[Federal Register Volume 59, Number 222 (Friday, November 18, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-28499]


[[Page Unknown]]

[Federal Register: November 18, 1994]


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FEDERAL TRADE COMMISSION
[File No. 941 0054]

 

Oerlikon-Buhrle Holding AG; 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 
permit, among other things, a Switzerland-based corporation to acquire 
Leybold AG, a German firm, but would require the respondent to divest 
both the Leybold compact disc metallizer business and the Balzers-
Pfeiffer turbomolecular pump business, within 12 months after the 
Commission order becomes final, to Commission approved entities. If the 
divestitures are not completed within 12 months, the Commission would 
be permitted to appoint trustees to complete them. In addition, the 
respondent would be required, for ten years, to obtain Commission 
approval before acquiring any interest in any entity engaged in either 
of the two markets at issue.

DATES: Comments must be received on or before [Insert date 60 days 
after Federal Register publication date].

ADDRESSES: Comments should be directed to: FTC/Office of the Secretary, 
Room 159, 6th Street and Pennsylvania Avenue NW., Washington, D.C. 
20580.

FOR FURTHER INFORMATION CONTACT: Ann Malester or Michael Moiseyev, FTC/
S-2224, Washington, D.C. 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 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 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 Oerlikon-Buhrle Holding AG 
(``Oerlikon-Buhrle''), a Swiss corporation, of Leybold AG, 
(``Leybold''), a wholly-owned subsidiary of Degussa Aktiengesellschaft 
(``Degussa''), a German corporation, and it now appearing that 
Oerlikon-Buhrle, hereinafter sometimes referred to as ``Proposed 
Respondent,'' is willing to enter into an agreement containing an order 
to divest certain assets and cease and desist from making certain 
acquisitions, and providing for certain other relief:
    It is hereby agreed by and between Proposed Respondent Oerlikon-
Buhrle, by its duly authorized officers and attorneys, and counsel for 
the Commission that:
    1. Proposed Respondent Oerlikon-Buhrle is a corporation organized, 
existing, and doing business under and by virtue of the laws of 
Switzerland with its principal executive offices located at 
Hofwiesenstrasse 135, CH-8021 Zurich, Switzerland.
    2. Schweizerische Kreditantstalt (``SKA'') is a banking corporation 
organized, existing, and doing business under and by virtue of the laws 
of Switzerland with its principal executive offices located at 
Paradeplatz, CH-8001 Zurich, Switzerland. Pursuant to the Trust 
Agreement dated October 6, 1994, SKA will hold all of the outstanding 
shares of Balzers-Pfeiffer GmbH in trust and for the account and risk 
of Oerlikon-Buhrle as of the time Leybold is required by Oerlikon-
Buhrle, and will be an agent of Oerlikon-Buhrle.
    3. Proposed Respondent admits all the jurisdictional facts set 
forth in the draft of complaint here attached.
    4. 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 claims 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 is respect thereto publicly 
release. 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
    6. This agreement is for settlement purposes only and does not 
constitute an admission by 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.
    7. 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 
Proposed Respondent, (1) issue its complaint corresponding in form and 
substance with the draft fo 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 Respondent's wholly-owned subsidiary, Oerlikon-Buhrle USA, 
Inc., at its principal executive offices at One Penn Plaza, Suite 4828, 
New York, NY 10119, 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.
    8. Proposed Respondent has read the proposed 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 it may be liable for civil 
penalties in the amount provided by law for each violation of the order 
by Respondent or any agent of Respondent, including without limitation 
SKA, after it becomes final.

