UNITED STATES OF AMERICA

BEFORE FEDERAL TRADE COMMISSION

In the Matter of )

)

The Dow Chemical Company, )

a corporation, and ) File No. 991-0301

)

Union Carbide Corporation, )

a corporation. )

AGREEMENT CONTAINING CONSENT ORDERS

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

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

Corporation (“Union Carbide”), collectively hereinafter sometimes referred to as “Proposed Respondents,” and it now appearing that Proposed Respondents are willing to enter into this

Agreement Containing Consent Orders (“Consent Agreement”) to divest certain assets, and

providing for other relief:

IT IS HEREBY AGREED by and between Proposed Respondents, by their duly

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

1. Proposed 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. Proposed 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. Union

Carbide Corporation owns a 50-percent interest in Univation Technologies, LLC

(“Univation”).

3. Terms defined in the Decision and Order shall have the same meanings when used in this

Consent Agreement.

4. Proposed Respondents admit all the jurisdictional facts set forth in the draft of Complaint

provided to them.

5. Proposed Respondents waive:

a. any further procedural steps;
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b. the requirement that the Commission’s Decision and Order and Order to Maintain

Assets, here attached and made a part hereof, contain a statement of findings of

fact and conclusions of law;

c. all rights to seek judicial review or otherwise to challenge or contest the validity of

the Decision and Order and Order to Maintain Assets entered pursuant to this

Consent Agreement; and

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

6 Proposed Respondents shall submit an initial report signed by the Proposed Respondents,

within thirty (30) days of the date they execute this Consent Agreement, pursuant to

Section 2.33 of the Commission's Rules, 16 C.F.R. §§ 2.33, setting forth in detail the

manner in which Proposed Respondents have complied, are complying, and will comply

with the Decision and Order and Order to Maintain Assets. Such reports will not become

part of the public record unless and until this Consent Agreement is accepted by the

Commission for public comment.

7. Because there may be interim competitive harm, and divestiture or other relief resulting

from a proceeding challenging the legality of the proposed merger may not be possible, or

may be less than an effective remedy, the Commission may issue its Complaint and an

Order to Maintain Assets in this matter at any time after it accepts the Consent Agreement

for public comment.

8. This Consent Agreement shall not become part of the public record of the proceeding

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

by the Commission it, together with the Complaint contemplated thereby, will be placed

on the public record for a period of thirty (30) days and information in respect thereto

publicly released. The Commission thereafter may either withdraw its acceptance of this

Consent Agreement and so notify Proposed Respondents, in which event it will take such

action as it may consider appropriate, or issue or amend its Complaint (as the

circumstances may require) and issue its Decision and Order, in disposition of the

proceeding.

9. This Consent Agreement is for settlement purposes only and does not constitute an

admission by Proposed Respondents that the law has been violated as alleged in the draft

of Complaint here attached, or that the facts as alleged in the draft Complaint, other than

jurisdictional facts, are true.

10. This Consent Agreement contemplates that, if it is accepted by the Commission, the

Commission may (1) issue and serve its Complaint corresponding in form and substance

with the draft of Complaint here attached, (2) issue and serve its Order to Maintain

Assets, and (3) make information public with respect thereto. If such acceptance is not
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subsequently withdrawn by the Commission pursuant to the provisions of § 2.34 of the

Commission's Rules, 16 C.F.R. § 2.34, the Commission may, without further notice to

Proposed Respondents, issue the attached Decision and Order, in disposition of this

proceeding.

11. When final, the Decision and Order and Order to Maintain Assets shall have the same

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

the same time provided by statute for other orders. The Decision and Order and Order to

Maintain Assets shall become final upon service. Delivery by the United States Postal

Service of the Complaint, Decision and Order, and Order to Maintain Assets to Proposed

Respondents, to the attention of the Office of General Counsel, at the addresses specified

in this Consent Agreement shall constitute service. Proposed Respondents waive any right

they may have to any other manner of service. The Complaint may be used in construing

the terms of the Decision and Order and Order to Maintain Assets, and no agreement,

understanding, representation, or interpretation not contained in the Decision and Order,

Order to Maintain Assets, or the Consent Agreement may be used to vary or contradict

the terms of the Decision and Order or the Order to Maintain Assets.

