UNITED STATES OF AMERICA v. UNITED TECHNOLOGIES CORPORATION et al

Filing 41

FINAL JUDGMENT. Signed by Judge Ketanji Brown Jackson on 5/29/2013. (lckbj3)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
UNITED STATES OF AMERICA
Plaintiff
v.

CASE NO.: 1:12-CV-01230-KBJ

UNITED TECHNOLOGIES CORPORATION
and
GOODRICH CORPORATION
Defendants

FINAL JUDGMENT
WHEREAS, Plaintiff, United States of America, filed its Complaint on July 26,
2012, the United States and Defendants United Technologies Corporation (“UTC”) and
Goodrich Corporation (“Goodrich”), by their respective attorneys, have consented to the
entry of this Final Judgment without trial or adjudication of any issue of fact or law, and
without this Final Judgment constituting any evidence against or admission by any party
regarding any issue of fact or law;
AND WHEREAS, Defendants agree to be bound by the provisions of this Final
Judgment pending its approval by the Court;
AND WHEREAS, the essence of this Final Judgment is the prompt and certain
divestiture of certain rights and assets by Defendants to assure that competition is not
substantially lessened;

AND WHEREAS, the United States requires Defendants to make certain
divestitures and make certain commitments for the purpose of remedying the loss of
competition alleged in the Complaint;
AND WHEREAS, Defendants have represented to the United States that the
divestitures required below can and will be made and that Defendants will later raise no
claim of hardship or difficulty as grounds for asking the Court to modify any of the
divestiture provisions contained below;
NOW THEREFORE, before any testimony is taken, without trial or adjudication
of any issue of fact or law, and upon consent of the parties, it is ORDERED,
ADJUDGED, AND DECREED:
I.

JURISDICTION
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).
II.

DEFINITIONS
As used in this Final Judgment:
A.

“Acquirer” or “Acquirers” means the entity or entities to which

Defendants divest the Divestiture Assets.
B.

“Acquirer of the Electrical Power Divestiture Assets” means the entity to

which Defendants divest the Electrical Power Divestiture Assets.
C.

“Acquirer of the Engine Control Divestiture Assets” means the entity to

which Defendants divest the Engine Control Divestiture Assets.

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D.

“Acquirer of the AEC Shares” means Rolls-Royce or another entity to

which Defendants divest the AEC Shares.
E.

“Acquirer of the Aerolec Shares” means Thales or another entity to which

Defendants divest the Aerolec Shares.
F.

“UTC” means Defendant United Technologies Corporation, a Delaware

corporation with its headquarters in Hartford, Connecticut, its successors, assigns,
subsidiaries, divisions, groups, affiliates, and partnerships, and their directors, officers,
managers, agents, and employees.
G.

“Goodrich” means Defendant Goodrich Corporation, a New York

corporation with its headquarters in Charlotte, North Carolina, its successors, assigns,
subsidiaries, divisions, groups, affiliates, and partnerships, and their directors, officers,
managers, agents, and employees.
H.

“Rolls-Royce” means Rolls-Royce Group plc, a company incorporated in

England and Wales with a registered office in London, its successors, assigns,
subsidiaries, divisions, groups, affiliates, and partnerships, and their directors, officers,
managers, agents, and employees.
I.

“Thales” means Thales Avionics Electrical Systems SA, a company

incorporated in France with a registered office in Neuilly-Sur-Seine, France, its
successors, assigns, subsidiaries, divisions, groups, affiliates, and partnerships, and their
directors, officers, managers, agents, and employees.
J.

“West Hartford Facility” means Goodrich’s facility located at Charter Oak

Boulevard, West Hartford, Connecticut 06133.

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K.

“Montreal Facility” means Goodrich’s facility located at 5595

Royalmount Avenue, Montreal H4P 1J9 QU, Canada, which will be transitioned to the
West Hartford Facility.
L.

“Engine Control Products” means all Goodrich products and services that

are designed, developed, manufactured, marketed, serviced, distributed, repaired, and/or
sold out of or using the assets located in the West Hartford Facility and/or the Montreal
Facility on the date the Complaint is filed in this matter, including but not limited to
electronic engine controls, fuel metering units, main fuel pumps, and ancillary engine
control products (including but not limited to, engine actuators, ejector pumps and tanks,
hot oil valves, shut-off valves, flow dividers, start flow control valves, lube pumps, and
lube and scavenge pumps). Engine Control Products exclude maintenance, repair, and
overhaul services currently performed at the Montreal Facility for the following: (1)
products designed specifically to be used on the Rolls-Royce Tay and Spey engines; (2)
products designed specifically to be used on the General Electric F404 engine; (3)
products designed specifically to be used on the Pratt & Whitney PW305 engine; and (4)
the servo actuator and yaw damper product lines.
M.

“Engine Control Divestiture Assets” means:
(1)

The West Hartford Facility and all tangible and intangible assets

used by or located in the West Hartford Facility;
(2)

All tangible and intangible assets used by or located in the Montreal

Facility that are used to design, develop, manufacture, market, service, distribute, repair,
and/or sell Engine Control Products;

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(3)

All tangible assets, wherever located, that are used to design,

develop, and/or manufacture Engine Control Products, including, but not limited to,
assets relating to research and development activities, manufacturing equipment, tooling,
fixed assets, personal property, inventory, office furniture, materials, supplies, licenses,
permits, authorizations issued by any governmental organization, contracts, teaming
arrangements, agreements, leases, commitments, certifications, supply agreements,
understandings, customer lists, contracts, accounts, credit records, information
technology systems, and repair, performance, and other records; and
(4)

All intangible assets, wherever located, that are used to design,

develop, and/or manufacture Engine Control Products, including, but not limited to,
contractual rights, patents, licenses, sublicenses, intellectual property, copyrights,
trademarks, trade names, service marks, service names, technical information, computer
software and related documentation, know-how, trade secrets, drawings, blueprints,
designs, design protocols, specifications for materials, specifications for parts and
devices, safety procedures, quality assurance and control procedures, design tools,
simulation capability, manuals and technical information provided to Goodrich
employees, customers, suppliers, agents, or licensees, and research data concerning
historic and current research and development efforts, including, but not limited to,
designs of experiments and results of successful and unsuccessful designs and
experiments;
(5)

for intellectual property that is used exclusively for Engine Control

Products that is owned and/or controlled by Goodrich, but for which Goodrich’s

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ownership or control is in any way encumbered, an exclusive, irrevocable, royalty-free
license for that intellectual property; and
(6)

for intellectual property that is used primarily, but not exclusively,

for Engine Control Products that is owned and/or controlled by Goodrich, but for which
Goodrich’s ownership or control is in any way encumbered, a non-exclusive, irrevocable,
royalty-free license for that intellectual property.
N.

“Qualifying Customer Contracts” means any contract or agreement: (1)

having an initial duration of longer than two years; (2) for the supply of any Engine
Control Products to turbine engine manufacturers; (3) to which the business comprising
the Engine Control Divestiture Assets is a party; (4) that are unexpired on the date the
Complaint is filed in this matter; (5) the term of which will expire prior to the date of the
consummation of the divestiture of the Engine Control Divestiture Assets; and (6) which
have not been renegotiated prior to such consummation.
O.

