[Federal Register Volume 64, Number 115 (Wednesday, June 16, 1999)]
[Notices]
[Pages 32258-32271]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-14895]


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DEPARTMENT OF JUSTICE

Antitrust Division


United States v. Florida Rock Industries, Inc., et al.; Proposed 
Final Judgment and Competitive Impact Statement

    Notice is hereby given pursuant to the Antitrust Procedures and 
Penalties Act, 15 U.S.C. 16(b)-(h), that a proposed Final Judgment, 
Stipulation and Order, and Competitive Impact Statement have been filed 
with the United States District Court in the Middle District of 
Florida, Jacksonville Division, Civil No. 99-516-CIV-J-20A.
    On May 26, 1999, the United States filed a Complaint alleging that 
the proposed acquisition by Florida Rock of the stock of Harper Bros. 
and Commercial Testing, Inc. would violate section 7 of the Clayton 
Act, 15 U.S.C. 18. The proposed Final Judgment, filed the same time as 
the Complaint, requires Florida Rock to divest the Alico Road Quarry, 
Fort Myers, Florida, the Palmdale Sand Mine, Palmdale, Florida, and 
related assets that it will obtain in connection with the acquisition 
of Harper Bros. and Testing.
    Public comment is invited within the statutory 60-day comment 
period. Such comments and responses thereto will be published in the 
Federal Register and filed with the Court. Comments should be directed 
to J. Robert Kramer, Chief, Litigation II Section, Antitrust Division, 
United States Department of Justice, 1401 H Street, NW., Suite 3000, 
Washington, DC 20530 (telephone: 202/307-0924).
    Copies of the Complaint, Stipulation and Order, Proposed Final 
Judgment, and Competitive Impact Statement are available for inspection 
in Room 215 of the U.S. Department of Justice, Antitrust Division, 325 
7th Street, NW., Washington, DC 20530, (202) 514-2841. Copies of these 
materials may be obtained upon request and payment of a copying fee.
Constance K. Robinson,
Director of Operations & Merger Enforcement.

United States District Court, Middle District of Florida, 
Jacksonville Division

    United States of America, Plaintiff, v. Florida Rock Industries, 
Inc.; Harper Bros., Inc.; Commercial Testing, Inc.; and Daniel R. 
Harper, Defendants [Civil No.: 99-516-CIV-J-20A].

Stipulation and Order

    It is stipulated by and between the undersigned parties, by their 
respective attorneys, as follows:
    1. The Court has jurisdiction over the subject matter of this 
action and over each of the parties hereto, and venue of this action is 
proper in the United States District Court for the Middle District of 
Florida.
    2. The parties stipulate that a Final Judgment in the form hereto 
attached may be filed and entered by the Court, upon the motion of any 
party or upon the Court's own motion, at any time after compliance with 
the requirements of the Antitrust Procedures and Penalties Act (15 
U.S.C. 16), and without further notice to any party or other 
proceedings, provided that the United States has not withdrawn its 
consent, which it may do at any time before the entry of the proposed 
Final Judgment by serving notice thereof on defendants and by filing 
that notice with the Court, on or before September 15, 1999.
    3. Defendants shall abide by and comply with the provisions of the 
proposed Final Judgment pending entry of the Final Judgment or until 
expiration of time for all appeals of any court ruling declining entry 
of the proposed Final Judgment, and shall, from the date of the signing 
of this Stipulation by the parties, comply with all the terms and 
provisions of the proposed Final Judgment as though they were in full 
force and effect as an order of the Court.
    4. Defendants shall not consummate the transaction sought to be 
enjoined by the Complaint herein before the Court has signed the Hold 
Separate Stipulation and Order.
    5. This Stipulation shall apply with equal force and effect to any 
amended proposed Final Judgment agreed upon in writing by the parties 
and submitted to the Court.
    6. In the event (a) the United States has withdrawn its consent, as 
provided in paragraph 2 above, or (b) the proposed Final Judgment is 
not entered pursuant to this Stipulation, the time has expired for all 
appeals of any Court ruling declining entry of the proposed Final 
Judgment, and the Court has not otherwise ordered continued compliance 
with the terms and provisions of the proposed Final Judgment, then the 
parties are released from all further obligations under this 
Stipulation, and the making of this Stipulation shall be without 
prejudice to any party in this or any other proceeding.
    7. Defendants represent that the divestiture ordered in the 
proposed Final Judgment can and will be made, and that the defendants 
will later raise no claim of hardship or difficulty as grounds for 
asking the Court to modify any of the divestiture provisions contained 
therein.

    Dated: May 25, 1999.

For Plaintiff United States

Frederick H. Parmenter,
U.S. Department of Justice, Antitrust Division, Litigation II Section, 
Suite 3000, Washington, D.C. 20530, Telephone: (202) 307-0620, 
Facsimile: (202) 307-6283.

For Defendant Florida Rock Industries, Inc.

Eugene J. Meigher,
Arent Fox,
1050 Connecticut Avenue, N.W., Washington, D.C. 20036-5339, Telephone: 
(202) 857-6048, Facsimile: (202) 857-6395.

Lewis S. Lee,
LeBoeuf, Lamb, Greene & MacRae, 50 N. Laura Street, Jacksonville, 
Florida 32202-3650, Telephone: (904) 630-5322, Facsimile: (904) 353-
1673.

For Defendants Harper Bros., Inc., Commercial Testing, Inc. and Daniel 
R. Harper

Neil Imus,
Vinson & Elkins L.L.P., The Willard Office Building, 1455 Pennsylvania 
Avenue, N.W., Washington, D.C. 20004-1008, Telephone: (202) 639-6675, 
Facsimile: (202) 639-6604.

Order

    Approved for entry and ordered \1\ this 27th day of May, 1999, 
at Jacksonville, Florida.
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    \1\ Final Judgment and Proposed Final Judgment mean the same 
thing.
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Harvey E. Schlessinger,
United States District Judge.
    United States of America, Plaintiff v. Florida Rock Industries, 
Inc.; Harper Bros., Inc.; Commercial Testing, Inc.; and Daniel R. 
Harper, Defendants. [Civil No.: 99-516-Civ-J-20A.]

Hold Separate Stipulation and Order

    It is hereby stipulated and agreed by and between the undersigned 
parties,

[[Page 32259]]

subject to approval and entry by the Court, that:

I. Definitions

    As used in this Hold Separate Stipulation and Order:
    A. ``Florida Rock'' means defendant Florida Rock Industries, Inc., 
a Florida corporation headquartered in Jacksonville, Florida, and 
includes its successors and assigns, and its subsidiaries, divisions, 
groups, affiliates, directors, officers, managers, agents, and 
employees.
    B. ``Harper Bros.'' means defendant Harper Bros., Inc., a Florida 
corporation headquartered in Fort Myers, Florida, and includes its 
successors and assigns, and its subsidiaries, divisions, groups, 
affiliates, directors, officers, managers, agents, and employees.
    C. ``Testing'' means defendant Commercial Testing, Inc., a Florida 
corporation headquartered in Fort Myers, Florida, and including its 
successors and assigns, and it subsidiaries, divisions, groups, 
affiliates, directors, officers, managers, agents, and employees.
    D. ``Daniel R. Harper'' means defendant Daniel R. Harper, an 
individual who resides in Fort Myers, Florida and is the Chairman of 
the Board and majority stockholder of Harper Bros. and the majority 
stockholder of Testing.
    E. ``Aggregate'' means crushed stone and gravel produced at 
quarries, mines, or gravel pits used to manufacture asphalt concrete 
and ready mix concrete. ``Stone products'' refer to any products 
produced at an aggregate quarry.
    F. ``Silica sand'' means sand that is naturally occurring and not 
produced at an aggregate quarry (known as ``manufactured sand''). 
Silica sand is used to produce specific types of ready mix concrete 
used in Florida Department of Transportation highway projects and 
commercial construction projects.
    G. ``Asphalt concrete'' means a paving material produced by 
combining and heating asphalt cement (also referred to in the industry 
as ``liquid asphalt'' or asphalt oil'') with aggregate.
    H. ``Ready mix concrete'' means a building material used in the 
construction of building, highways, bridges, tunnels, and other 
projects that is produced by mixing a cementing material (commonly 
portland cement) and aggregate with sufficient water to cause the 
cement to set and bind. Silica sand is combined with aggregate to 
produce specific types of ready mix concrete required for certain 
construction projects.
    I. ``Southwest Florida'' means Charlotte, Lee, and Collier Counties 
and Sarasota County south of State Route 780 in Florida. The city of 
Sarasota, Florida is located in Sarasota County, and the city of Fort 
Myers, Florida is located in Lee County.
    J. ``Alico Road Quarry'' means Florida Rock's Alico Road, Lee 
County, Florida quarry located at 11840 Alico Road, Fort Myers, Florida 
that produces aggregate and stone products, encompassing the north and 
south operations, inclusive of:
    1. All rights, titles, and interest, including all leasehold and 
renewal rights, in the Alico Road Quarry, and related maintenance 
facilities and administration buildings including, but not limited to, 
all real property and aggregate and stone products reserves, capital 
equipment, fixtures, inventories, trucks and other vehicles, licenses, 
stone crushing equipment, power supply equipment, scales, interests, 
permits, assets or improvements related to the production, 
distribution, and sale of aggregate and stone products at the Alico 
Road Quarry; and
    (2) All intangible assets, including aggregate and stone products 
reserve testing information, technical information, leases, know-how, 
safety procedures, quality assurance and control procedures, customer 
lists and credit records, contracts to supply third parties aggregate 
and stone products, associated with the Alico Road Quarry.
    K. ``Palmdale Sand Mine'' means Harper Bros.' Palmdale, Glades 
County, Florida sand mine located at 5200 U.S. 27, Northwest, Palmdale, 
Florida that produces silica sand, inclusive of:
    (1) All rights, titles, and interests, including all leasehold and 
renewal rights, in the Palmdale Sand Mine, and related maintenance 
facilities and administration buildings including, but not limited to, 
all real property and silica sand reserves, capital equipment, 
fixtures, inventories, trucks and other vehicles, licenses, sand 
washing equipment, power supply equipment, scales, interests, permits, 
assets or improvements related to the production, distribution, and 
sale of silica sand at the Alico Road Quarry; and
    (2) All intangible assets, including silica and sand reserve 
testing information, technical information, know-how, leases, safety 
procedures, quality assurance and control procedures, customer lists 
and credit records, and contracts to supply third parties silica sand 
associated with the Palmdale Sand Mine.