Order

I

    It is ordered that, as used in this order, the following 
definitions shall apply:
    A. ``Oerlikon-Buhrle'' means Oerlikon-Buhrle Holding AG, its 
predecessors, subsidiaries, divisions, and groups and affiliates 
controlled by Oerlikon-Buhrle; their directors, officers, employees, 
agents (including, but not limited to, SKA), and representatives; and 
their successors and assigns.
    B. ``Leybold'' means Leybold AG, its predecessors, subsidiaries, 
divisions, and groups and affiliates controlled by Leybold; their 
directors, officers, employees, agents, and representatives; and their 
successors and assigns.
    C. ``SKA'' means Schweizerische Kreditanstalt, a banking 
corporation organized, existing and doing business under, and by virtue 
of the laws of Switzerland. Pursuant to the Trust Agreement dated 
October 6, 1994, SKA will hold all of the outstanding shares of 
Balzers-Pfeiffer GmbH in trust and for the account and risk of 
Oerlikon-Buhrle as of the time Leybold is acquired by Oerlikon-Buhrle, 
and will be an agent of Oerlikon-Buhrle.
    D. ``Balzers-Pfeiffer'' means Balzers-Pfeiffer GmbH, a German 
corporation, its predecessors, subsidiaries, divisions, and groups and 
affiliates controlled by Balzers-Pfeiffer; their directors, officers, 
employees, agents, and representatives; and their successors and 
assigns.
    E. ``Respondent'' means Oerlikon-Buhrle.
    F. ``Commission'' means the Federal Trade Commission.
    G. ``Acquisition'' means Oerlikon-Buhrle's acquisition of voting 
securities of Leybold pursuant to the Purchase Agreement dated January 
21, 1994.
    H. ``Assets and Businesses'' means all assets, properties, 
businesses goodwill, tangible and intangible, including, without 
limitation, the following:
    1. all machinery, fixtures, equipment, vehicles, transportation 
facilities, furniture, tools and other tangible personal property;
    2. all customer lists, vendor lists, catalogs, sales promotion 
literature, advertising materials, research materials, technical 
information, management information systems, software, inventions, 
copyrights, trademarks, trade names, trade secrets, intellectual 
property, patents, technology, know-how, specifications, designs, 
drawings, processes and quality control data;
    3. inventory and storage capacity;
    4. all rights, title and interest in and to the contracts entered 
into in the ordinary course of business with customers (together with 
associated bid and performance bonds), suppliers, sale representatives, 
distributors, agents, personal property lessors, personal property 
lessees, licensors, licensees, consignors and consignees;
    5. all rights under warranties and guarantees, express or implied;
    6. all books, records, and files; and
    7. all items of prepaid expense.
    I. ``Trust Agreement'' means the trust agreement dated October 6, 
1994, between Oerlikon-Buhrle and SKA, attached hereto as Attachment 1, 
pursuant to which SKA will hold all of the outstanding shares of 
Balzers-Pfeiffer GmbH in trust and for the account and risk of 
Oerlikon-Buhrle, as of the time Leybold is acquired by Oerlikon-Buhrle, 
and will be an agent of Oerlikon-Buhrle.
    J. ``Leybold Compact Disc Metallizer Business'' means all of 
Leybold's rights, title and interest in and to:
    1. compact disc metallizers, including, but not limited to, 
Singulus, and all patents, trademarks, intellectual property, 
production technology and know-how related to the manufacture, 
distribution and sale of compact disc metallizers; and
    2. all of Leybold's Assets and Businesses as further delineated in 
Schedule A, attached hereto and made a part hereof.
    K. ``Leybold Thin Film Coating Systems Business'' means all of 
Leybold's rights, title and interest, as of the date this agreement is 
accepted by the Commission, in all Assets and Businesses relating to 
the development, manufacture, distribution, marketing or sale of vacuum 
systems and equipment for the deposition of thin films, including 
without limitation, vacuum web coating systems, architectural glass 
coaters, compact disc metallizers, compact disc replication lines, 
compact disc mastering equipment, precision optics coating systems, 
ophthalmic lens coating systems, decorative hard coating systems, 
silicon crystal growing systems, and vacuum coating systems for 
research and development. Such Assets and Businesses shall include all 
rights, title and interest in and to owned or leased real property, 
together with appurtenances, licenses and permits. The Leybold Thin 
Film Coating Systems Business excludes magnetic and magneto-optical 
disc coating systems, systems for the manufacture of thin film heads 
for magnetic drives, vacuum systems for the coating of plastic parts, 
and vacuum systems for the coating of automotive parts.
    L. ``Balzers-Pfeiffer Assets'' means all of the Assets and 
Businesses of Balzers-Pfeiffer and all of the other Oerlikon-Buhrle 
Assets and Businesses relating to the development, manufacture, 
distribution, marketing, or sale of turbomolecular pumps, as delineated 
in Schedule B, attached hereto and made a part hereof.
    M. ``Ophthalmic Coating Business'' means all of Oerlikon-Buhrle's 
rights, title and interest in all Assets and Businesses relating to the 
development, manufacture, distribution, marketing, or sale of equipment 
used in the application of coatings to ophthalmic lenses, including all 
interests in such Assets and Businesses as acquired from Leybold.
    N. ``Compact Disc Metallizers'' means vacuum systems for the 
deposition of reflective coatings on audio compact discs and CD-ROMs.
    O. ``Turbomolecular Pumps'' means vacuum pumps employing 
turbomolecular processes to generate high vacuum environments.

