0510115

UNITED STATES OF AMERICA

BEFORE FEDERAL TRADE COMMISSION

COMMISSIONERS: Deborah Platt Majoras, Chairman

Thomas B. Leary

Pamela Jones Harbour

Jon Leibowitz

)

In the Matter of )

)

THE PROCTER & GAMBLE COMPANY, )

a corporation; )

) Docket No. Cand )

)

THE GILLETTE COMPANY, )

a corporation. )

)

)

DECISION AND ORDER

[Public Record Version]

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

proposed acquisition by Respondent The Procter & Gamble Company ("P&G") of Respondent

The Gillette Company ("Gillette"), hereinafter referred to as “Respondents,” 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 of 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 Commission’s 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
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issue stating its charges in that respect, and having thereupon issued its Complaint and an Order

to Maintain Assets (attached to this Order as Appendix I), 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 P&G is a corporation organized, existing and doing business under

and by virtue of the laws of the state of Ohio, with its offices and principal place

of business located at One Procter & Gamble Plaza, Cincinnati, Ohio 45202.

2. Respondent Gillette is a corporation organized, existing and doing business under

and by virtue of the laws of the state of Delaware, with its offices and principal

place of business located at Prudential Tower, Boston, Massachusetts 02199.

3. The Commission has jurisdiction of 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. "P&G" means The Procter & Gamble Company, its directors, officers, employees, agents,

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

divisions, groups and affiliates in each case controlled by P&G, and the respective directors,

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

After the Acquisition, P&G shall include Gillette.

B. "Gillette" means The Gillette Company, its directors, officers, employees, agents,

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

divisions, groups and affiliates in each case controlled by Gillette, and the respective

directors, officers, employees, agents, representatives, predecessors, successors, and assigns

of each.

C. “Respondents” means P&G and Gillette, individually and collectively.

D. “Church & Dwight” means Church & Dwight Co., Inc., a corporation organized, existing,

and doing business under and by virtue of the laws of the State of Delaware, having its

principal place of business located at 469 North Harrison Street, Princeton, NJ 08543.
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E. “Philips” means Philips Oral Healthcare, Inc., a corporation organized, existing, and doing

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

principal place of business located at 35301 Center Street, Snoqualmie, Washington 98065,

together with its affiliates.

F. "Acquisition" means the acquisition contemplated by the “Agreement and Plan of Merger”

dated as of January 27, 2005, among The Procter & Gamble Company, Aquarium

Acquisition Corp. and The Gillette Company.

G. "Commission" means the Federal Trade Commission.

H. "Acquisition Date" means the earlier of the following dates:

1. the date the Respondents close on the Acquisition pursuant to the Acquisition

Agreement; or

2. the date the merger contemplated by the Acquisition Agreement becomes effective by

filing the certificate of merger with the Secretary of State of the State of Delaware.

I. “Agency(ies)” means any governmental regulatory authority or authorities in the world

responsible for granting approval(s), clearance(s), qualification(s), license(s), or permit(s)

for any aspect of the research, Development, manufacture, marketing, distribution, or sale of

the Divestiture Products or the IntelliClean Products, respectively. 

J. “APDO Assets” means all of Respondent Gillette’s rights, title and interest in and to all

assets related to Respondent Gillette’s worldwide business related to the APDO Products to

the extent legally transferable, including the research, Development, manufacture,

distribution, marketing, and sale of the APDO Products including, without limitation, the

following:

1. all Product Intellectual Property related to the APDO Products (which shall also include

the following Product Trademarks: Power Stripe ®; Power Caps ® and Cool Spray ®, or

any variations or derivatives of such Product Trademarks; provided however, that

Respondents may receive a transitional license back for a limited period of time (as is

approved by the Commission in the Remedial Agreements related to the APDO

Products) to these three Product Trademarks for the purposes of winding up the use of

such Product Trademarks in Respondent Gillette’s businesses associated with such

Product Trademarks);

2. perpetual, fully paid-up and royalty-free license(s) with rights to sublicense to all

Product Licensed Intellectual Property to use, make, distribute, offer for sale, promote,

advertise, sell, import, export, or have used, made, distributed, offered for sale,

promoted, advertised, sold, imported, or exported the APDO Products anywhere in the
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world;

3. all Product Manufacturing Technology related to the APDO Products;

4. all Product Marketing Materials related to the APDO Products;

5. all Website(s) related to the APDO Products;

6. at the Commission-approved Acquirer’s option, all Product Assumed Contracts related

to the APDO Products (copies to be provided to the Commission-approved Acquirer on

or before the Closing Date);

7. all Respondent Gillette’s books, records, and files related to the foregoing or to the

APDO Products; provided, however, that in cases in which documents or other

materials included in the APDO Assets contain information: (1) that relates both to the

APDO Products and to other Products or businesses of Respondent Gillette and cannot

be segregated in a manner that preserves the usefulness of the information as it relates to

the APDO Products; or (2) for which Respondent Gillette has a legal obligation to retain

the original copies, Respondent Gillette shall be required to provide only copies or

relevant excerpts of the documents and materials containing this information. In

instances where such copies are provided to the Commission-approved Acquirer,

Respondent Gillette shall provide the Commission-approved Acquirer access to original

documents under circumstances where copies of documents are insufficient for

evidentiary or regulatory purposes. The purpose of this proviso is to ensure that

Respondent Gillette provides the Commission-approved Acquirer with the abovedescribed information without requiring Respondent Gillette completely to divest itself

of information that, in content, also relates to Products and businesses other than the

APDO Products;

8. list of all customers and/or targeted customers for the APDO Products and the pricing

and/or planned or proposed pricing of the APDO Products for such customers; 

9. at the Commission-approved Acquirer’s option, all inventory in existence as of the

Closing Date including, but not limited to, raw materials, packaging materials, work-inprocess and finished goods related to the APDO Products;

10. all unfilled customer orders for finished goods as of the Closing Date related to the

APDO Products (a list of such orders is to be provided to the Commission-approved

Acquirer within two (2) days after the Closing Date); and

11. at the Commission-approved Acquirer’s option, the APDO Manufacturing Equipment.

K. “APDO Core Employee(s)” means the Product Manufacturing Employees, the Product
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Marketing Employees, the Product Research and Development Employees and the Product

Sales Employees related to the APDO Products.

L. “APDO Manufacturing Equipment” means all manufacturing and other equipment located at

Respondent Gillette’s facility located in Andover, Massachusetts, that was used, within the

one (1) year period immediately prior to the Acquisition and/or within the one (1) year

period immediately prior to the Closing Date, in the research, Development, manufacture, or

packaging of the APDO Products. 

M. “APDO Products” means all Products Developed, in Development, manufactured,

distributed, marketed or sold by Respondent Gillette prior to the Acquisition that were

marketed or sold or to be marketed or sold as Products using the Product Trademark Right

Guard® or any variations or derivatives of such Product Trademark; provided however, that,

at the Commission-approved Acquirer’s option, “APDO Products” shall also include all

Products Developed, in Development, manufactured, distributed, marketed or sold by

Respondent Gillette prior to the Acquisition that were marketed or sold or to be marketed or

sold as Products using any of the Product Trademarks Soft&Dri® and Dry Idea® or any

variations or derivatives of such Product Trademarks; provided further, that, pending

Commission approval of the divestiture of the APDO Assets, “APDO Products” includes

Products using the Product Trademarks Soft&Dri® and Dry Idea® for the purposes of any

requirements under this Order or the Order to Maintain Assets to maintain assets; provided

further, that “APDO Products” does not include Products Developed, in Development,

manufactured, distributed, marketed or sold by Respondent Gillette prior to the Acquisition

that were marketed or sold or to be marketed or sold as Products using the Product

Trademark Gillette Series® or any variations or derivatives of such Product Trademark. 

N. “APDO Releasees” means the Commission-approved Acquirer for the APDO Products or

any entity controlled by or under common control with such Commission-approved

Acquirer, or any licensees, sublicensees, manufacturers, suppliers, distributors, and

customers of such Commission-approved Acquirer, or of such Commission-approved

Acquirer-affiliated entities.

O. “Closing Date” means as to each Divestiture Product the date on which Respondent (or a

Divestiture Trustee) closes on the divestiture of the assets relevant to such Divestiture

Product pursuant to this Order.

P. “Commission-approved Acquirer” means the following: (1) an entity that is specifically

identified in this Order to acquire particular assets that the Respondents are required to

assign, grant, license, divest, transfer, deliver, or otherwise convey pursuant to this Order

and that has been approved by the Commission to accomplish the requirements of this Order

in connection with the Commission’s determination to make this Order final; or (2) an entity

approved by the Commission to acquire particular assets that the Respondents are required

to assign, grant, license, divest, transfer, deliver, or otherwise convey pursuant to this Order.
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Q. “Confidential Business Information” means all information owned by, or in the possession

or control of, Respondents that is not in the public domain and that is related to the research,

Development, manufacture, marketing, commercialization, importation, exportation, cost,

pricing, supply, sales, sales support or use of the Divestiture Product(s) or the IntelliClean

Products, respectively; provided however, that “Confidential Business Information” shall

not include, the following:

1. information that subsequently falls within the public domain through no violation of this

Order or breach of confidentiality or non-disclosure agreement with respect to such

information by Respondents;

2. information related to the SpinBrush Products that Respondent Gillette can demonstrate

it obtained without the assistance of Respondent P&G prior to the Acquisition;

3. information related to the Rembrandt Products that Respondent P&G can demonstrate it

obtained without the assistance of Respondent Gillette prior to the Acquisition;

4. information related to the APDO Products that Respondent P&G can demonstrate it

obtained without the assistance of Respondent Gillette prior to the Acquisition;

5. information related to the IntelliClean Products that Respondent Gillette can demonstrate

it obtained without the assistance of Respondent P&G prior to the Acquisition;

6. information that is required by Law to be publically disclosed; or

7. information that does not relate to the Divestiture Product(s) or the IntelliClean

Products. 

R. “Contract Manufacture” means the manufacture of a Divestiture Product or the IntelliClean

Products to be supplied by Respondent or a Designee.

S. “Designee” means any entity other than Respondents that will manufacture a Divestiture

Product for a Commission-approved Acquirer.

T. “Development” means formulation, design (including packaging design), process

development, manufacturing scale-up, development-stage manufacturing, quality

assurance/quality control development, Product approval and registration. “Develop” means

to engage in Development.

U. “Direct Cost” means a cost not to exceed the cost of direct labor and direct material used to

provide the relevant assistance or service. “Direct Cost” to the Commission-approved

Acquirer’s for its use of any of the Respondents’ employees shall not exceed the average

hourly wage rate for such employee.
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V. “Divestiture Product” means a Product that is the subject of a divestiture under this Order,

i.e., the APDO Products, the Rembrandt Products, or the SpinBrush Products, individually

and collectively.

W. "Divestiture Trustee" means the trustee appointed by the Commission pursuant to the

relevant provisions of this Order.

X. “Domain Name” means the domain name(s) (universal resource locators) and registration(s)

thereof, issued by any entity or authority that issues and maintains the domain name

registration. “Domain Name” shall not include any trademark or service mark rights to such

domain names other than the rights to the Product Trademarks related to the Divestiture

Products.

Y. “Governmental Entity” means any Federal, state, local or non-U.S. government, or any

court, legislature, governmental agency, or governmental commission, or any judicial or

regulatory authority of any government.

Z. “High Volume Retail Account” means any retailer or distributor whose annual and/or

projected aggregate annual sales in units or in dollars of a Divestiture Product in the United

States on a company-wide level was or is among the top twenty highest of such sales within

the United States on any of the following dates: 1) the end of the last quarter that

immediately preceded the date of the public announcement of the proposed Acquisition; 2)

the end of the last quarter that immediately preceded the Acquisition Date; or 3) the end of

the last quarter that immediately preceded the Closing Date for the relevant assets.

AA. “IntelliClean Products” means all Products Developed, in Development, manufactured,

distributed, marketed or sold pursuant to the IntelliClean Agreement. This includes those

toothbrushes marketed using the Sonicare® trademark and any variations or derivatives of

such trademark and the dentifrice Product used in connection with the rechargeable

toothbrush(es) that are a part of the IntelliClean Products.

