[Federal Register Volume 59, Number 197 (Thursday, October 13, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-25338]
[[Page Unknown]]
[Federal Register: October 13, 1994]
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FEDERAL TRADE COMMISSION
[File No. 941-0073]
Sulzer Limited; 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 Swiss firm to help launch a new
manufacturer of aluminum polyester powder, a substance sprayed on jet
engine housings to improve the efficiency of the engines. The consent
agreement would resolve FTC antitrust allegations that Sulzer Limited's
proposed acquisition of the Metco Division of the Perkin-Elmer
Corporation--would in the market for the powder--risk higher prices or
restricted supplies worldwide.
DATES: Comments must be received on or before December 12, 1994.
ADDRESSES: Comments should be directed to: FTC/Office of the Secretary,
Room 159, 6th Street and Pennsylvania Avenue NW., Washington, DC 20580.
FOR FURTHER INFORMATION CONTACT:
Ann B. Malester, FTC/601 Bldg., room 2224, Washington, DC 20580. (202)
326-2682.
SUPPLEMENTARY INFORMATION: Pursuant to Section 6(f) of the Federal
Trade Commission Act, 38 Stat. 721, 15 U.S.C. 46 and Sec. 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
cease and desist, having been filed with and accepted, subject to final
approval, by the Commission, has been placed on the public record for a
period of sixty (60) 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
Section 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 (``Commission'') having initiated an
investigation of the proposed acquisition by Sulzer Limited
(``Sulzer'') of all of the assets of the Metco Division of The Perkin-
Elmer Corporation (``Metco''), and it now appearing that Sulzer,
hereinafter sometimes referred to as ``proposed respondent'', is
willing to enter into an Agreement Containing Consent Order
(``Agreement'') to divest certain assets, cease and desist from certain
acts, and to provide for certain other relief,
It is hereby agreed by and between Sulzer, by its duly authorized
officers and its attorneys, and counsel for the Commission that:
1. Proposed respondent is a corporation organized, existing, and
doing business under and by virtue of the laws of Switzerland, with its
principal offices located at CH-8401, Winterthur, Switzerland.
2. Proposed respondent admits all the jurisdictional facts set
forth in the draft of complaint here attached.
3. Proposed respondent waives:
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.
4. This agreement shall not become part of the public record of the
proceedings 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 the proposed respondent, 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.
5. This agreement is for settlement purposes only and does not
constitute an admission by the proposed respondent 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.
6. This agreement contemplates that, if it is accepted by the
Commission, and if such 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 the
proposed respondent, (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 United
States Postal Service of the complaint and decision containing the
agreed-to Order to proposed respondent's U.S. counsel as stated in this
agreement shall constitute service. Proposed respondent waives any
right it 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.
7. Proposed respondent has read the draft of complaint and Order
contemplated hereby. Proposed respondent understands that once the
Order has been issued, it will be required to file one or more
compliance reports showing that it has fully complied with the Order.
Proposed respondent further understands that it may be liable for civil
penalties in the amount provided by law for each violation of the Order
after it becomes final.
Order
I
It is ordered That, as used in this Order, the following
definitions shall apply:
A. ``Sulzer'' means Sulzer Limited, its directors, officers,
employees, agents and representatives, its domestic and foreign
predecessors, successors, assigns, divisions, subsidiaries, affiliates,
partnerships and joint ventures, and the directors, officers,
employees, agents and representatives of its domestic and foreign
predecessors, successors, assigns, divisions, subsidiaries, affiliates,
partnerships and joint ventures.
B. ``Metco'' means the Metco Division of The Perkin-Elmer
Corporation.
C. ``Commission'' means the Federal Trade Commission.
D. ``Acquisition'' means the acquisition of certain assets of Metco
by Sulzer.
E. ``Aluminum polyester powder'' means a thermal spray material
consisting of wholly aromatic polyester and aluminum silicon that is
applied via thermal spray equipment to aircraft turbine engines.
F. ``Amdry 2010'' means Sulzer's aluminum polyester powder marketed
in the United States under the name ``Amdry 2010.''
