Sulzer Limited; Proposed Consent Agreement With Analysis To Aid Public Comment

FEDERAL TRADE COMMISSION

[File No. 941-0073]

Sulzer Limited; Proposed Consent Agreement With Analysis To Aid

Public Comment

AGENCY: Federal Trade Commission.

ACTION: Proposed consent agreement.

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SUMMARY: In settlement of alleged violations of federal law prohibiting

unfair acts and practices and unfair methods of competition, this

consent agreement, accepted subject to final Commission approval, would

require, among other things, a Swiss firm to help launch a new

manufacturer of aluminum polyester powder, a substance sprayed on jet

engine housings to improve the efficiency of the engines. The consent

agreement would resolve FTC antitrust allegations that Sulzer Limited's

proposed acquisition of the Metco Division of the Perkin-Elmer

Corporation--would in the market for the powder--risk higher prices or

restricted supplies worldwide.

DATES: Comments must be received on or before December 12, 1994.

ADDRESSES: Comments should be directed to: FTC/Office of the Secretary,

Room 159, 6th Street and Pennsylvania Avenue NW., Washington, DC 20580.

FOR FURTHER INFORMATION CONTACT:

Ann B. Malester, FTC/601 Bldg., room 2224, Washington, DC 20580. (202)

326-2682.

SUPPLEMENTARY INFORMATION: Pursuant to Section 6(f) of the Federal

Trade Commission Act, 38 Stat. 721, 15 U.S.C. 46 and Sec. 2.34 of the

Commission's Rules of Practice (16 CFR 2.34), notice is hereby given

that the following consent agreement containing a consent order to

cease and desist, having been filed with and accepted, subject to final

approval, by the Commission, has been placed on the public record for a

period of sixty (60) days. Public comment is invited. Such comments or

views will be considered by the Commission and will be available for

inspection and copying at its principal office in accordance with

Section 4.9(b)(6)(ii) of the Commission's Rules of Practice (16 CFR

4.9(b)(6)(ii)).

Agreement Containing Consent Order

The Federal Trade Commission (``Commission'') having initiated an

investigation of the proposed acquisition by Sulzer Limited

(``Sulzer'') of all of the assets of the Metco Division of The Perkin-

Elmer Corporation (``Metco''), and it now appearing that Sulzer,

hereinafter sometimes referred to as ``proposed respondent'', is

willing to enter into an Agreement Containing Consent Order

(``Agreement'') to divest certain assets, cease and desist from certain

acts, and to provide for certain other relief,

It is hereby agreed by and between Sulzer, by its duly authorized

officers and its attorneys, and counsel for the Commission that:

1. Proposed respondent is a corporation organized, existing, and

doing business under and by virtue of the laws of Switzerland, with its

principal offices located at CH-8401, Winterthur, Switzerland.

2. Proposed respondent admits all the jurisdictional facts set

forth in the draft of complaint here attached.

3. Proposed respondent waives:

a. Any further procedural steps;

b. The requirement that the Commission's decision contain a

statement of findings of fact and conclusions of law;

c. All rights to seek judicial review or otherwise to challenge or

contest the validity of the order entered pursuant to this agreement;

and

d. Any claim under the Equal Access to Justice Act.

4. This agreement shall not become part of the public record of the

proceedings unless and until it is accepted by the Commission. If this

agreement is accepted by the Commission it, together with the draft of

complaint contemplated thereby, will be placed on the public record for

a period of sixty (60) days and information in respect thereto publicly

released. The Commission thereafter may either withdraw its acceptance

of this agreement and so notify the proposed respondent, in which event

it will take such action as it may consider appropriate, or issue and

serve its complaint (in such form as the circumstances may require) and

decision, in disposition of the proceeding.

5. This agreement is for settlement purposes only and does not

constitute an admission by the proposed respondent that the law has

been violated as alleged in the draft of complaint here attached, or

that the facts as alleged in the draft complaint, other than

jurisdictional facts, are true.

6. This agreement contemplates that, if it is accepted by the

Commission, and if such acceptance is not subsequently withdrawn by the

Commission pursuant to the provisions of Section 2.34 of the

Commission's Rules, the Commission may, without further notice to the

proposed respondent, (1) issue its complaint corresponding in form and

substance with the draft of complaint here attached and its decision

containing the following Order to divest and to cease and desist in

disposition of the proceeding, and (2) make information public with

respect thereto. When so entered, the Order shall have the same force

and effect and may be altered, modified, or set aside in the same

manner and within the same time provided by statute for other orders.

