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 )

)

The Dow Chemical Company, )

a corporation, and ) DOCKET NO.

)

Union Carbide Corporation, ) DECISION AND ORDER

 a corporation. )

The Federal Trade Commission ("the Commission"), having initiated an investigation of

the proposed acquisition by The Dow Chemical Company (“Dow”) of Union Carbide

Corporation (“Union Carbide”), collectively hereinafter sometimes referred to as

“Respondents,” including Union Carbide’s interest in Univation Technologies LLC, and

Respondents having been furnished with a copy of a draft complaint that the Bureau of

Competition has presented to the Commission for its consideration and which, if issued by

the Commission, would charge Dow and Union Carbide with violations of the Clayton Act

and Federal Trade Commission Act; and

Respondents Dow and Union Carbide and their attorneys, and counsel for the

Commission having thereafter executed an agreement containing consent order, an admission

by Respondents of all the jurisdictional facts set forth in the aforesaid draft complaint, a

statement that the signing of said 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, and waivers and other provisions as required by the Commission’s rules; and
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The Commission having thereafter considered the matter and having determined

that it had reason to believe that Respondents have violated the said Acts, and that a

Complaint should issue stating its charges in that respect, and having thereupon issued its

Complaint and an Order to Maintain Assets (Appendix A), and having accepted the executed

Consent Agreement and placed such Consent Agreement on the public record for a period of

thirty (30) days for the receipt and consideration of public comments, now in further

conformity with the procedure described in Commission Rule 2.34, 16 C.F.R. § 2.34, the

Commission hereby makes the following jurisdictional findings and issues the following

Decision and Order (“Order”):

1. Respondent The Dow Chemical Company 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 2030 Dow Center, Midland, Michigan 48674. 

2. Respondent Union Carbide Corporation is a corporation organized, existing and

doing business under and by virtue of the laws of the State of New York with its principal

executive offices located at 39 Old Ridgebury Road, Danbury, Connecticut 06817. 

3. The Federal Trade Commission has jurisdiction of the subject matter of this

proceeding and of the Respondents, and the proceeding is in the public interest.
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ORDER

I.

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

A. The following terms shall mean the following entities:

1. “Dow” means The Dow Chemical Company, its directors, officers,

employees, agents and representatives, predecessors, successors, and assigns; its

subsidiaries, divisions, groups and affiliates controlled by The Dow Chemical

Company, and the respective directors, officers, employees, agents and representatives,

successors, and assigns of each. Dow does not include Union Carbide Corporation or

Univation.

2. “Union Carbide” means Union Carbide Corporation, its directors, officers,

employees, agents and representatives, predecessors, successors, and assigns; its

subsidiaries, divisions, groups and affiliates controlled by Union Carbide Corporation,

and the respective directors, officers, employees, agents and representatives,

successors, and assigns of each. Union Carbide does not include Dow. Union Carbide

does not include Univation.

3. “Univation” means Univation Technologies, LLC, a limited liability company

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 555 San Felipe

Road, Suite 1950, Houston, Texas 77056.

4. “Respondents” means Dow and Union Carbide individually and

collectively.

5. “Commission” means the Federal Trade Commission.

6. “Asahi” means Asahi Chemical Industry Co., Ltd., a foreign corporation,

existing and doing business under and by virtue of the laws of Japan, with its offices

and principal place of business located at 1-2, Yuraku-cho, 1-chome, Chiyoda-ku,

Tokyo 100, Japan, its subsidiaries, divisions, groups and affiliates.

7. “BP” means BP Amoco p.l.c., a foreign corporation, existing and doing

business under and by virtue of the laws of England and Wales, with its offices and

principal executive offices located at Britannic House, 1 Finsbury Circus, London

EC2M, England, its subsidiaries, divisions, groups and affiliates. BP’s principal U.S.

office is located at 200 East Randolph Drive, Chicago, Illinois 60601-7125.

8. “Exxon” or “Exxon Mobil” means Exxon Mobil Corporation, a

corporation organized, existing and doing business under and by virtue of the laws of
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the State of New Jersey, with its offices and principal place of business located at 5959

Las Colinas Boulevard, Irving, Texas 75039-2298, its subsidiaries, divisions, groups

and affiliates. Exxon does not include Univation.

9. “Huntsman” means Huntsman International LLC, a limited liability

company, 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 500

Huntsman Way, Salt Lake City, Utah 84108, and its subsidiaries, divisions, groups, and

affiliates. 

10. “Ineos” means Ineos Group plc and its subsidiaries, divisions, groups and

affiliates, including Ineos L.L.C., a limited liability company organized, existing and

doing business under and by virtue of the laws of the State of Louisiana, with its offices

and principal place of business located at 701 Poydras Street, Suite 5000, New

Orleans, Louisiana 70139.

11. “Mitsui” means Mitsui Chemicals, Inc., a foreign corporation, existing and

doing business under and by virtue of the laws of Japan, with offices and principal place

of business located at 2-5 Kasumigaseki, 3-chome, Chiyoda-ku, Tokyo, Japan, its

subsidiaries, divisions, groups and affiliates. Mitsui’s principal U.S. office is located at

Mitsui Petrochemicals (America), First Interstate Bank Plaza, 1000 Louisiana, Suite

5696, Houston, Texas 77002.

12. “Albemarle” means Albemarle Corporation, a corporation organized,

existing and doing business under and by virtue of the laws of the State of Virginia,

with its offices and principal place of business located at 330 South Fourth St.,

Richmond, Virginia 23210.

13. “Boulder Scientific” means Boulder Scientific Company, a corporation

organized, existing and doing business under and by virtue of the laws of the State of 

Colorado, with its offices and principal place of business located at 598 Third St.,

Mead, Colorado 80542.

B. “Acquirer” means any person or business that purchases the Dow Global

Ethyleneamines Business, the Dow Global Ethanolamines Business, the Dow Gas Spec

MDEA Business, or the Dow Gas Phase Metallocene PE Assets pursuant to this Order. 

Acquirer includes BP, Huntsman and/or Ineos. 

C. “Acquisition” means the acquisition by Dow of assets or voting shares of Union

Carbide that is reportable under the Hart-Scott-Rodino Antitrust Improvements Act.

D. “AEEA” means aminoethylethanolamines.

E. “AEEA Plant” means Dow’s AEEA production facility located at the Freeport

Site.
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F. “Asahi Agreement Patent Rights” means all rights conveyed to Dow, pursuant to

the Joint Development Agreement, dated July 21, 1995, as amended, and the Technology

Commercial Agreement, dated February 26, 1998, as amended, both between Asahi Chemical

Industry Co., Ltd. and Dow, to make, use, and sell, and to sublicense any person to make,

use and sell, Ethylene Polymers in a Gas Phase PE Process.

G. “BisCP Metallocene Catalyst” means Metallocene Catalyst containing in its

preactivated state two Cyclic Moieties wherein for each of the Cyclic Moieties three or more

adjacent atoms comprising a portion of a ring of the Cyclic Moiety are p-bonded to the same

metal atom and the three or more adjacent atoms are within normal bonding distance of the

metal atom and wherein the Cyclic Moieties may be the same or different, symmetric or

asymmetric, unbridged or bridged to each other.

H. “BP Confidential Information” means (1) information regarding the Dow Gas

Phase Metallocene PE Assets, (2) information regarding BP’s Innovene Gas Phase PE

Process, and (3) information subject to any confidentiality or secrecy obligation, received by

Dow from or on behalf of BP regarding Metallocene Technology, Gas Phase PE Process

technology, or Ethylene Polymers, provided, however, that BP Confidential Information shall

not include information, other than Dow Gas Phase PE Technology, that is: 

1. public knowledge at the date of receipt by Dow, or that prior to Dow’s use

of such information, becomes public knowledge through no act or failure to act on the

part of Dow;

2. already known, without obligation of confidentiality, to Dow at the date of

its receipt;

3. subsequently lawfully acquired from third parties or affiliates to the extent

that Dow has the right to use or disclose it without obligations of confidentiality; or

4. required to be disclosed due to operation of law or an order of a court or

other governmental authority, provided that Dow shall first notify BP of such

requirement and use reasonable efforts to preserve the confidentiality of the information

required to be disclosed and to limit disclosure of such information to that legally

required. 

I. “BP Divestiture and License Agreement” means the Divestiture and License

Agreement between Dow and BP dated as of January 19, 2001, providing, inter alia, for the

sale of the Dow Gas Phase Metallocene PE Assets to BP, and the grant of the Enhanced GasPhase Metallocene Licenses & Immunities to BP.

J. “BP-Dow-Chevron Agreement” means the Single Site Metallocene Catalyst CoOperation and Exploitation Agreement dated September 8, 1998, by and between BP, Dow

and Chevron Chemical Company LLC, as amended. 
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K. “BP-Dow JDA” means the Joint Development Agreement dated January 30,

1995, by and between BP and Dow, as amended.

L. “BP-Dow Joint Development Program” means all research and development

activity taken by Dow or BP, individually or jointly, pursuant to, in furtherance of, or in

performance of the BP-Dow JDA.

M. “Businesses and Assets To Be Divested” means 

1. the Dow Global Ethyleneamines Business;

2. the Dow Global Ethanolamines Business;

3. the Dow Gas Phase Metallocene PE Assets; and 

4. the Dow Gas Spec MDEA Business.

N. “Castmate” means CASTMATE and MORMATE ceramic processing additives

produced by blending ethyleneamines, latex, and water, and any other products comprising

ethyleneamines and, optionally, latex and water, sold for use in the manufacture of ceramic

articles as a processing additive and managed by the same persons in Freeport, Texas who

manage the Dow Global Ethyleneamines Business. 

O. “Catalyst Technology” means technology relating to PE Catalyst or to the

production, preparation and use of PE Catalysts, PE Catalyst Support or PE Catalyst

Systems.

P. “Combined Technology” means technology (including without limitation Patents

and Know-How) developed in the course of the BP-Dow Joint Development Program,

whether or not patentable, including all technical data and information generated individually

or jointly by Dow or BP in the course of the BP-Dow Joint Development Program; all

Ethylene Polymers produced in the course of the BP-Dow Joint Development Program; any

individual or joint invention, improvement or discovery, whether or not patentable, which

was made or conceived in the course of the BP-Dow Joint Development Program and

technology developed in the course of the BP-Dow Joint Development Program for use

and/or manufacture of any Combined Technology Catalyst; and all laboratory records,

reports, technical data and information generated in the course of the BP-Dow Joint

Development Program; excluding, however, ownership of technology developed by Dow

prior to, or not in the course of, the BP-Dow Joint Development Program.

Q. “Combined Technology Catalyst” means any Metallocene Catalyst System

(including activators, supports or scavenging agents) made or conceived in the course of the

BP-Dow Joint Development Program, including any improvements upon Introduced Dow

Metallocene Catalyst Systems, which improvements were made or conceived in the course of
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the BP-Dow Joint Development Program, but excluding the Introduced Dow Metallocene

Catalyst Systems.