“Twinsburg Facility” means Goodrich’s facility located at 8380 Darrow

Road, Twinsburg, Ohio 44087.
P.

“Pitstone Facility” means Goodrich’s facility located at Pitstone Business

Park, Westfield Road, Pitstone, Buckinghamshire LU7 9GT, United Kingdom.
Q.

“Electrical Power Divestiture Assets” means:
(1)

The Twinsburg Facility;

(2)

The Pitstone Facility, provided, however, that the assets used

exclusively for the motor drive business located at the Pitstone Facility shall not be
divested pursuant to this Final Judgment;

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(3)

All tangible assets that are used to design, develop, manufacture,

market, service, distribute, repair, and/or sell aircraft electrical generation systems and
electrical distribution systems that currently are or have been designed, developed,
manufactured, marketed, serviced, distributed, repaired, and/or sold by Goodrich Engine
Control and Electrical Power Systems, including, but not limited to, assets relating to
research and development activities, manufacturing equipment, tooling, fixed assets,
personal property, inventory, office furniture, materials, supplies, licenses, permits,
authorizations issued by any governmental organization, contracts, teaming
arrangements, agreements, leases, commitments, certifications, supply agreements,
understandings, customer lists, contracts, accounts, credit records, information
technology systems, and repair, performance, and other records;
(4)

All intangible assets that are used to design, develop, manufacture,

market, service, distribute, repair and/or sell aircraft electrical generation systems and
electrical distribution systems that currently are or have been designed, developed,
manufactured, marketed, serviced, distributed, repaired, and/or sold by Goodrich Engine
Control and Electrical Power Systems, including, but not limited to, contractual rights,
patents, licenses, sublicenses, intellectual property, copyrights, trademarks, trade names,
service marks, service names, technical information, computer software and related
documentation, know-how, trade secrets, drawings, blueprints, designs, design protocols,
specifications for materials, specifications for parts and devices, safety procedures,
quality assurance and control procedures, design tools, simulation capability, manuals
and technical information provided to Goodrich employees, customers, suppliers, agents,
or licensees, and research data concerning historic and current research and development

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efforts, including, but not limited to, design of experiments and results of successful and
unsuccessful designs and experiments;
(5)

all intellectual property and know-how that is owned by Goodrich

pursuant to the Intellectual Property Agreement between TRW Limited and Thales dated
June 27, 2001; and
(6)

Goodrich’s obligations to BAE Systems pursuant to the Norwegian

Sting Ray Mod 1 Torpedo System Programme Procurement Specification and Sub
Contract for the Power Supply (5000) Section and Motor Control (6000) Section
296401001/01-02 Issue 1, dated April 30, 2009 and all assets necessary to fulfill those
obligations.
The Electrical Power Divestiture Assets exclude assets in or personnel operating out of
Goodrich’s development center located in Bengaluru, India and Goodrich’s MRO
Campuses.
R.

“Goodrich’s MRO Campuses” means all Goodrich facilities, except the

Twinsburg Facility and the Pitstone Facility, from which customer support for
Goodrich’s aircraft electrical generation systems and electrical distribution systems
products is provided.
S.

“Aerolec Shareholders Agreement” means the Shareholders’ Agreement

dated May 31, 2001, between TRW France Holding SAS, TRW Limited, and Thales.
T.

“Aerolec Shares” means all shares of TRW-Thales Aerolec SAS that are

owned and/or controlled by Goodrich, TRW France Holding SAS, and/or TRW Limited
that were acquired pursuant to the Aerolec Shareholders Agreement.

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U.

“Change of Control Option” means Thales’s option to acquire the Aerolec

Shares pursuant to section 7.2(H) of the Aerolec Shareholders Agreement.
V.

“Transfer Option” means Thales’s option to acquire the Aerolec Shares

pursuant to section 7.2(E) of the Aerolec Shareholders Agreement.
W.

“AEC Joint Venture Agreement” means the Joint Venture Agreement

dated December 31, 2008, between Rolls-Royce Engine Controls Holdings Limited,
Rolls-Royce Group plc, Goodrich Controls Holding Limited, Goodrich Actuation
Systems Limited, Goodrich Corporation, and Rolls-Royce Goodrich Engine Control
Systems Limited.
X.

“AEC” means the joint venture established pursuant to the AEC Joint

Venture Agreement.
Y.

“AEC Shares” means all the shares in AEC that are owned and/or

controlled by Goodrich.
Z.

“Goodrich Aftermarket Business” means the worldwide aftermarket

business conducted by Goodrich prior to the date Goodrich is acquired by UTC
involving the maintenance, repair, and overhaul of units, equipment, and parts (including
hardware and software) that are designed, assembled, manufactured, supported, or
procured by AEC, the provision of training and documentation and support equipment,
and the sale and supply of spare parts and initial provisioning for engine control systems
for Rolls-Royce engines.
AA.

“Divestiture Assets” means the Electrical Power Divestiture Assets,

Aerolec Shares, Engine Control Divestiture Assets, and AEC Shares.

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III.

APPLICABILITY
A.

This Final Judgment applies to UTC and Goodrich, as defined above, and

all other persons in active concert or participation with any of them who receive actual
notice of this Final Judgment by personal service or otherwise.
B.

If, prior to complying with Section IV, Section V, and Section VI of this

Final Judgment, Defendants sell or otherwise dispose of all or substantially all of their
assets or of lesser business units that include the Divestiture Assets, Defendants shall
require the purchaser(s) to be bound by the provisions of this Final Judgment. Defendants
need not obtain such an agreement from the Acquirers of the assets divested pursuant to
this Final Judgment.
IV.

DIVESTITURE OF THE ENGINE CONTROL DIVESTITURE ASSETS
A.

Defendants are ordered and directed, within one hundred and eighty

calendar days after the filing of the Complaint in this matter, or five calendar days after
notice of the entry of this Final Judgment by the Court, whichever is later, to divest the
Engine Control Divestiture Assets in a manner consistent with this Final Judgment to an
Acquirer acceptable to the United States, in its sole discretion. The United States, in its
sole discretion, may agree to one or more extensions of this period, not to exceed sixty
calendar days in total, and shall notify the Court in such circumstances. If, however,
applications seeking approval to sell the Engine Control Divestiture Assets have been
filed within the period permitted for the divestiture of the Engine Control Divestiture
Assets with authorities from which approval for the divestiture of the Engine Control
Divestiture Assets is required by the Acquirer of the Engine Control Divestiture Assets as
a condition of closing, but orders or other dispositive actions by such authorities on such

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applications have not been issued before the end of the period permitted for this
divestiture, the period shall be extended with respect to the divestiture of the Engine
Control Divestiture Assets until ten calendar days after such approvals are received.
Defendants agree to use their best efforts to accomplish the divestiture of the Engine
Control Divestiture Assets and to seek all necessary approvals as expeditiously as
possible.
B.

