0910050 

UNITED STATES OF AMERICA 

BEFORE FEDERAL TRADE COMMISSION 

COMMISSIONERS: Jon Leibowitz, Chairman 

Pamela Jones Harbour 

William E. Kovacic 

J. Thomas Rosch 

______________________________________________________ 

 ) 

In the Matter of ) 

) 

PANASONIC CORPORATION, ) Docket No. Ca corporation; ) 

 ) 

and ) 

) 

SANYO ELECTRIC CO., LTD., ) 

 a corporation. ) 

 ) 

DECISION AND ORDER 

[Public Record Version] 

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

proposed acquisition by Respondent Panasonic Corporation (“Panasonic”) of Respondent Sanyo 

Electric Co., Ltd. (“Sanyo”), and Respondents having been furnished thereafter with a copy of a 

draft Complaint that the Bureau of Competition proposed to present to the Commission for its 

consideration and that, if issued by the Commission, would charge Respondents with violations 

of Section 7 of the Clayton Act, as amended, 15 U.S.C. §18, and Section 5 of the Federal Trade 

Commission Act, as amended, 15 U.S.C. §45; and 

Respondents, their attorneys, and counsel for the Commission having thereafter executed an 

Agreement Containing Consent Orders (“Consent Agreement”), containing an admission by 

Respondents of all the jurisdictional facts set forth in the aforesaid draft Complaint, a statement 

that the signing of said Consent Agreement is for settlement purposes only and does not 

constitute an admission by Respondents that the law has been violated as alleged in such 

Complaint, or that the facts as alleged in such Complaint, other than jurisdictional facts, are true, 

and waivers and other provisions as required by the Commissions Rules; and 

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, and having accepted the executed Consent Agreement and placed such Consent 
2

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 Panasonic Corporation is a corporation organized, existing and doing 

business under and by virtue of the laws of Japan, with its head office located at 1006, 

Oaza Kadoma, Kadoma-shi, Osaka 571-8501, Japan. Panasonic Corporation of North 

America is a wholly-owned subsidiary of Panasonic Corporation with offices at 1 

Panasonic Way, Secaucus, NJ 07094. 

2. Respondent Sanyo Electric Co., Ltd. is a corporation organized, existing and 

doing business under and by virtue of the laws of Japan, with its head office at 5-5, 

Keihan-Hondori 2-Chome, Moriguchi City, Osaka 570-8677, Japan. Sanyo North 

America Corporation is a wholly-owned subsidiary of Sanyo Electric Co., Ltd., with its 

principal place of business at 2055 Sanyo Ave., San Diego, CA 92145. 

3. The Commission has jurisdiction over the subject matter of this proceeding and of 

Respondents, and the proceeding is in the public interest. 

ORDER 

I.

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

A. “Panasonic” means Panasonic Corporation, its directors, officers, employees, agents, 

representatives, successors, and assigns; and its joint ventures, subsidiaries, divisions, 

groups and affiliates in each case controlled by Panasonic, and the respective directors, 

officers, employees, agents, representatives, successors, and assigns of each. After the 

Acquisition, Panasonic shall include Sanyo. 

B. “Sanyo” means Sanyo Electric Co., Ltd., its directors, officers, employees, agents, 

representatives, successors, and assigns; and its joint ventures, subsidiaries, divisions, 

groups and affiliates in each case controlled by Sanyo, and the respective directors, 

officers, employees, agents, representatives, successors, and assigns of each. 

C. “FDK” means FDK Corporation, a corporation organized, existing and doing business 

under and by virtue of the laws of Japan, with its head office located at Hamagomu Bldg., 

5-36-11 Shimbashi, Minato-ku, Tokyo 105-8677. FDK America, Inc., is a wholly owned 

subsidiary of FDK Corporation, with its principle offices at 250 E. Caribbean Drive, 

MS200, Sunnyvale, CA 94089. 

D. “Respondents” mean Panasonic and Sanyo, individually and collectively. 

E. “Commission” means the Federal Trade Commission. 
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F. “Acquirer” means FDK or any other Person approved by the Commission to acquire the 

Portable NiMH Battery Business Assets and the Portable NiMH Battery Business 

License(s) pursuant to this Order. 

G. “Acquisition” means the proposed cash tender offer by Respondent Panasonic to acquire 

Respondent Sanyo pursuant to the Capital and Business Alliance Agreement, dated 

December 19, 2008, and all amendments, attachments and exhibits thereto. 

H. “Acquisition Date” means the date the Acquisition is consummated. 

I. “Confidential Business Information” means all information not in the public domain 

related to the Portable NiMH Battery Business, the Portable NiMH Battery Business 

Assets, or the Portable NiMH Battery Business License(s) including without limitation, 

Portable NiMH Battery Business Intellectual Property, Portable NiMH Battery Business 

Know-How, and Portable NiMH Battery Business Records. 

J. “Divestiture Agreement(s)” means the FDK Acquisition Agreements, the Sintered 

Cathode Supply Agreement (if any), the Transition Services Agreement, or any other 

agreement(s) that effectuate the divestiture of the Portable NiMH Battery Business Assets 

and the conveyance of the Portable NiMH Battery Business License(s). 

K. “Divestiture Date” means the last closing date of a Divestiture Agreement, including 

without limitation, any FDK Acquisition Agreement. 

L. “Direct Cost” means a cost not to exceed the cost of labor, material, travel and other 

expenditures to the extent the costs are directly incurred to provide the relevant assistance 

or service. 

M. “Divestiture Trustee” means the trustee appointed by the Commission pursuant to the 

relevant provisions of this Order. 

