U.S. and States of New York and Ohio, and Commonwealth of Pennsylvania v. Cargill Inc., Akzo Novel, N.V., Akzo Nobel Inc., and Akzo Nobel Salt, Inc.; Proposed Final Judgment and Competitive Impact Statement

DEPARTMENT OF JUSTICE

Antitrust Division

U.S. and States of New York and Ohio, and Commonwealth of

Pennsylvania v. Cargill Inc., Akzo Novel, N.V., Akzo Nobel Inc., and

Akzo Nobel Salt, Inc.; Proposed Final Judgment and Competitive Impact

Statement

United States, States of New York and Ohio, and Commonwealth of

Pennsylvania v. Cargill Inc., Akzo Nobel, N.V., Akzo Nobel Inc., and

Akzo Nobel Salt, Inc.: Proposed Final Judgment and Revised Competitive

Impact Statement.

Notice is hereby given pursuant to the Antitrust Procedures and

Penalties Act, 15 U.S.C. sections 16(b)-(h), that a proposed Final

Judgment, Stipulation and Order, and Revised Competitive Impact

Statement have been filed with the United States District Court for the

Western District of New York, Rochester Division, in the United States

and States of New York and Ohio and Commonwealth of Pennsylvania v.

Cargill Inc., Akzo Nobel, N.V., Akzo Nobel, Inc. and Akzo Nobel Salt

Inc., Civil Action No. 97-CV-6161 L.

On April 21, 1997, the United States, the states of New York and

Ohio, and the Commonwealth of Pennsylvania filed a Complaint alleging

that Cargill Inc.'s proposed acquisition of Akzo Nobel, N.V.,'s Western

Hemisphere salt operations would violate Section 7 of the Clayton Act,

15 U.S.C. Sec. 18. The Complaint further alleges that the acquisition

by Cargill of Akzo Nobel's salt operations would lessen competition

substantially and tend to create a monopoly in the production and sale

of rock deicing salt in the Northeast Interior Section of the country

(western Pennsylvania and Massachusetts, upstate New York, Vermont and

eastern Ohio) and in the production and sale of food grade evaporated

salt east of the Rocky Mountains. The proposed Final Judgment, filed

the same time as the Complaint, requires that Akzo divest the

development rights to a rock salt mine in Hampton Corners, New York,

and that Cargill divest a huge stockpile of bulk deicing salt in

Retsof, New York; a number of deicing salt depots; a four-year supply

contract for the sale of bulk deicing salt from Cargill and Akzo mines;

and the Akzo evaporated salt plant in Watkins Glen, New York, along

with certain tangible and intangible assets.

Public comment is invited within the statutory 60-day comment

period. Such comments and responses thereto will be published in the

Federal Register and filed with the Court. Comments should be directed

to J. Robert Kramer, II, Chief, Litigation II Section, Antitrust

Division, U.S. Department of Justice, 1401 H Street, NW., Suite 3000,

Washington, DC 20530 (telephone: (202) 307-0924).

Constance K. Robinson,

Director of Operations.

United States District Court Western District of New York Rochester

Division

United States of America, State of New York, Commonwealth of

Pennsylvania and State of Ohio, Plaintiffs, v. Cargill, Inc., Akzo

Nobel, N.V., Akzo Nobel, Inc. and Akzo Nobel Salt, Inc., Defendants.

Civil Action No. 97-CV616L.

Stipulation and Order

It is stipulated by and between the undersigned parties, by their

respective attorneys, as follows:

(1) The Court has jurisdiction over the subject matter of this

action and over each of the parties hereto (including American Rock

Salt Company LLC, ``American''), and venue of this action is proper in

the United States District Court for the Western District of New York.

(2) The parties stipulate that a Final Judgment in the form hereto

attached may be filed and entered by the Court, upon the motion of any

party or upon the Court's own motion, at any time after compliance with

the requirements of the Antitrust Procedures and Penalties Act (15

U.S.C. Sec. 16), and without further notice to any party or other

proceedings, provided that plaintiffs have not withdrawn their consent,

which any of them may do at any time before the entry of the proposed

Final Judgment by serving notice thereof on defendants and American and

by filing that notice with the Court.

(3) Defendants and American shall abide and comply with the

provisions of the proposed Final Judgment, pending the Judgment's entry

by the Court, or until expiration of time for all appeals of any Court

ruling declining entry of the proposed Final Judgment, and shall, from

the date of the signing of this Stipulation by the parties, comply with

all the terms and provisions of the proposed Final Judgment as though

the same were in full force and effect as an order of the Court.

(4) Defendants Cargill and Akzo shall not consummate the

transaction sought to be enjoined by the Complaint herein before the

Court has signed this Stipulation and Order.

(5) This Stipulation shall apply with equal force and effect to any

amended proposed Final Judgment agreed upon in writing by the parties

and submitted to the Court.

(6) In the event (a) The United States has withdrawn its consent,

as provided in paragraph 2 above, or (b) the proposed Final Judgment is

not entered pursuant to this Stipulation, the time has expired for all

appeals of any Court ruling declining entry of the proposed Final

Judgment, and the Court has not otherwise ordered continued compliance

with the terms and provisions of the proposed Final Judgment, then the

parties are released from all further obligations under this

Stipulation, and the making of this

[[Page 26560]]

Stipulation shall be without prejudice to any party in this or any

other proceeding.

(7) Cargill, Akzo and American represent that the divestitures

ordered in the proposed Final Judgment can and will be made, and that

Cargill, Akzo and American will later raise no claim of hardship or

difficulty as grounds for asking the Court to modify any of the

divestitures provisions contained therein. Dated: April 17, 1997.

For Plaintiff United States of America:

Anthony E. Harris,

U.S. Department of Justice, Antitrust Division, Litigation II, Suite

3000, Washington, D.C. 20005, (202) 307-6583.

For Plaintiff State of New York:

John A. Ioannou,

Assistant Attorney General, Antitrust Bureau, Attorney General's

Office, 120 Broadway, Suite 26-01, New York, New York 10271, (212) 914-

8268.

For Plaintiff Commonwealth of Pennsylvania:

D. Michael Fisher,

Attorney General, Commonwealth of Pennsylvania.

By: Deneice Convert Zeve,

Deneice Convert Zeve,

Deputy Attorney General, Antitrust Section, Office of the Attorney

General, 14th Floor, Strawberry Square, Harrisburg, PA 17120, (717)

787-4530.

For Defendant Cargill Inc.:

Marc G. Schildkraut, Esquire,

Howrey & Simon, 1299 Pennsylvania Avenue, NW, 2nd Floor, Washington, DC

20004, (202) 383-7448.

For Defendant Akzo Nobel, NV:

John W. Behan,

Assistant General Counsel, Akzo Nobel, Inc., 7 Livingstone Avenue,

Dobbs Ferry, NY 10522-2222, (914) 674-5000.

For American Rock Salt Company LLC:

Gunther K. Buerman, Esquire,

Harris Beach & Wilcox, LLP, 130 E. Main Street, Rochester, NY 14604,

(716) 232-4440.

For Plaintiff State of Ohio:

Betty D. Montgomery,

Attorney General.

By: Mitchell Gentile,

Mitchell Gentile,

Assistant Attorney General, Ohio Attorney General's Office, 30 East

Broad Street, 16th Floor, Columbus, OH 43215, (614) 466-4328.

Order

It is so ordered by the Court, this 21 day of April, 1997.

David G. Larimer,

United States District Judge.