II

    It is further ordered that:
    A. Oerlikon-Buhrle shall divest, absolutely and in good faith, 
within twelve (12) months of the date this order becomes final, the 
Leybold Compact Disc Metallizer Business, and shall also divest such 
additional ancillary Assets and Businesses and effect such arrangements 
as are necessary to assure the marketability, viability, and 
competitiveness of the Leybold Compact Disc Metallizer Business; 
provided that Oerlikon-Buhrle is not required to divest any of the 
assets identified in Part 2 of Schedule A unless such assets are 
required by the acquirer.
    B. Oerlikon-Buhrle shall divest the Leybold Compact Disc Metallizer 
Business 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 is to ensure the 
continuation of the Leybold Compact Disc Metallizer Business as an 
ongoing, viable operation, engaged in the same business in which the 
Leybold Compact Disc Metallizer Business is engaged at the time of the 
proposed divestiture, and to remedy the lessening of competition 
resulting from the Acquisition as alleged in the Commission's 
complaint.
    C. Upon reasonable notice from the acquirer to Oerlikon-Buhrle, for 
a period of six months following the date of divestiture, Oerlikon-
Buhrle shall provide such personnel, information, technical assistance, 
advice and training to the acquirer as is necessary to transfer the 
Leybold Compact Disc Metallizer Business pursuant to Paragraph II.A. 
and establish such business as a viable, ongoing concern. Such 
assistance shall include reasonable consultation with knowledgeable 
employees of Oerlikon-Buhrle to satisfy the acquirer's management that 
its personnel are appropriately trained in the manufacture of compact 
disc metallizers to the extent Oerlikon-Buhrle has the ability to do so 
after the divestiture is complete. Oerlikon-Buhrle shall not charge the 
acquirer a rate more than its own direct costs for providing such 
technical assistance.
    D. Pending divestiture of the Leybold Compact Disc Metallizer 
Business, Oerlikon-Buhrle shall take such actions as are necessary to 
maintain the viability, marketability, and competitiveness of the 
Leybold Compact Disc Metallizer Business and to prevent the 
destruction, removal, wasting, deterioration or impairment of the 
Leybold Compact Disc Metallizer Business except for ordinary wear and 
tear.
    E. At the time of the execution of a purchase agreement between 
Oerlikon-Buhrle and a proposed acquirer of the Leybold Compact Disc 
Metallizer Business, Oerlikon-Buhrle shall provide the acquirer with a 
complete list of all non-clerical, salaried employees of the Leybold 
Compact Disc Metallizer Business, who have been involved in the 
development, production, distribution, or sale of Leybold compact disc 
metalizers at any time during the period from September 1, 1992, until 
the date of the purchase agreement. Such list shall state each such 
individual's name, position, address, telephone number, and a 
description of the duties of and work performed by the individual in 
connection with any compact disc metallizer product developed, 
produced, or distributed by Leybold.
    F. Oerlikon-Buhrle shall provide the proposed acquirer with an 
opportunity to inspect the personnel files and other documentation 
relating to the individuals identified in Paragraph II.E. of this order 
to the extent permissible under applicable laws. For a period of six 
(6) months following the divestiture, Oerlikon-Buhrle shall further 
provide the Commission-approved acquirer with an opportunity to 
interview such individuals and negotiate employment contracts with 
them.
    G. Oerlikon-Buhrle shall provide the individuals identified in 
Paragraph II.E. of this order with ample financial incentives to 
continue in their employment positions during the period covered by the 
Leybold Hold Separate Agreement, hereto attached, and to accept 
employment with the Commission-approved acquirer at the time of the 
divestiture. Such incentives shall include:
    1. continuation of all employee benefits offered by Leybold until 
the date of the divestiture; and
    2. a bonus equal to 25 percent of an employee's annual salary 
(including any other bonuses) as of the date this order becomes final 
for any individual who agrees to employment with the Commission-
approved acquirer, payable upon the beginning of their employment by 
the Commission-approved acquirer.
    H. For a period of one (1) year commencing on the date of the 
individual's employment by the Commission-approved acquirer, Oerlikon-
Buhrle shall not re-hire any of the individuals identified in Paragraph 
II.E. of this order who accept employment with the Commission-approved 
acquirer.