BB. “IntelliClean Agreement” means the “Commercialization Agreement (ONYX Advanced)”

between Philips Oral Healthcare, Inc. and The Procter & Gamble Company dated as of

August 1, 2003 including all amendments, exhibits, attachments, agreements, and schedules

thereto entered into prior to the public announcement of the Acquisition, including, but not

limited to, the “P&G/Philips Joint Evaluation Agreement Project ONYX” dated October 23,

2001. The IntelliClean Agreement is attached to this Order and contained in non-public

Appendix III.

CC. “IntelliClean Amended Agreement” means the “Agreement to Amend Commercialization

Agreement (ONYX Advanced)” between Philips Oral Healthcare, Inc. and The Procter &

Gamble Company dated September 21, 2005, and all amendments, exhibits, attachments,

agreements, and schedules thereto, related to the Product IntelliClean, that have been
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approved by the Commission to accomplish the requirements of this Order. The IntelliClean

Amended Agreement is attached to this Order and contained in non-public Appendix III. 

Upon amendment of the IntelliClean Agreement in accordance with the above-described

agreement to amend, the “IntelliClean Amended Agreement” shall mean the “IntelliClean

Agreement” as so amended. 

DD. “Interim Monitor” means any monitor appointed pursuant to Paragraph VI of this Order or

Paragraph III of the related Order to Maintain Assets.

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

any Governmental Entity having the effect of law.

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

a part of the Agreement Containing Consent Orders. The Order to Maintain Assets is

attached to this Order and contained in Appendix I.

GG. “Patents” means all patents, patent applications, and statutory invention registrations, in

each case existing as of the Closing Date (except where this Order specifies a different time),

and includes all reissues, divisions, continuations, continuations-in-part, supplementary

protection certificates, extensions and reexaminations thereof, all inventions disclosed

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, related to any Product of or

owned by Respondent(s) as of the Closing Date.

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

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

and any subsidiaries, divisions, groups or affiliates thereof.

II. “Product” means a retail consumer good Developed, made, distributed, marketed or sold by

Respondent(s).

JJ. “Product Assumed Contracts” means all of the following contracts or agreements:

1. pursuant to which any Third Party purchases the Divestiture Product(s) from the

Respondent(s);

2. pursuant to which the Respondent(s) purchases any materials from any Third Party for

use in connection with the manufacture of the Divestiture Product(s);

3. relating to any quality control trials involving the Divestiture Product(s);

4. relating to the marketing of the Divestiture Product(s) or educational matters relating to

the Divestiture Product(s) including, but not limited to, the slotting and/or shelf spacing
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assignments of the Divestiture Product with the High Volume Retail Accounts;

5. relating to the manufacture of the Divestiture Product(s);

6. constituting confidentiality agreements involving the Divestiture Product(s);

7. involving any royalty, licensing, or similar arrangement involving the Divestiture

Product(s);

8. pursuant to which any services are provided with respect to the Divestiture Product(s) or

the Divestiture Product(s) business, including consultation arrangements; and/or

9. pursuant to which any Third Party collaborates with the Respondent(s) in the

performance of research, Development, marketing or selling of the Divestiture

Product(s) or the Divestiture Product(s) business;

provided, however, that where any such contract or agreement also relates to a Retained

Product(s), Respondent(s) shall assign the Commission-approved Acquirer all such rights

under the contract or agreement as are related to the Divestiture Product(s), but

concurrently may retain similar rights for the purposes of the Retained Product(s).

KK. “Product Copyrights” means rights to all original works of authorship of any kind related to

the Divestiture Product(s) or the IntelliClean Products and any registrations and applications

for registrations thereof, including, but not limited to, the following: all promotional

materials for retailers; all promotional materials for customers; copyrights in Development

data and reports relating to the research and Development of the Divestiture Product(s) or

the IntelliClean Products or of any materials used in the research, Development,

manufacture, marketing or sale of the Divestiture Product(s) or the IntelliClean Products,

including all raw data relating to quality trials of the Product(s), customer information,

promotional and marketing materials, the Divestiture Product(s) or the IntelliClean Products

sales forecasting models, Website content and advertising and display materials; all records

relating to employees who accept employment with the Commission-approved Acquirer

(excluding any personnel records the transfer of which is prohibited by applicable Law); all

records, including customer lists, sales force call activity reports, vendor lists, sales data,

slotting allowance data, speaker lists, manufacturing records, manufacturing processes, and

supplier lists; all data contained in laboratory notebooks relating to the Divestiture

Product(s) or the IntelliClean Products.

LL. “Product Employee Information” means the following, as and to the extent permitted by the

Law:

1. a complete and accurate list containing the name of each relevant employee (including

former employees who were employed by Respondent(s) within ninety (90) Days of the
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execution date of any Remedial Agreement);

2. with respect to each such employee, the following information:

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 relevant

Divestiture Product; provided, however, in lieu of this description, Respondent(s)

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 the Respondent’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 part-time); and

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

that are not otherwise generally available to similarly situated employees; and

3. at the Commission-approved Acquirer’s option or the Proposed Acquirer’s option (as

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

applicable to the relevant employees. 

MM. “Product Intellectual Property” means all of the following related to a Divestiture Product or

the IntelliClean Products (other than Product Licensed Intellectual Property):

1. Patents;

2. Product Copyrights; 

3. Product Trademarks, trade names, Product Trade Dress, trade secrets, know-how,

techniques, data, inventions, practices, methods, and other confidential or proprietary

technical, business, research, Development and other information; and

4. rights to obtain and file for patents and registrations thereof; 

provided, however, “Product Intellectual Property” does not include the names or

trade dress of “Procter & Gamble”, “P&G”, “Gillette”, “Oral-B”, “Crest”, “Blend-aMed”, “Blend-a-Dent”, “Blendi”, “Ipana”, “AZ”, “Series”, or the names or trade dress

of any other corporations, companies, or brands owned or sold by Respondents or
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related logos to the extent used on Respondent P&G’s or Respondent Gillette’s

Retained Products.

NN. “Product Licensed Intellectual Property” means the following:

1. Patents that are related to a Divestiture Product or the IntelliClean Products that

Respondent(s) can demonstrate have been routinely used, prior to the Acquisition Date,

by either Respondent P&G or Respondent Gillette (as applicable) for a Retained

Product(s) that: 1) have been marketed or sold on a extensive basis by the relevant

Respondent within the two-year period immediately preceding the Acquisition; or 2) for

which, prior to the announcement of the Acquisition, there was an approved brand or

marketing plan to market or sell such a Retained Product on an extensive basis by the

Respondents; and 

2. trade secrets, know-how, techniques, data, inventions, practices, methods, and other

confidential or proprietary technical, business, research, Development, and other

information, and all rights in any jurisdiction to limit the use or disclosure thereof, that

are related to a Divestiture Product or the IntelliClean Products and that Respondent(s)

can demonstrate have been routinely used, prior to the Acquisition Date, by either

Respondent P&G or Respondent Gillette (as applicable) for Retained Product(s) that: 1)

have been marketed or sold on a extensive basis by the relevant Respondent within the

two-year period immediately preceding the Acquisition; or 2) for which, prior to the

announcement of the Acquisition, there was an approved brand or marketing plan to

market or sell such a Retained Product on an extensive basis by the Respondents;

provided however, that, in cases where the aggregate retail sales in dollars within the twoyear period immediately preceding the Acquisition of the Retained Product(s) collectively

are less than the aggregate retail sales in dollars within the same period of the Divestiture

Product(s) collectively, the above-described intellectual property shall be considered, at

the Commission-approved Acquirer’s option, Product Intellectual Property and, thereby,

subject to assignment to the Commission-approved Acquirer; provided further, however,

that in such cases, Respondents may take a license back from the Commission-approved

Acquirer for such intellectual property for use in connection with the Retained Products. 

OO. “Product Manufacturing Employees” means all salaried employees of Respondent(s) who

directly have participated (irrespective of the portion of working time involved, unless such

participation was part of a broad executive management portfolio above the level of value

stream manager at Respondent Gillette, or consisted of oversight of legal, accounting, tax or

financial compliance) in the manufacture of the Product(s), including, but not limited to,

those involved in the quality assurance and quality control of the Product(s), within the

eighteen (18) month period immediately prior to the Closing Date.
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PP. “Product Manufacturing Technology” means all technology, trade secrets, know-how, and

proprietary information (whether patented, patentable or otherwise) related to the

manufacture (including, at the Commission-approved Acquirer’s option, all equipment used

to manufacture) the Divestiture Products or the IntelliClean Products, respectively,

including, but not limited to all product specifications, processes, product designs, plans,

trade secrets, ideas, concepts, manufacturing, engineering, and other manuals, and drawings,

standard operating procedures, flow diagrams, chemical, safety, quality assurance, quality

control, research records, clinical data, compositions, annual product reviews, regulatory

communications, and labeling and all other information related to the manufacturing

process, and supplier lists.

QQ. “Product Marketing Employees” means salaried management level employees of

Respondent(s) who directly have participated (irrespective of the portion of working time

involved, unless such participation was a part of a broad executive management portfolio

above the brand manager level, or of oversight of legal, accounting, tax or financial

compliance) in the marketing, contracting, or promotion of the Divestiture Product(s) in the

United States within the eighteen (18) month period immediately prior to the Closing Date. 

These employees include, without limitation, all management level employees having any

responsibilities in the areas of sales management, brand management, sales training, market

research, but excluding administrative assistants.

RR. “Product Marketing Materials” means all marketing materials used anywhere in the world

related to the Divestiture Product(s) as of the Closing Date, including, without limitation, all

advertising materials, training materials, product data, price lists, mailing lists, sales

materials (e.g., detailing reports; vendor lists; sales data), marketing information, (e.g.,

competitor information; research data; market intelligence reports; statistical programs (if

any) used for marketing and sales research; customer information, including customer sales

information; sales forecasting models; educational materials; Website content and

advertising and display materials; speaker lists), promotional and marketing materials,

artwork for the production of packaging components, television masters and other similar

materials related to the Divestiture Product(s).

SS. “Product Research and Development Employees” means all salaried employees of

Respondent(s) who directly have participated (irrespective of the portion of working time

involved, unless such participation was a part of a broad executive management portfolio

above the section head level at Respondent P&G or above the level of associate director at

Respondent Gillette (for the APDO Products) or above the level of director at Respondent

Gillette (for the Rembrandt Products), or of oversight of legal, accounting, tax or financial

compliance) in the research, Development, or quality control approval process of the

Divestiture Product(s) within the eighteen (18) month period immediately prior to the

Closing Date.
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TT. “Product Sales Employees” means all salaried employees of Respondent(s) who have

participated (irrespective of the portion of working time involved, unless such participation

was a part of a broad executive management portfolio above the level of the manager for a

category of Products within the customer business development team for a High Volume

Retail Account or of oversight of legal, accounting, tax or financial compliance) in the

marketing or promotion of the Divestiture Product(s) in the United States directly to a High

Volume Retail Account for the Divestiture Product(s) during the twelve (12) month period

immediately prior to the Acquisition Date until the Closing Date for the assets related to

such Divestiture Product(s).

UU. “Product Trade Dress” means the current trade dress of the Product, including but not

limited to, Product packaging, and the lettering of the Product trade name or brand name.

VV. “Product Trademark(s)” means all proprietary names or designations, trademarks, service

marks, tradenames, and brand names, including registrations and applications for

registration therefor (and all renewals, modifications, and extensions thereof) and all

common law rights, and the goodwill symbolized thereby and associated therewith, for the

Product(s).

WW. “Proposed Acquirer” means an entity proposed by the Respondent(s) (or a Divestiture

Trustee) to the Commission and submitted for the approval of the Commission as the

acquirer for particular assets required to be assigned, granted, licensed, divested, transferred,

delivered or otherwise conveyed by Respondent(s) pursuant to this Order.

