent or better training and expertise, to what has been associated with the

Ritzville Terminal and Carseland Facility as of the date Respondent Agrium signed the

Consent Agreement;

4. Respondent Agrium shall not offer employees Related To the Ritzville Terminal and

Carseland Facility other positions within Respondent Agrium or terminate employees

Related To the Ritzville Terminal and Carseland Facility;

5. Respondent Agrium shall do nothing to prevent or discourage suppliers that, prior to the

date on which the Consent Agreement was signed, supplied goods and services to the
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Ritzville Terminal and Carseland Facility from continuing to supply goods and services

to the Ritzville Terminal and Carseland Facility;

6. Respondent Agrium shall provide the Ritzville Terminal and Carseland Facility with

sufficient working capital to operate at least at current rates of operation, to meet all

capital calls with respect to such business and to carry on, at least at their scheduled

pace, all capital projects, business plans and promotional activities for the Ritzville

Terminal and Carseland Facility;

7. Respondent Agrium shall ensure that the Ritzville Terminal is supplied with Anhydrous

Ammonia on an ongoing basis as necessary and appropriate to ensure that the Ritzville

Terminal will build up sufficient Anhydrous Ammonia supply to meet seasonal demand

for Anhydrous Ammonia; 

8. Respondent Agrium shall continue, at least at their scheduled pace, any additional

expenditures for the Ritzville Terminal and Carseland Facility authorized prior to the

date the Consent Agreement was signed by Respondent Agrium including, but not

limited to, all distribution, marketing and sales expenditures;

9. Respondent Agrium shall provide such resources as may be necessary to respond to

competition against the Ritzville Terminal and Carseland Facility and/or to prevent any

diminution in sales of the Ritzville Terminal and Carseland Facility after the date on

which Respondent Agrium signed the Consent Agreement and prior to the Ritzville

Terminal Divestiture Date;

10. Respondent Agrium shall make available for use by the Ritzville Terminal and

Carseland Facility funds sufficient to perform all routine maintenance and all other

maintenance as may be necessary to, and all replacements of, the assets related to such

business;

11. Respondent Agrium shall provide the Ritzville Terminal and Carseland Facility with

such funds as are necessary to maintain the economic viability, marketability and

competitiveness of the Ritzville Terminal and Carseland Facility; 

12. Respondent Agrium shall provide such support services to the Ritzville Terminal and

Carseland Facility as were being provided to the Ritzville Terminal and Carseland

Facility as of the Agrium-CF Acquisition Date.

13. Respondent Agrium shall provide all the Ritzville Terminal and Carseland Facility

employees with reasonable financial incentives to continue in their positions consistent

with past practices and/or as may be necessary to preserve the marketability, viability

and competitiveness of the Ritzville Terminal and Carseland Facility pending

divestiture. Such incentives shall include a continuation of all employee benefits

offered by Respondent Agrium until the Ritzville Terminal Divestiture Date has

occurred, including regularly scheduled raises, bonuses, vesting of pension benefits (as
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permitted by law), and additional incentives as may be necessary to prevent any

diminution of the Ritzville Terminal’s competitiveness and the Carseland Facility’s

competitiveness.

C. Respondent Agrium shall not interfere with the hiring or employing of the Ritzville

Terminal employees as described in Paragraph VII of the proposed Decision and Order, and

shall remove any impediments within the control of Respondent Agrium that may deter

these employees from accepting employment with the Ritzville Terminal Acquirer

including, but not limited to, any noncompete provisions of employment or other contracts

with Respondent Agrium that would affect the ability or incentive of those individuals to be

employed by the Ritzville Terminal Acquirer. In addition, Respondent Agrium shall not

make any counteroffer to a Ritzville Terminal employee who receives a written offer of

employment from the Ritzville Terminal Acquirer;

PROVIDED, HOWEVER, subject to the conditions of continued employment prescribed

in this Order to Maintain Assets, this Paragraph II.F. shall not prohibit Respondent

Agrium from continuing to employ any Designated Ritzville Employee under the terms

of such employee’s employment with Respondent Agrium prior to the date of the written

offer of employment from the Ritzville Terminal Acquirer to such employee.

