UNITED STATES OF AMERICA
BEFORE FEDERAL TRADE COMMISSION

COMMISSIONERS:
Robert Pitofsky, Chairman
Sheila F. Anthony
Mozelle W. Thompson
Orson Swindle
Thomas B. Leary

In the Matter of
Philip Morris Companies, Inc., a corporation,
and
Nabisco Holdings Corp., a corporation.

Docket No. C-3987
ORDER TO MAINTAIN ASSETS

The Federal Trade Commission ("Commission") having initiated an investigation of the proposed acquisition by Respondent Philip Morris Companies, Inc. of Respondent Nabisco Holdings Corp. and Respondents having been furnished thereafter with a copy of a draft of Complaint which the Bureau of Competition proposed to present to the Commission for its consideration and which, if issued by the Commission, would charge Respondents with violations of Section 7 of the Clayton Act, as amended, 15 U.S.C.  18, and Section 5 of the Federal Trade Commission Act, as amended, 15 U.S.C. 45; and

Respondents, their attorneys, and counsel for the Commission having thereafter executed an Agreement Containing Consent Orders ("Consent Agreement"), containing the proposed Decision and Order, an admission by Respondents of all the jurisdictional facts set forth in the aforesaid draft of Complaint, a statement that the signing of said Consent Agreement is for settlement purposes only and does not constitute an admission by Respondents that the law has been violated as alleged in such Complaint, or that the facts as alleged in such Complaint, other than jurisdictional facts, are true, and waivers and other provisions as required by the Commission's Rules; and

The Commission having thereafter considered the matter and having determined that it had reason to believe that Respondents have violated Section 5 of the Federal Trade Commission Act, and that the Acquisition, if consummated, would violate Section 7 of the Clayton Act and Section 5 of the Federal Trade Commission Act, and that a Complaint should issue stating its charges in that respect, and having determined to accept the executed Consent Agreement and to place such Consent Agreement containing the Decision and Order on the public record for a period of thirty (30) days, the Commission hereby issues its Complaint, makes the following jurisdictional findings and issues this Order to Maintain Assets:

  1. Respondent Philip Morris Companies, Inc. is a corporation organized, existing and doing business under and by virtue of the laws of the Commonwealth of Virginia, with its office and principal place of business located at 120 Park Avenue, New York, New York 10017.
  2. Respondent Nabisco Holdings Corp. is a corporation organized, existing and doing business under and by virtue of the laws of the State of Delaware, with its office and principal place of business located at 7 Campus Drive, Parsippany, New Jersey 07054.
  3. The Federal Trade Commission has jurisdiction of the subject matter of this proceeding and of Respondents, and the proceeding is in the public interest.

ORDER

I.

IT IS ORDERED that, as used in this Order to Maintain Assets, the following definitions shall apply:

  1. "Philip Morris" means Philip Morris Companies, Inc., its directors, officers, employees, agents and representatives, predecessors, successors, and assigns; its joint ventures, subsidiaries, divisions, groups and affiliates controlled by Philip Morris Companies, Inc.(including, but not limited to, Kraft Foods, Inc.), and the respective directors, officers, employees, agents, representatives, successors, and assigns of each.
  2. "Nabisco" means Nabisco Holdings Corp., its directors, officers, employees, agents and representatives, predecessors, successors, and assigns; its joint ventures, subsidiaries, divisions, groups and affiliates controlled by Nabisco Holdings Corp.(including, but not limited to, Nabisco, Inc.), and the respective directors, officers, employees, agents, representatives, successors, and assigns of each.
  3. "Respondents" means Philip Morris and Nabisco, individually and collectively.
  4. "Commission" means the Federal Trade Commission.
  5. "Acquisition" means the proposed acquisition by Philip Morris of Nabisco as described in the June 25, 2000, Agreement and Plan of Merger between Philip Morris and Nabisco.
  6. "Dry-Mix Desserts" means, individually and collectively, dry-mix gelatin, dry-mix pudding, and no-bake desserts.
  7. "Baking Powder" means a powder used as a leavening agent in making baked goods that consists of a carbonate, an acid substance, and starch or flour.
  8. "Intense Mints" means strong mint-flavored candies such as Altoids, Ice Breakers or Cool Blast, but not including traditional mint candies such as Life Savers.
  9. "Nabisco Dry-Mix Desserts Assets" shall have the same meaning as in the Decision and Order.
  10. "Dry-mix gelatin" means sugar-based or sugar-free, flavored, powdered gelatin products that, when combined with water, produce a flavored gelatin dessert.
  11. "Dry-mix pudding" means a sugar-based or sugar-free powder, typically made with flour, sweetener, and flavoring, that when combined with milk or water, produces a soft, thickened, dessert.
  12. "No-bake desserts" means three-stage dessert mixes (for a crust, filling, and topping) that, when combined with milk or water and butter or margarine, produce a cheesecake or other dessert.
  13. "Nabisco Baking Powder Assets" shall have the same meaning as in the Decision and Order.
  14. "Nabisco Intense Mints Assets" shall have the same meaning as in the Decision and Order.
  15. "Asset Maintenance Trustee" means any trustee appointed pursuant to Paragraph III of this Order to Maintain Assets.
  16. "Divestiture Trustee" means the trustee appointed by the Commission pursuant to Paragraph V of the Decision and Order.
  17. "Asset Maintenance Period" means the period of time which shall begin on the date Respondents sign the Agreement Containing Consent Orders and shall terminate as provided in Paragraph VI of this Order to Maintain Assets.
  18. "Material Confidential Information" means competitively sensitive or proprietary information not independently known to an entity from sources other than the entity to which the information pertains, and includes, but is not limited to, all customer lists, price lists, marketing methods, patents, technologies, processes, know-how, or other trade secrets.

