1

 0910086 

UNITED STATES OF AMERICA 

BEFORE FEDERAL TRADE COMMISSION 

COMMISSIONERS: Jon Leibowitz, Chairman 

Pamela Jones Harbour 

William E. Kovacic 

J. Thomas Rosch 

_________________________________________ 

) 

 In the Matter of ) 

) 

K+S Aktiengesellschaft ) 

 a corporation; ) 

 ) Docket No. C-4273 

 and ) 

 ) 

 International Salt Company LLC, ) 

 a limited liability company. ) 

) 

 ________________________________________ ) 

DECISION AND ORDER 

(Public Record Version) 

 

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

proposed acquisition of Morton International, Inc. (“Morton”), from The Dow Chemical 

Company (“Dow”), by K+S Aktiengesellschaft (“K+S”), the parent of International Salt 

Company LLC (“ISCO”), and K+S and ISCO, hereinafter sometimes referred to as 

“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 Order (AConsent 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 as 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 

had reason to believe that Respondents have 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 enters the following Decision and 

Order (AOrder@): 

 1. Respondent K+S is a German stock corporation, organized, existing and doing 

business under and by virtue of the laws of Germany, with its office and principal place 

of business located at Bertha-von-Suttner Str. 7, 34131 Kassel, Germany. 

 2. Respondent International Salt Company LLC is a Delaware limited liability 

company, existing and doing business under and by virtue of the laws of the United 

States as a wholly-owned subsidiary of K+S, with its offices and principal place of 

business located at 655 Northern Boulevard, Clarks Summit, Pennsylvania 18411. 

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

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

 ORDER 

I. 

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

A. “Acquisition” means the acquisition of Morton International, Inc., a subsidiary of 

The Dow Chemical Company, by K+S. 

B. “Commission” means the Federal Trade Commission. 

C. “Commission-approved Acquirer” means each acquirer approved by the 

Commission pursuant to Paragraph II. and Paragraph III. (or Paragraph VI.) of 

this Order. If approved by the Commission, “Commission-approved Acquirer” 

includes Eastern and Granite State. 

D. “Connecticut Book of Business” means all rights to contracts between 

Respondent ISCO and the State of Connecticut for delivery of Deicing Salt in the 

state for the period beginning in the winter season of 2009 through April 30, 

2010, to no fewer than five divisions and underlying municipalities, approved by 

the appropriate governmental entities, with awarded volume of Deicing Salt 

totaling approximately 75,000 tons of Deicing Salt; provided, however, that for 

purposes of the Granite State Divestiture Agreement that is referenced and 
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attached to this Order, “Connecticut Book of Business” means the Customer 

contracts as described in Disclosure Schedule 4.03 of that agreement. 

“Connecticut Book of Business” includes all books, records, and other 

information necessary to allow Granite State (or another Commission-approved 

Acquirer of the Connecticut Divestiture Assets) to perform under the included 

contracts but shall not include any of Respondent ISCO’s historical information 

(bid, cost, or pricing) relating to this or any other contract. 

E. “Connecticut Divestiture Assets” means 

1. Connecticut Stockpile Space, 

2. Connecticut Book of Business, 

3. Other Services, and 

4. Connecticut Supply. 

F. “Connecticut Stockpile Space” means access to approximately 80,000 square feet 

of contiguous stockpile space with a capacity of approximately 70,000 tons 

located at the New Haven Terminal for a period at least through May 31, 2010. 

G. “Connecticut Supply” means a supply of Deicing Salt, consistent with Paragraph 

III.C. of this Order. 

H. “Customers” means the Connecticut and Maine governmental entities that acquire 

Deicing Salt on behalf of the respective states and municipalities as part of the 

Connecticut Book of Business or the Maine Book of Business. 

I. “Deicing Salt” means salt (sodium chloride) used to melt snow and ice on roads 

and highways. 