D. The purposes of this Paragraph II are to: (1) preserve the Ritzville Terminal and Carseland

Facility as a viable, competitive, and ongoing business independent of Respondent Agrium

until the divestiture required by the Decision and Order is achieved; (2) prevent interim

harm to competition pending the relevant divestitures and other relief; and (3) help remedy

any anticompetitive effects of the proposed Agrium-CF Acquisition as alleged in the

Commission’s Complaint.

III.

IT IS FURTHER ORDERED, that:

A. From the Agrium-CF Acquisition Date until the Ritzville Terminal Divestiture Date,

Respondent Agrium shall hold the Ritzville Held Separate Business separate, apart, and

independent of Respondent Agrium. To hold the Rizville Held Separate Business separate,

Respondent Agrium shall, among other things: 

1. Not offer CF employees Related To the Ritzville Held Separate Business positions with

Respondent Agrium (other than continuing employment at the Ritzville Terminal).

2. Do nothing to prevent or discourage suppliers that, prior to the Ritzville Terminal

Divestiture Date, supplied goods and services to the Ritzville Terminal from continuing

to supply goods and services to the Ritzville Terminal.
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B. At any time after the Terra Ritzville Termination Date, the Commission may appoint a Hold

Separate Trustee to assure that the Ritzville Held Separate Business is held separate from

Respondent Agrium.

1. The Commission shall select the Hold Separate Trustee, subject to the consent of

Respondent Agrium, which consent shall not be unreasonably withheld. If Respondent

Agrium has not opposed, in writing, including the reasons for opposing, the selection of

a proposed Hold Separate Trustee within five (5) business days after notice by the staff

of the Commission to Respondent Agrium of the identity of any proposed Hold Separate

Trustee, Respondent Agrium shall be deemed to have consented to the selection of the

proposed Hold Separate Trustee.

2. Not later than five (5) business days after appointment of the Hold Separate Trustee,

Respondent Agrium shall execute an agreement that, subject to the prior approval of the

Commission, confers on the Hold Separate Trustee all the rights and powers necessary

to permit the Hold Separate Trustee to perform his duties and responsibilities, pursuant

to this Hold Separate Order and consistent with the purposes of this Hold Separate

Order.

3. Not later than ten (10) business days after appointment of the Hold Separate Trustee,

Respondent Agrium shall, pursuant to the Hold Separate Trustee Agreement, transfer to

the Hold Separate Trustee all rights, powers, and authorities necessary to permit the

Hold Separate Trustee to perform his/her duties and responsibilities, pursuant to this

Hold Separate Order and consistent with the purposes of the Decision and Order.

4. Respondent Agrium shall consent to the following terms and conditions regarding the

powers, duties, authorities, and responsibilities of the Hold Separate Trustee:

a. The Hold Separate Trustee shall have the responsibility, consistent with the terms of

this Hold Separate Order and the Decision and Order, for monitoring the

organization of the Ritzville Held Separate Business; for managing the Ritzville

Held Separate Business through the Managers; for maintaining the independence of

the Ritzville Held Separate Business; and for monitoring Respondent Agrium’s

compliance with its obligations pursuant to the Orders.

b. Subject to all applicable laws and regulations, the Hold Separate Trustee shall have

full and complete access to all personnel, books, records, documents and facilities

of the Ritzville Held Separate Business or to any other relevant information as the

Hold Separate Trustee may reasonably request including, but not limited to, all

documents and records kept by Respondent Agrium in the ordinary course of

business that relate to the Ritzville Held Separate Business. Respondent Agrium

shall develop such financial or other information as the Hold Separate Trustee may

request and shall cooperate with the Hold Separate Trustee. Respondent Agrium

shall take no action to interfere with or impede the Hold Separate Trustee’s ability

to monitor Respondent Agrium’s compliance with the Orders or otherwise to
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perform his/her duties and responsibilities consistent with the terms of this Hold

Separate Order.

c. The Hold Separate Trustee shall have the authority to employ, at the cost and

expense of Respondent Agrium, such consultants, accountants, attorneys, and other

representatives and assistants as are reasonably necessary to carry out the Hold

Separate Trustee’s duties and responsibilities.