The Order shall become final upon service. Delivery by the United

States Postal Service of the complaint and decision containing the

agreed-to Order to proposed respondent's U.S. counsel as stated in this

agreement shall constitute service. Proposed respondent waives any

right it may have to any other manner of service. The complaint may be

used in construing the terms of the Order, and no agreement,

understanding, representation, or interpretation not contained in the

Order or the agreement may be used to vary or contradict the terms of

the Order.

7. Proposed respondent has read the draft of complaint and Order

contemplated hereby. Proposed respondent understands that once the

Order has been issued, it will be required to file one or more

compliance reports showing that it has fully complied with the Order.

Proposed respondent further understands that it may be liable for civil

penalties in the amount provided by law for each violation of the Order

after it becomes final.

Order

I

It is ordered That, as used in this Order, the following

definitions shall apply:

A. ``Sulzer'' means Sulzer Limited, its directors, officers,

employees, agents and representatives, its domestic and foreign

predecessors, successors, assigns, divisions, subsidiaries, affiliates,

partnerships and joint ventures, and the directors, officers,

employees, agents and representatives of its domestic and foreign

predecessors, successors, assigns, divisions, subsidiaries, affiliates,

partnerships and joint ventures.

B. ``Metco'' means the Metco Division of The Perkin-Elmer

Corporation.

C. ``Commission'' means the Federal Trade Commission.

D. ``Acquisition'' means the acquisition of certain assets of Metco

by Sulzer.

E. ``Aluminum polyester powder'' means a thermal spray material

consisting of wholly aromatic polyester and aluminum silicon that is

applied via thermal spray equipment to aircraft turbine engines.

F. ``Amdry 2010'' means Sulzer's aluminum polyester powder marketed

in the United States under the name ``Amdry 2010.''

G. ``Sumitomo Polyester'' means wholly aromatic polyester

(polyoxybenzoyl homopolymer) that Sumitomo Chemical Company Limited

produces for Sulzer according to Sulzer's specifications for use as an

input in Amdry 2010.

H. ``Sulzer aluminum silicon'' means the particular grade,

specification, and type of aluminum silicon used in Amdry 2010.

I. ``Amdry 2010 Ingredients'' means Sumitomo Polyester and Sulzer

aluminum silicon.

J. ``Amdry 2010 Information'' means a copy of all information

necessary to purchase Amdry 2010 Ingredients and all information

necessary for the manufacture and sale of Amdry 2010, including but not

limited to:

1. All product information related to Sumitomo Polyester and

related know-how, including (without limitation) its morphology, the

name(s) of the supplier(s) of Sumitomo Polyester, all particle

specifications, formulas, processes, technology, trade secrets,

manufacturing information, plans, drawings and data and other tangible

embodiments of know-how used to acquire commercially acceptable

Sumitomo Polyester for use in Amdry 2010;

2. All product information related to Sulzer aluminum silicon,

including (without limitation) its morphology, the name(s) of the

supplier(s) of Sulzer aluminum silicon, all product specifications,

formulas, processes, technology, trade secrets, manufacturing

information, plans, drawings and data and other tangible embodiments of

know-how used to acquire commercially acceptable Sulzer aluminum

silicon for use in Amdry 2010;

3. All information related to the manufacture of Amdry 2010,

including (without limitation) all production manuals, training

materials, lists of equipment used in the manufacturing process,

formulas, process, all manufacturing standards and procedures, quality

control specifications, technology, trade secrets, manufacturing

information, plans, drawings and data and other tangible embodiments of

know-how used to manufacture commercially acceptable Amdry 2010; and

4. All information related to the sale of Amdry 2010, including

(without limitation) product brochures, customer lists, training

materials, and other tangible embodiments of know-how used in the sale

of Amdry 2010.

K. ``Amdry 2010 Equivalent'' means an aluminum polyester powder

that is chemically equivalent to Amdry 2010 and that is not produced by

Sulzer or Metco.

L. ``Original equipment manufacturers'' means General Electric

Aircraft Engines Division, Textron Lycoming, and the Garrett Division

of Allied Signal, and their successors and assigns.

