[Federal Register Volume 61, Number 14 (Monday, January 22, 1996)]
[Notices]
[Pages 1573-1580]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-788]



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FEDERAL TRADE COMMISSION

[File No. 961 0017]


Praxair, Inc.; Proposed Consent Agreement With Analysis to Aid 
Public Comment

AGENCY: Federal Trade Commission.

ACTION: Proposed Consent Agreement.

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SUMMARY: This Consent Agreement, accepted subject to final Commission 
approval, settles alleged violations of federal law prohibiting unfair 
or deceptive acts and practices and unfair methods of competition 
arising from the acquisition of CBI Industries, Inc. by Praxair, Inc. 
Under the terms of the proposed order contained in the Consent 
Agreement, Praxair, among other things, must divest all of the assets 
and businesses relating to four CBI plants that produce atmospheric 
gases--located in Vacaville, California; Irwindale, California; Bozrah, 
Connecticut; and Madison, Wisconsin--to an acquirer or acquirers 
approved by the Commission. If Praxair fails to divest these assets 
within 12 months after the order becomes final, a trustee may be 
appointed to divest the four plants. The Consent Agreement also 
requires Praxair to take all steps necessary to ensure that the plants 
to be divested continue as ongoing, viable and competitive operations, 
by complying with an Agreement to Hold Separate.

DATES: Comments must be received on or before March 22, 1996.

ADDRESSES: Comments should be directed to: FTC/Office of the Secretary, 
Room 159, 6th St. and Pa. Ave., N.W., Washington, D.C. 20580.

FOR FURTHER INFORMATION CONTACT: James H. Holden, Jr., FTC/S-2023, 
Washington, D.C. 20580 (202) 326-2682; or Christina Perez, FTC/S-2214, 
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)).

[[Page 1574]]

    The Federal Trade Commission (``Commission''), having initiated an 
investigation of the proposed acquisition by Praxair, Inc. 
(``Praxair'') of CBI Industries, Inc. (``CBI''), and it now appearing 
that Praxair, hereinafter sometimes referred to as ``Proposed 
Respondent,'' is willing to enter into an agreement containing an order 
to divest assets, and providing for certain other relief:
    It is hereby agreed by and between Proposed Respondent Praxair, by 
its duly authorized officers and attorneys, and counsel for the 
Commission that:
    1. Proposed Respondent Praxair is a corporation organized, 
existing, and doing business under and by virtue of the laws of the 
state of Delaware with its principal executive offices located at 39 
Old Ridgebury Road, Danbury, Connecticut 06810-5113.
    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 claims under the Equal Access to Justice Act.
    4. 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 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 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 
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 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 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 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 
after it becomes final. By signing this Agreement, Proposed Respondent 
represents that the relief contemplated by this Agreement can be 
accomplished.

Order

I
    It is ordered that, as used in this order, the following 
definitions shall apply:
    A. ``Respondent'' or ``Praxair'' means Praxair, Inc., its 
directors, officers, employees, agents and representatives, 
predecessors, successors and assigns; its subsidiaries, divisions, and 
groups and affiliates controlled by Praxair, Inc., and the respective 
directors, officers, employees, agents, and representatives, 
successors, and assigns of each.
    B. ``CBI'' means CBI Industries, Inc., its directors, officers, 
employees, agents and representatives, predecessors, successors and 
assigns; its subsidiaries, divisions, and groups and affiliates 
controlled by CBI, and the respective directors, officers, employees, 
agents, and representatives, successors, and assigns of each.
    C. ``Commission'' means the Federal Trade Commission.
    D. ``Acquisition'' means Praxair's acquisition of issued and 
outstanding common shares of CBI, pursuant to a cash tender offer dated 
November 3, 1995.
    E. ``Merchant Atmospheric Gases'' means oxygen, nitrogen and argon 
sold in liquid form or packaged in cylinders.
    F. ``Atmospheric Gases Plant'' means a facility that produces 
Merchant Atmospheric Gases.
    G. ``Merchant Divestiture Assets and Businesses'' means, the 
Vacaville Plant, Irwindale Plant, Bozrah Plant, and Madison Plant, 
whether divested individually or in some combination, including the 
assets, properties, business and goodwill, tangible and intangible, 
used in the manufacture and sale of merchant atmospheric gases at those 
plants, including, without limitation, the following:
    1. all real property interests, including rights, title and 
interest in and to owned or leased property, together with all 
buildings, improvements, appurtenances, licenses and permits;
    2. all machinery, fixtures, equipment, vehicles, transportation 
facilities, furniture, tools and other tangible personal property, 
including distribution equipment and cylinders;
    3. all customer lists, vendor lists, catalogs, sales promotion 
literature, advertising materials, research materials, technical 
information, management information systems, software, software 
licenses, inventions, patents, technology, know-how, specifications, 
designs, drawings, processes and quality control data;
    4. rights to and in contracts, including customer, dealer, 
distributor, supply and utility contracts;
    5. inventory, supplies and storage capacity, including storage 
vessels;
    6. all rights under warranties and guarantees, express or implied;
    7. all books, records, and files; and
    8. all items of prepaid expense.
    H. ``Vacaville Plant'' means CBI's Atmospheric Gases Plant located 
in Vacaville, California, together with all associated Merchant 
Divestiture Assets and Businesses.
    I. ``Irwindale Plant'' means CBI's Atmospheric Gases Plant located 
in Irwindale, California, together with all associated Merchant 
Divestiture Assets and Businesses.
    J. ``Bozrah Plant'' means CBI's Atmospheric Gases Plant located in 
Bozrah, Connecticut, together with all associated Merchant Divestiture 
Assets and Businesses. 