R. “Combined Technology Patents” means all Patents claiming inventions that are

Combined Technology that are owned by Dow or BP, including the patents listed in

Confidential Appendix B hereto.

S. “Cyclic Moiety” means a cyclopentadienyl (C5H5) moiety and/or any other type of

cyclic compound including, for example, but not limited to, a cyclohexadienyl moiety, a

pyrolyl moiety, a phospholyl moiety, a boratabenzene moiety, etc.; wherein each of these

moieties and/or compounds may be unsubstituted or substituted with anything and in any

manner (including, but not limited to, ring or multi-ring structures such as indenyl, fluorenyl,

or other ring structures).

T. “Dedicated Gas Phase Metallocene PE Assets” means:

1. the two agitated dry phase reactors that are owned by Dow, that have been

used by Dow for testing of Metallocene Catalyst Systems in a Gas-Phase PE Process

for making Ethylene Polymers, and that have been located at Freeport, Texas and

Midland, Michigan; and

2. all of Dow’s rights, title and interest in the BP-Dow-Chevron Agreement, and

all Dow’s rights, title and interest in all sole or joint inventions, improvements or

discoveries, whether or not patentable, that were made or conceived in the course of

the BP-Dow-Chevron Agreement program, including any Know-How and any Patents

claiming the same, and including any improvements upon Introduced Dow Metallocene

Catalyst Systems, which improvements were made or conceived in the course of the

BP-Dow -Chevron Agreement program, but excluding the Introduced Dow

Metallocene Catalyst Systems.

U. “Density” means density in grams per cubic centimeter as measured by the most

recent version of ASTM D-1505 (as of the Effective Date of Divestiture, ASTM D-1505-98)

using specimens prepared by the procedure described in ASTM D-1928, Procedure C.

V. “Divestiture Agreements” means the Huntsman Agreement, the Ineos

Agreement, the BP Divestiture and License Agreement, any New Ethyleneamines Divestiture

Agreement, any New Ethanolamines Divestiture Agreement, and any New Gas Spec MDEA

Divestiture Agreement.

W. “Dow Appendix C Employees” means Dow Employees listed on Confidential

Appendix C of this Order and such other Dow employees who, during any twelve-month

period since January 1, 1995, devoted 50 work days to Combined Technology or to the BPDow Joint Development Program or to any combination thereof. 

X. “Dow Gas Phase Metallocene PE Assets” means:
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1. all Dow’s rights, title and interest in the BP-Dow JDA, and all Dow’s

rights, title and interest in all Combined Technology, and Combined Technology

Patents;

2. the Dedicated Gas Phase Metallocene PE Assets;

3. the Dow Gas Phase PE Patents;

4. all research materials, technical information, management information

systems, software, inventions, specifications, designs, drawings, processes and quality

control data of Dow related solely to Metallocene Technology for use in a Gas-Phase

PE Process or to Dow Gas Phase PE Technology that are recorded in written or

electronic form as of the date the Commission accepts this Order for public comment;

5. all interest in and to the contracts entered into in the ordinary course of

business with customers (together with associated bid and performance bonds),

suppliers, licensors, licensees, consignors and consignees, and rights under warranties

and guarantees, express or implied of Dow related solely to Metallocene Technology

for use in a Gas-Phase PE Process or to Dow Gas Phase PE Technology, except the

Univation Settlement Agreement; and

6. all documents, books, records, and files, written or electronic, of Dow

related solely to Metallocene Technology for use in a Gas-Phase PE Process or Dow

Gas Phase PE Technology, except the Univation Settlement Agreement and

information provided to Dow by or on behalf of Univation, Union Carbide, and Exxon

Mobil either prior to or after the effective date of such Univation Settlement

Agreement.

Y. “Dow Gas Phase PE Patents” means all Patents owned by Dow having a priority

date or filing date on or before the date on which the Commission accepts this Order for

public comment, all claims of which are limited to (i) Metallocene Technology that can only

be used in a Gas Phase PE Process for Ethylene Polymers; (ii) Metallocene Catalyst Systems

or components of Metallocene Catalyst Systems that can only be used in Gas Phase PE

Processes for Ethylene Polymers; (iii) a process for using such Metallocene Catalyst Systems

or components in a Gas Phase PE Process to make Ethylene Polymers; or (iv) Ethylene

Polymers made only by such a Gas Phase PE Process, including the patents listed in

Confidential Appendix D hereto.

Z. “Dow Gas Phase PE Technology” means all Know-How owned by Dow and

developed before the date on which the Commission accepts this Order for public comment,

that is limited to (i) Metallocene Technology that can only be used in a Gas Phase Process for

Ethylene Polymers; (ii) Metallocene Catalyst Systems or components of Metallocene Catalyst

Systems that can only be used in Gas Phase PE Processes for Ethylene Polymers; (iii) a

process for using such Metallocene Catalyst Systems or components in a Gas Phase PE
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Process to make Ethylene Polymers; or (iv) Ethylene Polymers made only by such a Gas

Phase PE Process.

AA. The “Dow Gas Spec MDEA Business” means all of Dow’s right, title, and

interest in all assets and businesses relating to the research, development, sale, and

distribution of Gas Spec MDEA in the United States and Canada, including, without

limitation, the following:

1. all customer lists, vendor lists, catalogs, sales promotion literature,

advertising materials, research materials, technical information, dedicated management

information systems, information contained in management information systems, rights

to software, technology, know-how, ongoing research and development, specifications,

designs, drawings, processes and quality control data;

2. at Acquirer’s option, and with the concurrence of the Commission, a

Supply Contract pursuant to which Dow will provide to an Acquirer MDEA on

commercially reasonable terms that achieve the purposes of this Order;

3. all intellectual property rights, including but not limited to Patents, Patent

rights, licenses, formulas, mixes, molds, inventions, copyrights, trade secrets, knowhow, trademarks, and trade names;

4. all raw material and finished product inventories and goods in process;

5. all right, title, and interest in and to the contracts (together with associated

bid and performance bonds) entered into in the ordinary course of business with

customers, suppliers, sales representatives, distributors, agents, personal property

lessors, personal property lessees, licensors, licensees, consignors and consignees;

6. all rights under warranties and guarantees, express or implied;

7. all separately maintained, and all relevant portions of not separately

maintained, books, records and files;

8. all applicable federal, state, and local regulatory agency registrations,

permits, and applications, and all documents related thereto, to the extent permitted by

law; and

9. all items of prepaid expense arising on or after August 1, 2000.

Provided, however, that the Dow Gas Spec MDEA Business does not include the following:

10. any plant facilities, machinery, fixtures, equipment, vehicles, transportation

and storage facilities, furniture, tools, supplies, stores, spare parts, and other property

(other than the laboratory and software used by the Dow Gas Spec MDEA Business)
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that relate to the manufacture of MDEA and MMEA, including Dow’s MDEA and

MMEA manufacturing facilities;

11. intellectual property used solely for the manufacture of MDEA and

MMEA;

12. real property at the Freeport Site, Plaquemine Site or any other Dow

location;

13. customer lists, files, information and records for customers located outside

of the United States and Canada; and

14. the assets listed in Confidential Appendix E of this Order.

Provided, however, that if Dow divests the Dow Gas Spec MDEA Business to Ineos

pursuant to Paragraph IV of this Order, the definition of the Dow Gas Spec MDEA Business

includes, but shall not be limited by, the assets conveyed by the Ineos Agreement.

AB. The “Dow Global Ethanolamines Business” means all of Dow’s right, title, and

interest in all assets and businesses in the world relating to the research, development,

manufacture, sale, and distribution of Ethanolamines, including, without limitation, the

following:

1. all plant facilities, machinery, fixtures, equipment, vehicles, transportation

and storage facilities, furniture, tools, supplies, stores, spare parts, and other tangible

personal property related to Ethanolamines and located at a facility owned and

operated by Dow at Block 55 of the Plaquemine Site, as well as any easements

necessary to operate these facilities as an Ethanolamines business;

2. at Acquirer’s option, and with the concurrence of the Commission, a

Supply Contract for EO;

3. at Acquirer’s option, and with the concurrence of the Commission, a

contract or contracts pursuant to which Dow will provide to an Acquirer certain

services related to Ethanolamines, including one or more of the following: 

maintenance, environmental, liquid waste disposal, computer, safety, security,

transportation, or other services related to Ethanolamines; 

4. at Acquirer’s option, and with the concurrence of the Commission, a

contract or contracts pursuant to which Dow will provide to an Acquirer certain

utilities related to Ethanolamines, including one or more of the following: water,

electricity, sewer, or other utilities related to Ethanolamines; 

5. a lease, license, or other rights in real property at the Plaquemine Site

sufficient for the operation of the Dow Global Ethanolamines Business in the manner in
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which such business has been operated in the past and as such business may be

operated in the future in a manner consistent with the purposes of this Order;

6. all customer lists, vendor lists, catalogs, sales promotion literature,

advertising materials, research materials, technical information, dedicated management

information systems, information contained in management information systems, rights

to software, technology, know-how, ongoing research and development, specifications,

designs, drawings, processes and quality control data;

7. all intellectual property rights, including but not limited to Patents, Patent

rights, licenses, formulas, mixes, inventions, copyrights, trade secrets, know-how,

trademarks, and trade names;

8. all raw material and finished product inventories and goods in process;

9. all right, title, and interest in and to the contracts (together with associated

bid and performance bonds) entered into in the ordinary course of business with

customers, suppliers, sales representatives, distributors, agents, personal property

lessors, personal property lessees, licensors, licensees, consignors and consignees;

10. all rights under warranties and guarantees, express or implied;

11. all separately maintained, and all relevant portions of not separately

maintained, books, records and files;

12. rights to operate under all applicable federal, state, and local regulatory

agency registrations, permits, and applications, and all documents related thereto, to

the extent permitted by law; and

13. all items of prepaid expense arising on or after August 1, 2000.

Provided, however, that the Dow Global Ethanolamines Business does not include the

following:

14. assets or businesses solely for the production or sale of products other than

Ethanolamines including any downstream products into which Ethanolamines are an

input;

15. production facilities used to manufacture EO;

16. a fee simple interest in any real property, including the real property

underlying the Ethanolamines manufacturing facility at the Plaquemine Site; and

17. the assets listed in Confidential Appendix E of this Order.
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Provided, however, that if Dow divests the Dow Global Ethanolamines Business to Ineos

pursuant to Paragraph III of this Order, the definition of the Dow Global Ethanolamines

Business includes, but shall not be limited by, the assets conveyed by the Ineos Agreement.