J. “Direct Cost” means the cost of: (1) labor, materials and other costs necessary to 

mine the Deicing Salt; (2) the transportation of the Deicing Salt from the mine to 

the loading port; (3) the cost of freight from the loading port to New Haven, CT, 

via ocean-going vessel; (4) the cargo insurance; and (5) an allocation of SPL’s 

overhead costs attributable to the Deicing Salt provided to ISCO in the ordinary 

course of business; provided however, that for purposes of the Connecticut Salt 

Supply Agreement between Respondents and Granite State that is referenced and 

attached to this Order, “Direct Cost” means the cost of supply as provided in that 

Agreement. 

K. “Divestiture Agreement” means the agreements, licenses, assignments, and all 

other agreements entered into between the Commission-approved Acquirers and 

Respondents and approved by the Commission pursuant to Paragraph II. and 

Paragraph III. (or Paragraph VI.) of this Order; if approved by the Commission, 

“Divestiture Agreement” includes the Eastern Divestiture Agreement, the Granite 

State Divestiture Agreement, and the Connecticut Salt Supply Agreement. 
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L. “Divestiture Assets” means the assets required by this Order to be divested and 

includes all of the following: 

1. Maine Divestiture Assets, 

2. Searsport Stockpile Space, and 

3. Connecticut Divestiture Assets. 

M. “Divestiture Trustee” means a trustee appointed by the Commission pursuant to 

Paragraph VI. of this Order. 

N. “Eastern” means Eastern Salt Company, Inc., a corporation organized, existing 

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

its office and principal place of business located at 134 Middle Street, Suite 210, 

Lowell, MA 01852. 

O. “Eastern Divestiture Agreement” means the “Asset Purchase Agreement 

(Maine),” including all exhibits, appendices, and annexes, executed by Eastern 

and ISCO on September 10, 2009, and attached to this Order as Confidential 

Appendix A. 

P. “Gateway” means Gateway Terminal, the full service independent terminal 

operator headquartered in New Haven, Connecticut, which provides space for 

Deicing Salt and Other Services. 

 

Q. “Granite State” means Granite State Minerals, Inc., a corporation organized, 

existing and doing business under and by virtue of the laws of the State of New 

Hampshire with its office and principal place of business located at 227 Market 

St., Portsmouth, NH 03801. 

R. “Granite State Divestiture Agreement” means the “Asset Purchase Agreement 

(Connecticut),” including all exhibits, appendices, and annexes, executed by 

Granite State and Respondents on September 10, 2009, and attached to this Order 

as Confidential Appendix B. 

S. AK+S” means K+S Aktiengesellschaft, its directors, officers, employees, agents, 

representatives, successors, and assigns; its parents, joint ventures, subsidiaries, 

divisions, groups and affiliates controlled by K+S, and the respective directors, 

officers, employees, agents, representatives, successors, and assigns of each. 

T. “ISCO” means International Salt Company LLC. 

U. “Maine Book of Business” means all rights to contracts between Respondent 

ISCO and the State of Maine Department of Transportation Region 1 (“Maine 

DOT Region 1”) requiring delivery of Deicing Salt, and between Respondent 

ISCO and Greater Portland Council of Governments (“GPCOG”), requiring 
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delivery of untreated Deicing Salt, based on awarded volumes totaling 

approximately 100,000 tons of Deicing Salt in the state of Maine for the period 

beginning in the winter season of 2009 and ending in the spring of 2010, 

approved by the appropriate governmental entities in the state; provided, however, 

that for purposes of the Eastern Divestiture Agreement that is referenced and 

attached to this Order, “Maine Book of Business” means the Customer contracts 

as described in Disclosure Schedule 4.03(a) of that agreement. “Maine Book of 

Business” includes all books, records, and other information necessary to allow 

Eastern (or another Commission-approved Acquirer of the Maine Divestiture 

Assets) to perform under the included contracts but shall not include any of 

Respondent ISCO’s historical information (bid, cost, or pricing) relating to this or 

any other contract. 