XX. “Rembrandt Assets” means all Respondent Gillette’s rights, title and interest in and to all

assets related to Respondent Gillette’s worldwide business related to the Rembrandt

Products to the extent legally transferable, including the research, Development,

manufacture, distribution, marketing, and sale of the Rembrandt Products, including,

without limitation, the following:

1. all Product Intellectual Property related to the Rembrandt Products;

2. perpetual, fully paid-up and royalty-free license(s) with rights to sublicense to all

Product Licensed Intellectual Property to use, make, distribute, offer for sale, promote,

advertise, sell, import, export, or have used, made, distributed, offered for sale,

promoted, advertised, sold, imported, or exported the Rembrandt Products worldwide;

3. all Product Manufacturing Technology related to the Rembrandt Products;

4. all Product Marketing Materials related to the Rembrandt Products;

5. all Website(s) related to the Rembrandt Products;
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6. at the Commission-approved Acquirer’s option, all Product Assumed Contracts related

to the Rembrandt Products (copies to be provided to the Commission-approved Acquirer

on or before the Closing Date);

7. all Respondent Gillette’s books, records, and files related to the foregoing or to

Rembrandt Products; provided, however, that in cases in which documents or other

materials included in the Rembrandt Assets contain information: (1) that relates both to

the Rembrandt Products and to other Products or businesses of Respondent Gillette and

cannot be segregated in a manner that preserves the usefulness of the information as it

relates to the Rembrandt Products; or (2) for which Respondent Gillette has a legal

obligation to retain the original copies, Respondent Gillette shall be required to provide

only copies or relevant excerpts of the documents and materials containing this

information. In instances where such copies are provided to the Commission-approved

Acquirer, Respondent Gillette shall provide the Commission-approved Acquirer access

to original documents under circumstances where copies of documents are insufficient

for evidentiary or regulatory purposes. The purpose of this proviso is to ensure that

Respondent Gillette provides the Commission-approved Acquirer with the abovedescribed information without requiring Respondent Gillette completely to divest itself

of information that, in content, also relates to Products and businesses other than the

Rembrandt Products;

8. list of all customers and/or targeted customers for the Rembrandt Products and the

pricing and/or planned or proposed pricing of the Rembrandt Products for such

customers; 

9. at the Commission-approved Acquirer’s option, all inventory in existence as of the

Closing Date including, but not limited to, raw materials, packaging materials, work-inprocess and finished goods related to the Rembrandt Products; and

10. all unfilled customer orders for finished goods related to the Rembrandt Products as of

the Closing Date (a list of such orders is to be provided to the Commission-approved

Acquirer within two (2) days after the Closing Date).

YY. “Rembrandt Core Employee(s)” means the Product Marketing Employees, the Product Sales

Employees, and the Product Research and Development Employees related to the

Rembrandt Products.

ZZ. “Rembrandt Key Employee(s)” means those employees of Respondents specifically

identified in Appendix IV of this Order.

AAA. “Rembrandt IP Protected Products” means all Rembrandt Products except any Rembrandt

Product that, as of the Closing Date, is in an earlier stage of research or Development than

Stage 3 of Respondent Gillette’s SPEED (New Development Process) Program (as such
15

program was applied to Products and in effect within the one (1) year period prior to the

Acquisition Date); provided however, “Rembrandt IP Protected Products” also includes all

Rembrandt Products specifically identified in Appendix V attached to this Order. 

BBB. “Rembrandt Products” means all Products Developed, in Development, manufactured,

distributed, marketed or sold by Respondent Gillette prior to the Acquisition that were

marketed or sold or to be marketed or sold as teeth whitening agents and/or as Products

using such Product Trademarks Rembrandt® or any variation or derivative of such Product

Trademarks.

CCC. “Rembrandt Releasee(s)” means the Commission-approved Acquirer for the Rembrandt

Products or any entity controlled by or under common control with such Commissionapproved Acquirer, or any licensees, sublicensees, manufacturers, suppliers, distributors,

and customers of such Commission-approved Acquirer, or of such Commission-approved

Acquirer-affiliated entities.

DDD. “Remedial Agreement” means the following: (1) any agreement between Respondent(s) and

a Commission-approved Acquirer that is specifically referenced and attached to this Order,

including all amendments, exhibits, attachments, agreements, and schedules thereto, related

to the relevant assets to be assigned, granted, licensed, divested, transferred, delivered, or

otherwise conveyed, and that has been approved by the Commission to accomplish the

requirements of the Order in connection with the Commission’s determination to make this

Order final; and/or (2) any agreement between the Respondent(s) and a Commissionapproved Acquirer (or between a Divestiture Trustee and a Commission-approved Acquirer)

that has been approved by the Commission to accomplish the requirements of this Order,

including all amendments, exhibits, attachments, agreements, and schedules thereto, related

to the relevant assets to be assigned, granted, licensed, divested, transferred, delivered, or

otherwise conveyed, and that has been approved by the Commission to accomplish the

requirements of this Order.

EEE. “Retained Product” means any Product(s) other than a Divestiture Product.

FFF. “SpinBrush Assets” means all Respondent P&G’s rights, title and interest in and to all assets

related to Respondent P&G’s worldwide business related to the SpinBrush Products, to the

extent legally transferable, including the research, Development, manufacture, distribution,

marketing, and sale of the SpinBrush Products including, without limitation, the following:

1. all Product Intellectual Property related to the SpinBrush Products;

2. perpetual, fully paid-up and royalty-free license(s) with rights to sublicense to all

Product Licensed Intellectual Property to use, make, distribute, offer for sale, promote,

advertise, sell, import, export, or have used, made, distributed, offered for sale,

promoted, advertised, sold, imported, or exported the SpinBrush Products anywhere in
16

the world; provided however, such license for the Product Licensed Intellectual Property

shall also include the rights to use Respondent P&G’s Crest® trademark in connection

with the marketing of the SpinBrush Products for a limited period as is approved by the

Commission in the Remedial Agreements related to the SpinBrush Assets;

3. all Product Manufacturing Technology related to the SpinBrush Products;

4. all Product Marketing Materials related to the SpinBrush Products;

5. all Website(s) related to the Spinbrush Products;

6. at the Commission-approved Acquirer’s option, all Product Assumed Contracts related

to the SpinBrush Products (copies to be provided to the Commission-approved Acquirer

on or before the Closing Date);

7. all Respondent P&G’s books, records, files related to the foregoing or to SpinBrush

Products; provided, however, that in cases in which documents or other materials

included in the SpinBrush Assets contain information: (1) that relates both to the

SpinBrush Products and to other Products or businesses of Respondent P&G and cannot

be segregated in a manner that preserves the usefulness of the information as it relates to

the SpinBrush Products; or (2) for which Respondent P&G has a legal obligation to

retain the original copies, Respondent P&G shall be required to provide only copies or

relevant excerpts of the documents and materials containing this information. In

instances where such copies are provided to the Commission-approved Acquirer,

Respondent P&G shall provide the Commission-approved Acquirer access to original

documents under circumstances where copies of documents are insufficient for

evidentiary or regulatory purposes. The purpose of this proviso is to ensure that

Respondent P&G provides the Commission-approved Acquirer with the above-described

information without requiring Respondent P&G completely to divest itself of

information that, in content, also relates to Products and businesses other than the

SpinBrush Products;

8. list of all customers and/or targeted customers for the SpinBrush Products and the

pricing and/or planned or proposed pricing of the SpinBrush Products for such

customers; 

9. at the Commission-approved Acquirer’s option, all inventory, including raw materials,

packaging materials, work-in-process and finished goods related to the SpinBrush

Products; and

10. all unfilled customer orders for finished goods related to the SpinBrush Products as of

the Closing Date (a list of such orders is to be provided to the Commission-approved

Acquirer within two (2) days after the Closing Date).
17

GGG. “SpinBrush Asset Purchase Agreement” means the “Asset Sale and Purchase Agreement”

among The Procter & Gamble Company, certain of its affiliates and Church & Dwight Co.,

Inc. dated September 23, 2005, and all amendments, exhibits, attachments, agreements, and

schedules thereto, related to the SpinBrush Assets to be divested, that have been approved

by the Commission to accomplish the requirements of this Order. The SpinBrush Asset

Purchase Agreement is attached to this Order and contained in non-public Appendix II.

HHH. “SpinBrush Core Employee(s)” means the Product Marketing Employees, Product Sales

Employees, and Product Research and Development Employees related to the SpinBrush

Products.

III. “SpinBrush Products” means all Products Developed, in Development, manufactured,

distributed, marketed or sold by Respondent P&G prior to the Acquisition that were

marketed or sold or to be marketed or sold as non-rechargeable battery-powered

toothbrushes and/or as Products using the Product Trademark SpinBrush® or any variation

or derivative on or prior to the Closing Date. “SpinBrush Products” includes, but is not

limited to, those rechargeable battery-powered toothbrush Products Developed or in

Development under Respondent P&G “Project Franklin” designation.

JJJ. “SpinBrush Releasee(s)” means the Commission-approved Acquirer for the SpinBrush

Products or any entity controlled by or under common control with such Commissionapproved Acquirer, or any licensees, sublicensees, manufacturers, suppliers, distributors,

and customers of such Commission-approved Acquirer, or of such Commission-approved

Acquirer-affiliated entities.

KKK. “Supply Cost” means a cost not to exceed the manufacturer’s average direct per unit cost of

manufacturing the Divestiture Product for the twelve (12) month period immediately

preceding the Acquisition Date. “Supply Cost” shall expressly exclude any intracompany

business transfer profit. 

LLL. “Third Party(ies)” means any private entity other than the following: (1) the Respondents; or

(2) the Commission-approved Acquirer.

MMM. “Website(s)” means the content of the Website(s) located at the Domain Names, and all

copyrights in such Website(s), to the extent owned by Respondents; provided, however,

“Website” shall not include the following: (1) content owned by Third Parties and other

Product Intellectual Property not owned by Respondent(s) that are incorporated in such

Website(s), such as stock photographs used in the Website(s), except to the extent that

Respondent(s) can convey its rights, if any, therein; or (2) content unrelated to the

Divestiture Product(s).
18

II.

IT IS FURTHER ORDERED that:

A. Not later than ninety (90) days after the date this Order becomes final, Respondents shall

divest the Rembrandt Assets, absolutely and in good faith, and at no minimum price. 

Respondents shall divest the Rembrandt Assets to a Commission-approved Acquirer and

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

B. Any Remedial Agreement related to the Rembrandt Assets shall be deemed incorporated

into this Order, and any failure by Respondents to comply with any term of such Remedial

Agreement related to the Rembrandt Assets shall constitute a failure to comply with this

Order. 

C. Respondents shall include in any Remedial Agreement related to the Rembrandt Assets the

following provisions:

1. upon reasonable notice and request from the Commission-approved Acquirer to the

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

Cost the following:

a. assistance and advice to enable the Commission-approved Acquirer (or the

Designee of the Commission-approved Acquirer) to obtain all necessary permits and

approvals from any Agency or Governmental Entity to manufacture and sell the 

Rembrandt Products;

b. assistance to the Commission-approved Acquirer (or the Designee of the

Commission-approved Acquirer) to manufacture Rembrandt Products in

substantially the same manner and quality employed or achieved by or on behalf of

Respondent Gillette; and

c. consultation with knowledgeable employees of Respondents and training, at the

request of the Commission-approved Acquirer and at a facility chosen by the

Commission-approved Acquirer sufficient to satisfy management of the

Commission-approved Acquirer that its personnel (or the Designee’s personnel) are

adequately trained in the manufacture of the Rembrandt Products;

2. upon reasonable notice and request from the Commission-approved Acquirer to

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

Cost, assistance of knowledgeable employees of the Respondents to assist the

Commission-approved Acquirer to defend against, respond to, or otherwise participate in

any litigation related to the Product Intellectual Property;
19

3. Respondents shall covenant to the Commission-approved Acquirer that Respondents

shall:

a. not join, file, prosecute or maintain any suit, in law or equity, against the

Commission-approved Acquirer under Patents that are owned or licensed by

Respondents as of the Acquisition Date, if such suit would have the potential to

interfere with the Commission-approved Acquirer’s freedom to practice in the

research, Development, manufacture, use, import, export, distribution or sale of the

Rembrandt IP Protected Products; provided however, that Respondents may receive

a covenant from the Commission-approved Acquirer not to assert any Patent related

to the Rembrandt Products that is assigned to the Commission-approved Acquirer

from the Respondents pursuant to this Order against the Respondents for

Respondents’ infringement of such Patent in connection with those Products

marketed or sold by Respondent P&G as teeth whitening agents immediately prior

to the Acquisition Date; 

b. not use any Confidential Business Information related to the Rembrandt Products

obtained by Respondents from any person who was an employee of Respondent

Gillette within the two (2) year period immediately prior to the Acquisition in any

suit against the Commission-approved Acquirer under Patents that are owned or

licensed by Respondents as of the Acquisition Date, if such suit would have the

potential to interfere with the Commission-approved Acquirer’s freedom to practice

in the research, Development, manufacture, use, import, export, distribution or sale

of the Rembrandt Products; and

4. Respondents shall covenant to the Commission-approved Acquirer that: (1) as a

condition of any assignment, transfer or license to a Third Party of the Patents described

in Paragraph II.C.3.a., the Third Party shall agree to provide a covenant whereby the

Third Party covenants not to sue the Rembrandt Releasees under such Patents, if the suit

would have the potential to interfere with the Commission-approved Acquirer’s freedom

to practice in the research, Development, manufacture, use, import, export, distribution

or sale of the Rembrandt IP Protected Products; and (2) with respect to any Third Party

rights licensed to Respondents as of or after the Acquisition Date, and as to which

Respondents do not control the right of prosecution of any legal action, Respondents

shall not actively induce, assist or participate in any legal action or proceeding relating to

Rembrandt IP Protected Products against the Rembrandt Releasees, unless required by

Law or contract (such contract not to be solicited or entered into for the purpose of

circumventing any of the requirements of this Order).