[[Page 1575]]

    K. ``Madison Plant'' means CBI's Atmospheric Gases Plant located in 
Madison, Wisconsin, together with all associated Merchant Divestiture 
Assets and Businesses.
II
    It is further ordered, That:
    A. Praxair shall divest, absolutely and in good faith, within 
twelve (12) months of the date this order becomes final, the Merchant 
Divestiture Assets and Businesses, and shall also divest such 
additional ancillary CBI assets and effect such arrangements as are 
necessary to assure the marketability, viability and competitiveness of 
the Merchant Divestiture Assets and Businesses.
    B. Praxair shall divest the Merchant Divestiture Assets and 
Businesses, either individually or in some combination, only 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 ensure the 
continuation of the Merchant Divestiture Assets and Businesses as an 
ongoing, viable operation or operations, engaged in the same business 
in which the Merchant Divestiture Assets and Businesses are engaged at 
the time of the proposed divestiture, and to remedy the lessening of 
competition resulting from the proposed acquisition as alleged in the 
Commission's complaint.
    C. Pending divestiture of the Merchant Divestiture Assets and 
Businesses, Praxair shall take such actions as are necessary to 
maintain the viability, marketability, and competitiveness of the 
Merchant Divestiture Assets and Businesses, and to prevent the 
destruction, removal, wasting, deterioration or impairment of the 
Merchant Divestiture Assets and Businesses except for ordinary wear and 
tear.
    D. Praxair shall comply with all terms of the Agreement to Hold 
Separate attached to this order and made a part hereof as Appendix I. 
The Agreement to Hold Separate shall continue in effect until such time 
as respondent has divested all of the Merchant Divestiture Assets and 
Businesses as required by this order.
III
    It is further ordered, That:
    A. If Praxair has not divested, absolutely and in good faith, and 
with the prior approval of the Commission, the Merchant Divestiture 
Assets and Businesses within twelve (12) months of the date this order 
becomes final, the Commission may appoint a trustee to divest the 
Merchant Divestiture Assets and Businesses. 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, Praxair 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 
III 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 Praxair to comply with this order.
    B. If a trustee is appointed by the Commission or a court pursuant 
to Paragraph III.A., Praxair 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 Praxair, which consent shall not be unreasonably withheld. The 
trustee shall be a person with experience and expertise in acquisitions 
and divestitures. If Praxair 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 Praxair of the 
identity of any proposed trustee, Praxair 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 Merchant 
Divestiture Assets and Businesses.
    3. Within ten (10) days after appointment of the trustee, Praxair 
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(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 III.B.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 Merchant 
Divestiture Assets and Businesses, or to any other relevant 
information, as the trustee may request. Praxair shall develop such 
financial or other information as the trustee may request and shall 
cooperate with the trustee. Praxair shall take no action to interfere 
with or impede the trustee's accomplishment of the divestiture(s). Any 
delays in divestiture caused by Praxair 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 Praxair's absolute and 
unconditional obligation to divest at no minimum price. The 
divestiture(s) 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 for any of the plants to be 
divested from more than one acquiring entity, and if the Commission 
determines to approve more than one such acquiring entity, the trustee 
shall divest that particular plant to the acquiring entity or entities 
selected by Praxair from among those approved by the Commission.
    7. The trustee shall serve at the cost and expense of Praxair, 
without bond or other security unless paid for by Praxair, 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 Praxair, 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 Praxair, 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 
Merchant Divestiture Assets and Businesses. 