V. “Maine Divestiture Assets” means: 

1. Maine Stockpile Space, 

2. Maine Book of Business, and 

3. Other Services. 

W. “Maine Stockpile Space” means access to at least 40,000 square feet of 

contiguous stockpile space with a capacity of approximately 40,000 tons located 

at the Portland Terminal for a period at least through April 30, 2012. 

X. “McCabe” means McCabe Bait Co., Inc., a company providing general freight 

trucking and Other Services, located at 136 North St., Kennebunk, ME 04046. 

Y. “Monitor” means the independent third party appointed by the Commission 

pursuant to Paragraph V. of this Order. 

Z. “New Haven Terminal” means the terminal located at 400 Waterfront Street, New 

Haven, CT 06512, owned and operated by Gateway. 

AA. “Other Services” means all services provided in connection with Deicing Salt 

after the Deicing Salt has been transported by ship to the port, including but not 

limited to offloading the Deicing Salt from vessels, stevedoring, stockpiling or 

building the stockpile, transporting Deicing Salt from the vessel to the stockpile 

and from the stockpile to the ultimate customer, drayage of the product to the 

stockpile, wharfage, and scaling or weighing trucks. 

BB. “Portland Terminal” means the terminal located at 59 Main Street, South 

Portland, ME, owned and operated by Sprague. 

CC. “Respondents” means K+S and ISCO, individually and collectively. 
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DD. “SPL” means Sociedad Punta de Lobos, a wholly-owned subsidiary of K+S, 

located at Tajamar 183, Las Condes, Santiago, Chile. 

EE. “Searsport Stockpile Space” means access to approximately 2.75 acres of 

contiguous stockpile space with a capacity of approximately 90,000 tons located 

at the Searsport Terminal for a period at least through April 30, 2011. 

FF. “Searsport Terminal” means the terminal located at Mack Point – Trundy Road, 

Searsport, ME 04974, owned and operated by Sprague. 

GG. “Sprague” means Sprague Energy Corp, headquartered in Portsmouth, New 

Hampshire, which provides space for Deicing Salt and Other Services. 

HH. “Stockpile” means a pile of salt at a storage terminal. 

II. “Third Party” means an entity other than Respondents or a Commission-approved 

Acquirer, including but not limited to the Maine Department of Transportation, 

the Greater Portland Council of Governments, Sprague, Gateway, McCabe, and 

the Connecticut Department of Transportation. 

II. 

 IT IS FURTHER ORDERED that: 

A. By no later than twenty (20) days after the Acquisition occurs, Respondents shall 

divest the Maine Divestiture Assets to Eastern pursuant to and in accordance with 

the Eastern Divestiture Agreement, absolutely and in good faith, and at no 

minimum price; provided, however, that if Respondents have divested the Maine 

Divestiture Assets to Eastern prior to the date this Order becomes final and if, at 

the time the Commission determines to make this Order final: 

1. The Commission determines and notifies Respondents that Eastern is not 

an acceptable acquirer of the Maine Divestiture Assets, then Respondents 

shall immediately rescind the transaction with Eastern and shall divest the 

Maine Divestiture Assets no later than six (6) months from the date the 

Order becomes final, absolutely and in good faith, at no minimum price, to 

a Commission-approved Acquirer and only in a manner that receives the 

prior approval of the Commission; or 

2. The Commission determines and notifies Respondents that the manner in 

which the divestiture was accomplished is not acceptable, the Commission 

may direct the Respondents, or appoint a Divestiture Trustee pursuant to 

Paragraph VI. of this Order, to effect such modifications to the manner of 

divesting the Maine Divestiture Assets to Eastern (including, but not 

limited to, entering into additional agreements or arrangements) as may be 

necessary to satisfy the requirements of this Order. 
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B. If Respondents have divested the Maine Divestiture Assets to Eastern (or another 

