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UNITED STATES DISTRICT COURT
HOLD SEPARATE STIPULATION AND ORDER
It is hereby stipulated and agreed by and between the undersigned parties, subject to approval and entry by the Court, that:
As used in this Hold Separate Stipulation and Order:
A. "AEG" means Anschutz Entertainment Group, Inc., a company with its headquarters in Los Angeles, California, its successors and assigns, and its subsidiaries, divisions, groups, affiliates, partnerships, and joint ventures, and their directors, officers, managers, agents, and employees.
B. "Acquirer" or "Acquirers" means the entity or entities to whom Defendants divest Paciolan.
C. "Defendants" means either defendant acting individually or both defendants acting collectively, as appropriate. Where the Final Judgment imposes an obligation to engage in or refrain from engaging in certain conduct, that obligation shall apply as broadly as reasonable to each defendant individually, both defendants acting together, and the merged firm.
D. "Live Nation" means defendant Live Nation, Inc., a Delaware corporation with its headquarters in Beverly Hills, California, its successors and assigns, and its subsidiaries (whether partially or wholly owned), divisions, groups, affiliates, partnerships, and joint ventures, and their directors, officers, managers, agents, and employees.
E. "Paciolan" means Paciolan, Inc., a Delaware corporation which is engaged in the provision of ticketing services to venues or other organizations under the Paciolan or Ticketmaster Irvine names, and which includes:
F. "Ticketmaster" means defendant Ticketmaster Entertainment, Inc., a Delaware corporation with its headquarters in West Hollywood, California, its successors and assigns, and its subsidiaries (whether partially or wholly owned), divisions, groups, affiliates, partnerships, and joint ventures, and their directors, officers, managers, agents, and employees.
G. "Ticketmaster Host Platform" means the primary Ticketmaster software used by Ticketmaster to sell primary tickets in the United States. The Ticketmaster Host Platform includes the following software: Ticketmaster Classic Ticketing System (also called Ticketmaster Host); Ticketmaster.com full website package; Access Management; payment processing and settlements; and PCI point of sale system (for phone and outlets).
H. "Ticketmaster Host Platform Acquirer" means AEG, the entity with whom defendants will enter into a binding agreement to license the Ticketmaster Host Platform.II. OBJECTIVES
The Final Judgment filed in this case is meant to impose certain conduct restrictions on Defendants and to ensure that Defendants: (1) enter into a binding agreement to license the Ticketmaster Host Platform and to provide private label ticketing services to the Ticketmaster Host Platform Acquirer and (2) divest Paciolan to establish one or more viable competitors in the provision of primary ticketing services in order to remedy the effects that the United States and the States of Arizona, Arkansas, California, Florida, Illinois, Iowa, Louisiana, Nebraska, Nevada, Ohio, Oregon, Rhode Island, Tennessee, Texas, and Wisconsin, and the Commonwealths of Massachusetts and Pennsylvania ("Plaintiff States") allege would otherwise result from the merger of Ticketmaster and Live Nation. This Hold Separate Stipulation and Order ensures Defendants will abide by the terms of the Ticketmaster Host agreement, which will be entered into prior to consummation of the merger, and that Paciolan, prior to its divestiture, will be kept independent, economically viable, and an ongoing business concern that is independent and uninfluenced by Defendants, and that competition is maintained during the pendency of the ordered divestiture.
III. JURISDICTION AND VENUE
This Court has jurisdiction over the subject matter of and each of the parties to this action. The Complaint states a claim upon which relief may be granted against Defendants under Section 7 of the Clayton Act, as amended (15 U.S.C. § 18).
IV. COMPLIANCE WITH AND ENTRY OF FINAL JUDGMENT
A. The parties stipulate that a Final Judgment in the form attached hereto as Exhibit A may be filed with 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. § 16), and without further notice to any party or other proceedings, provided that the United States has not withdrawn its consent, which it may do at any time before the entry of the proposed Final Judgment by serving notice thereof on Defendants and by filing that notice with the Court.
B. Defendants shall abide by 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.
C. Defendants shall not consummate the transaction sought to be enjoined by the Complaint herein before the Court has signed this Hold Separate Stipulation and Order.
D. 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.
E. In the event (1) the United States has withdrawn its consent, as provided in Section IV(A) above, or (2) 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 Stipulation shall be without prejudice to any party in this or any other proceeding.