D. Respondents shall:

1. submit to the Commission-approved Acquirer, at Respondents’ expense, all Confidential

Business Information related to the Rembrandt Products;
20

2. deliver such Confidential Business Information as follows: (1) in good faith; (2) as soon

as practicable, avoiding any delays in transmission of the respective information; and (3)

in a manner that ensures its completeness and accuracy and that fully preserves its

usefulness;

3. pending complete delivery of all such Confidential Business Information to the

Commission-approved Acquirer, provide the Commission-approved Acquirer and the

Interim Monitor (if any has been appointed) with access to all such Confidential

Business Information and employees who possess or are able to locate such information

for the purposes of identifying the books, records, and files related to the Rembrandt

Products that contain such Confidential Business Information and facilitating the

delivery in a manner consistent with this Order;

4. not use, directly or indirectly, any such Confidential Business Information related to the

research, Development, manufacturing, marketing, or sale of the Rembrandt Products

(other than as necessary to comply with the following: (1) the requirements of this

Order; (2) the Respondents’ obligations to the Commission-approved Acquirer under the

terms of any Remedial Agreement related to the Rembrandt Assets; or (3) applicable

Law); and 

5. not disclose or convey any such Confidential Business Information, directly or indirectly,

to any person except the Commission-approved Acquirer;

6. shall not provide, disclose or otherwise make available, directly or indirectly, any such

Confidential Business Information related to the marketing or sales of the Rembrandt

Assets to the employees associated with business related to the teeth whitening Products

marketed and sold by Respondent P&G prior to the Acquisition (including, but not

limited to, those employees with work responsibilities related to the Crest® trademark

and any variations or derivatives of such trademark). 

E. Respondents shall not enforce any agreement against a Third Party or the Commissionapproved Acquirer to the extent that such agreement may limit or otherwise impair the

ability of the Commission-approved Acquirer to acquire the Product Manufacturing

Technology related to the Rembrandt Products or related equipment from the Third Party. 

Such agreements include, but are not limited to, agreements with respect to the disclosure of

Confidential Business Information related to such Product Manufacturing Technology.

F. Not later than ten (10) days after the Closing Date, Respondents shall grant a release to each

Third Party that is subject to an agreement as described in Paragraph II.E. that allows the

Third Party to provide the relevant Product Manufacturing Technology or related equipment

to the Commission-approved Acquirer. Within five (5) days of the execution of each such

release, Respondents shall provide a copy of the release to the Commission-approved

Acquirer. 
21

G. Respondents shall:

1. for a period of at least six (6) months from the Closing Date, provide the Commissionapproved Acquirer with the opportunity to enter into employment contracts with the

Rembrandt Core Employees and Rembrandt Key Employees. This period is hereinafter

referred to as the “Rembrandt Access Period”; and 

2. not later than the earlier of the following dates: (1) ten (10) days after notice by staff of

the Commission to the Respondents to provide the Product Employee Information; or (2)

ten (10) Days after the Closing Date, Respondents shall provide the Commissionapproved Acquirer or the Proposed Acquirer with the Product Employee Information

related to the Rembrandt Core Employees and Rembrandt Key Employees. Failure by

Respondents to provide the Product Employee Information for any relevant employee

within the time provided herein shall extend the Rembrandt Access Period with respect

to that employee in an amount equal to the delay. 

H. Respondents shall:

1. during the Rembrandt Access Period, not interfere with the hiring or employing by the

Commission-approved Acquirer of Rembrandt Core Employees and Rembrandt Key

Employees, and remove any impediments within the control of Respondents that may

deter these employees from accepting employment with the Commission-approved

Acquirer, including, but not limited to, any noncompete or nondisclosure provisions of

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

incentive of those individuals to be employed by the Commission-approved Acquirer. In

the case of the Rembrandt Key Employees, Respondents shall waive, for the benefit of

the Commission-approved Acquirer, any attorney-client privilege as it pertains to the

Rembrandt Products. In addition, Respondents shall not make any counteroffer to a

Rembrandt Core Employee or Rembrandt Key Employee who receives a written offer of

employment from the Commission-approved Acquirer; 

provided, however, that this Paragraph II.H.1 shall not prohibit the Respondents from 

making offers of employment to or employing any Rembrandt Core Employee or

Rembrandt Key Employee during the Rembrandt Access Period where the

Commission-approved Acquirer has notified the Respondents in writing that the

Commission-approved Acquirer does not intend to make an offer of employment to

that employee; 

provided further that if the Respondents notify the Commission-approved Acquirer in

writing of their desire to make an offer of employment to a particular Rembrandt Core

Employee or Rembrandt Key Employee and the Commission-approved Acquirer does

not make an offer of employment to that employee within twenty (20) Days of the

date the Commission-approved Acquirer receives such notice, the Respondents may
22

make an offer of employment to that employee;

2. until the Closing Date, provide all Rembrandt Core Employees and Rembrandt Key

Employees with reasonable financial incentives to continue in their positions and to

market and promote the Rembrandt Products consistent with past practices and/or as

may be necessary to preserve the marketability, viability and competitiveness of the

Rembrandt Products and to ensure successful execution of the pre-Acquisition marketing

plans related to the Rembrandt Products. Such incentives shall include a continuation of

all employee compensation and benefits offered by Respondents until the Closing Date

for the divestiture of the Rembrandt Assets has occurred, including regularly scheduled

raises, bonuses, and vesting of pension benefits (as permitted by Law). In addition to the

foregoing, Respondents shall provide to each Rembrandt Key Employee who accepts

employment with the Commission-approved Acquirer, an incentive equal to fifty (50)

percent of such employee’s base annual salary to be paid upon the employee’s

completion of one (1) year of employment with the Commission-approved Acquirer;

provided, however, that nothing in this Order requires or shall be construed to require the

Respondents to terminate the employment of any employee or prevent Respondents from

continuing the employment of Rembrandt Core Employees or Rembrandt Key Employees

(other than those conditions contained in this Order) in connection with the Acquisition

or prevents the Respondents from continuing the employment of the Rembrandt Core

Employees or Rembrandt Key Employees in connection with the Acquisition; and

3. for a period of one (1) year from the Closing Date, not:

a. directly or indirectly, solicit or otherwise attempt to induce any employee of the

Commission-approved Acquirer with any amount of responsibility related to the

Rembrandt Products (“Rembrandt Employee”) to terminate his or her employment

relationship with the Commission-approved Acquirer; or 

b. hire any Rembrandt Employee; provided, however, Respondents may hire any

former Rembrandt Employee whose employment has been terminated by the

Commission-approved Acquirer or who independently applies for employment with

the Respondents, as long as such employee was not solicited in violation of the

nonsolicitation requirements contained herein; 

provided, however, Respondents may do the following: (1) advertise for employees

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

Rembrandt Employees; or (2) hire a Rembrandt Employee who contacts Respondents

on his or her own initiative without any direct or indirect solicitation or

encouragement from the Respondents;

4. for a period of two (2) years from the Closing Date, use any Rembrandt Key Employee
23

for work specifically related to Products for use as teeth whitening agents.

I. Prior to the Closing Date, Respondents shall secure all consents and waivers from all Third

Parties that are necessary for the divestiture of the Rembrandt Assets to the Commissionapproved Acquirer, or for the continued research, Development, manufacture, sale,

marketing or distribution of the Rembrandt Products by the Commission-approved Acquirer;

provided, however, Respondents may satisfy this requirement by certifying that the

Commission-approved Acquirer has executed all such agreements directly with each of the

relevant Third Parties.

J. Respondents shall require, as a condition of continued employment post-divestiture of the

Rembrandt Assets, that each Rembrandt Core Employee retained by Respondents, the direct

supervisor(s) of any such employee, and any other employee retained by Respondents and

designated by the Interim Monitor sign a confidentiality agreement pursuant to which such

employee shall be required to maintain all Confidential Business Information related to the

Rembrandt Products strictly confidential, including the nondisclosure of such information to

all other employees, executives or other personnel of Respondents (other than as necessary

to comply with the requirements of this Order). 

K. Respondents shall provide written notification of the restrictions on the use of the

Confidential Business Information related to the Rembrandt Products by Respondents’

personnel to all of Respondents’ employees who:

1. are or were involved in the research, Development, manufacturing, distribution, sale or

marketing of the Rembrandt Products;

2. are involved in the research, Development, manufacturing, distribution, sale or

marketing of Products for use as teeth whitening agents for Respondent P&G; and/or 

3. may have Confidential Business Information related to the Rembrandt Products. 

Respondents shall give such notification by e-mail with return receipt requested or similar

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

Respondents shall provide a copy of such notification to the Commission-approved

Acquirer. Respondents shall maintain complete records of all such agreements at

Respondents’ corporate headquarters and shall provide an officer’s certification to the

Commission stating that such acknowledgment program has been implemented and is

being complied with. Respondents shall provide the Commission-approved Acquirer

with copies of all certifications, notifications and reminders sent to Respondents’

personnel.

L. Upon reasonable notice and request by the Commission-approved Acquirer, Respondents

shall make available to the Commission-approved Acquirer, at no greater than Direct Cost,
24

such personnel, assistance and training as the Commission-approved Acquirer might

reasonably need to transfer the Rembrandt Assets, and shall continue providing such

personnel, assistance and training, at the request of the Commission-approved Acquirer the

Rembrandt Assets are completely transferred to the Commission-approved Acquirer or its

Designee in a manner that fully preserves their usefulness.

M. Pending divestiture of the Rembrandt Assets, Respondents shall take such actions as are

necessary to maintain the full economic viability and marketability of the business

associated with the Rembrandt Assets, to minimize any risk of loss of competitive potential

for such business, and to prevent the destruction, removal, wasting, deterioration, or

impairment of any of the Rembrandt Assets except for ordinary wear and tear.

N. Counsel for Respondents (including in-house counsel under appropriate confidentiality

arrangements) may retain unredacted copies of all documents or other materials provided to

the Commission-approved Acquirer and may have access to original documents (under

circumstances where copies of documents are insufficient or otherwise unavailable)

provided to the Commission-approved Acquirer only in order to do the following:

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

limitation, any requirement to obtain regulatory licenses or approvals), any data retention

requirement of any applicable Governmental 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 divestiture or any other aspect of

the Rembrandt Assets or Rembrandt business; provided, however, that Respondents may

disclose such information as necessary for the purposes set forth in this Paragraph

pursuant to an appropriate confidentiality order, agreement or arrangement;

provided, however, that pursuant to this Paragraph II.N., Respondents shall: (1) require

those who view such unredacted documents or other materials to enter into confidentiality

agreements with the Commission-approved Acquirer (but shall not be deemed to have

violated this requirement if the Commission-approved Acquirer withholds such

agreement unreasonably); and (2) use their best efforts to obtain a protective order to

protect the confidentiality of such information during any adjudication.

