UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
UNITED STATES OF AMERICA,
Plaintiff,
v.
SIGNATURE FLIGHT SUPPORT
CORPORATION, and
HAWKER BEECHCRAFT SERVICES, INC.,
Defendants.
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Civil Action No.: 08-1164
Filed: 10/30/08
Judge: Richard W. Roberts
Date Stamp: 10/30/08
|
FINAL JUDGMENT
WHEREAS, plaintiff, the United States of America ("United States"), filed its complaint
on July 3, 2008, the United States and defendants, Signature Flight Support Corporation
("Signature") and Hawker Beechcraft Services, Inc. ("Hawker Beechcraft"), 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 law or fact;
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 prompt and certain divestiture of
certain assets by the defendants to assure that competition is not substantially lessened;
AND WHEREAS, the United States requires defendants to make certain divestitures 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 hereby 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 the defendants
under Section 7 of the Clayton Act, as amended (15 U.S.C. § 18).
II. Definitions
As used in this Final Judgment:
- "Acquirer" means the entity to whom defendants divest the Divestiture Assets.
- "Signature" means defendant Signature Flight Support Corporation, a Delaware
corporation with its headquarters in Orlando, Florida, its successors and assigns, and its parents,
subsidiaries, divisions, groups, affiliates, partnerships, and joint ventures, and their directors,
officers, managers, agents, and employees.
- "Hawker Beechcraft" means defendant Hawker Beechcraft Services, Inc., a
Kansas corporation headquartered in Wichita, Kansas, its successors and assigns, and its parents,
subsidiaries, divisions, groups, affiliates, partnerships, and joint ventures, and their directors,
officers, managers, agents, and employees.
- "IND" means Indianapolis International Airport, located in the Indianapolis,
Indiana metropolitan area.
- "IND FBO Services" means any or all services related to providing fixed base
operator services to general aviation customers at IND, including, but not limited to, selling fuel,
leasing hangar, ramp, and office space, providing flight support services, providing access to
terminal facilities, or arranging for ancillary services such as rental cars or hotels.
- "FBO Facility" means any and all tangible and intangible assets that comprise the
business of providing IND FBO Services, including, but not limited to, all personal property,
inventory, office furniture, materials, supplies, terminal space, hangars, ramps, general aviation
fuel tank farms for jet aviation fuel and aviation gas, and related fueling equipment, and other
tangible property and all assets used in connection with the business of providing IND FBO
Services; all licenses, permits, registrations, and authorizations issued by any governmental
organization relating to the business of providing IND FBO Services subject to licensor's
approval or consent; all contracts, teaming arrangements, agreements, leases, commitments,
certifications, and understandings relating to the business of providing IND FBO Services,
including supply agreements; all customer lists, contracts, accounts, and credit records; all other
records relating to the business of providing IND FBO Services; all intangible assets used in the
development, production, servicing, and sale of IND FBO Services, including, but not limited to,
all licenses and sublicenses, technical information, computer software and related
documentation, know-how, drawings, blueprints, designs, design protocols, specifications for
materials, specifications for parts and devices, and safety procedures for the handling of materials
and substances.
- "Divestiture Assets" means either of the following:
- all rights, titles and interests, including all fee, leasehold and real property
rights, in Hawker Beechcraft's existing and future FBO Facilities at IND
that Signature acquires in the Proposed Transaction; or
- all rights, titles and interests, including all fee, leasehold and real property
rights, that Signature possesses in its FBO Facility at IND.
- "Proposed Transaction" means Signature's proposed acquisition of certain assets
from Hawker Beechcraft pursuant to the Sale of Line Service Business By Hawker Beechcraft
Services, Inc. to Signature Flight Support Corporation Asset Purchase Agreement Dated
February 21, 2008 that is the subject of the Hart-Scott-Rodino Premerger Notification Filing
2008-0879.
III. Applicability
- This Final Judgment applies to Signature and Hawker Beechcraft, 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.
- If, prior to complying with Section IV or V 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, they shall require the purchaser to be bound by the provisions of
this Final Judgment. Defendants need not obtain such an agreement from the acquirer of the
assets divested pursuant to this Final Judgment.
IV. Divestitures
- Defendants are ordered and directed, within ninety (90) calendar days after the
filing of the Complaint in this matter or after five (5) calendar days after notice of entry of this
Final Judgment by the Court, whichever is later, to divest the 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
time period, not to exceed sixty (60) calendar days in total, and shall notify the Court in such
circumstances. If pending state or local regulatory approval is the only remaining matter
precluding a divestiture after the 90-day period, the United States will not withhold its agreement
to an extension of the period. Defendants agree to use their best efforts to complete the required
divestiture as expeditiously as possible.
