[Federal Register Volume 59, Number 133 (Wednesday, July 13, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-16950]
[[Page Unknown]]
[Federal Register: July 13, 1994]
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FEDERAL TRADE COMMISSION
[File No. 921 0023]
Kiwi Brands Inc., et al.; Proposed Consent Agreement With
Analysis To Aid Public Comment
AGENCY: Federal Trade Commission.
ACTION: Proposed consent agreement.
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SUMMARY: In settlement of alleged violations of federal law prohibiting
unfair acts and practices and unfair methods of competition, this
consent agreement, accepted subject to final Commission approval, would
require, among other things, a Pennsylvania-based subsidiary of Sara
Lee Corporation and manufacturer of shoe care products to divest its
Esquire and Griffin brands and related assets to Hickory Industries
within one month after the order becomes final. If the sale to Hickory
Industries is not accomplished within one month, the proposed agreement
would require Kiwi and Sara Lee to divest the assets to another
Commission approved acquirer within twelve months or else the
Commission would be entitled to appoint a trustee to sell the assets to
a Commission approved acquirer in a manner approved by the Commission.
DATES: Comments must be received on or before August 12, 1994.
ADDRESSES: Comments should be directed to: FTC/Office of the Secretary,
Room 159, 6th St. and Pennsylvania Ave., NW., Washington, DC 20580.
FOR FURTHER INFORMATION CONTACT:
Naomi Licker, FTC/S-2115, Washington, DC 20580. (202) 326-2851.
SUPPLEMENTARY INFORMATION: Pursuant to section 6(f) of the Federal
Trade Commission Act, 38 Stat. 721, 15 U.S.C. 46 and section 2.34 of
the Commission's Rules of Practice (16 CFR 2.34), notice is hereby
given that the following consent agreement containing a consent order
to divest, having been filed with and accepted, subject to final
approval, by the Commission, has been placed on the public record for a
period of thirty (30) days. Public comment is invited. Such comments or
views will be considered by the Commission and will be available for
inspection and copying at its principal office in accordance with
Sec. 4.9(b)(6)(ii) of the Commission's Rules of Practice (16 CFR
4.9(b)(6)(ii).
Agreement Containing Consent Order
The Federal Trade Commission (``the Commission''), having initiated
an investigation of the acquisition by Kiwi Brands Inc. (``Kiwi''), a
wholly-owned subsidiary of Sara Lee Corporation (``Sara Lee''), of
certain assets of Knomark, Inc., at the time of the acquisition a
wholly-owned subsidiary of Papercraft Corporation, and of certain
assets of Reckitt and Colman plc, and it now appearing that Kiwi and
Sara Lee, hereinafter sometimes referred to as proposed Respondents,
are willing to enter into an agreement containing an order to divest
certain assets and providing for other relief:
It is hereby agreed by and between proposed Respondents, by their
duly authorized officers and attorneys, and counsel for the Commission
that:
1. Proposed Respondent Kiwi is a corporation, organized, existing,
and doing business under and by virtue of the laws of the State of
Delaware, with its office and principal place of business located at
447 Old Swede Road, Douglassville, Pennsylvania 19518-1239.
2. Proposed Respondent Sara Lee is a corporation, organized,
existing, and doing business under and by virtue of the laws of the
State of Maryland, with its office and principal place of business
located at 3 First National Plaza, Chicago, Illinois 60602-4260.
3. Proposed Respondents admit all the jurisdictional facts set
forth in the draft of complaint here attached.
4. Proposes Respondents waive:
a. Any further procedural steps;
b. The requirement that the Commission's decision contain a
statement of findings of fact and conclusions of law;
c. All rights to seek judicial review or otherwise to challenge or
contest the validity of the order entered pursuant to this agreement;
and
d. Any claim under the Equal Access to Justice Act.
5. This agreement shall not become part of the public record of the
proceeding unless and until it is accepted by the Commission. If this
agreement is accepted by the Commission it, together with the draft of
complaint contemplated thereby, will be placed on the public record for
a period of sixty (60) days and information in respect thereto publicly
released. The Commission thereafter may either withdraw its acceptance
of this agreement and so notify proposed Respondents, in which event it
will take such action as it may consider appropriate, or issue and
serve its complaint (in such form as the circumstances may require) and
decision, in disposition of the proceeding.