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

Commission-approved Acquirer or the Rembrandt Releasee(s) for the research,

Development, manufacture, use, import, export, distribution, or sale of the Rembrandt IP

Protected Products in connection with the Commission-approved Acquirer’s research,

Development, manufacture, use, import, export, distribution, or sale of the Rembrandt IP

Protected Products under the following:

1. any Patents owned or licensed by Respondents as of the Acquisition Date that claim the
25

use of the Rembrandt IP Protected Products; 

2. any Patents owned or licensed at any time after the Acquisition Date by Respondents

that claim any aspect of the research, Development, manufacture, use, import, export,

distribution, or sale of the Rembrandt IP Protected Products, other than such Patents that

claim inventions conceived by and reduced to practice after the Acquisition Date.

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

Commission-approved Acquirer or the Rembrandt Releasee(s) for the research,

Development, manufacture, use, import, export, distribution, or sale of the Rembrandt

Products in connection with the Commission-approved Acquirer’s research, Development,

manufacture, use, import, export, distribution, or sale of the Rembrandt Products using any

Confidential Business Information related to the Rembrandt Products obtained by

Respondents from any person who was an employee of Respondent Gillette within the two

(2) year period immediately prior to the Acquisition.

Q. Respondents shall not, in any jurisdiction throughout the world: (1) use the Product

Trademarks related to the Rembrandt Products or any mark confusingly similar to such

Product Trademarks, as a trademark, tradename, or service mark; (2) attempt to register such

Product Trademarks; (3) attempt to register any mark confusingly similar to such Product

Trademarks; (4) challenge or interfere with the Commission-approved Acquirer’s use and

registration of such Product Trademarks; or (5) challenge or interfere with the Commissionapproved Acquirer’s efforts to enforce its trademark registrations for and trademark rights in

such Product Trademarks against Third Parties; provided however, that nothing in this Order

shall preclude Respondents from continuing to use those trademarks, tradenames, or service

marks related to the Retained Products as of the Acquisition Date.

R. The purpose of the divestiture of the Rembrandt Assets is to ensure the continued use of the

Rembrandt Assets in the same business, independent of Respondents, in which the

Rembrandt Assets were engaged at the time of the announcement of the Acquisition, and to

remedy the lessening of competition resulting from the Acquisition as alleged in the

Commission’s Complaint.

III.

IT IS FURTHER ORDERED that:

A. Not later than ten (10) days after the Acquisition Date, Respondents shall divest the

SpinBrush Assets, absolutely and in good faith, to Church & Dwight pursuant to and in

accordance with the SpinBrush Asset Purchase Agreement (which agreement shall not vary

or contradict, or be construed to vary 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
26

Church & Dwight or to reduce any obligations of the Respondents under such agreement),

and such agreement, if it becomes the Remedial Agreement related to the SpinBrush Assets,

is incorporated by reference into this Order and made a part hereof; 

provided, however, that if Respondents have divested the SpinBrush Assets to Church &

Dwight prior to the date this Order becomes final, and if, at the time the Commission

determines to make this Order final, the Commission notifies Respondents that Church &

Dwight is not an acceptable purchaser of the SpinBrush Assets, then Respondents shall

immediately rescind the transaction with Church & Dwight and shall divest the

SpinBrush Assets within one hundred eighty (180) days from the date the Order becomes

final, absolutely and in good faith, at no minimum price, to a Commission-approved

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

provided further that if the Respondents have divested the SpinBrush Assets to Church &

Dwight prior to the date this Order becomes final, and if, at the time the Commission

determines to make this Order final, the Commission notifies the Respondents that the

manner in which the divestiture was accomplished is not acceptable, the Commission

may direct the Respondents, or appoint a Divestiture Trustee, to effect such modifications

to the manner of divestiture of the SpinBrush Assets to Church & Dwight (including, but

not limited to, entering into additional agreements or arrangements) as the Commission

may determine are necessary to satisfy the requirements of this Order.

provided further, however, the Respondents requirement as to the timing to divest the

Spinbrush Assets shall be tolled pending any required approvals for such divestiture from

the Commission of the European Communities but, in any event, shall not be later than

ten (10) days of the Respondents’ receipt of such approval.

B. Any Remedial Agreement related to the SpinBrush Assets shall be deemed incorporated into

this Order, and any failure by Respondents to comply with any term of such Remedial

Agreement related to the SpinBrush Assets shall constitute a failure to comply with this

Order. 

C. Respondents shall include in any Remedial Agreement related to the SpinBrush Assets the

following provisions:

1. upon reasonable notice and request from the Commission-approved Acquirer to the

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

Cost the following:

a. assistance and advice to enable the Commission-approved Acquirer (or the

Designee of the Commission-approved Acquirer) to obtain all necessary permits and

approvals from any Agency or Governmental Entity to manufacture and sell the

SpinBrush Products;
27

b. assistance to the Commission-approved Acquirer (or the Designee of the

Commission-approved Acquirer) to manufacture the SpinBrush Products in

substantially the same manner and quality employed or achieved by or on behalf of

Respondent P&G; and

c. consultation with knowledgeable employees of Respondents and training, at the

request of the Commission-approved Acquirer and at a facility chosen by the

Commission-approved Acquirer sufficient to satisfy management of the

Commission-approved Acquirer that its personnel (or the Designee’s personnel) are

adequately trained in the manufacture of the SpinBrush Products;

2. upon reasonable notice and request from the Commission-approved Acquirer to

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

Cost, assistance of knowledgeable employees of the Respondents to assist the

Commission-approved Acquirer to defend against, respond to, or otherwise participate in

any litigation related to the Product Intellectual Property;

3. Respondents shall covenant to the Commission-approved Acquirer that Respondents

shall not join, file, prosecute or maintain any suit, in law or equity, against the

Commission-approved Acquirer under Patents that are owned or licensed by

Respondents as of the Acquisition Date, if such suit would have the potential to interfere

with the Commission-approved Acquirer’s freedom to practice in the research,

Development, manufacture, use, import, export, distribution or sale of the SpinBrush

Products; provided however, that Respondents may receive a covenant from the

Commission-approved Acquirer not to assert against the Respondents any Patent related

to the SpinBrush Products that is assigned to the Commission-approved Acquirer from

the Respondents pursuant to this Order; and

4. Respondents shall covenant to the Commission-approved Acquirer that: (1) as a

condition of any assignment, transfer or license to a Third Party of the above-described

Patents, the Third Party shall agree to provide a covenant whereby the Third Party

covenants not to sue the SpinBrush Releasees under such Patents, if the suit would have

the potential to interfere with the Commission-approved Acquirer’s freedom to practice

in the research, Development, manufacture, use, import, export, distribution or sale of

the SpinBrush Products; and (2) with respect to any Third Party rights licensed to

Respondents as of or after the Acquisition Date, and as to which Respondents do not

control the right of prosecution of any legal action, Respondents shall not actively

induce, assist or participate in any legal action or proceeding relating to the SpinBrush

Products against the SpinBrush Releasees, unless required by Law or contract (such

contract not to be solicited or entered into for the purpose of circumventing any of the

requirements of this Order).

D. Respondents shall:
28

1. submit to the Commission-approved Acquirer, at Respondents’ expense, all Confidential

Business Information related to the SpinBrush Products;

2. deliver such Confidential Business Information as follows: (1) in good faith; (2) as soon

as practicable, avoiding any delays in transmission of the respective information; and (3)

in a manner that ensures its completeness and accuracy and that fully preserves its

usefulness;

3. pending complete delivery of all such Confidential Business Information to the

Commission-approved Acquirer, provide the Commission-approved Acquirer and the

Interim Monitor (if any has been appointed) with access to all such Confidential

Business Information and employees who possess or are able to locate such information

for the purposes of identifying the books, records, and files related to the SpinBrush

Products that contain such Confidential Business Information and facilitating the

delivery in a manner consistent with this Order;

4. not use, directly or indirectly, any such Confidential Business Information related to the

research, Development, manufacturing, marketing, or sale of the SpinBrush Products

(other than as necessary to comply with the following: (1) the requirements of this

Order; (2) the Respondents’ obligations to the Commission-approved Acquirer under the

terms of any Remedial Agreement related to the SpinBrush Assets; or (3) applicable

Law); 

5. not disclose or convey any such Confidential Business Information, directly or indirectly,

to any person except the Commission-approved Acquirer; and

6. shall not provide, disclose or otherwise make available, directly or indirectly, any such

Confidential Business Information related to the marketing or sales of the SpinBrush

Assets to the employees associated with business related to the non-rechargeable battery

operated toothbrush Products marketed and sold by Respondent Gillette prior to the

Acquisition (including, but not limited to, those employees with work responsibilities

related to the Oral-B® trademark and any variations or derivatives of such trademark).

E. Respondents shall not enforce any agreement against a Third Party or the Commissionapproved Acquirer to the extent that such agreement may limit or otherwise impair the

ability of the Commission-approved Acquirer to acquire the Product Manufacturing

Technology related to the SpinBrush Products or related equipment from the Third Party. 

Such agreements include, but are not limited to, agreements with respect to the disclosure of

Confidential Business Information related to such Product Manufacturing Technology.

F. Not later than ten (10) days after the Closing Date, Respondents shall grant a release to each

Third Party that is subject to an agreement as described in Paragraph III.E. that allows the

Third Party to provide the relevant Product Manufacturing Technology or related equipment
29

to the Commission-approved Acquirer. Within five (5) days of the execution of each such

release, Respondents shall provide a copy of the release to the Commission-approved

Acquirer. 

G. Respondents shall:

1. for a period of at least six (6) months from the Closing Date, provide the Commissionapproved Acquirer with the opportunity to enter into employment contracts with the

SpinBrush Core Employees. This period is hereinafter referred to as the “SpinBrush

Access Period”; and

2. not later than the earlier of the following dates: (1) ten (10) Days after notice by staff of

the Commission to the Respondents to provide the Product Employee Information; or (2)

ten (10) Days after the Closing Date, provide the Commission-approved Acquirer or the

Proposed Acquirer with the Product Employee Information related to the SpinBrush

Core Employees. Failure by Respondents to provide the Product Employee Information

for any relevant employee within the time provided herein shall extend the SpinBrush

Access Period with respect to that employee in an amount equal to the delay.

H. Respondents shall:

1. during the SpinBrush Access Period, not interfere with the hiring or employing by the

Commission-approved Acquirer of SpinBrush Core Employees, and remove any

impediments within the control of Respondents that may deter these employees from

accepting employment with the Commission-approved Acquirer, including, but not

limited to, any noncompete or nondisclosure provisions of employment or other

contracts with Respondents that would affect the ability or incentive of those individuals

to be employed by the Commission-approved Acquirer. In addition, Respondents shall

not make any counteroffer to an SpinBrush Core Employee who receives a written offer

of employment from the Commission-approved Acquirer; 

provided, however, that this Paragraph III.H.1 shall not prohibit the Respondents from

making offers of employment to or employing any SpinBrush Core Employee during

the SpinBrush Access Period where the Commission-approved Acquirer has notified

the Respondents in writing that the Commission-approved Acquirer does not intend to

make an offer of employment to that employee; 

provided further that if the Respondents notify the Commission-approved Acquirer in

writing of their desire to make an offer of employment to a particular SpinBrush Core

Employee and the Commission-approved Acquirer does not make an offer of

employment to that employee within twenty (20) Days of the date the Commissionapproved Acquirer receives such notice, the Respondents may make an offer of

employment to that employee;
30

2. until the Closing Date, provide all SpinBrush Core Employees with reasonable financial

incentives to continue in their positions and to market and promote the SpinBrush

Products consistent with past practices and/or as may be necessary to preserve the

marketability, viability and competitiveness of the SpinBrush Products and to ensure

successful execution of the pre-Acquisition marketing plans to relaunch certain

SpinBrush Products. Such incentives shall include a continuation of all employee

compensation and benefits offered by Respondents until the Closing Date for the

divestiture of the SpinBrush Assets has occurred, including regularly scheduled raises,

bonuses, and vesting of pension benefits (as permitted by Law);

provided, however, that nothing in this Order requires or shall be construed to require

the Respondents to terminate the employment of any employee or prevents the

Respondents from continuing the employment of the SpinBrush Core Employees

(other than those conditions contained in this Order) in connection with the

Acquisition; and

3. for a period of one (1) year from the Closing Date, not:

a. directly or indirectly, solicit or otherwise attempt to induce any employee of the

Commission-approved Acquirer with any amount of responsibility related to

SpinBrush (“SpinBrush Employee”) to terminate his or her employment relationship

with the Commission-approved Acquirer; or 

b. hire any SpinBrush Employee; provided, however, Respondents may hire any

former SpinBrush Employee whose employment has been terminated by the

Commission-approved Acquirer or who independently applies for employment with

the Respondents, as long as such employee was not solicited in violation of the

nonsolicitation requirements contained herein; 

provided, however, Respondents may do the following: (1) advertise for employees

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

SpinBrush Employees; or (2) hire an SpinBrush Employee who contacts Respondents

on his or her own initiative without any direct or indirect solicitation or

encouragement from the Respondents.