G. ``Sumitomo Polyester'' means wholly aromatic polyester
(polyoxybenzoyl homopolymer) that Sumitomo Chemical Company Limited
produces for Sulzer according to Sulzer's specifications for use as an
input in Amdry 2010.
H. ``Sulzer aluminum silicon'' means the particular grade,
specification, and type of aluminum silicon used in Amdry 2010.
I. ``Amdry 2010 Ingredients'' means Sumitomo Polyester and Sulzer
aluminum silicon.
J. ``Amdry 2010 Information'' means a copy of all information
necessary to purchase Amdry 2010 Ingredients and all information
necessary for the manufacture and sale of Amdry 2010, including but not
limited to:
1. All product information related to Sumitomo Polyester and
related know-how, including (without limitation) its morphology, the
name(s) of the supplier(s) of Sumitomo Polyester, all particle
specifications, formulas, processes, technology, trade secrets,
manufacturing information, plans, drawings and data and other tangible
embodiments of know-how used to acquire commercially acceptable
Sumitomo Polyester for use in Amdry 2010;
2. All product information related to Sulzer aluminum silicon,
including (without limitation) its morphology, the name(s) of the
supplier(s) of Sulzer aluminum silicon, all product specifications,
formulas, processes, technology, trade secrets, manufacturing
information, plans, drawings and data and other tangible embodiments of
know-how used to acquire commercially acceptable Sulzer aluminum
silicon for use in Amdry 2010;
3. All information related to the manufacture of Amdry 2010,
including (without limitation) all production manuals, training
materials, lists of equipment used in the manufacturing process,
formulas, process, all manufacturing standards and procedures, quality
control specifications, technology, trade secrets, manufacturing
information, plans, drawings and data and other tangible embodiments of
know-how used to manufacture commercially acceptable Amdry 2010; and
4. All information related to the sale of Amdry 2010, including
(without limitation) product brochures, customer lists, training
materials, and other tangible embodiments of know-how used in the sale
of Amdry 2010.
K. ``Amdry 2010 Equivalent'' means an aluminum polyester powder
that is chemically equivalent to Amdry 2010 and that is not produced by
Sulzer or Metco.
L. ``Original equipment manufacturers'' means General Electric
Aircraft Engines Division, Textron Lycoming, and the Garrett Division
of Allied Signal, and their successors and assigns.
M. ``Metco 601'' means Metco's aluminum polyester powder marketed
in the United States under the name ``Metco 601.''
N. ``Carborundum Ekonol Polyester'' means wholly aromatic polyester
that The Carborundum Company produces for Metco according to Metco's
specifications for use as an input in Metco 601.
O. ``Metco aluminum silicon'' means the particular grade,
specification, and type of aluminum silicon used in Metco 601.
P. ``Metco 601 Ingredients'' means Carborundum Ekonol Polyester and
Metco aluminum silicon.
Q. ``Metco 601 Information'' means a copy of all information
necessary to purchase Metco 601 Ingredients and all information
necessary for the manufacture and sale of Metco 601, including but not
limited to:
1. All product information related to Carborundum Ekonol Polyester
and related know-how, including (without limitation) its morphology,
the name(s) of the supplier(s) of Carborundum Ekonol Polyester, all
particle specifications, formulas, processes, technology, trade
secrets, manufacturing information, plans, drawings and data and other
tangible embodiments of know-how used to acquire commercially
acceptable Carborundum Ekonol Polyester for use in Metco 601;
2. All product information related to Metco aluminum silicon,
including (without limitation) its morphology, the name(s) of the
supplier(s) of Metco aluminum silicon, all product specifications,
formulas, processes, technology, trade secrets, manufacturing
information, plans, drawings and data and other tangible embodiments of
know-how used to acquire commercially acceptable Metco aluminum silicon
for use in Metco 601;
3. All information related to the manufacture of Metco 601,
including (without limitation) production manuals, training materials,
lists of equipment used in the manufacturing process, formulas,
process, all manufacturing standards and procedures, quality control
specifications, technology, trade secrets, manufacturing information,
plans, drawings and data and other tangible embodiments of know-how
used to manufacture commercially acceptable Metco 601; and
4. All information related to the sale of Metco 601, including
(without limitation) product brochures, customer lists, training
materials, and other tangible embodiments of know-how used in the sale
of Metco 601.