United States District Court Western District of New York Rochester

Division

United States of America, State of New York, Commonwealth of

Pennsylvania and State of Ohio, Plaintiffs, v. Cargill Inc., Akzo

Nobel, N.V., Akzo Nobel, Inc. and Akzo Nobel Salt, Inc., Defendants.

Civil Action No.: 97-CV616L.

Final Judgment

Whereas, plaintiffs, the United States of America, the States of

New York and Ohio, and the Commonwealth of Pennsylvania, having filed

their Complaint herein on April 18, 1997, and plaintiffs and defendants

and American by their respective attorneys, having consented to the

entry of this Final Judgment without trial or adjudication of any issue

of fact or law herein, and without this Final Judgment constituting any

evidence against or an admission by any party with respect to any issue

of law or fact herein;

And whereas, defendants and American have agreed to be bound by the

provisions of this Final Judgment pending its approval by the Court;

And whereas, the purpose of this Final Judgment is prompt and

certain divestiture of certain rights and assets to assure that

competition is not substantially lessened;

And whereas, plaintiffs require defendants make certain

divestitures for the purpose of remedying the loss of competition as

alleged in the Compliant;

And whereas, defendants and American have represented to plaintiffs

that the divestitures ordered herein can and will be made and that

defendants and American will later raise no claims of hardship or

difficulty as grounds for asking the Court to modify any of the

divestiture provisions contained below;

Now, therefore, before the taking of any testimony, and without

trial or adjudication of any issue of fact or law herein, and upon

consent of the parties hereto, it is hereby

Ordered, Adjudged, and Decreed as follows:

I. Jurisdiction

This Court has jurisdiction over each of the parties hereto and

over the subject matter of this action. The Complaint states a claim

upon which relief may be granted against defendants, as hereinafter

defined, under Section 7 of the Clayton Act, as amended (15 U.S.C.

Sec. 18).

II. Definitions

As used in this Final Judgment:

A. ``Cargill'' means defendants Cargill Inc., a Delaware

corporation with its headquarters in Wayzata, Minnesota, and includes

its successors and assigns, its subsidiaries, and directors, officers,

managers, agents, and employees.

B. ``Akzo'' means defendants Akzo Nobel, N.V., based in Arnhem, The

Netherlands, and includes its successors and assigns, its subsidiaries

and divisions (including Akzo Nobel, Inc. and Akzo Nobel Salt, Inc.),

and directors, officers, managers, agents, and employees.

C. ``American'' means American Rock Salt Company LLC, a New York

limited liability company with its headquarters in Rochester, New York,

and includes its successors and assigns, its directors, officers,

managers, agents, partners and employees.

D. ``Relevant Evaporated Salt Assets'' means:

(1) All of the tangible assets used in the operation of the Akzo

evaporated slat plant in Watkins Glen, New York, including but not

limited to: all real property (owned or leased) in Watkins Glen, New

York and used in the operation of that plant, or storage of plant

inventory; all manufacturing, packaging equipment, personal property,

inventory, office furniture, fixed assets and fixtures, materials,

supplies, on-site warehouses or storage facilities, and other tangible

property or improvements used in the operation of that plant (but

excluding Akzo's industrial service centers located outside New York

and salt mining or manufacturing locations outside Watkins Glen, New

York); all licenses, permits and authorizations issued by any

governmental organization relating to that plant; all contracts,

agreements, leases, commitments and understandings pertaining to that

plant and its operations; all customer lists and credit records, and

other records maintained by Akzo or Cargill in connection with the

business of the Watkins Glen plant;

(2) At the acquirer's option, a nonexclusive license, for a term

designated by the acquirer, to make, have made, use or sell under the

label of any water conditioning salt product produced by Akzo at the

Watkins Glen, New York plant, and any improvement to or line extension

of that label, but excluding the Diamond Crystal label; and

(3) All intangible assets, wherever located, that relate in any way

to the tangible assets and labels described above (including, but not

limited to, production, packaging and distribution know-how);

exclusive, assignable rights to make, have made, use or sell under any

and all patents or proprietary technology that relate to the Watkins

Glen plant exclusively; contracts to supply goods or services to the

Watkins Glen plant exclusively and the prorated portion of any other

contract to supply goods or services to the Watkins Glen plant;

business information solely dedicated to the tangible assets or the

[[Page 26561]]

labels described above; and nonexclusive, assignable rights to make,

have made, use or sell under all related patents, proprietary

technology and business information used in connection with, but not

solely dedicated to the tangible assets or the labels described above.

E. ``Relevant Bulk Deicing Salt Assets'' means:

(1) A four-year bulk deicing salt supply agreement that includes

the following terms:

(a) For the first three years, the salt supply agreement shall be

renewable annually, at American's (or its assignee's) option; the

fourth year and final year of the agreement shall take effect only if

American (or its assignee) elects, and the United States, New York and

Pennsylvania conclude, in their sole discretion, that substantial

progress has not been made toward construction of a rock salt mine at

Hampton Corners, New York, or that a continuation of the salt supply

contract is necessary for other competitive reasons;

(b) For each of the first three years of the agreement, Cargill

shall supply a maximum of 400,000 tons of specification-grade bulk

deicing salt annually, at $10/ton f.o.b. mine, as follows: 200,000 tons

from its S. Lansing, New York mine, and 200,000 tons (with no force

majeure clause) from Akzo's Cleveland, Ohio mine; in the fourth and

final year of the supply contract, Cargill shall supply a maximum of

300,000 tons of specification-grade bulk deicing salt, at $10/ton

f.o.b. mine, as follows: 150,000 tons from its S. Lansing, New York

mine and 150,000 tons (with no force majeure clause) from Akzo's

Cleveland, Ohio mine; and

(2) All the right, title and interest conveyed by Akzo to Cargill

in each of the following eleven bulk deicing salt terminals currently

owned or leased by Akzo: University Heights, Schenectady, Whitehall,

and Hudson, New York; Buttonwood, Falls Creek, Reading, and Cresson,

Pennsylvania; Hartford, Connecticut; Middlesex, Vermont; and Columbus,

Ohio.

F. ``Additional Rock Salt Terminals'' means all the right title and

interest conveyed by Akzo to Cargill in the following bulk deicing

terminals currently owned or leased by Akzo: Bow, West Lebanon,

Claremont and Littleton, New Hampshire; Taunton, Readville and N.

Billerica, Massachusetts; Norwich and Waterbury, Connecticut; Staunton

and Roanoke, Virginia; Brewer and Oakland, Maine; Long Island City, New

York; and Baltimore, Maryland.

G. ``Hampton Corners Mine Rights'' means all right, title and

interest in any land, equipment, mining rights, or other assets,

tangible or intangible, to be conveyed by Akzo to American pursuant to

the Asset Purchase Agreement, dated January 31, 1997.

H. ``Default'' means (a) With respect to the Hampton Corners Mine

Rights, the failure by American to close, due to its failure to fulfill

all conditions precedent to closing, on its purchase of the Hampton

Corners Mine Rights from Akzo within 60 days after September 1, 1997,

or such other closing date later agreed upon by Akzo and American,

provided that in no event shall the closing date for that purchase take

place after September 1, 1998; and (b) with respect to the Retsof

Stockpile, the failure by American to close, due to its failure to

fulfill all conditions precedent to closing, on its purchase of the

Retsof Stockpile within 60 days after September 1, 1997, or such other

closing date later agreed upon by American and Cargill, provided that

in no event shall the closing date for that purchase take place after

September 1, 1998.

I. ``Retsof Stockpile'' means all right, title and interest in the

rock salt inventory outside Akzo's Retsof, New York rock salt mine in

Livingston County, New York, which currently consists of approximately

870,000 tons of bulk deicing salt.