6. This agreement is for settlement purposes only and does not
constitute an admission by proposed Respondents that the law has been
violated as alleged in the draft of complaint here attached, or that
the facts as alleged in the draft complaint, other than jurisdictional
facts, are true.
7. This agreement contemplates that, if it is accepted by the
Commission, and if acceptance is not subsequently withdrawn by the
Commission pursuant to the provisions of Section 2.34 of the
Commission's Rules, the Commission may, without further notice to
proposed Respondents, (1) issue its complaint corresponding in form and
substance with the draft of complaint here attached and its decision
containing the following order to divest and to cease and desist in
disposition of the proceeding, and (2) make information public with
respect thereto. When so entered, the order shall have the same force
and effect and may be altered, modified, or set aside in the same
manner and within the same time provided by statute for other orders.
The order shall become final upon service. Delivery by the U.S. Postal
Service of the complaint and decision containing the agreed-to order to
proposed Respondents' addresses as stated in this agreement shall
constitute service. Proposed Respondents waive any right they may have
to any other manner of service. The complaint may be used in construing
the terms of the order, and no agreement, understanding, representation
or interpretation not contained in the order or the agreement may be
used to vary or contradict the terms of the order.
8. Proposed Respondents have read the draft of complaint and order
contemplated hereby. Proposed Respondents understand that once the
order has been issued, they will be required to file one or more
compliance reports showing that they have fully complied with the
order. Proposed Respondents further understand that they may be liable
for civil penalties in the amount provided by law for each violation of
the order after it became final.
Order
I
It is ordered that, as used in this order, the following
definitions shall apply:
A. ``Kiwi'' means Kiwi Brands, Inc., its predecessors,
subsidiaries, divisions, groups and affiliates controlled by Kiwi, and
their respective directors, officers, employees, agents,
representatives, and their respective successors and assigns.
B. ``Sara Lee'' means Sara Lee Corporation, its predecessors,
subsidiaries, divisions, groups and affiliates controlled by Sara Lee,
and their respective directors, officers, employees, agents,
representatives, and their respective successors and assigns.
C. ``Respondents'' means Kiwi Brands, Inc. and Sara Lee
Corporation.
D. ``Chemical shoe care products'' means all chemical products used
in the maintenance, cleaning, and protection of shoes, including, but
not limited to, aerosol, liquid, wax, and cream products.
E. ``Sales through the mass market'' means all sales through
grocery stores, drug stores, and mass merchandisers.
F. ``Knomark acquisition'' means the 1987 acquisition in which Sara
Lee acquired the ``Esquire'' brand of chemical shoe care products,
among other assets, from Knomark, Inc., a wholly-owned subsidiary of
Papercraft Corporation.
G. ``Reckitt and Colman acquisition'' means the 1991 acquisition in
which Sara Lee acquired the ``Griffin'' brand of chemical shoe care
products, among other assets, from Reckitt and Colman plc.
H. ``Commission'' means the Federal Trade Commission.
I. ``Griffin and Esquire assets'' means all assets, tangible or
intangible, acquired by Sara Lee in the Knomark acquisition and owned
by Sara Lee as of January 1, 1994, relating to the production or sale
of chemical shoe care products in North and South America, and all
assets, tangible or intangible, acquired by Sara Lee in the Reckitt &
Colman acquisition and owned by Sara Lee as of January 1, 1994,
relating to the production or sale of chemical shoe care products in
North and South America under the ``Griffin'' brand name; provided,
however, that ``Griffin and Esquire assets'' excludes equipment and
formulas used in the production of chemical shoe care products under
the ``Kiwi'' brand. The Griffin and Esquire assets include, but are not
limited to, registered and unregistered trademarks; formulas and other
trade secrets; raw materials, finished goods, packaging materials, and
other inventories (excluding inventories of raw materials and packaging
materials for any products to be manufactured by Kiwi for Hickory
Industries, Inc., after the divestiture); customer lists; and business
and financial records, relating to the ``Griffin'' or ``Esquire''
brands.
II
It is further ordered that Respondents shall divest, absolutely and
in good faith, the Griffin and Esquire assets.