AC. The “Dow Global Ethyleneamines Business” means all of Dow’s right, title, and

interest in all assets and businesses in the world relating to the research, development,

manufacture, sale, and distribution of Ethyleneamines, AEEA, and Castmate, including,

without limitation, the following:

1. all plant facilities, machinery, fixtures, equipment, vehicles, transportation

and storage facilities, furniture, tools, supplies, stores, spare parts, and other tangible

personal property related to Ethyleneamines and located at a facility owned and

operated by Dow at Block A-3800 of the Freeport Site, as well as any easements

necessary to operate these facilities as an Ethyleneamines business;

2. all plant facilities, machinery, fixtures, equipment, vehicles, transportation

and storage facilities, furniture, tools, supplies, stores, spare parts, and other tangible

personal property related to and located at the AEEA Plant at the Freeport Site, as well

as any easements necessary to operate the facilities as an AEEA business;

3. a lease, license, or other rights in real property at the Freeport Site

sufficient for the operation of the Dow Global Ethyleneamines Business in the manner

in which such business has been operated in the past and as such business may be

operated in the future in a manner consistent with the purposes of this Order; 

4. at Acquirer’s option, and with the concurrence of the Commission, a

Supply Contract for ethylene dichloride and caustic;

5. at Acquirer’s option, and with the concurrence of the Commission, a

contract or contracts pursuant to which Dow will provide to an Acquirer certain

services related to Ethyleneamines, including one or more of the following: 

maintenance, environmental, liquid waste disposal, computer, safety, security,

transportation, and other services related to Ethyleneamines;

6. at Acquirer’s option, and with the concurrence of the Commission, a

contract or contracts pursuant to which Dow will provide to an Acquirer certain

utilities related to Ethyleneamines, including one or more of the following: water,

electricity, sewer, and other utilities related to Ethyleneamines;

7. an option to purchase, at cost, including capital charges consistent with

those charged to other Dow businesses, up to thirty (30) million pounds of

Ethyleneamines annually from the Terneuzen Plant;

8. all customer lists, vendor lists, catalogs, sales promotion literature,

advertising materials, research materials, technical information, dedicated management
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information systems, information contained in management information systems, rights

to software, technology, know-how, ongoing research and development, specifications,

designs, drawings, processes and quality control data;

9. all intellectual property rights, including but not limited to Patents, Patent

rights, licenses, formulas, mixes, inventions, copyrights, trade secrets, know-how,

trademarks, and trade names;

10. all raw material and finished product inventories and goods in process;

11. all right, title, and interest in and to the contracts (together with associated

bid and performance bonds) entered into in the ordinary course of business with

customers, suppliers, sales representatives, distributors, agents, personal property

lessors, personal property lessees, licensors, licensees, consignors and consignees;

12. all rights under warranties and guarantees, express or implied;

13. all separately maintained, and all relevant portions of not separately

maintained, books, records and files;

14. rights to operate under all applicable federal, state, and local regulatory

agency registrations, permits, and applications, and all documents related thereto to the

extent permitted by law; and

15. the confidentiality agreements entered into by or on behalf of Dow in

connection with the sale of the Dow Global Ethyleneamines Business, related to any

third party bid to purchase the assets of the Dow Global Ethyleneamines Business in

connection with the sale of the Dow Global Ethyleneamines Business, to the extent that

assignment or disclosure of such confidentiality agreements to Acquirer would not

constitute a breach thereof.

Provided, however, that the Dow Global Ethyleneamines Business does not include the

following:

16. assets or businesses solely for the production or sale of (i) any downstream

products into which Ethyleneamines are an input, except Castmate; or (ii) any other

products other than Ethyleneamines.

17. production facilities used to manufacture ethylene dichloride, ethylene,

chlorine, or caustic;

18. the Terneuzen Plant;

19. production facilities used to manufacture Castmate;
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20. a fee simple interest in any real property, including the real property

underlying the Ethyleneamines, the AEEA, and the Castmate manufacturing facilities at

the Freeport Site; and 

21. the assets listed in Confidential Appendix F of this Order.

Provided, however, that if Dow divests the Dow Global Ethyleneamines Business to

Huntsman pursuant to Paragraph II of this Order, the definition of the Dow Global

Ethyleneamines Business includes, but shall not be limited by, the assets conveyed by the

Huntsman Agreement.

AD. “Dow Metallocene Background Patents” means any claims in Patents owned by

Dow having a priority date or filing date on or before two years after the date on which the

Order becomes final which claims are directed to inventions conceived prior to the date of the

Acquisition, which cover: (i) Metallocene Technology for use in a Gas Phase PE Process to

make Ethylene Polymers; (ii) Metallocene Catalyst Systems or components of Metallocene

Catalyst Systems for use in a Gas Phase PE Process to make Ethylene Polymers, including

without limitation Introduced Dow Metallocene Catalyst Systems; (iii) a process for using

Metallocene Catalyst Systems or components thereof in a Gas Phase PE Process to make

Ethylene Polymers; (iv) Ethylene Polymers made by a Gas Phase PE Process; or (v) the

application of Ethylene Polymers made by a Gas Phase PE Process, including without

limitation the patents listed in Confidential Appendix G hereto, provided, however, that Dow

Metallocene Background Patents do not include patent claims to chemical modifications of

Ethylene Polymers, and further provided that Dow Metallocene Background Patents do not

include Dow Metallocene Background Patents Requiring Third Party Consent or Patents

acquired by Dow on or after the date of the Acquisition.

AE. “Dow Metallocene Background Patents Requiring Third Party Consent” means

any claims in Patents owned by Dow that Dow cannot license to BP without securing the

consent of or paying compensation to a third party (other than Univation, Exxon Mobil, or

Union Carbide), having a priority date or filing date on or before two years after the date on

which the Order becomes final which claims are directed to inventions conceived prior to the

date of the Acquisition, which cover: (i) Metallocene Technology for use in a Gas Phase PE

Process to make Ethylene Polymers; (ii) Metallocene Catalyst Systems or components of

Metallocene Catalyst Systems for use in a Gas Phase PE Process to make Ethylene Polymers,

including without limitation Introduced Dow Metallocene Catalyst Systems; (iii) a process for

using Metallocene Catalyst Systems or components thereof in a Gas Phase PE Process to

make Ethylene Polymers; (iv) Ethylene Polymers made by a Gas Phase PE Process; or (v) the

application of Ethylene Polymers made by a Gas Phase PE Process, including without

limitation the patents listed in Confidential Appendix H hereto, provided, however, that Dow

Metallocene Background Patents Requiring Third Party Consent do not include patent claims

to chemical modifications of Ethylene Polymers or Patents acquired by Dow on or after the

date of the Acquisition.
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AF. “Effective Date of Divestiture” means the date upon which Respondents close a

transaction to divest or transfer relevant assets pursuant to this Order. 

AG. “Enhanced Gas Phase Metallocene Licenses & Immunities” means 

1. the Gas Phase Metallocene Licenses & Immunities; 

2. a paid up, worldwide, irrevocable, nonexclusive license, providing

immunity from suit and right to sublicense, under the Univation Settlement Patent

Rights and the Supplemental Univation Patent Rights to make, use, sell, offer for sale

and import MPE Resins made by polymerization in a Gas Phase PE Process; provided,

however that as a condition of the grants under the Univation Settlement Patent Rights,

BP may agree to abide by the terms and conditions of the BP Divestiture and License

Agreement, including without limitation Section 2.1.3, Section 3.1.2, and Section

3.1.3;

3. a paid up, worldwide, irrevocable, nonexclusive license, providing

immunity from suit and right to sublicense, under the Mitsui License Agreement Patent

Rights, provided, however, that as a condition of the grants under the Mitsui License

Agreement Patent Rights, BP may agree to abide by the terms and conditions of the

Patent License Agreement between Dow and Mitsui Chemicals, Inc. signed July 29,

1999, including any amendments or supplemental agreements; and

4. a paid up, worldwide, irrevocable, nonexclusive license, providing

immunity from suit and right to sublicense, under the Asahi Agreement Patent Rights.

AH. “EO” means ethylene oxide.

AI. “Ethanolamines” means each and every homologue produced by the reaction of

ammonia and ethylene oxide, including monoethanolamine, diethanolamine, triethanolamine,

and higher molecular weight amines.

AJ. “Ethyleneamines” means each and every homologue containing nitrogen,

hydrogen and carbon, formulated so that each nitrogen atom is separated from every other

nitrogen atom by two carbon atoms. These compounds are produced by the chemical

reaction of ammonia with ethylene dichloride or by the reductive amination method. 

Ethyleneamines include, without limitation, AEEA.

AK. “Ethylene Polymers” or PE mean homopolymers of ethylene and copolymers

and interpolymers composed of at least thirty mol percent (30 mol %) ethylene, with the

remaining monomers consisting of one or more monounsaturated, acyclic, alpha-olefin

hydrocarbon comonomers, but including no more than twenty-five mol percent (25 mol %)

propylene.
-16-

AL. “Foreign Counterpart Patents” means (i) a patent or patent application that has a

common claim of priority with or claims priority from another specific patent, and 

(ii) commonly owned applications and patents filed in other countries claiming substantially

the same subject matter as the specific patent but without a claim of priority to any prior

application in another country.

AM. “Freeport Site” means Dow’s manufacturing facilities in Freeport, Texas.

AN. “Gas Phase PE Process” means a low-pressure polymerization process using any

Catalyst Technology which results in Ethylene Polymer formation in the form of solid

polymer particles suspended in a medium that is substantially gaseous under the conditions of

the polymerization.

AO. “Gas Phase Metallocene Licenses & Immunities” means a paid up, world-wide,

irrevocable, non-exclusive patent license, providing immunity from suit, for use with the Dow

Gas Phase Metallocene PE Assets or other BP-owned Metallocene Technology,

1. to develop, make or have made, use, license and sell Metallocene

Technology and Metallocene Catalyst Systems, or any component thereof, for use in a

Gas Phase PE Process under the Dow Metallocene Background Patents;

2. to make, use, sell, offer for sale and import Ethylene Polymers made by

polymerization in a Gas Phase PE Process under the Dow Metallocene Background

Patents, provided, however, that Dow Metallocene Background Patents do not include

Patent claims to chemical modifications of Ethylene Polymers; 

3. to sublicense the foregoing rights to any person, without notice to or

approval by Respondents; and

4. to develop or have developed, by practice of the Dow Metallocene

Background Patents, technology for making Ethylene Polymers made by

polymerization in a Gas Phase PE Process, including but not limited to the right to

develop or have developed Combined Technology and Dow Gas Phase PE Patents.

AP. “Gas Spec MDEA” means methyldiethanolamine sold for use in treating gas

streams to remove impurities, whether sold alone or blended with other chemicals.