J. ``Label'' means all legal rights associated with a brand's

trademarks, trade names, copyrights, designs, and trade dress (and any

improvements, extensions or modifications); the brand's trade secrets;

know-how or other proprietary information for making, having made,

using and selling the brand, including, but not limited to, packaging,

sales, marketing and distribution know-how and documentation, such as

customer lists.

K. ``Northeast United States'' means any of the following areas:

Vermont, western portions of Pennsylvania and Massachusetts, upstate

New York, and eastern Ohio.

L. ``Relevant Assets'' means the Retsof Stockpile, Relevant Bulk

Deicing Salt Assets, Relevant Evaporated Salt Assets, Hampton Corners

Mine Rights, and Additional Rock Salt Terminals, as the context

requires.

III. Applicability

A. The provisions of this Final Judgment apply to the defendants

and American, their successors and assigns, their subsidiaries,

directors, officers, managers, agents, and employees, and all other

persons in active concert or participation with any of them who shall

have received actual notice of this Final Judgment by personal service

or otherwise.

B. Defendants Akzo and Cargill shall require, as a condition of the

sale or other disposition of all or substantially all of each of their

respective salt assets that the acquirer or acquirers agree to be bound

by the provisions of this Final Judgment; provided, however, that

defendants need not obtain such an agreement from an acquirer of the

assets to be divested pursuant to the Final Judgment.

IV. Divestitures and Assignments

A. Defendant Cargill is ordered and directed to divest the Retsof

Stockpile to American, at a cost of $10/ton for specification-grade

bulk deicing salt, loaded f.o.b. at the Retsof Stockpile. Cargill is

ordered and directed, within 120 days after filing of the Complaint in

this action, to execute a contract to divest the Retsof Stockpile and

to ensure the availability of salt from the Retsof Stockpile to

American for the winter of 1997-1998.

B. Cargill is ordered and directed, within 150 days after filing of

the Complaint in this action, or within five (5) days after notice of

the entry of this Final Judgment by the Court, whichever is later, to

divest the Relevant Evaporated Salt Assets to an acquirer acceptable to

plaintiff United States, in its sole discretion.

C. Defendant Cargill is ordered and directed, within 30 days after

the filing of the Complaint in this action, to divest the Relevant Bulk

Deicing Assets to American. Cargill is further ordered and directed,

within 12 months after filing of the Complaint in this action, or five

(5) days after the entry of this Final Judgment by the Court, whichever

is later, to grant American an irrevocable option to acquire, at book

value or cost (whichever is lowest), the Additional Rock Salt

Terminals, or where Cargill does not own an Additional Rock Salt

Terminal, Cargill must offer to assign to American its rights in that

terminal. American must exercise its option to acquire or accept

assignment of such rights and obligations in any or all of the

Additional Rock Salt Terminals within seven (7) months after it has

received such option or assignment offer from defendant Cargill.

D. Defendant Akzo is ordered and directed to divest the Hampton

Corners Mine Rights to American. In the event that American defaults on

its purchase of the Hampton Corners Mine Rights, Akzo is ordered and

directed to divest the Hampton Corners Mine Rights, within 120 days

after default, to an acquirer acceptable to the United States,

[[Page 26562]]

New York and Pennsylvania, in their sole discretion.

E. In the event that American defaults on its purchase of the

Retsof Stockpile, Cargill is ordered and directed to divest the Retsof

Stockpile, within 120 days after default, to an acquirer acceptable to

the United States, New York and Pennsylvania, in their sole discretion.

F. In the event that American decides to sell or otherwise assign

its rights to the Relevant Bulk Deicing Assets or the Retsof Stockpile,

American shall provide plaintiffs United States, New York and

Pennsylvania with thirty days' written notice of the proposed sale or

assignment. Any such sale or assignment shall be made to an acquirer

acceptable to the United States, New York and Pennsylvania, in their

sole discretion.

G. Unless plaintiffs United States, New York and Pennsylvania

otherwise consent in writing (or in the case of the Relevant Evaporated

Salt Assets, the United States alone consents in writing), the

divestitures pursuant to Section IV (B), (D) and (E) of this Final

Judgment, or by the trustee appointed pursuant to Section V, shall

include all of the Relevant Assets, and shall be accomplished in such a

way as to satisfy: (a) the United States, New York and Pennsylvania, in

their sole discretion, that the Retsof Stockpile and Hampton Corners

Mine Rights can and will be used by an acquirer (or acquirers) as part

of a viable, ongoing business engaged in the sale and distribution of

bulk deicing salt in the Northeast United States; and (b) in the case

of the Relevant Evaporated Salt Assets, the United States alone, in its

sole discretion, that the Relevant Evaporated Salt Assets will be used

as part of a viable, ongoing business engaged in the sale of food grade

evaporated salt. The divestitures, whether pursuant to Section IV (B),

(D) and (E) or V of the Final Judgment, shall be made (1) To an

acquirer that, in the sole judgment of plaintiffs United States, New

York and Pennsylvania (or in the case of the Relevant Evaporated Salt

Assets, plaintiff United States's sole judgment), has the capability

and intent of competing effectively, and has the managerial,

operational and financial capability to compete effectively as a seller

of bulk deicing or food grade salt; and (2) pursuant to agreements the

terms of which shall not, in the sole judgment of plaintiffs United

States, New York and Pennsylvania (or in the case of the Relevant

Evaporated Salt Assets, plaintiff United States's sole judgment),

interfere with the ability of any acquirer to compete effectively.

H. Defendants Akzo (in the case of the Hampton Corners Mine Rights)

and Cargill (in the case of the Retsof Stockpile, and Relevant

Evaporated Salt Assets) are ordered and directed to use their best

efforts to divest said assets or assign said rights, and to use their

best efforts to obtain all regulatory approvals necessary for such

divestitures, as expeditiously as possible. Plaintiffs United States,

New York and Pennsylvania, in their sole discretion (or in the case of

the Relevant Evaporated Salt Assets, the United States alone) may

extend the time period for each such divestiture for two (2) additional

thirty-day periods of time, not to exceed 60 calendar days in total.

I. In accomplishing the divestiture ordered by this Final Judgment,

defendant Cargill promptly shall make known, by usual and customary

means, the availability of the Relevant Evaporated Salt Assets. In the

event of default on the Hampton Corners Mine Rights, Akzo promptly

shall make known, by usual and customary means, the availability of the

Hampton Corners Mine Rights. In the event of default on the Retsof

Stockpile, Cargill promptly shall make known, by usual and customary

means, the availability of the Retsof Stockpile.

Akzo and Cargill shall inform any person making a bona fide inquiry

regarding a possible purchase that the sale is being made pursuant to

the Final Judgment and provide such person with a copy of the Final

Judgment. Akzo and Cargill shall make known to any person making an

inquiry which Relevant Assets are available for sale. Akzo and Cargill

also shall offer to furnish to all bona fide prospective acquirers,

subject to customary confidentiality assurances, all information

regarding the Relevant Assets customarily provided in a due diligence

process, except such information that is subject to attorney-client

privilege or attorney work-product privilege. Akzo and Cargill shall

make available such information to plaintiffs at the same time that

such information is made available to any other person.

J. Akzo and Cargill shall permit bona fide prospective acquirers of

the Relevant Evaporated Salt Assets to have access to personnel and to

make such inspection of all Relevant Evaporated Salt Assets, and any

and all financial, operational or other documents and information, as

is customary in a due diligence process.