The Griffin and Esquire assets shall be divested either: (1) within
one (1) month of the date this order becomes final, to Hickory
Industries, Inc. (``Hickory''), pursuant to the November 30, 1993,
Asset Purchase Agreement between Kiwi and Hickory, as amended by
Amendment One to November 30, 1993, Asset Purchase Agreement, dated
March 8, 1994, attached hereto as a Confidential Appendix; or (2)
within twelve (12) months of the date the order becomes final, to an
acquirer or acquirers that receive the prior approval of the Commission
and only in a manner that receives the prior approval of the
Commission.
The purpose of the divestiture is to assure the continuing use of
the Griffin and Esquire assets in an ongoing, independent, viable
operation engaged in the sale of chemical shoe care products in the
United States, and to remedy the lessening of competition resulting
from the Knomark acquisition and the Reckitt and Colman acquisition as
alleged in the Commission's complaint. Provided, however, that if
Respondents divest pursuant to Paragraph II (1) of this order, in no
event shall Respondents' enforcement of any security interest contained
in the Asset Purchase Agreement referred to in Paragraph II (1) of this
order be construed to not require the Commission's prior approval,
pursuant to Paragraph V of this order, if such approval would otherwise
be required.
III
It is further ordered that:
A. If Respondents have not divested, absolutely and in good faith
and with the Commission's prior approval, the Griffin and Esquire
assets within twelve months of the date this order becomes final, the
Commission may appoint a trustee to divest the Griffin and Esquire
assets. In the event that the Commission or the Attorney General brings
an action pursuant to section 5(l) of the Federal Trade Commission Act,
15 U.S.C. 45(l), or any other statute enforced by the Commission,
Respondents shall consent to the appointment of a trustee in such
action. Neither the appointment of a trustee nor a decision not to
appoint a trustee under this Paragraph shall preclude the Commission or
the Attorney General from seeking civil penalties or any other relief
available to it for any failure by Respondents to comply with this
order.
B. If a trustee is appointed by the Commission or a court pursuant
to Paragraph III A. of this order, Respondents shall consent to the
following terms and conditions regarding the trustee's powers, duties,
authority, and responsibilities:
1. The Commission shall select the trustee, subject to the consent
of Respondents, which consent shall not be unreasonably withheld. The
trustee shall be a person with experience and expertise in acquisitions
and divestitures. If Respondents have not opposed, in writing, the
selection of any proposed trustee within ten (10) days after notice by
the staff of the Commission to Respondents of the identity of any
proposed trustee, Respondents shall be deemed to have consented to the
selection of the proposed trustee.
2. Subject to the prior approval of the Commission, the trustee
shall have the exclusive power and authority to divest the Griffin and
Esquire assets.
3. The trustee shall have twelve (12) months from the date the
Commission approves the trust agreement described in Paragraph III B.
8. to accomplish the divestiture, which shall be subject to the prior
approval of the Commission. If, however, at the end of the twelve-month
period, the trustee has submitted a plan of divestiture or believes
that divestiture can be achieved within a reasonable time, the
divestiture period may be extended by the Commission, or, in the case
of a court-appointed trustee, by the court.
4. The trustee shall have full and complete access to the
personnel, books, records and facilities related to the Griffin and
Esquire assets, or to any other relevant information, as the trustee
may reasonably request. Respondents shall develop such financial or
other information as such trustee may reasonably request and shall
cooperate with the trustee. Respondents shall take no action to
interfere with or impede the trustee's accomplishment of the
divestiture. Any delays in divestiture caused by Respondents shall
extend the time for divestiture under this Paragraph in an amount equal
to the delay, as determined by the Commission or, for a court-appointed
trustee, by the court.
5. The trustee shall use his or her best efforts to negotiate the
most favorable price and terms available in each contract that is
submitted to the Commission, subject to Respondent's absolute and
unconditional obligation to divest at no minimum price. The divestiture
shall be made in the manner and to the acquirer or acquirers as set out
in Paragraph II of this order; provided, however, if the trustee
receives bona fide offers from more than one acquiring entity, and if
the Commission determines to approve more than one such acquiring
entity, the trustee shall divest to the acquiring entity or entities
selected by Respondents from among those approved by the Commission.