Commission-approved Acquirer) pursuant to the Eastern Divestiture Agreement 

(or another Divestiture Agreement), and the Commission has approved Eastern 

(or another Commission-approved Acquirer) and the manner in which the 

divestiture was accomplished, then solely at the option of Eastern (or another 

Commission-approved Acquirer), Respondents shall divest the Searsport 

Stockpile Space to Eastern (or another Commission-approved Acquirer) no later 

than August 15, 2010, pursuant to the terms applicable to divestiture of the 

Searsport Stockpile Space as included in the Eastern Divestiture Agreement (or 

another Divestiture Agreement). 

C. Prior to completing the Acquisition, Respondents shall: 

1. Obtain all consents and approvals from all Third Parties and satisfy all 

other conditions required to transfer all rights and divest all assets as 

required by Paragraph II.A., including obtaining any consents or waivers 

of, or making any payments to, Third Parties; and 

2. Provide written notification to all Customers that Deicing Salt provided as 

part of the Maine Book of Business divested to the Commission-approved 

Acquirer will be provided by the Commission-approved Acquirer and not 

by Respondents. 

D. The Eastern Divestiture Agreement (or any other Divestiture Agreement 

effectuating divestiture of the Maine Divestiture Assets) 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 Commission-approved Acquirer or to reduce any obligations of 

Respondents under such agreements, and each such agreement, if approved by the 

Commission as the Divestiture Agreement, shall be incorporated by reference into 

this Order and made a part hereof. Respondents shall comply with all terms of the 

Eastern Divestiture Agreement (or any other Divestiture Agreement effectuating 

divestiture of the Maine Divestiture Assets), and any breach by Respondents of 

any term of the Eastern Divestiture Agreement (or any other Divestiture 

Agreement effectuating divestiture of the Maine Divestiture Assets) shall 

constitute a violation of this Order. If any term of the Eastern Divestiture 

Agreement (or any other Divestiture Agreement effectuating divestiture of the 

Maine Divestiture Assets) 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. Any 

material modification of the Eastern Divestiture Agreement (or any other 

Divestiture Agreement effectuating divestiture of the Maine Divestiture Assets) 

between the date the Commission approves the Divestiture Agreement and the 

Closing Date, without the prior approval of the Commission, or any failure to 

meet any material condition precedent to closing (whether waived or not), shall 
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constitute a violation of this Order. Notwithstanding any paragraph, section, or 

other provision of the Divestiture Agreements, for a period of five (5) years after 

the relevant Closing Date, any modification of a Divestiture Agreement, without 

the approval of the Commission, shall constitute a failure to comply with this 

Order. Respondents shall provide written notice to the Commission not more 

than five (5) days after any modification (material or otherwise) of the Divestiture 

Agreement, or after any failure to meet any condition precedent (material or 

otherwise) to closing (whether waived or not). 

E. Until Respondents comply with Paragraph II. (and Paragraph VI.) of this Order, 

Respondents shall take such actions as are necessary to maintain the viability and 

marketability of the Maine Divestiture Assets and to prevent the destruction, 

removal, wasting, deterioration, or impairment of the Maine Divestiture Assets. 

F. The purpose of the divestiture of the Maine Divestiture Assets, the Searsport 

Stockpile Space, and the additional requirements in Paragraph II. is to ensure the 

continued use of the assets in the same business in which the assets were engaged 

at the time of the announcement of the proposed Acquisition by Respondents and 

to remedy the lessening of competition in the sale and delivery of Deicing Salt in 

Maine resulting from the Acquisition as alleged in the Commission=s complaint. 

 

III. 