[[Page 1576]]

    8. Praxair 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 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 have no obligation or authority to operate or 
maintain the Merchant Divestiture Assets and Businesses.
    12. In the event that the trustee determines that he or she is 
unable to divest the Merchant Divestiture Assets and Businesses in a 
manner consistent with the Commission's purpose as described in 
Paragraph II, the trustee may divest additional ancillary CBI assets of 
Praxair and effect such arrangements as are necessary to satisfy the 
requirements of this order.
    13. The trustee shall report in writing to Praxair and the 
Commission every sixty (60) days concerning the trustee's efforts to 
accomplish divestiture.
IV
    It is further ordered that within sixty (60) days after the date 
this order becomes final and every sixty (60) days thereafter until 
Praxair has fully complied with Paragraphs II and III of this order, 
Praxair 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 and III of 
this order. Praxair 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 including a 
description of all substantive contacts or negotiations for the 
divestiture(s) required by this order, including the identity of all 
parties contacted. Praxair 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(s).
V
    It is further ordered that, for the purpose of determining or 
securing compliance with this order, Praxair 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 Praxair, relating to any matters contained in this 
order; and
    B. Upon five (5) days' notice to Praxair, and without restraint or 
interference from Praxair, to interview officers, directors, or 
employees of Praxair, who may have counsel present, regarding any such 
matters.
VI
    It is further ordered that until Praxair has completed all of its 
obligations under this order, Praxair shall notify the Commission at 
least thirty (30) days prior to any proposed change in the 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.
VII
    It is further ordered that Respondent shall not be obligated to 
comply with this Order if Praxair abandons the proposed acquisition of 
CBI. For purposes of this Order, Praxair will be deemed to have 
abandoned the proposed acquisition of CBI after it provides written 
notice to the Commission that it has abandoned its proposed acquisition 
and has withdrawn any related notifications filed pursuant to Section 
7A of the Clayton Act, as amended, 15 U.S.C. 18a.

Appendix I

Agreement to Hold Separate

    This Agreement to Hold Separate (``Hold Separate'') is by and 
between Praxair, Inc. (``Praxair''), a corporation organized, existing, 
and doing business under and by virtue of the laws of the state of 
Delaware, and the Federal Trade Commission (``Commission''), an 
independent agency of the United States Government, established under 
the Federal Trade Commission Act of 1914, 15 U.S.C. 41, et seq. 
(collectively, the ``Parties'').

Premises

    Whereas, on November 3, 1995, Praxair offered to purchase all of 
the outstanding common shares of CBI Industries, Inc. (``CBI''); and
    Whereas, CBI, with its principal office and place of business 
located at 800 Jorie Boulevard, Oak Brook, Illinois 60521-2268, 
manufactures and markets, among other things, Merchant Atmospheric 
Gases; and
    Whereas, Praxair, with its principal office and place of business 
located at 39 Old Ridgebury Road, Danbury, Connecticut 06810-5113, 
manufactures and markets, among other things, Merchant Atmospheric 
Gases; and
    Whereas, the Commission is now investigating the Acquisition to 
determine whether it would violate any of the statutes enforced by the 
Commission; and
    Whereas, if the Commission accepts the Agreement Containing Consent 
Order (``Consent Agreement''), the Commission must place it on the 
public record for a period of at least sixty (60) days and may 
subsequently withdraw such acceptance pursuant to the provisions of 
Section 2.34 of the Commission's Rules; and
    Whereas, the Commission is concerned that if an understanding is 
not reached, preserving the status quo ante of the Merchant Divestiture 
Assets and Businesses, as defined in Paragraph I.G. of the Consent 
Agreement, during the period prior to the final acceptance and issuance 
of the Consent Agreement by the Commission (after the 60-day public 
comment period), divestiture resulting from any proceeding challenging 
the legality of the Acquisition might not be possible, or might be less 
than an effective remedy; and
    Whereas, the Commission is concerned that if the Acquisition is 
consummated, it will be necessary to preserve the Commission's ability 
to require the divestiture of the Merchant Divestiture Assets and 
Businesses and the Commission's right to have the Merchant Divestiture 
Assets and Businesses continue as viable competitors; and
    Whereas, the purposes of this Hold Separate and the Consent 
Agreement are:
    A. to preserve the Merchant Divestiture Assets and Businesses as 
viable, competitive, and independent businesses pending divestiture of 
the Merchant Divestiture Assets and Businesses, and 