I. Prior to the Closing Date, Respondents shall secure all consents and waivers from all Third

Parties that are necessary for the divestiture of the SpinBrush Assets to the Commissionapproved Acquirer, or for the continued research, Development, manufacture, sale,

marketing or distribution of the SpinBrush Products by the Commission-approved Acquirer;

provided, however, Respondents may satisfy this requirement by certifying that the

Commission-approved Acquirer has executed all such agreements directly with each of

the relevant Third Parties.
31

J. Respondents shall require, as a condition of continued employment post-divestiture of the

SpinBrush Assets, that each SpinBrush Core Employee retained by Respondents, the direct

supervisor(s) of any such employee, and any other employee retained by Respondents and

designated by the Interim Monitor sign a confidentiality agreement pursuant to which such

employee shall be required to maintain all Confidential Business Information related to the

SpinBrush Products strictly confidential, including the nondisclosure of such information to

all other employees, executives or other personnel of Respondents (other than as necessary

to comply with the requirements of this Order). 

K. Respondents shall provide written notification of the restrictions on the use of the

Confidential Business Information related to the SpinBrush Products by Respondents’

personnel to all of Respondents’ employees who:

1. are or were involved in the research, Development, manufacturing, distribution, sale or

marketing of the SpinBrush Products;

2. are involved in the research, Development, manufacturing, distribution, sale or

marketing of Products for use as battery operated toothbrushes for Respondent Gillette

prior to the Acquisition; and/or 

3. may have Confidential Business Information related to the SpinBrush Products. 

Respondents shall give such notification by e-mail with return receipt requested or similar

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

Respondents shall provide a copy of such notification to the Commission-approved

Acquirer. Respondents shall maintain complete records of all such agreements at

Respondents’ corporate headquarters and shall provide an officer’s certification to the

Commission stating that such acknowledgment program has been implemented and is

being complied with. Respondents shall provide the Commission-approved Acquirer

with copies of all certifications, notifications and reminders sent to Respondents’

personnel.

L. Upon reasonable notice and request by the Commission-approved Acquirer, Respondents

shall make available to the Commission-approved Acquirer, at no greater than Direct Cost

(or, if the SpinBrush Asset Purchase Agreement is the Remedial Agreement for the

SpinBrush Assets, then at such cost as may be provided therein), such personnel, assistance

and training as the Commission-approved Acquirer might reasonably need to transfer the

SpinBrush Assets, and shall continue providing such personnel, assistance and training, at

the request of the Commission-approved Acquirer, until the SpinBrush Assets are

completely transferred to the Commission-approved Acquirer or its Designee in a manner

that fully preserves their usefulness.

M. Pending divestiture of the SpinBrush Assets, Respondents shall take such actions as are
32

necessary to maintain the full economic viability and marketability of the business

associated with the SpinBrush Assets, to minimize any risk of loss of competitive potential

for such business, and to prevent the destruction, removal, wasting, deterioration, or

impairment of any of the SpinBrush Assets except for ordinary wear and tear.

N. Counsel for Respondents (including in-house counsel under appropriate confidentiality

arrangements) may retain unredacted copies of all documents or other materials provided to

the Commission-approved Acquirer and may have access to original documents (under

circumstances where copies of documents are insufficient or otherwise unavailable)

provided to the Commission-approved Acquirer only in order to do the following:

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

limitation, any requirement to obtain regulatory licenses or approvals), any data retention

requirement of any applicable Governmental 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 divestiture or any other aspect of

the SpinBrush Assets or SpinBrush business; provided, however, that Respondents may

disclose such information as necessary for the purposes set forth in this Paragraph

pursuant to an appropriate confidentiality order, agreement or arrangement;

provided, however, that pursuant to this Paragraph III.N., Respondents shall: (1) require

those who view such unredacted documents or other materials to enter into confidentiality

agreements with the Commission-approved Acquirer (but shall not be deemed to have

violated this requirement if the Commission-approved Acquirer withholds such

agreement unreasonably); and (2) use their best efforts to obtain a protective order to

protect the confidentiality of such information during any adjudication.

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

Commission-approved Acquirer or the SpinBrush Releasee(s) for the research,

Development, manufacture, use, import, export, distribution, or sale of SpinBrush under the

following:

1. any Patents owned or licensed by Respondents as of the Acquisition Date that claim the

use of the SpinBrush Products; 

2. any Patents owned or licensed at any time after the Acquisition Date by Respondents

that claim any aspect of the research, Development, manufacture, use, import, export,

distribution, or sale of the SpinBrush Products, other than such Patents that claim

inventions conceived by and reduced to practice after the Acquisition Date.

P. Respondents shall not, in any jurisdiction throughout the world: (1) use the Product

Trademarks related to the SpinBrush Products or any mark confusingly similar to such
33

Product Trademarks, as a trademark, tradename, or service mark; (2) attempt to register such

Product Trademarks; (3) attempt to register any mark confusingly similar to such Product

Trademarks; (4) challenge or interfere with the Commission-approved Acquirer’s use and

registration of such Product Trademarks; or (5) challenge or interfere with the Commissionapproved Acquirer’s efforts to enforce its trademark registrations for and trademark rights in

such Product Trademarks against Third Parties; provided however, that nothing in this Order

shall preclude Respondents from continuing to use those trademarks, tradenames, or service

marks related to the Retained Products as of the Acquisition Date.

Q. The purpose of the divestiture of the SpinBrush Assets is to ensure the continued use of the

SpinBrush Assets in the same business, independent of Respondents, in which the

SpinBrush Assets were engaged at the time of the announcement of the Acquisition, and to

remedy the lessening of competition resulting from the Acquisition as alleged in the

Commission’s Complaint.

IV.

IT IS FURTHER ORDERED that:

A. Not later than one hundred twenty (120) days after the date this Order becomes final,

Respondents shall divest the APDO Assets, absolutely and in good faith, and at no minimum

price. Respondents shall divest the APDO Assets to a Commission-approved Acquirer and

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

B. Any Remedial Agreement related to the APDO Assets shall be deemed incorporated into

this Order, and any failure by Respondents to comply with any term of such Remedial

Agreement related to the APDO Assets shall constitute a failure to comply with this Order. 

C. Respondents shall include in any Remedial Agreement related to the APDO Assets the

following provisions:

1. Respondents shall Contract Manufacture and deliver to the Commission-approved

Acquirer, in a timely manner and under reasonable terms and conditions, a supply of

finished APDO Product(s) at Respondent Gillette’s Supply Cost, for a period of time

sufficient to allow the Commission-approved Acquirer (or the Designee of the

Commission-approved Acquirer) to be able to manufacture and to obtain all the relevant

Agency approvals necessary to manufacture finished APDO Product(s) independently of

Respondents;

2. during the term of the Contract Manufacture between Respondent(s) and the

Commission-approved Acquirer, upon request of the Commission-approved Acquirer or

Interim Monitor (if applicable), Respondents shall make available to the Commission-
34

approved Acquirer and the Interim Monitor (if applicable) all records that relate to the

manufacture of the APDO Products that are generated or created after the Closing Date;

3. upon reasonable notice and request from the Commission-approved Acquirer to the

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

Cost the following:

a. assistance and advice to enable the Commission-approved Acquirer (or the

Designee of the Commission-approved Acquirer) to obtain all necessary permits and

approvals from any Agency or Governmental Entity to manufacture and sell the

APDO Products;

b. assistance to the Commission-approved Acquirer (or the Designee of the

Commission-approved Acquirer) to manufacture the APDO Products in

substantially the same manner and quality employed or achieved by or behalf of

Respondent Gillette; and

c. consultation with knowledgeable employees of Respondents and training, at the

request of the Commission-approved Acquirer and at a facility chosen by the

Commission-approved Acquirer sufficient to satisfy management of the

Commission-approved Acquirer that its personnel (or the Designee’s personnel) are

adequately trained in the manufacture of the APDO Products;

4. upon reasonable notice and request from the Commission-approved Acquirer to

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

Cost, assistance of knowledgeable employees of the Respondents to assist the

Commission-approved Acquirer to defend against, respond to, or otherwise participate in

any litigation related to the Product Intellectual Property;

5. Respondents shall covenant to the Commission-approved Acquirer that Respondents

shall not join, file, prosecute or maintain any suit, in law or equity, against the

Commission-approved Acquirer under Patents that are owned or licensed by

Respondents as of the Acquisition Date, if such suit would have the potential to interfere

with the Commission-approved Acquirer’s freedom to practice in the research,

Development, manufacture, use, import, export, distribution or sale of the APDO

Products; provided however, that Respondents may receive a covenant from the

Commission-approved Acquirer not to assert against the Respondents any Patent related

to the APDO Products that is assigned to the Commission-approved Acquirer from the

Respondents pursuant to this Order; and

6. Respondents shall covenant to the Commission-approved Acquirer that: (1) as a

condition of any assignment, transfer or license to a Third Party of the above-described

Patents, the Third Party shall agree to provide a covenant whereby the Third Party
35

covenants not to sue the APDO Releasees under such Patents, if the suit would have the

potential to interfere with the Commission-approved Acquirer’s freedom to practice in

the research, Development, manufacture, use, import, export, distribution or sale of the

APDO Products; and (2) with respect to any Third Party rights licensed to Respondents

as of or after the Acquisition Date, and as to which Respondents do not control the right

of prosecution of any legal action, Respondents shall not actively induce, assist or

participate in any legal action or proceeding relating to the APDO Products against the

APDO Releasees, unless required by Law or contract (such contract not to be solicited or

entered into for the purpose of circumventing any of the requirements of this Order).

D. Respondents shall:

1. submit to the Commission-approved Acquirer, at Respondents’ expense, all Confidential

Business Information related to the APDO Products;

2. deliver such Confidential Business Information as follows: (1) in good faith; (2) as soon

as practicable, avoiding any delays in transmission of the respective information; and (3)

in a manner that ensures its completeness and accuracy and that fully preserves its

usefulness;

3. pending complete delivery of all such Confidential Business Information to the

Commission-approved Acquirer, provide the Commission-approved Acquirer and the

Interim Monitor (if any has been appointed) with access to all such Confidential

Business Information and employees who possess or are able to locate such information

for the purposes of identifying the books, records, and files related to the APDO

Products that contain such Confidential Business Information and facilitating the

delivery in a manner consistent with this Order;

4. not use, directly or indirectly, any such Confidential Business Information related to the

research, Development, manufacturing, marketing, or sale of the APDO Products (other

than as necessary to comply with the following: (1) the requirements of this Order; (2)

the Respondents’ obligations to the Commission-approved Acquirer under the terms of

any Remedial Agreement related to the APDO Assets; or (3) applicable Law;

provided however, Respondents may use such Confidential Business Information that

also relates to those Retained Products that have been marketed and sold as

antiperspirants or deodorants under the Gillette Series® trademarks prior to the

Acquisition to the extent necessary for Respondents to continue to manufacture, market,

and sell such Retained Products; provided, further, Respondents shall take such actions,

as may be practicable, to prevent the exploitation or use of the most recent brand plan(s)

related to the APDO Products by Respondents’ employees with responsibilities relating to

the Retained Products to be marketed or sold as antiperspirants or deodorants; 

 
36

5. not disclose or convey any such Confidential Business Information (other than as

otherwise permitted under this Order), directly or indirectly, to any person except the

Commission-approved Acquirer; and

6. shall not provide, disclose or otherwise make available, directly or indirectly, any such

Confidential Business Information (other than as otherwise permitted under this Order)

related to the marketing or sales of the APDO Assets to the employees associated with

business related to Retained Products that are marketed and sold as antiperspirants or

deodorants prior to the Acquisition (including, but not limited to, such employees with

work responsibilities related to the Retained Products that have been marketed and sold

as antiperspirants or deodorants under the Old Spice® trademark and any variations or

derivatives of such trademark prior to the Acquisition).

