0210100

UNITED STATES OF AMERICA
BEFORE FEDERAL TRADE COMMISSION

COMMISSIONERS:
Timothy J. Muris, Chairman
Sheila F. Anthony
Mozelle W. Thompson
Orson Swindle
Thomas B. Leary


 

In the Matter of

DAINIPPON INK AND CHEMICALS, INCORPORATED, a corporation.

Docket No. C-4073

ORDER TO MAINTAIN ASSETS

The Federal Trade Commission ("Commission") having initiated an investigation of the proposed acquisition by Respondent Dainippon Ink and Chemicals, Incorporated ("Dainippon"), hereinafter referred to as "Respondent," of certain assets of Bayer Corporation ("Bayer"), and Respondent having been furnished thereafter with a copy of a draft of Complaint that the Bureau of Competition proposed to present to the Commission for its consideration and which, if issued by the Commission, would charge Respondent 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

Respondent, its 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 Respondent 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 Respondent 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 Respondent has 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 Dainippon is a corporation organized, existing and doing business under and by virtue of the laws of Japan, with its office and principal place of business located at DIC Building 7-20 Nihonbashi 3-Chome, Chou-ku Tokyo 103 Japan.

2. The Federal Trade Commission has jurisdiction of the subject matter of this proceeding and of Respondent, 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:

A. "Dainippon" or "Respondent" means Dainippon Ink and Chemicals, Incorporated, its directors, officers, employees, agents, representatives, predecessors, successors, and assigns; its joint ventures, subsidiaries, divisions, groups and affiliates controlled by Dainippon Ink and Chemicals, Incorporated (including, but not limited to, Sun Chemical Group B.V. and Sun Chemical Corporation), and the respective directors, officers, employees, agents, representatives, successors, and assigns of each.

B. "Bayer" means Bayer Corporation, a corporation organized, existing, and doing business under and by virtue of the laws of Indiana, with its offices and principal place of business located at 100 Bayer Road, Pittsburgh, Pennsylvania 15205; and joint ventures, subsidiaries, divisions, groups, and affiliates controlled by Bayer Corporation.

C. "Commission" means the Federal Trade Commission.

D. "Acquisition" means the proposed acquisition by Sun Chemical Corporation, a wholly-owned subsidiary of Dainippon, of certain assets of Bayer by means of an Asset Purchase Agreement dated as of February 15, 2002, by and between Bayer and Sun Chemical Corporation.

E. "Ciba" means, collectively, Ciba Specialty Chemicals Inc., a corporation organized, existing and doing business under and by virtue of the laws of Switzerland, with its offices and principal place of business located at Klybeckstrasse 141, 4057 Basel, Switzerland, and Ciba Specialty Chemicals Corporation, a corporation organized, existing and doing business under and by virtue of the laws of the state of Delaware, with its offices and principal place of business located at 560 White Plains Road, Tarrytown, New York 10591-9005.

F. "Ciba Asset Purchase Agreement" means the Asset Purchase Agreement by and between Respondent as Seller, and Ciba as Purchaser, dated as of December 19, 2002, and all amendments, exhibits, attachments, agreements, and schedules thereto, related to the Sun Perylene Assets to be divested to accomplish the requirements of this Order. The Ciba Asset Purchase Agreement is attached to the Decision and Order as non-public Appendix II.

G. "Commission-approved Acquirer" means an entity approved by the Commission to acquire the Sun Perylene Assets, including Ciba if Ciba acquires the Sun Perylene Assets pursuant to Paragraph II.A. of the Decision and Order.

H. "Divestiture Agreement" means any agreement between Respondent and a Commission-approved Acquirer (or between a trustee appointed pursuant to Paragraph IV.A. of the Decision and Order and a Commission-approved Acquirer), including the Ciba Asset Purchase Agreement, and all amendments, exhibits, attachments, agreements, and schedules thereto, related to the Sun Perylene Assets to be divested that have been approved by the Commission to accomplish the requirements of the Decision and Order.

I. "Divestiture Trustee" means the trustee appointed by the Commission pursuant to Paragraph IV.A. of the Decision and Order.

J. "Interim Monitor" means any trustee appointed pursuant to Paragraph III of this Order to Maintain Assets or Paragraph III of the Decision and Order.

K. "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.

L. "Sun Perylene Assets" shall have the same meaning as in the Decision and Order.

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:

A. Respondent shall take such actions as are reasonably necessary to maintain the viability and marketability of the Sun Perylene Assets, and to prevent the destruction, removal, wasting, deterioration, sale, disposition, transfer or impairment of any of the Sun Perylene Assets, except for ordinary wear and tear and as would otherwise occur in the ordinary course of business.

B. Except to the extent necessary to assure compliance with this Order to Maintain Assets, the Consent Agreement, and the Decision and Order, Respondent shall not allow any person not involved in the management or operations of the Sun Perylene Assets to have access to any Material Confidential Information concerning the Sun Perylene Assets.

III.

IT IS FURTHER ORDERED that:

A. At any time after the Commission issues this Order to Maintain Assets, the Commission may appoint an Interim Monitor to ensure that Respondent expeditiously complies with its obligations relating to the Sun Perylene 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.