In accomplishing the divestitures ordered by this Final Judgment,

Defendants promptly shall make known, by usual and customary means, the availability
of the Engine Control Divestiture Assets. Defendants shall inform any person making
inquiry regarding a possible purchase of any of the Engine Control Divestiture Assets
that they are being divested pursuant to this Final Judgment and provide that person with
a copy of this Final Judgment. Defendants shall offer to furnish to all prospective
Acquirers, subject to customary confidentiality assurances, all information and
documents relating to the Engine Control Divestiture Assets customarily provided in a
due diligence process except such information or documents subject to the attorney-client
privilege or work-product doctrine. Defendants shall make available such information to
the United States at the same time that such information is made available to any other
person.
C.

Defendants shall provide the Acquirer of the Engine Control Divestiture

Assets and the United States information relating to the personnel involved in the design,
development, manufacture, marketing, servicing, distribution, repair, and/or sale of
Engine Control Products to enable the Acquirer of the Engine Control Divestiture Assets
to make offers of employment. Defendants shall not interfere with any negotiations by

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the Acquirer of the Engine Control Divestiture Assets to employ any Goodrich employee
who is responsible for the design, development, manufacture, marketing, servicing,
distribution, repair, and/or sale of Engine Control Products. Interference with respect to
this paragraph includes, but is not limited to, enforcement of non-compete clauses and
offers to increase salary or other benefits apart from those offered company-wide.
D.

Defendants shall permit prospective Acquirers of the Engine Control

Divestiture Assets to have reasonable access to personnel and to make inspections of the
physical facilities to be divested; access to any and all environmental, zoning, and other
permit documents and information; and access to any and all financial, operational, or
other documents and information customarily provided as part of a due diligence process.
E.

Defendants shall warrant to the Acquirer of the Engine Control Divestiture

Assets that each asset included in the Engine Control Divestiture Assets will be
operational on the date of sale.
F.

Defendants shall not take any action that will impede in any way the

permitting, operation, or divestiture of the Engine Control Divestiture Assets.
G.

Defendants shall warrant to the Acquirer of the Engine Control Divestiture

Assets that there are no material defects in the environmental, zoning, or other permits
pertaining to the operation of the Engine Control Divestiture Assets, and that following
the sale of the Engine Control Divestiture Assets, Defendants will not undertake, directly
or indirectly, any challenges to the environmental, zoning, or other permits relating to the
operation of any of the Engine Control Divestiture Assets.
H.

At the option of the Acquirer of the Engine Control Divestiture Assets,

UTC shall enter into a transition services agreement with the Acquirer of the Engine

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Control Divestiture Assets. This agreement shall include technical and engineering
assistance and maintenance, repair, and overhaul services relating to Engine Control
Products. The terms and conditions of any contractual arrangement meant to satisfy this
provision must be commercially reasonable. The terms and conditions of any such
transition services agreement shall be subject to the approval of the United States, in its
sole discretion. The duration of this transition services agreement shall not be longer
than one year. The United States, in its sole discretion, may approve an extension of the
term of this transition services agreement for a period of up to one year. If the Acquirer
of the Engine Control Divestiture Assets seeks an extension of the term of this transition
services agreement, it shall so notify the United States in writing at least four months
prior to the date the transition services agreement expires. The United States shall
respond to any such request for extension in writing at least three months prior to the date
the transition services agreement expires.
I.

At the option of the Acquirer of the Engine Control Divestiture Assets,

UTC shall enter into a supply agreement to supply components used in or necessary for
the design, development, manufacture, marketing, servicing, distribution, repair, and/or
sale of the Engine Control Products sufficient to meet the needs identified by the
Acquirer of the Engine Control Divestiture Assets. The terms and conditions of any
contractual arrangement intended to satisfy this provision must be reasonably related to
market conditions for these products. The terms and conditions of any such supply
agreement shall be subject to the approval of the United States, in its sole discretion. The
duration of this supply agreement shall not be longer than one year. The United States, in
its sole discretion, may approve an extension of the term of this supply agreement for a

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period of up to one year. If the Acquirer of the Engine Control Divestiture Assets seeks
an extension of the term of this supply agreement, it shall so notify the United States in
writing at least four months prior to the date the supply agreement expires. The United
States shall respond to any such request for extension in writing at least three months
prior to the date the supply agreement expires.
J.

At the option of the Acquirer of the Engine Control Divestiture Assets,

UTC shall enter into a supply agreement to supply parts and provide engineering
expertise sufficient to meet the needs identified by the Acquirer of the Engine Control
Divestiture Assets to enable that Acquirer to provide maintenance, repair, and overhaul
services for the following products: engine control unit and fuel pump metering unit for
the AE1107 engine; engine control unit and fuel pump metering unit for the AE3007
engine; engine control unit and fuel pump for the RB211 engine; engine control unit for
the BR710 engine; engine control unit for the PW305 engine; engine control unit for the
Tay engine; fuel metering unit for the Trent 700 engine; fuel metering unit for the Trent
800 engine; and fuel metering unit and actuator for the V2500 engine. The terms and
conditions of any contractual arrangement intended to satisfy this provision must be
reasonably related to market conditions for these products. The terms and conditions of
any such supply agreement shall be subject to the approval of the United States, in its
sole discretion. At the option of the Acquirer of the Engine Control Divestiture Assets,
this agreement may remain in effect so long as three or more of any aircraft equipped
with an engine listed in this paragraph are in service.
K.

At the option of the Acquirer of the Engine Control Divestiture Assets,

UTC shall enter into a supply agreement to supply pressure sensors and transducers for

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the Goodrich EMC51, EMC60, and EMC101 electronic engine controls, and any
derivatives of those electronic engine controls, sufficient to meet the needs identified by
the Acquirer of the Engine Control Divestiture Assets. The terms and conditions of any
contractual arrangement intended to satisfy this provision must be reasonably related to
market conditions for these products. The terms and conditions of any such supply
agreement shall be subject to the approval of the United States, in its sole discretion. At
the option of the Acquirer of the Engine Control Divestiture Assets, this agreement may
remain in effect so long as five or more aircraft equipped with an electronic engine
control listed in this paragraph are in service. In the alternative, at the option of the
Acquirer of the Engine Control Divestiture Assets, UTC shall provide the Acquirer of the
Engine Control Divestiture Assets a non-exclusive, irrevocable, royalty-free license
solely to manufacture the pressure sensors and transducers necessary to fulfill the
contractual obligations of the Acquirer of the Engine Control Divestiture Assets relating
to the Goodrich EMC51, EMC60, and EMC101 electronic engine controls that exist on
the date the Engine Control Divestiture Assets are divested. The Acquirer shall not
transfer such license except as part of a sale of the Engine Control Divestiture Assets.
L.

At the option of UTC, the Acquirer of the Engine Control Divestiture

Assets shall enter into a supply agreement for parts sufficient to meet the needs identified
by UTC to enable UTC to provide maintenance, repair, and overhaul services for the fuel
control system for the LF507 engine; the fuel control system and the power turbine
governor for the T53 engine; the fuel pump for the LTS101 engine; and the fuel pump for
the PW100 engine. The terms and conditions of any contractual arrangement intended to
satisfy this provision must be reasonably related to market conditions for these products.

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The terms and conditions of any such supply agreement shall be subject to the approval
of the United States, in its sole discretion. At the option of UTC, this agreement may
remain in effect so long as five or more aircraft equipped with an engine listed in this
paragraph are in service.
M.