6. The trustee shall serve, without bond or other security, at the
cost and expense of Respondents, on such reasonable and customary terms
and conditions as the Commission or a court may set. The trustee shall
have the authority to employ, at the cost and expense of Respondents,
such consultants, accountants, attorneys, investment bankers, business
brokers, appraisers, and other representatives and assistants as are
reasonably necessary to carry out the trustee's duties and
responsibilities. The trustee shall account for all monies derived from
the divestiture and all expenses incurred. After approval by the
Commission and, in the case of a court-appointed trustee, by the court,
of the account of the trustee, including fees for his or her services,
all remaining monies shall be paid at the direction of Respondents, and
the trustee's power shall be terminated. The trustee's compensation
shall be based at least in significant part on a commission arrangement
contingent on the trustee's divesting the Griffin and Esquire assets.
7. Respondents shall indemnify the trustee and hold the trustee
harmless against any losses, claims, damages, liabilities, or expenses
arising out of, or in connection with, the performance of the trustee's
duties, including all reasonable fees of counsel and other expenses
incurred in connection with the preparation for, or defense of any
claim, whether or not resulting in any liability, except to the extent
that such liabilities, losses, damages, claims, or expenses result from
misfeasance, gross negligence, willful or wanton acts, or bad faith by
the trustee.
8. Within ten (10) days after appointment of the trustee, and
subject to the prior approval of the Commission and, in the case of a
court-appointed trustee, of the court, Respondents shall execute a
trust agreement that transfers to the trustee all rights and powers
necessary to permit the trustee to effect the divestiture required by
this order.
9. If the trustee ceases to act or fails to act diligently, a
substitute trustee shall be appointed in the same manner as provided in
Paragraph III A. of this order.
10. The Commission or, in the case of a court-appointed trustee,
the court, may on its own initiative or at the request of the trustee
issue such additional orders or directions as may be necessary or
appropriate to accomplish the divestiture required by this order.
11. The trustee shall report in writing to Respondents and the
Commission every sixty (60) days concerning the trustee's efforts to
accomplish divestiture.
IV
It is further ordered that pending divestiture of the Griffin and
Esquire assets, Respondents shall maintain the viability and
marketability of the Griffin and Esquire assets and shall not cause or
permit the destruction, removal, wasting, deterioration or impairment
of the Griffin and Esquire assets.
V
It is further ordered that, for a period of ten (10) years from the
date this order becomes final, Respondents shall not, directly or
indirectly, through subsidiaries, partnerships, or otherwise, without
the prior approval of the Commission:
A. Acquire any stock, share capital, equity or other interest in
any concern, corporate or non-corporate, presently engaged in or within
the two years preceding such acquisition engaged in the manufacture of
chemical shoe care products in the United States, or the distribution
or sale of chemical shoe care products through the mass market in the
United States; provided, however, that an acquisition will be exempt
from the requirements of this paragraph if it is solely for the purpose
of investment and Respondents will hold no more than one percent of the
shares of any class of security traded on a national securities
exchange or authorized to be quoted in an interdealer quotation system
of a national securities association registered with the United States
Securities and Exchange Commission; or
B. Acquire any assets used for, or previously used for (and still
suitable for use for) the manufacture of chemical shoe care products in
the United States, or the distribution or sale of chemical shoe care
products through the mass market in the United States (including, but
not limited to, brand or trade names), except in the ordinary course of
business, from any concern, corporate or non-corporate, presently
engaged in, or within the two years preceding such acquisition engaged
in the manufacture of chemical shoe care products in the United States,
or the distribution or sale of chemical shoe care products through the
mass market in the United States; provided, however, that an
acquisition of assets will be exempt from the requirements of this
paragraph if the purchase price of the assets-to-be-acquired is less
than $100,000, and the purchase price of all assets used for, or
previously used for (and still suitable for use for) the manufacture of
chemical shoe care products in the United States, or the distribution
or sale of chemical shoe care products through the mass market in the
United States that Respondents have acquired from the same person (as
that term is defined in the premerger notification rules, 16 CFR
801.1(a)(1)) in the twelve-month period preceding the proposed
acquisition, when aggregated with the purchase price of the to-be-
acquired assets, does not exceed $100,000.