III

    It is further ordered that:
    A. Respondent Oerlikon-Buhrle shall divest, and shall direct SKA to 
take all steps necessary to divest, absolutely and in good faith, 
within twelve (12) months of the date this order becomes final, the 
Balzers-Pfeiffer Assets, and Oerlikon-Buhrle shall also divest such 
additional ancillary Assets and Businesses and effect such arrangements 
as are necessary to assure the marketability, viability, and 
competitiveness of Balzers-Pfeiffer; provided that Oerlikon-Buhrle is 
not required to divest any of the assets identified in Part 2 of 
Schedule B, unless such assets are required by the acquirer.
    B. Oerlikon-Buhrle shall divest, and shall direct SKA to take all 
steps necessary to divest, the Balzers-Pfeiffer Assets 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 Balzers-Pfeiffer Assets is to ensure 
the continuation of Balzers-Pfeiffer as an ongoing, viable operation, 
engaged in the same business in which it is engaged at the time of the 
proposed divestiture, and to remedy the lessening of competition 
resulting from the Acquisition as alleged in the Commission's 
complaint. Provided, however, that nothing in this order shall prevent 
Oerlikon-Buhrle from transferring the stock and share capital of 
Balzers-Pfeiffer to SKA at the time Oerlikon-Buhrle acquires Leybold 
pursuant to the Trust Agreement. However, such transfer shall not 
fulfill Oerlikon-Buhrle's obligation under this order to divest 
Balzers-Pfeiffer Assets.
    C. Pending divestiture of the Balzers-Pfeiffer Assets, Oerlikon-
Buhrle shall take such actions, and shall direct SKA to take such 
actions, as are necessary to maintain the viability and marketability 
of Balzers-Pfeiffer and to prevent the destruction, removal, wasting, 
deterioration or impairment of any of the Balzers-Pfeiffer Assets 
except for ordinary wear and tear.
    D. Oerlikon-Buhrle shall take all steps necessary to ensure that 
SKA complies with the Trust Agreement, including, without limitation, 
pursuing any legal action it may have against SKA for monetary and 
equitable damages arising from any breach of the Trust Agreement by 
SKA. Oerlikon-Buhrle shall not agree to any alteration, reformation, 
amendment or other change to the Trust Agreement without the prior 
approval of the Commission. In addition to the requirements of this 
Paragraph III, Oerlikon-Buhrle shall direct SKA to take all steps 
necessary to accomplish the requirements of this order pertaining to 
the Balzers-Pfeiffer Assets.