At the option of UTC, the Acquirer of the Engine Control Divestiture

Assets shall provide UTC with a non-exclusive license for intellectual property that is
included in the Engine Control Divestiture Assets but used for both Engine Control
Products and other Goodrich products not being divested pursuant to this Final Judgment.
UTC shall not transfer the license described in this paragraph except as part of a sale of
the business in which the license is used. UTC shall not use the license described in this
paragraph for engine control products, systems, and services. The terms and conditions
of any contractual arrangement intended to satisfy this provision must be reasonably
related to market conditions for these products. The terms and conditions of any such
license shall be subject to the approval of the United States, in its sole discretion.
N.

Defendants shall offer to extend, with the same pricing and other terms

and conditions, the Qualifying Customer Contracts for a period expiring thirty calendar
days after the date of the consummation of the divestiture of the Engine Control
Divestiture Assets.
O.

Unless the United States otherwise consents in writing, the divestiture of

the Engine Control Divestiture Assets pursuant to Section IV or by the Divestiture
Trustee appointed pursuant to Section VII of this Final Judgment shall be accomplished
in such a way as to satisfy the United States, in its sole discretion, that the Engine Control
Divestiture Assets can and will be used by the Acquirer of the Engine Control Divestiture

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Assets as part of a viable, ongoing business that is engaged in the design, development,
manufacture, marketing, servicing, distribution, repair, and sale of Engine Control
Products and that the divestiture of the Engine Control Divestiture Assets will remedy the
competitive harm alleged in the Complaint. The divestiture of the Engine Control
Divestiture Assets, whether pursuant to Section IV or Section VII of this Final Judgment,
shall be made to an Acquirer that, in the United States’s sole judgment, has the intent and
capability (including the necessary managerial, operational, technical and financial
capability) of competing effectively in the design, development, manufacture, marketing,
servicing, distribution, repair, and sale of Engine Control Products. The divestiture of the
Engine Control Divestiture Assets shall be accomplished so as to satisfy the United
States, in its sole discretion, that none of the terms of any agreement between the
Acquirer of the Engine Control Divestiture Assets and Defendants give Defendants the
ability unreasonably to raise the Acquirer’s costs, to lower the Acquirer’s efficiency, or
otherwise to interfere in the ability of the Acquirer to compete effectively.
V.

DIVESTITURE OF THE ELECTRICAL POWER DIVESTITURE ASSETS
AND AEROLEC SHARES
A.

Defendants are ordered and directed to divest the Electrical Power

Divestiture Assets in a manner consistent with this Final Judgment to an Acquirer
acceptable to the United States, in its sole discretion, no later than one hundred eighty
calendar days after the filing of the Complaint in this matter, or five calendar days after
notice of the entry of this Final Judgment by the Court, whichever is later. The United
States, in its sole discretion, may agree to one or more extensions of this time period, not
to exceed sixty calendar days in total, and shall notify the Court in such circumstances.
If, however, applications seeking approval to sell the Electrical Power Divestiture Assets
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have been filed within the period permitted for the divestiture of the Electrical Power
Divestiture Assets with authorities from which approval for the divestiture of the
Electrical Power Divestiture Assets is required by the Acquirer of the Electrical Power
Divestiture Assets as a condition of closing, but orders or other dispositive actions by
such authorities on such applications have not been issued before the end of the period
permitted for this divestiture, the period shall be extended with respect to the divestiture
of the Electrical Power Divestiture Assets until ten calendar days after such approvals are
received. Defendants agree to use their best efforts to accomplish the divestiture of the
Electrical Power Divestiture Assets and to seek all necessary approvals as expeditiously
as possible.
B.

Defendants shall remove from the Pitstone Facility prior to the

consummation of the divestiture of the Electrical Power Divestiture Assets all assets used
exclusively for the motor drive business.
C.

If Thales exercises the Change of Control Option, Defendants are ordered

and directed, within one hundred eighty calendar days after the filing of the Complaint in
this matter, or five calendar days after notice of the entry of this Final Judgment by the
Court, whichever is later, to divest the Aerolec Shares to Thales in a manner consistent
with this Final Judgment. The United States, in its sole discretion, may agree to one or
more extensions of this time period not to exceed sixty calendar days in total, and shall
notify the Court in such circumstances. Defendants agree to use their best efforts to
divest the Aerolec Shares as expeditiously as possible.
D.

If Thales does not exercise the Change of Control Option, but Thales does

exercise the Transfer Option, Defendants are ordered and directed to divest the Aerolec

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Shares to Thales in a manner consistent with this Final Judgment within thirty calendar
days after the date Thales notifies UTC that it will exercise the Transfer Option. The
United States, in its sole discretion, may agree to one or more extensions of this time
period not to exceed sixty calendar days in total, and shall notify the Court in such
circumstances. Defendants agree to divest the Aerolec Shares as expeditiously as
possible. If Thales does not exercise the Change of Control Option, Defendants further
agree to provide notice to Thales pursuant to paragraph 7.2(E) of the Aerolec
Shareholders Agreement no later than two business days after the sale of the Electrical
Power Divestiture Assets is consummated.
E.

If Thales does not exercise the Change of Control Option and does not

exercise the Transfer Option, Defendants are ordered and directed to divest the Aerolec
Shares in a manner consistent with this Final Judgment to an Acquirer acceptable to the
United States, in its sole discretion, within one hundred fifty calendar days after the
earlier of: (1) the date Thales notifies UTC that it will not exercise the Transfer Option;
or (2) the time period for Thales to exercise the Transfer Option expires. The United
States, in its sole discretion, may agree to one or more extensions of this time period not
to exceed sixty calendar days in total, and shall notify the Court in such circumstances.
If, however, applications seeking approval to sell the Aerolec Shares have been filed
within the period permitted for the divestiture of the Aerolec Shares with authorities from
which approval for the divestiture of the Aerolec Shares is required by the Acquirer of
the Aerolec Shares as a condition of closing, but orders or other dispositive actions by
such authorities on such applications have not been issued before the end of the period
permitted for this divestiture, the period shall be extended with respect to the divestiture

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of the Aerolec Shares until ten calendar days after such approvals are received.
Defendants agree to use their best efforts to accomplish the divestiture of the Aerolec
Shares and to seek all necessary approvals as expeditiously as possible.
F.

In accomplishing the divestitures ordered by this Final Judgment,

Defendants promptly shall make known, by usual and customary means, the availability
of the Electrical Power Divestiture Assets. Defendants shall inform any person making
inquiry regarding a possible purchase of any of the Electrical Power Divestiture Assets
that they are being divested pursuant to this Final Judgment and provide that person with
a copy of this Final Judgment. Defendants shall offer to furnish to all prospective
Acquirers, subject to customary confidentiality assurances, all information and
documents relating to the Electrical Power Divestiture Assets customarily provided in a
due diligence process except such information or documents subject to the attorney-client
privilege or work-product doctrine. Defendants shall make available such information to
the United States and any Monitoring Trustee at the same time that such information is
made available to any other person.
G.