PROVIDED, HOWEVER, any term used in this Order to Maintain Assets that is not otherwise defined in this Paragraph I has the same meaning as defined in the Consent Agreement and the Decision and Order.

II.

IT IS FURTHER ORDERED that, from the date this Order to Maintain Assets becomes final:

  1. Respondents shall take such actions as are reasonably necessary to maintain the viability and marketability of the Nabisco Dry-Mix Desserts Assets, the Nabisco Baking Powder Assets, and the Nabisco Intense Mints Assets, and to prevent the destruction, removal, wasting, deterioration, sale, disposition, transfer or impairment of any of the Nabisco Dry-Mix Desserts Assets, the Nabisco Baking Powder Assets, and the Nabisco Intense Mints Assets, except for ordinary wear and tear and as would otherwise occur in the ordinary course of business.
  2. Except to the extent necessary to assure compliance with this Order to Maintain Assets, the Consent Agreement, and the Decision and Order, Respondents shall not allow any person not involved in the management or operations of the Nabisco Dry-Mix Desserts Assets, the Nabisco Baking Powder Assets, or the Nabisco Intense Mints Assets to have access to any Material Confidential Information concerning the Nabisco Dry-Mix Desserts Assets, the Nabisco Baking Powder Assets, or the Nabisco Intense Mints Assets.

III.

IT IS FURTHER ORDERED that:

  1. At any time after the Commission issues this Order to Maintain Assets, the Commission may appoint an Asset Maintenance Trustee to ensure that Respondents comply with their obligations relating to the Nabisco Dry-Mix Desserts Assets, the Nabisco Baking Powder Assets, and the Nabisco Intense Mints Assets under the terms of Paragraph II of this Order to Maintain Assets and of any corresponding terms in the Consent Agreement and the Decision and Order.
  2. Respondents shall consent to the following terms and conditions regarding the powers, duties, authorities and responsibilities of the Asset Maintenance Trustee appointed pursuant to Paragraph III.A.:
  1. The Commission shall select the Asset Maintenance Trustee, subject to the consent of Respondents, which consent shall not be unreasonably withheld. If Respondents have not opposed, in writing, including the reasons for opposing, the selection of any proposed trustee within ten (10) days after receipt of written notice by the staff of the Commission to Respondents of the identity of any proposed trustee, Respondents shall be deemed to have consented to the selection of the proposed trustee.
  2. The Asset Maintenance Trustee shall have the power and authority to monitor Respondents' compliance with the terms of Paragraph II of this Order to Maintain Assets and of any corresponding terms in the Consent Agreement and the Decision and Order.
  3. Within ten (10) days after appointment of the Asset Maintenance Trustee, Respondents shall execute a trust agreement that, subject to the prior approval of the Commission, confers on the Asset Maintenance Trustee all the rights and powers necessary to permit the Asset Maintenance Trustee to monitor Respondents' compliance with the terms of this Order to Maintain Assets, the Consent Agreement, and the Decision and Order.
  4. The Asset Maintenance Trustee shall serve for such time as is necessary to monitor Respondents' compliance with the provisions of Paragraph II of this Order.
  5. The Asset Maintenance Trustee shall have full and complete access, subject to any legally recognized privilege of Respondents, to Respondents' personnel, books, records, documents, facilities and technical information relating to the Nabisco Dry-Mix Desserts Assets, the Nabisco Baking Powder Assets, and the Nabisco Intense Mints Assets, or to any other relevant information, as the Asset Maintenance Trustee may reasonably request, including, but not limited to, all documents and records kept in the normal course of business that relate to the Nabisco Dry-Mix Desserts Assets, the Nabisco Baking Powder Assets, and the Nabisco Intense Mints Assets. Respondents shall cooperate with any reasonable request of the Asset Maintenance Trustee. Respondents shall take no action to interfere with or impede the Asset Maintenance Trustee's ability to monitor Respondents' compliance with this Order to Maintain Assets, the Consent Agreement, and the Decision and Order.
  6. The Asset Maintenance Trustee shall serve, without bond or other security, at the expense of the Respondents, on such reasonable and customary terms and conditions as the Commission may set. The Asset Maintenance Trustee shall have the authority to employ, at the expense of Respondents, such consultants, accountants, attorneys and other representatives and assistants as are reasonably necessary to carry out the Asset Maintenance Trustee's duties and responsibilities.
  7. Respondents shall indemnify the Asset Maintenance Trustee and hold the Asset Maintenance Trustee harmless against any losses, claims, damages, liabilities or expenses arising out of, or in connection with, the performance of the Asset Maintenance Trustee's duties, including all reasonable fees of counsel and other expenses incurred in connection with the preparations for, or defense of, any claim whether or not resulting in any liability, except to the extent that such losses, claims, damages, liabilities or expenses result from misfeasance, gross negligence, wilful or wanton acts, or bad faith by the Asset Maintenance Trustee.
  8. If the Commission determines that the Asset Maintenance Trustee has ceased to act or failed to act diligently, the Commission may appoint a substitute trustee in the same manner as provided in Paragraph III.A. of this Order to Maintain Assets.
  9. The Commission may on its own initiative or at the request of the Asset Maintenance Trustee issue such additional orders or directions as may be necessary or appropriate to assure compliance with the requirements of this Order to Maintain Assets, the Consent Agreement and the Decision and Order.
  10. The Asset Maintenance Trustee shall report in writing to the Commission concerning compliance by Respondents with the provisions of Paragraph II of this Order to Maintain Assets, the Consent Agreement and the Decision and Order, within twenty (20) days from the date of appointment and every thirty (30) days until the Respondents have completed all the divestitures required by the Decision and Order.
  1. The Asset Maintenance Trustee may be the same person appointed as the Divestiture Trustee pursuant to Paragraph V.A. of the Decision and Order in this matter.

IV.

IT IS FURTHER ORDERED that Respondents shall notify the Commission at least thirty (30) days prior to any proposed change in the corporate Respondents 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 this Order to Maintain Assets.

V.

IT IS FURTHER ORDERED that for the purposes of determining or securing compliance with this Order to Maintain Assets, and subject to any legally recognized privilege, and upon written request with reasonable notice to Respondents, Respondents shall permit any duly authorized representatives of the Commission:

  1. Access, during office hours of Respondents and in the presence of counsel, to all facilities, and access to inspect and copy all books, ledgers, accounts, correspondence, memoranda, and all other records and documents in the possession or under the control of Respondents relating to compliance with this Order to Maintain Assets; and
  2. Upon five (5) days' notice to Respondents and without restraint or interference from Respondents, to interview officers, directors, or employees of Respondents, who may have counsel present, regarding such matters.

VI.

IT IS FURTHER ORDERED that this Order to Maintain Assets shall terminate on the earlier of:

  1. Three (3) business days after the Commission withdraws its acceptance of the Consent Agreement pursuant to the provisions of Commission Rule 2.34, 16 C.F.R.   2.34; or
  2. For the Nabisco Dry-Mix Desserts Assets, three (3) business days after the divestiture of the Nabisco Dry-Mix Desserts Assets pursuant to Paragraph II or Paragraph V of the Decision and Order; for the Nabisco Baking Powder Assets, three (3) business days after the divestiture of the Nabisco Baking Powder Assets pursuant to Paragraph III or Paragraph V of the Decision and Order; and for the Nabisco Intense Mints Assets, three (3) business days after the divestiture of the Nabisco Intense Mints Assets pursuant to Paragraph IV or Paragraph V of the Decision and Order.

By the Commission.
Donald S. Clark
Secretary
SEAL
ISSUED: December 7, 2000