M. ``Metco 601'' means Metco's aluminum polyester powder marketed

in the United States under the name ``Metco 601.''

N. ``Carborundum Ekonol Polyester'' means wholly aromatic polyester

that The Carborundum Company produces for Metco according to Metco's

specifications for use as an input in Metco 601.

O. ``Metco aluminum silicon'' means the particular grade,

specification, and type of aluminum silicon used in Metco 601.

P. ``Metco 601 Ingredients'' means Carborundum Ekonol Polyester and

Metco aluminum silicon.

Q. ``Metco 601 Information'' means a copy of all information

necessary to purchase Metco 601 Ingredients and all information

necessary for the manufacture and sale of Metco 601, including but not

limited to:

1. All product information related to Carborundum Ekonol Polyester

and related know-how, including (without limitation) its morphology,

the name(s) of the supplier(s) of Carborundum Ekonol Polyester, all

particle specifications, formulas, processes, technology, trade

secrets, manufacturing information, plans, drawings and data and other

tangible embodiments of know-how used to acquire commercially

acceptable Carborundum Ekonol Polyester for use in Metco 601;

2. All product information related to Metco aluminum silicon,

including (without limitation) its morphology, the name(s) of the

supplier(s) of Metco aluminum silicon, all product specifications,

formulas, processes, technology, trade secrets, manufacturing

information, plans, drawings and data and other tangible embodiments of

know-how used to acquire commercially acceptable Metco aluminum silicon

for use in Metco 601;

3. All information related to the manufacture of Metco 601,

including (without limitation) production manuals, training materials,

lists of equipment used in the manufacturing process, formulas,

process, all manufacturing standards and procedures, quality control

specifications, technology, trade secrets, manufacturing information,

plans, drawings and data and other tangible embodiments of know-how

used to manufacture commercially acceptable Metco 601; and

4. All information related to the sale of Metco 601, including

(without limitation) product brochures, customer lists, training

materials, and other tangible embodiments of know-how used in the sale

of Metco 601.

R. ``Metco 601 Equivalent'' means an aluminum polyester powder that

is chemically equivalent to Metco 601 and that is not produced by Metco

or Sulzer.

It is ordered That:

A. Sulzer shall, absolutely and in good faith, divest the Amdry

2010 Information within six (6) months of the date this Order becomes

final to an acquirer that will develop, manufacture, sell, and seek

original equipment manufacturers' approvals for an Amdry 2010

Equivalent. Sulzer shall divest only to an acquirer that receives the

prior approval of the Commission, and only in a manner that receives

the prior approval of the Commission.

B. Sulzer shall provide all additional assistance, information and

know-how reasonably necessary to the acquirer of the Amdry 2010

Information to help such acquirer receive all product approvals from

the original equipment manufacturers necessary for the purchase of an

Amdry 2010 Equivalent by such original equipment manufacturers or by

any other person pursuant to standards and qualifications established

by such manufacturer. Such assistance shall include but not be limited

to the following:

1. Paying all costs of testing by or for the original equipment

manufacturers for product approvals of an Amdry 2010 Equivalent;

2. Providing any training relevant to the production of an Amdry

2010 Equivalent to the acquirer;

3. Offering any technical assistance necessary to assist the

acquirer in its development of an Amdry 2010 Equivalent; and

4. Any additional information or know-how reasonably necessary to

the acquirer.

C. Sulzer shall submit to the Commission, within nine (9) months of

the date the Commission approves the divestiture of the Amdry 2010

Information, an affidavit from each of the original equipment

manufacturers certifying that each such manufacturer has either (1)

individually approved an Amdry 2010 Equivalent manufactured by the

Commission-approved acquirier of the Amdry 2010 Information for all

uses for which Amdry 2010 is approved by such original equipment

manufacturer, or (2) individually approved any other person's aluminum

polyester powder for all uses for which Amdry 2010 is approved by such

original equipment manufacturer and that such manufacturer is not

interested in approving an Amdry 2010 Equivalent manufactured by the

Commission-approved acquirer of the Amdry 2010 Information for all uses

for which Amdry 2010 is approved by such original equipment

manufacturer.