F. Defendants represent that the divestitures ordered in the proposed Final Judgment can and will be made, and that Defendants will later raise no claim of mistake, hardship or difficulty of compliance as grounds for asking the Court to modify any of the provisions contained therein.V. HOLD SEPARATE PROVISIONS
Until the divestitures required by the Final Judgment have been accomplished:
A. Defendants shall preserve, maintain, and operate Paciolan as an independent, ongoing, economically viable competitive business, with management, sales and operations of its assets held entirely separate, distinct and apart from those of Defendants' other operations. Defendants shall not coordinate its production, marketing, or terms of sale of any products or services with those produced by or sold by Paciolan. Within twenty (20) days after the entry of the Hold Separate Stipulation and Order, Defendants will inform the United States and Plaintiff States of the steps Defendants have taken to comply with this Hold Separate Stipulation and Order.
B. Defendants shall take all steps necessary to ensure that (1) Paciolan will be maintained and operated as an independent, ongoing, economically viable and active competitor in the provision of primary ticketing service; (2) management of Paciolan will not be influenced by Defendants; and (3) the books, records, competitively sensitive sales, marketing and pricing information, and decision-making concerning production, distribution or sales of products or services by Paciolan will be kept separate and apart from Defendants' other operations.
C. Defendants shall use all reasonable efforts to maintain and increase the sales and revenues of the products or services produced by or sold by Paciolan, and shall maintain at 2009 or previously approved levels for 2010, whichever are higher, all promotional, advertising, sales, technical assistance, marketing and merchandising support for Paciolan.
D. Defendants shall provide sufficient working capital and lines and sources of credit to continue to maintain Paciolan as an economically viable and competitive, ongoing business, consistent with the requirements of Sections V (A) and (B).
E. Defendants shall take all steps necessary to ensure that Paciolan is fully maintained in operable condition at no less than its current capacity, quality and sales, and shall maintain and adhere to normal repair and maintenance schedules for all of Paciolan's tangible assets.
F. Defendants shall not, except as part of a divestiture approved by the United States in accordance with the terms of the proposed Final Judgment, remove, sell, lease, assign, transfer, pledge or otherwise dispose of any assets of Paciolan.
G. Defendants shall maintain, in accordance with sound accounting principles, separate, accurate and complete financial ledgers, books and records that report on a periodic basis, such as the last business day of every month, consistent with past practices, the assets, liabilities, expenses, revenues and income of Paciolan.
H. Defendants shall take no action that would jeopardize, delay, or impede the sale of Paciolan.
I. Defendants' shall not transfer or reassign any employee that primarily sells Paciolan products or services or provides services on behalf of or to Paciolan to other areas within Defendants' organization, except for transfer bids initiated by employees pursuant to Defendants' regular, established job posting policy. Defendant shall provide the United States with ten (10) calendar days notice of such transfer.
J. Defendants shall appoint a person or persons to oversee Paciolan, who shall be subject to the approval of the United States, and who will be responsible for Defendants' compliance with this section. This person shall have complete managerial responsibility for Paciolan, subject to the provisions of this Final Judgment. In the event such person is unable to perform his duties, Defendants shall appoint, subject to the approval of the United States, a replacement within ten (10) working days. Should Defendants fail to appoint a replacement acceptable to the United States within this time period, the United States shall appoint a replacement.
K. Defendants shall take no action that would interfere with the ability of any trustee appointed pursuant to the Final Judgment to complete the divestitures pursuant to the Final Judgment to a Acquirer or Acquirers acceptable to the United States.
VI. DURATION OF HOLD SEPARATE AND
Defendants' obligations under Section V of this Hold Separate Stipulation and Order shall remain in effect until (1) consummation of the divestitures required by the proposed Final Judgment or (2) until further order of the Court. If the United States voluntarily dismisses the Complaint in this matter, Defendants are released from all further obligations under this Hold Separate Stipulation and Order.
FOR PLAINTIFF STATE OF ARIZONA
FOR PLAINTIFF STATE OF ARKANSAS
FOR PLAINTIFF STATE OF CALIFORNIA
EDMUND G. BROWN JR., Attorney General
FOR PLAINTIFF STATE OF FLORIDA
FOR PLAINTIFF STATE OF ILLINOIS
FOR PLAINTIFF STATE OF IOWA
FOR PLAINTIFF STATE OF LOUISIANA
JAMES D. "BUDDY" CALDWELL
FOR PLAINTIFF COMMONWEALTH OF MASSACHUSETTS
FOR PLAINTIFF STATE OF NEBRASKA
FOR PLAINTIFF STATE OF NEVADA
CATHERINE CORTEZ MASTO
FOR PLAINTIFF STATE OF OHIO
FOR PLAINTIFF STATE OF OREGON
JOHN R. KROGER
FOR PLAINTIFF COMMONWEALTH OF PENNSYLVANIA
STATE OF RHODE ISLAND
By Its Attorney
FOR PLAINTIFF STATE OF TENNESSEE
FOR PLAINTIFF STATE OF TEXAS
FOR PLAINTIFF STATE OF WISCONSIN
J.B. VAN HOLLEN
IT IS SO ORDERED by the Court, this ___ day of .