II. Objectives

    The Proposed Judgment filed in this case is meant to ensure Florida 
Rock's prompt divestitures of the Alico Road Quarry and the Palmadale 
Sand Mine for the purpose of maintaining viable competitors in the sale 
of aggregate and silica sand in Southwest Florida to remedy the effects 
that the United States alleges would otherwise result from Florida 
Rock's proposed acquisition of Harper Bros. This Hold Separate 
Stipulation and Order ensures, prior to such divestiture, that the 
Alico Road Quarry and the Palmdale Sand Mine that are being divested be 
maintained as an independent, economically viable, ongoing business 
concern, and that competition is maintained during the pendency of the 
diverstitute.

III. Jurisdiction and Venue

    The Court has jurisdiction over the subject matter of this action 
and over each of the parties hereto, and venue of this action is proper 
in the United States District Court for the Middle District of Florida.

IV. Hold Separate Provisions

    Until the divestiture required by the Final Judgment has been 
accomplished:
    A. Florida Rock shall preserve, maintain, and operate the Alico 
Road Quarry and the Palmdale Sand Mine assets as an independent 
competitor with management, sales and operations held entirely 
separate, distinct and apart from those of Florida Rock. Florida Rock 
shall not coordinate its production, marketing or sale of silica sand 
and aggregate or stone products with that produced by the Alico Road 
Quarry and the Palmdale Sand Mine assets. Within thirty (30) days of 
the entering of this Order, Florida Rock will inform the United States 
of the steps taken to comply with this provision.
    B. Florida Rock shall take all steps necessary to ensure that: (1) 
The Alico Road Quarry and Palmdale Sand Mine assets will be maintained 
and operated as an independent, ongoing, economically viable and active 
competitor in the production and sale of silica sand and aggregate and 
stone products in Southwest Florida; (2) management of the Alico Road 
Quarry and the Palmdale Sand Mine assets will not be influenced by 
Florida Rock; and (3) the books, records, competitively sensitive 
sales, marketing and pricing information, and decision-making 
associated with the Alico Road Quarry and the Palmdale Sand Mine assets 
will be kept separate and apart from the aggregate and stone products 
business of Florida Rock. Florida Rock's influence over the Alico Road 
Quarry and the Palmdale Sand Mine assets shall be limited to that 
necessary to carry out Florida Rock's obligations under this

[[Page 32260]]

Hold Separate Stipulation and Order and the Final Judgment.
    C. Florida Rock shall use all reasonable efforts to maintain and 
increase sales of silica sand and aggregate and stone products by the 
Alico Road Quarry and the Palmdale Sand Mine assets, and shall maintain 
at 1998 or previously approved levels, whichever are higher, 
promotional, advertising, sales, technical assistance, marketing and 
merchandising support for silica sand and aggregate and stone products 
produced or sold by the Alico Road Quarry and the Palmdale Sand Mine 
assets.
    D. Florida Rock shall provide sufficient working capital to 
maintain the Alico Road Quarry and the Palmdale Sand Mine assets as 
economically viable, competitive, and ongoing businesses.
    E. Florida Rock shall take all steps necessary to ensure that the 
Alico Road Quarry and the Palmdale Sand Mine assets are fully 
maintained in operable condition at no lower than their current rated 
capacity configurations, and shall maintain and adhere to normal repair 
and maintenance schedules for the Alico Road Quarry and the Palmdale 
Sand Mine assets.
    F. Florida Rock shall not, except as part of a divestiture approved 
by the United States in accordance with the terms of the proposed Final 
Judgment, remove, sell, lease, assign, transfer, pledge or otherwise 
dispose of any of the Alico Road Quarry and Palmdale Sand Mine assets.
    G. Florida Rock 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 every four weeks 
or every month, consistent with past practices, the assets, 
liabilities, expenses, revenues and income of the Alico Road Quarry and 
Palmdale Sand Mine assets.
    H. Except in the ordinary course of business or as is otherwise 
consistent with this Hold Separate Stipulation and Order, defendants 
shall not hire, transfer or terminate, or alter any current employment 
or salary agreements for any Florida Rock or Harper Bros. employees who 
(i) on the date of the signing of this Agreement, work at the Alico 
Road Quarry and Palmdale Sand Mine or (ii) are members of the 
management committee referenced in Section IV(I) of this Order.
    I. Until such time as the Alico Road Quarry and the Palmdale Sand 
Mine assets are divested, the assets shall be managed by Fred Buckner. 
Mr. Buckner shall have complete managerial responsibility for the Alico 
Road Quarry and the Palmdale Sand Mine, subject to the provisions of 
this Order and the Final Judgment. In the event that Mr. Buckner is 
unable to perform his duties, Florida Rock shall appoint, subject to 
the United States' approval, a replacement within ten (10) working 
days. Should Florida Rock fail to appoint a replacement acceptable to 
the United States within ten (10) working days, the United States shall 
appoint a replacement.
    J. Florida Rock shall take no action that would interfere with the 
ability of any trustee appointed pursuant to the Final Judgment to 
complete the divestiture pursuant to the Final Judgment to a suitable 
purchaser.
    K. This Hold Separate Stipulation and Order shall remain in effect 
until consummation of the divestiture contemplated by the Final 
Judgment or until further Order of the Court.

    Dated: May 25, 1999.

For Plaintiff United States:

Frederick H. Parmenter,
U.S. Department of Justice, Antitrust Division, Litigation II Section, 
Suite 3000, Washington, D.C. 20530, Telephone: (202) 307-0620, 
Facsimile: (202) 307-6283.

For Defendant Florida Rock Industries, Inc.

Eugene J. Meigher, Arent Fox,
1050 Connecticut Avenue, N.W., Washington, D.C. 20036-5339, Telephone: 
(202) 857-6048, Facsimile: (202) 857-6395.

Lewis S. Lee,
LeBoeuf, Lamb, Greene & MacRae, 50 N. Laura Street, Jacksonville, 
Florida 32202-3650, Telephone: (904) 630-5322, Facsimile: (904) 353-
1673.

For Defendants Harper Bros., Inc., Commercial Testing, Inc. and Daniel 
R. Harper

Neil Imus,
Vinson & Elkins L.L.P., The Willard Office Building, 1455 Pennsylvania 
Avenue, N.W., Washington, D.C. 20004-1008, Telephone: (202) 639-6675, 
Facsimile: (202) 639-6604.

Order

    Approved for entry and ordered \1\ this 27th day of May, 1999, at 
Jacksonville, Florda.
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    \1\ Proposed final Judgment and Final Judgment referred to 
herein are exchangeable.
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Harvey E. Schlessinger,
United States District Judge.

    United States of America, Plaintiff, v. Florida Rock Industries, 
Inc., Harper Bros., Inc., Commercial Testing, Inc., and Daniel R. 
Harper, Defendants. Civil No.: 99-516-CIV-J-2CA.

Proposed Final Judgment

    Whereas, plaintiff, the United States of America, and defendants. 
Florida Rock Industries, Inc. (``Florida Rock''), Harper Bros., Inc. 
(``Harper Bros.''), Commercial Testing, Inc. (``Testing''), and Daniel 
R. Harper, by their respective attorneys, having consented to the entry 
of this Final Judgment without trial or adjudication of any issue of 
fact or law herein, and without this Final Judgment constituting any 
evidence against or an admission by any party with respect to any issue 
of law or fact herein and that this Final Judgment shall settle all 
claims made by the United States in its Complaint filed on May 26, 
1999;
    And whereas, defendants have agreed 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 the identified assets to assure that competition 
is not substantially lessened;
    And whereas, the United States requires defendants to make certain 
divestitures for the purpose of establishing a viable competitor in the 
production and sale of aggregate and silica sand in Charlotte, Lee, and 
Collier Counties and Sarasota County south of State Route 480 in 
Florida;
    And whereas, defendants have represented to the United States that 
the divestitures ordered herein can and will be made and that 
defendants will later raise no claims of hardship or difficulty as 
grounds for asking the Court to modify any of the divestiture 
provisions contained below;
    And whereas, the United States currently believes that entry of 
this Final Judgment is in the public interest;
    Now, therefore, before the taking of any testimony, and without 
trial or adjudication of any issue of fact or law herein, and upon 
consent of the parties hereto, it is hereby ordered, adjudged, and 
decreed as follows.

I. Jurisdiction

    This Court has jurisdiction over each of the parties hereto and the 
subject matter of this action. The Complaint states a claim upon which 
relief may be granted against defendants, as hereinafter defined, under 
section 7 of the Clayton Act, as amended (15 U.S.C. 18).

II. Definitions

    As used in this Final Judgment:
    A. ``Florida Rock'' means defendant Florida Rock Industries, Inc., 
a Florida corporation headquartered in Jacksonville, Florida, and 
includes its successors and assigns, and its subsidiaries, divisions, 
groups, affiliates, directors, officers, managers, agents, and 
employees.