D. The purpose of the divestiture of the Amdry 2010 Information is

to enable the acquirer to become a viable competitor in the aluminum

polyester powder market and to remedy the lessening of competition

resulting from the acquisition as alleged in the Commission's

complaint.

III

It is further ordered That:

A. If Sulzer has (1) not divested the Amdry 2010 Information within

six (6) months of the date this Order becomes final, or (2) not

submitted affidavits as required by Paragraph II.C. of this Order,

within nine (9) months of the date the Commission approves the

divestiture of the Amdry 2010 Information, then the Commission may

appoint a trustee to divest both the Amdry 2010 Information and the

Metco 601 Information only to an acquirer that receives the prior

approval of the Commission, and only in a manner that receives the

prior approval of the Commission. The purpose of the divestiture of the

Amdry 2010 Information and the Metco 601 Information is to enable the

acquirer to become a viable competitor in the aluminum polyester powder

market, and to remedy the lessening of competition resulting from the

Acquisition as alleged in the Commission's complaint. In the event the

Commission or the Attorney General brings an action pursuant to Section

5 (l) of the Federal Trade Commission Act, 15 U.S.C. 45(l), or any

other statute enforced by the Commission, Sulzer shall consent to the

appointment of a trustee in such action. Neither the appointment of a

trustee nor a decision not to appoint a trustee under this Paragraph

shall preclude the Commission or the Attorney General from seeking

civil penalties or any other relief available to it, including a court-

appointed trustee, pursuant to Section 5 (l) of the Federal Trade

Commission Act, or any other statute enforced by the Commission, for

any failure by respondent to comply with this Order.

B. If a trustee is appointed by the Commission or a court pursuant

to Paragraph III.A. of this Order, respondent shall consent to the

following terms and conditions regarding the trustee's powers, duties,

authority, and responsibilities:

1. The Commission shall select the trustee, subject to the consent

of Sulzer, which consent shall not be unreasonably withheld. The

trustee shall be a person with experience and expertise in the

marketing or manufacturing of chemicals. If respondent has not opposed,

in writing, including the reasons for opposing, the selection of any

proposed trustee within ten (10) days after notice by the staff of the

Commission to respondent of the identity of any proposed trustee,

respondent shall be deemed to have consented to the selection of the

proposed trustee.

2. Subject to the prior approval of the Commission, the trustee

shall have the exclusive power and authority to divest both the Amdry

2010 Information and the Metco 601 Information and to take all such

steps as may be feasible and necessary to assist the acquirer of the

Amdry 2010 Information and the Metco 601 Information to receive all

product approvals from the original equipment manufacturers necessary

for the purchase of an Amdry 2010 Equivalent or a Metco 601 Equivalent

by such manufacturer or by any other person pursuant to standards and

qualifications established by such manufacturer. Such assistance shall

include but not be limited to the following:

a. Requiring respondent to pay all costs of testing by or for the

original equipment manufacturers for product approvals of an Amdry 2010

Equivalent or a Metco 601 Equivalent;

b. Requiring respondent to provide any training relevant to the

production of an Amdry 2010 Equivalent or a Metco 601 Equivalent to the

acquirer;

c. Requiring respondent to offer any technical assistance necessary

to assist the acquirer in its development of an Amdry 2010 Equivalent

or a Metco 601 Equivalent; and

d. Requiring respondent to provide any additional information or

know-how reasonably necessary to the acquirer.

3. Within ten (10) days after appointment of the trustee,

respondent shall execute a trust agreement that, subject to the prior

approval of the Commission and, in the case of a court-appointed

trustee, of the court, transfers to the trustee all rights and powers

necessary to permit the trustee to effect the divestiture of both the

Amdry 2010 Information and the Metco 601 Information and to provide the

additional assistance as required by Paragraph III.B.2. of this Order.