 IT IS FURTHER ORDERED that 

 

A. By no later than twenty (20) days after the Acquisition occurs, Respondents shall 

divest the Connecticut Divestiture Assets to Granite State pursuant to and in 

accordance with the Granite State Divestiture Agreement, absolutely and in good 

faith, and at no minimum price; provided, however, that if Respondents have 

divested the Connecticut Divestiture Assets to Granite State prior to the date this 

Order becomes final and if, at the time the Commission determines to make this 

Order final: 

1. The Commission determines and notifies Respondents that Granite State is 

not an acceptable acquirer of the Connecticut Divestiture Assets, then 

Respondents shall immediately rescind the transaction with Granite State 

and shall divest the Connecticut Divestiture Assets no later than six (6) 

months from the date the Order becomes final, absolutely and in good 

faith, at no minimum price, to a Commission-approved Acquirer and only 

in a manner that receives the prior approval of the Commission; or 

2. The Commission determines and notifies Respondents that the manner in 

which the divestiture was accomplished is not acceptable, the Commission 

may direct the Respondents, or appoint a Divestiture Trustee, pursuant to 

Paragraph VI. of this Order, to effect such modifications to the manner of 
9

divesting the Connecticut Divestiture Assets to Granite State (including, 

but not limited to, entering into additional agreements or arrangements) as 

may be necessary to satisfy the requirements of this Order. 

 

B. Prior to completing the Acquisition, Respondents shall: 

1. Obtain all consents and approvals from Third Parties and satisfy all other 

conditions required to transfer all rights and divest all assets as required by 

Paragraph III., including obtaining any consents or waivers of, or making 

any payments to, Third Parties; 

2. Provide written notification to all Customers that Deicing Salt provided as 

part of the Connecticut Book of Business divested to the Commissionapproved Acquirer will be provided by the Commission-approved 

Acquirer and not by Respondents. 

C. To enable the Commission-approved Acquirer of the Connecticut Divestiture 

Assets to supply customers with Deicing Salt (“Connecticut Supply”) at an 

identical level, in an identical manner, and of identical quality as Respondents 

supplies customers with Deicing Salt, Respondents shall, pursuant to an 

agreement approved by the Commission (“Connecticut Salt Supply Agreement”): 

1. Provide to the Commission-approved Acquirer of the Connecticut 

Divestiture Assets, at the option of the Commission-approved Acquirer 

a) for a period of up to 36 consecutive months (the 36-month period 

to be determined by the Commission-approved Acquirer); 

b) up to 120,000 tons of Deicing Salt per year, such quantity to be 

determined by the Commission-approved Acquirer of the 

Connecticut Divestiture Assets; provided, however, if the 

Connecticut Book of Business requires the Commission-approved 

Acquirer of the Connecticut Divestiture Assets to supply more than 

120,000 tons of Deicing Salt in the (1) 2009-2010 contract year for 

the Connecticut Book of Business, and (2) the 2010-2011 contract 

year if the state of Connecticut extends the period of performance 

for the Connecticut Book of Business, Respondent ISCO shall 

provide the required Deicing Salt to the Commission-approved 

Acquirer consistent with this paragraph; 

c) at no more than Direct Cost. 

2. Use reasonable efforts to minimize its costs in connection with the supply 

of Deicing Salt to the Commission-approved Acquirer in a manner that is 

consistent with Respondents’ efforts to provide Deicing Salt to its own 

New Haven stockpiles; and 

3. Ensure that in the event of any Deicing Salt supply disruption: 

a) alternative arrangements shall be made for the required Deicing 

Salt delivery to the Commission-approved Acquirer to commence 

as soon as possible; 
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b) the Commission-approved Acquirer’s priority to receive Deicing 

Salt shall be restored as if the disrupting event had not occurred; 

and 

c) the Commission-approved Acquirer will not be prejudiced relative 

to Respondent’s operations in relation to the transport and delivery 

of Deicing Salt for the Commission-approved Acquirer’s own 

account or on behalf of any of its affiliates. 