E. Respondents shall not enforce any agreement against a Third Party or the Commissionapproved Acquirer to the extent that such agreement may limit or otherwise impair the

ability of the Commission-approved Acquirer to acquire the Product Manufacturing

Technology related to the APDO Products or related equipment from the Third Party. Such

agreements include, but are not limited to, agreements with respect to the disclosure of

Confidential Business Information related to such Product Manufacturing Technology.

F. Not later than ten (10) days after the Closing Date, Respondents shall grant a release to each

Third Party that is subject to an agreement as described in Paragraph IV.E. that allows the

Third Party to provide the relevant Product Manufacturing Technology or related equipment

to the Commission-approved Acquirer. Within five (5) days of the execution of each such

release, Respondents shall provide a copy of the release to the Commission-approved

Acquirer. 

G. Respondents shall:

1. for a period of at least six (6) months from the Closing Date, provide the Commissionapproved Acquirer with the opportunity to enter into employment contracts with the

APDO Core Employees. This period is hereinafter referred to as the “APDO Access

Period”; and 

2. not later than the earlier of the following dates: (1) ten (10) Days after notice by staff of

the Commission to the Respondents to provide the Product Employee Information; or (2)

ten (10) Days after the Closing Date, provide the Commission-approved Acquirer or the

Proposed Acquirer with the Product Employee Information related to the APDO Core

Employees. Failure by Respondents to provide the Product Employee Information for

any relevant employee within the time provided herein shall extend the APDO Access

Period with respect to that employee in an amount equal to the delay.
37

H. Respondents shall:

1. during the APDO Access Period, not interfere with the hiring or employing by the

Commission-approved Acquirer of the APDO Core Employees, and remove any

impediments within the control of Respondents that may deter these employees from

accepting employment with the Commission-approved Acquirer, including, but not

limited to, any noncompete or nondisclosure provisions of employment or other

contracts with Respondents that would affect the ability or incentive of those individuals

to be employed by the Commission-approved Acquirer. In addition, Respondents shall

not make any counteroffer to an APDO Core Employee who receives a written offer of

employment from the Commission-approved Acquirer; 

provided, however, that this Paragraph IV.H.1 shall not prohibit the Respondents from 

making offers of employment to or employing any APDO Core Employee during the 

APDO Access Period where the Commission-approved Acquirer has notified the 

Respondents in writing that the Commission-approved Acquirer does not intend to make 

an offer of employment to that employee; 

provided further that if the Respondents notify the Commission-approved Acquirer in 

writing of their desire to make an offer of employment to a particular APDO Core

Employee and the Commission-approved Acquirer does not make an offer of

employment to that employee within twenty (20) days of the date the Commissionapproved Acquirer receives such notice, the Respondents may make an offer of

employment to that employee;

2. until the Closing Date, provide all APDO Core Employees with reasonable financial

incentives to continue in their positions and to market and promote the APDO Products

consistent with past practices and/or as may be necessary to preserve the marketability,

viability and competitiveness of the APDO Products and to ensure successful execution

of the pre-Acquisition marketing plans related to the APDO Products. Such incentives

shall include a continuation of all employee compensation and benefits offered by

Respondents until the Closing Date for the divestiture of the APDO Assets has occurred,

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

permitted by Law);

provided, however, that nothing in this Order requires or shall be construed to require

the Respondents to terminate the employment of any employee or prevents the

Respondents from continuing the employment of the APDO Core Employees (other

than those conditions contained in this Order) in connection with the Acquisition; and
38

3. for a period of one (1) year from the Closing Date, not:

a. directly or indirectly, solicit or otherwise attempt to induce any employee of the

Commission-approved Acquirer with any amount of responsibility related to APDO

(“APDO Employee”) to terminate his or her employment relationship with the

Commission-approved Acquirer; or 

b. hire any APDO Employee; provided, however, Respondents may hire any former

APDO Employee whose employment has been terminated by the Commissionapproved Acquirer or who independently applies for employment with the

Respondents, as long as such employee was not solicited in violation of the

nonsolicitation requirements contained herein; 

provided, however, Respondents may do the following: (1) advertise for employees in

newspapers, trade publications or other media not targeted specifically at the APDO

Employees; or (2) hire an APDO Employee who contacts Respondents on his or her own 

initiative without any direct or indirect solicitation or encouragement from the

Respondents.

I. Prior to the Closing Date, Respondents shall secure all consents and waivers from all Third

Parties that are necessary for the divestiture of the APDO Assets to the Commissionapproved Acquirer, or for the continued research, Development, manufacture, sale,

marketing or distribution of the APDO Products by the Commission-approved Acquirer; 

provided, however, Respondents may satisfy this requirement by certifying that the

Commission-approved Acquirer has executed all such agreements directly with each of

the relevant Third Parties.

J. Respondents shall require, as a condition of continued employment post-divestiture of the

APDO Assets, that each APDO Core Employee retained by Respondents, the direct

supervisor(s) of any such employee, and any other employee retained by Respondents and

designated by the Interim Monitor sign a confidentiality agreement pursuant to which such

employee shall be required to maintain all Confidential Business Information related to the

APDO Products strictly confidential, including the nondisclosure of such information to all

other employees, executives or other personnel of Respondents (other than as necessary to

comply with the requirements of this Order). 

K. Respondents shall provide written notification of the restrictions on the use of the

Confidential Business Information related to the APDO Products by Respondents’ personnel

to all of Respondents’ employees who:

1. are or were involved in the research, Development, manufacturing, distribution, sale or

marketing of the APDO Products;
39

2. are involved in the research, Development, manufacturing, distribution, sale or

marketing of Respondent P&G’s antiperspirant or deodorant Products;

3. are involved in the research, Development, manufacturing, distribution, sale or

marketing of Respondent Gillette’s antiperspirant or deodorant Retained Products;

and/or 

4. may have Confidential Business Information related to APDO. 

Respondents shall give such notification by e-mail with return receipt requested or similar

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

Respondents shall provide a copy of such notification to the Commission-approved

Acquirer. Respondents shall maintain complete records of all such agreements at

Respondents’ corporate headquarters and shall provide an officer’s certification to the

Commission stating that such acknowledgment program has been implemented and is

being complied with. Respondents shall provide the Commission-approved Acquirer

with copies of all certifications, notifications and reminders sent to Respondents’

personnel.

L. Upon reasonable notice and request by the Commission-approved Acquirer, Respondents

shall make available to the Commission-approved Acquirer, at no greater than Direct Cost

such personnel, assistance and training as the Commission-approved Acquirer might

reasonably need to transfer the APDO Assets, and shall continue providing such personnel,

assistance and training, at the request of the Commission-approved Acquirer, until the

Commission-approved Acquirer (or the Designee of the Commission-approved Acquirer) is

fully able to manufacture APDO Products independently of the Respondents;

provided, however, the Commission may eliminate, or limit the duration of, the

Respondents’ obligation under this provision if the Commission determines that the

Commission-approved Acquirer is not using commercially reasonable best efforts to

enable itself or its Designee to manufacture the APDO Products in a facility that is

independent of Respondents. 

M. Pending divestiture of the APDO Assets, Respondents shall take such actions as are

necessary to maintain the full economic viability and marketability of the business

associated with the APDO Assets, to minimize any risk of loss of competitive potential for

such business, and to prevent the destruction, removal, wasting, deterioration, or impairment

of any of the APDO Assets except for ordinary wear and tear.

N. Counsel for Respondents (including in-house counsel under appropriate confidentiality

arrangements) may retain unredacted copies of all documents or other materials provided to

the Commission-approved Acquirer and may have access to original documents (under

circumstances where copies of documents are insufficient or otherwise unavailable)
40

provided to the Commission-approved Acquirer only in order to do the following:

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

limitation, any requirement to obtain regulatory licenses or approvals), any data retention

requirement of any applicable Governmental 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 divestiture or any other aspect of

the APDO Assets or APDO business; provided, however, that Respondents may disclose

such information as necessary for the purposes set forth in this Paragraph pursuant to an

appropriate confidentiality order, agreement or arrangement;

provided, however, that pursuant to this Paragraph IV.N., Respondents shall: (1) require

those who view such unredacted documents or other materials to enter into confidentiality

agreements with the Commission–approved Acquirer (but shall not be deemed to have

violated this requirement if the Commission-approved Acquirer withholds such

agreement unreasonably); and (2) use their best efforts to obtain a protective order to

protect the confidentiality of such information during any adjudication.

O. Respondents shall maintain manufacturing facilities for the APDO Products that are fully

capable of producing the APDO Products until the earlier of the following: 1) the

Commission-approved Acquirer (or the Designee of the Commission-approved Acquirer) is

otherwise fully able to manufacture the APDO Products in a facility that is independent of

Respondents; or 2) the Respondents have provided to the Commission-approved Acquirer

inventory of finished APDO Products sufficient to cover at least all demand anticipated by

the Commission-approved Acquirer for the APDO Products during the period of time

estimated for the removal, transfer, and reassembly, in a fully operational format (including

any potential for delays in such removal, transfer and reassembly in such format), of the

APDO Equipment to the Commission-approved Acquirer (or the Designee of the

Commission-approved Acquirer); 

provided, however, the Commission may eliminate, or limit the duration of, the

Respondents’ obligation under this provision if the Commission determines that the

Commission-approved Acquirer is not using commercially reasonable best efforts to

enable it to manufacture the APDO Products in a facility that is independent of

Respondents.

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

Commission-approved Acquirer or the APDO Releasee(s) for the research, Development,

manufacture, use, import, export, distribution, or sale of the APDO Products under the

following:
41

1. any Patents owned or licensed by Respondents as of the Acquisition Date that claim the

use of the APDO Products; 

2. any Patents owned or licensed at any time after the Acquisition Date by Respondents

that claim any aspect of the research, Development, manufacture, use, import, export,

distribution, or sale of the APDO Products, other than such Patents that claim inventions

conceived by and reduced to practice after the Acquisition Date.

Q. Respondents shall not, in any jurisdiction throughout the world: (1) use the Product

Trademarks related to APDO or any mark confusingly similar to the Product Trademarks, as

a trademark, tradename, or service mark; (2) attempt to register the Product Trademarks; (3)

attempt to register any mark confusingly similar to the Product Trademarks; (4) challenge or

interfere with the Commission-approved Acquirer’s use and registration of the Product

Trademarks; or (5) challenge or interfere with the Commission-approved Acquirer’s efforts

to enforce its trademark registrations for and trademark rights in the Product Trademarks

against Third Parties; provided however, that nothing in this Order shall preclude

Respondents from continuing to use those trademarks, tradenames, or service marks related

to the Retained Products as of the Acquisition Date.

R. The purpose of the divestiture of the APDO Assets is to ensure the continued use of the

APDO Assets in the same business, independent of Respondents, in which the APDO Assets

were engaged at the time of the announcement of the Acquisition, and to remedy the

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

Complaint.

V.

IT IS FURTHER ORDERED that:

A. Not later than twenty (20) days after the Acquisition Date, Respondents shall amend the

IntelliClean Agreement in accordance with the IntelliClean Amended Agreement (which

agreement shall not vary or contradict, or be construed to vary 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 Philips (other than with respect to any noncompete provisions contained in the

IntelliClean Agreement) or to reduce any obligations of Respondents (other than with

respect to any noncompete provisions contained in the IntelliClean Agreement) under the

IntelliClean Amended Agreement).

B. The IntelliClean Agreement as amended in accordance with the IntelliClean Amended

Agreement shall be deemed incorporated by reference into this Order and made a part

hereof, and any failure by Respondents to comply with any term of the IntelliClean

Amended Agreement, if such agreement is approved by the Commission in connection with
42

the Commission’s determination to make this Order final shall constitute a failure to comply

with this Order. Any other Remedial Agreement related to the IntelliClean Products shall

also be deemed incorporated into this Order, and any failure by Respondents to comply with

any term of such Remedial Agreement related to the IntelliClean Products shall constitute a

failure to comply with this Order. 