[[Page 32261]]

    B. ``Harper Bros.'' means defendant Harper Bros., Inc., a Florida 
corporation headquartered in Fort Myers, Florida, and includes its 
successors and assigns, and its subsidiaries, divisions, groups, 
affiliates, directors, officers, managers, agents, and employees.
    C. ``Testing'' means defendant Commercial Testing, Inc., a Florida 
corporation headquartered in Fort Myers, Florida, and includes its 
successors and assigns, and its subsidiaries, divisions, groups, 
affiliates, directors, officers, managers, agents, and employees.
    D. ``Daniel R. Harper'' means defendant Daniel R. Harper, an 
individual who resides in Fort Myers, Florida, and is the Chairman of 
the Board and majority stockholder of Harper Bros. and the majority 
stockholder of Testing.
    E. ``Aggregate'' means crushed stone and gravel produced at 
quarries, mines, or gravel pits used to manufacture asphalt concrete 
and ready mix concrete. ``Stone products'' refer to any products 
produced at an aggregate quarry.
    F. ``Silica sand'' means sand that is naturally occurring and not 
produced at an aggregate quarry (Known as ``manufactured sand''). 
Silica sand is used to produce specific types of ready mix concrete 
used in Florida Department of Transportation highway projects and 
commercial construction projects.
    G. ``Asphalt concrete'' means a paving material produced by 
combining and heating asphalt cement (also referred to in the industry 
as ``liquid asphalt'' or ``asphalt oil'') with aggregate.
    H. ``Ready mix concrete'' means a building material used in the 
construction of buildings, highways, bridges, tunnels, and other 
projects that is produced by mixing a cementing material (commonly 
portland cement) and aggregate with sufficient water to cause the 
cement to set and bind. Silica sand is combined with aggregate to 
produce specific types of ready mix concrete required for certain 
construction projects.
    I. ``Southwest Florida'' means Charlotte, Lee, and Collier Counties 
and Sarasota County south of State Route 780 in Florida. The City of 
Sarasota, Florida is located in Sarasota County, and the City of Fort 
Myers, Florida is located in Lee County.
    J. ``Alico Road Quarry'' means Florida Rock's Alico Road, Lee 
County, Florida quarry located at 11840 Alico Road, Fort Myers, Florida 
that produces aggregate and stone products, encompassing the north and 
south operations, inclusive of:
    (1) All rights, titles, and interests, including all leasehold and 
renewal rights, in the Alico Road Quarry, and related maintenance 
facilities and administration buildings including, but not limited to, 
all real property and aggregate and stone products reserves, capital 
equipment, fixtures, inventories, trucks and other vehicles, licenses, 
stone crushing equipment, power supply equipment, scales, interests, 
permits, assets or improvements related to the production, 
distribution, and sale of aggregate and stone products at the Alico 
Road Quarry; and
    (2) All intangible assets, including aggregate and stone products 
reserve testing information, technical information, leases, know-how, 
safety procedures, quality assurance and control procedures, customer 
lists and credit reports, contracts to supply third parties aggregate 
and stone products, associated with the Alico Road Quarry.
    K. ``Palmdale Sand Mine'' means Harper Bros.' Palmdale, Glades 
County, Florida sand mine located at 5200 U.S. 27, Northwest, Palmdale, 
Florida that produces silica sand inclusive of:
    (1) All rights, titles, and interests, including all leasehold and 
renewal rights, in the Palmdale Sand Mine, and related maintenance 
facilities and administration buildings including, but not limited to, 
all real property and silica sand reserves, capital equipment, 
fixtures, inventories, trucks and other vehicles, licenses, sand 
washing equipment, power supply equipment, scales, interests, permits, 
assets or improvements related to the production, distribution, and 
sale of silica sand at the Palmdale Sand Mine; and
    (2) All intangible assets, including silica sand reserve testing 
information, technical information, leases, know-how, safety 
procedures, quality assurance and control procedures, customer lists 
and credit reports, contracts to supply third parties silica sand 
associated with the Palmdale Sand Mine.
    L. ``Reserve Assets'' means the aggregate reserves leased by 
Florida Rock located in Lee County Florida, identified as Florida Rock 
Properties, Inc's properties in the following locations in Lee County, 
Florida:
    (1) West Mining Parcel: The east \1/2\ of Section 33 and the south 
1500 feet of the southeast \1/4\ of Section 28, Township 45 South, 
Range 26 East, Lee County, Florida (see Area 1 of attached map);
    (2) North Mining Parcel: The south 1500 feet of Section 27, 
Township 45 South, Range 26 East and the northwest \1/4\ of Section 34, 
Township 45 South, Range 26 East, Lee County, Florida (see Area 2 of 
attached map); and
    (3) an easement through the north 956,405 feet of Section 4, 
Township 46 South, Range 26 East, Lee County, Florida.

III. Applicability

    A. The provisions of this Final Judgment apply to the defendnats, 
their successors and assigns, subsidiaries, directors, officers, 
managers, agents, and employees, and all other persons in active 
concert or participation with any of them who shall have received 
actual notice of this Final Judgment by personal service or otherwise.
    B. Defendants shall require, as a condition of the sale or other 
disposition of the Alcio Road Quarry and the Palmdale Sand Mine, that 
the purchaser or purchasers agree to be bound by the provisions of this 
Final Judgment.

IV. Divestitures

    A. Florida Rock is hereby ordered and directed in accordance with 
the terms of this Final Judgment, within one hundred and eighty (180) 
calendar days after the filing of the proposed Final Judgment, or five 
(5) days after notice of the entry of the Final Judgment by the Court, 
whichever is later, to divest the Alico Road Quarry and the Palmdale 
Sand Mine to a purchaser or purchasers acceptable to the United States, 
in its sole discretion.
    B. Florida Rock shall use its best efforts to accomplish the 
divestiture as expeditiously and timely as possible.
    C. In accomplishing the divestitures ordered by this Final 
Judgment, Florida Rock promptly shall make known, by usual and 
customary means, the availability of the Alico Road Quarry and the 
Palmdale Sand Mine. Florida Rock shall inform any person an inquiry 
regarding a possible purchase that the sale is being made pursuant to 
this Final Judgment and provide such person with a copy of this Final 
Judgment. Florida Rock shall also offer to furnish to all prospective 
purchasers, subject to customary confidentiality assurances, all 
information regarding these assets customarily provided in a due 
diligence process except such information subject to attorney-client 
privilege or attorney work-product privilege. Florida Rock shall make 
available such information to the United States at the same time that 
such information is made available to any other person.
    D. Florida Rock shall not interfere with any negotiations by any 
purchaser to employ any Florida Rock or Harper Bros. employee who works 
at, or whose principal responsibility concerns any

[[Page 32262]]

silica sand or aggregate and stone products business that is part of 
the Palmdale Sand Mine or the Alico Road Quarry assets.
    E. As customarily provided as part of a due diligence process, 
Florida Rock shall permit prospective purchasers of the Alico Road 
Quarry and the Palmdale Sand Mine to have access to personnel and to 
make such inspection of these assets; 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.
    F. Florida Rock shall warrant to the purchaser or purchasers of the 
Alico Road Quarry and the Palmdale Sand Mine that each asset will be 
operational on the date of sale.
    G. Florida Rock shall not take any action, direct or indirect, that 
will impede in any way the operation of the Alico Road Quarry or the 
Palmdale Sand Mine.
    H. Florida Rock shall warrant to the purchaser or purchasers of the 
Alico Road Quarry and the Palmdale Sand Mine that there are no known 
material defects in the environmental, zoning, or other permits 
pertaining to the operation of these assets, and that Florida Rock with 
respect to the Alico Road Quarry and the Palmdale Sand Mine will not 
undertake, directly or indirectly, following the divestiture of these 
assets, any challenges to the environmental, zoning, or other permits 
pertaining to the operation of the assets.
    I. Unless the United States otherwise consents in writing, the 
divestiture pursuant to Section IV, whether by Florida Rock or by 
trustee appointed pursuant to Section V of this Final Judgment, shall 
include the Alico Road Quarry and the Palmdale Sand Mine and be 
accomplished by selling or otherwise conveying each asset, or such 
other assets included by the Trustee under Section V, to a purchaser or 
purchasers in such a way as to satisfy the United States, in its sole 
discretion, that the assets can and will be used by the purchaser or 
purchasers as part of a viable, ongoing business or businesses engaged 
in the manufacture and sale of aggregate and stone products and silica 
sand. The divestitures, whether pursuant to Section IV or Section V of 
this Final Judgment, shall be made to a purchaser or purchasers for 
whom it is demonstrated to the United States' sole satisfaction that 
the purchaser: (1) Has the capability and intent of competing 
effectively in the production and sale of aggregate and stone products 
and silica sand in Southwest Florida; (2) has or soon will have the 
managerial, operational, and financial capability to compete 
effectively in the production and sale of aggregate and stone products 
and silica sand in Southwest Florida; and (3) is not hindered by the 
terms of any agreement between the purchaser and Florida Rock which 
gives Florida Rock the ability unreasonably to raise the purchaser's 
cost, lower the purchaser's efficiency, or otherwise to interfere in 
the ability of the purchaser to effectively compete in Southwest 
Florida.

V. Appointment of Trustee

    A. In the event that Florida Rock has not divested the Alico Road 
Quarry or the Palmdale Sand Mine within the time specified in Section 
IV.A of this Final Judgment, the Court shall appoint, on application of 
the United States, a trustee selected by the United States and approved 
by the Court to effect the divestiture of each such asset not sold. If 
the Alico Road Quarry has not been sold, the trustee shall have the 
right, in its sole discretion, to include the Reserve Assets in the 
sale of the Alico Road Quarry.
    B. After the appointment of a trustee becomes effective, only the 
trustee shall have the right to divest any assets. The trustee shall 
have the power and authority to accomplish any and all divestitures of 
assets at the best price then obtainable upon a reasonable effort by 
the trustee, subject to the provisions of Sections IV and VIII of this 
Final Judgment, and shall have such other powers as the Court shall 
deem appropriate. Subject to Sections V(C) and VIII of this Final 
Judgment, the trustee shall have the power and authority to hire at the 
cost and expense of Florida Rock any investment bankers, attorneys, or 
other agents reasonably necessary in the judgment of the trustee to 
assist in the divestitures, and such professionals and agents shall be 
accountable solely to the trustee. The trustee shall have the power and 
authority to accomplish the divestitures at the earliest possible time 
to a purchaser acceptable to the United States, and shall have such 
other powers as this Court shall deem appropriate. Florida Rock shall 
not object to a sale by the trustee on any grounds other than the 
trustee's malfeasance. Any such objections by Florida Rock 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 of this Final Judgment.
    C. The trustee shall serve at the cost and expense of Florida Rock, 
on such terms and conditions as the Court may prescribe, 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 Florida Rock and the trust shall then 
be terminated. The compensation of such trustee and of any 
professionals and agents retained by the trustee shall be reasonable in 
light of the value of the assets to be divested and based on a fee 
arrangement providing the trustee with an incentive based on the price 
and terms of price and terms of the divestiture and the speed with 
which it is accomplished.
    D. Florida Rock shall use its best efforts to assist the trustee in 
accomplishing the required divestiture, including best effort to effect 
all necessary regulatory approvals. 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 businesses to be divested, and Florida Rock shall 
develop financial or other information relevant to the businesses to be 
divested customarily provided in a due diligence process as the trustee 
may reasonably request, subject to customary confidential assurances. 
Florida Rock shall permit prospective acquirers of the assets to have 
reasonable access to personnel and to make such inspection of physical 
facilities and any and all financial, operational or other documents 
and other information as may be relevant to the divestiture required by 
this Final Judgment.
    E. After its appointment, the trustee shall file monthly reports 
with the parties and the Court setting forth the trustee's efforts to 
accomplish the divestiture ordered under this Final Judgment; provided, 
however, that 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, expresses an interest in acquiring, 
entered into negotiations to acquire, or was contacted or made an 
inquiry about acquiring, any interest in any of the businesses to be 
divested, and shall describe in detail each contact with any such 
person during that period. The trustee shall maintain full records of 
all efforts made to sell the assets to be divested.