4. From the date of appointment, the trustee shall have twelve (12)

months to divest both the Amdry 2010 Information and the Metco 601

Information, to provide all additional assistance reasonably necessary

to the acquirer, and to submit affidavits to the Commission from each

of the original equipment manufacturers certifying that each has

individually approved the Amdry 2010 Equivalent or the Metco 601

Equivalent manufactured by the Commisssion-approved acquirer of the

Amdry 2010 Information and the Metco 601 Information for all uses for

which Amdry 2010 or Metco 601 is approved by such original equipment

manufacturer, and if such affidavits are not submitted, the trustee

shall have an additional six (6) months thereafter to accomplish the

divestiture of both the Amdry 2010 Information and the Metco 601

Information, to provide the additional assistance, and to submit the

affidavits. If, however, at the end of the additional six (6) month

period, the trustee believes that the original equipment manufacturers

will approve the Amdry 2010 Equivalent or the Metco 601 Equivalent

manufactured by the Commission-approved acquirer of the Amdry 2010

Information and the Metco 601 Information for all uses for which Amdry

2010 or Metco 601 is approved by such original equipment manufacturer,

and will submit said affidavits to the Commission within a reasonable

time, the time period for approvals and submission of affidavits may be

extended by the Commission, or, in the case of a court-appointed

trustee, by the court; provided, however, the Commission may extend

this period only two (2) times.

5. The trustee shall have full and complete access to the

personnel, books, records and facilities related to the Amdry 2010

Information and the Metco 601 Information, or to any other relevant

information, as the trustee may request. Respondent shall develop such

financial or other information as such trustee may request and shall

cooperate with the trustee. Respondent shall take no action to

interfere with or impede the trustee's accomplishment of the

divestiture of the Amdry 2010 Information and the Metco 601

Information, the provision of additional assistance to the acquirer,

and the approval of the Amdry 2010 Equivalent or the Metco 601

Equivalent by the original equipment manufacturers. Any delays caused

by the respondent shall extend the time for the divestiture of the

Amdry 2010 Information and the Metco 601 Information, the additional

assistance to the acquirer, and the approvals by the original equipment

manufacturers, under this Paragraph in an amount equal to the delay, as

determined by the Commission, or, for a court-appointed trustee, by the

court.

6. The trustee shall use his or her best efforts to negotiate the

most favorable price and terms available in each contract that is

submitted to the Commission, subject to respondent's absolute and

unconditional obligation to divest at no minimum price. If the trustee

receives bona fide offers from more than one acquiring entity, and if

the Commission determines to approve more than one such acquiring

entity, the trustee shall divest to the acquiring entity or such

entities selected by respondent from among those approved by the

Commission.

7. The trustee shall serve, without bond or other security, at the

cost and expense of respondent, on such reasonable and customary terms

and conditions as the Commission or a court may set. The trustee shall

have the authority to employ, at the cost and expense of respondent,

such consultants, accountants, attorneys, investment bankers, business

brokers, appraisers, and other representatives and assistants as are

necessary to carry out the trustee's duties and responsibilities. The

trustee shall account for all monies derived from the divestiture and

all expenses incurred. After approval by the Commission and, in the

case of a court-appointed trustee, by the court, of the account of the

trustee, including fees for his or her services, all remaining monies

shall be paid at the direction of Sulzer and the trustee's power shall

be terminated. The trustee's compensation shall be based at least in

significant part on a commission arrangement contingent on the

trustee's divestiture of the Amdry 2010 Information and the Metco 601

Information and submission of the required affidavits from the original

equipment manufacturers.

8. Respondent shall indemnify the trustee and hold the trustee

harmless against any losses, claims, damages, or liabilities arising

out of, or in connection with, the performance of the trustee's duties,

including all reasonable fees of counsel and other expenses incurred in

connection with the preparation for, or defense of any claim, whether

or not resulting in any liability, except to the extent that such

liabilities, losses, damages, claims, or expenses result from

misfeasance, gross negligence, willful or wanton acts, or bad faith by

the trustee.

9. If the trustee ceases to act or fails to act diligently, a

substitute trustee shall be appointed in the same manner as provided in

this Paragraph of this Order.

10. The Commission or, in the case of a court-appointed trustee,

the court, may on its own initiative or at the request of the trustee

issue such additional orders or directions as may be necessary or

appropriate to accomplish the divestiture of the Amdry 2010 Information

and the Metco 601 Information, the provision of all additional

assistance reasonably necessary to the acquirer, and the submission of

affidavits by each of the original equipment manufacturers as required

by this Order.

11. The trustee shall have no obligation or authority to operate or

maintain the Amdry 2010 Information and the Metco 601 Information.

12. The trustee shall report in writing to respondent and to the

Commission every sixty (60) days concerning the trustee's efforts to

accomplish the divestiture.