 

D. The Granite State Divestiture Agreement and the Connecticut Supply Agreement 

(or any other Divestiture Agreements effectuating divestiture of the Connecticut 

Divestiture Assets) 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 Commission-approved 

Acquirer or to reduce any obligations of Respondents under such agreements, and 

each such agreement, if approved by the Commission as the Divestiture 

Agreements, shall be incorporated by reference into this Order and made a part 

hereof. Respondents shall comply with all terms of the Divestiture Agreements, 

and any breach by Respondents of any term of the Divestiture Agreements shall 

constitute a violation of this Order. If any term of the Divestiture Agreements 

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 Respondent’s obligations under this Order. Any material modification 

of any Divestiture Agreement between the date the Commission approves the 

Divestiture Agreement and the Closing Date, without the prior approval of the 

Commission, or any failure to meet any material condition precedent to closing 

(whether waived or not), shall constitute a violation of this Order. 

Notwithstanding any paragraph, section, or other provision of the Divestiture 

Agreements, for a period of five (5) years after the relevant Closing Date, any 

modification of a Divestiture Agreement, without the approval of the 

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

shall provide written notice to the Commission not more than five (5) days after 

any modification (material or otherwise) of the Divestiture Agreement, or after 

any failure to meet any condition precedent (material or otherwise) to closing 

(whether waived or not). 

E. Until Respondents comply with Paragraph III. (and Paragraph VI.) of this Order, 

Respondents shall take such actions as are necessary to maintain the viability and 

marketability of the Connecticut Divestiture Assets and to prevent the destruction, 

removal, wasting, deterioration, or impairment of the Connecticut Divestiture 

Assets. 

F. The purpose of the divestiture of the Connecticut Divestiture Assets and the 

additional requirements in Paragraph III. is to ensure the continued use of the 

assets in the same business in which the assets were engaged at the time of the 

announcement of the proposed Acquisition by Respondents and to remedy the 
11

lessening of competition in the sale and delivery of Deicing Salt in Connecticut 

resulting from the Acquisition as alleged in the Commission’s complaint. 

IV. 

 

 IT IS FURTHER ORDERED that 

A. If the Commission-approved Acquirer is unable to satisfy the terms of the 

Connecticut Book of Business or the Maine Book of Business, then ISCO shall 

perform under the terms as requested by the affected Customer as specified by the 

Customer in its formal consent to transfer its contract from ISCO to the 

Commission-approved Acquirer. 

B. Respondents shall not interfere with, or in any other way impede, the ability of the 

Commission-approved Acquirers to extend or enter into agreements with Sprague, 

Gateway, or other Third Parties, relating to the supply or sale of Deicing Salt in 

Connecticut and Maine. 

C. If any Customer, or person acting on behalf of any Customer, that would 

otherwise acquire Deicing Salt as part of the Connecticut Book of Business or the 

Maine Book of Business contacts Respondents with respect to placing an order, or 

places an order, for Deicing Salt, Respondents shall: 

1. Notify the Customer-designated representative, with responsibilities for 

procurement relating to that Customer, of that contact in such a manner 

that the representative receives the notification within 24 hours of the 

contact, or the placement of the order; and 

2. Maintain an accurate and verifiable record of that contact. 

 

V. 

 IT IS FURTHER ORDERED that: 

A. At any time after Respondents sign the Consent Agreement in this matter, the 

Commission may appoint a Monitor to assure Respondents expeditiously comply 

with all of their obligations and perform all of their responsibilities as required by 

this Order. 

B. The Commission shall select the 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 Monitor within ten (10) days after notice by the staff of the Commission 

to Respondents of the identity of any proposed Monitor, Respondents shall be 

deemed to have consented to the selection of the proposed Monitor. 
12

C. 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 terms of the Order in a 

manner consistent with the purposes of the Order. 

D. If a Monitor is appointed by the Commission pursuant to this Paragraph V, 

Respondents 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 the 

Respondents’ compliance with the terms of the Order, 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 Order and in 

consultation with the Commission including, but not limited to: 

a) assuring that Respondents expeditiously comply with all of their 

obligations and perform all their responsibilities as required by the 

Order to Maintain Assets and the Decision and Order in this 

matter; and 

b) monitoring Respondents compliance with the Granite State Supply 

Agreement. 