C. Respondents shall:

1. grant a perpetual, fully paid-up and royalty-free license(s) with rights to sublicense to all

Product Intellectual Property, Product Licensed Intellectual Property, and the Product

Manufacturing Technology to use, make, distribute, offer for sale, promote, advertise,

sell, import, export, or have used, made, distributed, offered for sale, promoted,

advertised, sold, imported, or exported the IntelliClean Products anywhere in the world;

provided however, such license for the Product Intellectual Property shall also include

the rights to use Respondent P&G’s Crest® trademark in the United States and Canada in

connection with the marketing of the IntelliClean Products for a limited period as is

approved by the Commission in the Remedial Agreements related to the IntelliClean

Products;

2. as reflected in the IntelliClean Amended Agreement, Contract Manufacture and deliver

to Philip or its Designee, in a timely manner and under reasonable terms and conditions

(such terms and conditions to be in a manner that preserves the full economic viability

and competitiveness of the IntelliClean Products) a supply of the finished dentifrice

Product used in connection with the rechargeable toothbrush(es) that are a part of the

IntelliClean Products;

3. upon reasonable notice and request from Philips to the Respondents, provide in a timely

manner at no greater than Direct Cost the following:

a. assistance and advice to enable Philips or its Designee to obtain all necessary

permits and approvals from any Agency or Governmental Entity to manufacture and

sell the dentifrice used in connection with the rechargeable toothbrush(es) that are a

part of the IntelliClean Products;

b. assistance to Philips or its Designee to manufacture the dentifrice used in connection

with the rechargeable toothbrush(es) that are a part of the IntelliClean Products in

substantially the same manner and quality employed or achieved by or behalf of

Respondent P&G; and

c. consultation with knowledgeable employees of Respondents and training, at the

request of Philips and at a facility chosen by Philips sufficient to satisfy

management of Philips that its personnel (or the Designee’s personnel) are

adequately trained in the manufacture of the dentifrice used in connection with the
43

rechargeable toothbrush(es) that are a part of the IntelliClean Products.

D. Respondents shall:

1. submit to Philips, at Respondents’ expense, copies of all Confidential Business

Information related to the research, Development, manufacture, distribution, marketing

or sale of IntelliClean Products;

2. deliver such Confidential Business Information as follows: (1) in good faith; (2) as soon

as practicable, avoiding any delays in transmission of the respective information; and (3)

in a manner that ensures its completeness and accuracy and that fully preserves its

usefulness; and

3. pending complete delivery of all such Confidential Business Information to Philips,

provide Philips and the Interim Monitor (if any has been appointed) with access to all

such Confidential Business Information and employees who possess or are able to locate

such information for the purposes of identifying the books, records, and files related to

the IntelliClean Products that contain such Confidential Business Information and

facilitating the delivery in a manner consistent with this Order.

E. Respondents shall not enforce any agreement against a Third Party or Philips to the extent

that such agreement may limit or otherwise impair the ability of Philips to acquire the

Product Manufacturing Technology related to the IntelliClean Products or related equipment

from the Third Party. Such agreements include, but are not limited to, agreements with

respect to the disclosure of Confidential Business Information related to such Product

Manufacturing Technology.

F. Not later than ten (10) days after the Closing Date, Respondents shall grant a release to each

Third Party that is subject to an agreement as described in Paragraph V.E. that allows the

Third Party to provide the relevant Product Manufacturing Technology or related equipment

to Philips. Within five (5) days of the execution of each such release, Respondents shall

provide a copy of the release to Philips. 

G. For a period commencing on the date this Order becomes final and continuing for ten (10)

years, Respondents shall not, without providing advance written notification to the

Commission, terminate the IntelliClean Amended Agreement. Said notification shall be

given on the Notification and Report Form set forth in the Appendix to Part 803 of Title 16

of the Code of Federal Regulations as amended (hereinafter referred to as “the

Notification”), and shall be prepared and transmitted in accordance with the requirements of

that part, except that no filing fee will be required for any such Notification. Notification

shall be filed with the Secretary of the Commission, Notification need not be made to the

United States Department of Justice, and Notification is required only of the Respondents

and not of any other party to the transaction. Respondents shall provide two (2) complete
44

copies (with all attachments and exhibits) of the Notification to the Commission at least

thirty (30) days prior to terminating the IntelliClean Amended Agreement (hereinafter

referred to as the “first waiting period”). If, within the first waiting period, representatives

of the Commission make a written request for additional information or documentary

material (within the meaning of 16 C.F.R. § 803.20), Respondents shall not terminate

IntelliClean Amended Agreement until thirty (30) days after substantially complying with

such request. Early termination of the waiting periods in this Paragraph may be requested

and, where appropriate, granted by letter from the Bureau of Competition; provided,

however, that prior notification shall not be required by this Paragraph for a transaction for

which notification is required to be made, and has been made, pursuant to Section 7A of the

Clayton Act, 15 U.S.C. § 18a.

H. The purpose of Paragraph V of this Order is to ensure the continued marketing and sale of

the IntelliClean Products independently of Respondents and for the same purposes which it

was researched, developed, manufactured, marketed and sold by Philips and Respondent

P&G at the time of the announcement of the Acquisition, and to remedy the lessening of

competition resulting from the Acquisition as alleged in the Commission’s Complaint.

VI.

IT IS FURTHER ORDERED that:

A. At any time after Respondents sign the Consent Agreement in this matter, 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, the Order to Maintain Assets and the Remedial Agreements.

B. The Commission shall select the Interim Monitor, subject to the consent of Respondent

P&G, which consent shall not be unreasonably withheld. If Respondent P&G has not

opposed, in writing, including the reasons for opposing, the selection of a proposed Interim

Monitor within ten (10) days after notice by the staff of the Commission to Respondent

P&G of the identity of any proposed Interim Monitor, Respondents shall be deemed to have

consented to the selection of the proposed Interim Monitor.

C. Not later than ten (10) days after the appointment of the Interim Monitor, Respondents shall

execute an agreement that, subject to the prior approval of the Commission, confers on the

Interim Monitor all the rights and powers necessary to permit the Interim Monitor to monitor

Respondents’ compliance with the relevant requirements of the Order in a manner consistent

with the purposes of the Order.
45

D. If an Interim Monitor is appointed, Respondents shall consent to the following terms and

conditions regarding the powers, duties, authorities, and responsibilities of the Interim

Monitor:

1. 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 the

duties and responsibilities of the Interim Monitor in a manner consistent with the

purposes of the Order and in consultation with the Commission.

2. The Interim Monitor shall act in a fiduciary capacity for the benefit of the Commission.

3. The Interim Monitor shall serve until the later of:

a. the completion by Respondents of the divestiture of all relevant assets required to be

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

pursuant to this Order in a manner that fully satisfies the requirements of the Order

and notification by the Commission-approved Acquirer to the Interim Monitor that

it is fully capable of producing the relevant Product(s) acquired pursuant to a

Remedial Agreement independently of Respondents; and fulfillment of the

Respondents obligations under this Order with respect to the IntelliClean Products;

or

b. the completion by Respondents of the last obligation under the Order pertaining to

the Interim Monitor’s service;

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

be necessary or appropriate to accomplish the purposes of the Order.

4. Subject to any demonstrated legally recognized privilege, the Interim Monitor shall have

full and complete access to Respondents’ personnel, books, documents, records kept in

the normal course of business, facilities and technical information, and such other

relevant information as the Interim Monitor may reasonably request, related to

Respondents’ compliance with their obligations under the Order, including, but not

limited to, their obligations related to the relevant assets. 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.

5. The Interim Monitor 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 Interim Monitor shall have authority to employ, at the expense of the

Respondents, such consultants, accountants, attorneys and other representatives and
46

assistants as are reasonably necessary to carry out the Interim Monitor’s duties and

responsibilities.

6. 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

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

Monitor.

7. Respondents shall report to the Interim Monitor in accordance with the requirements of

this Order and/or as otherwise provided in any agreement approved by the Commission. 

The Interim Monitor shall evaluate the reports submitted to the Interim Monitor by

Respondents, and any reports submitted by the Commission-approved Acquirer with

respect to the performance of Respondents’ obligations under the Order or the Remedial

Agreement. Within thirty (30) Days from the date the Interim Monitor receives these

reports, the Interim Monitor shall report in writing to the Commission concerning

performance by Respondents of their obligations under the Order.

8. 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.

E. 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.

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

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

provided in this Paragraph.

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

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

with the requirements of the Order.

H. The 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.
47

VII.

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 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 relief available to it, 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

P&G, which consent shall not be unreasonably withheld. The Divestiture Trustee shall be a

person with experience and expertise in acquisitions and divestitures. If Respondent P&G

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 P&G 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.

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,
48

licensed, divested, transferred, delivered or otherwise conveyed.

2. The Divestiture Trustee shall have one (1) year after 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 Respondent’s 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 Respondent from among those approved by the

Commission; and, provided further, however, that Respondent 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, 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 the Respondents, and the Divestiture
49

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

misfeasance, 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 the Order to

Maintain Assets in this matter.

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.

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.
50

VIII.

IT IS FURTHER ORDERED that:

A. Within five (5) days of the Acquisition, Respondents shall submit to the Commission a letter

certifying the date on which the Acquisition occurred.

B. Within thirty (30) days after the date this Order becomes final, and every sixty (60) days

thereafter until Respondents have fully complied with, the following:

1. Paragraphs II.A, Paragraphs III.A. and IV.A. (i.e., has assigned, licensed, divested,

transferred, delivered or otherwise conveyed all relevant assets to the relevant

Commission-approved Acquirer in a manner that fully satisfies the requirements of the

Order) and Paragraph V.A. of this Order, 

2. Paragraphs II.C., II.D., II.F., III.C., III.D., III.F., IV.C., IV.D., IV.F., V.A., V.D., and

V.F.; and

3. and all its responsibilities to render transitional services to the relevant Commissionapproved Acquirer as provided by this Order and the Remedial Agreement(s),

Respondents shall submit to the Commission a verified written report setting forth in detail

the manner and form in which it intends to comply, is complying, and has complied with

this Order. Respondent shall submit at the same time a copy of its report concerning

compliance with this Order to the Interim Monitor, if any Interim Monitor has been

appointed. Respondents shall include in their reports, among other things that are required

from time to time, a full description of the efforts being made to comply with the relevant

Paragraphs of the Order, including a full description of all substantive contacts or

negotiations related to the divestiture of the relevant assets and the identity of all Persons

contacted, including, copies of all written communications to and from such Persons, all

internal memoranda, and all reports and recommendations concerning completing the

obligations.

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.
51

IX.

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

(30) days prior to any proposed (1) dissolution of such Respondent, (2) acquisition, merger or

consolidation of Respondents, or (3) any other change in the Respondents that may affect

compliance obligations arising out of the Order, including, but not limited to, assignment and the

creation or dissolution of subsidiaries.

X.

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 with

reasonable notice to Respondents made to their principal United States offices, Respondents shall

permit any duly authorized representative of the Commission:

A. access, during business office hours of Respondents and in the presence of counsel, to all

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

memoranda and all other records and documents in the possession or under the control of

Respondent related to compliance with this Order; and

B. upon five (5) days’ notice to Respondents and without restraint or interference from

Respondent, to interview officers, directors, or employees of Respondents, who may have

counsel present, regarding such matters.

XI.

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:
PUBLIC

APPENDIX I

ORDER TO MAINTAIN ASSETS
NON-PUBLIC APPENDIX II

AGREEMENTS RELATED TO

THE SPINBRUSH ASSETS

[Redacted From the Public Record Version But Incorporated By Reference]
NON-PUBLIC

APPENDIX III

AGREEMENTS RELATED TO

THE INTELLICLEAN PRODUCTS

[Redacted From the Public Record Version But Incorporated By Reference]
NON-PUBLIC

APPENDIX IV

REMBRANDT KEY EMPLOYEES

[Redacted From the Public Record Version But Incorporated By Reference]
NON-PUBLIC

APPENDIX V

RELATED TO THE DEFINITION OF

REMBRANDT IP PROTECTED PRODUCTS

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