d. The Commission may require the Hold Separate Trustee, and Persons hired by the

Hold Separate Trustee, to sign an appropriate confidentiality agreement relating to

Commission materials and information received in connection with performance of

the Hold Separate Trustee’s duties.

e. Respondent Agrium may require the Hold Separate Trustee, and Persons hired by

the Hold Separate Trustee, to sign a confidentiality agreement prohibiting the

disclosure of any Confidential Business Information gained as a result of his or her

role as Hold Separate Trustee to anyone other than the Commission.

f. Thirty (30) days after the appointment of the Hold Separate Trustee pursuant to this 

Paragraph III.B., and every thirty (30) days thereafter until the Hold Separate Order

terminates, the Hold Separate Trustee shall report in writing to the Commission

concerning the efforts to accomplish the purposes of this Hold Separate Order.

Included within that report shall be the Hold Separate Trustee’s assessment of the

extent to which the businesses comprising the Ritzville Held Separate Business are

meeting (or exceeding) their projected goals as are reflected in operating plans,

budgets, projections or any other regularly prepared financial statements.

g. If the Hold Separate Trustee ceases to act or fails to act diligently and consistent

with the purposes of this Hold Separate Order, the Commission may appoint a

substitute Hold Separate Trustee consistent with the terms of this paragraph, subject

to the consent of Respondent Agrium, which consent shall not be unreasonably

withheld. If Respondent Agrium has not opposed, in writing, including the reasons

for opposing, the selection of the substitute Hold Separate Trustee within five (5)

business days after notice by the staff of the Commission to Respondent Agrium of

the identity of any substitute Hold Separate Trustee, Respondent Agrium shall be

deemed to have consented to the selection of the proposed substitute trustee.

Respondent Agrium and the substitute Hold Separate Trustee shall execute a new

Hold Separate Trustee Agreement, subject to the approval of the Commission,

consistent with this Paragraph III.B.

C. Respondent Agrium shall enter into management agreements with one or more persons,

approved by Commission staff, to be Managers of the Ritzville Held Separate Business, (1)

at any time after the Agrium-CF Acquisition Date and before the Ritzville Terminal

Divestiture Date, at the request of Commission staff, or (2) no later than five (5) business

days after the appointment of the Hold Separate Trustee. 
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1. Respondent Agrium shall, pursuant to the management agreements, transfer all rights,

powers, and authorities necessary to manage and maintain the Ritzville Held Separate

Business, to the Managers.

2. The Managers shall report directly and exclusively to the Hold Separate Trustee, if one

is appointed, or otherwise to Commission staff, and shall manage the Ritzville Held

Separate Business independently of the management of Respondent Agrium. The

Managers shall not be involved, in any way, in the operations of the other businesses of

Respondent Agrium during the term of this Hold Separate Order.

3. The Managers shall have no financial interests (other than existing options and interests

in securities of Respondent Agrium) affected by Respondent Agrium’s revenues, profits

or profit margins, except that the compensation of the Managers for managing the

Ritzville Held Separate Business may include economic incentives dependent on the

financial performance of the Ritzville Held Separate Business if there are also sufficient

incentives for the Managers to operate the Ritzville Held Separate Business at no less

than current rates of operation (including, but not limited to, current rates of production

and sales) and to achieve the objectives of this Hold Separate Order.

4. The Managers shall make no material changes in the present operation of the Ritzville

Held Separate Business except with the approval of the Hold Separate Trustee, in

consultation with the Commission staff, or Commission staff. 

5. The Managers shall have the authority, with the approval of the Hold Separate Trustee

or Commission staff, to remove employees and replace them with others of similar

experience or skills. If any person ceases to act or fails to act diligently and consistent

with the purposes of this Hold Separate Order, the Managers, in consultation with the

Hold Separate Trustee or Commission staff, may request Respondent Agrium to, and

Respondent Agrium shall, appoint a substitute person, which person the Managers shall

have the right to approve.

6. In addition to those employees within the Ritzville Held Separate Business, the

Managers may employ such Persons as are reasonably necessary to assist the Managers

in managing the Ritzville Held Separate Business.