Defendants shall provide the Acquirer of the Electrical Power Divestiture

Assets, the United States, and any Monitoring Trustee information relating to the
Goodrich personnel involved in the design, development, manufacture, marketing,
service, distribution, repair, and/or sale of aircraft electrical generation systems and
electrical distribution systems to enable the Acquirer of the Electrical Power Divestiture
Assets to make offers of employment. Defendants will not interfere with any
negotiations by the Acquirer of the Electrical Power Divestiture Assets to employ any
Goodrich employee who is responsible for the design, development, manufacture,

20

marketing, service, distribution, repair, and/or sale of aircraft electrical generation
systems and electrical distribution systems. Interference with respect to this paragraph
includes, but is not limited to, enforcement of non-compete clauses and offers to increase
salary or other benefits apart from those offered company-wide. However, interference
with respect to this paragraph shall not include acts by Defendants relating to employees
of the Pitstone Facility that are necessary to comply with the employment laws of the
United Kingdom.
H.

Defendants shall permit prospective Acquirers of the Electrical Power

Divestiture Assets to have reasonable access to personnel and to make inspections of the
physical facilities to be divested; access to any and all environmental, zoning, and other
permit documents and information; and access to any and all financial, operational, or
other documents and information customarily provided as part of a due diligence process.
I.

Defendants shall warrant to the Acquirer of the Electrical Power

Divestiture Assets that each asset included in the Electrical Power Divestiture Assets will
be operational on the date of sale.
J.

Defendants shall not take any action that will impede in any way the

permitting, operation, or divestiture of the Electrical Power Divestiture Assets.
K.

Defendants shall warrant to the Acquirer of the Electrical Power

Divestiture Assets that there are no material defects in the environmental, zoning, or
other permits pertaining to the operation of each asset included in the Electrical Power
Divestiture Assets, and that following the sale of the Electrical Power Divestiture Assets,
Defendants will not undertake, directly or indirectly, any challenges to the environmental,

21

zoning, or other permits relating to the operation of any of the Electrical Power
Divestiture Assets.
L.

At the option of the Acquirer of the Electrical Power Divestiture Assets,

UTC shall enter into a transition services agreement with the Acquirer of the Electrical
Power Divestiture Assets. This agreement shall include technical and engineering
assistance and maintenance, repair, and overhaul services relating to aircraft electrical
generation systems and electrical distribution systems. The terms and conditions of any
contractual arrangement meant to satisfy this provision must be commercially reasonable.
The terms and conditions of any such transitional services agreement shall be subject to
the approval of the United States, in its sole discretion. The duration of this transition
services agreement shall not be longer than one year. The United States, in its sole
discretion, may approve an extension of the term of this transition services agreement for
a period of up to one year. If the Acquirer of the Electrical Power Divestiture Assets
seeks an extension of the term of this transition services agreement, it shall so notify the
United States in writing at least four months prior to the date the transition services
agreement expires. The United States shall respond to any such request for extension in
writing at least three months prior to the date the transition services agreement expires.
M.

At the option of the Acquirer of the Electrical Power Divestiture Assets,

UTC shall enter into a supply agreement to supply components used in or necessary for
the design, development, manufacture, marketing, servicing, distribution, repair, and/or
sale of aircraft electrical generation systems and electrical distribution systems sufficient
to meet the needs identified by the Acquirer of the Electrical Power Divestiture Assets.
The terms and conditions of any contractual arrangement intended to satisfy this

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provision must be reasonably related to market conditions for these products. The terms
and conditions of any such supply agreement shall be subject to the approval of the
United States, in its sole discretion. The duration of this supply agreement shall not be
longer than one year. The United States, in its sole discretion, may approve an extension
of the term of this supply agreement for a period of up to one year. If the Acquirer of the
Electrical Power Divestiture Assets seeks an extension of the term of this supply
agreement, it shall so notify the United States in writing at least four months prior to the
date the supply agreement expires. If the United States approves such an extension, it
shall so notify the Acquirer of the Engine Control Divestiture Assets in writing at least
three months prior to the date the supply agreement expires.
N.

At the option of the Acquirer of the Electrical Power Divestiture Assets,

UTC shall enter into a supply agreement to supply machined parts, including machined
housings for AC generators and accessory gearboxes for the SAAB Gripen (JAS 39),
sufficient to meet the needs identified by the Acquirer of the Electrical Power Divestiture
Assets. The terms and conditions of any contractual arrangement intended to satisfy this
provision must be reasonably related to market conditions for these products. The terms
and conditions of any such supply agreement shall be subject to the approval of the
United States, in its sole discretion. At the option of the Acquirer of the Electrical Power
Divestiture Assets, the portion of this supply agreement relating to the accessory
gearboxes may remain in effect so long as any SAAB Gripen (JAS 39) is in service. The
portion of this supply agreement relating to the machined housings for the AC generators
and any other products covered shall not be longer than one year. The United States, in
its sole discretion, may approve an extension of the term of the portion of this supply

23

agreement relating the machined housings for the AC generators and any other products
covered to for a period of up to one year. If the Acquirer of the Electrical Power
Divestiture Assets seeks an extension of the term of this supply agreement, it shall so
notify the United States in writing at least four months prior to the date the supply
agreement expires. If the United States approves such an extension, it shall so notify the
Acquirer of the Electrical Power Divestiture Assets in writing at least three months prior
to the date the supply agreement expires. In the alternative, at the option of the Acquirer
of the Electrical Power Divestiture Assets, UTC shall provide the Acquirer of the
Electrical Power Divestiture Assets the manufacturing know-how sufficient to enable the
Acquirer of the Electrical Power Divestiture Assets to manufacture the machined parts
necessary to fulfill the contractual obligations of the Acquirer of the Electrical Power
Divestiture Assets that exist on the date the Electrical Power Divestiture Assets are
divested.
O.

At the option of the Acquirer of the Electrical Power Divestiture Assets,

UTC shall enter into an agreement to supply maintenance services for the Tornado
aircraft secondary power system equipment sufficient to meet the needs identified by the
Acquirer of the Electrical Power Divestiture Assets. The terms and conditions of any
contractual arrangement intended to satisfy this provision must be reasonably related to
market conditions for these products. The terms and conditions of any such supply
agreement shall be subject to the approval of the United States, in its sole discretion. At
the option of the Acquirer of the Electrical Power Divestiture Assets, this supply
agreement may remain in effect until December 31, 2013.

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P.

At the option of UTC, the Acquirer of the Electrical Power Divestiture

Assets shall enter into an agreement to supply maintenance, repair, and overhaul services
to UTC to enable UTC to provide and support the engine starter motor on the RollsRoyce Gnome turboshaft engine. The terms and conditions of any contractual
arrangement intended to satisfy this provision must be reasonably related to market
conditions for these products. The terms and conditions of any such supply agreement
shall be subject to the approval of the United States, in its sole discretion. At the option
of UTC, this agreement may remain in effect so long as five or more aircraft equipped
with a Rolls-Royce Gnome turboshaft engine are in service.
Q.

At the option of UTC, the Acquirer of the Electrical Power Divestiture

Assets shall provide UTC with a non-exclusive license for intellectual property that is
included in the Electrical Power Divestiture Assets but also is used for both aircraft
electrical generation systems and electrical distribution systems and other Goodrich
products not being divested pursuant to this Final Judgment. UTC shall not transfer the
license described in this paragraph except as part of a sale of the business in which the
license is used. UTC shall not use the license described in this paragraph for aircraft
electrical generation systems and electrical distribution systems. The terms and
conditions of any contractual arrangement intended to satisfy this provision must be
reasonably related to market conditions for these products. The terms and conditions of
any such license shall be subject to the approval of the United States, in its sole
discretion.
R.