K. Defendants Akzo and Cargill shall not interfere with any efforts

by any acquirer to interview or employ the general manager or any other

employee of Akzo's Watkins Glen, New York evaporated salt plant.

L. Akzo and Cargill shall not take any action, direct or indirect

(not including otherwise lawful competitive price action, expansion of

capacity or similar competitive conduct), that will impede in any way

the development of the Hampton Corners Mine Rights.

V. Appointment of Trustee

A. In the event that Cargill has not divested the Retsof Stockpile

or the Relevant Evaporated Salt Assets, or Akzo has not divested the

Hampton Corners Mine Rights, within the applicable time period

specified in Section IV above, the Court shall appoint, on application

of plaintiff United States, a trustee selected by the United States to

effect the divestiture of the assets.

B. After the trustee's appointment has become effective, only the

trustee shall have the right to sell the assets that have not been

timely divested. The trustee shall have the power and authority to

accomplish the divestiture at the best price then obtainable upon a

reasonable effort by the trustee, subject to the provisions of Section

IV and VI of this Final Judgment, and shall have such other powers as

the Court shall deem appropriate. Subject to Section VI of this Final

Judgment, the trustee shall have the power and authority to hire at the

cost and expense of the party that has not made the pertinent

divestiture any investment bankers, attorneys or other agents

reasonably necessary in the judgment of the trustee to assist in the

divestiture, and such professionals or agents shall be solely

accountable to the trustees. The trustee shall have the power and

authority to accomplish the divestiture at the earliest possible time

to a purchaser acceptable to plaintiffs United States, New York and

Pennsylvania, in their sole judgment (or in the case of the Relevant

Evaporated Salt Assets, the United States alone), and shall have such

other powers as this Court shall deem appropriate. Defendants shall not

object to the sale of any of the Relevant Assets by the trustee on any

grounds other than the trustee's malfeasance. Any such objection by

defendants must be conveyed in writing to plaintiffs and the trustee no

later than 15 calendar days after the trustee has provided the notice

required under Section VII of this Final Judgment.

c. The trustee shall serve at the cost and expense of Cargill (in

the case of the Retsof Stockpile or Relevant Evaporated Salt Assets)

and Akzo (in the case of the Hampton Corners Mine Rights) on such terms

and conditions as the Court may

[[Page 26563]]

prescribe, and shall account for all monies derived from the sale of

the assets sold by the trustee and all costs and expenses so incurred.

After approval by the Court of the trustee's accounting, including fees

for its services and those of any professionals and agents retained by

the trustee, all remaining monies shall be paid to Cargill (in the case

of the Retsof Stockpile or the Relevant Evaporated Salt Assets) and

Akzo (in the case of the Hampton Corners Mine Rights), and the

trustee's service shall then be terminated. The compensation of such

trustees and of any professionals and agents retained by the trustee

shall be reasonable in light of the value of the divestiture and based

on a fee arrangement providing the trustee with an incentive based on

the price and terms of the divestiture and the speed with which it is

accomplished.

D. Defendants shall take no action to interfere with or impede the

trustee's accomplishment of the divestiture of any assets, and shall

use their best efforts to assist the trustee in accomplishing the

required divestiture, including best efforts to effect all necessary

regulatory approvals. Subject to a customary confidentiality agreement,

the trustee shall have full and complete access to the personnel,

books, records and facilities related to the Relevant Evaporated Salt

Assets, Retsof Stockpile, or Hampton Corners Mine Rights, and

defendants shall develop such financial or other information as may be

necessary for the divestiture of these assets. Defendants shall permit

prospective acquirers of the assets to have access to personnel and to

make such inspection of physical facilities and any and all financial,

operational or other documents and information as may be relevant to

the divestiture required by this Final Judgment.

E. After its appointment becomes effective, the trustee shall file

monthly reports with Cargill (in the case of the Retsof Stockpile or

the Relevant Evaporated Salt Assets), Akzo (in the case of the Hampton

Corners Mine Rights), plaintiffs, and the Court;, setting forth the

trustee's efforts to accomplish divestiture of the assets as

contemplated under the Final Judgment; provided, however, that to the

extent such reports contain information that the trustee deems

confidential, such reports shall not be filed in the public docket of

the court. Such reports shall include the name, address and telephone

number of each person who, during the preceding month, made an offer to

acquire, expressed an interest in acquiring, entered into negotiations

to acquire, or was contacted or made an inquiry about acquiring, any

interest in the Relevant Assets, and shall describe in detail each

contact with any such person during the period. The trustee shall

maintain full records of all efforts made to divest the Relevant

Assets.

F. Within six (6) months after its appointment has become

effective, if the trustee has not accomplished the divestiture required

by Section IV of this Final Judgment, the trustee shall promptly file

with the Court a report setting forth (1) the trustee's efforts to

accomplish the required divestiture, (2) the reasons, in the trustee's

judgment, why the required divestiture has not been accomplished, and

(3) the trustee's recommendations, provided, however, that to the

extent such reports contain information that the trustee deems

confidential, such reports shall not be filed in the public docket of

the Court. The trustee shall at the same time furnish such reports to

plaintiffs and Cargill and Akzo, which shall each have the right to be

heard and to make additional recommendations. The Court shall

thereafter enter such orders as it shall deem appropriate to accomplish

the purpose of this Final Judgment, which shall, if necessary, include

extending the term of the trustee's appointment.

VI. Preservation of Assets/Hold Separate

Until the divestiture of the Relevant Evaporated Salt Assets

required by Section IV of the Final Judgment has been accomplished:

A. Defendants Cargill and Akzo shall take all steps necessary to

operate Akzo's Watkins Glen, New York evaporated salt plant as a

separate, independent, ongoing, economically viable and active

competitor to defendant Cargill's other evaporated salt plants and

solar salt operations in the United States, and shall take all steps

necessary to ensure that, except as necessary to comply with Section IV

and paragraphs B and C of this Section of the Final Judgment,

management of the Watkins Glen, New York evaporated salt plant,

including the performance of decision-making functions regarding

marketing and pricing, will be kept separate and apart from, and not

influenced by, defendant Cargill.

B. Defendant Cargill shall use all reasonable efforts to maintain

and increase sales of evaporated salt products by Akzo's Watkins Glen,

New York evaporated salt plant and shall maintain at 1996 or previously

approved levels for 1997, whichever are higher, promotional

advertising, sales, marketing and merchandising support for salt

products produced by Akzo's Watkins Glen, New York evaporated salt

plant.

C. Defendants Cargill and Akzo shall take all steps necessary to

ensure that the assets used in the operation of Akzo's Watkins Glen,

New York plant, and managers, technical and operating and employees of

that plant shall not be transferred or reassigned to any other

facility, except for transfer bids initiated by employees pursuant to a

defendant's regular, established job posting policies, provided that

the defendant gives plaintiff United States and the acquirer ten (10)

days' notice of such transfer.

D. Defendants Cargill and Akzo shall not, except as part of a

divestiture approved by plaintiffs United States, New York and

Pennsylvania, sell any salt from the Retsof Stockpile.

E. Defendants Cargill and Akzo shall take no action, other than

lawful competitive price action, expansion of capacity, or similar

competitive conduct, that may jeopardize sale or assignment of the

Retsof Stockpile, Relevant Evaporated Salt Assets, Additional Rock Salt

Terminals, or Hampton Corners Mine Rights.

F. Defendants Cargill and Akzo shall appoint a person or persons to

oversee the assets to be held separate and who will be responsible for

each defendant's compliance with Section VI of the Final Judgment.