VI
It is further ordered that, for a period of ten (10) years from the
date this order becomes final, unless Respondents are required to seek
prior approval from the Commission pursuant to Paragraph V, Respondents
shall not, without providing advance written notification to the
Commission, directly or indirectly, through subsidiaries, partnerships,
or otherwise:
A. Acquire any stock, share capital, equity or other interest in
any concern, corporate or non-corporate, presently engaged in, or
within the two years preceding such acquisition engaged in the
manufacture, distribution, or sale of chemical shoe care products in
the United States; provided, however, that an acquisition will be
exempt from the requirements of this paragraph if it is solely for the
purpose of investment and Respondents will hold no more than one
percent of the shares of any class of security traded on a national
securities exchange or authorized to be quoted in an interdealer
quotation system of a national securities association registered with
the United States Securities and Exchange Commission; or
B. Acquire any assets used or previously used (and still suitable
for use) in the manufacture, distribution, or sale of chemical shoe
care products, except in the ordinary course of business, from any
concern, corporate or non-corporate, presently engaged in, or within
the two years preceding such acquisition engaged in the manufacture,
distribution, or sale of chemical shoe care products in the United
States.
Said notification shall be given on the Notification and Report
Form set forth in the Appendix to Part 803 of Title 16 of the Code of
Federal Regulations as amended (hereinafter referred to as ``the
Notification''). Respondents shall provide to the Commission at least
thirty days prior to acquiring any such interest (hereinafter referred
to as the ``first waiting period''), both the Notification and
supplemental information either in Respondents' possession or
reasonably available to Respondents. Such supplemental information
shall include a copy of the proposed acquisition agreement; the names
of the principal representatives of each Respondent and of the firm
Respondents desire to acquire who negotiated the acquisition agreement;
and any management or strategic plans discussing the proposed
acquisition. If, within the first waiting period, representatives of
the Commission make a written request for additional information,
Respondents shall not consummate the acquisition until twenty days
after submitting such additional information. Early termination of the
waiting periods in this paragraph may be requested and, where
appropriate, granted in the same manner as is applicable under the
requirements and provisions of the Hart-Scott-Rodino Antitrust
Improvements Act of 1976, 15 U.S.C. 18a.
VII
It is further ordered that:
A. Within sixty (60) days after the date this order becomes final
and every sixty (60) days thereafter until Respondents have fully
complied with the provisions of Paragraph II or III of this order,
Respondents shall submit to the Commission a verified written report
setting forth in detail the manner and form in which they intend to
comply, are complying, and have complied with Paragraphs II and III of
this order. Respondents shall include in their compliance reports,
among other things that are required from time to time, a full
description of the efforts being made to comply with Paragraphs II and
III of the order, including a description of all substantive contacts
or negotiations for the divestiture and the identity of all parties
contacted. Respondents shall include in their compliance reports copies
of all written communications to and from such parties, all internal
memoranda, and all reports and recommendations concerning divestiture.
Provided, however, that if, prior to the date the first report required
by this paragraph is due, Respondents have consummated the acquisition
described in Paragraph II (1) of this order, Respondents shall, in lieu
of the report or reports and documentary attachments required by this
Paragraph, submit to the Commission, within thirty (30) days of
consummation of the acquisition, a verified statement that Respondents
have complied with Paragraph II of this order, including the date of
consummation.
B. One (1) year from the date this order becomes final, annually
for the next nine (9) years on the anniversary of the date this order
becomes final, and at such other times as the Commission may require,
Respondents shall file a verified written report with the Commission
setting forth in detail the manner and form in which they have complied
and are complying with Paragraphs V and VI of this order.
VIII
It is further orderded that each of the Respondents shall notify
the Commission at least thirty days prior to any proposed change in
such Respondent, such as dissolution, assignment or sale resulting in
the emergency of a successor corporation, the creation or dissolution
of subsidiaries or any other change in such Respondent that may affect
compliance obligations arising out of this order.
IX
It is further ordered that, for the purpose of determining or
securing compliance with this order, and subject to any legally
recognized privilege, upon written request, each of the Respondents
shall permit any duly authorized representative of the Commission:
A. Access, during office hours and in the presence of counsel, to
inspect and copy all books, ledgers, accounts, correspondence,
memoranda and other records and documents in the possession or under
the control of such Respondent relating to any matters contained in
this order; and
B. Upon five (5) days notice to such Respondent and without
restraint or interference from it, to interview officers, directors, or
employees of such Respondent, who may have counsel present, regarding
such matters.