- In accomplishing the divestiture ordered by this Final Judgment, defendants
promptly shall make known, by usual and customary means, the availability of the Divestiture
Assets. Defendants shall inform any person making inquiry regarding a possible purchase of
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
regarding the Divestiture Assets customarily provided in a due diligence process, except such
information or documents subject to the attorney-client privilege or work-product doctrine. The
documents provided to prospective Acquirers shall include (1) the Land and Special Facilities
Lease Agreement By and Between Hawker Beechcraft Services, Inc. and The Indianapolis
Airport Authority dated February 2008; (2) the Sublease between Hawker Beechcraft Services,
Inc. and Signature Flight Support Corporation and the Addendum thereto; and (3) the agreement
entitled Sale of Line Service Business By Hawker Beechcraft Services, Inc. to Signature Flight
Support Corporation Asset Purchase Agreement Dated February 21, 2008 and all attachments
and exhibits relating to IND. Defendants shall make available such information to the United
States at the same time that such information is made available to any other person.
- Defendants shall provide the Acquirer and the United States information relating
to the personnel involved in the operation, management, and sale of the Divestiture Assets to
enable the Acquirer to make offers of employment. Defendants will not interfere with any
negotiations by the Acquirer to employ any defendant employee whose primary responsibility is
the operation, management, and sale of the Divestiture Assets.
- Defendants shall permit prospective Acquirers of the Divestiture Assets to have
reasonable access to personnel and to make such inspection of the physical facilities of the
Divestiture Assets and to examine the blueprints and other plans relating to any physical facilities
of the Divestiture Assets under construction or proposed for construction; 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.
- Defendants shall warrant to the Acquirer of the Divestiture Assets that each asset
will be operational on the date of sale.
- Defendants shall not take any action that will impede in any way the permitting,
operation, or divestiture of the Divestiture Assets.
- Defendants shall warrant to the Acquirer of the Divestiture Assets that there are
no material defects in the environmental, zoning, or other permits pertaining to the operation of
each asset, and that following the sale of the Divestiture Assets, defendants will not undertake,
directly or indirectly, any challenges to the environmental, zoning, or other permits relating to the
operation of the Divestiture Assets.
- Unless the United States otherwise consents in writing, the divestiture pursuant to
Section IV, or by a trustee appointed pursuant to Section V, of this Final Judgment, shall be
accomplished in such a way as to satisfy the United States, in its sole discretion, that the
Divestiture Assets can and will be used by the Acquirer as part of a viable, ongoing business
engaged in providing IND FBO Services. The divestiture, whether pursuant to Section IV or
Section V of this Final Judgment: (1) 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 provision of IND FBO
Services; and (2) shall be accomplished so as to satisfy the United States, in its sole discretion,
that none of the terms of any agreement between an Acquirer and defendants gives 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. Appointment of Trustee
- If defendants have not divested the Divestiture Assets within the time period
specified in Section IV(A) of this Final Judgment, defendants shall notify the United States of
that fact in writing. Upon application of the United States, the Court shall appoint a trustee
selected by the United States and approved by the Court to effect the divestiture of the
Divestiture Assets.
- After the appointment of a trustee becomes effective, only that trustee shall have
the right to sell the Divestiture Assets. The trustee shall have the power and authority to
accomplish the divestiture to an Acquirer acceptable to the United States at such price and on
such terms as are then obtainable upon reasonable effort by the trustee, subject to the provisions
of Sections IV, V, and VI of this Final Judgment, and shall have such other powers as this Court
deems appropriate. Subject to Section V(D) of this Final Judgment, the trustee may hire at the
cost and expense of defendants any investment bankers, attorneys, or other agents, who shall be
solely accountable to the trustee, reasonably necessary in the judgment of the trustee to assist in
the divestiture.
- Defendants shall not object to a sale by the trustee on any ground other than the
trustee's malfeasance. Any such objections by defendants must be conveyed in writing to the
United States and the trustee within ten (10) calendar days after the trustee has provided the
notice required under Section VI.
- The trustee shall serve at the cost and expense of defendants, on such terms and
conditions as the plaintiff approves, and shall account for all monies derived from the sale of the
assets sold by the trustee and all costs and expenses so incurred. After approval by the Court of
the trustee's accounting, including fees for its services and those of any professionals and agents
retained by the trustee, all remaining money shall be paid to defendants and the trust shall then be
terminated. The compensation of the trustee and any professionals and agents retained by the
trustee shall be reasonable in light of the value of the Divestiture Assets and based on a fee
arrangement providing the trustee with an incentive based on the price and terms of the
divestiture and the speed with which it is accomplished, but timeliness is paramount.
- Defendants shall use their best efforts to assist the trustee in accomplishing the
required divestiture. The trustee and any consultants, accountants, attorneys, and other persons
retained by the trustee shall have full and complete access to the personnel, books, records, and
facilities of the Divestiture Assets, including the blueprints and other plans relating to any
physical facilities of the Divestiture Assets under construction or proposed for construction, and
defendants shall develop financial or other information relevant to the Divestiture Assets as the
trustee may reasonably request, subject to reasonable protection for trade secrets or other
confidential research, development, or commercial information. Defendants shall take no action
to interfere with or to impede the trustee's accomplishment of the divestiture.