IV

    It is further ordered that:
    A. If Oerlikon-Buhrle has not divested, absolutely and in good 
faith, and with the prior approval of the Commission, the Leybold 
Compact Disc Metallizer Business within twelve (12) months of the date 
this order becomes final, the Commission may appoint a trustee to 
divest the Leybold Thin Film Coating Systems Business.
    B. If Oerlikon-Buhrle and SKA have not divested, absolutely and in 
good faith, and with the prior approval of the Commission, the Balzers-
Pfeiffer Assets within twelve (12) months of the date this order 
becomes final, the Commission may appoint a trustee to divest the 
Balzers-Pfeiffer Assets.
    C. In the event that the Commission or the Attorney General brings 
an action pursuant to Sec. 5(l) of the Federal Trade Commission Act, 15 
U.S.C. Sec. 45(l), or any other statute enforced by the Commission, 
Oerlikon-Buhrle and in the case of the Balzers-Pfeiffer Assets, SKA, at 
the direction of Oerlikon-Buhrle, 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 IV 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 Sec. 5(l) of the Federal Trade 
Commission Act, or any other statute enforced by the Commission, for 
any failure by Oerlikon-Buhrle to comply with this order.
    D. If a trustee is appointed by the Commission or a court pursuant 
to Paragraph IV.A. or Paragraph IV.B., Oerlikon-Buhrle 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 Oerlikon-Buhrle and in the case of the Balzers-Pfeiffer Assets, SKA, 
at the direction of Oerlikon-Buhrle, which consent shall not be 
unreasonably withheld. The trustee shall be a person with experience 
and expertise in acquisitions and divestitures. If Oerlikon-Buhrle or 
in the case of the Balzers-Pfeiffer Assets, SKA, at the direction of 
Oerlikon-Buhrle, 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 Oerlikon-Buhrle of the 
identity of any proposed trustee, Oerlikon-Buhrle 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 Leybold Thin 
Film Coating Systems Business and/or the Balzers-Pfeiffer Assets.
    3. Within ten (10) days after appointment of the trustee, Oerlikon-
Buhrle shall execute a trust agreement, and in the case of the Balzers-
Pfeiffer Assets, Oerlikon-Buhrle shall direct SKA to 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(s) required by this order.
    4. The trustee shall have twelve (12) months from the date the 
Commission approves the trust agreement described in Paragraph IV.D.3. 
to accomplish the divestiture(s), 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; 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 Leybold Thin 
Film Coating Systems Business and/or the Balzers-Pfeiffer Assets, or to 
any other relevant information, as the trustee may request. Oerlikon-
Buhrle shall develop, and in the case of the Balzers-Pfeiffer Assets, 
Oerlikon-Buhrle shall direct SKA to develop such financial or other 
information as such trustee may request and shall cooperate with the 
trustee. Oerlikon-Buhrle shall take no action, and Oerlikon-Buhrle 
shall direct SKA to take no action, to interfere with or impede the 
trustee's accomplishment of the divestiture(s). Any delays in 
divestiture caused by Oerlikon-Buhrle or SKA 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.
    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 Oerlikon-Buhrle's absolute and 
unconditional obligation to divest at no minimum price. The 
divestiture(s) shall be made in the manner and to the acquirer(s) as 
set out in Paragraphs II and III of this order, as appropriate; 
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 Oerlikon-Buhrle from among 
those approved by the Commission. If requested by the trustee or 
acquirer, Oerlikon-Buhrle shall provide the acquirer with the 
assistance required by Paragraph II.C. of this order.
    7. The trustee shall serve, without bond or other security, at the 
cost and expense of Oerlikon-Buhrle, 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 
Oerlikon-Buhrle, 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(s) 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 Oerlikon-Buhrle, 
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 Leybold Thin Film Coating 
Systems Business and/or the Balzers-Pfeiffer Assets.
    8. Oerlikon-Buhrle 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.
    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 IV 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 divestitute(s) required by this order.
    11. The trustee shall have no obligation or authority to operate or 
maintain the Leybold Thin Film Coating Systems Business or the Blazers-
Pfeiffer Assets.
    12. The trustee shall report in writing to Oerlikon-Buhrle and the 
Commission every sixty (60) days concerning the trustee's efforts to 
accomplish divestitute(s).