N. “FDK Acquisition Agreements” means the following agreements, including all 

amendments, exhibits, attachments, agreements, and schedules thereto: 

1. Master Agreement between SANYO Electric Co, Ltd. (the “Seller”) and FDK 

Corporation (the “Buyer”) relating to Buyer’s purchase of the stock of SANYO 

Energy Twicell Co., Ltd. held by the Seller; 

2. Stock Purchase Agreement between SANYO Electric Co., Ltd. (the “Seller”) and 

FDK Corporation (the “Buyer”), related to the Buyer’s purchase of the stock of 

SANYO Energy Twicell Co., Ltd. (“Sanyo-FDK Stock Purchase Agreement”); 

3. Agreement for the Assignment of Trademark Rights between SANYO Electric, 

Co., Ltd. (the “Assignor”) and FDK Corporation (the “Assignee”) related to the 

assignment of Trademark Rights by the Assignor; and 

4. Master Transaction Agreement between FDK Corporation (the “Company”) and 

SANYO Electric Co., Ltd. (the “Supplier”) dated Oct. 1, 2001, 

attached hereto as Confidential Appendix A. 
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O. “Intellectual Property” means any type of intellectual property, including without 

limitation, patents, copyrights, trademarks, trade dress, trade secrets, techniques, data, 

inventions, practices, methods and other confidential or proprietary technical, business, 

research, or development information. 

P. “Interim Monitor” means any monitor appointed pursuant to this Order or the related 

Order to Maintain Assets. 

Q. “Interim Purchase Agreement” means the Master Purchase Agreement (NiMH Batteries) 

attached to the Sanyo-FDK Stock Purchase Agreement as Exhibit 9.7, or any other 

agreement that receives prior approval of the Commission through which Sanyo 

purchases from the Acquirer Sanyo-Branded Retail Batteries for a period determined by 

the Acquirer, but in no event longer than two (2) years. 

R. “Law” means all laws, statutes, rules, regulations, ordinances, and other pronouncements 

by any Government Entity having the effect of law. 

S. “Order to Maintain Assets” means the Order to Maintain Assets incorporated into and 

made a part of the Consent Agreement. 

T. “Person” means any individual, partnership, joint venture, firm, corporation, association, 

trust, unincorporated organization, joint venture, or other business or government entity, 

and any subsidiaries, divisions, groups or affiliates thereof. 

U. “Portable NiMH Battery Business” means the research, development, manufacture, 

distribution, finishing, packaging, marketing, sale, storage and transport of Portable 

NiMH Battery Products by Respondent Sanyo before the Acquisition Date, including any 

contracts, agreements or other arrangements by Sanyo with any Person to provide any 

such research, development, manufacture, distribution, finishing, packaging, marketing, 

sale, storage or transport. 

provided, however, that Portable NiMH Battery Business shall not include the 

distribution, marketing, promotion and retail sale of Sanyo-Branded Retail Batteries. 

V. “Portable NiMH Battery Business Assets” means the following assets related to the 

Portable NiMH Battery Business: 

1. SANYO Twicell (Takasaki); 

2. All real and personal property comprising Respondent Sanyo’s business office 

and factory located at 307-2 Koyagi-machi, Takasaki-shi, Gunma, Japan, and 952 

Koyagi-machi, Takasaki-shi, Gunma, Japan, including without limitation, real 

estate; buildings; warehouses; storage tanks; structures; manufacturing 

equipment; other equipment; machinery; tools; spare parts; personal property; 

furniture; fixtures; supplies and other tangible property, owned, leased, or 

operated on or behalf of Respondent Sanyo; 

3. Suzhou Sub-C and D NiMH Battery Production; 

4. all Portable NiMH Battery Business Intellectual Property used predominantly in 

the Portable NiMH Battery Business, including, without limitation, all rights to 
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obtain and file for patents, trademarks, copyrights and registrations of such 

Intellectual Property and to bring suit against a Third Party for the past, present or 

future infringement, misappropriation, dilution, misuse or other violations of such 

Intellectual Property; and 

5. all Portable NiMH Battery Business Records used exclusively in the Portable 

NiMH Battery Business; 

 provided, however, that the Portable NiMH Battery Business Assets need 

not include assets needed by Respondents to fulfill their obligations under the 

Suzhou Sub-C and D NiMH Battery Agreement or the Sintered Cathode Supply 

Agreement. 

W. “Portable NiMH Battery Business Employee(s)” means any employee of Respondent 

Sanyo whose duties, in whole or part, relate to the Portable NiMH Battery Business. 

X. “Portable NiMH Battery Business Key Employees” means employees of Respondent 

Sanyo identified on Confidential Appendix B. 

Y. “Portable NiMH Battery Business Know-How” means all knowledge, information and 

know-how in the possession of Respondent Sanyo or within the knowledge of any 

employee or consultant of Respondent Sanyo on or before the Acquisition Date that 

relates to the Portable NiMH Battery Business. 

Z. “Portable NiMH Battery Business Intellectual Property” means all Intellectual Property 

related to the Portable NiMH Battery Business, 

provided, however, Portable NiMH Battery Business Intellectual Property need 

not include i) the corporate names or corporate trade dress of “Sanyo”, or “Eneloop,” or 

ii) Intellectual Property licensed from a Third Party to the extent the Acquirer has 

licensed such Intellectual Property directly from its owner. 

AA. “Portable NiMH Battery Business License(s)” means a fully paid-up, perpetual, nonrevocable and royalty-free license(s) to all documents, intellectual property and knowhow related to the Portable NiMH Battery Business to the extent not included in the 

Portable NiMH Battery Business Assets, including, without limitation, 

1. Portable NiMH Battery Business Intellectual Property; 

2. Portable NiMH Battery Business Records; and 

3. Portable NiMH Battery Business Know-How. 

BB. “Portable NiMH Battery Business Records” means all documents and records, including 

all electronic records and files wherever stored, that are related to or used in the Portable 

NiMH Battery Business, including without limitation, 

1. all documents and information related to employees, contractors, and others 

employed or contracted by Respondent Sanyo whose duties relate, in whole or 

part, to the Portable NiMH Battery Business; 
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2. all customer contracts and other documents, contracts, agreements and 

information relating to any Person to whom Respondent Sanyo, on or after 

January 1, 2008, has supplied or made efforts to supply Portable NiMH Battery 

Products; 

3. all supply agreements and other documents, contracts, agreements and 

information relating to any Person who, on or after January 1, 2008, has supplied 

Respondent Sanyo with any raw materials, products, services or other items used 

by Respondent Sanyo in the Portable NiMH Battery Business; 

4. all documents relating to the manufacturing and production of Portable NiMH 

Battery Products; 

5. all documents related to the research, development and design of Portable NiMH 

Battery Products; and 

6. all documents relating to the sales, marketing, distribution and promotion of any 

Portable NiMH Battery Products. 