AQ. “Huntsman Agreement” means the Amended and Restated Asset Purchase

Agreement between Huntsman and Dow entered into as of August 1, 2000, calling for the

sale of the Dow Global Ethyleneamines Business to Huntsman, including:

1. the Payment and Performance Guaranty Agreement;

2. the Amended and Restated Site Service Agreement;
-17-

3. the Amended and Restated Computerized Process Control Software

Agreement;

4. the Amended and Restated Environmental Systems Separation and

Services Agreement;

5. the Labor Services Agreement;

6. the Amended and Restated Freeport Ground Lease and License

Agreement;

7. the Contract Manufacturing Agreement;

8. the Know-How License Agreement;

9. the Supply Agreement;

10. the Raw Material Supply Agreement;

11. the Exchange Agreement;

12. the Reductive Amination Technology License Agreement; and 

13. the Novation Agreement.

AR. “Ineos Agreement” means the Asset Purchase Agreement between Ineos and

Dow entered into on or about July 31, 2000, as amended, calling for the sale of the Dow

Global Ethanolamines Business and the Dow Gas Spec MDEA Business to Ineos including:

1. Payment and Performance Guaranty;

2. the Site Service Agreement;

3. the Plaquemine Servitude Agreement;

4. the Operating Services Agreement;

5. the EO Supply Agreement;

6. the Computerized Process Control Software Agreement;

7. the GAS/SPEC Supply Agreement; and

8. the Consent Agreement, Dow and Dow Diamond.
-18-

AS. “Introduced Dow Metallocene Catalyst Systems” means Dow Metallocene

Catalyst Systems provided by Dow to BP for evaluation in the BP-Dow Joint Development

Program or provided by Dow to Chevron or BP for evaluation in accordance with the BPDow-Chevron Agreement.

AT. “Know-How” means all technological, technical, scientific, chemical, biological,

regulatory and marketing materials and information used to develop, make, use, sell, offer for

sale, import or seek regulatory approval in any country to market, make, use, sell, offer for

sale, or import a product, including without limitation all: formulae; trade secrets; inventions;

techniques; intellectual property whether or not patentable; discoveries; compounds; and

compositions of matter; research data; technical data and information; testing data; regulatory

files; statistical analyses; analytical data; specifications; designs; drawings; processes; testing

and quality assurance/quality control data; manufacturing data and information; regulatory

submissions; and any other information and experience, whether recorded on paper or

electronically.

AU. “MDEA” means methyldiethanolamine.

AV. “Metallocene Catalyst” means an organometallic compound containing at least

one Cyclic Moiety wherein three or more adjacent atoms comprising a portion of a ring of the

Cyclic Moiety are p-bonded to a metal atom and the three or more adjacent atoms are within

normal bonding distance of the metal atom.

AW. “Metallocene Catalyst System” means any Metallocene Catalyst or any

combination of any Metallocene Catalyst and any activator, scavenging agent or PE Catalyst

Support. 

AX. “Metallocene Catalyst Technology” means all Patents and Know-How pertaining

to the manufacture, use or sale of Metallocene Catalyst Systems useful in the manufacture of

Ethylene Polymers, including, but not limited to, recipes, manufacturing procedures, synthesis

techniques and supports. 

AY. “Metallocene Process Technology” means all Patents and Know-How pertaining

to the manufacture of Ethylene Polymers (specifically excluding solution and slurry process

technology) including, but not limited to, feed specifications; operating conditions; control

procedures; start-up, shutdown, and transitioning procedures; and any equipment

requirements applicable where a Metallocene Catalyst is used.

AZ. “Metallocene Product Technology” means all Patents and Know-How pertaining

to Ethylene Polymers, including, but not limited to, structure-property relationships, use of

product additives, processing (such as extrusion, molding and film fabrication techniques) to

convert Ethylene Polymers into end use form, and end-use applications. 

BA. “Metallocene Technology” means Metallocene Catalyst Technology, Metallocene

Process Technology and Metallocene Product Technology. 
-19-

BB. “Mitsui License Agreement Patent Rights” means all rights under all Patent

claims and Patents of Mitsui conveyed to Dow, or any rights that would have been available

to a Licensing Entity to be established by Dow and BP, for sublicensing of Ethylene Polymers

made with Metallocene Catalyst Systems in a Gas Phase PE Process pursuant to the Patent

License Agreement between Dow and Mitsui Chemicals, Inc., signed July 29, 1999, including

any amendments or supplemental agreements.

BC. “MonoCP Metallocene Catalyst” means Metallocene Catalyst containing in its

preactivated state one, but not more than one, Cyclic Moiety wherein three or more adjacent

atoms comprising a portion of a ring of the Cyclic Moiety are p-bonded to the metal atom

and the three or more adjacent atoms are within normal bonding distance of the metal atom

and wherein the Cyclic Moiety can be either unbridged or bridged to the metal atom through

at least one substituent; provided however, that a MonoCP Metallocene Catalyst may contain

in its preactivated state other Cyclic Moieties which do not meet the requirement of having

three or more adjacent atoms comprising a portion of a ring of the other Cyclic Moiety pbonded to the same metal atom (i.e., the same specific atom in the complex, as opposed to a

second metal atom, for example, in a dimer structure) as the first Cyclic Moiety and the three

or more adjacent atoms are within normal bonding distance of the metal atom.

BD. “MPE Resin” means homopolymers of ethylene and copolymers of at least

seventy-five percent (75%) by weight ethylene with a remaining amount of monomer

consisting of one or more monounsaturated, acyclic, alpha-olefin hydrocarbon comonomers,

said polymers having a Density of 0.910 g/cc or more or such lower Density as in the future

may be brought within the scope of the field of the Univation venture, as expanded from time

to time, and are manufactured with one or more Metallocene Catalyst Systems.

BE. “New Ethanolamines Divestiture Agreement” means all agreements for the sale

of the Dow Global Ethanolamines Business other than the Ineos Agreement and includes any

divestiture agreement entered into by a trustee pursuant to Paragraph X of this Order.

BF. “New Ethyleneamines Divestiture Agreement” means all agreements for the sale

of the Dow Global Ethyleneamines Business other than the Huntsman Agreement and

includes any divestiture agreement entered into by a trustee pursuant to Paragraph X of this

Order.

BG. “New Gas Spec MDEA Divestiture Agreement” means all agreements for the

sale of the Dow Gas Spec MDEA Business other than the Ineos Agreement and includes any

divestiture agreement entered into by a trustee pursuant to Paragraph X of this Order.

BH. “Non-Public Confidential Information” means any non-public information either

relating to the Dow Global Ethyleneamines Business, the Dow Global Ethanolamines

Business, or the Dow Gas Spec MDEA Business prior to their divestiture pursuant to

Paragraphs II, III, IV, or X of this Order and/or relating to the operation of the Dow Global

Ethyleneamines Business, the Dow Global Ethanolamines Business, or the Dow Gas Spec
-20-

MDEA Business by any Acquirer after such business is divested pursuant to Paragraphs II,

III, IV, or X of this Order. Non-Public Confidential Information shall not include: 

(1) information that is public knowledge at the date of receipt by Dow, or that prior to Dow’s

use of such information, becomes public knowledge through no act or failure to act on the

part of Dow; (2) information which Respondents develop independently and without using,

directly or indirectly, any information obtained from any current or former agents or

employees of Dow whose duties related directly to the Dow Global Ethyleneamines Business,

the Dow Global Ethanolamines Business, or the Dow Gas Spec MDEA Business; (3)

information which subsequently becomes known to Respondents from a third party not in

breach of a confidentiality obligation; (4) information that has uses or applications in

Respondents’ other businesses and is not competitively significant to the Dow Global

Ethyleneamines Business, the Dow Global Ethanolamines Business, or the Dow Gas Spec

MDEA Business; and (5) information that is conveyed or licensed to Respondents under the

Huntsman Agreement, the Ineos Agreement, any New Ethyleneamines Divestiture

Agreement, any New Ethanolamines Divestiture Agreement, or any New Gas Spec MDEA

Divestiture Agreement.

BI. “Patents” mean all patents, patents pending, patent applications and statutory

invention registrations, including reissues, divisions, continuations, continuations-in-part,

supplementary protection certificates, extensions and reexaminations thereof, all inventions,

claimed or which may later be claimed therein, all rights therein provided by international

treaties and conventions, and all rights to obtain and file for patents and registrations thereto

in the world.

BJ. “PE Catalyst” means supported and unsupported catalyst components for use in

production of Ethylene Polymers.

BK. “PE Catalyst Support” means preformed support components or support carriers

for use with PE Catalysts.

BL. “PE Catalyst Systems” means combinations of PE Catalyst and PE Catalyst

Support or activator component designed, developed, used, or suitable for use for the

production of Ethylene Polymers.

BM. “PE Technology” means technology relating to Ethylene Polymers, to the

production and use thereof, and to the preparation and use of Catalyst Systems.

BN. “Plaquemine Site” means Dow’s manufacturing facilities in Plaquemine,

Louisiana.

BO. “Respondents’ Ethanolamines Business” means the worldwide ethanolamines

business conducted by Respondents after the Dow Global Ethanolamines Business is divested

pursuant to Paragraph III or Paragraph X of this Order, including all employees, officers,

directors, and agents of Respondents whose duties relate to Respondents’ Ethanolamines

Business.
-21-

BP. “Respondents’ Ethyleneamines Business” means the worldwide ethyleneamines

business conducted by Respondents after the Dow Global Ethyleneamines Business is

divested pursuant to Paragraph II or Paragraph X of this Order, including all employees,

officers, directors, and agents of Respondents whose duties relate to Respondents’

Ethyleneamines Business.

BQ. “Respondents’ MDEA Business” means the worldwide MDEA business

conducted by Respondents after the Dow Gas Spec MDEA Business is divested pursuant to

Paragraph IV or Paragraph X of this Order, including all employees, officers, directors, and

agents of Respondents whose duties relate to Respondents’ MDEA Business.

BR. “Respondents’ Support Contact” means Respondents’ designee under Paragraph

V of this Order.

BS. “Respondents’ Support Personnel” means Respondents’ employees who are: (i)

responsible for providing services and inputs to the Dow Global Ethyleneamines Business,

the Dow Global Ethanolamines Business, or the Dow Gas Spec MDEA Business after such

businesses are divested pursuant to paragraphs II, III, IV, or X of this Order, and (ii) exposed

to competitively sensitive information relating to the Dow Global Ethyleneamines Business,

the Dow Global Ethanolamines Business, or the Dow Gas Spec MDEA Business, including,

but not limited to information about cost, price, quantity, customers, product specifications,

terms of sale, production planning/forecasting and communications with the Acquirers of

such businesses.

BT. “Supplemental Univation Patent Rights” means the following rights:

1. a royalty free, nonexclusive, irrevocable, worldwide (except for Korea and

Japan, which restriction expires on December 31, 2004) license within the Univation

Field, with the right to sublicense, under U.S. Patent Nos. 5,405,922 and 5,462,999

(including all U.S. divisionals, continuations, continuations-in-part, reissues or

reexaminations that are pending on or after January 1, 2001), European Patent No.

89691 and any Foreign Counterpart Patents to make, have made, offer for sale, sell,

import, or use MonoCP Metallocene Catalysts; provided, however, that no rights are

granted under U.S. Patent Nos. 5,405,922 and 5,462,999 and European Patent No.