VII. Notification

Within two (2) business days following execution of a binding

agreement to divest, including all contemplated ancillary agreements

(e.g., financing), to effect any proposed divestiture pursuant to

Section IV or V of the Final Judgment, Cargill or Akzo or the trustee,

whichever is then responsible for effecting the divestiture, shall

notify plaintiffs of the proposed divestiture. If the trustee is

responsible for effecting the divestiture, it shall similarly notify

Cargill and Akzo. The notice shall set forth the details of the

proposed transaction and list the name, address, and telephone number

of each person not previously identified who offered to, or expressed

an interest in or a desire to, acquire any ownership interest in the

Relevant Evaporated Salt Assets, together with full details of same.

Within fifteen (15) calendar days of receipt by plaintiffs of such

notice, plaintiffs may request from defendants, the proposed acquirer

or acquirers, any other third party, or the trustee, if applicable,

additional information concerning the proposed divestiture, the

proposed acquirer, and any other potential acquirer. Defendants and the

trustee shall furnish any additional

[[Page 26564]]

information requested within fifteen (15) calendar days of the receipt

of the request. Within thirty (30) calendar days after receipt of the

notice or within twenty (20) calendar days after plaintiffs have been

provided the additional information, whichever is later, plaintiffs

United States, New York and Pennsylvania shall provide written notice

to defendants and the trustee, if there is one, stating whether or not

they object to the proposed divestiture. If plaintiffs United States,

New York and Pennsylvania fail to object within the period specified,

or if they provide written notice to defendants and the trustee, if

there is one, that they do not object, then the divestiture may be

consummated, subject only to a defendant's limited right to object to

the sale under Section V(B) of this Final Judgment. A divestiture

proposed under Section IV (A), (C) or (D) shall not be consummated if

plaintiffs United States, New York or Pennsylvania object to it. A

divestiture proposed under Section IV(B) shall not be consummated if

plaintiff United States objects to it. Upon objection by the United

States, or by Cargill or Akzo under the proviso in Section V(B), a

divestiture proposed under Section V shall not be consummated unless

approved by the Court.

VIII. Financing

Defendants are ordered and directed not to finance all or any part

of any purchase by an acquirer made pursuant to Sections IV or V of

this Final Judgment without the prior written consent of plaintiffs

United States, New York and Pennsylvania.

IX. Affidavits

A. Within twenty (20) calendar days of the filing of this Final

Judgment and every thirty (30) calendar days thereafter until the

divestiture has been completed, whether pursuant to Section IV or

Section V of this Final Judgment, defendants shall deliver to

plaintiffs an affidavit as to the fact and manner of defendants'

compliance with Section IV or V of this Final Judgment. Each such

affidavit shall include, inter alia, the name, address and telephone

number of each person who, at any time after the period covered by the

last such report, was contacted by defendants, or their

representatives, made an offer to acquire, expressed an interest in

acquiring, entered into negotiations to acquire, or made an inquiry

about acquiring, any interest in the Relevant Assets, and shall

describe in detail each contact with any such person during that

period. Each such affidavit shall also include a description of the

efforts that defendants have taken to solicit a buyer for the Relevant

Assets.

B. Within twenty (20) calendar days of the filing of this Final

Judgment Cargill shall deliver to the United States an affidavit which

describes in reasonable detail all actions defendants have taken and

all steps defendants have implemented on an on-going basis to preserve

the Relevant Assets pursuant to Section VI of this Final Judgment.

Cargill shall deliver to plaintiffs an affidavit describing any changes

to the efforts and actions outlined in their earlier affidavit(s) filed

pursuant to the Section within fifteen (15) calendar days after such

change is implemented.

C. Cargill and Akzo shall preserve all records of all efforts made

to preserve and to divest the Relevant Assets.

X. Compliance Inspection

For the purpose of determining or securing compliance with the

Final Judgment and subject to any legally recognized privilege, from

time to time:

A. Duly authorized representatives of plaintiff United States,

including consultants and other persons retained by the United States,

shall, upon written request of the United States Attorney General, or

of the Assistant Attorney General in charge of the Antitrust Division,

and on reasonable notice to defendants or American made to their

principal offices, be permitted:

(1) Access during office hours of defendants to inspect and copy

all books, ledgers, accounts, correspondence, memoranda and other

records and documents in the possession or under the control of

defendants, who may have counsel present, relating to any matters

contained in the Final Judgment; and

(2) Subject to the reasonable convenience of defendants, and

without restraint or interference from defendants, to interview

directors, officers, employees and agents of defendants, who may have

counsel present, regarding any such matters.

B. Upon the written request of the United States Attorney General,

or of the Assistant Attorney General in charge of the Antitrust

Division, made to defendants' principal offices, defendants shall

submit such written reports, under oath if requested, with respect to

any of the matters contained in this Final Judgment as may be

requested.

C. No information or documents obtained by the means provided in

Section IX or this Section X shall be divulged by any representative of

the United States to any person other than a duly authorized

representative of the Executive Branch of the United States, except in

the course of legal proceedings to which the United States is a party

(including grand jury proceedings), or for the purpose of securing

compliance with this Final Judgment, or as otherwise required by law.

D. If at the time information or documents are furnished by a

defendant to plaintiffs, and such defendant represents and identifies

in writing the material in any such information or documents to which a

claim of protection may be asserted under Rule 26(c)(7) of the Federal

Rules of Civil Procedure, and such defendant marks each pertinent page

of such material, ``Subject to claim of protection under Rule 26(c)(7)

of the Federal Rules of Civil Procedure,'' then ten (10) calendar days'

notice shall be given by plaintiffs to such defendant prior to

divulging such material in any legal proceeding (other than a grand

jury proceeding) to which such defendant is not a party.

XI. Retention of Jurisdiction

Jurisdiction is retained by this Court at any time for such further

orders and directions as may be necessary or appropriate for the

construction, implementation or modification of any provisions of this

Final Judgment, for the enforcement of compliance herewith, and for the

punishment of any violation hereof.

XII. Termination

Unless this Court grants an extension, this Final Judgment will

expire upon the tenth anniversary of the date of its entry.

XIII. Public Interest

Entry of this Final Judgment is in the public interest.

Dated: ______, 1997.

United States District Judge.

United States District Court Western District of New York Rochester

Division

United States of America, State of New York, Commonwealth of

Pennsylvania and State of Ohio, Plaintiffs, v. Cargill, Inc., Akzo

Nobel, N.V., Akzo Nobel, Inc., and Akzo Nobel Salt, Inc.,

Defendants. Civil No. 97-CV-06161 L.

Revised Competitive Impact Statement

The United States, pursuant to Section 2(b) of the Antitrust

Procedures and Penalties Act (``APPA''), 15 U.S.C. Sec. 16(b)-(h),

files this Competitive Impact Statement relating to the proposed Final

Judgment submitted for entry in this civil antitrust proceeding.

I. Nature and Purpose of the Proceeding

On April 21, 1997, the United States, the states of New York and

Ohio, and

[[Page 26565]]

the Commonwealth of Pennsylvania filed a civil antitrust complaint,

which alleges that Cargill Inc.'s acquisition of the Western Hemisphere

salt assets of Akzo Nobel, N.V. (``Akzo'') would violate Section 7 of

the Clayton Act, 15 U.S.C. Sec. 18. Cargill and Akzo are two of only

four competitors engaged in the production and sale of rock salt for

bulk deicing purposes (``rock deicing salt'') in the Northeast Interior

Market, an area of the United States centered around the eastern

portion of Lake Erie, and which comprises the western portions of

Pennsylvania and Massachusetts, upstate New York, eastern Ohio, all of

Vermont, and major cities such as Buffalo and Rochester, New York,

Erie, Pennsylvania, and Burlington, Vermont. Cargill and Akzo are also

the second and third largest firms engaged in the production and sale

of food grade evaporated salt in that part of the United States east of

the Rocky Mountains.