[[Page 1577]]

    B. to remedy any anticompetitive effects of the Acquisition; and
    Whereas, Praxair's entering into this Hold Separate shall in no way 
be construed as an admission by Praxair that the Acquisition is 
illegal; and
    Whereas, Praxair understands that no act or transaction 
contemplated by this Hold Separate shall be deemed immune or exempt 
from the provisions of the antitrust laws or the Federal Trade 
Commission Act by reason of anything contained in this Hold Separate.
    Now, therefore, the Parties agree, upon the understanding that the 
Commission has not yet determined whether the Acquisition will be 
challenged, and in consideration of the Commission's agreement that, at 
the time it accepts the Consent Agreement for public comment, it will 
grant early termination of the Hart-Scott-Rodino waiting period, as 
follows:
    1. Praxair agrees to execute and be bound by the Consent Agreement.
    2. Praxair agrees that from the date this Hold Separate is accepted 
until the earliest of the times listed in subparagraphs 2.a.-2.b., it 
will comply with the provisions of Paragraph 3. of this Hold Separate:
    a. three (3) business days after the Commission withdraws its 
acceptance of the Consent Agreement pursuant to the provisions of 
Section 2.34 of the Commission's Rules; or
    b. the time that divestiture of the Merchant Divestiture Assets and 
Businesses as required by Paragraph II of the Consent Agreement is 
completed.
    3. To assure the complete independence and viability of the 
Merchant Divestiture Assets and Businesses, and to assure that no 
material confidential information is exchanged between Praxair and the 
Merchant Divestiture Assets and Businesses, Praxair shall hold the 
Merchant Divestiture Assets and Businesses separate and apart on the 
following terms and conditions:
    a. Within 30 days from the date this Hold Separate becomes final 
Praxair shall cause all of its rights, title and interest in the 
Merchant Divestiture Assets and Businesses, as defined in Paragraph 
I.G. of the Consent Agreement, as well as all such necessary personnel, 
including but not limited to, payroll and marketing personnel, to be 
transferred to a separate corporation (``Nucorp''), and effect any 
other arrangements as are necessary to ensure that Nucorp has complete 
viability and independence from Praxair (meaning here and hereinafter, 
Praxair excluding the Merchant Divestiture Assets and Businesses, 
personnel connected with the Merchant Divestiture Assets and 
Businesses, and Nucorp as of the date this Agreement is signed, but 
including all other portions of CBI).
    b. Nucorp shall be held separate and apart and shall be managed and 
operated independently of Praxair, except to the extent that Praxair 
must exercise direction and control over Nucorp to assure compliance 
with this Hold Separate or the Consent Agreement.
    c. Praxair shall maintain the marketability, viability, and 
competitiveness of Nucorp, including the Merchant Divestiture Assets 
and Businesses, and shall not cause or permit the destruction, removal, 
wasting, deterioration, or impairment of any assets or business it may 
have to divest except in the ordinary course of business and except for 
ordinary wear and tear, and it shall not sell, transfer, encumber 
(other than in the normal course of business), or otherwise impair the 
marketability, viability or competitiveness of Nucorp including the 
Merchant Divestiture Assets and Businesses.
    d. Praxair shall appoint a knowledgeable person among the top 
management of CBI's Merchant Atmospheric Gases Business to manage and 
maintain Nucorp on a day to day basis during the term of the Hold 
Separate. The manager shall have exclusive management and control of 
Nucorp, and shall manage Nucorp independently of Praxair's other 
businesses.
    e. The Manager shall report exclusively to the Nucorp Management 
Committee (``Management Committee''). The Management Committee shall 
consist of the Manager; two other knowledgeable persons from among the 
top management of CBI's Merchant Atmospheric Gases Business; and two 
Praxair financial officers or comparable, knowledgeable persons from 
Praxair's financial office who have no direct involvement with 
Praxair's Merchant Atmospheric Gases Business (``Praxair Management 
Committee Members''). The Chairman of the Management Committee shall be 
the Manager. Except for the Praxair Management Committee Members 
serving on the Management Committee, Praxair shall not permit any 
officer, employee, or agent of Praxair also to be an officer, employee 
or agent of Nucorp. Each Management Committee member shall enter into a 
confidentiality agreement agreeing to be bound by the terms and 
conditions set forth in Attachment A, appended to this Hold Separate. 
The Management Committee shall meet monthly during the course of the 
Hold Separate, and as otherwise necessary. Meetings of the Management 
Committee during the term of the Hold Separate shall be audio recorded, 
and the recording shall be retained for two (2) years after the 
termination of the Hold Separate.
    f. All material transactions, out of the ordinary course of 
business and not precluded by Paragraph 3 hereof, shall be subject to a 
majority vote of the Management Committee.
    g. Praxair shall not exercise direction or control over, or 
influence directly or indirectly, Nucorp, including the Merchant 
Divestiture Assets and Businesses, the Management Committee, or the 
Manager of Nucorp, any of their operations, assets, or businesses; 
provided, however, that Praxair may exercise only such direction and 
control over Nucorp as is necessary to assure compliance with this Hold 
Separate, the Consent Order and with all applicable laws and except as 
otherwise provided in this Hold Separate.
    h. Except as required by law, and except to the extent that 
necessary information is exchanged in the course of evaluating and 
consummating the Acquisition, defending investigations or litigation, 
obtaining legal advice, complying with this Hold Separate or the 
Consent Order or negotiating agreements to divest assets, Praxair shall 
not receive or have access to, or the use of, any material confidential 
information of Nucorp or the activities of the Manager or Management 
Committee not in the public domain, nor shall Nucorp, the Manager, or 
the Management Committee receive or have access to, or the use of, any 
material confidential information about Praxair. Praxair may receive on 
a regular basis from Nucorp aggregate financial information necessary 
and essential to allow Praxair to file financial reports, tax returns, 
and personnel reports. Any such information that is obtained pursuant 
to this subparagraph shall be used only for the purposes set forth in 
this subparagraph. (``Material confidential information,'' as used 
herein, means competitively sensitive or proprietary information, 
including, but not limited to, customer lists, price lists, marketing 
methods, patents, technologies, processes, or other trade secrets, not 
independently known to:
    1. Praxair, with regard to Nucorp, including the Merchant 
Divestiture Assets and Businesses, from sources other than Nucorp or 
its employees or the Management Committee; or
    2. The Management Committee or Nucorp or its employees, with regard 
to Praxair, from sources other than Praxair.) 