7. The Commission staff or the Hold Separate Trustee, in consultation with the

Commission staff, shall be permitted, to remove the Manager(s) for cause. Within

fifteen (15) days after such removal of the Manager(s), Respondent Agrium shall

appoint replacement Manager(s), subject to the approval of the Commission, on the

same terms and conditions as provided in Paragraph II.C.2 of this Hold Separate Order.

8. In the event that the Manager(s) cease(s) to act as Managers, then Respondent Agrium

shall select substitute Manager(s), subject to the approval of the Hold Separate Trustee,

if appointed, and Commission staff, and transfer to the substitute Manager(s) all rights,
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powers and authorities necessary to permit the substitute Manager(s) to perform

his/her/their duties and responsibilities, pursuant to this Hold Separate Order.

D. No later than five (5) days after the appointment of the Hold Separate Trustee, Respondent

Agrium shall circulate to employees of the Ritzville Held Separate Business a copy of this

Hold Separate Order and the Consent Agreement with the Commission’s press release and

analysis to aid public comment.

E. The purposes of this Paragraph III are to: (1) preserve the Ritzville Held Separate Business

as a viable, competitive, and ongoing business independent of Respondent Agrium until the

divestiture required by the Decision and Order is achieved; (2) assure that no Confidential

Business Information is exchanged between Respondent Agrium and the Ritzville Held

Separate Business, except in accordance with the provisions of this Hold Separate Order; (3)

prevent interim harm to competition pending the relevant divestitures and other relief; and

(4) help remedy any anticompetitive effects of the proposed Agrium-CF Acquisition as

alleged in the Commission’s Complaint.

IV.

IT IS FURTHER ORDERED that:

A. From the Agrium-CF Acquisition Date until the Ritzville Terminal Divestiture Date:

1. Respondent Agrium shall not permit any of its employees, officers, or directors to be

involved in the operations of the Ritzville Held Separate Business, unless otherwise

authorized by this Hold Separate Order.

2. Respondent Agrium, and Respondent Agrium’s or CF’s personnel operating the

Ritzville Held Separate Business, shall retain and maintain all Confidential Business

Information of the Ritzville Held Separate Business on a confidential basis, separate and

apart from Respondent Agrium and, except as is requested by Respondent Agrium for

purposes of the divestiture of the Ritzville Terminal as required by the Decision and

Order, in this matter, such persons shall be prohibited from providing, discussing,

exchanging, circulating, or otherwise furnishing any such information to Respondent

Agrium or with Respondent Agrium’s personnel.

3. Respondent Agrium shall not, directly or indirectly, receive, disclose, or use any

Confidential Business Information Related To the Ritzville Terminal to any Person

except the Ritzville Terminal Acquirer or other persons specifically authorized by the

Ritzville Terminal Acquirer to receive such information, or than as necessary to comply

with the following:
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a. the requirements of the Orders

b. applicable laws and regulations.

4. Respondent Agrium shall not provide, disclose or otherwise make available, directly or

indirectly, any such Confidential Business Information related to the marketing or sales

of the Ritzville Terminal to Respondent Agrium’s employees associated with

Respondent Agrium’s Anhydrous Ammonia sales in the PNW.

5. Respondent Agrium shall institute procedures and requirements to ensure that: 

a. Confidential Business Information Related to the Ritzville Terminal is not provided

to, or obtained by, Respondent Agrium’s employees associated with Respondent

Agrium’s Anhydrous Ammonia sales in the PNW;

b. Respondent Agrium employees with access to Confidential Business Information

Relating To the Ritzville Terminal do not provide, disclose or otherwise make

available, directly or indirectly, any Confidential Business Information in

contravention of this Hold Separate Order; and

c. Respondent Agrium’s employees associated with Respondent Agrium’s Anhydrous

Ammonia sales in the PNW do not solicit, access or use any Confidential Business

Information that they are prohibited under this Hold Separate Order from receiving

for any reason or purpose.

B. From the Terra Ritzville Termination Date until the Ritzville Terminal Divestiture Date,

Respondent Agrium shall require any Persons with access to Confidential Business

Information Relating To the Ritzville Terminal to enter into agreements, within ten (10)

days after the date the Terra Divestiture Termination Date, not to disclose any Confidential

Business Information Relating To the Ritzville Terminal to Respondent Agrium or to any

third party except as otherwise permitted by this Hold Separate Order. Copies of such

agreements shall be retained by Respondent Agrium, and provided to the Commission and

the Hold Separate Trustee, if appointed.