[[Page 32263]]

    F. If the trustee has not accomplished such divestiture within six 
(6) months after its appointment, the trustee thereupon 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; provided, however, 
that 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 parties, who shall each have the right to be heard and to 
make additional recommendations consistant with the purpose of the 
trust. The Court shall enter thereafter such orders as it shall deem 
appropriate in order to carry out the purpose of the trust, which may, 
if necessary, include extending the trust and the term of the trustee's 
appointment by a period requested by the United States.
    G. The conduct or actions shall be subject to review by the Court 
upon the application of any party here to.

Notification

    Within two (2) business days following execution of a definitive 
agreement, contingent upon compliance with the terms of this Final 
Judgment, to effect, in whole or in part, any proposed divestiture 
pursuant to Sections IV or V of this Final Judgment. Florida Rock or 
the trustee, whichever is then responsible for effecting the 
divestiture, shall notify the United States of the proposed 
divestiture. If the trustee is responsible, it shall similarly notify 
the United States of the proposed divestiture. If the trustee is 
responsible, it shall similarly notify Florida Rock. The notice shall 
set forth the details of the proposed transaction and list the name, 
address, and telephone number of each person not previously identified 
who offered to, or expressed an interest in or a desire to, acquire any 
ownership interest in the businesses to be divested that are the 
subject of the binding contract, together with full details of same. 
Within fifteen (15) calendar days of receipt by the United States of 
such notice, the United States, in its sole discretion, may request 
from Florida Rock, the proposed purchaser, or any other third party 
additional information concerning the proposed divestiture and the 
proposed purchaser. Florida Rock 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 (2) calendar days after the United States has been provided the 
additional information requested from Florida Rock, the proposed 
purchaser, and any third party, whichever is later, the United States 
shall provide written notice to Florida Rock and the trustee, if there 
is one, stating whether or not it objects to the proposed divestiture 
if the United States provides written notice to Florida Rock and the 
trustee that it does not object, then the divestiture may be 
consummated, subject only to Florida Rock's limited right to object to 
the sale under Section V(B) of this Final Judgment. Upon objection by 
the United States, a divestiture proposed under Section IV or Section V 
may not be consummated. Upon objection by Florida Rock under the 
provision in Section V(B), a divestiture proposed under Section V shall 
not be consummated unless approved by the Court.

VII. Affidavits

    A. Within twenty (20) calendar days of the filing of this Final 
Judgment and every thirty (30) calendar days thereafter until the 
divestitures have been completed whether pursuant to Section IV or 
Section V of this Final Judgment, Florida Rock shall deliver to the 
United States an affidavit as to the fact and manner of compliance with 
sections IV or V of this Final Judgment. Each such affidavit shall 
include, inter alia, the name, address, and telephone number of each 
person who, at any time after the period covered by the last such 
report, 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 assets to be 
divested, 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 that Florida Rock has taken to solicit a 
buyer for any of the assets to be divested 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 Florida Rock, including limitations on 
information, shall be made within (14) days of receipt of such 
affidavit.
    B. Within twenty (20) calendar days of the filing of this Final 
Judgment, Florida Rock shall deliver to the United States an affidavit 
which describes in detail all actions Florida Rock has taken and all 
steps Florida Rock has implemented on an on-going basis to preserve the 
Alico Road Quarry and the Palmdale Sand Mine pursuant to Section VIII 
of this Final Judgment and the Hold Separate Stipulation and Order 
entered by the Court. The affidavit also shall describe, but not be 
limited to, Florida Rock's efforts to maintain and operate the Alico 
Road Quarry and the Palmdale Sand Mine as active competitors, maintain 
the management, sales, marketing and pricing of each asset, and 
maintain each asset in operable condition at current capacity 
configurations. Florida Rock shall deliver to the United States an 
affidavit describing any changes to the efforts and actions outlined in 
Florida Rock's earlier affidavit(s) filed pursuant to this Section 
within fifteen (15) calendar days after the change is implemented.
    C. Until one year after such divestiture has been completed, 
Florida Rock shall preserve all records of all efforts made to preserve 
the Alico Road Quarry and the Palmdale Sand Mine and to effect the 
ordered divestitures.

VIII. Hold Separate Order

    Until the divestitures required by the 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 divestiture 
of the Alico Road Quarry and the Palmdale Sand Mine.

IX. Financing

    Florida Rock is ordered and directed not to finance all or any part 
of any purchase by an acquirer made pursuant to Sections IV or V of 
this Final Judgment.

X. Compliance Inspection

    For the purposes of determining or securing compliance with the 
Final Judgment and subject to any legally recognized privilege, from 
time to time:
    A. Duly authorized representatives of the United States Department 
of Justice, upon written request of the Attorney General or of the 
Assistant Attorney General in charge of the Antitrust Division, and on 
reasonable notice to Florida Rock made to its principal offices, shall 
be permitted:
    (1) Access during office hours of Florida Rock to inspect and copy 
all books, ledgers, accounts, correspondence, memoranda, and other 
records and documents in the possession or under the control of Florida 
Rock, who may have counsel present, relating to the matters contained 
in this Final Judgment and the Hold Separate Stipulation and Order; and

[[Page 32264]]

    (2) Subject to the reasonable convenience of Florida Rock and 
without restraint or interference from it, to interview, either 
informally or on the record, its officers, employees, and agents, who 
may have counsel present, regarding any such matters.
    B. Upon the written request of the Attorney General or of the 
Assistant Attorney General in charge of the Antitrust Division, made to 
Florida Rock's principal offices, Florida Rock shall submit such 
written reports, under oath if requested, with respect to any matter 
contained in the Final Judgment and the Hold Separate Stipulation and 
Order.
    C. No information or documents obtained by the means provided in 
Section VII or X of this Final Judgment shall be divulged by a 
representative of the United States to any person other than a duly 
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 Florida 
Rock to the United States. Florida Rock represents and identifies in 
writing the material in any such information or documents to which a 
claim of protection may be asserted under Rule 26(c)(7) of the Federal 
Rules of Civil Procedure, and Florida Rock marks each pertinent page of 
such material. ``Subject to claim of protection under Rule 26(c)(7) of 
the Federal Rules of Civil Procedure,'' then ten (10) calendar days 
notice shall be given by the United States to Florida Rock prior to 
divulging such material in any legal proceeding (other than a grand 
jury proceeding) to which Florida Rock is not a party.

XI. Retention of Jurisdiction

    Jurisdiction is retained by this Court for the purpose of enabling 
any of the parties to this Final Judgment to apply to this Court at any 
time for such further orders and directions as may be necessary or 
appropriate for the construction or carrying out of this Final 
Judgment, for the modification of any of the provisions hereof, for the 
enforcement of compliance herewith, and for the punishment of any 
violations hereof.

XII. Termination

    Unless this Court grants an extension, this Final Judgment will 
expire on the tenth anniversary of the date of its entry.

XIII. Public Interest

    Entry of this Final Judgment is in the public interest.
    Done and ordered this ______ day of ____________, 1999, 
Jacksonville, Florida.
----------------------------------------------------------------------
United States District Judge.

    United States of America, Plaintiff, v. Florida Rock Industries, 
Inc.; Harper Bros., Inc.; Commercial Testing, Inc.; and Daniel R. 
Harper, Defendants. [Civil No. 99-516-CIV-J-20A].

Proposed Final Judgment

    Whereas, plaintiff, the United States of America, and defendants, 
Florida Rock Industries, Inc. (``Florida Rock''), Harper Bros., Inc. 
(``Harper Bros.''), Commercial Testing, Inc. (``Testing''), and Daniel 
R. Harper, by their respective attorneys, having consented to the entry 
of this Final Judgment without trial or adjudication of any issue of 
fact or law herein, and without this Final Judgment constituting any 
evidence against or an admission by any party with respect to any issue 
of law or fact herein and that this Final Judgment shall settle all 
claims made by the United States in its Complaint filed on May 26, 
1999;
    And whereas, defendants have agreed 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 the identified assets to assure that competition 
is not substantially lessened;
    And whereas, the United States requires defendants to make certain 
divestitures for the purpose of establishing a viable competitor in the 
production and sale of aggregate and silica sand in Charlotte, Lee, and 
Collier Counties and Sarasota County south of State Route 480 in 
Florida;
    And whereas, defendants have represented to the United States that 
the divestitures ordered herein can and will be made and that 
defendants will later raise no claims of hardship or difficulty as 
grounds for asking the Court to modify any of the divestiture 
provisions contained below;
    And whereas, the United States currently believes that entry of 
this Final Judgment is in the public interest;
    Now, therefore, before the taking of any testimony, and without 
trial or adjudication of any issue of fact or law herein, and upon 
consent of the parties hereto, it is hereby ordered, adjudged, and 
decreed as follows:

I. Jurisdiction

    This Court has jurisdiction over each of the parties hereto and the 
subject matter of this action. The Complaint states a claim upon which 
relief may be granted against defendants, as hereinafter defined, under 
Section 7 of the Clayton Act, as amended (15 U.S.C. 18).