IV

It is further ordered That:

A. For a ten (10) year period commencing on the date this Order

becomes final, Sulzer shall not enter into, obtain, make, carry out or

enforce any exclusive agreements with Sumitomo Chemical Company Limited

or otherwise take any action whatsoever, directly or indirectly, that

would prevent Sumitomo Chemical Company Limited from selling Sumitomo

Polyester to any Commission-approved acquirer of the Amdry 2010

Information. Within thirty (30) days after the order becomes final,

respondent shall provide a copy of the order to each person at Sumitomo

Chemical Company Limited with whom respondent has contact in connection

with the purchase of Sumitomo Polyester.

B. If a trustee is appointed and the Metco 601 Information is

divested pursuant to Paragraph III.A. of this Order, then for a ten

(10) year period commencing on the date the Metco 601 Information is

divested, Sulzer shall not enter into, obtain, make, carry out or

enforce any exclusive agreements with The Carborundum Company or

otherwise take any action whatsoever, directly or indirectly, that

would prevent The Carborundum Company from selling Carborundum Ekonol

Polyester to any other persons. Within thirty (30) days after the

trustee is appointed, respondent shall provide a copy of this Order to

each person at The Carborundum Company with whom respondent or Metco

has contact in connection with the purchase of Carborundum Ekonol

Polyester.

V

It is further ordered That, for a period of ten (10) years from the

date this Order becomes final, respondent shall not, without the prior

approval of the Commission, directly or indirectly, through

subsidiaries, partnerships, or otherwise:

A. Acquire any stock, share capital, equity, or other interest in

any concern, corporate or non-corporate, at the time of such

acquisition engaged in, or within the six months preceding such

acquisition engaged in, the manufacture, sale, or distribution of

aluminum polyester powder in the United States; or

B. Acquire any assets used for or previously used for (and still

suitable for use for) the manufacture, sale, or distribution of

aluminum polyester powder in the United States.

VI

It is further ordered That:

A. Within sixty (60) days after the date this Order becomes final

and every sixty (60) days thereafter until respondent has fully

complied with the provisions of Paragraphs II. and III. of this Order,

respondent shall submit to the Commission a verified written report

setting forth in detail the manner and form in which it intends to

comply, is complying, or has complied with Paragraphs II. and III of

this Order. Respondent shall include in its compliance reports, among

other things that are required from time to time, a full description of

the efforts being made to comply with Paragraphs II. and III. of the

order, including a description of all substantive contracts or

negotiations for the divestiture and the identity of all parties

contacted. Respondent shall include in its compliance reports copies of

all written communications to and from such parties, all internal

memoranda, and all reports and recommendations concerning the

divestiture.

B. One (1) year from the date this Order becomes final, and

annually for the next nine (9) years on the anniversary of the date

this Order becomes final, and at such other times as the Commission may

require, respondent shall file a verified written report with the

Commission setting forth in detail the manner and form in which it has

complied and is complying with Paragraphs IV. and V. of this Order.

VII

It is further ordered That respondent shall notify the Commission

at least thirty (30) days prior to any proposed change in the

respondent such as dissolution, assignment, or sale resulting in the

emergence of a successor corporation, the creation or dissolution of

subsidiaries or any other change in the respondent that may affect

compliance obligations arising out of the Order.

VIII

It is further ordered That, for the purpose of determining or securing

compliance with this Order, subject to any legally recognized

privilege, and upon written request with reasonable notice to Sulzer

made to its General Counsel, respondent shall permit any duly

authorized representatives of the Commission:

A. Access, during office hours and in the presence of counsel, to

inspect and copy all books, ledgers, accounts, correspondence,

memoranda and other records and documents in the possession or under

the control of respondent relating to any matters contained in this

Order; and

B. Upon five (5) days notice to respondent and without restraint or

interference from it, to interview officers, directors, or employees of

respondent, who may have counsel present regarding such matters.

Anaysis of Proposed Consent Order to Aid Public Comment

The Federal Trade Commission (``Commission'') has provisionally

accepted an agreement containing a proposed Consent Order from Sulzer

Limited (``Sulzer''), which requires Sulzer to divest a copy of all

product information regarding Amdry 2010, an aluminum polyester powder,

to a Commission-approved acquirer and to assist such acquirer in its

efforts to produce and sell an Amdry 2010 equivalent powder (``Amdry

2010 Equivalent'').

The proposed Consent Order has been placed on the public record for

sixty (60) days for reception of comments by interested persons.