C. The purposes of this Paragraph IV are to: (1) preserve the Ritzville Held Separate Business

as a viable, competitive, and ongoing business independent of Respondent Agrium until the

divestiture required by the Decision and Order is achieved; (2) assure that no Confidential

Business Information is exchanged between Respondent Agrium and the Ritzville Held

Separate Business, except in accordance with the provisions of this Hold Separate Order; (3)

prevent interim harm to competition pending the relevant divestitures and other relief; and

(4) help remedy any anticompetitive effects of the proposed Agrium-CF Acquisition as

alleged in the Commission’s Complaint.
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V.

IT IS FURTHER ORDERED that from the date Respondent Agrium signs the Consent

Agreement until the Marseilles Terminal Divestiture Date:

A. Respondent Agrium shall:

1. take such actions as are necessary to maintain the viability and marketability of the

Marseilles Terminal and to prevent the destruction, removal, wasting, deterioration, or

impairment of the Marseilles Terminal, except for ordinary wear and tear;

2. maintain the operations of the Marseilles Terminal in the regular and ordinary course of

business and in accordance with past practice (including regular repair and maintenance

of the assets, as necessary) and/or as may be necessary to preserve the marketability,

viability, and competitiveness of the Marseilles Terminal; and 

3. use its best efforts to preserve the existing relationships with suppliers, vendors,

distributors, customers, governmental agencies, employees, and others having business

relations with the Marseilles Terminal.

B. Respondent Agrium’s responsibilities shall include, but are not limited to, the following:

1. Respondent Agrium shall not sell, transfer, encumber or otherwise impair the economic

viability, marketability, or competitiveness of the Marseilles Terminal;

2. Respondent Agrium shall retain all of Respondent Agrium’s rights, title, and interest in

the Marseilles Terminal, until the Marseilles Terminal Divestiture Date;

3. Respondent Agrium shall maintain a work force at the equivalent or larger size, and

with equivalent or better training and expertise, to what has been associated with the

Marseilles Terminal as of the date Respondent Agrium signed the Consent Agreement;

4. Respondent Agrium shall not offer employees Related To the Marseilles Terminal other

positions within Respondent Agrium or terminate employees Related To the Marseilles

Terminal;

5. Respondent Agrium shall do nothing to prevent or discourage suppliers that, prior to the

date on which the Consent Agreement was signed, supplied goods and services to the

Marseilles Terminal from continuing to supply goods and services to the Marseilles

Terminal;

6. Respondent Agrium shall provide the Marseilles Terminal with sufficient working

capital to operate at least at current rates of operation, to meet all capital calls with

respect to such business and to carry on, at least at their scheduled pace, all capital

projects, business plans and promotional activities for the Marseilles Terminal;
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7. Respondent Agrium shall ensure that the Marseilles Terminal is supplied with

Anhydrous Ammonia on an ongoing basis as necessary and appropriate to ensure that

the Marseilles Terminal will build up sufficient Anhydrous Ammonia supply to meet

seasonal demand for Anhydrous Ammonia; 

8. Respondent Agrium shall continue, at least at their scheduled pace, any additional

expenditures for the Marseilles Terminal authorized prior to the date the Consent

Agreement was signed by Respondent Agrium including, but not limited to, all

distribution, marketing and sales expenditures;

9. Respondent Agrium shall provide such resources as may be necessary to respond to

competition against the Marseilles Terminal and/or to prevent any diminution in sales of

the Marseilles Terminal after the date on which Respondent Agrium signed the Consent

Agreement and prior to the Marseilles Terminal Divestiture Date;

10. Respondent Agrium shall make available for use by the Marseilles Terminal funds

sufficient to perform all routine maintenance and all other maintenance as may be

necessary to, and all replacements of, the assets related to such business;

11. Respondent Agrium shall provide the Marseilles Terminal with such funds as are

necessary to maintain the economic viability, marketability and competitiveness of the

Marseilles Terminal; 

12. Respondent Agrium shall provide such support services to the Marseilles Terminal as

were being provided to the Marseilles Terminal as of the date the Consent Agreement

was signed by Respondent Agrium.