II. Definitions

    As used in this Final Judgment:
    A. ``Florida Rock'' means defendant Florida Rock Industries, Inc., 
a Florida corporation headquartered in Jacksonville, Florida, and 
includes its successors and assigns, and its subsidiaries, divisions, 
groups, affiliates, directors, officers, managers, agents, and 
employees.
    B. ``Harper Bros.'' means defendant Harper Bros., Inc., a Florida 
corporation headquartered in Fort Myers, Florida, and includes its 
successors and assigns, and its subsidiaries, divisions, groups, 
affiliates, directors, officers, managers, agents, and employees.
    C. ``Testing'' means defendant Commercial Testing, Inc., a Florida 
corporation headquartered in Fort Myers, Florida, and includes its 
successors and assigns, and its subsidiaries, divisions, groups, 
affiliates, directors, officers, managers, agents, and employees.
    D. ``Daniel R. Harper'' means defendant Daniel R. Harper, an 
individual who resides in Fort Myers, Florida, and is the Chairman of 
the Board and majority stockholder of Harper Bros. and the majority 
stockholder of Testing.
    E. ``Aggregate'' means crushed stone and gravel produced at 
quarries, mines, or gravel pits used to manufacture asphalt concrete 
and ready mix concrete. ``Stone products'' refer to any products 
produced at an aggregate quarry.
    F. ``Silica sand'' means sand that is naturally occurring and not 
produced at an aggregate quarry (known as ``manufactured sand''). 
Silica sand is used to produce specific types of ready mix concrete 
used in Florida Department of Transportation highway projects and 
commercial construction projects.
    G. ``Asphalt concrete'' means a paving material produced by 
combining and heating asphalt cement (also referred to in the industry 
as ``liquid asphalt'' or ``asphalt oil'') with aggregate.
    H. ``Ready mix concrete'' means a building material used in the 
construction of buildings, highways, bridges, tunnels, and other 
projects that is produced by mixing a cementing

[[Page 32265]]

material (commonly portland cement) and aggregate with sufficient water 
to cause the cement to set and bind. Silica sand is combine with 
aggregate to produced specific types of ready mix concrete required for 
certain construction projects.
    I. ``Southwest Florida'' means Charlotte, Lee, and Collier Counties 
and Sarasota County south of State Route 780 in Florida. The City of 
Sarasota, Florida is located in Sarasota County, and the City of Fort 
Myers, Florida is located in Lee County.
    J. ``Alico Road Quarry'' means Florida Rock's Alico Road, Lee 
County, Florida quarry located at 11840 Alico Road, Fort Myers, Florida 
that produces aggregate and stone products, encompassing the north and 
south operations, inclusive of:
    (1) All rights, titles, and interests, including all leasehold and 
renewal rights, in the Alico Road Quarry, and related maintenance 
facilities and administration buildings including, but not limited to, 
all real property and aggregate and stone products reserves, capital 
equipment, fixtures, inventories, trucks and other vehicles, licenses, 
stone crushing equipment, power supply equipment, scales, interests, 
permits, assets or improvements related to the production, 
distribution, and sale of aggregate and stone products at the Alico 
Road Quarry; and
    (2) All intangible assets, including aggregate and stone products 
reserve testing information, technical information, leases, know-how, 
safety procedures, quality assurance and control procedures, customer 
lists and credit reports, contracts to supply third parties aggregate 
and stone products, associated with the Alico Road Quarry.
    K. ``Palmdale Sand Mine'' means Harper Bros. Palmdale, Glades 
County, Florida sand mine located at 5200 U.S. 27, Northwest, Palmdale, 
Florida that produces silica sand inclusive of:
    (1) All rights, titles, and interests, including all leasehold and 
renewal rights, in the Palmdale San Mine, and related maintenance 
facilities and administration buildings, including, but not limited to, 
all real property and silica sand reserves, capital equipment, 
fixtures, inventories, trucks and other vehicles, licenses, and sand 
washing equipment, power supply equipment, scales, interests, permits 
assets or improvements related to the production, distribution, and 
sale of silica sand at the Palmdale Sand Mine; and
    (2) All intangible assets, including silica sand reserve testing 
information, technical information, leases, know-how, safety 
procedures, quality assurance and control procedures, customer lists 
and credit reports, contracts to supply third parties silica sand 
associated with the Palmdale Sand Mine.
    L. ``Reserve Assets'' means the aggregate reserves leased by 
Florida Rock located in Lee County, Florida, identified as Florida Rock 
Properties, Inc.'s properties in the following locations in Lee County, 
Florida:
    (1) West Mining Parcel: The east \1/2\ of Section 33 and the south 
1500 feet of the southeast \1/4\ of Section 28, Township 45 South, 
Range 26 East, Lee County, Florida (see Area 1 of attached map);
    (2) North Mining Parcel: The south 1500 feet of Section 27, 
Township 45 South, Range 26 East and the northwest \1/4\ of Section 34, 
Township 45 South, Range 26 East, Lee County, Florida (see Area 2 of 
attached map); and
    (3) An easement through the north 959.405 feet of Section 4, 
Township 46 South, Range 26 East, Lee County, Florida.

III. Applicability

    A. The provision of this Final Judgment apply to the defendants, 
their successors and assigns, subsidiaries, directors, officers, 
managers, agents, and employeers, and all other persons in active 
concert or participation with any of them who shall have received 
actual notice of this Final Judgment by personal service or otherwise.
    B. Defendants shall require, as a condition of the sale or other 
disposition of the Alico Road Quarry and the Palmdale Sand Mine, that 
the purchaser or purchasers agree to be bound by the provisions of this 
Final Judgment.

IV. Divestitures

    A. Florida Rock is hereby ordered and directed in accordance with 
the terms of this Final Judgment, within one hundred and eighty (180) 
calendar days after the filing of the proposed Final Judgment, or five 
(5) days after notice of the entry of this Final Judgment by the Court, 
whichever is later, to divest the Alico Road Quarry and the Palmdale 
Sand Mine to a purchaser or purchasers acceptable to the United States, 
in its sole discretion.
    B. Florida Rock shall use its best efforts to accomplish the 
divestiture as expeditiously and timely as possible.
    C. In accomplishing the divestitures ordered by this Final 
Judgment, Florida Rock promptly shall make known, by usual and 
customary means, the availability of the Alico Road Quarry and the 
Palmdale Sand Mine. Florida Rock shall inform any person making an 
inquiry regarding a possible purchase that the sale is being made 
pursuant to this Final Judgment and provide such person with a copy of 
this Final Judgment. Florida Rock shall also offer to furnish to all 
prospective purchasers, subject to customary confidentiality 
assurances, all information regarding these assets customarily provided 
in a due diligence process except such information subject to attorney-
client privilege or attorney work-product privilege. Florida Rock shall 
make available such information to the United States at the same time 
that such information is made available to any other person.
    D. Florida Rock shall not interfere with any negotiations by any 
purchaser to employ any Florida Rock or Harper Bros. employee who works 
at, or whose principal responsibility concerns any silica sand or 
aggregate and stone products business that is part of the Palmdale Sand 
Mine or the Alico Road Quarry assets.
    E. As customarily provided as part of a due diligence process, 
Florida Rock shall permit prospective purchasers of the Alico Road 
Quarry and the Palmdale Sand Mine to have access to personnel and to 
make such inspection of these assets; 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.
    F. Florida Rock shall warrant to the purchaser or purchasers of the 
Alico Road Quarry and the Palmdale Sand Mine that each asset will be 
operational on the date of sale.
    G. Florida Rock shall not take any action, direct or indirect, that 
will impede in any way the operation of the Alico Road Quarry or the 
Palmdale Sand Mine.
    H. Florida Rock shall warrant to the purchaser or purchasers of the 
Alico Road Quarry and the Palmdale Sand Mine that there are no known 
material defects in the environmental, zoning, or other permits 
pertaining to the operation of these assets, and that Florida Rock with 
respect to the Alico Road Quarry and the Palmdale Sand Mine will not 
undertake, directly or indirectly, following the divestiture of these 
assets, any challenges to the environmental, zoning, or other permits 
pertaining to the operation of the assets.
    1. Unless the United States otherwise consents in writing, the 
divestiture pursuant to Section IV, whether by Florida Rock or by 
trustees appointed pursuant to Section V of this Final Judgment, shall 
include the Alico Road Quarry and the Palmdale Sand Mine and be 
accomplished by selling or otherwise conveying each assets, or such 
other assets included by the

[[Page 32266]]

Trustee under Section V, to a purchaser or purchasers in such a way as 
to satisfy the United States, in its sole discretion, that the assets 
can and will be used by the purchaser or purchasers as part of a 
viable, ongoing business or businesses engaged in the manufacturer and 
sale of aggregate and stone products and silica sand. The divestitures, 
whether pursuant to Section IV or Section V of this Final Judgment, 
shall be made to a purchaser or purchasers for whom it is demonstrated 
to the United States' sole satisfaction that the purchasers: (1) Has 
the capability and intent of competing effectively in the production 
and sale of aggregate and stone products and silica sand in Southwest 
Florida; (2) has or soon will have the managerial, operational, and 
financial capability to compete effectively in the production and sale 
of aggregate and stone products and silica sand in Southwest Florida; 
and (3) is not hindered by the terms of any agreement between the 
purchaser and Florida Rock which gives Florida Rock the ability 
unreasonably to raise the purchaser's costs, lower the purchaser's 
efficiency, or otherwise to interfere in the ability of the purchaser 
to effectively compete in Southwest Florida.

V. Appointment of Trustee

    A. In the event that Florida Rock has not divested the Alico Road 
Quarry or the Palmdale Sand Mine within the time specified in Section 
IV. A of this Final Judgment, the Court shall appoint, on application 
of the United States, a trustee selected by the United States and 
approved by the Court to effect the divestiture of each such asset not 
sold. If the Alico Road Quarry has not been sold, the trustee shall 
have the right, in its sole discretion, to include the Reserve Assets 
in the sale of the Alico Road Quarry.
    B. After the appointment of a trustee becomes effective, only the 
trustee shall have the right to divest any assets. The trustee shall 
have the power and authority to accomplish any and all divestitures of 
assets at the best price then obtainable upon a reasonable effort by 
the trustee, subject to the provisions of Sections IV and VIII of this 
Final Judgment, and shall have such other powers as the Court shall 
deem appropriate. Subject to Sections V(C) and VIII of this Final 
Judgment, the trustee shall have the power and authority to hire at the 
cost and expense of Florida Rock any investment bankers, attorneys, or 
other grants reasonably necessary in the judgment of the trustee to 
assist in the divestitures, and such professionals and agents shall be 
accountably solely to the trustee. The trustee shall have the power and 
authority to accomplish the divestitures at the earliest possible time 
to a purchaser acceptable to the United States, and shall have such 
other powers as this Court shall deem appropriate. Florida Rock shall 
not object to a sale by the trustee on any grounds other than the 
trustee's malfeasance. Any such objections by Florida Rock 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 of this Final Judgment.
    C. The trustee shall serve at the cost and expense of Florida Rock, 
on such terms and conditions as the Court may prescribe, 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 Florida Rock and the trust shall then 
be terminated. The compensation of such trustee and of any 
professionals and agents retained by the trustee shall be reasonable in 
light of the value of the assets to be divested 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.
    D. Florida Rock shall use its best efforts to assist the trustee in 
accomplishing the required divestiture, including best effort to effect 
all necessary regulatory approvals. 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 businesses to be divested, and Florida Rock shall 
develop financial or other information relevant to the businesses to be 
divested customarily provided in a due diligence process as the trustee 
may reasonably request, subject to customary confidential assurances. 
Florida Rock shall permit prospective acquirers of the assets to have 
reasonable access to personnel and to make such inspection of physical 
facilities and any and all financial, operational or other documents 
and other information as may be relevant to the divestiture required by 
this Final Judgment.
    E. After its appointment, the trustee shall file monthly reports 
with the parties and the Court setting forth the trustee's efforts to 
accomplish the divestiture ordered under this Final Judgment; provided, 
however, that to the extent shall 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, expresses an interest in acquiring, 
entered into negotiations to acquire, or was contacted or made an 
inquiry about acquiring, any interest in any of the businesses to be 
divested, and shall describe in detail each contact with any such 
person during that period. The trustee shall maintain full records of 
all efforts made to sell the assets to be divested.
    F. If the trustee has not accomplished such divestiture within six 
(6) months after its appointment, the trustee thereupon 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; provided, however, 
that 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 parties, who shall each have the right to be heard and to 
make additional recommendations consistent with the purpose of the 
trust. The Court shall enter thereafter such orders as it shall deem 
appropriate in order to carry out the purpose of the trust, which may, 
if necessary, include extending the trust and the term of the trustee's 
appointment by a period requested by the United States, or
    G. The conduct on actions of the trustee shall be subject to review 
by the Court upon the application of any party here to.