V

    It is further ordered that, until the earlier of ten (10) years 
from the date this order becomes final or until Oerlikon-Burle has sold 
all of the Assets and Businesses of either Blazers' ophthalmic lens 
coating business or Leybold's ophthalmic lens coating business, 
Oerlikon-Buhrle shall not transfer any interest in the stock, share 
capital, or assets of the Ophthalmic Coating Business to any third 
party, other than to a subsidiary of Oerlikon-Buhrle, without providing 
advance written notification to the Federal Trade Commission. 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 ``the Notification''). Oerlikon-
Buhrle shall provide to the Federal Trade Commission, at least thirty 
days prior to transferring any interest in the stock, share capital, or 
assets of the Ophthalmic Coating Business, both the Notification and 
supplemental information either in Oerlikon-Buhrle's possession or 
reasonably available to Oerlikon-Buhrle. Such supplemental information 
shall include a copy of the proposed acquisition agreement; the names 
of the principal representatives of Oerlikon-Buhrle and of the firm who 
proposes to acquire the stock, share capital, or assets of the 
Ophthalmic Coating Business who negotiated the acquisition agreement; 
and any management or strategic plans discussing the proposed 
transaction. If, within the thirty-day period, representatives of the 
Federal Trade Commission make a written request for additional 
information, Oerlikon-Buhrle shall not consummate the transaction 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. Section 18a.

VI

    It is further ordered that Oerlikon-Buhrle shall comply with all 
terms of the Balazers-Pfeiffer Agreement to Hold Separate and the 
Leybold Systems Business Agreement to Hold Separate, attached to this 
order and made a part hereof as Appendices I and II. The Blazers-
Pfeiffer Agreement to Hold Separate the Blazers-Pfeiffer Assets shall 
continue in effect until Oerlikon-Buhrle and SKA have divested all of 
the Blazers-Pfeiffer Assets. The Leybold Systems Business Agreement to 
Hold Separate shall continue in effect until Oerlikon-Buhrle has 
divested all of the Leybold Compact Disc Metallizer Business or the 
Leybold Thin Film Coating Systems Business as required by this order.

VII

    It is further ordered that, for a period of ten (10) years from the 
date this order becomes final, Oerlikon-Buhrle shall not, without the 
prior approval of the Commission, directly or indirectly, through 
subsidiaries, partnerships, or otherwise:
    A. acquire any of the stock, share capital, equity or other 
interest in any concern, corporate or non-corporate, engaged in at the 
time of such acquisition, or within the two years preceding such 
acquisition engaged in, the manufacture of turbomolecular pumps;
    B. acquire any assets used for or previously used for (and still 
suitable for use for) the manufacture, distribution, or sale of 
turbomolecular pumps;
    C. acquire any of the stock, share capital, equity or other 
interest in any concern, corporate or non-corporate, engaged in at the 
time of such acquisition, or within the two years preceding such 
acquisition engaged in, the manufacture of compact disc metallizers; or
    D. acquire any assets used for or previously used for (and still 
suitable for use for) the manufacture, distribution, or sale of compact 
disc metallizers.
    Provided, however, that this Paragraph VII shall not apply to the 
acquisition of products or services acquired in the ordinary course of 
business, or of any non-exclusive license to any patent or other form 
of intellectual property (excluding assets of the Leybold Compact Disc 
Business and Blazers-Pfeiffer).

VIII

    It is further ordered that:
    A. Within sixty (60) days after the date this order becomes final 
and every sixty (60) days thereafter until Oerlikon-Buhrle has fully 
complied with Paragraphs II, III, IV, and VI of this order, Oerlikon-
Buhrle 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, and has complied with Paragraphs II, III, IV, and VI of this 
order. Oerlikon-Buhrle 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, III, IV, and VI of 
this order, including a description of all substantive contacts or 
negotiations for the divestiture(s) required by this order, including 
the identity of all parties contacted. Oerlikon-Buhrle 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, 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, 
Oerlikon-Buhrle 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 V and VII of this order.