13. Respondent Agrium shall provide all the Marseilles Terminal employees with

reasonable financial incentives to continue in their positions consistent with past

practices and/or as may be necessary to preserve the marketability, viability and

competitiveness of the Marseilles Terminal pending divestiture. Such incentives shall

include a continuation of all employee benefits offered by Respondent Agrium until the

Marseilles Terminal Divestiture Date has occurred, including regularly scheduled raises,

bonuses, vesting of pension benefits (as permitted by law), and additional incentives as

may be necessary to prevent any diminution of the Marseilles Terminal’s

competitiveness.

C. Respondent Agrium shall not interfere with the hiring or employing of the Marseilles

Terminal employees as described in Paragraph VII of the proposed Decision and Order, and

shall remove any impediments within the control of Respondent Agrium that may deter

these employees from accepting employment with the Marseilles Terminal Acquirer

including, but not limited to, any noncompete provisions of employment or other contracts

with Respondent Agrium that would affect the ability or incentive of those individuals to be

employed by the Marseilles Terminal Acquirer. In addition, Respondent Agrium shall not
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make any counteroffer to a Marseilles Terminal employee who receives a written offer of

employment from the Marseilles Terminal Acquirer.

PROVIDED, HOWEVER, subject to the conditions of continued employment prescribed

in this Hold Separate Order, this Paragraph V.C. shall not prohibit Respondent Agrium

from continuing to employ any Marseilles Terminal employee under the terms of such

employee’s employment with Respondent Agrium prior to the date of the written offer of

employment from the Marseilles Terminal Acquirer to such employee.

D. The purposes of this Paragraph V are to: (1) preserve the Marseilles Terminal as a viable,

competitive, and ongoing business until the divestiture required by the Decision and Order

is achieved; (2) prevent interim harm to competition pending the relevant divestitures and

other relief; and (4) help remedy any anticompetitive effects of the proposed Agrium-CF

Acquisition as alleged in the Commission’s Complaint.

VI.

IT IS FURTHER ORDERED that from the Agrium-CF Acquisition Date until the

Marseilles Terminal Divestiture Date:

A. Respondent Agrium, and Respondent Agrium’s employees operating the Marseilles

Terminal, shall retain and maintain all Confidential Business Information of the Marseilles

Terminal on a confidential basis, separate and apart from Respondent Agrium’s other

businesses. Except as is requested by Respondent Agrium for purposes of the divestiture of

the Marseilles Terminal as required by the Decision and Order, in this matter, such persons

shall be prohibited from providing, discussing, exchanging, circulating, or otherwise

furnishing any such information to Respondent Agrium’s other businesses or with

Respondent Agrium’s personnel at Respondent Agrium’s other businesses (except to the

extent such communications are for human resources, legal, or accounting purposes in the

ordinary course of business for the Marseilles Terminal’s employees).

B. Respondent Agrium shall not, directly or indirectly disclose any Confidential Business

Information Related To the Marseilles Terminal except to the Marseilles Terminal Acquirer

or other persons specifically authorized by the Marseilles Terminal Acquirer to receive such

information, or than as necessary to comply with the following: 

1. the requirements of the Orders

2. applicable laws and regulations.

C. Respondent Agrium shall not provide, disclose or otherwise make available, directly or

indirectly, any Confidential Business Information Related To the marketing or sales of the

Marseilles Terminal to Respondent Agrium’s employees not otherwise associated with

Respondent Agrium’s Anhydrous Ammonia sales in the Illinois-Iowa Area (which shall
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also include the CF Anhydrous Ammonia terminals in the Illinois-Iowa Area after the

Agrium-CF Acquisition).