89691 and their Foreign Counterpart patents to make, have made, offer for sale, sell,

import or use BisCP Metallocene Catalysts and no rights are granted for any mixed PE

Catalyst Systems that contain BisCP Metallocene Catalysts; 

2. a royalty free, nonexclusive, irrevocable, worldwide license within the

Univation Field to practice under any claim in any Exxon or Univation Patent that

would be licensed to Dow or Dow Affiliates under the Univation Settlement

Agreement but for the inclusion in the claim of “Catalyst Support Technology,” as

“Dow Affiliates” and “Catalyst Support Technology” are used in the Univation

Settlement Agreement;
-22-

3. a royalty free, nonexclusive, irrevocable, worldwide license within the

Univation Field, with a right to sublicense to resin producers of MPE Resins made with

MonoCP Metallocene Catalysts licensed by BP to use MonoCP Metallocene Catalysts

(i) under every patent claim that Univation was, is or will be empowered to grant at any

time from December 4, 2000 until the date of the Acquisition, and 

(ii) under every patent claim that Univation would have been empowered to grant if

such patent claim existed as of the date of the Acquisition but only for any patent claim

that is included in a patent application filed on or before June 15, 2001, or that claims

priority in whole or part from a patent application filed on or before June 15, 2001, for

each such patent claim covering either:

(a) a polymer composition or article where a MPE Resin satisfies all the

limitations of one or more claimed components of the composition or article

recited in the patent claim;

(b) an end use for a MPE Resin; or

(c) an application for a MPE Resin;

where such patent claim is in a patent or patent application (including reissues or

reexaminations of such patents) owned or controlled by Univation (which includes

Union Carbide and Exxon Mobil patents). Any use rights granted by BP pursuant to

this subsection to a resin producer shall be extendible by such resin producer to its

customers for use with these MPE Resins. The rights to be granted to BP pursuant to

this subsection shall only apply where each of the following conditions are met: (i) one

or more MonoCP Metallocene Catalysts (but in no event any BisCP Metallocene

Catalysts) are used in a Gas Phase Process to make those MPE Resins present in the

polymer composition, article, end use or application; and (ii) the presence of such MPE

Resins made with MonoCP Metallocene Catalyst or MonoCP Metallocene Catalysts in

such polymer, composition, end use, article or application satisfies at least one

limitation in the patent claim directed to a polymer composition or article or a material

element of the patent claims to an end use or application. Nothing in this subsection

shall be construed to grant rights or a license to a composition, end use, article or

application where MPE Resins are present merely to present a defense to patent

infringement. The rights to be granted in accordance with this subsection are limited to

patent claims expressly requiring Ethylene Polymers in the field of the Univation

venture (as provided in the Univation Reorganization Agreement), polymer

compositions or end uses, regardless of whether or not the patent claim recites a

limitation to Metallocene Catalysts. No additional rights are granted to or to be implied

in any patented processes, operations or equipment for producing an Ethylene Polymer,

or for components of catalysts; and

4. a royalty free, nonexclusive, irrevocable, worldwide license with a right to

sublicense, under Univation LCB Patents to make, have made, offer for sale, sell,

import and use MPE Resins within the Univation Field made with MonoCP
-23-

Metallocene Catalysts; provided, however, that no rights are granted to make, have

made, offer for sale, sell, import or use MPE Resins made using BisCP Metallocene

Catalysts and no rights are granted for any mixed PE Catalyst Systems that contain

BisCP Metallocene Catalysts.

BU. “Supply Contract” means a contract by which Dow sells, swaps, toll

manufactures, converts, transfers, or otherwise provides an Acquirer with inputs, products,

or other materials at the Freeport Site or the Plaquemine Site in connection with the Dow

Global Ethyleneamines Business, the Dow Global Ethanolamines Business, or the Dow Gas

Spec MDEA Business.

BV. “Support Personnel for the Dow Gas Phase Metallocene PE Assets” means

employees of Dow who (1)are responsible for providing services to BP under a research

service agreement negotiated pursuant to the BP Divestiture and License Agreement and 

(2) are exposed to competitively sensitive information relating to the Dow Gas Phase

Metallocene PE Assets.

BW. “Terneuzen Plant” means Dow’s existing Ethyleneamines plant, including any

terminals Dow uses as storage facilities or for raw materials, in Terneuzen, The Netherlands.

BX. “Unipol Process Technology for Ethylene Polymers” and “Unipol Gas Phase PE

Process” mean all Patents and Know-How owned or controlled by Union Carbide within the

field of the Univation venture (as provided in the Univation Reorganization Agreement) in a

Gas-Phase PE Process pertaining to the production of Ethylene Polymers.

BY. “Unipol Gas Phase PE Technology Business” means: (i) the Union Carbide

business for the licensing and sale of Unipol Process Technology for Ethylene Polymers

within the field of the Univation venture (as provided in the Univation Reorganization

Agreement), including the right to sublicense others, and all administrative, management, and

research and development responsibilities relating thereto; provided, however, that to the

extent agreed by Respondents and Exxon Mobil in the Univation Reorganization Agreement,

“Unipol Gas Phase PE Process Technology Business” does not include the right to receive

lump sum, running royalties, fees, or other licensing income under license and technology

purchase agreements signed before August 8, 1996, and (ii) the Union Carbide business for

the sale to third parties of PE Catalyst Systems for Ethylene Polymers within the field of the

Univation venture (as provided in the Univation Reorganization Agreement) by Union

Carbide that is not part of Univation as of the date on which the Commission accepts for

public comment the Agreement Containing Consent Order, including the exclusive right to

sell and sub-license such PE Catalyst Systems to third parties, and all administrative,

management, and research and development responsibilities for such PE Catalyst Systems;

provided, however, that to the extent agreed by Respondents and Exxon Mobil in the

Univation Reorganization Agreement, the “Unipol Gas Phase PE Technology Business” does

not include (a) the manufacturing assets owned by Union Carbide that produce PE Catalysts

and PE Catalyst Systems; or (b) the right to receive lump sum, running royalty, fees,

purchase price, lease price, or other income for the sale of conventional PE Catalyst Systems
-24-

to Univation pursuant to the Univation Reorganization Agreement or to licensees who will

continue to pay lump sum, running royalty fees, or other licensing income to Union Carbide

rather than Univation under license and technology purchase agreements signed before

August 8, 1996.

BZ. “Univation Field” means, for purposes of this Order, (1) development,

manufacture, marketing and sale of Metallocene Catalyst Systems to make MPE Resins in a

Gas Phase PE Process, and (2) development of Metallocene Technology and technology

pertaining to Metallocene Catalyst Systems and licensing thereof to any person for

manufacture of MPE Resins in a Gas Phase PE Process for the sale and use by such person,

but the Univation Field specifically excludes the development and licensing of technology

relating to: (i) power transfer fluids, lubricants and/or lubricant additive systems (except for

use as a processing aid and/or additive in polyolefins); (ii) fuel additive systems; and 

(iii) additive, compounding or other post-reactor technology related to wire and cable

applications.

CA. “Univation LCB Patents” means the independent claims and claims dependent

thereon of all patents (which for this definition shall include utility model and other forms of

petty patents) and patent applications throughout the world owned or controlled by

Univation, where such patents and applications are based in whole or part upon patent

applications filed prior to June 15, 2001, including:

(i) reissues or reexaminations of such patents, and

(ii) patents issuing from applications claiming benefit of priority in whole or in

part from applications for these patents regardless of when filed;

but only including the independent and dependent claims of such patents, patent applications,

reexamined patents and reissued patents satisfying the additional requirement of the

independent claim being limited (either expressly or inherently) to require a polymer which

has long chain branches (“LCB”) greater than or equal to 0.01 per 1000 carbon atoms (but

does not include LCBs formed by a free radical polymerization process). Notwithstanding the

foregoing, where there is a dependent claim that is expressly or inherently limited to require

LCB polymers as specified above in this definition, but the claim(s) antecedent to such

dependent claim are not so limited, the defined term “Univation LCB Patents” shall include

such dependent claim(s) if the antecedent claims are determined to be invalid or not

patentable or unenforceable upon a final, non-appealable, non-reviewable order. Subject to

the next sentence, the defined term “Univation LCB Patents” includes the rights under any

patents and patent applications meeting the other criteria of this definition owned or

controlled by Univation as of June 15, 1999 or within two years of June 15, 1999, regardless

as to whether Univation subsequently assigns or transfers such patents or patent applications

to any third party. The defined term “Univation LCB Patents” does not include patents

which Univation did not have the right to grant to BP without the agreement of or

accounting to a third party (not including Exxon Mobil or Union Carbide) as of June 15,

1999, and does not obtain the right to grant to BP within two years of June 15, 1999. To the
-25-

extent Univation must obtain the agreement of or account to a third party, Univation shall use

good faith efforts (Univation need not offer value to the third party unless BP reaches

agreement with Univation on reimbursement) to obtain the relevant rights for BP from the

third party.

CB. “Univation Reorganization Agreement” means the Univation Reorganization

Agreement dated December 4, 2000, by and among Exxon Mobil, Dow, Union Carbide, and

Univation, as amended. 

CC. “Univation Settlement Agreement” means the Settlement Agreement between

Dow and Univation dated June 15, 1999, as amended.

CD. “Univation Settlement Patent Rights” means all rights under all patent claims of

Univation conveyed to Dow to make MPE Resins in a Gas-Phase PE Process, and to use,

and sell such MPE Resins, and right to sub-license, pursuant to the Univation Settlement

Agreement, as amended by the Univation Reorganization Agreement to provide sub-licensing

rights to BP. 

II.

IT IS FURTHER ORDERED that: 

A. Dow shall divest, absolutely and in good faith, at no minimum price, the Dow

Global Ethyleneamines Business as an ongoing business.

B. The divestiture shall be made to Huntsman no later than ten (10) days after the

date on which this Order becomes final, in accordance with the Huntsman Agreement (which

agreement shall not vary or contradict the terms of this Order or the Order to Maintain

Assets). Provided, however, that if, at the time the Commission determines to make the

Order final, the Commission notifies Respondents that Huntsman is not an acceptable

acquirer, or the Huntsman Agreement is not an acceptable manner of divestiture, then Dow

shall immediately rescind the transaction with Huntsman and shall divest the Dow Global

Ethyleneamines Business, within six (6) months after the date on which the Order becomes

final, to an Acquirer that receives the prior approval of the Commission, and only in a manner

that receives the prior approval of the Commission.

C. The purpose of the divestiture of the Dow Global Ethyleneamines Business is to

ensure the continued operation of the Dow Global Ethyleneamines Business in the same

businesses in which the assets and businesses of the Dow Global Ethyleneamines Business are

engaged at the time of the Acquisition, and to remedy the lessening of competition resulting

from the Acquisition as alleged in the Commission's complaint.