2. The Monitor shall act in a fiduciary capacity for the benefit of the 

Commission. 

3. Subject to any demonstrated legally recognized privilege, the Monitor 

shall have full and complete access to Respondents’ 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 the Respondents’ compliance with their 

obligations under the Order. 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 

the Order. 

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

Respondents on such reasonable and customary terms and conditions as 

the Commission may set. The Monitor shall have authority to employ, at 

the expense of Respondents, such consultants, accountants, attorneys, and 

other representatives and assistants as are necessary to carry out the 

Monitor’s duties and responsibilities. The Monitor shall account for all 

monies derived from the divestiture and all expenses incurred, including 

fees for services rendered, subject to the approval of the Commission. 

5. 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 expenses incurred in connection 

with the preparation for, or defense of, any claim, whether or not resulting 
13

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 state that within one (1) month from the 

date the Monitor is appointed pursuant to this Paragraph V., and every 

sixty (60) days thereafter, the Monitor shall report in writing to the 

Commission concerning performance of their obligations under the Order. 

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, such 

agreement shall not restrict the Monitor from providing any information to 

the Commission. 

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 relating to the 

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 in the same manner 

as provided in this Paragraph V. 

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 the Order. 

H. A Monitor appointed pursuant to this Order may be the same person appointed as 

the monitor appointed pursuant to the Order to Maintain Assets in this matter or 

the Divestiture Trustee pursuant to the relevant provisions of this Order. 

VI.

 IT IS FURTHER ORDERED that: 

 

A. If Respondents have not fully complied with their obligations to divest the Maine 

Divestiture Assets, the Searsport Stockpile Space, or the Connecticut Divestiture 

Assets as required by this Order, the Commission may appoint a trustee 

(ADivestiture Trustee@) to divest such assets and to effectuate the other provisions 

of this Order 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 

' 5(l) of the Federal Trade Commission Act, 15 U.S.C. ' 45(l), or any other 

statute enforced by the 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 
14

Divestiture Trustee under this Paragraph shall preclude the Commission or the 

Attorney General from seeking civil penalties or any other relief available to it, 

including a court-appointed Divestiture Trustee, pursuant to ' 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 shall select the 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, including the 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. 

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

Respondents shall execute a trust agreement that, subject to the prior approval of 

the Commission, transfers to the Divestiture Trustee all rights and powers 

necessary to permit the Divestiture Trustee to effectuate the divestitures and 

satisfy the additional obligations required by Paragraph II. and Paragraph III. of 

this Order. 

D. 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: 

 

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

shall have the exclusive power and authority to effectuate the divestitures 

and satisfy the additional obligations required by Paragraphs II. and III. of 

this Order. 

2. The Divestiture Trustee shall have twelve (12) months after the date the 

Commission approves the trust agreement described herein to accomplish 

the divestitures, which shall be subject to the prior approval of the 

Commission. If, however, at the end of the twelve (12) month period, the 

Divestiture Trustee has submitted a plan to satisfy the obligations of 

Paragraphs II. and III., or believes that such 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, the Commission may extend the period only two (2) times. 

3. Subject to any demonstrated legally recognized privilege, the Divestiture 

Trustee shall have full and complete access to the personnel, books, 

records and facilities related to the relevant assets that are required to be 

assigned, granted, licensed, divested, delivered or otherwise conveyed by 

this Order and to any other relevant information, as the Divestiture Trustee 

may request. Respondents shall develop such financial or other 
15

information as the Divestiture Trustee may request and shall cooperate 

with the Divestiture Trustee. Respondents shall take no action to interfere 

with or impede the Divestiture Trustee=s accomplishment of the 

divestitures Any delays caused by Respondents shall extend the time 

under this Paragraph in an amount equal to the delay, as determined by the 

Commission or, for a court-appointed Divestiture Trustee, by the court. 