IX

    It is further ordered that, for the purpose of determining or 
securing compliance with this order, 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 Respondent, to interview officers, directors, or 
employees of Respondent. Officers and employees of Respondent whose 
places of employment are outside the United States shall be made 
available on reasonable notice.

X

    It is further ordered that
    A. Oerlikon-Buhrle shall notify the Commission at least thirty (30) 
days prior to any proposed change in the corporate Respondent such as 
dissolution, assignment, sale resulting in the emergence of a successor 
corporation, or the creation or dissolution of subsidiaries or any 
other change in the corporation that may affect compliance obligations 
arising out of the order.

Schedule A

    Oerlikon-Buhrle shall divest all of the Assets and Businesses of 
the Leybold Compact Disc Metallizer Business pursuant to the terms of 
this order. The assets identified in Paragraph I.J. of this order shall 
include all assets, properties, business and goodwill, tangible and 
intangible, of Leybold in or relating to the development, manufacture, 
sale, distribution and marketing of compact disc metallizers, compact 
disc lines, and compact disc mastering systems, including without 
limitation, the following:

Part 1

    1. all Leybold compact disc metallizers including, but not limited 
to, equipment and documentation;
    2. all Leybold compact disc metallizer inventory (including work in 
progress);
    3. all lists or other information necessary to source materials, 
parts, components and other inputs involved in the production of 
Leybold compact disc metallizers;
    4. all rights, title and interest in and results of all research 
and development efforts by Leybold relating to improvements, 
developments, and variants of Leybold compact disc metallizer products;

Part 2

    5. all Assets and Businesses of Leybold relating solely to the 
development, manufacture, sale, distribution and/or marketing of 
compact disc lines and/or compact disc mastering systems, including 
equipment, documentation, inventory, work in process, information 
necessary to source materials, parts, components, and other inputs, all 
rights, title and interest and results of all research and development 
efforts by Leybold relating solely to improvements, developments, and 
variants or Leybold compact disc line and or mastering system products, 
and employment contracts to the extent permissible under applicable 
law.

Schedule B

    Oerlikon-Buhrle shall divest all of the Assets and Businesses of 
the Balzers-Pfeiffer Assets pursuant to the terms of this order. The 
assets identified in Paragraph I.L. of this order shall include all 
assets, properties, business and goodwill, tangible and intangible, of 
Oerlikon-Buhrle as of the date this order is accepted by the 
Commission, in or relating to the development, manufacture, marketing, 
sale, and distribution of turbomolecular pumps, including without 
limitation, the following:

Part 1

    1. all of the stock and share capital, or participation held by 
Oerlikon-Buhrle of Balzers-Pfeiffer, including, without limitation, all 
stock, share capital, or participation held in trust by SKA for the 
account and risk of Oerlikon-Buhrle as of the date Leybold is acquired 
by Oerlikon-Buhrle;
    2. all patents, intellectual property, trademarks, production 
technology, and know-how related to the development, manufacture, 
marketing, sale, or distribution of turbomolecular pumps;
    3. all rights, title and interest in and results of all research 
and development efforts relating to improvements, developments, and 
variants of turbomolecular pump products;
    4. all rights, title and interest in and to owned or leased real 
property, together with appurtenances, licenses and permits used in the 
manufacturer of turbomolecular pumps;

Part 2

    5. all Assets and Businesses of Oerlikon-Buhrle (excluding Balzers-
Pfeiffer) in or relating to the sale, distribution or marketing of 
turbomolecular pumps.