[[Page 1578]]

    i. Except as is permitted by this Hold Separate, the Praxair 
Management Committee Members shall not receive any Nucorp material 
confidential information and shall not disclose any such information 
obtained through their involvement with Nucorp to Praxair or use it to 
obtain any advantage for Praxair. The Praxair Management Committee 
Members shall participate in matters that come before the Management 
Committee only for the limited purpose of considering any capital 
investment of over $250,000, approving any proposed budget and 
operating plans, authorizing dividends and repayment of loans 
consistent with the provisions hereof, reviewing material transactions 
described in subparagraph 3.f, and carrying out Praxair's 
responsibilities under the Hold Separate and the Consent Agreement. 
Except as permitted by the Hold Separate, the Praxair Management 
Committee Members shall not participate in any matter, or attempt to 
influence the votes of the other directors on the Management Committee 
with respect to matters that would involve a conflict of interest 
between Praxair and Nucorp, including the Merchant Divestiture Assets 
and Businesses.
    j. Praxair shall not change the composition of the Management 
Committee unless a majority of the Management Committee consents. The 
Chairman of the Management Committee shall have the power to remove 
members of the Management Committee for cause and to require Praxair to 
appoint replacement members to the Management Committee in the same 
manner as provided in Paragraph 3.e. of this Hold Separate. Praxair 
shall not change the composition of the management of the Merchant 
Divestiture Assets and Businesses, except that the Management Committee 
shall have the power to remove management employees for unsatisfactory 
performance or for cause.
    k. If the Chairman of the Management Committee ceases to act or 
fails to act diligently, a substitute Chairman shall be appointed in 
the same manner as provided in Paragraphs 3.d. and 3.e.
    l. CBI personnel connected with Nucorp or the Merchant Divestiture 
Assets and Businesses or providing support services to Nucorp or the 
Merchant Divestiture Assets and Businesses as of the date this Hold 
Separate is signed shall continue, as employees of Praxair, to provide 
such services as of the date of this Hold Separate. Such Praxair 
personnel must retain and maintain all material confidential 
information relating to Nucorp, including the Merchant Divestiture 
Assets and Businesses on a confidential basis and, except as is 
permitted by this Hold Separate, such persons shall be prohibited from 
providing, discussing, exchanging, circulating, or otherwise furnishing 
any such information to or with any other person whose employment 
involves any other Praxair business.
    Such Praxair personnel shall also execute a confidentiality 
agreement prohibiting the disclosure of any material confidential 
information concerning Nucorp, including the Merchant Divestiture 
Assets and Businesses, or Praxair information.
    m. Nucorp shall be staffed with sufficient employees to maintain 
the viability and competitiveness of the Merchant Divestiture Assets 
and Businesses, which employees shall be Nucorp employees and may also 
be hired from sources other than Praxair. Each management employee of 
Nucorp shall execute a confidentiality agreement prohibiting the 
disclosure of any material confidential information concerning Nucorp.
    n. Praxair shall circulate to the management employees of Nucorp 
and appropriately display a notice of this Hold Separate and Consent 
Order in the form attached hereto as Attachment A.
    o. Praxair shall cause Nucorp to expend funds for research and 
development, quality control, manufacturing and marketing of the 
products produced at Nucorp at a level not lower than that budgeted for 