CC. “Portable NiMH Battery Products” means rechargeable nickel metal hydride batteries for 

non-automotive use. 

DD. “Sanyo-Branded Retail Batteries” means Portable NiMH Business Battery Products for 

retail sale that are produced using Portable NiMH Battery Intellectual Property and sold 

under the brand names “Sanyo” or “eneloop.” 

EE. “SANYO Twicell (Takasaki)” means SANYO Energy Twicell Co., Ltd. as constituted 

after execution of the Takasaki Formation Agreements. 

FF. “Suzhou Sub-C and D NiMH Battery Production” means the supply of Portable NiMH 

Battery Products in size Sub-C and size D produced or capable of being produced 

(utilizing 100% of current production capacity) at Respondent Sanyo’s production facility 

in Suzhou, China. Included in “Suzhou Sub-C and D NiMH Battery Production” is the 

right to determine, upon reasonable notice, up to current capacity limits, the volume and 

specifications for the production of Portable NiMH Battery Products in size Sub-C and 

size D at the Suzhou facility, and to acquire, pursuant to the terms of a Suzhou Sub-C and 

D NiMH Battery Agreement, all such products produced at the facility. 

GG. “Suzhou Sub-C and D NiMH Battery Agreement” means the Sub-C and D Supply 

Agreement attached to the Sanyo-FDK Stock Purchase Agreement as Exhibit 9.5, or any 

other Agreement that receives the prior approval of the Commission and through which 

the Acquirer obtains the Suzhou Sub-C and D NiMH Battery Production. 

HH. “Sintered Cathode Supply Agreement” means the Memorandum between SANYO 

Energy Twicell Co., Ltd (the “Buyer”) and SANYO Electric Co., Ltd (the “Seller”) under 

the Master Purchase Agreement dated October 1, 2001, related to the Buyer’s purchase of 

sintered cathode plates for industrial NiMH batteries from the Seller; or any other 

Agreement that receives the prior approval of the Commission and through which 
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Respondents supply the Acquirer with sintered cathodes needed by the Acquirer for use 

in Portable NiMH Battery Products. 

II. “Takasaki Formation Agreements” means the Absorption-Type Split between SANYO 

Electric Co., Ltd. and SANYO Energy Twicell Co., Ltd., attached hereto as Appendix C, 

and the Plan for Incorporation-Type Split for transferring to SANYO Energy Kaizuka 

Co., Ltd. some of the rights and duties of SANYO Energy Twicell Co., Ltd. relating to 

the business of developing and manufacturing lithium-ion batteries, attached hereto as 

Appendix D. 

JJ. “Third Party(ies)” means any Person other than the Respondents or the Acquirer. 

KK. “Transition Services Agreement” means the Transitional Services Agreement attached to 

the Sanyo-FDK Stock Purchase Agreement at Exhibit 10.5, or any other agreement 

approved by the Commission between Respondents and an Acquirer through which 

Respondents provide assistance and advice to enable the Acquirer to operate the Portable 

NiMH Battery Business in a manner at least consistent with the past practice and 

expertise of Respondent Sanyo as of the Acquisition Date. 

II.

IT IS FURTHER ORDERED that: 

A. Not later than fifteen (15) days after the Acquisition Date, Respondents shall 

1. execute the Takasaki Formation Agreements pursuant to and in accordance with 

the laws of Japan; and 

2. divest the Portable NiMH Battery Business Assets and grant the Portable NiMH 

Battery Business License(s), absolutely and in good faith, to FDK in accordance 

with the FDK Acquisition Agreements, 

provided that this period may be extended by up to thirty (30) days if necessary to 

permit Respondents to obtain prior approval of the FDK Acquisition Agreements from 

the European Commission, so long as Respondents divest the Portable NiMH Battery 

Business Assets and grant the Portable NiMH Battery Business License(s) as required by 

this Order within five (5) days of obtaining such approval. 

 provided further that, if, at the time the Commission determines to make this 

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

of the Portable NiMH Battery Business Assets and/or the Portable NiMH Battery 

Business License(s), or the manner in which either was divested or granted was not 

acceptable, Respondents shall immediately notify FDK and shall as soon as practicable 

rescind the FDK Acquisition Agreements, and within six (6) months from the date this 

Order becomes final, absolutely and in good faith, at no minimum price, divest the 

Portable NiMH Battery Business Assets and grant the Portable NiMH Battery Business 
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License(s) to an Acquirer and in a manner that receives the prior approval of the 

Commission. 

B. Each Divestiture Agreement, including without limitation, each FDK Acquisition 

Agreement, shall be incorporated by reference into this Order and made a part hereof. 

Further, nothing in any such Divestiture Agreement shall limit or contradict, or be 

construed to limit or contradict, the terms of this Order, it being understood that nothing 

in this Order shall be construed to reduce any rights or benefits of the Acquirer or to 

reduce any obligations of Respondents under such Agreements. Respondents shall 

comply with the terms of any Divestiture Agreement; a breach by Respondents of any 

term of a Divestiture Agreement shall constitute a violation of this Order. To the extent 

that any term of a Divestiture Agreement conflicts with a term of this Order such that 

Respondents cannot fully comply with both, Respondents shall comply with the term of 

this Order. It shall be a violation of this Order to, without the prior approval of the 

Commission, i) make any modification to a Divestiture Agreement prior to the 

Divestiture Date or ii) fail to meet any material condition precedent to closing (whether 

waived or not). Further, notwithstanding any paragraph, section, or other provision of a 

Divestiture Agreement, for a period of five (5) years after the Divestiture Date, it shall be 

a violation of this Order to make any material modification of a Divestiture Agreement, 

without the approval of the Commission. 