D. Pending divestiture of the Dow Global Ethyleneamines Business, Dow shall take

such actions as are necessary to maintain the viability and marketability of the Dow Global 
-26-

Ethyleneamines Business and to prevent the destruction, removal, wasting, deterioration, or

impairment of any of the Dow Global Ethyleneamines Business, except for ordinary wear and

tear.

E. Dow shall comply with all terms of the Order to Maintain Assets, attached to this

Order and made a part hereof as Appendix A. The Order to Maintain Assets shall continue in

effect until such time as Dow has divested each of the Businesses and Assets to be Divested

as required by this Order.

F. Respondents shall use Non-Public Confidential Information relating to the Dow

Global Ethyleneamines Business only (i) in the performance of Respondents’ obligations

under this Order or the Huntsman Agreement or any New Ethyleneamines Divestiture

Agreement; or (ii) for the purpose of complying with Respondents’ financial, tax reporting,

legal, health, safety, and environmental obligations.

G. Respondents shall not, absent the prior written consent of an Acquirer of the

Dow Global Ethyleneamines Business, provide, disclose or otherwise make available any

Non-Public Confidential Information relating to the Dow Global Ethyleneamines Business to

persons who are not Respondents’ Support Personnel for the Dow Global Ethyleneamines

Business, except for the purpose of complying with Respondents’ financial, tax reporting,

legal, health, safety and environmental obligations.

H. Respondents shall comply with the terms of the Huntsman Agreement (if

Respondents divest pursuant to the Huntsman Agreement) or the New Ethyleneamines

Divestiture Agreement (if Respondents, or a trustee, divest pursuant to Paragraph II or

Paragraph X of this Order to an Acquirer other than Huntsman), which terms are

incorporated by reference into this Order, and made a part hereof. Any failure by

Respondents to comply with the Huntsman Agreement or the New Ethyleneamines

Divestiture Agreement shall constitute a failure to comply with this Order.

III.

IT IS FURTHER ORDERED that: 

A. Dow shall divest, absolutely and in good faith, at no minimum price, the Dow

Global Ethanolamines Business as an ongoing business.

B. The divestiture shall be made to Ineos no later than ten (10) days after the date

on which this Order becomes final, in accordance with the Ineos Agreement (which

agreement shall not vary or contradict the terms of this Order or the Order to Maintain

Assets). Provided, however, that if, at the time the Commission determines to make the

Order final, the Commission notifies Respondents that Ineos is not an acceptable acquirer, or
-27-

the Ineos Agreement is not an acceptable manner of divestiture, then Dow shall immediately

rescind the transaction with Ineos and shall divest the Dow Global Ethanolamines Business,

within six (6) months after the date on which the Order becomes final, to an acquirer that

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

approval of the Commission.

C. The purpose of the divestiture of the Dow Global Ethanolamines Business is to

ensure the continued operation of the Dow Global Ethanolamines Business in the same

businesses in which the assets and businesses of the Dow Global Ethanolamines Business are

engaged at the time of the Acquisition, and to remedy the lessening of competition resulting

from the Acquisition as alleged in the Commission's complaint.

D. Pending divestiture of the Dow Global Ethanolamines Business, Dow shall take

such actions as are necessary to maintain the viability and marketability of the Dow Global

Ethanolamines Business and to prevent the destruction, removal, wasting, deterioration, or

impairment of any of the Dow Global Ethanolamines Business, except for ordinary wear and

tear.

E. Dow shall comply with all terms of the Order to Maintain Assets, attached to this

Order and made a part hereof as Appendix A. The Order to Maintain Assets shall continue in

effect until such time as Dow has divested each of the Businesses and Assets to be Divested

as required by this Order.

F. Respondents shall use Non-Public Confidential Information relating to the Dow

Global Ethanolamines Business only (i) in the performance of Respondents’ obligations under

this Order or the Ineos Agreement or any New Ethanolamines Divestiture Agreement; or (ii)

for the purpose of complying with Respondents’ financial, tax reporting, legal, health, safety,

and environmental obligations.

G. Respondents shall not, absent the prior written consent of an Acquirer of the

Dow Global Ethanolamines Business provide, disclose or otherwise make available any NonPublic Confidential Information relating to the Dow Global Ethanolamines Business to

persons who are not Respondents’ Support Personnel for the Dow Global Ethanolamines

Business, except for the purpose of complying with Respondents’ financial, tax reporting,

legal, health, safety and environmental obligations.

H. Respondents shall comply with the terms of the Ineos Agreement (if Respondents

divest pursuant to the Ineos Agreement) or the New Ethanolamines Divestiture Agreement

(if Respondents, or a trustee, divest pursuant to Paragraph III or Paragraph X of this Order

to an Acquirer other than Ineos), which terms are incorporated by reference into this Order,

and made a part hereof. Any failure by Respondents to comply with the Ineos Agreement or

the New Ethanolamines Divestiture Agreement shall constitute a failure to comply with this

Order.
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IV.

IT IS FURTHER ORDERED that: 

A. Dow shall divest, absolutely and in good faith, at no minimum price, the Dow

Gas Spec MDEA Business as an ongoing business.

B. The divestiture shall be made to Ineos no later than ten (10) days after the date

on which this Order becomes final, in accordance with the Ineos Agreement (which

agreement shall not vary or contradict the terms of this Order or the Order to Maintain

Assets). Provided, however, that if, at the time the Commission determines to make the

Order final, the Commission notifies Respondents that Ineos is not an acceptable acquirer, or

the Ineos Agreement is not an acceptable manner of divestiture, then Dow shall immediately

rescind the transaction with Ineos and shall divest the Dow Gas Spec MDEA Business,

within six (6) months after the date on which the Order becomes final, to an acquirer that

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

approval of the Commission.

C. The purpose of the divestiture of the Dow Gas Spec MDEA Business is to

ensure the continued operation of the Dow Gas Spec MDEA Business, and to remedy the

lessening of competition resulting from the Acquisition as alleged in the Commission's

complaint.

D. Pending divestiture of the Dow Gas Spec MDEA Business, Dow shall take such

actions as are necessary to maintain the viability and marketability of the Dow Gas Spec

MDEA Business and to prevent the destruction, removal, wasting, deterioration, or

impairment of any of the Dow Gas Spec MDEA Business except for ordinary wear and tear.

E. Respondents shall use Non-Public Confidential Information relating to the Dow

Gas Spec MDEA Business only (i) in the performance of Respondents’ obligations under this

Order or the Ineos Agreement or any New Gas Spec MDEA Divestiture Agreement; or (ii)

for the purpose of complying with Respondents’ financial, tax reporting, health, safety, and

environmental obligations.

F. Respondents shall not, absent the prior written consent of an Acquirer of the

Dow Gas Spec MDEA Business, provide, disclose or otherwise make available any NonPublic Confidential Information relating to the Dow Gas Spec MDEA Business to persons

who are not Respondents’ Support Personnel for the Dow Gas Spec MDEA Business, except

for the purpose of complying with Respondents’ financial, tax reporting, legal, health, safety

and environmental obligations.

G. Dow shall comply with all terms of the Order to Maintain Assets, attached to this
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Order and made a part hereof as Appendix A. The Order to Maintain Assets shall continue in

effect until such time as Dow has divested each of the Businesses and Assets to be Divested

as required by this Order.

H. Respondents shall comply with the terms of the Ineos Agreement (if Respondents

divest pursuant to the Ineos Agreement) or the New Gas Spec MDEA Divestiture Agreement

(if Respondents, or a trustee, divest pursuant to Paragraph IV or Paragraph X of this Order

to an Acquirer other than Ineos), which terms are incorporated by reference into this Order,

and made a part hereof. Any failure by Respondents to comply with the Ineos Agreement or

the New Gas Spec MDEA Divestiture Agreement shall constitute a failure to comply with

this Order.

 V.

IT IS FURTHER ORDERED that within thirty (30) days from the date on which the

Respondents sign the Consent Agreement:

A. Respondents shall take steps to ensure that all of Respondents’ Support

Personnel comply with Paragraphs II, III, and IV of this Order. Such steps shall include,

without limitation:

1. distribution of this Order to Respondents’ Support Personnel, and to the

agents and employees of Respondents’ Ethyleneamines Business, Respondents’

Ethanolamines Business, and Respondents’ MDEA Business;

2. development of procedures, policies, and practices relating to the receipt,

identification, custody, use, and disposal of any Non-Public Confidential Information;

3. dissemination of such procedures, policies, and practices;

4. periodic in-person training of initial and future Respondents’ Support

Personnel;

5. periodic in-person training of agents and employees of Respondents’

Ethyleneamines Business, Respondents’ Ethanolamines Business, and Respondents’

MDEA Business;

6. development of new procedures, or incorporation of procedures into

existing measures, to be used in the event Respondents’ Support Personnel fail to

comply with Respondents’ obligations under this Order, such procedures sufficient to

create reasonable incentives for such personnel to perform Respondents’ obligations in

good faith and to deter such personnel from failing to perform Respondents’

obligations; and
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7. development of new procedures, or incorporation of procedures into

existing measures, to deter agents and employees of Respondents’ Ethyleneamines

Business, Respondents’ Ethanolamines Business, and Respondents’ MDEA Business

from receiving, retaining, or using any Non-Public Confidential Information.

B. Respondents shall designate a person, whose duties both at the time of such

person’s initial designation and for the duration of this Order, do not include responsibility for

or participation in Respondents’ Ethyleneamines Business, Respondents’ Ethanolamines

Business, and Respondents’ MDEA Business, to serve as Respondents’ Support Contact. 

The duties of Respondents’ Support Contact shall include:

1. monitoring Respondents’ performance of the Huntsman Agreement, the

Ineos Agreement, any New Ethyleneamines Divestiture Agreement, any New

Ethanolamines Divestiture Agreement, or any New Gas Spec MDEA Divestiture

Agreement;

2. maintaining a complete and accurate master list of the names of all of

Respondents’ Support Personnel;

3. providing such assistance as requested by the Monitor Trustee to obtain

information and documents, or arrange interviews with Respondents’ Support

Personnel, relating to Respondents’ performance of its obligations under this Order or

the Huntsman Agreement, Ineos Agreement, any New Ethyleneamines Divestiture

Agreement, any New Ethanolamines Divestiture Agreement, or any New Gas Spec

MDEA Divestiture Agreement; and

4. preparing or supervising the preparation of such reports or data

compilations relating to Respondents’ performance of its obligations under this Order

or the Huntsman Agreement, Ineos Agreement, any New Ethyleneamines Divestiture

Agreement, any New Ethanolamines Divestiture Agreement, or any New Gas Spec

MDEA Divestiture Agreement as requested by the Monitor Trustee.

VI.

IT IS FURTHER ORDERED that: 

A. Respondents shall divest the Dow Gas Phase Metallocene PE Assets, to BP,

absolutely and in good faith and at no minimum price, in accordance with the BP Divestiture

and License Agreement (which agreement shall not vary or contradict the terms of this

Order).

