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FOR THE DISTRICT OF MINNESOTA
It is hereby stipulated and agreed by and between the undersigned parties and Verizon, subject to approval and entry by the Court of the proposed Modified Preservation of Assets Order, that:
As used in this Modified Preservation of Assets Stipulation: A. "Acquirer" means the entity to whom defendants divest the Divestiture Assets. B. "Alltel" means a subsidiary of Atlantis Holdings LLC, defendant Alltel Corporation, a Delaware corporation with headquarters in Little Rock, Arkansas, its successors and assigns, and its subsidiaries, divisions, groups, affiliates, partnerships and joint ventures, and their directors, officers, managers, agents, and employees. Alltel was acquired by Atlantis Holdings LLC in November 2007 and its name was changed from ALLTEL Corporation to Alltel Corporation. C. "CMA" means cellular market area which is used by the Federal Communications Commission ("FCC") to define cellular license areas and which consists of Metropolitan Statistical Areas ("MSAs") and Rural Service Areas ("RSAs"). D. "Divestiture Assets" means the mobile wireless telecommunications services businesses to be divested under the Modified Final Judgment, including all types of assets, tangible and intangible, used by defendants in the operation of the mobile wireless telecommunications services businesses to be divested. "Divestiture Assets" shall be construed broadly to accomplish the complete divestiture of the entire business Verizon acquired from Rural Cellular Corporation in each of the following RSA license areas as required by the Modified Final Judgment and to ensure that the divested mobile wireless telecommunications services businesses remain viable, ongoing businesses:
The Divestiture Assets shall include, without limitation, all types of real and personal property, monies and financial instruments, equipment, inventory, office furniture, fixed assets and furnishings, supplies and materials, contracts, agreements, leases, commitments, spectrum licenses issued by the FCC and all other licenses, permits and authorizations, operational support systems, cell sites, network infrastructure, switches, customer support and billing systems, interfaces with other service providers, business and customer records and information, customer contracts, customer lists, credit records, accounts, and historic and current business plans which relate primarily to the wireless businesses being divested, as well as any patents, licenses, sub-licenses, trade secrets, know-how, drawings, blueprints, designs, technical and quality specifications and protocols, quality assurance and control procedures, manuals and other technical information Verizon supplies to its own employees, customers, suppliers, agents, or licensees, and trademarks, trade names and service marks or other intellectual property, including all intellectual property rights under third-party licenses that are capable of being transferred to an Acquirer either in their entirety, for assets described in (1) below, or through a license obtained through or from Verizon, for assets described in (2) below; provided that defendants shall only be required to divest Multi-line Business Customer contracts, if the primary business address for that customer is located within any of the four license areas described herein, and further, any subscriber who obtains mobile wireless telecommunications services through any such contract retained by defendants and who are located within the four geographic areas identified above, shall be given the option to terminate their relationship with defendants, without financial cost, at any time within one year of the closing of the Verizon/Alltel Transaction. Defendants shall provide written notice to these subscribers within 45 days after the closing of the Verizon/Alltel Transaction of the option to terminate. The divestiture of the Divestiture Assets shall be accomplished by:
E. "Multi-line Business Customer" means a corporate or business customer which is included in the Divestiture Assets and contracts with Verizon for mobile wireless services to provide multiple telephones to its employees or members whose services are provided pursuant to a contract with the corporate or business customer. F. "Transaction" means the Transaction Agreement between Alltel and Midwest Wireless, dated November 17, 2005. G. "Verizon/Alltel Transaction" means the Agreement and Plan of Merger among Cellco Partnership, Airtouch Cellular, Abraham Merger Corporation, Alltel Corporation and Atlantis Holdings LLC, dated June 5, 2008. H. "Verizon" means Verizon Communications Inc., a Delaware corporation, successor in interest to Rural Cellular Corporation, with its headquarters in New York, New York, its successors and assigns, and its subsidiaries, divisions, groups, affiliates, partnerships and joint ventures, and their directors, officers, managers, agents, and employees. Verizon, which has submitted to the jurisdiction of this Court and has agreed to be bound by the Modified Final Judgment, is included in the term defendant after it acquires Alltel.