the 1994 fiscal year, and shall increase such spending as deemed 
reasonably necessary in light of competitive conditions. Within thirty 
(30) days of the date of this Hold Separate, the Chairman of the 
Management Committee shall develop a budget and operating plan for the 
1996 fiscal year that complies with the provisions of this Paragraph 
and present it to the Management Committee for approval. If necessary, 
Praxair shall provide Nucorp with any funds to accomplish the 
foregoing. Praxair shall provide to Nucorp such support services as 
provided by CBI prior to the Acquisition.
    p. Praxair shall provide Nucorp with sufficient working capital to 
operate at a level not less than the rate of operation in effect during 
the twelve (12) months preceding the date of this Hold Separate.
    q. The Management Committee shall serve at the cost and expense of 
Praxair. Praxair shall indemnify the Management Committee against any 
losses or claims of any kind that might arise out of its involvement 
under this Hold Separate, except to the extent that such losses or 
claims result from misfeasance, gross negligence, willful or wanton 
acts, or bad faith by the Management Committee members.
    r. The Management Committee shall have access to and be informed 
about all companies who inquire about, seek or propose to buy the 
Merchant Divestiture Assets and Businesses.
    s. Notwithstanding the provisions of Paragraph 3.i., companies who 
undertake a due diligence process in the course of negotiations to 
purchase Nucorp, or any part thereof, may be accompanied and assisted 
by either or both of the Praxair Management Committee Members, in 
addition to appropriate Nucorp employees selected by the Management 
Committee. The Praxair Management Committee Members may delegate tasks 
relating to such due diligence to attorneys, accountants and/or other 
financial employees of Praxair who are not directly engaged in the 
Praxair Merchant Atmospheric Gases Business; provided, however, that 
such Praxair employees, accountants and attorneys shall execute a 
confidentiality agreement prohibiting the disclosure of any Nucorp 
material confidential information.
    4. Should the Federal Trade Commission seek in any proceeding to 
compel Praxair to divest itself of Nucorp, or any additional assets, as 
provided in the Consent Agreement, or to seek any other injunctive or 
equitable relief, Praxair shall not raise any objection based on the 
expiration of the applicable Hart-Scott-Rodino Antitrust Improvements 
Act waiting period or the fact that the Commission has permitted the 
Acquisition. Praxair shall also waive all rights to contest the 
validity of this Hold Separate.
    5. To the extent that this Hold Separate requires Praxair to take, 
or prohibits Praxair from taking, certain actions that otherwise may be 
required or prohibited by contract, Praxair shall abide by the terms of 
this Hold Separate or the Consent Agreement, and shall not assert as a 
defense such contract requirements in any action brought by the 
Commission to enforce the terms of this Hold Separate or the Consent 
Agreement.
    6. For the purpose of determining or securing compliance with this 
Hold Separate, subject to any legally recognized privilege or provision 
of applicable law, and upon written request with reasonable notice to 
Praxair made to its General Counsel, Praxair shall permit any duly 
authorized representative or representatives of the Commission: 

[[Page 1579]]

    a. Access during the office hours of Praxair 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 Praxair or relating to compliance 
with this Hold Separate;
    b. Upon five (5) days' notice to Praxair, and without restraint or 
interference from it, to interview officers or employees of Praxair, 
who may have counsel present, regarding any such matters.
    7. This Hold Separate shall not be binding until approved by the 
Commission.