Unless the United States otherwise consents in writing, the divestiture of

the Electrical Power Divestiture Assets pursuant to Section V or by the Divestiture

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Trustee appointed pursuant to Section VII of this Final Judgment shall be accomplished
in such a way as to satisfy the United States, in its sole discretion, that the Electrical
Power Divestiture Assets can and will be used by the Acquirer of the Electrical Power
Divestiture Assets as part of a viable, ongoing business that is engaged in the design,
development, manufacture, marketing, servicing, distribution, repair, and sale of aircraft
electrical generation systems and that the divestiture of the Electrical Power Divestiture
Assets will remedy the competitive harm alleged in the Complaint. The divestiture of the
Electrical Power Divestiture Assets, whether pursuant to Section V or Section VII of this
Final Judgment, shall be made to an Acquirer that, in the United States’s sole judgment,
has the intent and capability (including the necessary managerial, operational, technical
and financial capability) of competing effectively in the design, development,
manufacture, marketing, servicing, distribution, repair, and sale of aircraft electrical
generation systems. The divestiture of the Electrical Power Divestiture Assets shall be
accomplished so as to satisfy the United States, in its sole discretion, that none of the
terms of any agreement between the Acquirer of the Electrical Power Divestiture Assets
and Defendants give Defendants the ability unreasonably to raise the Acquirer’s costs, to
lower the Acquirer’s efficiency, or otherwise to interfere in the ability of the Acquirer to
compete effectively.
S.

Unless Thales acquires the Aerolec Shares pursuant to the Aerolec

Shareholders Agreement, the Electrical Power Divestiture Assets and the Aerolec Shares
must be divested to the same Acquirer.

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VI.

DIVESTITURE OF THE AEC SHARES
AND OBLIGATIONS RELATING TO AEC
A.

Defendants are ordered and directed, within one hundred eighty calendar

days after the filing of the Complaint in this matter, or five calendar days after notice of
the entry of this Final Judgment by the Court, whichever is later, to divest the AEC
Shares in a manner consistent with this Final Judgment to Rolls-Royce. If, however,
applications seeking approval to assign or transfer the AEC Shares to Rolls-Royce have
been filed within the period permitted for the divestiture of the AEC Shares to RollsRoyce with authorities from which approval for the divestiture of the AEC Shares is
required by Rolls-Royce as a condition of closing, but orders or other dispositive actions
by such authorities on such applications have not been issued before the end of the period
permitted for this divestiture, the period shall be extended with respect to the divestiture
of the AEC Shares to Rolls-Royce until ten calendar days after such approvals are
received. Defendants agree to use their best efforts to accomplish the divestiture of the
AEC Shares to Rolls-Royce and to seek all necessary approvals as expeditiously as
possible.
B.

In the event the AEC Shares are not divested to Rolls-Royce pursuant to

paragraph VI(A) of this Final Judgment, Defendants are ordered and directed, within one
hundred eighty calendar days after the date that Rolls-Royce waives its option to acquire
the AEC Shares pursuant to Clause 9 of the AEC Joint Venture Agreement, or that option
lapses or expires, to divest the AEC Shares in a manner consistent with this Final
Judgment to an Acquirer acceptable to the United States, in its sole discretion. The
United States, in its sole discretion, may agree to one or more extensions of this time
period not to exceed ninety calendar days in total, and shall notify the Court in such
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circumstances. Defendants agree to use their best efforts to divest the AEC Shares as
expeditiously as possible.
C.

Defendants shall offer to Rolls-Royce a new right for a new period in

which Rolls-Royce may purchase or acquire the “AM Package” as defined in the “Put
and Call Option Agreement relating to the Goodrich engine control systems aftermarket
business” dated December 31, 2008, between Rolls-Royce and Goodrich (“Put and Call
Option Agreement”) at the price determined using the formula set forth in clause (b) of
the definition of the “Call Option Price” in the Put and Call Option Agreement, until the
earlier of: (1) December 31, 2023; or (2) the date on which UTC no longer owns or
controls substantially all of the Goodrich Aftermarket Business (“Right to Purchase”).
Nothing in this Final Judgment shall be construed to: (1) affect any agreements between
UTC and/or Goodrich, on the one hand, and Rolls-Royce, on the other, relating to the
option to purchase or acquire the Goodrich Aftermarket Business; (2) impose any
obligation on UTC to provide Rolls-Royce any extended payments terms with respect to
the Right to Purchase; or (3) restrict in any way UTC’s ability to sell the Goodrich
Aftermarket Business (in whole or significant part) to a party other than Rolls-Royce. If
at any time during which Rolls-Royce may exercise its Right to Purchase, UTC
determines to commence a process to sell all or a significant part of the Goodrich
Aftermarket Business to a party other than Rolls-Royce, UTC shall first notify RollsRoyce of UTC’s determination and provide Rolls-Royce with no less than sixty days to
exercise its Right to Purchase. If Rolls-Royce does not exercise its Right to Purchase
during such sixty-day period, UTC may agree to and complete such a sale, and the Right
to Purchase will be suspended for a period of one year from the date the sixty-day period

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expires to allow the completion of such sale. If UTC ceases its efforts to sell the
Goodrich Aftermarket Business at any time during the one-year period when the Right to
Purchase is suspended, the Right to Purchase ceases to be suspended when UTC ceases
its efforts to sell the Goodrich Aftermarket Business. If such one-year period expires
without UTC having completed such a sale, then UTC may not again attempt to sell the
Goodrich Aftermarket Business to a party other than Rolls-Royce without first complying
with the procedures set forth in this paragraph.
D.

Unless the United States otherwise consents in writing, the divestiture of

the AEC Shares pursuant to Section VI or by the Divestiture Trustee appointed pursuant
to Section VII of this Final Judgment shall be accomplished in such a way as to satisfy
the United States, in its sole discretion, that the AEC Shares can and will be used by the
Acquirer of the AEC Shares to carry out the purpose of AEC in an ongoing and viable
manner and the divestiture of the AEC Shares will remedy the competitive harm alleged
in the Complaint. The divestiture of the AEC Shares, whether pursuant to Section VI or
Section VII of this Final Judgment, shall be made to an Acquirer that, in the United
States’s sole judgment, has the intent and capability (including the necessary managerial,
operational, technical and financial capability) of effectively carrying out the purpose of
AEC. The divestiture of the AEC Shares shall be accomplished so as to satisfy the
United States, in its sole discretion, that none of the terms of any agreement between the
Acquirer of the AEC Shares and Defendants give Defendants the ability unreasonably to
raise the Acquirer’s costs, to lower the Acquirer’s efficiency, or otherwise to interfere in
the ability of the Acquirer to compete effectively.

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VII.

APPOINTMENT OF DIVESTITURE TRUSTEE
A.