R. ``Metco 601 Equivalent'' means an aluminum polyester powder that
is chemically equivalent to Metco 601 and that is not produced by Metco
or Sulzer.
It is ordered That:
A. Sulzer shall, absolutely and in good faith, divest the Amdry
2010 Information within six (6) months of the date this Order becomes
final to an acquirer that will develop, manufacture, sell, and seek
original equipment manufacturers' approvals for an Amdry 2010
Equivalent. Sulzer shall divest only to an acquirer that receives the
prior approval of the Commission, and only in a manner that receives
the prior approval of the Commission.
B. Sulzer shall provide all additional assistance, information and
know-how reasonably necessary to the acquirer of the Amdry 2010
Information to help such acquirer receive all product approvals from
the original equipment manufacturers necessary for the purchase of an
Amdry 2010 Equivalent by such original equipment manufacturers or by
any other person pursuant to standards and qualifications established
by such manufacturer. Such assistance shall include but not be limited
to the following:
1. Paying all costs of testing by or for the original equipment
manufacturers for product approvals of an Amdry 2010 Equivalent;
2. Providing any training relevant to the production of an Amdry
2010 Equivalent to the acquirer;
3. Offering any technical assistance necessary to assist the
acquirer in its development of an Amdry 2010 Equivalent; and
4. Any additional information or know-how reasonably necessary to
the acquirer.
C. Sulzer shall submit to the Commission, within nine (9) months of
the date the Commission approves the divestiture of the Amdry 2010
Information, an affidavit from each of the original equipment
manufacturers certifying that each such manufacturer has either (1)
individually approved an Amdry 2010 Equivalent manufactured by the
Commission-approved acquirier of the Amdry 2010 Information for all
uses for which Amdry 2010 is approved by such original equipment
manufacturer, or (2) individually approved any other person's aluminum
polyester powder for all uses for which Amdry 2010 is approved by such
original equipment manufacturer and that such manufacturer is not
interested in approving an Amdry 2010 Equivalent manufactured by the
Commission-approved acquirer of the Amdry 2010 Information for all uses
for which Amdry 2010 is approved by such original equipment
manufacturer.
D. The purpose of the divestiture of the Amdry 2010 Information is
to enable the acquirer to become a viable competitor in the aluminum
polyester powder market and to remedy the lessening of competition
resulting from the acquisition as alleged in the Commission's
complaint.
III
It is further ordered That:
A. If Sulzer has (1) not divested the Amdry 2010 Information within
six (6) months of the date this Order becomes final, or (2) not
submitted affidavits as required by Paragraph II.C. of this Order,
within nine (9) months of the date the Commission approves the
divestiture of the Amdry 2010 Information, then the Commission may
appoint a trustee to divest both the Amdry 2010 Information and the
Metco 601 Information only to an acquirer that receives the prior
approval of the Commission, and only in a manner that receives the
prior approval of the Commission. The purpose of the divestiture of the
Amdry 2010 Information and the Metco 601 Information is to enable the
acquirer to become a viable competitor in the aluminum polyester powder
market, and to remedy the lessening of competition resulting from the
Acquisition as alleged in the Commission's complaint. In the event 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, Sulzer 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, including a court-
appointed trustee, pursuant to Section 5 (l) of the Federal Trade
Commission Act, or any other statute enforced by the Commission, for
any failure by respondent 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, respondent 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 Sulzer, which consent shall not be unreasonably withheld. The
trustee shall be a person with experience and expertise in the
marketing or manufacturing of chemicals. If respondent has not opposed,
in writing, including the reasons for opposing, the selection of any
proposed trustee within ten (10) days after notice by the staff of the
Commission to respondent of the identity of any proposed trustee,
respondent 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 both the Amdry
2010 Information and the Metco 601 Information and to take all such
steps as may be feasible and necessary to assist the acquirer of the
Amdry 2010 Information and the Metco 601 Information to receive all
product approvals from the original equipment manufacturers necessary
for the purchase of an Amdry 2010 Equivalent or a Metco 601 Equivalent
by such manufacturer or by any other person pursuant to standards and
qualifications established by such manufacturer. Such assistance shall
include but not be limited to the following:
a. Requiring respondent to pay all costs of testing by or for the
original equipment manufacturers for product approvals of an Amdry 2010
Equivalent or a Metco 601 Equivalent;
b. Requiring respondent to provide any training relevant to the
production of an Amdry 2010 Equivalent or a Metco 601 Equivalent to the
acquirer;
c. Requiring respondent to offer any technical assistance necessary
to assist the acquirer in its development of an Amdry 2010 Equivalent
or a Metco 601 Equivalent; and
d. Requiring respondent to provide any additional information or
know-how reasonably necessary to the acquirer.
