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Federal Register / Vol. 86, No. 108 / Tuesday, June 8, 2021 / Notices
consistent with this Final Judgment to Viserion or to another Acquirer or Acquirers acceptable to the United States, in its sole discretion. The United States, in its sole discretion, may agree to one or more extensions of this time period not to exceed 90 calendar days in total and will notify the Court of any extensions.
B. Defendant ZGC must use its best efforts to divest the Divestiture Assets as expeditiously as possible, and Defendants may not take any action to impede the permitting, licensing, operation, or divestiture of the Divestiture Assets. Defendants must take no action that would jeopardize the divestiture ordered by the Court.
C. Unless the United States otherwise consents in writing, divestiture pursuant to this Final Judgment must include the entire Divestiture Assets and must be accomplished in such a way as to satisfy the United States, in its sole discretion, that the Divestiture Assets can and will be used by Acquirer as part of a viable, ongoing business of grain purchasing, and that the divestiture to Acquirer or Acquirers will remedy the competitive harm alleged in the Complaint.
D. The divestiture must be made to an Acquirer or Acquirers that, in the United States sole judgment, has or have the intent and capability including the necessary managerial, operational, technical, and financial capability to compete effectively in grain purchasing.
E. The divestiture must be accomplished in a manner that satisfies the United States, in its sole discretion, that none of the terms of any agreement between an Acquirer and Defendant ZGC give Defendants the ability unreasonably to raise an Acquirers costs, to lower an Acquirers efficiency, or otherwise to interfere in the ability of an Acquirer to compete effectively in grain purchasing.
F. Divestiture of the Divestiture Assets may be made to one or more Acquirers, in one or more transactions, provided that it is demonstrated to the sole satisfaction of the United States that the criteria required by Paragraphs IVC, IVD, and IVE will still be met.
G. In the event Defendant ZGC is attempting to divest the Divestiture Assets to an Acquirer other than Viserion, Defendant ZGC promptly must make known, by usual and customary means, the availability of the Divestiture Assets. Defendant ZGC must inform any person making an inquiry regarding a possible purchase of the Divestiture Assets that the Divestiture Assets are being divested in accordance with this Final Judgment and must provide that
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person with a copy of this Final Judgment. Defendants must offer to furnish to all prospective Acquirers, subject to customary confidentiality assurances, all information and documents relating to the Divestiture Assets that are customarily provided in a due-diligence process; provided, however, that Defendants need not provide information or documents subject to the attorney-client privilege or work-product doctrine. Defendants must make all information and documents available to the United States at the same time that the information and documents are made available to any other person.
H. Defendants must provide prospective Acquirers with 1 access to make inspections of the Divestiture Assets; 2 access to all environmental, zoning, and other permitting documents and information regarding the Divestiture Assets; and 3 access to all financial, operational, or other documents and information relating to the Divestiture Assets that customarily would be provided as part of a duediligence process. Defendants also must disclose all encumbrances on any part of the Divestiture Assets, including on intangible property.
I. Defendants must cooperate with and assist an Acquirer in identifying and, at the option of Acquirer, hiring all Relevant Personnel, including:
1. Within 10 business days following the filing of the Complaint in this matter, or, if the Divestiture Assets are divested to an Acquirer or Acquirers other than Viserion, within 10 business days of notice from the United States pursuant to Paragraph VI.C. that it does not object to a proposed Acquirer, Defendants must identify all Relevant Personnel to Acquirer and the United States, including by providing organization charts covering all Relevant Personnel.
2. Within 10 business days following receipt of a request by an Acquirer or the United States, Defendants must provide to Acquirer and the United States additional information related to Relevant Personnel, including name, job title, reporting relationships, past experience, responsibilities, training and educational histories, relevant certifications, and job performance evaluations. Defendants must also provide to Acquirer and the United States current and accrued compensation and benefits, including most recent bonuses paid, aggregate annual compensation, current target or guaranteed bonus, any retention agreement or incentives, and any other payments due, compensation or benefited accrued, or promises made to
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the Relevant Personnel. If Defendants are barred by any applicable law from providing any of this information, Defendants must provide, within 10
business days following receipt of the request, the requested information to the full extent permitted by law and also must provide a written explanation of Defendants inability to provide the remaining information, including specifically identifying the provisions of the applicable laws.
3. At the request of an Acquirer, Defendants must promptly make Relevant Personnel available for private interviews with Acquirer during normal business hours at a mutually agreeable location.
4. Defendants must not interfere with any effort by an Acquirer to employ any Relevant Personnel. Interference includes, but is not limited to, offering to increase the compensation or improve the benefits of Relevant Personnel unless: a The offer is part of a company-wide increase in compensation or improvement in benefits that was announced prior to April 21, 2020, or b the offer is approved by the United States in its sole discretion. Defendants obligations under this Paragraph will expire 6
months after the Divestiture Date.
5. For Relevant Personnel who elect employment with an Acquirer within 6
months of the Divestiture Date, Defendants must waive all non-compete and non-disclosure agreements, vest all unvested pension and other equity rights or to the extent such accelerated vesting is not permitted, provide the equivalent benefits, provide any pay pro-rata, provide all other compensation and benefits that their Relevant Personnel have fully or partially accrued, and provide pro-rata all other benefits that those Relevant Personnel otherwise would have been provided had the Relevant Personnel continued employment with Defendants, including any vested retention bonuses or payments. Defendants may maintain reasonable restrictions on disclosure by Relevant Personnel of Defendants proprietary non-public information that is unrelated to the Divestiture Assets and not otherwise required to be disclosed by this Final Judgment.
6. For a period of 12 months from the Divestiture Date, Defendants may not solicit to rehire the following categories of Relevant Personnel hired by an Acquirer from Defendants within 6
months of the Divestiture Date: Regional and general managers, elevator managers, grain merchandisers, elevator superintendents, and bookkeepers.
Defendants may solicit to rehire these categories of Relevant Personnel if a an
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