VI. Notification

    Within two (2) business days following execution of a definitive 
agreement, contingent upon compliance with the terms of this Final 
Judgment, to effect, in whole or in part, any proposed divestiture 
pursuant to Sections IV or V of this Final Judgment, Florida Rock or 
the trustee, whichever is then responsible for effecting the 
divestiture, shall notify the United States of the proposed 
divestiture. If the trustee is responsible, it shall similarly notify 
Florida Rock. The notice shall set forth the details of the proposed 
transaction and list the name, address, and telephone number of each 
person not previously identified who offered to, or expressed an 
interest in or a desire to,

[[Page 32267]]

acquire any ownership interest in the businesses to be divested that 
are the subject of the binding contract, together with full details of 
same. Within fifteen (15) calendar days of receipt by the United States 
of such notice, the United States, in its sole discretion, may request 
from Florida Rock, the proposed purchaser, or any other third party 
additional information concerning the proposed divestiture and the 
proposed purchaser. Florida Rock 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 Florida Rock, the proposed 
purchaser, and any third party, whichever is later, the United States 
shall provide written notice to Florida Rock and the trustee, if there 
is one, stating whether or not it objects to the proposed divestiture. 
If the United States provides written notice to Florida Rock and the 
trustee that it does not object, then the divestiture may be 
consummated, subject only to Florida Rock's limited right to object to 
the sale under Section V(B) of this Final Judgment. Upon objection by 
the United States, a divestiture proposed under Section IV or Section V 
may not be consummated. Upon objection by Florida Rock under the 
provision in Section V(B), a divestiture proposed under Section V shall 
not be consummated unless approved by the Court.

VII. Affidavits

    A. Within twenty (20) calendar days of the filing of this Final 
Judgment and every thirty (30) calendar days thereafter until the 
divestitures have been completed whether pursuant to Section IV or 
Section V of this Final Judgment, Florida Rock shall deliver to the 
United States an affidavit as to the fact and manner of compliance with 
Sections IV or V of this Final Judgment. Each such affidavit shall 
include, inter alia, the name, address, and telephone number of each 
person who, at any time after the period covered by the last such 
report, 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 assets to be 
divested, 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 that Florida Rock has taken to solicit a 
buyer for any of the assets to be divested 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 Florida Rock, including limitations on 
information, shall be made within (14) days of receipt of such 
affidavit.
    B. Within twenty (20) calendar days of the filing of this Final 
Judgment, Florida Rock shall deliver to the United States an affidavit 
which describes in detail all actions Florida Rock has taken and all 
steps Florida Rock has implemented on an on-going basis to preserve the 
Alico Road Quarry and the Palmdale Sand Mine pursuant to Section VIII 
of this Final Judgment and the Hold Separate Stipulation and Order 
entered by the Court. The affidavit also shall describe, but not be 
limited to, Florida Rock's effort to maintain and operate the Alico 
Road Quarry and the Palmdale Sand Mine as active competitors, maintain 
the management, sales, marketing and pricing of each asset, and 
maintain each asset in operable condition at current capacity 
configurations. Florida Rock shall deliver to the United States an 
affidavit describing any changes to the efforts and actions outlined in 
Florida Rock's earlier affidavit(s) filed pursuant to this Section 
within fifteen (15) calendar days after the change is implemented.
    C. Until one year after such divestiture has been completed, 
Florida Rock shall preserve all records of all efforts made to preserve 
the Alico Road Quarry and the Palmdale Sand Mine and to effect the 
ordered divestitures.

VIII. Hold Separate Order

    Until the divestitures required by the 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 divestiture 
of the Alico Road Quarry and the Palmdale Sand Mine.

IX. Financing

    Florida Rock is ordered and directed not to finance all or any part 
of any purchase by an acquirer made pursuant to Sections IV or V of 
this Final Judgment.

X. Compliance Inspection

    For the purposes of determining or securing compliance with the 
Final Judgment and subject to any legally recognized privilege, from 
time to time:
    A. Duly authorized representatives of the United States Department 
of Justice, upon written request of the Attorney General or of the 
Assistant Attorney General in charge of the Antitrust Division, and on 
reasonable notice to Florida Rock made to its principal offices, shall 
be permitted:
    (1) Access during office hours of Florida Rock to inspect and copy 
all books, ledgers, accounts, correspondence, memoranda, and other 
records and documents in the possession or under the control of Florida 
Rock, who may have counsel present, relating to the matters contained 
in this Final Judgment and the Hold Separate Stipulation and Order; and
    (2) Subject to the reasonable convenience of Florida Rock and 
without restraint or interference from it, to interview, either 
informally or on the record, its officers, employees, and agents, who 
may have counsel present, regarding any such matters.
    B. Upon the written request of the Attorney General or of the 
Assistant Attorney General in charge of the Antitrust Division, made to 
Florida Rock's principal offices, Florida Rock shall submit such 
written reports, under oath if requested, with respect to any matter 
contained in the Final Judgment and the Hold Separate Stipulation and 
Order.
    C. No information or documents obtained by the means provided in 
Section VII or X of this Final Judgment shall be divulged by a 
representative of the United States to any person other than a duly 
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 Florida 
Rock to the United States, Florida Rock represents and identifies in 
writing the material in any such information or documents to which a 
claim of protection may be asserted under Rule 26(c)(7) of the Federal 
Rules of Civil Procedure, and Florida Rock marks each pertinent page of 
such material, ``Subject to claim of protection under Rule 26(c)(7) of 
the Federal Rules of Civil Procedure,'' then ten (10) calendar days 
notice shall be given by the United States to Florida Rock prior to 
divulging such material in any legal proceeding (other than a grand 
jury proceeding) to which Florida Rock is not a party.

[[Page 32268]]

XI. Retention of Jurisdiction

    Jurisdiction is retained by this Court for the purpose of enabling 
any of the parties to this Final Judgment to apply to this Court at any 
time for such further orders and directions as may be necessary or 
appropriate for the construction or carrying out of this Final 
Judgment, for the modification of any of the provisions hereof, for the 
enforcement of compliance herewith, and for the punishment of any 
violations hereof.

XII. Termination

    Unless this Court grants an extension, this Final Judgment will 
expire on the tenth anniversary of the date of its entry.

XIII. Public Interest

    Entry of this Final Judgment is in the public interest.
    DONE and ORDERED this ______ day of ____________ 1999, 
Jacksonville, Florida.
----------------------------------------------------------------------
United States District Judge.

    A copy of the tract map can be obtained from the U.S. Department of 
Justice, Antitrust Division, 202-514-2481.

    United States of America, Plaintiff, v. Florida Rock Industries, 
Inc.; Harper Bros., Inc.; Commercial Testing, Inc.; and Daniel R. 
Harper, Defendants. [Civil No.: 99-516-CIV-J-20A; Filed: 5/26/99.]

Competitive Impact Statement

    The United States, pursuant to section 2(b) of the Antitrust 
Procedures and Penalties Act (``APPA''), 15 U.S.C. 16(b)-(h), files 
this Competitive Impact Statement relating to the proposed Final 
Judgment submitted for entry in this civil antitrust proceeding.

I. Nature and Purpose of The Proceeding

    The United States filed a civil antitrust Compliant under section 
15 of the Clayton Act, 15 U.S.C. 25, on May 26, 1999, alleging that the 
proposed acquisition by Florida Rock Industries, Inc. (``Florida 
Rock'') of Harper Bros., Inc. (``Harper Bros.'') and Commercial 
Testing, Inc. (``Testing'') pursuant to a letter of intent entered into 
on May 5, 1999, would violate Section 7 of the Clayton Act, 15 U.S.C. 
18.
    The Complaint alleges that a combination of two of only three 
significant competitors in the aggregate and silica sand markets in 
Charlotte, Lee, and Collier Counties and Sarasota County south of State 
Route 780 in Florida (``Southwest Florida'') would lessen competition 
in the production and sale of aggregate and silica sand in Southwest 
Florida. The prayer for relief in the Complaint seeks: (1) A judgment 
that the proposed acquisition would violate Section 7 of the Clayton 
Act; (2) a permanent injunction preventing Florida Rock from acquiring 
control of Harper Bros., Testing, and 320 acres of land, or otherwise 
combining with the businesses of Harper Bros. and Testing; (3) the 
United States be awarded costs; and (4) other relief as the Court deems 
just and proper.
    When the Complaint was filed, the United States also filed a 
proposed settlement that would permit Florida Rock to complete its 
acquisition of Harper Bros., Testing, and 320 acres of land, but 
require a certain divestiture that will preserve in the Southwest 
Florida aggregate and silica sand markets. This settlement consists of 
a Stipulation and Order, a proposed Final Judgment and a Hold Separate 
Stipulation and Order.
    The proposed Final Judgment orders Florida Rock to divest the 
Florida Rock Alico Road Quarry located in Lee County, Florida, the 
Harper Bros. Palmdale Sand Mine located in Glades County, Florida, and 
certain related tangible and intangible assets associated with the 
facilities. Florida Rock must complete the divestiture of this quarry 
and related assets within one hundred and eighty (180) calendar days 
after the date on which the proposed Final Judgment was filed (i.e., 
May 26, 1999) or within 5 days after notice of the entry of the Final 
Judgment by the Court, whichever is later, in accordance with the 
procedure specified therein. If Florida Rock does not do so within the 
time frame in the proposed Final Judgment, a trustee appointed by the 
Court would be empowered for an additional six months to sell the 
assets. If a trustee must undertake to divest the Alico Road Quarry, 
the trustee has the option of adding certain Florida Rock aggregate 
reserve parcels that are contiguous to the Alico Road Quarry to the 
divestiture package.
    The Stipulation and Order, proposed Final Judgment and Hold 
Separate Stipulation and Order require Florida Rock to ensure that the 
Alico Road Quarry, the Palmdale Sand Mine, and related assets to be 
divested will be maintained and operated as an independent, ongoing, 
economically viable and active competitor until the divestitures 
mandated by the proposed Final Judgment have been accomplished. Final 
Rock must preserve and maintain the quarry and sand mine to be divested 
as saleable and economically viable, ongoing concerns, with 
competitively sensitive business information and decision-making 
divorced from that of Florida Rock's other aggregate and silica sand 
businesses. Florida Rock will appoint a person to monitor and ensure 
its compliance with these requirements of the proposed Final Judgment.
    The United States and defendants have stipulated that the proposed 
Final Judgment may be entered after compliance with the APPA. Entry of 
the proposed Final Judgment would terminate this action, except that 
the Court would retain jurisdiction to construe, modify, or enforce the 
provisions of the proposed Final Judgment and to punish violations 
thereof.