3. Within ten (10) days after appointment of the trustee,
respondent shall execute a trust agreement that, subject to the prior
approval of the Commission and, in the case of a court-appointed
trustee, of the court, transfers to the trustee all rights and powers
necessary to permit the trustee to effect the divestiture of both the
Amdry 2010 Information and the Metco 601 Information and to provide the
additional assistance as required by Paragraph III.B.2. of this Order.
4. From the date of appointment, the trustee shall have twelve (12)
months to divest both the Amdry 2010 Information and the Metco 601
Information, to provide all additional assistance reasonably necessary
to the acquirer, and to submit affidavits to the Commission from each
of the original equipment manufacturers certifying that each has
individually approved the Amdry 2010 Equivalent or the Metco 601
Equivalent manufactured by the Commisssion-approved acquirer of the
Amdry 2010 Information and the Metco 601 Information for all uses for
which Amdry 2010 or Metco 601 is approved by such original equipment
manufacturer, and if such affidavits are not submitted, the trustee
shall have an additional six (6) months thereafter to accomplish the
divestiture of both the Amdry 2010 Information and the Metco 601
Information, to provide the additional assistance, and to submit the
affidavits. If, however, at the end of the additional six (6) month
period, the trustee believes that the original equipment manufacturers
will approve the Amdry 2010 Equivalent or the Metco 601 Equivalent
manufactured by the Commission-approved acquirer of the Amdry 2010
Information and the Metco 601 Information for all uses for which Amdry
2010 or Metco 601 is approved by such original equipment manufacturer,
and will submit said affidavits to the Commission within a reasonable
time, the time period for approvals and submission of affidavits may be
extended by the Commission, or, in the case of a court-appointed
trustee, by the court; provided, however, the Commission may extend
this period only two (2) times.
5. The trustee shall have full and complete access to the
personnel, books, records and facilities related to the Amdry 2010
Information and the Metco 601 Information, or to any other relevant
information, as the trustee may request. Respondent shall develop such
financial or other information as such trustee may request and shall
cooperate with the trustee. Respondent shall take no action to
interfere with or impede the trustee's accomplishment of the
divestiture of the Amdry 2010 Information and the Metco 601
Information, the provision of additional assistance to the acquirer,
and the approval of the Amdry 2010 Equivalent or the Metco 601
Equivalent by the original equipment manufacturers. Any delays caused
by the respondent shall extend the time for the divestiture of the
Amdry 2010 Information and the Metco 601 Information, the additional
assistance to the acquirer, and the approvals by the original equipment
manufacturers, under this Paragraph in an amount equal to the delay, as
determined by the Commission, or, for a court-appointed trustee, by the
court.
6. 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. 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 such
entities selected by respondent from among those approved by the
Commission.
7. The trustee shall serve, without bond or other security, at the
cost and expense of respondent, 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 respondent,
such consultants, accountants, attorneys, investment bankers, business
brokers, appraisers, and other representatives and assistants as are
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 Sulzer 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 divestiture of the Amdry 2010 Information and the Metco 601
Information and submission of the required affidavits from the original
equipment manufacturers.
8. Respondent shall indemnify the trustee and hold the trustee
harmless against any losses, claims, damages, or liabilities 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.
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
this Paragraph 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 of the Amdry 2010 Information
and the Metco 601 Information, the provision of all additional
assistance reasonably necessary to the acquirer, and the submission of
affidavits by each of the original equipment manufacturers as required
by this Order.