D. Respondent Agrium shall institute procedures and requirements to ensure that: 

1. Confidential Business Information Related to the Marseilles Terminal is not provided to,

or obtained by, Respondent Agrium’s employees not otherwise associated with

Respondent Agrium’s Anhydrous Ammonia sales in the Illinois-Iowa Area;

2. Respondent Agrium employees with access to Confidential Business Information

Relating To the Marseilles Terminal do not provide, disclose or otherwise make

available, directly or indirectly, any Confidential Business Information in contravention

of this Hold Separate Order; and

3. Respondent Agrium’s employees associated with Respondent Agrium’s Anhydrous

Ammonia sales in the Illinois-Iowa Area (including the CF Anhydrous Ammonia

terminals after the Agrium-CF Acquisition) do not solicit, access or use any

Confidential Business Information that they are prohibited under this Hold Separate

Order from receiving for any reason or purpose.

E. From the Terra Marseilles Termination Date until the Marseilles Terminal Divestiture Date,

Respondent Agrium shall require any Persons with access to Confidential Business

Information Relating To the Marseilles Terminal to enter into agreements, within ten (10)

days after the date the Terra Marseilles Termination Date, not to disclose any Confidential

Business Information Relating To the Marseilles Terminal to Respondent Agrium or to any

third party except as otherwise permitted by this Hold Separate Order. Copies of such

agreements shall be retained by Respondent Agrium, and provided to the Commission and

the Monitor, if appointed.

F. The purposes of this Paragraph VI are to: (1) preserve the Marseilles Terminal as a viable,

competitive, and ongoing business until the divestiture required by the Decision and Order

is achieved; (2) assure that no Confidential Business Information Relating To the Marseilles

Terminal is used or disclosed by Respondent Agrium except in accordance with the

provisions of this Hold Separate Order; (3) prevent interim harm to competition pending the

relevant divestitures and other relief; and (4) help remedy any anticompetitive effects of the

proposed Agrium-CF Acquisition as alleged in the Commission’s Complaint.
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VII.

IT IS FURTHER ORDERED that:

A. At any time after the Terra Marseilles Termination Date or the Terra Ritzville Termination

Date, the Commission may appoint a Monitor to assure that Respondent Agrium

expeditiously complies with all of its obligations and performs all of its responsibilities as

required by the Orders.

B. The Commission shall select the Monitor, subject to the consent of Respondent Agrium,

which consent shall not be unreasonably withheld. If Respondent Agrium has not opposed,

in writing, including the reasons for opposing, the selection of a proposed Monitor within

five (5) business days after notice by the staff of the Commission to Respondent Agrium of

the identity of any proposed Monitor, Respondent Agrium shall be deemed to have

consented to the selection of the proposed Monitor. 

C. Not later than five (5) business days after appointment of the Monitor, Respondent Agrium

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 perform his duties

and responsibilities, pursuant to the Orders and consistent with the purposes of the Orders.

D. Not later than ten (10) business days after appointment of the Monitor, Respondent Agrium

shall, pursuant to the Monitor Agreement, transfer to the Monitor all rights, powers, and

authorities necessary to permit the Monitor to perform his duties and responsibilities,

pursuant to this Hold Separate Order and consistent with the purposes of the Orders.

E. Respondent Agrium shall consent to the following terms and conditions regarding the

powers, duties, authorities, and responsibilities of the Monitor:

1. The Monitor shall have the power and authority to monitor Respondent Agrium’s

compliance with the terms of the Orders, and shall exercise such power and authority

and carry out the duties and responsibilities of the Monitor in a manner consistent with

the purposes of the Orders and in consultation with the Commission including, but not

limited to:

a. Assuring that Respondent Agrium expeditiously complies with all of its obligations

and performs all of its responsibilities as required by the Orders; and

b. Monitoring any agreements between Respondent Agrium and either the Ritzville

Terminal Acquirer or the Marseilles Terminal Acquirer.

2. The Monitor shall act in a fiduciary capacity for the benefit of the Commission.
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3. Subject to any demonstrated legally recognized privilege, the Monitor shall have full

and complete access to Respondent Agrium’s personnel, books, documents, records kept

in the normal course of business, facilities and technical information, and such other

relevant information as the Monitor may reasonably request, Related To Respondent

Agrium’s compliance with its obligations under the Orders. Respondent Agrium 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 Respondent Agrium’s

compliance with the Orders.