The proposed Modified Final Judgment filed in this case is meant to ensure defendants' prompt divestiture of the Divestiture Assets for the purpose of preserving viable competitors in the provision of mobile wireless telecommunications services in order to remedy the effects that would otherwise result from Verizon's acquisition of Alltel in the four Minnesota CMAs that are the subject of this case. The proposed Modified Preservation of Assets Order ensures that competition is maintained during the pendency of the ordered divestitures and that the Divestiture Assets remain economically viable, ongoing business concerns. The Divestiture Assets will remain, as provided herein, preserved, independent, and uninfluenced by defendants.
This Court has jurisdiction over the subject matter of this action and each of the parties hereto, and venue of this action is proper in the United States District Court for the District of Minnesota. Verizon has consented to the exercise of subject matter and personal jurisdiction by this Court for this matter by its execution of a Voluntary Submission to the jurisdiction of the Court.
A. The parties stipulate that a proposed Modified Final Judgment in the form lodged with this Court by plaintiff United States may be entered by the Court, and have filed a joint motion requesting that the Court modify the Final Judgment entered in this case on January 8, 2007.(1) The Modified Final Judgment may be entered upon the motion of any party or upon the Court's own motion, and without further notice to any party or other proceedings. B. Defendants and Verizon shall abide by and comply with the provisions of the proposed Modified Preservation of Assets Order and the proposed Modified Final Judgment, pending their entry by the Court, or until expiration of time for all appeals of any Court ruling declining entry of the proposed Modified Final Judgment, and shall, from the date of the signing of this Modified Preservation of Assets Stipulation by the parties and Verizon, comply with all the terms and provisions of the proposed Modified Final Judgment and the proposed Modified Preservation of Assets Order as though the same were in full force and effect as an order of the Court. C. In the event the proposed Modified Final Judgment is not entered pursuant to the proposed Modified Preservation of Assets Order, the time has expired for all appeals of any Court ruling declining entry of the proposed Modified Final Judgment, and the Court has not otherwise ordered continued compliance with the terms and provisions of the proposed Modified Final Judgment, then defendants and Verizon are released from all further obligations under this Modified Preservation of Assets Stipulation, and the making of this Modified Preservation of Assets Stipulation shall be without prejudice to any signatory in this or any other proceeding. D. This Modified Preservation of Assets Stipulation shall apply with equal force and effect to any amended proposed Modified Final Judgment agreed upon in writing by the parties and submitted to the Court. E. Defendants represent that the divestitures ordered in the proposed Modified 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.
A. Plaintiff United States, having consulted with plaintiff Minnesota, nominates W. Stephen Cannon as Management Trustee in this case, to serve as manager of the Management Trust Assets until the Divestiture Assets are sold to an Acquirer or transferred to a Divestiture Trustee pursuant to Section V of the proposed Modified Final Judgment. Defendants and Verizon have no objection to the immediate appointment of W. Stephen Cannon as Management Trustee by the Court. Nothing in this Modified Preservation of Assets Stipulation shall be interpreted to prevent the Management Trustee from becoming the Divestiture Trustee pursuant to Section V of the proposed Modified Final Judgment. B. Prior to the closing of the Verizon/Alltel Transaction, defendants and Verizon shall enter into a trust agreement with W. Stephen Cannon, subject to the approval of plaintiff United States, in its sole discretion upon consultation with plaintiff Minnesota, that will grant the rights, powers, and authorities necessary to permit him to perform the duties and responsibilities of the Management Trustee pursuant to the proposed Modified Preservation of Assets Order. The trust agreement shall enable him, on or before the date of the closing of the Verizon/Alltel Transaction, to assume all rights, powers, and authorities necessary to perform his duties and responsibilities, pursuant to the proposed Modified Preservation of Assets Order and the proposed Modified Final Judgment and consistent with their purposes. W. Stephen Cannon or any other subsequently appointed Management Trustee shall serve at the cost and expense of defendants, on such terms and conditions as plaintiff United States approves upon consultation with plaintiff Minnesota, with a fee arrangement that is reasonable in light of the person's experience and responsibilities. C. The Management Trustee will have the following powers and responsibilities with respect to the Divestiture Assets:
D. The following limitations shall apply to the Management Trustee:
E. Defendants and the Management Trustee shall take all reasonable efforts to preserve the confidentiality of information that is material to the operation of either the Divestiture Assets or defendants' businesses. Defendants' personnel supplying services to the Divestiture Assets pursuant to the proposed Modified Preservation of Assets Order must retain and maintain the confidentiality of any and all confidential information material to the Divestiture Assets. Except as permitted by the proposed Modified Preservation of Assets Order and the proposed Modified Final Judgment, such persons shall be prohibited from providing, discussing, exchanging, circulating or otherwise furnishing the confidential information of the Divestiture Assets to or with any person whose employment involves any of defendants' businesses, except as necessary to fulfill the purposes of the proposed Modified Preservation of Assets Order and the proposed Modified Final Judgment. F. If in the judgment of the Management Trustee, defendants fail to provide the services listed in Section VI of the proposed Modified Preservation of Assets Order to the satisfaction of the Management Trustee, upon notification to defendants and approval by plaintiff United States upon consultation with plaintiff Minnesota, the Management Trustee may engage third parties unaffiliated with defendants to provide those services for the Divestiture Assets, at the cost and expense of defendants, provided that defendants may have reasonable access to information to satisfy themselves that after the services have been provided, the Divestiture Assets are in compliance with all applicable laws, rules, and regulations. G. At the option of the Management Trustee, defendants may also provide other products and services, on an arm's-length basis provided that the Management Trustee is not obligated to obtain any other product or service from defendants and may acquire any such products or services from third parties unaffiliated with defendants. H. If the Management Trustee ceases to act or fails to act diligently and consistently with the purposes of the proposed Modified Preservation of Assets Order and the proposed Modified Final Judgment, if the Management Trustee proposed by plaintiff United States is not approved by this Court, resigns, or if for any other reason the Management Trustee ceases to serve in his or her capacity as Management Trustee, plaintiff United States upon consultation with plaintiff Minnesota, may select a substitute Management Trustee. In this event, plaintiff United States will identify to defendants the individual or entity it proposes to select as Management Trustee. Defendants must make any objection to this selection within five business days after plaintiff United States notifies defendants of the Management Trustee's selection. Plaintiff United States will move the Court to approve and appoint a substitute Management Trustee. Within five business days of such appointment, defendants shall enter into a trust agreement with the Management Trustee subject to the approval of plaintiff United States in its sole discretion upon consultation with plaintiff Minnesota, as described in Section V.B of the proposed Modified Preservation of Assets Order.
Until the divestitures required by the proposed Modified Final Judgment have been accomplished, except as otherwise approved in advance in writing by plaintiff United States: A. Defendants and the Management Trustee shall preserve, maintain, and continue to support the Divestiture Assets, take all steps necessary to manage the Divestiture Assets in order to maximize their competitiveness, revenue, profitability and viability and permit expeditious divestitures in a manner consistent with the proposed Modified Preservation of Assets Order and the proposed Modified Final Judgment. B. The Divestiture Assets shall be operated by the Management Trustee as part of an independent, ongoing, economically viable business that competes with other mobile wireless telecommunications services providers operating in the same license area and operated so that the Divestitures are maintained or increased in value. Notwithstanding the foregoing, the Management Trustee may manage the Divestiture Assets jointly with other assets that will be divested under a final judgment entered in connection with any proceedings initiated by plaintiff United States pursuant to Section 7 of the Clayton Act, as amended, 15 U.S.C. § 18, to enjoin the Verizon/Alltel Transaction. Defendants and the Management Trustee shall take all steps necessary to ensure that:
C. Defendants shall take no action that would jeopardize, delay, or impede the sale of the Divestiture Assets; nor shall defendants take any action that would influence or interfere with the ability of any Divestiture Trustee appointed pursuant to the proposed Modified Final Judgment to operate and manage the Divestiture Assets or to complete the divestitures pursuant to the proposed Modified Final Judgment to an Acquirer acceptable to plaintiff United States upon consultation with plaintiff Minnesota. D. Defendants shall provide sufficient working capital and lines and sources of credit as deemed necessary by the Management Trustee to continue to maintain the Divestiture Assets consistent with the proposed Modified Preservation of Assets Order. E. Unless otherwise agreed to by plaintiff United States in its sole discretion upon consultation with plaintiff Minnesota, within thirty (30) days of closing the Verizon/Alltel Transaction, defendants shall resolve all outstanding obligations related to the Divestiture Assets including but not limited to agent and employee compensation, vendors, and landlords. F. Except (1) as recommended by the Management Trustee and approved by plaintiff United States upon consultation with plaintiff Minnesota, (2) as part of a divestiture approved by plaintiff United States in its sole discretion upon consultation with plaintiff Minnesota, in accordance with the terms of the proposed Modified Final Judgment, defendants shall not remove, sell, lease, assign, transfer, pledge, or otherwise dispose of any of the Divestiture Assets outside the ordinary course of business. G. The Management Trustee, with defendants' cooperation consistent with the proposed Modified Preservation of Assets Order and the proposed Modified Final Judgment, 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. As part of defendants' cooperation:
H. No later than 15 days prior to the closing of the Verizon/Alltel Transaction, defendants shall identify, by name and title, to the Management Trustee and plaintiff United States, sufficient employees for each of the Divestiture Assets who are familiar with and have had responsibility for the management, operation, marketing, and sales of the Divestiture Assets, to assist the Management Trustee with his duties and responsibilities hereunder. No later than seven days prior to the closing of the Verizon/Alltel Transaction, upon approval of the Management Trustee and plaintiff United States, defendants shall appoint sufficient employees for each of the Divestiture Assets who are familiar with and have had responsibility for the management, operation, marketing, and sales of the Divestiture Assets, to assist the Management Trustee with his duties and responsibilities hereunder. Defendants may offer a bonus or severance to employees whose primary employment responsibilities relate to the Divestiture Assets, who continue their employment until divestiture (in addition to any other bonus or severance to which the employees would otherwise be entitled). I. Until the Verizon/Alltel Transaction is consummated, Verizon will operate the Divestiture Assets in the same fully competitive manner as its other mobile wireless services businesses and defendants will not influence or attempt to influence the operation of the Divestiture Assets pending their divestiture. Following consummation of the Verizon/Alltel Transaction, except for employees (1) whose primary employment responsibilities relate to the Divestiture Assets, or (2) who are involved in providing support services to the Divestiture Assets pursuant to Sections V and VI of the proposed Modified Preservation of Assets Order and Section V of the proposed Modified Final Judgment, defendants shall not permit any other of their employees, officers, agents, or directors to be involved in the operations of the Divestiture Assets, including but not limited to, decision making concerning marketing, pricing or sales of mobile wireless telecommunications services generated by the Divestiture Assets. J. Except as required by law in the course of (1) complying with the proposed Modified Preservation of Assets Order and the proposed Modified Final Judgment; (2) overseeing compliance with policies and standards concerning the safety, health, and environmental aspects of the operations of the Divestiture Assets and the integrity of their financial controls; (3) defending legal claims, investigations, or enforcement actions threatened or brought against the Divestiture Assets; or (4) obtaining legal advice, defendants' employees (excluding employees (a) whose primary employment responsibilities relate to the Divestiture Assets, or (b) who are involved in providing support services to the Divestiture Assets pursuant to Sections V and VI of the proposed Modified Preservation of Assets Order and Section V of the proposed Modified Final Judgment) shall not receive, or have access to, or use any material confidential information, not in the public domain, of the Divestiture Assets. Defendants may receive aggregate financial information relating to the Divestiture Assets to the extent necessary to allow defendants to prepare defendants' consolidated financial reports, tax returns, reports required by securities laws, and personnel reports. Any such information that is obtained pursuant to this subparagraph shall be used only for the purposes set forth in this subparagraph. K. Until the Divestiture Assets are divested to an Acquirer acceptable to plaintiff United States in its sole discretion upon consultation with plaintiff Minnesota pursuant to the proposed Modified Final Judgment, defendants shall provide to the Divestiture Assets, at no cost, support services needed to maintain the Divestiture Assets in the ordinary course of business, including, but not limited to:
Defendants' and Verizon's obligations under the proposed Modified
Preservation of Assets Order shall remain in effect until (1) consummation
of the divestitures required by the proposed Modified Final Judgment
or (2) until further order of the Court. If plaintiff United States
voluntarily withdraws its approval of the proposed Modified Final Judgment
in this matter, defendants and Verizon are released from all further
obligations under the proposed Modified Preservation of Assets Order.
FOR PLAINTIFF UNITED STATES OF AMERICA:
FOOTNOTES
1. The Final Judgment was entered after the United States challenged, under the antitrust laws, the merger between Alltel and Midwest Wireless. |