11. The trustee shall have no obligation or authority to operate or
maintain the Amdry 2010 Information and the Metco 601 Information.
12. The trustee shall report in writing to respondent and to the
Commission every sixty (60) days concerning the trustee's efforts to
accomplish the divestiture.
IV
It is further ordered That:
A. For a ten (10) year period commencing on the date this Order
becomes final, Sulzer shall not enter into, obtain, make, carry out or
enforce any exclusive agreements with Sumitomo Chemical Company Limited
or otherwise take any action whatsoever, directly or indirectly, that
would prevent Sumitomo Chemical Company Limited from selling Sumitomo
Polyester to any Commission-approved acquirer of the Amdry 2010
Information. Within thirty (30) days after the order becomes final,
respondent shall provide a copy of the order to each person at Sumitomo
Chemical Company Limited with whom respondent has contact in connection
with the purchase of Sumitomo Polyester.
B. If a trustee is appointed and the Metco 601 Information is
divested pursuant to Paragraph III.A. of this Order, then for a ten
(10) year period commencing on the date the Metco 601 Information is
divested, Sulzer shall not enter into, obtain, make, carry out or
enforce any exclusive agreements with The Carborundum Company or
otherwise take any action whatsoever, directly or indirectly, that
would prevent The Carborundum Company from selling Carborundum Ekonol
Polyester to any other persons. Within thirty (30) days after the
trustee is appointed, respondent shall provide a copy of this Order to
each person at The Carborundum Company with whom respondent or Metco
has contact in connection with the purchase of Carborundum Ekonol
Polyester.
V
It is further ordered That, for a period of ten (10) years from the
date this Order becomes final, respondent shall not, without the prior
approval of 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, at the time of such
acquisition engaged in, or within the six months preceding such
acquisition engaged in, the manufacture, sale, or distribution of
aluminum polyester powder in the United States; or
B. Acquire any assets used for or previously used for (and still
suitable for use for) the manufacture, sale, or distribution of
aluminum polyester powder in the United States.
VI
It is further ordered That:
A. Within sixty (60) days after the date this Order becomes final
and every sixty (60) days thereafter until respondent has fully
complied with the provisions of Paragraphs II. and III. of this Order,
respondent shall submit to the Commission a verified written report
setting forth in detail the manner and form in which it intends to
comply, is complying, or has complied with Paragraphs II. and III of
this Order. Respondent shall include in its 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 contracts or
negotiations for the divestiture and the identity of all parties
contacted. Respondent shall include in its compliance reports copies of
all written communications to and from such parties, all internal
memoranda, and all reports and recommendations concerning the
divestiture.
B. One (1) year from the date this Order becomes final, and
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, respondent shall file a verified written report with the
Commission setting forth in detail the manner and form in which it has
complied and is complying with Paragraphs IV. and V. of this Order.
VII
It is further ordered That respondent shall notify the Commission
at least thirty (30) days prior to any proposed change in the
respondent such as dissolution, assignment, or sale resulting in the
emergence of a successor corporation, the creation or dissolution of
subsidiaries or any other change in the respondent that may affect
compliance obligations arising out of the Order.
VIII
It is further ordered That, for the purpose of determining or securing
compliance with this Order, subject to any legally recognized
privilege, and upon written request with reasonable notice to Sulzer
made to its General Counsel, respondent shall permit any duly
authorized representatives 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 respondent relating to any matters contained in this
Order; and
B. Upon five (5) days notice to respondent and without restraint or
interference from it, to interview officers, directors, or employees of
respondent, who may have counsel present regarding such matters.
Anaysis of Proposed Consent Order to Aid Public Comment
The Federal Trade Commission (``Commission'') has provisionally
accepted an agreement containing a proposed Consent Order from Sulzer
Limited (``Sulzer''), which requires Sulzer to divest a copy of all
product information regarding Amdry 2010, an aluminum polyester powder,
to a Commission-approved acquirer and to assist such acquirer in its
efforts to produce and sell an Amdry 2010 equivalent powder (``Amdry
2010 Equivalent'').
The proposed Consent Order has been placed on the public record for
sixty (60) days for reception of comments by interested persons.