12. By signing this Consent Agreement, Proposed Respondents represent and warrant that

they can comply with the provisions of the attached Decision and Order and the Order to

Maintain Assets, and that all parents, subsidiaries, affiliates, and successors necessary to

effectuate the full relief contemplated by this Consent Agreement are parties to the

Consent Agreement and are bound thereby as if they had signed this Consent Agreement

and were made parties to this proceeding and to the orders. Dow further warrants:

a. that each patent or patent application listed on Confidential Appendix D to the

Decision and Order constitutes a Dow Gas-Phase PE Patent, and Appendix D is

the result of Dow’s reasonable and good faith effort to list all Dow Gas-Phase PE

Patents;

b. that each patent or patent application listed on Confidential Appendix G to the

Decision and Order constitutes a Dow Metallocene Background Patent, and

Appendix G is the result of Dow’s reasonable and good faith effort to list all issued

U.S. patents, pending U.S. patent applications, and published European patent

applications that constitute Dow Metallocene Background Patents;

c. that each patent or patent application listed on Confidential Appendix B to the

Decision and Order constitutes a Combined Technology Patent, and Appendix B is

the result of Dow’s reasonable and good faith effort to list all Combined

Technology Patents; provided, however, that Dow makes no representation or

warranty as to the completeness of Confidential Appendix B with respect to

patents filed by BP; 
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d. that each patent or patent application listed on Confidential Appendix H to the

Decision and Order constitutes a Dow Metallocene Background Patents Requiring

Third Party Consent and Appendix H is the result of Dow’s reasonable and good

faith effort to list all Dow Metallocene Background Patents Requiring Third Party

Consent; and

e. that Dow is free to convey to BP (i) the Mitsui License Agreement Patent Rights

and (ii) the Asahi Agreements Patent Rights.

13. In addition to the warranties expressed in Paragraph 12 above, Proposed Respondents

further warrant:

a. that the Supplemental Univation Patent Rights are rights conveyed to Proposed

Respondents by Exxon Mobil and Univation for the purpose of conveying such

rights to BP, pursuant to the Univation Reorganization Agreement, dated

December 4, 2000, by Exxon Mobil, Dow, Union Carbide and Univation, and any

amendments or supplemental agreements thereto; and

b. that Proposed Respondents have the authority to convey all Supplemental

Univation Patent Rights and all Univation Settlement Patent Rights to BP free and

clear of any encumbrances, contractual commitments or obligations to Proposed

Respondents or to a third party other than grants of intellectual property from BP

to Univation to which BP has agreed and the obligations BP has accepted under

the Univation Settlement Agreement.

14. Proposed Respondents have read the Complaint, Decision and Order, and Order to

Maintain Assets contemplated hereby. Proposed Respondents understand that once the

Decision and Order and Order to Maintain Assets has been issued, they will be required to

file one or more compliance reports showing that they have fully complied with the orders. 

Proposed Respondents agree to comply with the terms of the Decision and Order and

Order to Maintain Assets from the date they sign this Consent Agreement. Proposed

Respondents further understand that they may be liable for civil penalties in the amount

provided by law for each violation of the Decision and Order and Order to Maintain

Assets after they become final.
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15. If the Commission accepts the Consent Agreement for public comment, it will excuse

Proposed Respondents from their obligation to comply with all outstanding information

requests and terminate the waiting period established by Section 7A of the Clayton Act,

15 U.S.C. § 18a with respect to the Acquisition.

Signed this _______ day of January, 2001.

THE DOW CHEMICAL COMPANY FEDERAL TRADE COMMISSION

Rhett R. Krulla

Deputy Assistant Director

_________________________ Philip M. Eisenstat

Michael D. Parker, President and John B. Warden

Chief Executive Officer, Wallace W. Easterling

 The Dow Chemical Company Attorneys

_________________________

George S. Cary By:__________________________

CLEARY, GOTTLIEB, STEEN & HAMILTON Rhett R. Krulla

Counsel for The Dow Chemical Company

APPROVED:

UNION CARBIDE CORPORATION

_________________________ ______________________________

William H. Joyce, Chairman, Richard Liebeskind

President and Chief Executive Officer, Assistant Director

Union Carbide Corporation

_________________________ ______________________________

Bruce D. Fitzgerald Molly S. Boast

Vice President, General Counsel and Acting Director 

Secretary, Union Carbide Corporation

_________________________

Nathan P. Eimer

EIMER STAHL KLEVORN & SOLBERG

Counsel for Union Carbide Corporation