Analysis to Aid Public Comment on the Provisionally Accepted Consent
Order
The Federal Trade Commission (``the Commission'') has accepted, for
public comment, from Kiwi Brands Inc. (``Kiwi'') and Sara Lee
Corporation (``Sara Lee'') an agreement containing consent order. This
agreement has been placed on the public record for thirty days for
reception of comments from interested persons.
Comments received during this period will become part of the public
record. After thirty days, the Commission will again review the
agreement and the comments received and will decide whether it should
withdraw from the agreement or make final the agreement's order.
The Commission's investigation of this matter concerns Sara Lee's
and Kiwi's 1987 acquisition of the ``Esquire'' brand of chemical shoe
care products and related assets from Knomark, Inc., then a subsidiary
of Papercraft Corporation, and Sara Lee's and Kiwi's 1991 acquisition
of the ``Griffin'' brand of chemical shoe care products and related
assets from Reckitt & Colman.
The agreement containing consent order would, if finally accepted
by the Commission, settle charges alleged in the Commission's complaint
that the acquisitions substantially lessened competition in the sale in
the United States of chemical shoe care products used in the
maintenance, cleaning, and protection of shoes, through grocery stores,
drug stores, and mass merchandisers, sometimes referred to as the mass
market channel, and that Sara Lee undertook the acquisitions with the
intention and effect of restraining, lessening, or eliminating
competition, or acquiring or maintaining market power in the same
market. The Commission's complaint further alleges that the
acquisitions had and will have anticompetitive effects and that, in
making the acquisitions, Sara Lee and Kiwi violated Section 7 of the
Clayton Act and Section 5 of the Federal Trade Commission Act.
The order accepted for public comment contains provisions that
would require that Sara Lee and Kiwi divest the ``Esquire'' and
``Griffin'' brand names and related assets to Hickory Industries, Inc.,
within one month of the date the order becomes final. If the
transaction with Hickory Industries, Inc., is not consummated within
one month of the date the order becomes final, then the order would
require Sara Lee and Kiwi to divest the Esquire and Griffin assets to
an acquirer that receives the prior approval of the Commission and in a
manner approved by the Commission within twelve months of the date the
order becomes final. The purpose of the divestiture is to assure the
continuing use of the Esquire and Griffin assets in an ongoing,
independent, viable operation engaged in the sale of chemical shoe care
products in the United States, and to remedy the lessening of
competition resulting from each of the acquisitions.
If Sara Lee and Kiwi do not divest the Esquire and Griffin assets
within the time periods described above, the Commission would be
entitled to appoint a trustee to effect the divestiture of the Esquire
and Griffin assets to an acquirer or acquirers approved by the
Commission and in a manner approved by the Commission.
For a period of ten years from the date the order becomes final,
the order would also prohibit Kiwi and Sara Lee from acquiring, without
prior Commission approval, stock in or assets of an entity engaged in
the manufacture of chemical shoe care products in the United States, or
the distribution or sale of chemical shoe care products through the
mass market in the United States. Acquisitions, for investment purposes
only, of less than 1 percent of the outstanding stock of a publicly-
traded company would be exempt from the prior approval provision.
Acquisitions of certain assets valued at less than $100,000 would also
be exempt from the prior approval provision.
For acquisitions of stock in or assets of an entity engaged in the
manufacture, distribution, or sale of chemical shoe care products in
the United States by Sara Lee or Kiwi for which prior approval would
not otherwise be required by the order, the order would require that
Sara Lee and Kiwi give notice to the Commission before consummating the
acquisition. Acquisitions, for investment purposes only, of less than 1
percent of the outstanding stock of a publicly-traded company would be
exempt from the prior notice provision, in addition to being exempt
from the prior approval provision.
The purpose of this analysis is to invite public comment concerning
the consent order and any other aspect of the acquisition. This
analysis is not intended to constitute an official interpretation of
the agreement and order or to modify its terms in any way.
Donald S. Clark,
Secretary.
[FR Doc. 94-16950 Filed 7-12-94; 8:45 am]
BILLING CODE 6750-01-M