Comments received during this period will become part of the public

record. After sixty (60) days, the Commission will again review the

agreement and the comments received and will decide whether it should

withdraw from the agreement or make final the agreement's proposed

Order.

On April 18, 1994, Sulzer and The Perkin-Elmer Corporation

(``Perkin-Elmer'') entered into an agreement whereby Sulzer agreed to

purchase all of the assets of Perkin-Elmer's Metco Division

(``Metco''). The proposed complaint alleges that the proposed

acquisition, if consummated, would constitute a violation of Section 7

of the Clayton Act, as amended, 15 U.S.C. 18, and Section 5 of the FTC

Act, as amended, 15 U.S.C. 45, in the market for the manufacture and

sale of aluminum polyester powder in the United States. Sulzer's powder

is marketed as Amdry 2010 and Metco's powder is marketed as Metco 601.

The proposed Consent Order would remedy the alleged violation by

requiring Sulzer to establish a new competitor in the business of

manufacturing and selling aluminum polyester powder and to assist such

competitor to receive the necessary product approvals from three

original equipment manufacturers (``OEMs''). Thus, Sulzer will be

required to replace the competition lost due to its acquisition of

Metco.

The proposed Consent Order provides that within six (6) months of

the Order becoming final, Sulzer shall divest to a Commission-approved

acquirer a copy of all information necessary to purchase ingredients

for, manufacture, and sell aluminum polyester powder (Amdry 2010

Information'') and to assist such acquirer in its efforts to

manufacture an equivalent aluminum polyester powder. The divestiture of

the Amdry 2010 Information shall be made only to an acquirer that

receives the prior approval of the Commission and only in a manner that

receives the prior approval of the Commission. Sulzer shall provide all

additional assistance, information, and know-how reasonably necessary

to the acquirer to help such acquirer receive all product approvals

from three OEMs necessary for the purchase of an Amdry 2010 Equivalent

by such OEMs. The three OEMs included in the Order are General Electric

Aircraft Engines Division, Textron Lycoming, and the Garrett Division

of Allied Signal. Sulzer shall submit an affidavit from each OEM to the

Commission, certifying that each OEM has either approved the Amdry 2010

Equivalent or approved another person's aluminum polyester powder.

In the event that Sulzer has not divested the Amdry 2010

Information within six (6) months of the date the Order becomes final,

or submitted the required affidavits to the Commission within nine (9)

months of the date the Commission approves the divestiture, then the

proposed Consent Order provides that Sulzer shall consent to the

appointment by the Commission of a trustee to divest the Amdry 2010

Information and a copy of all product information relating to Metco 601

(``Metco 601 Information'') to a Commission-approved acquirer. The

trustee shall also have the authority to take such steps as may be

feasible and necessary to assist the acquirer to receive approvals from

the three OEMs for an Amdry 2010 or a Metco 601 equivalent powder.

Under the provisions of the Consent Order, Sulzer is also required

to provide to the Commission a report of its compliance with the

divestiture provisions of the Order within sixty (60) days following

the date this Order becomes final, and every sixty (60) days thereafter

until Sulzer has completely divested the Amdry 2010 Information and

submitted the required affidavits to the Commission, or consented to

the appointment of a trustee to do the same. The proposed Order will

also prohibit Sulzer, for a period of ten (10) years, from acquiring,

without Federal Trade Commission approval, any stock in any concern

engaged in the manufacture, sale, or distribution of aluminum polyester

powder in the United States, or any assets used for the manufacture,

sale, or distribution of aluminum polyester powder in the United

States.

One year from the date the Order becomes final and annually

thereafter for nine (9) years, Sulzer will be required to provide to

the Commission a report of its compliance with the Consent Order. The

Consent Order also requires Sulzer to notify the Commission at least

thirty (30) days prior to any change in the structure of Sulzer

resulting in the emergence of a successor.

The purpose of this analysis is to facilitate public comment on the

proposed Order, and it is not intended to constitute an official

interpretation of the agreement and proposed Order or to modify in any

way their terms.

Donald S. Clark,

Secretary.

[FR Doc. 94-25338 Filed 10-12-94; 8:45 am]

BILLING CODE 6750-01-M