The Complaint alleges that a combination of Cargill and Akzo would

substantially lessen competition in the production and sale of rock

deicing salt and food grade evaporated salt in two relevant geographic

markets. The prayer for relief in the Complaint seeks: (1) A judgment

that the proposed acquisition would violate Section 7 of the Clayton

Act; and (2) permanent injunctions that would prevent Cargill from

acquiring control of Akzo's bulk deicing and food grade evaporated salt

business, or otherwise combining them with its own business in the

United States.

At the same time the suit was filed, the United States, the states

of New York and Ohio, and the Commonwealth of Pennsylvania also filed a

proposed settlement that would permit Cargill to complete its

acquisition of Akzo's Western Hemisphere salt operations, but require

it to divest certain bulk deicing and evaporated salt assets in such a

way as to preserve competition in these markets. This settlement

consists of a Stipulation and Order and a proposed Final Judgment. Both

impose obligations on American Rock Salt Company LLC (``American''), a

third party that voluntarily submitted to the jurisdiction of the Court

for purposes of ensuring effective relief in the rock deicing salt

market.

The proposed Final Judgment orders Cargill to divest Akzo's Watkins

Glen, New York evaporated salt plant and certain tangible and

intangible assets that relate to that plant. It also orders Cargill and

Akzo to divest a number of bulk deicing salt assets to American, a

prospective new entrant in the sale of bulk deicing salt in the

Northeast Interior Market. The deicing salt assets to be sold by Akzo

to American include options to develop a new rock salt mine site in

Hampton Corners, New York.\1\ The deicing salt assets to be sold by

Cargill to American include a mammoth 872,000 ton stockpile of bulk

deicing salt located in Retsof, New York; a three-year contract (with

an optional fourth year) for the supply of rock deicing salt to be sold

at $10 a ton; and a number of terminals throughout the Northeast that

have been used by Akzo for storage and transshipment of deicing salt.

With these assets, American can immediately begin competing in the sale

of rock deicing salt, while constructing its own rock salt mine in

Hampton Corners, New York, now scheduled to begin full scale operations

in 1999.

---------------------------------------------------------------------------

\1\ The final agreement reached between Cargill and Akzo did not

include the sale of the Hampton Corners rights to Cargill; thus,

Akzo is responsible for divesting these rights.

---------------------------------------------------------------------------

Cargill must complete its divestiture of the Watkins Glen

evaporated salt plant and related assets within 150 days, or five days

after entry of the Final Judgment, whichever is later. Cargill must

complete its divestiture of the supply contract and salt terminals to

American within thirty (30) days and must contract to sell the Retsof

Stockpile within one hundred and twenty (120) days after filing of the

Complaint. Akzo's sale of the Hampton Corners rights to American must

be consummated no later than September 1, 1998.

The Stipulation and Order and proposed Final Judgment require

Cargill and Akzo to ensure that, until the divestitures mandated by the

proposed Final Judgment are accomplished, Akzo's Watkins Glen

evaporated salt plant and related assets will be maintained and

operated as a saleable and economically viable, ongoing concern, with

competitively-sensitive business information and decision-making

divorced from Cargill's own salt business. Cargill and Akzo will each

appoint a person or persons to monitor and ensure their compliance with

these requirements of the proposed Final Judgment.

The parties have stipulated that the proposed Final Judgment may be

entered after compliance with the APPA. Entry of the proposed Final

Judgment would terminate this action, except that the Court would

retain jurisdiction to construe, modify, or enforce the provisions of

the proposed Final Judgment and to punish violations thereof.

II. Description of the Events Giving Rise to the Violations Alleged in

the Complaint

A. The Defendants and the Proposed Transaction

Cargill is a large, privately-held concern that, inter alia, mines,

produces and sells bulk deicing and food grade evaporated salt

throughout the United States. Cargill owns and operates a rock salt

mine in South Lansing, New York that produces bulk deicing salt sold

throughout the Northeast. Cargill also operates evaporated salt plants

in Beaux Bridge, Louisiana; Hutchinson, Kansas; and Watkins Glen, New

York that compete in the production and sale of food grade evaporated

salt in states east of the Rocky Mountains. In 1996, Cargill's total

sales of all types of salt exceeded $250 million.

Akzo also mines, produces and sells bulk deicing and food grade

evaporated salt throughout the United States. Akzo owns rock salt mines

in Cleveland, Ohio and on Avery Island, Louisiana. It also operated a

rock salt mine in Retsof, New York, until the mine flooded and was

closed in 1995. Before the mine closed, however, Akzo salvaged as much

rock salt as it could, creating a huge stockpile of salt on the Retsof

site, from which Akzo continued to sell rock salt deicing salt to

customers in the Northeast Interior Market. Akzo had plans to increase

production out of its Cleveland mine and ship significantly greater

quantities of rock deicing salt from there into the Northeast Interior

Market, directly in competition against Cargill's South Lansing, New

York mine.

Akzo owns and runs evaporated salt plants in St. Clair, Michigan;

Akron, Ohio; and Watkins Glen, New York, that directly compete against

Cargill in the sale of food grade evaporated salt in the area of the

country east of the Rocky Mountains. In 1996, Akzo had total sales of

all kinds of salt of about $370 million.

In August 1996, Cargill agreed to acquire the Western Hemisphere

salt operations of Akzo for about $160 million. This transaction, which

would combine the nation's second and third largest salt producers in

already highly concentrated markets for salt, precipitated the

governments' antitrust suit.

B. The Effects of the Transaction on Competition in the Sale of Bulk

Rock Deicing Salt in the Northeast Interior Market

Bulk deicing salt is a medium or coarse grade of rock or solar salt

purchased primarily by state and municipal government agencies for use

[[Page 26566]]

in deicing roads and sidewalks. Because of its unique combination of

highly desirable features--low cost, general availability and superior

ice and snow melting capabilities--there are no good substitutes for

bulk deicing salt.

Either rock or solar salt may be used for bulk deicing purposes. As

a practical matter, however, in the Northeast Interior Market, only

rock salt can be economically used for bulk deicing purposes. Sources

of solar salt are too far away from the Northeast Interior Market to be

effective competitive factors, and solar salt itself, because of its

high moisture content, will not perform well in the low winter

temperatures prevalent in the Northeast. For these reasons, for bulk

deicing purposes, solar salt is not a good substitute for rock salt in

the Northeast Interior Market.

The Complaint alleges that, for purposes of antitrust analysis, the

production and sale of rock salt for bulk deicing purposes constitutes

a line of commerce, or relevant product market, and that the Northeast

Interior Market, because of its distance and relative isolation from

other areas, constitutes a section of the country, or relevant

geographic market.

Only four firms produce and sell rock deicing salt in the Northeast

Interior Market--Cargill, Akzo, Morton, and North American Salt

(``NAMSCO'')--and each bids on contracts to supply state and municipal

governments with this critical winter safety product. Entry is time-

consuming and difficult. Absent the acquisition, and despite the

closure of Akzo's Retsof mine, Akzo and Cargill would have actively bid

against each other for customers in the relevant market. The evidence

developed in this investigation indicates that the combination of

Cargill and Akzo likely would result in an increase in the amount of

the price of winning bids for state salt contracts, to the detriment of

consumers, even if the three remaining bidders do not actively collude

or cooperatively interact.