Attachment A--Notice of Divestiture and Requirement for Confidentiality

    Praxair, Inc. (``Praxair'') and CBI Industries, Inc. have entered 
into a Consent Agreement and Agreement to Hold Separate with the 
Federal Trade Commission (``Commission'') relating to the divestiture 
of the Merchant Divestiture Assets and Businesses. Until after the 
Commission's Order becomes final and the Merchant Divestiture Assets 
and Businesses are divested, the Merchant Divestiture Assets and 
Businesses must be managed and maintained as a separate company, 
independent of all other Praxair businesses. All competitive 
information relating to The Merchant Divestiture Assets and Businesses 
must be retained and maintained by the persons involved in the Merchant 
Divestiture Assets and Businesses on a confidential basis and such 
persons shall be prohibited from providing, discussing, exchanging, 
circulating, or otherwise furnishing any such information to or with 
any other person whose employment or agency involves any other Praxair 
business. Similarly, all such persons involved in any other Praxair 
business shall be prohibited from providing, discussing, exchanging, 
circulating or otherwise furnishing competitive information about such 
business to or with any person whose employment or agency involves the 
Merchant Divestiture Assets and Businesses.
    Any violation of the Consent Agreement or the Agreement to Hold 
Separate, incorporated by reference as part of the Consent Order, may 
subject Praxair to civil penalties and other relief as provided by law.

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 
Praxair, Inc. (``Praxair''), under which Praxair will be required to 
divest all of the assets and businesses relating to four CBI 
Industries, Inc. (``CBI'') plants that produce atmospheric gases. In 
addition, the Commission has accepted an Agreement to Hold Separate 
(``Hold Separate''), under which Praxair will be required to preserve 
the assets to be divested as viable, competitive and independent 
businesses pending divestiture.
    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.
    Pursuant to a cash tender offer dated November 3, 1995, Praxair 
proposed to acquire all of the common shares of CBI in a transaction 
valued at approximately $2.0 billion. On December 22, 1995, the parties 
entered into a definitive agreement whereby Praxair will purchase all 
of CBI's common shares. The proposed complaint alleges that the 
acquisition, if consummated, would violate Section 7 of the Clayton 
Act, as amended, 15 U.S.C Sec. 18, and Section 5 of the Federal Trade 
Commission Act, as amended, 15 U.S.C. Sec. 45, in the markets for 
merchant oxygen and merchant nitrogen in Northern and Southern 
California, Eastern Connecticut, and Western Wisconsin/Southeastern 
Minnesota, and in the market for merchant argon in Eastern Connecticut, 
and Western Wisconsin/Southeastern Minnesota.
    Common air consists of three principal gases which exist in the 
atmosphere in fixed proportions: nitrogen (78%); oxygen (21%); and 
argon (0.9%). These gases are commonly referred to collectively as 
``atmospheric gases.'' Nitrogen is used primarily to create inert 
environments in applications such as heat treating and chemical 
blanketing, and also for freezing purposes in industries such as food 
products. Oxygen is used mainly for combustion and oxidization purposes 
in applications such as foundries, and steel and glass production, and 
also for medical purposes. Argon is mostly used for welding purposes. 
Because of their unique properties, there are no adequate substitutes 
for nitrogen, oxygen or argon. ``Merchant'' atmospheric gases are 
products (nitrogen, oxygen and argon) supplied to customers in either 
in bulk liquid form or gaseous form in cylinders.
    Geographically, due to significant transportation costs, merchant 
nitrogen and merchant oxygen can be economically shipped a maximum of 
approximately 150 to 300 miles from the production facility, depending 
on such factors as the degree of traffic congestion in a given area. 
Merchant argon can be shipped much longer distances (up to 
approximately 1,000 miles), because it is more expensive than nitrogen 
and oxygen.
    Praxair's acquisition of CBI would reduce the number of merchant 
nitrogen and merchant oxygen competitors in both Northern and Southern 
California from five to four. In the Northern California market, the 
post-acquisition Herfindahl-Hirschman Index (``HHI'') would increase by 
431 points to 3366, and Praxair would increase its share of that market 
to 32%. In the Southern California market, the post-acquisition HHI 
would increase by 440 points to 2727, and Praxair would become the 
market leader with 34.8% of the market. In two additional areas, 
Eastern Connecticut and Western Wisconsin/Southeastern Minnesota, 
Praxair and CBI are each other's closest geographic competitor in 
merchant nitrogen, oxygen and argon.
    New entry into any of these four areas would also be time-consuming 
and unlikely. Construction of a new manufacturing facility capable of 
serving the merchant atmospheric gases markets takes approximately two 
years, and is unlikely as a large percentage of a new plant's output 
must be sold out prior to or shortly after opening in order to account 
for the facility's opening costs and the need to operate the plant at a 
sufficient level of capacity utilization.
    Praxair's acquisition of CBI poses serious antitrust concerns. In 
the Northern and Southern California markets for merchant nitrogen and 
oxygen, the acquisition would eliminate direct actual competition 
between Praxair and CBI, enhance the likelihood of coordinated 
interaction, and thereby increase the likelihood that consumers would 
be forced to pay higher prices. Coordinated interaction would be 
enhanced in Northern and Southern California because merchant nitrogen 
and oxygen are homogeneous products and the remaining firms in both 
markets would be a fairly homogeneous group that have similar 
incentives. In Eastern Connecticut and Western Wisconsin/Southeastern 
Minnesota, where Praxair and CBI are each other's closest geographic 
competitor in merchant nitrogen, oxygen and argon, the acquisition 
would eliminate direct actual competition between the parties 