If Defendants have not divested all of the Divestiture Assets within any of

the respective time periods specified in Section IV(A), V(A), and VI(A), they shall notify
the United States of that fact in writing at the time the period for the relevant divestiture
expires and identify the assets that have not been divested. Upon application of the
United States, the Court shall appoint a Divestiture Trustee selected by the United States
and approved by the Court to effect the divestiture of any of the Divestiture Assets that
have not been sold during the time periods specified in Section IV(A), V(A), and VI(A).
B.

After the appointment of a Divestiture Trustee becomes effective, only the

Divestiture Trustee shall have the right to sell those Divestiture Assets that the
Divestiture Trustee has been appointed to sell. The Divestiture Trustee shall have the
power and authority to accomplish the divestiture to an Acquirer or Acquirers acceptable
to the United States at such price and on such terms as are then obtainable upon
reasonable effort by the Divestiture Trustee, subject to the provisions of Section IV,
Section V, Section VI, Section VII, and Section VIII of this Final Judgment, and shall
have such other powers as this Court deems appropriate. Subject to Section VII(D) of
this Final Judgment, the Divestiture Trustee may hire at the cost and expense of UTC any
investment bankers, attorneys, or other agents, who shall be solely accountable to the
Divestiture Trustee, reasonably necessary in the Divestiture Trustee’s judgment to assist
in any required divestiture.
C.

Defendants shall not object to a sale by the Divestiture Trustee on any

ground other than the Divestiture Trustee’s malfeasance. Any such objections by
Defendants must be conveyed in writing to the United States and the Divestiture Trustee

30

within ten calendar days after the Divestiture Trustee has provided the notice required
under Section VIII.
D.

The Divestiture Trustee shall serve at the cost and expense of UTC, on

such terms and conditions as the United States approves, and shall account for all monies
derived from the sale of any of the Divestiture Assets sold by the Divestiture Trustee and
all costs and expenses so incurred. After approval by the Court of the Divestiture
Trustee’s accounting, including fees for its services and those of any professionals and
agents retained by the Divestiture Trustee, all remaining money shall be paid to
defendants and the trust shall then be terminated. The compensation of the Divestiture
Trustee and any professionals and agents retained by the Divestiture Trustee shall be
reasonable in light of the value of the Divestiture Assets that are being sold by the
Divestiture Trustee and based on a fee arrangement providing the Divestiture Trustee
with an incentive based on the price and terms of the divestiture and the speed with which
it is accomplished, but timeliness is paramount.
E.

Defendants shall use their best efforts to assist the Divestiture Trustee in

accomplishing any required divestiture. The Divestiture Trustee and any consultants,
accountants, attorneys, and other persons retained by the Divestiture Trustee shall have
full and complete access to the personnel, books, records, and facilities of the business to
be divested, and Defendants shall develop financial and other information relevant to
such business as the Divestiture Trustee may reasonably request, subject to reasonable
protection for trade secret or other confidential research, development, or commercial
information and compliance with all export control laws and regulations. Defendants

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shall take no action to interfere with or to impede the Divestiture Trustee’s
accomplishment of any required divestiture.
F.

After its appointment, the Divestiture Trustee shall file monthly reports

with the United States and the Court setting forth the Divestiture Trustee’s efforts to
accomplish any divestiture ordered under this Final Judgment. To the extent such reports
contain information that the Divestiture 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 Divestiture Assets being
sold by the Divestiture Trustee, and shall describe in detail each contact with any such
person. The Divestiture Trustee shall maintain full records of all efforts made to divest
any of the Divestiture Assets.
G.

If the Divestiture Trustee has not accomplished any divestiture ordered

under this Final Judgment within six months after its appointment, the Divestiture
Trustee shall promptly file with the Court a report setting forth: (1) the Divestiture
Trustee’s efforts to accomplish the required divestiture; (2) the reasons, in the Divestiture
Trustee’s judgment, why the required divestiture has not been accomplished; and (3) the
Divestiture Trustee’s recommendations. To the extent such reports contain information
that the Divestiture Trustee deems confidential, such reports shall not be filed in the
public docket of the Court. The Divestiture Trustee shall at the same time furnish such
report to the United States which shall have the right to make additional
recommendations consistent with the purpose of the trust. The Court thereafter shall

32

enter such orders as it shall deem appropriate to carry out the purpose of the Final
Judgment, which may, if necessary, include extending the trust and the term of the
Divestiture Trustee’s appointment by a period requested by the United States.
VIII. NOTICE OF PROPOSED DIVESTITURE
A.

Within two business days following execution of a definitive divestiture

agreement, Defendants or the Divestiture Trustee, whichever is then responsible for
effecting the divestitures required herein, shall notify the United States and any
Monitoring Trustee of any proposed divestiture required by Section IV, Section V, or
Section VI of this Final Judgment. If the Divestiture Trustee is responsible, it shall
similarly notify Defendants and the Monitoring Trustee. The notice shall set forth the
details of the proposed divestiture and list the name, address, and telephone number of
each person not previously identified who offered or expressed an interest in or desire to
acquire any ownership interest in any of the Divestiture Assets, together with full details
of the same.
B.

Within fifteen calendar days of receipt by the United States of such notice,

the United States may request from Defendants, the proposed Acquirer or Acquirers, any
other third party, or the Divestiture Trustee, if applicable, additional information
concerning the proposed divestiture, the proposed Acquirer or Acquirers, and any other
potential Acquirer. Defendants and the Divestiture Trustee shall furnish any additional
information requested within fifteen calendar days of the receipt of the request, unless the
parties shall otherwise agree.
C.

Within thirty calendar days after receipt of the notice, or within twenty

calendar days after the United States has been provided the additional information

33

requested from Defendants, the proposed Acquirer or Acquirers, any third party, and the
Divestiture Trustee, whichever is later, the United States shall provide written notice to
Defendants and the Divestiture Trustee, if there is one, stating whether or not it objects to
the proposed divestiture. If the United States provides written notice that it does not
object, the divestiture may be consummated, subject only to UTC’s limited right to object
to the sale under Section VII(C) of this Final Judgment. Absent written notice that the
United States does not object to the proposed Acquirer or Acquirers or upon objection by
the United States, a divestiture proposed under Section IV, Section V, Section VI, or
Section VII shall not be consummated. Upon objection by UTC under Section VII(C), a
divestiture proposed under Section VII shall not be consummated unless approved by the
Court.
IX.

FINANCING
Defendants shall not finance all or any part of any purchase made pursuant to

Section IV, Section V, Section VI, or Section VII of this Final Judgment.
X.

HOLD SEPARATE
Until the divestitures required by this Final Judgment have been accomplished,

Defendants shall take all steps necessary to comply with the Hold Separate Stipulation
and Order entered by this Court. Defendants shall take no action that would jeopardize
the divestitures ordered by this Court.
XI.

APPOINTMENT OF MONITORING TRUSTEE
A.

Upon the filing of this Final Judgment, the United States may, in its sole

discretion, appoint a Monitoring Trustee for the Electrical Power Divestiture Assets, the
Aerolec Shares, and/or the AEC Shares, subject to approval by the Court.

34

B.