C. Prior to divesting the Portable NiMH Battery Business Assets and granting the Portable 

NiMH Battery Business License(s), Respondents shall, 

1. secure all consents and waivers from all Third Parties that are necessary to permit 

Respondents to fully divest the Portable NiMH Battery Business Assets and grant 

the Portable NiMH Battery Business License(s) and to permit the Acquirer to 

continue to operate the Portable NiMH Battery Business in a manner consistent 

with the past practice of Respondent Sanyo, 

 provided, however, Respondents may satisfy this requirement by 

certifying that the Acquirer has executed all such agreements directly with each of 

the relevant Third Parties; and 

2. secure the consent of all Persons whose consent is necessary for the execution, 

under Japanese law, of the Takasaki Formation Agreements. 

D. Within fifteen (15) days of the Divestiture Date, Respondents shall transfer to the 

Acquirer a duplicate original or copy of all Portable NiMH Battery Business Records 

licensed to the Acquirer pursuant to this Order or the Divestiture Agreement. Such 

copies shall be produced to the location(s) specified by the Acquirer and in the style and 

format of the original document unless otherwise specified by the Acquirer. 

E. Until the Divestiture Date, Respondents shall provide all Portable NiMH Battery 

Business Employees with reasonable financial incentives to continue in their positions 

and continue the research, development, manufacture, distribution, finishing, packaging, 

marketing, sale, storage and transport of the Portable NiMH Battery Products consistent 

with past practices and/or as may be necessary to preserve the marketability, viability and 
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competitiveness of such products pending divestiture. Such incentives shall include a 

continuation of all employee benefits offered by Respondent Sanyo until the Acquisition 

Date, including regularly scheduled raises, bonuses, vesting of pension benefits (as 

permitted by Law), and additional incentives as may be necessary to prevent any 

diminution of the competitiveness of the Portable NiMH Battery Business. 

F. Until Respondents fully and finally deliver to the Acquirer all of the Portable NiMH 

Battery Business Assets, all Portable NiMH Battery Business Records licensed to the 

Acquirer, and all other tangible assets to be transferred to Acquirer pursuant to the 

Divestiture Agreement(s), Respondents shall maintain the full economic viability, 

marketability and competitiveness of all portions of such assets and records in their 

possession or control; shall prevent the destruction, removal, wasting, deterioration, or 

impairment of such assets and records; and shall maintain such assets and records in the 

regular and ordinary course of business and in accordance with past practice (including 

regular repair and maintenance). 

G. On or before the Divestiture Date, Respondents shall enter into a Suzhou Sub-C and D 

NiMH Battery Agreement, and, at the Acquirer’s option, a Sintered Cathode Supply 

Agreement. 

H. For a period lasting one (1) year after Respondents have fully and finally transferred and 

delivered to the Acquirer all of the Portable NiMH Battery Business Assets and all the 

Portable NiMH Battery Business Records licensed to the Acquirer, Respondents shall, 

pursuant to the Transition Services Agreement, provide in a timely manner, at no greater 

than Direct Cost, assistance and advice to enable the Acquirer to operate the Portable 

NiMH Battery Business in a manner at least consistent with the past practice and 

expertise of Respondent Sanyo, 

provided that, the Interim Monitor may authorize up to two (2) extensions of the 

one (1) year time period, if the Interim Monitor, in consultation with the staff of the 

Commission, finds that such extension is reasonably necessary and consistent with the 

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

I. At the Acquirer’s option, Respondents shall, on or before the Divestiture Date, enter into 

an Interim Purchase Agreement through which Respondents shall purchase SanyoBranded Retail Batteries for a period not longer than two (2) years in duration. 

J. Respondents shall provide financial incentives to Portable NiMH Battery Business Key 

Employees as needed to facilitate the employment of such employees by the Acquirer, 

provided that such incentives need not exceed twenty (20) percent of each such 

Employee’s annual salary. 

K. For a period lasting until one (1) year from the Acquisition Date, Respondents shall 

1. within 10 days of a request by the Acquirer, provide the following information to 

the Acquirer (to the extent permitted by applicable law) regarding each Portable 

NiMH Battery Business Employee not employed by SANYO Twicell (Takasaki) 

on the Divestiture Date: 
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a) the date of hire and effective service date; 

b) job title or position held; 

c) a specific description of the employee’s responsibilities related to the Portable 

NiMH Battery Products; however, in lieu of this description, Respondents 

may provide the employee’s most recent performance appraisal; 

d) the base salary or current wages; 

e) the most recent bonus paid, aggregate annual compensation for Respondent 

Sanyo’s last fiscal year and current target or guaranteed bonus, if any; 

f) employment status (i.e., active or on leave or disability; full-time or parttime); 

g) any other material terms and conditions of employment in regard to such 

employee that are not otherwise generally available to similarly situated 

employees; 

h) copies of all employee benefit plans and summary plan descriptions (if any) 

applicable to the relevant employees; 

2. not interfere with the hiring or employing by the Acquirer of any Portable NiMH 

Battery Business Employee and remove any impediments within the control of 

Respondents that may deter these employees from accepting employment with the 

Acquirer, including without limitation, any non-compete or non-disclosure 

provisions of any employment agreements with respect to Portable NiMH Battery 

Products or other contracts with Respondents that would affect the ability or 

incentive of those individuals to be employed by the Acquirer. In addition, 

Respondents shall not make any counteroffer to a Portable NiMH Battery 

Business Employee who has received a written offer of employment from the 

Acquirer; and 

L. For a period lasting until two (2) years from the Divestiture Date, Respondents shall not 

hire any Portable NiMH Battery Business Employee of the Acquirer or solicit or 

otherwise attempt to induce such employee to terminate his or her employment 

relationship with the Acquirer, 

 provided, however, Respondents may i) hire any Portable NiMH Battery Business 

Employee whose employment has been terminated by the Acquirer or who independently 

applies for employment with Respondents, as long as such employee was not solicited in 

violation of the non-solicitation requirements contained herein; ii) advertise for 

employees in newspapers, trade publications or other media not targeted specifically at 

Portable NiMH Battery Business Employees; or iii) hire a Portable NiMH Battery 

Business Employee who contacts Respondents on his or her own initiative without any 

direct or indirect solicitation or encouragement from Respondents. 

