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Federal Register / Vol. 86, No. 108 / Tuesday, June 8, 2021 / Notices
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along the Mississippi and Ohio Rivers.
The proposed Final Judgment requires the Defendants to divest nine elevators 1
in nine geographic markets within 30
days after the entry of the Stipulation by the Court to Viserion or another acquirer or acquirers approved by the United States. In each of those nine geographic markets, a Bunge elevator competes head to head with one or more ZGC or CGB elevators.
The Divestiture Assets include the real property and real property rights, fee simple interests; buildings, facilities, and other structures, including bins, silos, other grain storage facilities, and dock facilities associated with the nine grain elevators. The Divestiture Assets also encompass all existing grain inventories at the elevators, and all contracts including grain contracts, contractual rights, and relationships, including customer and supplier relationships, and all other agreements, commitments, and understandings, including, supply agreements, teaming agreements, and leases, and all outstanding offers or solicitations to enter into a similar arrangement that relate exclusively to the elevators that will be divested.
The Divestiture Assets must be divested in such a way as to satisfy the United States in its sole discretion that the Divestiture Assets can and will be operated by the purchaser as a viable, ongoing business that can compete effectively in the market for the purchase of corn and the market for the purchase of soybeans. Defendants must take all reasonable steps necessary to accomplish the divestiture quickly and must cooperate with any acquirer.
If Defendants do not accomplish the divestiture within the period prescribed in the proposed Final Judgment, the proposed Final Judgment provides that the Court will appoint a divestiture trustee selected by the United States to execute the divestiture. If a divestiture trustee is appointed, the proposed Final Judgment provides that Defendant ZGC
will pay all costs and expenses of the trustee. The divestiture trustees commission will be structured so as to provide an incentive for the trustee based on the price obtained and the speed with which the divestiture is accomplished. After the divestiture 1 In Osceola, Arkansas, Bunge has two elevator locations, Riverside, which as the name implies, abuts the Mississippi, and Landside, a former soy crush plant located a bit inland from the river.
Bunge currently operates the two locations as one combined entity, with Landside being used primarily for overflow storage in support of Riverside; similarly, the proposed Final Judgment and Stipulation view the two Bunge Osceola locations as one asset for purposes of remedying the likely harm from the proposed Transaction.

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trustees appointment becomes effective, the trustee will provide periodic reports to the United States setting forth his or her efforts to accomplish the divestiture.
If the divestiture has not been accomplished at the end of six months, the divestiture trustee and the United States will make recommendations to the Court, which will enter such orders as appropriate, in order to carry out the purpose of the trust, including by extending the trust or the term of the divestiture trustees appointment.
Under Paragraph IV.I. of the proposed Final Judgment, Defendants must cooperate with and assist the acquirer in identifying and, at the option of acquirer, hiring 1 all full time, part time, or contract employees employed at the divested elevators at any time between August 21, 2020, and the divestiture date; 2 all elevator managers, grain merchandisers, and elevator superintendents employed by Bunge or CGB whose job responsibilities are shared between or among divested elevators and any non-divested elevators, at any time between August 21, 2020, and the divestiture date; and 3 all regional managers employed by Bunge one organizational level above the elevator manager level, wherever located, whose job duties support the grain purchasing business of any of the Bunge elevators, at any time between August 21, 2020, and the divestiture date. Defendants must provide Viserion, or any other acquirer or acquirers, with information on these employees and are prohibited from interfering with the efforts of Viserion, or any other acquirer or acquirers, to hire them.
The proposed Final Judgment includes a non-solicit provision Paragraph IV.I.6. prohibiting the Defendants from attempting to rehire relevant personnel that have agreed to work for the acquirer, subject to certain narrow exceptions, such as if an individual is laid off by the acquirer.
The non-solicit provision is limited in duration to 12 months, which is a length of time intended to encompass the first harvest season for which the acquirer will be operating the divested elevators.
It is also limited in scope to apply only to certain relevant personnelregional/
general managers, elevator managers, merchandisers, bookkeepers, and site superintendentsthe employees most intimately involved with farmer outreach and elevator operation. The categories of employees protected by the non-solicit provision are integral to maintaining customer relations while ownership of the assets is transitioning;
elevator managers and the grain merchandisers, in particular, are needed to develop and keep strong customer
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relationships to get grain into the elevators. Defendants are not restricted, however, from advertising employment openings using general solicitations or advertisements and rehiring relevant personnel who apply for an employment opening through a general solicitation or advertisement.
Under Paragraph IV.M. of the proposed Final Judgment, at the option of the acquirer or acquirers, and subject to approval by the United States in its sole discretion, Defendants must enter into one or more contracts to provide the acquirer or acquirers with transition services for back office, human resources, or information technology, for a period of up to six months after the divestiture occurs, on terms and conditions reasonably related to market conditions for the provision of the transition services. The transition services covered by the proposed Final Judgment are those that might reasonably be necessary to ensure that an acquirer or acquirers can readily and promptly use the assets to compete in the relevant markets.
For the term of the proposed Final Judgment, Paragraph XI.A. requires Defendant ZGC to provide at least 30
calendar days advance notification to the United States of its intent to directly or indirectly acquire any assets of, or any interest in, grain purchasing facilities located within a 100-mile radius any divested elevator. The notification requirement of Paragraph XI.A. applies to transactions that are not subject to the reporting and waiting period requirements of the Hart-ScottRodino Antitrust Improvements Act of 1976, as amended, 15 U.S.C. 18a the HSR Act.2 Notification of such nonreportable transactions is necessary because acquisition of a single elevator from another grain purchasing company is not uncommon in the grain industry, and such an acquisition, or even an acquisition of a small suite of elevators, likely would not meet the notification thresholds of the HSR Act, but nevertheless could have a substantial anticompetitive effect.
The proposed Final Judgment also contains provisions designed to promote compliance and make the enforcement of the Final Judgment as effective as possible. Paragraph XIV.A. provides that the United States retains and reserves all rights to enforce the provisions of the proposed Final Judgment, including its 2 Paragraph XI.M. exempts from this reporting requirement Defendant ZGCs acquisition of grain purchasing facilities that were leased by Defendant ZGC as of January 1, 2021. The United States has already accounted for ZGCs control over those assets in its competitive analysis of the Transaction and structuring of the divestiture.

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