Whole Foods Market, FTC reach settlement

Whole Foods Market Inc. has reached a settlement agreement resolving the Federal Trade Commission’s (FTC) antitrust challenge to the Austin TX-based supermarket chain’s August 2007 acquisition of Wild Oats Markets Inc.

Pursuant to FTC protocol, the settlement agreement has been placed on public record for a 30-day comment period ending April 6, 2009, after which the FTC will issue a final ruling. Under terms of the agreement, a third-party divestiture trustee has been appointed to market for sale:

•Leases and related assets for 19 non-operating former Wild Oats stores, 10 of which were closed by Wild Oats prior to the merger and nine of which were closed by Whole Foods.

•Leases and related fixed assets (excluding inventory) for 12 operating acquired Wild Oats stores and one operating Whole Foods store.

•Wild Oats trademarks and other intellectual property associated with those stores.

The divestiture trustee will have six months to market the assets to be divested. For any good-faith offers not completed by the divestiture trustee during the six-month period, an extension of up to six months may be granted. This 12-month period may be extended to allow the FTC to approve any purchase agreements submitted within that time period. The only other obligations for the company imposed by the settlement agreement are in support of the divestiture trustee process.

After receiving final approval by the FTC, which is expected before April 30, 2009, Whole Foods expects to record a non-cash charge of about $19 million or less relating to the potential sale of the 13 operating stores. These stores had combined sales of approximately $31 million in the first quarter of fiscal year 2009, or about 1.3 percent of the company’s total sales of $2.5 billion.

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