II. Description of the Events Giving Rise to The Alleged Violation

A. Florida Rock, Harper Bros., Testing, and the Proposed Transaction

    Florida Rock is a Florida corporation with headquarters in 
Jacksonville, Florida. Florida Rock operates in Florida, Georgia, 
Virginia, Maryland, Washington, DC, and North Carolina. One of its 
principal businesses is extracting and selling aggregate and silica 
sand. Florida Rock is engaged in the business of selling aggregate and 
silica sand in Southwest Florida. In Lee County, Florida Rock operates 
the Alico Road Quarry that produces aggregate, and in Glades County, it 
operates the Witherspoon Sand Mine which produces silica sand. In 1997, 
Florida Rock had sales of approximately $456 million.
    Harper Bros. is a Florida corporation with headquarters in Fort 
Myers, Florida. One of Harper Bros.' principal business is extracting 
and processing aggregates and silica sand. Harper Bros. is engaged in 
the business of selling aggregate and silica sand in Southwest Florida. 
In Lee County, Harper Bros. operates the Alico Road Mine that produces 
aggregate, and in Glades County, it operates the Palmdale Sand Mine 
which produces silica sand. In 1997, Harper Bros. had sales of 
approximately $44 million.
    On July 21, 1998, through a letter of intent that was supplemented 
on August 26, 1998, Florida Rock agreed to acquire all of the 
outstanding capital stock of Harper Bros., Testing and 320 acres of 
land. The letter of intent lapsed on January 2, 1999, and a subsequent 
letter of intent was entered into by the defendants on May 5, 1999. The 
purchase price is approximately $87.5 million. This transaction, which 
would take place in the highly concentrated Southwest Florida aggregate 
and silica sand industries, precipitated the government's suit.

[[Page 32269]]

B. The Transaction's Effects in Southwest Florida

    The Complaint alleges that, the production and sale of aggregate 
and silica sand constitute two distinct lines of commerce, or relevant 
product markets, for antitrust purposes, and that Southwest Florida 
constitutes a section of the country, or relevant geographic market. 
The complaint alleges that the effect of Florida Rock's acquisition may 
be to lessen competition substantially in the production and sale of 
aggregate and silica sand in Southwest Florida.
    Aggregate is a stone product used to manufacture asphalt concrete 
and ready mix concrete. Aggregate differs from all other types of stone 
products in its physical composition, functional characteristics, 
customary uses, and pricing. It must meet Florida Department of 
Transportation or American Society of Testing Material's specifications 
for the specific type of asphalt concrete or ready mix concrete being 
produced. Manufacturers of asphalt concrete and ready mix concrete in 
Southwest Florida do not view other types of stone products as good 
substitutes. The production and sale of aggregate used to manufacture 
asphalt concrete and ready mix concrete constitutes a line of commerce 
and a relevant market for antitrust purposes.
    Silica sand differs from sand that is manufactured from stone 
products (manufactured sand is the alternative to silica sand) in its 
physical composition, functional characteristics, and customary uses. 
The Florida Department of Transportation requires silica sand to be 
used in ready mix concrete whenever the ready mix concrete is used as a 
surface for vehicular traffic. Commercial contractors use silica sand 
in place of, or in combination with, manufactured sand to manufacture 
ready mix concrete when superior pumping or finishing qualities are 
required. Manufacturers of ready mix concrete recognizes silica sand as 
a distinct product. The production and sale of silica sand used to 
manufacture specific types of ready mix concrete constitutes a line of 
commerce and a relevant market for antitrust purposes.
    Producers of aggregate and/or silica sand located in or near 
Southwest Florida sell and compete with each other for sales of 
aggregate and silica sand in Southwest Florida. Due to high 
transportation costs and long delivery time, producers of aggregate 
and/or silica sand not located in or near Southwest Florida do not sell 
a significant amount of aggregate and/or silica sand for use within 
Southwest Florida.
    The Complaint alleges that Florida Rock's acquisition of Harper 
Bros. would substantially lessen competition for the production and 
sale of aggregate and silica sand in Southwest Florida. Actual and 
potential competition between Florida Rock and Harper Bros. for the 
production and sale of aggregate and silica sand in Southwest Florida 
will be eliminated. Florida Rock and Harper Bros. are the largest 
producers of aggregate in Southwest Florida and have the largest 
reserves of aggregate in Southwest Florida. Florida Rock accounts for 
about 44 percent of the aggregate produced in Southwest Florida and 
Harper Bros. accounts for approximately 24 percent. After the 
acquisition, the combined entity will control about 68 percent of the 
Southwest Florida aggregate market. They are two of only three 
significant producers in Southwest Florida possessing sufficient 
aggregate reserves that would permit consumers to switch aggregate 
suppliers if prices increased.
    For silica sand, Florida Rock and Harper Bros. are two of only 
three producers capable of selling silica sand in Southwest Florida. 
After the acquisition, the combined entity will control approximately 
60 percent of the Southwest Florida silica sand market.
    The acquisition of Harper Bros. by Florida Rock would create a 
dominant aggregate and silica sand company in Southwest Florida. In the 
aggregate market, it would reduce from three to two the number of 
significant competitors which possess sufficient aggregate reserves 
that would permit consumers to switch aggregate suppliers if prices 
were increased. In the silica sand market, the number of competitors 
would decline from three to two. Florida Rock would have the market 
power to increase prices for aggregate and silica sand. In addition, 
the proposed acquisition will facilitate coordinated pricing activity 
among aggregate and silica sand producers and increase the likelihood 
of anticompetitive price increases for consumers. Aggregate and silica 
sand products are only slightly differentiated (if at all), and price 
is an important dimension of competition. The combination of Florida 
Rock's and Harper Bros.' Southwest Florida aggregate and silica sand 
businesses would result in a substantial reduction in competition, 
increase the risk of coordinated action, and likely result in higher 
aggregate and silica sand prices.
    New entry in Southwest Florida is unlikely to restore the 
competition lost through Florida Rock's removal of Harper Bros. from 
the aggregate and silica sand markets. Establishing a new, successful 
aggregate or silica sand production facility in or near Southwest 
Florida is difficult, time-consuming and costly. To be cost competitive 
in Southwest Florida, an aggregate or silica sand production facility 
must be able to produce large amounts of consistent quality aggregate 
or silica sand in close proximity to asphalt concrete and/or ready mix 
concrete plants. Environmental and zoning permits must be obtained to 
operate an aggregate or silica sand production facility. Federal, state 
and local environmental provisions and state and local zoning 
provisions make it very difficult to open an aggregate or silica sand 
production facility in or near Southwest Florida. Timely and sufficient 
entry is unlikely to occur in the aggregate or silica sand markets in 
Southwest Florida to defeat any post-acquisition price increases.

C. Harm to Competition as a Consequence of the Acquisition

    The Complaint alleges that the transaction would have the following 
effects, among others: Competition for the production and sale of 
aggregate and silica sand in Southwest Florida will be substantially 
lessened; actual and potential competition between Florida Rock and 
Harper Bros. in the production and sale of aggregate and silica sand in 
Southwest Florida will be eliminated; and prices for aggregate and 
silica sand in Southwest Florida are likely to increase above 
competitive levels.

III. Explanation of the Proposed Final Judgment

    The proposed Final Judgment would preserve competition in the 
production and sale of aggregate and silica sand in Southwest Florida 
by placing in independent hands Florida Rock's Alico Rod Quarry which 
serves the Southwest Florida aggregate market and Harper Bros.' 
Palmdale Sand Mine which serves the Southwest Florida silica sand 
market. This would maintain the existing number of suppliers in the two 
markets. In response to a price increase from Florida Rock, purchasers 
would be able to turn to other producers of aggregate and silica sand 
with significant capacity to serve Southwest Florida.
    Within one hundred and eighty (180) calendar days after filing the 
proposed Final Judgment of five (5) days after the entry of the Final 
Judgment, whichever is later, Florida Rock must divest its Alico Road 
aggregate quarry, Harper Bros.' Palmdale Sand Mine, and related assets. 
The Alico Road Quarry and the Palmdale Sand Mine will be sold to a 
purchaser or purchasers that demonstrates to the sole satisfaction of

[[Page 32270]]

the United States that they will be an economically viable and 
effective competitors, capable of competing effectively in the 
production and sale of aggregate and/or silica sand in Southwest 
Florida.
    Until the ordered divestiture take place, Florida Rock must take 
all reasonable steps necessary to accomplish the divestiture and 
cooperate with any prospective puchaser. If Florida Rock does not 
accomplish the ordered divestiture within the specified one hundred and 
eighty (180) calendar days, which may be extended by up to sixty (60) 
calendar days by the United States in its sole discretion, the proposed 
Final Judgment provides for procedures by which the Court shall appoint 
a trusteee to complete the divestiture. If a trustee must undertake to 
divest the Alico Road Quarry, the trustee has the option of adding 
certain Florida Rock aggregate reserve parcels that are contiguous to 
the Alico Road Quarry to the divestiture package. Florida Rock must 
cooperate fully with the trustee.
    If a trustee is appointed, the proposed Final Judgment provides 
that Florida Rock will pay all costs and expenses of the trustee. The 
trustee's compensation will be structured so as to provide an incentive 
for the trustee to obtain the highest price then available for the 
assets to be divested, and to accomplish the divestiture as quickly as 
possible. After the effective date of his or her appointment, the 
trustee shall serve under such other conditions as the Court may 
prescribe. After his or her appointment becomes effective, the trustee 
will file monthly reports with the parties and the Court, setting forth 
the trustee's efforts to accomplish the divestiture. At the end of six 
(6) months, if the mandated divestiture has not been accomplished, the 
trustee shall file promptly with the Court a report that sets forth the 
trustee's efforts to accomplish the divestiture, explain why the 
divestiture has not been accomplished, and make any recommendations. 
The trustee's report will be furnished to the parties and shall be 
filed in the public docket, except to the extent the report contains 
information the trustee deems confidential. The parties each will have 
the right to make additional recommendations to the Court. The Court 
shall enter such orders as it deems appropriate to carry out the 
purpose of the trust.