Comments received during this period will become part of the public
record. After sixty (60) 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 proposed
Order.
On April 18, 1994, Sulzer and The Perkin-Elmer Corporation
(``Perkin-Elmer'') entered into an agreement whereby Sulzer agreed to
purchase all of the assets of Perkin-Elmer's Metco Division
(``Metco''). The proposed complaint alleges that the proposed
acquisition, if consummated, would constitute a violation of Section 7
of the Clayton Act, as amended, 15 U.S.C. 18, and Section 5 of the FTC
Act, as amended, 15 U.S.C. 45, in the market for the manufacture and
sale of aluminum polyester powder in the United States. Sulzer's powder
is marketed as Amdry 2010 and Metco's powder is marketed as Metco 601.
The proposed Consent Order would remedy the alleged violation by
requiring Sulzer to establish a new competitor in the business of
manufacturing and selling aluminum polyester powder and to assist such
competitor to receive the necessary product approvals from three
original equipment manufacturers (``OEMs''). Thus, Sulzer will be
required to replace the competition lost due to its acquisition of
Metco.
The proposed Consent Order provides that within six (6) months of
the Order becoming final, Sulzer shall divest to a Commission-approved
acquirer a copy of all information necessary to purchase ingredients
for, manufacture, and sell aluminum polyester powder (Amdry 2010
Information'') and to assist such acquirer in its efforts to
manufacture an equivalent aluminum polyester powder. The divestiture of
the Amdry 2010 Information shall be made only to an acquirer that
receives the prior approval of the Commission and only in a manner that
receives the prior approval of the Commission. Sulzer shall provide all
additional assistance, information, and know-how reasonably necessary
to the acquirer to help such acquirer receive all product approvals
from three OEMs necessary for the purchase of an Amdry 2010 Equivalent
by such OEMs. The three OEMs included in the Order are General Electric
Aircraft Engines Division, Textron Lycoming, and the Garrett Division
of Allied Signal. Sulzer shall submit an affidavit from each OEM to the
Commission, certifying that each OEM has either approved the Amdry 2010
Equivalent or approved another person's aluminum polyester powder.
In the event that Sulzer has not divested the Amdry 2010
Information within six (6) months of the date the Order becomes final,
or submitted the required affidavits to the Commission within nine (9)
months of the date the Commission approves the divestiture, then the
proposed Consent Order provides that Sulzer shall consent to the
appointment by the Commission of a trustee to divest the Amdry 2010
Information and a copy of all product information relating to Metco 601
(``Metco 601 Information'') to a Commission-approved acquirer. The
trustee shall also have the authority to take such steps as may be
feasible and necessary to assist the acquirer to receive approvals from
the three OEMs for an Amdry 2010 or a Metco 601 equivalent powder.
Under the provisions of the Consent Order, Sulzer is also required
to provide to the Commission a report of its compliance with the
divestiture provisions of the Order within sixty (60) days following
the date this Order becomes final, and every sixty (60) days thereafter
until Sulzer has completely divested the Amdry 2010 Information and
submitted the required affidavits to the Commission, or consented to
the appointment of a trustee to do the same. The proposed Order will
also prohibit Sulzer, for a period of ten (10) years, from acquiring,
without Federal Trade Commission approval, any stock in any concern
engaged in the manufacture, sale, or distribution of aluminum polyester
powder in the United States, or any assets used for the manufacture,
sale, or distribution of aluminum polyester powder in the United
States.
One year from the date the Order becomes final and annually
thereafter for nine (9) years, Sulzer will be required to provide to
the Commission a report of its compliance with the Consent Order. The
Consent Order also requires Sulzer to notify the Commission at least
thirty (30) days prior to any change in the structure of Sulzer
resulting in the emergence of a successor.
The purpose of this analysis is to facilitate public comment on the
proposed Order, and it is not intended to constitute an official
interpretation of the agreement and proposed Order or to modify in any
way their terms.
Donald S. Clark,
Secretary.
[FR Doc. 94-25338 Filed 10-12-94; 8:45 am]
BILLING CODE 6750-01-M