The Monitoring Trustee shall have the power and authority to monitor

Defendants’ compliance with the terms of this Final Judgment and the Hold Separate
Stipulation and Order entered by this Court and shall have such powers as this Court
deems appropriate. Subject to paragraph XI(D) of this Final Judgment, the Monitoring
Trustee may hire at the cost and expense of Defendants any consultants, accountants,
attorneys, or other persons reasonably necessary in the Monitoring Trustee’s judgment.
These individuals shall be solely accountable to the Monitoring Trustee.
C.

Defendants shall not object to actions taken by the Monitoring Trustee in

fulfillment of the Monitoring Trustee’s responsibilities under any Order of this Court on
any ground other than the Monitoring Trustee’s malfeasance. Any such objections by
Defendants must be conveyed in writing to the United States and the Monitoring Trustee
within ten calendar days after the action taken by the Monitoring Trustee giving rise to
the Defendants’ objection.
D.

The Monitoring Trustee and any consultants, accountants, attorneys, and

other persons retained by the Monitoring Trustee shall serve, without bond or other
security, at the cost and expense of Defendants, on such terms and conditions as the
United States approves. The compensation of the Monitoring Trustee and any
consultants, accountants, attorneys, and other persons retained by the Monitoring Trustee
shall be on reasonable and customary terms commensurate with the individuals'
experience and responsibilities.
E.

The Monitoring Trustee shall have no responsibility or obligation for the

operation of Defendants’ businesses.

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F.

Defendants shall assist the Monitoring Trustee in monitoring Defendants’

compliance with their individual obligations under this Final Judgment and under the
Hold Separate Stipulation and Order. The Monitoring Trustee and any consultants,
accountants, attorneys, and other persons retained by the Monitoring Trustee shall have
full and complete access to the personnel, books, records, and facilities relating to the
Electrical Power Divestiture Assets, the Aerolec Shares, and the AEC Shares, subject to
reasonable protection for trade secret or other confidential research, development, or
commercial information or any applicable privileges. Defendants shall take no action to
interfere with or to impede the Monitoring Trustee’s accomplishment of its
responsibilities.
G.

After its appointment, the Monitoring Trustee shall file monthly reports

with the United States and the Court setting forth the Defendants’ efforts to comply with
their individual obligations under this Final Judgment and under the Hold Separate
Stipulation and Order. To the extent such reports contain information that the Monitoring
Trustee deems confidential, such reports shall not be filed in the public docket of the
Court.
H.

The Monitoring Trustee shall serve until the divestitures pursuant to

Section V, Section VI, or Section VII of this Final Judgment are finalized.
I.

If the United States determines that the Monitoring Trustee has ceased to

act or failed to act diligently, the United States may appoint a substitute Monitoring
Trustee in the same manner as provided in this Section.

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XII.

AFFIDAVITS
A.

Within twenty calendar days of the filing of the Complaint in this matter,

and every thirty calendar days thereafter until the divestitures have been completed under
Section IV, Section V, and Section VI, or Section VII, Defendants shall deliver to the
United States and any Monitoring Trustee an affidavit as to the fact and manner of their
compliance with Section IV, Section V, and Section VI, or Section VII, of this Final
Judgment. Each such affidavit shall include the name, address, and telephone number of
each person who, during the preceding thirty calendar days, 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 any of the Divestiture 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 Defendants have taken to solicit
buyers for the Divestiture Assets, and to provide required information to prospective
Acquirers, including the limitations, if any, on such information. Assuming the
information set forth in the affidavit is true and complete, any objection by the United
States to information provided by Defendants, including limitation on information, shall
be made within fourteen calendar days of receipt of such affidavit.
B.

Within twenty calendar days of the filing of the Complaint in this matter,

Defendants shall deliver to the United States and any Monitoring Trustee an affidavit that
describes in reasonable detail all actions Defendants have taken and all steps Defendants
have implemented on an ongoing basis to comply with Section X of this Final Judgment.
Defendants shall deliver to the United States and any Monitoring Trustee an affidavit

37

describing any changes to the efforts and actions outlined in Defendants’ earlier affidavits
filed pursuant to this section within fifteen calendar days after the change is implemented.
C.

Defendants shall keep all records of all efforts made to preserve and divest

the Divestiture Assets until one year after such divestiture has been completed.
XIII. COMPLIANCE INSPECTION
A.

For the purposes of determining or securing compliance with this Final

Judgment, or of determining whether the Final Judgment should be modified or vacated,
and subject to any legally recognized privilege, from time to time authorized
representatives of the United States Department of Justice Antitrust Division (“Antitrust
Division”), including consultants and other persons retained by the United States, shall,
upon written request of an authorized representative of the Assistant Attorney General in
charge of the Antitrust Division, and on reasonable notice to Defendants, be permitted:
(1)

access during Defendants’ office hours to inspect and copy, or at the

option of the United States, to require Defendants to provide hard copy or electronic
copies of, all books, ledgers, accounts, records, data, and documents in the possession,
custody, or control of Defendants, relating to any matters contained in this Final
Judgment; and
(2)

to interview, either informally or on the record, Defendants’ officers,

employees, or agents, who may have their individual counsel present, regarding such
matters. The interviews shall be subject to the reasonable convenience of the interviewee
and without restraint or interference by Defendants.

38

B.

Upon the written request of an authorized representative of the Assistant

Attorney General in charge of the Antitrust Division, Defendants shall submit written
reports or respond to written interrogatories, under oath if requested, relating 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 this

section shall be divulged by the United States to any person other than an 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 Defendants to the

United States, Defendants represent and identify in writing the material in any such
information or documents to which a claim of protection may be asserted under Rule
26(c)(1)(G) of the Federal Rules of Civil Procedure, and Defendants mark each pertinent
page of such material “Subject to claim of protection under Rule 26(c)(1)(G) of the
Federal Rules of Civil Procedure,” then the United States shall give Defendants ten
calendar days notice prior to divulging such material in any legal proceeding (other than a
grand jury proceeding).
XIV. NO REACQUISITION
Defendants may not reacquire any part of the Divestiture Assets during the term
of this Final Judgment.

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XV.

RETENTION OF JURISDICTION
This Court retains jurisdiction to enable any party to this Final Judgment to apply

to this Court at any time for further orders and directions as may be necessary or
appropriate to carry out or construe this Final Judgment, to modify any of its provisions,
to enforce compliance, and to punish violations of its provisions.
XVI. EXPIRATION OF FINAL JUDGMENT
Unless this Court grants an extension, this Final Judgment shall expire on
December 31, 2023.
XVII. NOTICE TO THE UNITED STATES
All notifications to the United States required pursuant to this Final Judgment
shall be made to the United States Department of Justice, Antitrust Division, Litigation II
Section.

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XVIII. PUBLIC INTEREST DETERMINATION
Entry of this Final Judgment is in the public interest. The parties have complied
with the requirements of the Antitrust Procedures and Penalties Act, 15 U.S.C. § 16,
including making copies available to the public of this Final Judgment, the Competitive
Impact Statement, and any comments thereon and the United States’s responses to
comments. Based upon the record before the Court, which includes the Competitive
Impact Statement and any comments and response to comments filed with the Court,
entry of this Final Judgment is in the public interest.
Date: May 29, 2013

___________/s/_____________
KETANJI BROWN JACKSON
United States District Judge