[[Page 1580]]
and increase the likelihood that Praxair would unilaterally raise 
prices to consumers.
    Under the proposed Consent Order, Praxair is required to divest 
four of CBI's atmospheric gases production facilities, either 
individually or in some combination. These facilities are located in: 
(1) Vacaville, California; (2) Irwindale, California; (3) Bozrah, 
Connecticut; and (4) Madison, Wisconsin. The proposed Consent states 
that this divestiture shall take place within twelve (12) months of the 
date the proposed Order becomes final, and shall be to an acquirer or 
acquirers approved by the Commission. If Praxair fails to divest the 
assets within 12 months, a trustee may be appointed to divest the four 
plants.
    The proposed Order also requires Praxair to take all steps 
necessary to ensure that the plants to be divested continue as ongoing, 
viable and competitive operations. To this end, an Agreement to Hold 
Separate is incorporated into the proposed Order to preserve the four 
plants to be divested and to remedy any anticompetitive effects of the 
acquisition. Under the Hold Separate, Praxair commits to assure the 
complete independence and viability of the four plants to be divested. 
Furthermore, to assure that no confidential information is exchanged 
between Praxair and the businesses that will be divested, Praxair will 
hold those businesses separate and apart from all of its other 
operations.
    The Order also requires Praxair to provide the Commission a report 
of compliance with the divestiture provisions of the Order within sixty 
(60) days following the date the Order becomes final, and every sixty 
(60) days thereafter until Praxair has completed the required 
divestiture.
    Finally, with the exception of the Eastern Connecticut and Western 
Wisconsin/Southeastern Minnesota areas, where Praxair and CBI are each 
other's closest geographic competitor, the Complaint accompanying the 
Consent Order does not allege a violation with respect to merchant 
argon. Because merchant argon can be economically shipped significantly 
greater distances than nitrogen and oxygen, the geographic market for 
merchant argon most likely consists of the contiguous United States. 
CBI's share of the argon market is extremely small, seven other 
competitors would remain in the market after the acquisition, and 
anticompetitive effects on a national scale appear unlikely. However, 
localized unilateral anticompetitive effects are likely in the Eastern 
Connecticut and Western Wisconsin/Southeastern Minnesota areas, where 
Praxair and CBI are each other's closest competitors. The divestitures 
that the proposed Consent Order requires in Eastern Connecticut and 
Western Wisconsin/Southeastern Minnesota eliminate the likelihood of 
unilateral anticompetitive effects in merchant argon in those areas.
    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. 96-788 Filed 1-19-96; 8:45 am]
BILLING CODE 6750-01-P