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| UNITED STATES DISTRICT COURT |
FOR THE DISTRICT OF COLUMBIA
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, thatI. DEFINITIONS
As used in this Hold Separate Stipulation and Order:
A. "Acquirer" means the entity to whom defendants divest the Divestiture Assets or to whom the trustee divests the Alternative Divestiture Assets.
B. "Sapa" means defendant Sapa Holding AB, a subsidiary of Orkla ASA, headquartered in Stockholm, Sweden, its successors and assigns, and its parents, subsidiaries, divisions, groups, affiliates, partnerships and joint ventures, and their directors, officers, managers, agents, and employees.
C. "Indalex" means defendant Indalex Holdings Finance, Inc., headquartered in Lincolnshire, Illinois, its successors and assigns, and its subsidiaries, divisions, groups, affiliates, partnerships and joint ventures, and their directors, officers, managers, agents, and employees.
D. "Divestiture Assets" means:
E. "Alternative Divestiture Assets" means Indalex's Burlington facility including:
The Final Judgment filed in this case is meant to ensure defendants' prompt divestiture of the Divestiture Assets, or the divestiture by a trustee of the Alternative Divestiture Assets, for the purpose of establishing a viable competitor in the business of the manufacture and sale of coiled extruded aluminum tubing used in the formation of high frequency communications cables in order to remedy the effects that the United States alleges would otherwise result from Sapa's acquisition of Indalex. This Hold Separate Stipulation and Order ensures, prior to such divestiture, that the Divestiture Assets and the Alternative Divestiture Assets remain independent, economically viable, and ongoing business concerns that will remain independent and uninfluenced by Sapa, and that competition is maintained during the pendency of the ordered divestiture.
III. JURISDICTION AND VENUE
The Court has jurisdiction over the subject matter of this action and over each of the parties hereto, and venue of this action is proper in the United States District Court for the District of Columbia.
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 divestiture required by the Final Judgment has been accomplished:
A. Defendants shall preserve, maintain, and continue to operate the Divestiture Assets and the Alternative Divestiture Assets as independent, ongoing, economically viable competitive businesses, with management, sales and operations of such assets held entirely separate, distinct and apart from those of Sapa's other operations. Sapa shall not coordinate its production, marketing, or terms of sale of any products with those produced by or sold by the Divestiture Assets or the Alternative Divestiture Assets. Within twenty (20) days after the entry of the Hold Separate Stipulation and Order, defendants will inform the United States of the steps defendants have taken to comply with this Hold Separate Stipulation and Order.
B. Sapa shall take all steps necessary to ensure that (1) the Divestiture Assets and the Alternative Divestiture Assets will be maintained and operated as independent, ongoing, economically viable and active competitors in the manufacture and sale of coiled extruded aluminum tubing used in the formation of high frequency communications cables; (2) management of the Divestiture Assets and the Alternative Divestiture Assets will not be influenced by Sapa; and (3) the books, records, competitively sensitive sales, marketing and pricing information, and decision-making concerning production, distribution or sales of products by or under any of the Divestiture Assets or the Alternative Divestiture Assets will be kept separate and apart from Sapa's other operations.
C. Defendants shall use all reasonable efforts to maintain and increase the sales and revenues of the products produced by or sold by the Divestiture Assets and the Alternative Divestiture Assets, and shall maintain at 2009 levels or previously approved levels for 2010, whichever are higher, all promotional, advertising, sales, technical assistance, marketing and merchandising support for the Divestiture Assets and the Alternative Divestiture Assets.
D. Sapa shall provide sufficient working capital and lines and sources of credit to continue to maintain the Divestiture Assets and the Alternative Divestiture Assets as economically viable and competitive, ongoing businesses, consistent with the requirements of Sections V(A) and (B).
E. Sapa shall take all steps necessary to ensure that the Divestiture Assets and the Alternative Divestiture Assets are fully maintained in operable condition at no less than its current capacity and sales, and shall maintain and adhere to normal repair and maintenance schedules for the Divestiture Assets and the Alternative Divestiture 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 of the Divestiture Assets or the Alternative Divestiture Assets.
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 the Divestiture Assets and the Alternative Divestiture Assets.
H. Defendants shall take no action that would jeopardize, delay, or impede the sale of the Divestiture Assets or the Alternative Divestiture Assets.
I. Defendants' employees with primary responsibility for the operation of the Divestiture Assets and the Alternative Divestiture Assets shall not be transferred or reassigned to other areas within the company except for transfer bids initiated by employees pursuant to defendants' regular, established job posting policy. Defendants shall provide the United States with ten (10) calendar days notice of such transfer.
J. Defendants shall appoint persons to oversee the Divestiture Assets and the Alternative Divestiture Assets, and who will be responsible for defendants' compliance with this section. These persons shall have complete managerial responsibility for the Divestiture Assets and the Alternative Divestiture Assets, subject to the provisions of this Final Judgment. In the event such persons are unable to perform their 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 divestiture of the Alternative Divestiture Assets pursuant to the Final Judgment to a Acquirer acceptable to the United States.IV. DURATION OF HOLD SEPARATE AND ASSET PRESERVATION OBLIGATIONS
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.
Dated: July 30, 2009
IT IS SO ORDERED by the Court, this _30th_ day of _July 2009__ .