4. The Monitor shall serve, without bond or other security, at the expense of Respondent

Agrium on such reasonable and customary terms and conditions as the Commission may

set. The Monitor shall have authority to employ, at the expense of Respondent Agrium,

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

reasonably necessary to carry out the Monitor's duties and responsibilities. The Monitor

shall account for all expenses incurred, including fees for services rendered, subject to

the approval of the Commission. 

5. Respondent Agrium 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,

malfeasance, willful or wanton acts, or bad faith by the Monitor.

6. The Monitor Agreement shall provide that within one (1) month from the date the

Monitor is appointed pursuant to this paragraph, and every sixty (60) days thereafter, the

Monitor shall report in writing to the Commission concerning performance by

Respondent Agrium of its obligations under the Orders.

7. Respondent Agrium 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, such agreement shall not restrict

the Monitor from providing any information to the Commission.

F. 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 relating to Commission materials and information

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

G. If the Commission determines that the Monitor has ceased to act or failed to act diligently,

the Commission may appoint a substitute Monitor:

1. The Commission shall select the substitute Monitor, subject to the consent of

Respondent Agrium, which consent shall not be unreasonably withheld. If Respondent
17

Agrium has not opposed, in writing, including the reasons for opposing, the selection of

a proposed Monitor within ten (10) days after notice by the staff of the Commission to

Respondent Agrium of the identity of any proposed Monitor, Respondent Agrium shall

be deemed to have consented to the selection of the proposed Monitor.

2. Not later than ten (10) days after appointment of the substitute Monitor, Respondent

Agrium 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 Respondent Agrium’s compliance with the relevant terms of the

Orders in a manner consistent with the purposes of the Orders.

H. 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 the Orders.

I. A Monitor appointed pursuant to this Hold Separate Order may be the same person

appointed as the Monitor pursuant to the Decision and Order, and as the Divestiture Trustee

pursuant to the relevant provisions of this Hold Separate Order and the Decision and Order.

VIII.

IT IS FURTHER ORDERED that within thirty (30) days after the date this Hold

Separate Order becomes final, and every sixty (60) days thereafter until Respondent Agrium has

fully complied with its obligations under Paragraphs II.A. or II.B., and Paragraphs III.A. or III.B.

of the related Decision and Order in this matter, Respondent Agrium shall submit to the

Commission a verified written report setting forth in detail the manner and form in which it

intends to comply, is complying, and has complied with this Hold Separate Order and the related

Decision and Order; PROVIDED, HOWEVER, that, after the Decision and Order in this matter

becomes final, the reports due under this Hold Separate Order shall be consolidated with, and

submitted to the Commission at the same time as, the reports required to be submitted by

Respondent Agrium pursuant to Paragraph IX of the Decision and Order.

IX.

IT IS FURTHER ORDERED that Respondent Agrium shall notify the Commission at

least thirty (30) days prior to any proposed:

A. dissolution of the Respondent Agrium;

B. acquisition, merger or consolidation of Respondent Agrium; or

C. other change in the Respondent Agrium, including, but not limited to, assignment and the

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

arising out of this Order to Maintain Assets.
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X.

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

with this Order to Maintain Assets, and subject to any legally recognized privilege, and upon

written request and upon five (5) days notice to Respondent Agrium, Respondent Agrium shall,

without restraint or interference, permit any duly authorized representative(s) of the

Commission:

A. access, during business office hours of Respondent Agrium 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 

Respondent Agrium related to compliance with this Order to Maintain Assets, which

copying services shall be provided by Respondent Agrium at its expense; and

B. to interview officers, directors, or employees of Respondent Agrium, who may have counsel

present, regarding such matters.

XI.

IT IS FURTHER ORDERED that this Hold Separate Order shall terminate on the

earlier of:

A. Three (3) days after the Commission withdraws its acceptance of the Consent Agreement

pursuant to the provisions of Commission Rule 2.34, 16 C.F.R. § 2.34; or

B. The latter of:

1. the day after the Ritzville Terminal Divestiture Date; or

2. the day after the Marseilles Terminal Divestiture Date; or

3. the day after the Commission otherwise directs that this Hold Separate Order is

terminated.

By the Commission.

Donald S. Clark

Secretary

SEAL

ISSUED: December 22, 2009