IV. Remedies Available to Potential Private Litigants

    Section 4 of the Clayton Act (15 U.S.C. 15) provides that any 
person who has been injured as a result of conduct prohibited by the 
antitrust laws may bring suit in Federal court to recover three times 
the damages the person has suffered, as well as costs and reasonable 
attorney's fees. Entry of the proposed Final Judgment neither will 
impair nor assist the bringing of any private antitrust damage action. 
Under the provisions of section 5(a) of the Clayton Act (15 U.S.C. 
16(a)), the proposed Final Judgment has no prima facie effect in any 
subsequent private lawsuit that may be brought against Florida Rock, 
Harber Bros., Testing, or Daniel Harper.

V. Procedures Available for Modification of the Proposed Final 
Judgment

    The United States and the defendants have stipulated that the 
proposed Final Judgment may be entered by the Court after compliance 
with the provisions of the APPA, provided that the United States has 
not withdrawn its consent. The APPA conditions entry upon the Court's 
determination that the proposed Final Judgment is in the public 
interest.
    The APPA provides a period of at least sixty (60) days preceding 
the effective date of the proposed Final Judgment within which any 
person may submit to the United States written comments regarding the 
proposed Final Judgment. Any person should comment within sixty (60) 
days of the date of publication of this Competitive Impact Statement in 
the Federal Register. The United States will evaluate and respond to 
the comments. All comments will be given due consideration by the 
Department of Justice, which remains free to withdraw its contest to 
the proposed Final Judgment at any time prior to entry. The comments 
and the response of the United States will be filed with the Court and 
published in the Federal Register.
    Written comments should be submitted to: J. Robert Kramer II, 
Chief, Litigation II Section, Antitrust Division, United States 
Department of Justice, 1401 H Street, NW, Suite 3000, Washington, DC 
20530. The proposed Final Judgment provides that the Court retains 
jurisdiction over this action, and the parties may apply to the Court 
for any order necessary or appropriate for the modification, 
interpretation, or enforcement of the Final Judgment.

VI. Alternatives to the Proposed Final Judgment

    The United States considered, as an alternative to the proposed 
Final Judgment, a full trial on the merits of its Complaint against the 
defendants. The United States is satisfied, however, that the 
divestiture of the assets and other relief contained in the proposed 
Final Judgment will preserve viable competition in the production and 
sale of aggregate and silica sand in Southwest Florida that otherwise 
would be affected adversely by the acquisition. Thus, the proposed 
Final Judgment would achieve the relief the government would have 
obtained through litigation, but avoids the time, expense and 
uncertainty of a full trial on the merits of the government's 
Complaint.

VII. Standard of Review Under the APPA for Proposed Final Judgment

    The APPA requires that proposed consent judgments in antitrust 
cases brought by the United States be subject to a sixty (60) day 
comment period, after which the court shall determine whether entry of 
the prposed Final Judgment ``is in the public interest.'' In making 
that determination, the court may consider--

    (1) The competitive impact of such judgment, including 
termination of alleged violations, provisions for enforcement and 
modification, duration or relief sought, anticipated effects of 
alternative remedies actually considered, and any other 
considerations bearing upon the adequacy of such judgment;
    (2) The impact of entry of such judgment upon the public 
generally and individuals alleging specific injury from the 
violations set forth in the complaint including consideration of the 
public benefit, if any, to be derived from a determination of the 
issues at trial.

15 U.S.C. 16(e) (emphasis added). As the Court of Appeals for the 
District of Columbia Circuit recently held, the APPA permits a court to 
consider, among other things, the relationship between the remedy 
secured and the specific allegations set forth in the government's 
complaint, whether the decree is sufficiently clear, whether 
enforcement mechanisms are sufficient, and whether the decree may 
positively harm third parties. See United States v. Microsoft, 56 F.3d 
1448 (D.C. Cir. 1995). The courts have recognized that the term `` 
`public interest' take[s] meaning from the purposes of the regulatory 
legislation.'' NAACP v. Federal Power Comm'n, 425 U.S. 662, 669 (1976). 
Since the purpose of the antitrust laws is to preserve ``free and 
unfettered competition as the rule of trade,'' Northern Pacific Railway 
Co. v. United States, 356 U.S. 1, 4 (1958), the focus of the ``public 
interest'' inquiry under the APPA is whether the proposed Final 
Judgment would serve the public interest in free and unfettered 
competition. United States v. American Cyanamid Co., 719 F.2d 558, 565 
(2d Cir. 1983), cert, denied, 465 U.S. 1101

[[Page 32271]]

(1984); United States v. Waste Management, Inc., 1985-2 Trade Cas. 
para. 66,651, at 63,046 (D.D.C. 1985). In conducting this inquiry, 
``the Court is nowhere compelled to go to trail or to engage in 
extended proceedings which might have the effect of vitiating the 
benefits of prompt and less costly settlement through the consent 
decree process.'' \1\ Rather,

    \1\ 119 Cong. Rec. 24598 (1973). See United States v. Gillette 
Co., 406 F. Supp. 713, 715 (D. Mass. 1975) A ``public interest'' 
determination can be made properly on the basis of the Competitive 
Impact Statement and Response to Comments filed pursuant to the 
APPA. Although the APPA authorizes the use of additional procedures, 
15 U.S.C. 16(f), those procedures are discretionary. A court need 
not invoke any of them unless it believes that the comments have 
raised significant issues and that further proceedings would aid the 
court in resolving those issues. See, H.R. 93-1463, 93rd Cong. 2d 
Sess. 8-9, reprinted in (1974) U.S. Code Cong. & Ad. News 6535, 
6538.
---------------------------------------------------------------------------

[a]bsent a showing of corrupt failure of the government to discharge 
its duty, the Court, in making its public interest finding, should * 
* * carefully consider the explanations of the government in the 
competitive impact statement and its responses to comments in order 
to determine whether those explanations are reasonable under the 
circumstances.

United States v. Mid-America Dairymen, Inc., 1997-1 Trade Cas. para. 
61,508, at 71,980 (W.D. Mo. 1977).
    Accordingly, with respect to the adequacy of the relief secured by 
the decree, a Court may not ``engage in an unrestricted evaluation of 
what relief would best serve the public.'' United State v. BNS, Inc., 
858 F.2d 456, 462 (9th Cir. 1988) quoting United States v. Bechtel 
Corp., 648 F.2d 660,666 (9th Cir.), cert. denied, 454 U.S. 1083 (1981). 
See also, Microsoft, 56 F.3d 1448 (D.C. Cir. 1995). Precedent requires 
that:

    The balancing of competing social and political interests 
affected by a proposed antitrust consent decree must be left, in the 
first instance, to the discretion of the Attorney General. The 
court's role in protecting the public interest is one of insuring 
that the government has not breached its duty to the public in 
consenting to the decree. The court is required to determine not 
whether a particular decree is the one that will best serve society, 
but whether the settlement is``within the reaches of the public 
interest.'' More elaborate requirements might undermine the 
effectiveness of antitrust enforcement by consent decree. \2\
---------------------------------------------------------------------------

    \2\ United States v. Bechtel, 648 F.2d at 666 (citations 
omitted) (emphasis added); see United States v. BNS, Inc., 858 F.2d 
at 463; United States v. National Broadcasting Co., 449 F. Supp. 
1127, 1143 (C.D. Cal. 1978); United States v. Gillette Co., 406 F. 
Supp. at 716. See also United States  v. American Cynamid Co. 719 
F.2d at 565.
---------------------------------------------------------------------------

    A proposed consent decree is an agreement between the parties which 
is reached after exhaustive negotiations and discussions. Parties do 
not hastily and thoughtlessly stipulate to a decree because, in doing 
so, they

waive their right to litigate the issues involved in the case and 
thus save themselves the time, expense, and inevitable risk of 
litigation. Naturally, the agreement reached normally embodies a 
compromise; in exchange for the saving of cost and the elimination 
of risk, the parties each give up something they might have won had 
they proceeded with the litigation.

United States v. Armour & Co., 402 U.S. 673, 681 (1971).
    The proposed Final Judgment therefore, should not be reviewed under 
a standard of whether it is certain to eliminate every anticompetitive 
effect of a particular practice or whether it mandates certainty of 
free competition in the future. Court approval of a final judgment 
requires a standard more flexible and less strict than the standard 
required for a finding of liability. ``[A] proposed decree must be 
approved even if it falls short of the remedy the court would impose on 
its own, as long as it falls within the range of acceptability or is 
`within the reaches of public interest.' (citations omitted.'' \3\
---------------------------------------------------------------------------

    \3\ United States v. American Tel. and Tel Co., 552 F. Supp. 
131, 150 (D.D.C. 1982), aff'd sub nom. Maryland v. United States, 
460 U.S. 1001 (1983) quoting United States v. Gillette Co., supra, 
406 F. Supp. at 716; United States v. Aluminum, Ltd., 605 F. Supp. 
619, 622 (W.D. Ky 1985).
---------------------------------------------------------------------------

VIII. Determinative Documents

    There are no determinative materials or documents within the 
meaning of the APPA that were considered by the United States in 
formulating the proposed Final Judgment.

    Executed on: May 25, 1999.

        Respectfully submitted,
Frederick H. Parmenter,
Attorney, United States Department of Justice, Antitrust Division, 
Litigation II Section, Suite 3000, 1401 H Street, NW, Washington, DC 
20530, Telephone: (202) 307-0620, Facsimile: (202) 307-6283.
[FR Doc. 99-14895 Filed 6-15-99; 8:45 am]
BILLING CODE 4410-11-M