While the proposed acquisition was pending, Akzo contracted to sell

its rights to develop the Hampton Corners salt mine site to American, a

prospective new entrant. The opening of a new mine by American, or any

other new firm, would eliminate any anticompetitive effect in the

Northeast Interior Market from Cargill's acquisition of Akzo. An

analysis of this ``fix'', however, must recognize that American has not

yet closed on its purchase of the mine development rights, and even

when it does, it will not complete its development of the Hampton

Corners mine until at least 1999. Until the mine is completed and

opened, the effect of Cargill's acquisition of Akzo's huge Retsof

Stockpile, Cleveland, Ohio rock salt mine, and Northeast rock salt

terminals may be to substantially lessen competition in the production

and sale of bulk deicing salt in the Northeast Interior Market.

C. The Effects of the Transaction on Competition in the Market for the

Production and Sale of Food Grade Evaporated Salt East of the Rocky

Mountains

Food grade evaporated salt, unlike rock or solar salt, is a highly

refined product (at least 99.7% purity) that contains few contaminants

such as bacteria, silica or dirt and meets high purity standards

established by the Food and Drug Administration for salt intended for

human consumption. One of the purest forms of salt available, food

grade evaporated salt is primarily used by food makers as a spice to

help preserve, or to enhance the flavor of, a very wide variety of

baked, packaged, canned and frozen foods and snacks, everything from

apple pie to canned zucchini.

Because of its high purity, food makers strongly prefer to use food

grade evaporated salt and they will pay a significant premium for that

salt before switching to any other products. There is not good

substitute for food grade evaporated salt.

The Complaint alleges that, for antitrust purposes, the manufacture

and sale of food grade evaporated salt constitutes a line of commerce,

or relevant product market, and that the area east of the Rocky

Mountains constitutes a section of the country, or relevant geographics

market. The Complaint alleges that in this market, the effect of

Cargill's acquisition of Akzo may be to lessen competition

substantially in the manufacture and sale of food grade evaporated

salt.

There are three major producers of food grade evaporated salt in

the East of the Rocky Mountains Market: Cargill, Akzo and Morton.

NAMSCO and United, which also produce food grade evaporated salt, do

not have significant shares of the East of the Rocky Mountain Market.

IMC Global, a new entrant into the production of evaporated salt, has

not opened its plant, much less made significant sales of food grade

salt. Moreover, it would take any new entrant, including IMC, years to

build a reputation for consistent production of high purity salt, a

critical requirement for successfully marketing this product to the

nation's food processors.

In this highly concentrated market, a combination of Cargill and

Akzo, the Complaint alleges, would likely lead to an increase in prices

for food grade evaporated salt east of the Rocky Mountains, a $200

million market. Cargill's acquisition of Akzo is likely to diminish

competition by enabling the remaining competitors to engage more

easily, frequently, and effectively in coordinating pricing interaction

that harms customers. With the elimination of Akzo, market incumbents

will no longer compete for business as aggressively since they will not

have to worry about losing business to Akzo.

III. Explanation of the Proposed Final Judgment

The proposed Final Judgment would preserve competition in the sale

of bulk deicing salt in the Northeast Interior Market and in the sale

of food grade evaporated salt in the East of the Rockies Market. The

Judgment requires that within one hundred fifty (150) days after the

Complaint in this action is filed (or five days after it receives

notice that the Judgment has been entered), Cargill must divest Akzo's

Watkins Glen, New York evaporated salt plant and related assets to a

acquirer acceptable to the United States. The Watkins Glen, New York

plant has sufficient production capacity for food grade evaporated salt

and, due to the high margins for food grade evaporated salt, the

incentive to increase output and discipline any attempt to increase

prices by Cargill and Morton, the major players in food grade

evaporated salt. A Watkins Glen plant not owned by the current major

food grade evaporated salt competitors would alleviate the

anticompetitive concerns raised by Cargill's acquisition of Akzo's St.

Clair, Michigan and Akron, Ohio plants. To ensure that the plant

remains independent and viable before sold, the Judgment mandates that

Cargill keep operations, pricing, and marketing for that plant separate

from those of its other operations.

To preserve competition in the sale of rock salt for bulk deicing

purposes in the Northeast Interior Market, the Judgment affirmatively

requires that Akzo divest the Hampton Corners mine rights to American,

or if American, or if American fails to secure financing and defaults,

that it divest to an acquirer willing to compete by building a new mine

at the Hampton Corners mine site. To preserve market competition in the

interim period preceding the construction of a new mine by American or

any other firm, the Judgment requires that Cargill must divest to

American the Retsof, New York rock salt stockpile; a three-year

[[Page 26567]]

contract (with an optional fourth year) for the supply of bulk deicing

salt, at $10 a ton, from Cargill's South Lansing, New York and Akzo's

Cleveland, Ohio rock salt mines; and a number of terminals or depots

currently used by Akzo to store or transship bulk deicing salt to

customers. If American defaults on its contract to purchase the Retsof

Stockpile, Cargill must divest the Retsof Stockpile.

In the event that American defaulters on the Hampton Corners mine

rights purchase, or on its Retsof Stockpile purchase, the divestiture

of these assets must be made to an acquirer acceptable to the Unites

States, New York and Pennsylvania, in their sole discretion.

Until the ordered divestitures take place, defendants must take all

reasonable steps necessary to accomplish the divestitures, and

cooperate with any prospective acquirer. If defendants do not

accomplish the ordered divestitures within the specified time periods,

the proposed Judgment provides procedures by which the Court shall

appoint a trustee to complete the divestitures. The defendants must

cooperate fully with the trustee.

If a trustee is appointed, the proposed Final Judgment provides

that party initially responsible for making the divestiture will pay

all costs and expenses of the trustee. The trustee's compensation will

be structured so as to provide an incentive for the trustee to obtain

the highest price then available for the assets to be divested, and to

accomplish the divestiture as quickly as possible.

After the effective date of his or her appointment, the trustee

shall serve under such other conditions as the Court may prescribe.

After his or her appointment becomes effective, the trustee will file

monthly reports with the parties and the Court, setting forth the

trustee's efforts to accomplish the divestiture. At the end of six (6)

months, if the mandated divestiture has not been accomplished, the

trustee shall file promptly with the Court a report that sets forth the

trustee's efforts to accomplish the divestiture, explain why the

divestiture has not been accomplished, and make any recommendations.

The trustee's report will be furnished to the parties and shall be

filed in the public docket, except to the extent the report contains

information the trustee deems confidential. To each affected party will

have the right to make additional recommendations to the Court. The

Court shall enter such orders as it deems appropriate to carry out the

purpose of the trust.

The relief sought in the various markets alleged in the Complaint

has been tailored to ensure that purchasers of food grade evaporated

salt and bulk deicing salt will not experience anticompetitive prices

or other contract terms as a consequence of the proposed acquisition.

IV. Remedies Available to Potential Private Litigants

Section 4 of the Clayton Act (15 U.S.C. Sec. 15) provides that any

person who has been injured as a result of conduct prohibited by the

antitrust laws may bring suit in federal court to recover three times

the damages the person has suffered, as well as costs and reasonable

attorney's fees. Entry of the proposed Final Judgment neither will

impair nor assist the bringing of any private antitrust damage action.

Under the provision of Section 5(a) of the Clayton Act (15 U.S.C.

Sec. 16(a)), the proposed Final Judgment has no prima facie effectg in

any subsequent private lawsuit that may be brought against Cargill and

Akzo.