M. Respondents shall not use any Confidential Business Information that is related to the 

Portable NiMH Battery Business to research, develop, manufacture, market, or sell 

Portable NiMH Battery Products, except that the Respondents may retain (or be licensed) 

rights to use Confidential Business Information i) to fulfill the requirements of any 

Suzhou Sub-C and D NiMH Battery Agreement, ii) to manufacture or have manufactured 
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sintered cathodes, or iii) to manufacture or have manufactured Sanyo-Branded Retail 

Batteries, 

provided that nothing in this paragraph shall affect the rights of Respondents to 

use any Confidential Business Information, including without limitation, any Portable 

NiMH Battery Business Intellectual Property, lawfully in the possession of Respondent 

Panasonic prior to the Acquisition Date.

N. Respondents shall not disclose or convey any Confidential Business Information that is 

exclusively related to the Portable NiMH Battery Business, directly or indirectly, to any 

Person or Persons except as follows: 

1. Respondents may disclose Confidential Business Information to the Acquirer or 

Persons specifically authorized by the Acquirer to receive such information; and 

2. Respondents may disclose Confidential Business Information as necessary to 

manufacture or have manufactured sintered cathodes, fulfill the terms of the 

Suzhou Sub-C and D NiMH Battery Agreement or produce or have produced 

Sanyo-Branded Retail Batteries pursuant to rights retained or licensed under any 

Divestiture Agreement so long as in doing so, Respondents do not disclose or 

convey any Confidential Information to any Person involved in the research, 

development, manufacture, sale, marketing or distribution of any of Respondents’ 

Portable NiMH Battery Products (other than Sanyo-Branded Retail Batteries and 

products produced pursuant to the Suzhou Sub-C and D NiMH Battery 

Production Agreement and the Sintered Cathode Supply Agreement). 

provided however, that the restrictions contained in this paragraph shall 

not apply to information that i) subsequently falls within the public domain by 

means other than a violation of this Order or Respondents’ breach of a 

confidentiality or non-disclosure agreement; ii) is required by Law to be publicly 

disclosed; or iii) is lawfully possessed by Respondent Panasonic as of the 

Acquisition Date. 

O. Respondents shall prevent the disclosure or use of Confidential Business Information 

except as permitted or authorized by this Order or the Order to Maintain Assets and shall, 

1. require that each Portable NiMH Battery Business Employee retained by 

Respondents after the Divestiture Date, his or her direct supervisor, and any other 

employee designated by the Interim Monitor (if one has been appointed) sign a 

confidentiality agreement that requires such employee to maintain Confidential 

Business Information as strictly confidential and not use such information or 

disclose it to any other Person except as authorized by Respondents in accordance 

with this Order; and 

2. provide, within thirty (30) days of the Divestiture Date, written notice of the 

restrictions on the disclosure and use of Confidential Business Information 

contained in this Order to all employees not required to sign a confidentiality 
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agreement who were involved in the Portable NiMH Battery Business at any time 

during the twelve (12) months prior to the Divestiture Date, or who otherwise 

may possess Confidential Business Information. Respondents shall provide such 

written notice by electronic mail with return receipt requested or similar 

transmission, and keep a file of such receipts for one (1) year after the Divestiture 

Date. 

P. Respondents shall not join, file, prosecute or maintain any suit, in law or equity, against 

the Acquirer or a licensee of such for the research, development, manufacture, 

distribution, finishing, packaging, marketing, sale, storage and transport of any Portable 

NiMH Battery Product that was manufactured by Respondent Sanyo on or prior to the 

Acquisition Date under any Intellectual Property (i) owned or licensed by Respondents as 

of the day after the Acquisition Date, or (ii) owned or licensed by Respondents that 

claims any aspect of the Portable NiMH Battery Business divested or licensed to the 

Acquirer. 

Q. Respondents shall not enforce any agreement against a Third Party or the Acquirer to the 

extent that such agreement may limit or otherwise impair the ability of the Acquirer to 

acquire or use the Portable NiMH Battery Business Assets and shall, not later than ten 

(10) days after the Divestiture Date, grant a release to each Third Party that is subject to 

such agreement. Within five (5) days of the execution of each such release, Respondents 

shall provide a copy of the release to the Acquirer for the relevant assets. 

R. Upon reasonable written notice and request from the Acquirer to Respondents, 

Respondents shall provide, in a timely manner, at no greater than Direct Cost, assistance 

of knowledgeable employees of Respondents to assist the Acquirer to prosecute, defend 

against, respond to, or otherwise participate in any litigation related to the Portable NiMH 

Battery Business Intellectual Property, if such litigation would have the potential to 

interfere with the Acquirer’s freedom to research, develop, or manufacture Portable 

NiMH Battery Products; to use, supply, distribute, market, sell such products in the 

United States, or to export such products from or import them into the United States. 

S. For any patent infringement action either i) alleging that, prior to the Divestiture Date, 

Respondent Sanyo has infringed, or is infringing, a Patent of a Third Party, or ii) in which 

Respondent Sanyo has prepared or is preparing as of the Divestiture Date to defend 

against infringement claim(s); and that would have the potential to interfere with the 

Acquirer’s freedom to practice the following: (1) the research, development, or 

manufacture of a particular Portable NiMH Battery Product; or (2) the use within, import 

into, export from, or the supply, distribution, or sale within, the United States of the 

relevant Portable NiMH Battery Products, Respondents shall: 

1. cooperate with the Acquirer and provide any and all necessary technical and legal 

assistance, documentation and witnesses from Respondents in connection with 

obtaining resolution of any pending patent litigation involving such Portable 

NiMH Battery Product; 
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2. waive conflicts of interest, if any, to allow either Respondent’s outside legal 

counsel to represent the Acquirer in any ongoing patent litigation involving such 

Portable NiMH Battery Product; and 

3. permit the transfer to the Acquirer of all of the litigation files and any related 

attorney work-product in the possession of Respondents’ outside counsel relating 

to such Portable NiMH Battery Product. 