B. Respondent shall consent to the following terms and conditions regarding the powers, duties, authorities and responsibilities of the Interim Monitor appointed pursuant to Paragraph III.A. of this Order to Maintain Assets or Paragraph III.A. of the Decision and Order:

1. The Commission shall select the Interim Monitor, subject to the consent of Respondent, which consent shall not be unreasonably withheld. If Respondent has not opposed, in writing, including the reasons for opposing, the selection of a proposed Interim Monitor within ten (10) days after receipt of written notice by the staff of the Commission to Respondent of the identity of any proposed Interim Monitor, Respondent shall be deemed to have consented to the selection of the proposed Interim Monitor.

2. The Interim Monitor shall have the power and authority to monitor Respondent's 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 Interim Monitor, Respondent shall execute a trust agreement that, subject to the prior approval of the Commission, confers on the Interim Monitor all the rights and powers necessary to permit the Interim Monitor to monitor Respondent's compliance with the terms of this Order to Maintain Assets, the Consent Agreement, and the Decision and Order.

4. For purposes of this Order to Maintain Assets, the Interim Monitor shall serve for such time as is necessary to monitor Respondent's compliance with the provisions of Paragraph II of this Order.

5. Subject to any demonstrated legally recognized privilege, the Interim Monitor shall have full and complete access to Respondent's personnel, books, documents, records kept in the normal course of business, facilities and technical information, and such other relevant information as the Interim Monitor may reasonably request, related to Respondent's compliance with its obligations under this Order to Maintain Assets, the Consent Agreement, and the Decision and Order, including, but not limited to, its obligations related to the Sun Perylene Assets. Respondent shall cooperate with any reasonable request of the Interim Monitor and shall take no action to interfere with or impede the Interim Monitor's ability to monitor Respondent's compliance with the this Order to Maintain Assets, the Consent Agreement, and the Decision and Order.

6. The Interim Monitor shall serve, without bond or other security, at the expense of the Respondent, or as set out in the Ciba Asset Purchase Agreement, on such reasonable and customary terms and conditions as the Commission may set. The Interim Monitor shall have the authority to employ, at the expense of Respondent, such consultants, accountants, attorneys and other representatives and assistants as are reasonably necessary to carry out the Interim Monitor's duties and responsibilities. The Commission may, among other things, require the Interim Monitor and each of the Monitor's consultants, accountants, attorneys and other representatives and assistants to sign an appropriate confidentiality agreement related to Commission materials and information received in connection with the performance of the Interim Monitor's duties.

7. Respondent shall indemnify the Interim Monitor and hold the Interim Monitor harmless against any losses, claims, damages, liabilities or expenses arising out of, or in connection with, the performance of the Interim Monitor's duties, including all reasonable fees of counsel and other reasonable 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, willful or wanton acts, or bad faith by the Interim Monitor.

8. If the Commission determines that the Interim Monitor has ceased to act or failed to act diligently, the Commission may appoint a substitute Interim Monitor in the same manner as provided in Paragraph III.A. of this Order to Maintain Assets or Paragraph III.A. of the Decision and Order.

9. The Commission may on its own initiative or at the request of the Interim Monitor 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. Respondent shall report to the Interim Monitor in accordance with the requirements of Paragraph V.A. of the Decision and Order and/or as otherwise provided in any agreement approved by the Commission. The Interim Monitor shall evaluate the reports submitted to the Interim Monitor by Respondent, and any reports submitted by the Commission-approved Acquirer with respect to the performance of Respondent's obligations under this Order to Maintain Assets, the Consent Agreement, the Decision and Order, or the Divestiture Agreement. Within one (1) month from the date the Interim Monitor receives these reports, the Interim Monitor shall report in writing to the Commission concerning compliance by Respondent with the provisions of this Order to Maintain Assets, the Consent Agreement, the Decision and Order, and the Divestiture Agreement.

C. The Interim Monitor appointed pursuant to Paragraph III.A. of this Order to Maintain Assets or Paragraph III.A. of the Decision and Order may be the same person appointed as the Divestiture Trustee pursuant to Paragraph IV.A. of the Decision and Order in this matter.

IV.

IT IS FURTHER ORDERED that Respondent 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 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 Respondent, Respondent shall permit any duly authorized representatives of the Commission:

A. Access, during office hours of Respondent 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 Respondent relating to compliance with this Order to Maintain Assets; and

B. Upon five (5) days' notice to Respondent and without restraint or interference from Respondent, to interview officers, directors, or employees of Respondent, 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:

A. 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

B. Three (3) business days after the divestiture of the Sun Perylene Assets pursuant to Paragraph II or Paragraph V of the Decision and Order. Provided, however, that if Respondent divests the Sun Perylene Assets to Ciba prior to the date the Commission issues the Decision and Order, and if at the time the Commission issues the Decision and Order it notifies Respondent that Ciba is not an acceptable acquirer of the Sun Perylene Assets or that the manner in which the divestiture was accomplished was not acceptable, then this Order to Maintain Assets shall terminate three (3) business days after the subsequent divestiture of the Sun Perylene Assets pursuant to Paragraph II.A. or IV of the Decision and Order.

By the Commission.

Donald S. Clark
Secretary

SEAL

ISSUED: January 31, 2003