4. The 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 divestitures shall be made in the manner and to an acquirer as 

required by this Order; provided, however, if the Divestiture Trustee 

receives bona fide offers from more than one acquiring entity, and if the 

Commission determines to approve more than one such acquiring entity, 

the Divestiture Trustee shall divest to the acquiring entity or entities 

selected by Respondents from among those approved by the Commission; 

provided further, however, that Respondents shall select such entity within 

five (5) Days after receiving notification of the Commission=s approval. 

5. The 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. The 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. The 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 the Divestiture Trustee shall be based at 

least in significant part on a commission arrangement contingent on the 

divestitures of all of the relevant assets that are required to be divested by 

this Order. 

6. Respondents shall indemnify the Divestiture Trustee and hold the 

Divestiture Trustee harmless against any losses, claims, damages, 

liabilities, or expenses arising out of, or in connection with, the 

performance of the Divestiture Trustee=s duties, including all reasonable 

fees of counsel and other expenses incurred in connection with the 

preparation for, or defense of, any claim, whether or not resulting in any 

liability, except to the extent that such losses, claims, damages, liabilities, 

or expenses result from misfeasance, gross negligence, willful or wanton 

acts, or bad faith by the Divestiture Trustee. 
16

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

maintain the relevant assets required to be granted, licensed, transferred, 

delivered or otherwise conveyed by this Order. 

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

Commission every sixty (60) days concerning the Divestiture Trustee=s 

efforts to accomplish the divestitures. 

9. 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. 

E. If the Commission determines that a 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 IV. 

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

court, may on its own initiative or at the request of the Divestiture Trustee issue 

such additional orders or directions as may be necessary or appropriate to 

accomplish the divestitures required by this Order. 

VII. 

 IT IS FURTHER ORDERED that: 

 

A. Within thirty (30) days after the date this Order becomes final, every sixty (60) 

Days thereafter until Respondents have fully complied with Paragraphs II.A. and 

II.C., III.A. and III.B (or Paragraph VI., as applicable), and every ninety (90) days 

thereafter until Respondents have complied with all remaining obligations of this 

Order and the Divestiture 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. Respondents shall include in its reports, among other things that are 

required from time to time: 

1. A full description of the efforts being made to comply with the relevant 

Paragraphs of this Order; 

2. A description of all substantive contacts or negotiations related to the 

divestitures and the identity of all parties contacted and copies of all 

written communications to and from such parties, all internal memoranda, 

and all reports and recommendations concerning completing its 

obligations pursuant to Paragraph II. and Paragraph III. (or Paragraph VI., 

as applicable) of this Order. 
17

B. One year after the Order becomes final, annually for the next three (3) years on 

the anniversary of the date the Order becomes final, and at other times as the 

Commission may require, Respondents shall file a verified written report with the 

Commission setting forth in detail the manner and form in which they have 

complied and are complying with the Order. 

VIII. 

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

thirty (30) days prior to any proposed (1) dissolution of the Respondents, (2) acquisition, merger 

or consolidation of Respondents, or (3) any other change in the Respondents that may affect 

compliance obligations arising out of this Order, including, but not limited to, assignment, the 

creation or dissolution of subsidiaries, or any other change in Respondents. 

IX. 

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, Respondents shall, without restraint or interference, 

permit any duly authorized representative(s) of the Commission: 

A. Access, during business office hours of the 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 the Respondents related to compliance with this 

Order, which copying services shall be provided by the Respondents at their 

expense; and 

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

counsel present, regarding such matters. 

 By the Commission. 

 

Donald S. Clark 

Secretary 

SEAL 

ISSUED: November 9, 2009 
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Confidential Appendix A 

[Redacted from Public Record Version but Incorporated by Reference]
19

Confidential Appendix B 

[Redacted from Public Record Version but Incorporated by Reference]