T. Respondents shall not seek, directly or indirectly, pursuant to any dispute resolution 

mechanism incorporated in any Divestiture Agreement, or in any agreement related to 

any Portable NiMH Battery Products, a decision the result of which would be 

inconsistent with the terms of this Order and/or the remedial purposes thereof. 

U. Respondents shall not, without the prior approval of the Commission, sell or grant to the 

Acquirer any rights or assets related to Portable NiMH Battery Products in sizes sub-C 

and D (other than those contained in the Suzhou Sub-C and D NiMH Battery 

Agreement). 

V. The English-language versions of the Divestiture Agreements, the Suzhou Sub-C and D 

NiMH Battery Agreement, the Sintered Cathode Supply Agreement (if applicable), the 

Interim Purchase Agreement and the Transition Services Agreement, as submitted to and 

approved by the Commission, shall be the versions of such agreements used in 

interpreting and enforcing this Order. 

W. The purpose of the divestiture of the Portable NiMH Battery Business Assets is: 

1. to ensure the continued use of the Portable NiMH Battery Business Assets in the 

research, development, manufacture, use, import, export, distribution, and sale of 

Portable NiMH Battery Products; 

2. to provide for the future use of the Portable NiMH Battery Business Assets for the 

research, development, manufacture, use, import, export, distribution, and sale of 

Portable NiMH Battery Products; 

3. to create a viable and effective competitor, who is independent of the 

Respondents in the research, development, manufacture, use, import, export, 

distribution, or sale of Portable NiMH Battery Products; and 

4. to remedy the lessening of competition resulting from the Acquisition as alleged 

in the Commission’s Complaint in a timely and sufficient manner. 
14

III.

IT IS FURTHER ORDERED that: 

A. The Commission may appoint a Monitor (“Interim Monitor”) to assure that Respondents 

expeditiously comply with all of their obligations and perform all of their responsibilities 

as required by this Order and/or the Order to Maintain Assets. 

B. The Commission appoints ING Financial Markets LLC (“ING”), as Interim Monitor and 

approves the agreement between ING and Respondents, attached hereto as Confidential 

Appendix E, which agreement, inter alia, names Philip Comerford, Jr. as ING designated 

Project Manager. 

C. Respondents shall facilitate the ability of the Interim Monitor to comply with the duties 

and obligations set forth in this Order, and shall take no action that interferes with or 

hinders the Interim Monitor’s authority, rights or responsibilities as set forth in this Order 

or any agreement between the Interim Monitor and Respondents. 

D. The Interim Monitor’s duties and responsibilities shall include the following: 

1. the Interim Monitor shall act in a fiduciary capacity for the benefit of the 

Commission; 

2. the Interim Monitor shall have the power and authority to monitor Respondents’ 

compliance with the divestiture and asset maintenance obligations and related 

requirements of the Order, and shall exercise such power and authority and carry 

out his or her duties and responsibilities in a manner consistent with the purposes 

of the Order and in consultation with the Commission; 

3. the Interim Monitor shall, in his or her sole discretion, consult with Third Parties 

in the exercise of his or her duties under this Order or any agreement between the 

Interim Monitor and Respondents; and 

4. the Interim Monitor shall evaluate the reports submitted by Respondents pursuant 

to this Order, and within thirty (30) days from the date the Interim Monitor 

receives these reports, report in writing to the Commission concerning 

performance by Respondents of their obligations under the Order. 

E. Respondents shall grant and transfer to the Interim Monitor, and such Monitor shall have, 

all rights, powers, and authority necessary to carry out the Monitor’s duties and 

responsibilities, including but not limited to the following: 

1. Respondents shall cooperate with any reasonable request of the Interim Monitor 

and shall take no action to interfere with or impede the Interim Monitor's ability 

to monitor Respondents’ compliance with the Order and the Order to Maintain 

Assets; 

2. subject to any demonstrated legally recognized privilege, Respondents shall 

provide the Interim Monitor full and complete access to Respondents’ personnel, 

books, documents, records kept in the ordinary course of business, facilities and 
15

technical information, and such other relevant information as the Interim Monitor 

may reasonably request, related to Respondents’ compliance with its obligations 

under the Order, including, but not limited to, its obligations related to the 

relevant assets; 

3. the Interim Monitor shall serve, without bond or other security, at the expense of 

Respondents, on such reasonable and customary terms and conditions to which 

the Monitor and Respondents agree and that the Commission approves; 

4. the Interim Monitor 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 Interim Monitor’s 

duties and responsibilities; 

5. Respondents shall indemnify the Interim Monitor and hold the Interim Monitor 

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

of, or in connection with, the performance of the Interim Monitor’s duties, 

including all reasonable fees of counsel and other reasonable expenses incurred in 

connection with the preparations for, or defense of, any claim, whether or not 

resulting in any liability, except to the extent that such losses, claims, damages, 

liabilities, or expenses result from gross negligence, willful or wanton acts, or bad 

faith by the Interim Monitor; and 

6. Respondents may require the Interim Monitor and each of the Interim Monitor’s 

consultants, accountants, attorneys and other representatives and assistants to sign 

a customary confidentiality agreement; provided, however, that such agreement 

shall not restrict the Interim Monitor from providing any information to the 

Commission or require the Interim Monitor to report to Respondents the 

substance of communications to or from the Commission or the Acquirer. 

F. The Commission may, among other things, require the Interim Monitor and each of the 

Interim Monitor’s consultants, accountants, attorneys and other representatives and 

assistants to sign an appropriate confidentiality agreement related to Commission 

materials and information received in connection with the performance of the Interim 

Monitor’s duties. 