B. Respondents shall:

 1. Grant to BP the Enhanced Gas Phase Metallocene Licenses &
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Immunities, in accordance with the BP Divestiture and License Agreement

(which agreement shall not vary or contradict the terms of this Order), and

2. With respect to each Dow Metallocene Background Patent Requiring

Third Party Consent, (a) use best efforts to obtain any third party consent needed

to grant to BP a license and immunity to such Dow Metallocene Background

Patent Requiring Third Party Consent at least as broad as that granted to Gas

Phase Metallocene Licenses & Immunities that do not require such consent; and

(b) promptly (i) identify to BP each party whose consent is required; (ii) disclose

to BP all rights and obligations of Dow and the third party with respect to the

Patent; (iii) with respect to BP and its licensees, waive its claims of

confidentiality or secrecy and all of its contract rights (exclusivity,

noncompetition or other) limiting BP’s use of the Patent; and (iv) cooperate and

assist BP in securing the license and immunity; provided, however, that Dow may

limit any waiver with respect to disclosure of confidential information to

information relevant to Metallocene Technology for production of Ethylene

Polymers through a Gas Phase PE Process, and provided further, that Dow may

pass on to BP the obligation to pay a royalty or fee to the third party.

C. The divestiture of the Dow Gas Phase Metallocene PE Assets, and the grant of

the Enhanced Gas Phase Metallocene Licenses & Immunities, shall be made to BP within

three (3) days after the Commission accepts the Order for public comment, as to all

intellectual property rights, and within thirty (30) days after the Commission accepts the

Order for public comment, as to all tangible assets, in accordance with the BP Divestiture and

License Agreement (which agreement shall not vary or contradict the terms of this Order or

the Order to Maintain Assets), provided, however, that as consideration for the grant of the

Enhanced Gas Phase Metallocene Licenses & Immunities, BP may agree to grant to

Univation certain licenses with sublicensing rights in accordance with the BP Divestiture and

License Agreement and the Univation Reorganization Agreement, including without

limitation licenses with sublicensing rights under Dow’s Metallocene Background Patents and

Dow’s Gas Phase PE Patents.

D. Respondents shall use BP Confidential Information relating to the Dow Gas

Phase Metallocene PE Assets only (a) in the performance of Respondents’ obligations under

this Order or the BP Divestiture and License Agreement, (b) for the purpose of complying

with Respondents’ financial, tax reporting, legal, health, safety, and environmental

obligations, or (c) as permitted by license or other written agreement with, or written consent

from, BP. Respondents shall not, absent the prior written consent of BP, provide, disclose or

otherwise make available any BP Confidential Information to persons who are not Support

Personnel for the Dow Gas Phase Metallocene PE Assets, except as permitted in the

preceding sentence.

E. Respondents shall comply with the terms of the BP Divestiture and License

Agreement, which terms are incorporated by reference into this Order, and made a part
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hereof. Any failure by Respondents to comply with the BP Divestiture and License

Agreement shall constitute a failure to comply with this Order. 

F. Dow shall, to the extent requested by BP, upon the divestiture of the Dow Gas

Phase Metallocene PE Assets: (i) disclose and provide to BP on a nonexclusive basis, all

research materials, technical information, management information systems, software,

inventions, specifications, designs, drawings, processes and quality control data of Dow

related to Metallocene Technology for use in a Gas-Phase PE Process or to Dow Gas Phase

PE Technology to the extent that any of the foregoing are recorded in research notebooks,

written memoranda, or electronic form as of the date the Commission accepts this Order for

public comment, (ii) disclose and provide to BP on a nonexclusive basis, all documents,

books, records, and files of Dow related to Metallocene Technology for use in a Gas-Phase

PE Process or to Dow Gas Phase PE Technology to the extent that any of the foregoing are

recorded in research notebooks, written memoranda, or electronic form as of the date the

Commission accepts this Order for public comment, except the Univation Settlement

Agreement and information provided to Dow by or on behalf of Univation, Exxon Mobil, or

Union Carbide either prior to or after the effective date of such Univation Settlement

Agreement; and (iii) make available to BP on a nonexclusive basis rights under contracts

entered into in the ordinary course of business with customers (together with associated bid

and performance bonds), suppliers, licensors, licensees, consignors and consignees, and rights

under warranties and guarantees, express or implied of Dow related to Metallocene

Technology for use in a Gas-Phase PE Process. 

G. Upon execution of the BP Divestiture and License Agreement, Dow shall make

available for inspection by BP, to the extent permissible under applicable laws, the personnel

files and other documentation relating to Dow Appendix C Employees, as requested by BP

within one year after execution of the BP Divestiture and License Agreement. 

H. Dow shall provide BP with the opportunity to hire or enter into employment

contracts with Dow Appendix C Employees; Dow shall not interfere with the hiring or

employing by BP of Dow Appendix C Employees; Dow shall not offer any incentive to such

employees to decline employment with BP or to accept other employment with Respondents;

Dow shall not make any counteroffer to any such employee who receives a written offer of

employment from BP; and Dow shall remove any impediments that may deter such

employees from accepting employment with BP, including, but not limited to, waiver of any

non-compete or confidentiality provisions of employment contracts that would affect the

ability or incentive of any such individual to be employed by BP; provided, however, that

Dow may limit any waiver with respect to disclosure of confidential information to

information relevant to Metallocene Technology for production of MPE Resin through a

Gas-Phase PE Process and to information that does not waive obligations of Dow to third

parties other than Exxon Mobil and Univation.

I. Dow shall provide all Dow Appendix C Employees with reasonable financial

incentives to continue in their positions until completion of the divestiture of the Dow Gas

Phase Metallocene PE Assets. Such incentives shall include a continuation of all employee
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benefits offered by Dow until the divestiture has been completed, including regularly

scheduled raises and bonuses, and a vesting of all pension benefits (as permitted by law). In

addition, Dow shall provide to each such employee to whom BP extends a written offer of

employment incentives to accept employment with BP within ninety days following the

completion of the divestiture. Such incentives shall include payment by Dow for the benefit

of the employees of all accrued bonuses, pensions and other accrued benefits to which such

employees are entitled as of the date of the divestiture. Dow shall not impose any loss of

pension benefits on employees hired by BP to which such employees are entitled, at the time

of consummation of the Acquisition, under Respondents’ pension plans as administered under

ERISA. 

J. During the one-year period following the divestiture, Respondents shall not,

directly or indirectly, hire, attempt to hire, or enter into any arrangement for the services of

any former Dow employees hired or employed by BP that have any amount of responsibility

relating to the Dow Gas Phase Metallocene PE Assets, unless the individual’s employment

has been terminated by BP.

K. Respondents shall not use, nor assist Univation or Exxon in using, any BP

Confidential Information for the purpose of filing, prosecuting, encouraging, supporting, or

inducing any patent infringement action against BP or its licensees by any person, including

Respondents.

L. Respondents shall not disclose to any third party, Univation or Exxon, any BP

Confidential Information without the prior consent of BP, except for the purpose of

complying with Respondents’ financial, tax reporting, legal, health, safety and environmental

obligations.

M. Respondents shall not permit: 

1. Any Dow employee listed in Category 1 of Confidential Appendix I to

participate or direct any research or other activity by Dow, Union Carbide or Univation

for the purpose of development, improvement or discovery of MPE Resins in a Unipol

Gas Phase PE Process for one year from the date on which the Commission accepts

this Order for public comment; and

2. Any Dow employee listed in Category 2 of Confidential Appendix I to

participate or direct any research or other activity by Dow, Union Carbide or Univation

for the purpose of development, improvement or discovery of MPE Resins (i) in a

Unipol Gas Phase PE Process for two years from the date on which the Commission

accepts this Order for public comment; or (ii) in a slurry loop process for one year from

the date on which the Commission accepts this Order for public comment.

N. Dow shall, upon the divestiture of the Dow Gas Phase Metallocene PE Assets, (i)

identify to BP every supplier to Dow of Introduced Dow Metallocene Catalyst Systems,

Combined Technology Catalyst, and components thereof, (ii) expressly authorize each such
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supplier (including without limitation Albemarle and Boulder Scientific) notwithstanding any

confidentiality, non-compete, or exclusivity agreement with Dow, to develop, manufacture,

and supply Metallocene Catalyst Systems and components thereof to BP for use in a Gas

Phase PE Process, as requested by BP, and to enter into confidentiality agreements with BP

regarding such development, manufacture, or supply; and (iii) as required by BP, assist and

facilitate BP in securing supplies of Metallocene Catalyst Systems for BP and its licensees for

use in a Gas Phase PE Process.

O. The purpose of the divestiture of the Dow Gas Phase Metallocene PE Assets,

and of the further remedies provided for in this Paragraph VI, is to ensure the continued

operation of the Dow Gas Phase Metallocene PE Assets in the same businesses in which the

Dow Gas Phase Metallocene PE Assets are engaged at the time of the Acquisition; to ensure

that BP (or such other Acquirer as the Commission may approve) is a viable and competitive

participant in the markets for licensing PE Technology and Metallocene Catalyst Systems,

and for the development of PE Technology and Metallocene Catalyst Systems; and to remedy

the lessening of competition resulting from the Acquisition, as alleged in the Commission's

complaint.

VII.

IT IS FURTHER ORDERED that:

A. At the time of consummation of the Acquisition, Respondents shall contribute the

Unipol Gas Phase PE Technology Business to Univation. 

B. At the time of consummation of the Acquisition, Respondents shall grant to

Univation, with the right to sublicense others, the Unipol Process Technology for Ethylene

Polymers, and shall provide that upon termination or dissolution of Univation, at any time

and for any reason or no reason, or transfer of control or any equity interest in Univation

from Exxon Mobil to Respondents, Exxon (or Exxon’s successor in interest other than

Respondents) shall retain nonexclusive rights to the Unipol Process Technology for Ethylene

Polymers and to all technology owned or controlled by Univation, including the right to

sublicense to others, and to develop, use or license Unipol Process Technology for Ethylene

Polymers with any PE Catalyst Systems, any agreement between Respondents and Exxon to

the contrary notwithstanding.

C. Respondents shall not require Exxon to make royalty payments to Univation for

Metallocene Catalyst Technology in an amount exceeding Respondents’ royalty payments to

Univation for Metallocene Catalyst Technology, calculated on a calendar year basis.

D. Dow, when it becomes part owner of Univation, shall support and use its best

efforts (including without limitation by vote of its management, directors or shares) (i) to

assure that Univation takes no action inconsistent with Respondents’ obligations under this
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Order, and (ii) in support of any proposal by Exxon Mobil to expand the Univation Field to

include Density down to 0.900 grams per cubic centimeter.

VIII.