V. Procedures Available for Modification of the Proposed Final Judgment

The parties have stipulated that the proposed Final Judgment may be

entered by the Court after compliance with the provisions of the APPA,

provided that the United States has not withdrawn its consent. The APPA

conditions the entry of the decree on the Court's determination that

the proposed Final Judgment is in the public interest.

The APPA provides a period of at least sixty (60) days preceding

the effective date of the proposed Final Judgment within which any

person may submit to the United States written comments regarding the

proposed Final Judgment. Any person should comment within sixty (60)

days of the date of publication of this Competitive Impact Statement in

the Federal Register. The United States will evaluate and respond to

the comments. All comments will be given due consideration by the

Department of Justice, which remains free to withdraw its consent to

the proposed Final Judgment at any time prior to entry. The comments

and the response of the United States will be filed with the Court and

published in the Federal Register.

Written comments should be submitted to: J. Robert Kramer II,

Chief, Litigation II Section, Antitrust Division, United States

Department of Justice, 1401 H Street, NW., Suite 3000, Washington, D.C.

20530.

The proposed Final Judgment provides that the Court retains

jurisdiction over this action, and the parties may apply to the Court

for any order necessary or appropriate for the modification

interpretation, or enforcement of the Final Judgment.

VI. Alternatives to the Proposed Final Judgment

The United States considered, as an alternative to the proposed

Final Judgment, a full trial on the merits of its Complaint against the

defendants. The United States is satisfied, however, that the

divestiture of the assets and other relief contained in the proposed

Final Judgment will preserve viable competition in the manufacture and

sale of food grade evaporated salt and bulk deicing salt in the

relevant geographic markets that otherwise would be affected adversely

by the acquisition. Thus, the proposed Final Judgment would achieve the

relief the federal and state governments would have obtained through

litigation, but avoids the time, expense and uncertainty a full trial

on the merits of the governments' Complaint.

VII. Standard of Review Under the AAPA for Proposed Final Judgment

The APPA requires that proposed consent judgments in antitrust

cases brought by the United States be subject to a sixty (60) day

comment period, after which the court shall determine whether entry of

the proposed Final Judgment ``is in the public interest.'' In making

that determination, the court may consider--

(1) the competitive impact of such judgment, including

termination of alleged violations, provisions for enforcement and

modification, duration or relief sought, anticipated effects of

alternative remedies actually considered, and any other

considerations bearing upon the adequacy of such judgment;

(2) the impact of entry of such judgment upon the public

generally and individuals alleging specific injury from the

violations set forth in the complaint including consideration of the

public benefit, it any, to be derived from a determination of the

issues at trial.

15 U.S.C. Sec. 16 (e) (emphasis added). As the Court of Appeals for the

District of Columbia Circuit recently held, the APPA permits a court to

consider, among other things, the relationship between the remedy

secured and the specific allegations set forth in the government's

complaint, whether the decree is sufficiently clear, whether

enforcement mechanisms are sufficient, and whether the decree may

positively harm third parties. See United States v. Microsoft, 56 F.3d

1448 (D.C. Cir 1995).

[[Page 26568]]

In conducting this inquiry, ``the Court is nowhere compelled to go

to trial or to engage in extended proceedings which might have the

effect of vitiating the benefits of prompt and less costly settlement

through the consent decree process.'' 119 Cong. Rec. 24598 (1973).

Rather,

absent a showing of corrupt failure of the government to discharge

its duty, the Court, in making its public interest finding, should *

* * carefully consider the explanations of the government in the

competitive impact statement and its response to comments in order

to determine whether those explanations are reasonable under the

circumstances.

United States v. Mid-America Dairymen, Inc., 1977-1 Trade Cas. (CCH)

para.61,508, at 71,980 (W.D. Mo. 1977).

Accordingly, with respect to the adequacy of the relief secured by

the decree, a court may not ``engage in an unrestricted evaluation of

what relief would best serve the public.'' United States v. BNS, Inc.,

858 F.2d 456, 462 (9th Cir. 1988), quoting United States v. Bechtel

Corp., 648 F.2d 660, 666 (9th Cir.) cert. denied, 454 U.S. 1083 (1981);

see also Microsoft, 56 F.3d 1448 (D.C. Cir. 1995). Precedent requires

that:

the balancing of competing social and political interests affected

by a proposed antitrust consent decree must be left, in the first

instance, to the discretion of the Attorney General. The court's

role in protecting the public interest is one of insuring that the

government has not breached its duty to the public in consenting to

the decree. The court is required to determine not whether a

particular decree is the one that will best serve society, but

whether the settlement is ``within the reaches of the public

interest.'' More elaborate requirements might undermine the

effectiveness of antitrust enforcement by consent decree. United

States v. Bechtel, 648 F.2d 660, 666 (9th Cir. 1981) (emphasis

added)

the proposed Final Judgment, therefore, should not be reviewed

under a standard of whether it is certain to eliminate every

anticompetivite effect of a particular practice or whether it mandates

certainty of free competition in the future. Court approval of a final

judgment requires a standard more flexible and less strict than the

standard required for a finding of liability. ``[A] proposed decree

must be approved even if it falls short of the remedy the court would

impose on its own, as long as it falls within the range acceptability

or is `within the reaches of public interest.' '' (citations omitted).

United States v. American Tel. and Tel. Co., 552 F. Supp. 131, 150

(D.D.C. 1982), (aff'd sub nom., Maryland v. United States, 460 U.S.

1001 (1983).

VIII. Determinative Documents

There are no determinative materials or documents within the

meaning of the APPA that were considered by the United States in

formulating the proposed Final Judgment.

Dated: May 2, 1997.

Respectfully submitted,

Anthony Harris,

Attorney, Department of Justice, Antitrust Division.

Certificate of Service

I, Anthony E. Harris, hereby certify that on May 2, 1997, I caused

copies of the foregoing Revised Competitive Impact Statement to be

served on plaintiffs states of New York and Ohio and Commonwealth of

Pennsylvania, and on defendants Cargill Inc., Akzo Nobel, N.V., Akzo

Nobel, Inc., and Akzo Nobel Salt Inc., and on American Rock Salt

Company, LLC, by mailing the pleading first-class, postage prepaid, to

those parties as follows:

John A. Ioannou, Assistant Attorney General, Antitrust Bureau, Attorney

General's Office, 120 Broadway, Suite 26-01, New York, New York 10271

Counsel for State of New York

Deneice Covert Zeve, Deputy Attorney General, Antitrust Section, Office

of the Attorney General, 14th Floor, Strawberry Square, Harrisburg, PA

17120

Counsel for Commonwealth of Pennsylvania

Mitchell Gentile, Assistant Attorney General, Ohio Attorney General's

Office, 30 East Broad Street, 16th Floor, Columbus, OH 43215

Counsel for State of Ohio

Marc G. Schildkraut, Esquire, Howrey & Simon, 1299 Pennsylvania Avenue,

NW., Washington, DC 20004-2402

Counsel for Cargill Inc.

John W. Behan, Assistant General Counsel, Akzo Nobel Inc., 7

Livingstone Avenue, Dobbs Ferry, NY 10522-2222

Counsel for Akzo Nobel, N.V., Akzo Nobel Inc. and Akzo Nobel Salt Inc.

Gunther K. Buerman, Esquire, Harris, Beach & Wilcox, 130 E. Main

Street, Rochester, NY 14604

Counsel for American Rock Salt Company, LLC

Anthony E. Harris, Esquire,

Trial Attorney.

[FR Doc. 97-12568 Filed 5-13-97; 8:45 am]

BILLING CODE 4410-11-M