G. The Interim Monitor shall serve until the later of i) one (1) year after Respondents have 

fully and finally transferred and delivered to the Acquirer all of the Portable NiMH 

Battery Business Assets and all the Portable NiMH Battery Business Records licensed to 

the Acquirer; or ii) the termination of all Respondents’ obligations under the Transition 

Services Agreement, 

 provided, however, that the Interim Monitor’s service shall not exceed five (5) 

years from the date the Order becomes final; 

provided, further, that the Commission may extend or modify this period as may 

be necessary or appropriate to accomplish the purposes of this Decision and Order and 

the Order to Maintain Assets. 
16

H. If the Commission determines that an Interim Monitor has ceased to act or failed to act 

diligently, the Commission may appoint a substitute Interim Monitor in the same manner 

as provided for in this Paragraph. 

I. The Commission may on its own initiative, or at the request of an Interim Monitor, issue 

such additional orders or directions as may be necessary or appropriate to assure 

compliance with the requirements of the Order. 

J. An Interim Monitor appointed pursuant to this Order may be the same Person appointed 

as a Divestiture Trustee pursuant to the relevant provisions of this Order. 

IV.

 IT IS FURTHER ORDERED that: 

A. If Respondents have not fully complied with the obligations to assign, grant, license, 

divest, transfer, deliver or otherwise convey relevant assets as required by such 

Agreements and this Order, the Commission may appoint a trustee (“Divestiture 

Trustee”) to assign, grant, license, divest, transfer, deliver or otherwise convey the assets 

required to be assigned, granted, licensed, divested, transferred, delivered or otherwise 

conveyed pursuant to each of the relevant Paragraphs in a manner that satisfies the 

requirements of each such Paragraph. 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 Divestiture Trustee in such action to assign, grant, 

license, divest, transfer, deliver or otherwise convey the relevant assets. Neither the 

appointment of a Divestiture Trustee nor a decision not to appoint a Divestiture Trustee 

under this Paragraph shall preclude the Commission or the Attorney General from 

seeking civil penalties or any other available relief, including a court-appointed 

Divestiture 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. The Commission shall select the Divestiture Trustee, subject to the consent of 

Respondent Panasonic, which consent shall not be unreasonably withheld. The 

Divestiture Trustee shall be a Person with experience and expertise in acquisitions and 

divestitures. If Respondent Panasonic has not opposed, in writing, including the reasons 

for opposing, the selection of any proposed Divestiture Trustee within ten (10) days after 

notice by the staff of the Commission to Respondent Panasonic of the identity of any 

proposed Divestiture Trustee, Respondents shall be deemed to have consented to the 

selection of the proposed Divestiture Trustee. 

C. Not later than ten (10) days after the appointment of a Divestiture Trustee, Respondents 

shall execute a trust agreement that, subject to the prior approval of the Commission, 

transfers to the Divestiture Trustee all rights and powers necessary to permit the 

Divestiture Trustee to effect the divestiture required by this Order. 
17

D. If a Divestiture Trustee is appointed by the Commission or a court pursuant to this 

Paragraph, Respondents shall consent to the following terms and conditions regarding the 

Divestiture Trustee’s powers, duties, authority, and responsibilities:

1. subject to the prior approval of the Commission, the Divestiture Trustee shall 

have the exclusive power and authority to assign, grant, license, divest, transfer, 

deliver or otherwise convey the assets that are required by this Order to be 

assigned, granted, licensed, divested, transferred, delivered or otherwise 

conveyed; 

2. the Divestiture Trustee shall have one (1) year from the date the Commission 

approves the trust agreement described herein to accomplish the divestiture, 

which shall be subject to the prior approval of the Commission. If, however, at 

the end of the one (1) year period, the Divestiture Trustee has submitted a plan of 

divestiture or believes that the divestiture can be achieved within a reasonable 

time, the divestiture period may be extended by the Commission; provided, 

however, the Commission may extend the divestiture period only two (2) times; 

3. subject to any demonstrated legally recognized privilege, the Divestiture Trustee 

shall have full and complete access to the personnel, books, records and facilities 

related to the relevant assets that are required to be assigned, granted, licensed, 

divested, delivered or otherwise conveyed by this Order and to any other relevant 

information, as the Divestiture Trustee may request. Respondents shall develop 

such financial or other information as the Divestiture Trustee may request and 

shall cooperate with the Divestiture Trustee. Respondents shall take no action to 

interfere with or impede the Divestiture 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 Divestiture Trustee, by 

the court; 

4. the Divestiture Trustee shall use commercially reasonable 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 and at no minimum price. The divestiture shall be made in 

the manner and to an Acquirer as required by this Order; provided, however, if the 

Divestiture 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 Divestiture Trustee shall divest to the acquiring entity selected by 

Respondents from among those approved by the Commission; and, provided 

further, however, that Respondents shall select such entity within five (5) days 

after receiving notification of the Commission’s approval; 

5. the Divestiture 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 Divestiture Trustee shall have the 

authority to employ, at the cost and expense of Respondents, such consultants, 
18

accountants, attorneys, investment bankers, business brokers, appraisers, and 

other representatives and assistants as are necessary to carry out the Divestiture 

Trustee’s duties and responsibilities. The Divestiture Trustee shall account for all 

monies derived from the divestiture and all expenses incurred. After approval by 

the Commission of the account of the Divestiture Trustee, including fees for the 

Divestiture Trustee’s services, all remaining monies shall be paid at the direction 

of Respondents, and the Divestiture Trustee’s power shall be terminated. The 

compensation of the Divestiture Trustee shall be based at least in significant part 

on a commission arrangement contingent on the divestiture of all of the relevant 

assets that are required to be divested by this Order; 

6. Respondents shall indemnify the Divestiture Trustee and hold the Divestiture 

Trustee harmless against any losses, claims, damages, liabilities, or expenses 

arising out of, or in connection with, the performance of the Divestiture Trustee’s 

duties, including all reasonable fees of counsel and other expenses incurred in 

connection with the preparation for, or defense of, any claim, whether or not 

resulting in any liability, except to the extent that such losses, claims, damages, 

liabilities, or expenses result from gross negligence, willful or wanton acts, or bad 

faith by the Divestiture Trustee; 