IT IS FURTHER ORDERED that Respondents shall comply with all terms of the

Order to Maintain Assets, attached to this Order and made a part hereof as Appendix A,

which Order shall continue in effect until such time as Respondents have divested each of the

Businesses and Assets To Be Divested as required by this Order.

IX.

IT IS FURTHER ORDERED that:

A. At any time after Respondents sign the Consent Agreement, the Commission may

appoint one or more Persons to serve as Monitor Trustee to monitor Respondents’

compliance with the terms of this Order and the Divestiture Agreement(s) made a part of this

Order.

B. If one or more Monitor Trustees are appointed pursuant to Paragraph IX.A. of

this Order, Respondents shall consent to the following terms and conditions regarding the

powers, duties, authorities, and responsibilities of each Monitor Trustee:

1. The Commission shall select the Monitor 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) business days after 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 Monitor Trustee shall have the power and authority to monitor 

Respondents’ compliance with the terms of this Order and the Divestiture

Agreement(s) and shall exercise such power and authority and carry out the duties and

responsibilities of the Monitor Trustee in a manner consistent with the purposes of this

Order and in consultation with the Commission.

3. Within ten (10) days after appointment of the Monitor Trustee, Respondents

shall execute an agreement that, subject to the approval of the Commission, confers on

the Monitor Trustee all the rights and powers necessary to permit the Monitor Trustee

to monitor Respondents’ compliance with the terms of this Order and the relevant

Divestiture Agreement(s) in a manner consistent with the purposes of this Order. 

Respondents may require the Monitor Trustee to sign a confidentiality agreement

prohibiting the use, or disclosure to anyone other than the Commission, of any
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competitively sensitive or proprietary information gained as a result of his or her role as

Monitor Trustee.

4. The Monitor Trustee shall serve until the earlier of: (i) the expiration of this

Order pursuant to Paragraph XIV; or (ii) the expiration of all the terms that comprise

the Divestiture Agreement(s).

5. The Monitor Trustee shall have full and complete access to Respondents’

books, records, documents, personnel, facilities and technical information relating to

compliance with this Order and the Divestiture Agreement(s), or to any other relevant

information, as the Monitor Trustee may reasonably request. Respondents shall

cooperate with any reasonable request of the Monitor Trustee. Respondents shall take

no action to interfere with or impede the Monitor Trustee's ability to monitor

Respondents’ compliance with this Order and the Divestiture Agreement(s).

6. The Monitor Trustee shall serve, without bond or other security, at the

expense of Respondents, on such reasonable and customary terms and conditions as the

Commission may set. The Monitor Trustee shall have 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 Monitor

Trustee's duties and responsibilities. The Monitor Trustee shall account for all

expenses incurred, including fees for his or her services, subject to the approval of the

Commission.

7. Respondents shall indemnify the Monitor Trustee and hold the Monitor

Trustee harmless against any losses, claims, damages, liabilities or expenses arising out

of, or in connection with, the performance of the Monitor Trustee's duties (including

the duties of the Monitor Trustee’s employees), 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 losses,

claims, damages, liabilities, or expenses result from gross negligence, willful or wanton

acts, or bad faith by the Monitor Trustee.

8. If at any time the Commission determines that the Monitor Trustee has

ceased to act or failed to act diligently, or is unwilling or unable to continue to serve,

the Commission may appoint a substitute to serve as Monitor Trustee in the same

manner as provided in this Paragraph IX.

9. The Commission may on its own initiative or at the request of the Monitor

Trustee issue such additional orders or directions as may be necessary or appropriate to

assure compliance with the requirements of this Order and the Divestiture

Agreement(s).

10. The Monitor Trustee shall report in writing to the Commission concerning

Respondents’ compliance with this Order and the Divestiture Agreement(s) every
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ninety days for a period of two years from the date Respondents sign the Consent

Agreement and annually thereafter on the anniversary of the date this Order becomes

final during the remainder of the Monitor Trustee’s period of appointment, and at such

other times as representatives of the Commission may request.

X.

IT IS FURTHER ORDERED that:

A. If Respondents have not divested, absolutely and in good faith and with the

Commission's prior approval, each of the Businesses and Assets to Be Divested within the

time periods required by this Order, the Commission may appoint a trustee to divest any of

the Businesses and Assets to Be Divested that have not been divested (“the Remaining

Businesses and Assets to Be Divested”). In the event that the Commission or the Attorney

General brings an action pursuant to § 5(l) of the Federal Trade Commission Act, 15 U.S.C.

§ 45(l), or any other statute enforced by the Commission, Respondents shall consent to the

appointment of a trustee in such action to divest the Remaining Businesses and Assets to Be

Divested. 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

§ 5(l) of the Federal Trade Commission Act, or any other statute enforced by the

Commission, for any failure by Respondents to comply with this Order.

B. If a trustee is appointed by the Commission or a court pursuant to Paragraph X.A

of this Order, Respondents shall consent to the following terms and conditions regarding the

trustee's powers, duties, authority, and responsibilities:

C. The Commission shall select the trustee, subject to the consent of Respondents,

which consent shall not be unreasonably withheld. The trustee shall be a person with

experience and expertise in acquisitions and divestitures. If Respondents have 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 Respondents of the identity of

any proposed trustee, Respondents shall be deemed to have consented to the selection of the

proposed trustee.

D. Subject to the prior approval of the Commission, the trustee shall have the

exclusive power and authority to divest the Remaining Businesses and Assets to Be Divested. 

E. Within ten (10) days after appointment of the trustee, Respondents 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 divestitures required by this Order.
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F. The trustee shall have twelve (12) months from the date the Commission

approves the trust agreement described in Paragraph X.E to accomplish the divestitures,

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. 

G. The trustee shall have full and complete access to the personnel, books, records

and facilities related to the Remaining Businesses and Assets to Be Divested or to any other

relevant information, as the trustee may request. Respondents shall develop such financial or

other information as such trustee may request and shall cooperate with the trustee. 

Respondents shall take no action to interfere with or impede the trustee's accomplishment of

the divestiture. Any delays in divestiture caused by Respondents 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.

H. 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

Respondents' absolute and unconditional obligation to divest expeditiously at no minimum

price. The divestiture shall be made in the manner and to the acquirer or acquirers as set out

in Paragraphs II, III, IV, and VI of this Order; provided, however, if the trustee receives bona

fide offers from more than one acquiring entity, and if the Commission determines to approve

more than one such acquiring entity, the trustee shall divest to the acquiring entity or entities

selected by Respondents from among those approved by the Commission; provided further,

however, that Respondents shall select such entity within five (5) days after receiving

notification of the Commission’s approval.

I. The trustee shall serve, without bond or other security, at the cost and expense of

Respondents, 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

Respondents 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 the Respondents, 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

Remaining Businesses and Assets to Be Divested.

J. Respondents 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
-39-

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.

K. 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 X.A of this Order.

L. 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 divestitures required by this Order.

M. In the event that the trustee determines that he or she is unable to divest the

Remaining Businesses and Assets to Be Divested in a manner consistent with the

Commission's purpose as described in Paragraphs II, III, IV, and VI, the trustee may divest

such additional ancillary assets related to the Businesses and Assets to Be Divested and effect

such arrangements as are necessary to satisfy the requirements of this Order.

N. The trustee shall have no obligation or authority to operate or maintain the

Remaining Businesses and Assets to Be Divested.

O. The trustee shall report in writing to Respondents and the Commission every

sixty (60) days concerning the trustee's efforts to accomplish divestiture, until the Businesses

and Assets to be Divested have been divested.

XI.

IT IS FURTHER ORDERED that:

A. Within thirty (30) days after Respondents sign the Consent Agreement and every

thirty (30) days thereafter until thirty (30) days after Respondents have divested the Dow

Global Ethyleneamines Business, the Dow Global Ethanolamines Business, the Dow Gas

Spec MDEA Business, and the Dow Gas Phase Metallocene PE Assets, as required by the

provisions of Paragraphs II, III, IV, VI, and VII of this Order, Respondents shall submit to

the Commission a verified written report setting forth in detail the manner and form in which

they intend to comply, are complying, and have complied with Paragraphs II, III, IV, VI, and

VII of this Order. Respondents shall include in their compliance reports, among other things

that are required from time to time, a full description of the efforts being made to comply

with Paragraphs II, III, IV, VI, and VII of the Order, including a description of all

substantive contacts or negotiations for the divestiture and the identity of all parties

contacted. Respondents shall include in their compliance reports copies of all written

communications to and from such parties, all internal memoranda, and all reports and

recommendations concerning divestiture; and
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B. Within thirty (30) days after the Respondents sign the Agreement Containing

Consent Order and every six (6) months thereafter until the earlier of: (i) the third anniversary

of the date of this Order; or (ii) expiration of all the terms of all the contracts that comprise

the Huntsman Agreement, the Ineos Agreement, the BP Divestiture and License Agreement,

any New Ethyleneamines Divestiture Agreement, any New Ethanolamines Divestiture

Agreement, or any New Gas Spec MDEA Divestiture Agreement, Respondents shall submit

to the Commission a verified written report setting forth in detail the manner and form in

which they intend to comply, are complying, and have complied with the Huntsman

Agreement, the Ineos Agreement, the BP Divestiture and License Agreement, any New

Ethyleneamines Divestiture Agreement, any New Ethanolamines Divestiture Agreement, any

New Gas Spec MDEA Divestiture Agreement. Respondents shall submit such compliance

reports on an annual basis beginning on the fourth anniversary of the date of this Order until

the earlier of: (i) the tenth anniversary of the date of this Order; or (ii) expiration of all the

terms of the all the contracts that comprise the Huntsman Agreement, the Ineos Agreement,

the BP Divestiture and License Agreement, any New Ethyleneamines Divestiture Agreement,

any New Ethanolamines Divestiture Agreement, or any New Gas Spec MDEA Divestiture

Agreement. All compliance reports submitted by Respondents shall identify and describe in

reasonable detail all disputes (including, but not limited to, any allegation or claim that any

person is in breach of its obligations under this Order, including but not limited to any

contracts incorporated into this Order) with either the Interim Trustee or Acquirer.

XII.

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 the Order.

XIII.

IT IS FURTHER ORDERED that, for the purpose of determining or securing

compliance with this Order, upon written request, Respondents shall permit any duly

authorized representative of the Commission:

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

access to inspect and copy all books, ledgers, accounts, correspondence, memoranda and

other records and documents in the possession or under the control of Respondents relating

to any matters contained in this Order; and 
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B. Upon five days' notice to Respondents and without restraint or interference from

them, to interview in the presence of counsel, officers, directors, employees, agents or

independent contractors of Respondents.

XIV. 

IT IS FURTHER ORDERED that this Order shall terminate ten (10) years from the

date this Order becomes final.

By the Commission.

Donald S. Clark

Secretary

ISSUED:
APPENDIX A: ORDER TO MAINTAIN ASSETS
CONFIDENTIAL APPENDICES B-I

[Redacted from Public Record Version]