- After its appointment, the trustee shall file monthly reports with the United States
and the Court setting forth that trustee's efforts to accomplish the divestiture ordered under this
Final Judgment. To the extent such reports contain information that the trustee deems
confidential, such reports shall not be filed in the public docket of the Court. Such reports shall
include the name, address and telephone number of each person who, during the preceding
month, made an offer to acquire, expressed an interest in acquiring, entered into negotiations to
acquire, or was contacted or made an inquiry about acquiring, any interest in the Divestiture
Assets, and shall describe in detail each contact with any such person. The trustee shall maintain
full records of all efforts made to divest the Divestiture Assets.
- If the trustee has not accomplished the divestiture ordered under this Final
Judgment within six (6) months after its appointment, the trustee shall file promptly with the
Court a report setting forth: (1) the trustee's efforts to accomplish the required divestiture, (2) the
reasons, in the trustee's judgment, why the required divestiture has not been accomplished, and
(3) the trustee's recommendations. To the extent such reports contain information that the
trustee deems confidential, such reports shall not be filed in the public docket of the Court. The
trustee shall at the same time furnish such report to the United States, who shall have the right to
make additional recommendations consistent with the purpose of the trust. The Court shall
thereafter 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 trustee's
appointment for a period requested by the United States.
VI. Notice of Proposed Divestiture
- Within two (2) business days following execution of a definitive divestiture
agreement, defendants or the trustee, whichever is then responsible for effecting the divestiture
required herein, shall notify the United States of any proposed divestiture required by Section IV
or V of this Final Judgment. If a trustee is responsible, the trustee shall similarly notify
defendants. 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 a desire to acquire any ownership interest in the Divestiture Assets
together with full details of same.
- Within fifteen (15) calendar days of receipt by the United States of such notice,
the United States may request from defendants, the proposed Acquirer, any other third party, or
the trustee if applicable, additional information concerning the proposed divestiture, the proposed
Acquirer, and any other potential Acquirer. Defendants and the trustee shall furnish any
additional information requested within fifteen (15) calendar days of the receipt of the request,
unless the parties shall otherwise agree.
- Within thirty (30) calendar days after receipt of the notice or within twenty (20)
calendar days after the United States has been provided the additional information requested
from defendants, the proposed Acquirer, any third party, and the trustee, whichever is later, the
United States shall provide written notice to defendants and the 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 defendant's limited
right to object to the sales under Section V(C) of this Final Judgment. Absent written notice that
the United States does not object to the proposed Acquirer or upon objection by the United
States, the divestiture proposed under Section IV or V shall not be consummated. Upon
objection by defendants under Section V(C), a divestiture proposed under Section V shall not be
consummated unless approved by the Court.
VII. Financing
Defendants shall not finance all or any part of any purchase made pursuant to Section IV
or V of this Final Judgment.
VIII. Hold Separate
Until the divestiture required by this Final Judgment has 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 divestiture ordered by this
Court.
IX. Affidavits
- Within twenty (20) calendar days of the filing of the Complaint in this matter and
every thirty (30) calendar days thereafter until the divestiture has been completed under Section
IV or V, defendants shall deliver to the United States an affidavit as to the fact and manner of
compliance with Section IV or V of this Final Judgment. Each such affidavit shall include the
name, address, and telephone number of each person who, during the preceding thirty (30) 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 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 purchasers, 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 the defendants,
including limitation on information, shall be made within fourteen (14) days of receipt of such
affidavit.
- Within twenty (20) calendar days of the filing of the Complaint in this matter,
defendants shall deliver to the United States an affidavit that describes in reasonable detail all
actions defendants have taken and all steps defendants have implemented on an on going basis to
comply with Section VIII of this Final Judgment. Defendants shall deliver to the United States
an affidavit describing any changes to the efforts and actions outlined in defendants' earlier
affidavits filed pursuant to this section within fifteen (15) calendar days after the change is
implemented.
- Defendants shall keep all records of all efforts made to preserve and divest the
Divestiture Assets until one year after the divestiture has been completed.
X. Compliance Inspection
- 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 ("DOJ"), 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:
- 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
- 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.
- 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 response
to written interrogatories, under oath if requested, relating to any of the matters contained in this
Final Judgment as may be requested.
- 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.
- 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 for 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 (10) calendar days prior to divulging such material in any
legal proceeding (other than a grand jury proceeding).
XI. No Reacquisition
Defendant Signature may not reacquire any part of the Divestiture Assets during the term
of this Final Judgment.
XII. 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.
XIII. Expiration of Final Judgment Unless this Court grants an extension, this Final Judgment shall expire ten (10) years
from the date of its entry.
XIV. 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.
Dated: 10/29/08
|
Court approval subject to procedures of Antitrust
Procedures and Penalties Act, 15 U.S.C. § 16
_______________/s/________________
United States District Judge |
|