7. the Divestiture Trustee shall have no obligation or authority to operate or maintain 

the relevant assets required to be divested by this Order; provided, however, that 

the Divestiture Trustee appointed pursuant to this Paragraph may be the same 

Person appointed as Interim Monitor pursuant to the relevant provisions of this 

Order and/or the Order to Maintain Assets; 

8. the Divestiture Trustee shall report in writing to Respondents and to the 

Commission every sixty (60) days concerning the Divestiture Trustee’s efforts to 

accomplish the divestiture; and 

9. Respondents may require the Divestiture Trustee and each of the Divestiture 

Trustee’s consultants, accountants, attorneys and other representatives and 

assistants to sign a customary confidentiality agreement; provided, however, such 

agreement shall not restrict the Divestiture Trustee from providing any 

information to the Commission. 

E. If the Commission determines that a Divestiture Trustee has ceased to act or failed to act 

diligently, the Commission may appoint a substitute Divestiture Trustee in the same 

manner as provided in this Paragraph. 

F. The Commission or, in the case of a court-appointed Divestiture Trustee, the court, may 

on its own initiative or at the request of the Divestiture Trustee issue such additional 

orders or directions as may be necessary or appropriate to accomplish the divestiture 

required by this Order. 
19

V.

 IT IS FURTHER ORDERED that: 

A. Respondents shall assure that in any instance wherein their counsel (including in-house 

counsel under appropriate confidentiality arrangements) either retains Confidential 

Business Information provided to the Acquirer or accesses original documents containing 

Confidential Business Information (under circumstances where copies of documents are 

insufficient or otherwise unavailable), that Respondents’ counsel does so only in order to 

do the following: 

1. comply with this Order, a Divestiture Agreement, any Law (including, without 

limitation, any requirement to obtain regulatory licenses or approvals, and rules 

promulgated by the Commission), any data retention requirement of any 

applicable Government Entity, or any taxation requirements; or 

2. defend against, respond to, or otherwise participate in any litigation, investigation, 

audit, process, subpoena or other proceeding relating to the Portable NiMH 

Battery Products or assets and businesses associated with those products; 

provided, that Confidential Business Information may be disclosed to Third 

Parties as necessary for the purposes authorized by this Paragraph V pursuant to an 

appropriate confidentiality order, agreement or arrangement with the Acquirer (but 

Respondents shall not be deemed to have violated this requirement if the Acquirer 

withholds such agreement unreasonably); and (2) Respondents shall use their best efforts 

to obtain a protective order to protect the confidentiality of such Confidential Business 

Information during any adjudication; 

provided, further, that nothing in the Paragraph V shall permit Respondents to use 

or disclose any Confidential Business Information for any purposes not authorized by this 

Order (including this Paragraph V). 

VI.

 IT IS FURTHER ORDERED that: 

A. Within five (5) days after the Acquisition Date, Respondents shall submit to the 

Commission a letter certifying the date on which the Acquisition occurred. 

B. 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 this Order: 

1. Within thirty (30) days after the date this Order becomes final, 
20

2. Every sixty (60) days thereafter until Respondents have fully transferred the 

Portable NiMH Battery Business Assets and Portable NiMH Battery Business 

License(s) to an Acquirer; and 

3. Every six (6) months thereafter so long as Respondents have a continuing 

obligation under this Order and/or the Divestiture Agreements to render 

transitional services to the Acquirer. 

C. One (1) year after the date this Order becomes final, annually for the next nine years on 

the anniversary of the date this Order becomes final, and at other times as the 

Commission may require, Respondents shall file a verified written report with the 

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

complying with the Order. 

VII.

 IT IS FURTHER ORDERED that Respondents shall notify the Commission at least thirty 

(30) days prior: 

A. any proposed dissolution of Respondents; or 

B. any proposed acquisition, merger or consolidation of Respondents; or 

C. any other change in Respondents, including without limitation, assignment and the 

creation or dissolution of subsidiaries, if such change may affect compliance obligations 

arising out of this Order. 

VIII.

 IT IS FURTHER ORDERED that, for purposes of determining or securing compliance 

with this Order, and subject to any legally recognized privilege, and upon written request and 

upon five (5) days notice to any Respondent made to its principal United States offices, 

registered office of its United States subsidiary, or its headquarters address, Respondent shall, 

without restraint or interference, permit any duly authorized representative of the Commission: 

A. access, during business office hours of such Respondent and in the presence of counsel, 

to all facilities and access to inspect and copy all books, ledgers, accounts, 

correspondence, memoranda and all other records and documents in the possession or 

under the control of such Respondent related to compliance with this Order, which 

copying services shall be provided by such Respondent at the request of the authorized 

representative(s) of the Commission and at the expense of the Respondent; and 

B. to interview officers, directors, or employees of such Respondent, who may have counsel 

present, regarding such matters. 
21

IX.

 IT IS FURTHER ORDERED that this Order shall terminate ten (10) years from the date 

on which the Order becomes final. 

 By the Commission. 

 Donald S. Clark 

 Secretary 

SEAL 

ISSUED:
22

CONFIDENTIAL APPENDIX A 

FDK ACQUISITION AGREEMENTS 

[Redacted From the Public Record Version, But Incorporated By Reference] 
23

CONFIDENTIAL APPENDIX B 

KEY EMPLOYEES 

[Redacted From the Public Record Version, But Incorporated By Reference] 
24

CONFIDENTIAL APPENDIX C 

Agreement for Absorption-Type Split 

[Redacted From the Public Record Version, But Incorporated By Reference] 
25

CONFIDENTIAL APPENDIX D 

Plan for Incorporation-Type Split 

[Redacted From the Public Record Version, But Incorporated By Reference] 
26

CONFIDENTIAL APPENDIX E 

Interim Monitor Agreement 

[Redacted From the Public Record Version, But Incorporated By Reference]