Analysis of Proposed Consent Order to Aid Public Comment

    The Federal Trade Commission (``Commission'') has accepted subject 
to final approval an agreement containing a proposed consent order from 
Oerlikon-Buhrle Holding AG (``Oerlikon-Buhrle'') to resolve competitive 
concerns with the proposed acquisition of Leybold AG, a wholly-owned 
subsidiary of Degussa Aktiengesellschaft. Under the proposed order, 
Oerlikon-Buhrle would: (1) divest its Turbomolecular Pump Business; (2) 
divest the Leybold Compact Disc Metallizer Business; and (3) notify the 
Commission before selling any assets of or interest in its Ophthalmic 
Coating Business.
    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 review the agreement 
and the comments received and will decide whether to withdraw its 
acceptance of the agreement or to make final the agreement's proposed 
order.
    The draft complaint alleges that the proposed acquisition, if 
consummated, would violate Section 7 of the Clayton Act, 15 U.S.C. 
Sec. 18, as amended, and Section 5 of the FTC Act, 15 U.S.C. Sec. 45, 
as amended, in the markets for turbomolecular pumps and compact disc 
metallizers. The proposed consent order would remedy the alleged 
violation by requiring divestitures to restore competition.
    The proposed order would require Oerlikon-Buhrle to divest the 
Leybold Compact Disc Metallizer Business and the Oerlikon-Buhrle 
Turbomolecular Pump Business within twelve (12) months after the 
proposed order becomes final. The proposed order would require 
Oerlikon-Buhrle to take all steps necessary to ensure that 
Schweizeierische Kreditanstalt (``SKA''), trustee for the 
Turbomolecular Pump Business, cooperates to accomplish divestiture of 
the Turbomolecular Pump Business. Under the terms of the order, 
Oerlikon-Buhrle would be responsible for order violations caused by 
SKA.
    Oerlikon-Buhrle also would be required to divest, at the option of 
the acquirer(s), Compact Disc Integrated Line assets, Compact Disc 
Mastering assets, and the sales and service organization associated 
with the Oerlikon-Buhrle Turbomolecular Pump Business.
    To help ensure the viability of the Leybold Compact Disc Metallizer 
Business, Oerlikon-Buhrle would be required to provide technical 
assistance to the acquirer as necessary. In addition, Oerlikon-Buhrle 
would be required to give the acquirer an opportunity to interview and 
offer employment to personnel involved in the Leybold Compact Disc 
Metallizer Business and to offer financial incentives for employees to 
remain with Leybold pending divestiture and to accept employment with 
the acquirer after divestiture. Oerlikon-Buhrle could not rehire any of 
these employees until one year after they began employment with the 
acquirer.
    If Oerlikon-Buhrle failed to divest the Leybold Compact Disc 
Metallizer Business during the allotted time, a trustee could be 
appointed to divest the Leybold Thin Film Coating Systems Business. If 
Oerlikon-Buhrle failed to divest the Turbomolecular Pump Business, a 
trustee could be appointed to divest the Turbomolecular Pump Business. 
If, at the end of twelve months, the trustees submitted a plan of 
divestiture or believed that divestiture could be achieved within a 
reasonable time, the time period for divestiture could be extended.
    A Hold Separate Agreement provides that until the divestiture of 
the Leybold Compact Disc Metallizer Business is completed, the Leybold 
Thin Film Coating Systems Business shall be held separate from and 
operated independently of Oerlikon-Buhrle. A second Hold Separate 
Agreement provides that until the divestiture of the Oerlikon-Buhrle 
Turbomolecular Pump Business is completed, this business shall be held 
separate from and operated independently of Oerlikon-Buhrle.
    Under the proposed order, Oerlikon-Buhrle would be required to 
provide to the Commission reports of its compliance with the 
divestiture provisions of the order sixty (60) days after the order 
becomes final and every sixty (60) days thereafter, until the 
divestitures have been completed.
    The proposed order would require Oerlikon-Buhrle, for ten (10) 
years, to obtain the prior approval of the Commission before acquiring 
any interest in any other company engaged in the manufacture, 
distribution or sale of turbomolecular pumps or compact disc 
metallizers.
    The proposed order also would require Oerlikon-Buhrle to provide 
advance notice to the Commission before selling any interest in or 
assets of its Ophthalmic Coating Business.
    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. 94-28499 Filed 11-17-94; 8:45 am]
BILLING CODE 6750-01-M