011 0083

UNITED STATES OF AMERICA

BEFORE FEDERAL TRADE COMMISSION

COMMISSIONERS: Timothy J. Muris, Chairman

Sheila F. Anthony

Mozelle W. Thompson

Orson Swindle

Thomas B. Leary

___________________________________

)

In the matter of )

)

Nestle Holdings, Inc., ) Docket No. C- 4028

a corporation, and )

)

Ralston Purina Company, )

a corporation. )

___________________________________ )

ORDER TO MAINTAIN ASSETS

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

proposed acquisition by Respondent Nestle Holdings, Inc., of certain voting securities of Respondent

Ralston Purina Company and Respondents having been furnished thereafter with a copy of the draft of

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”), an admission by Respondents of all

the jurisdictional facts set forth in the aforesaid draft of Complaint, a statement that the signing of the

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
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reason to believe that Respondents have violated the said Acts and that a Complaint should issue

stating its charges in that respect, and having determined to accept the executed Consent Agreement

and to place 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 issues its Complaint, makes the

following jurisdictional findings, and issues this Order to Maintain Assets:

1. Respondent Nestle Holdings, Inc., is a corporation organized, existing and doing business

under and by virtue of the laws of Delaware, with its office and principal place of business located at

383 Main Avenue, Norwalk, CT 06851. Nestle Holdings, Inc. is a subsidiary of and controlled by

Nestle S.A., a corporation organized, existing and doing business under and by virtue of the laws of

Switzerland, with its principal executive offices located at Avenue Nestle 55, CH-1800 Vevey, Switzerland.

2. Respondent Ralston Purina Company, is a corporation organized, existing and doing

business under and by virtue of the laws of the State of Missouri, with its office and principal place of

business located at Checkerboard Square, St. Louis, Missouri 63164.

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

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

ORDER

I.

IT IS HEREBY ORDERED that, as used in this Order to Maintain Assets, the following

definitions shall apply:

A. “Nestle” means Nestle Holdings, Inc., its parent Nestle S.A., its directors, officers, employees,

agents, representatives, successors, and assigns; its subsidiaries, divisions, groups, and affiliates

controlled by Nestle, and the respective directors, officers, employees, agents, representatives,

successors, and assigns of each.

B. “Nestle S.A.” means Nestle S.A., its directors, officers, employees, agents, representatives,

successors, and assigns; its subsidiaries, divisions, groups, and affiliates controlled by Nestle

S.A., and the respective directors, officers, employees, agents, representatives, successors, and

assigns of each.

C. “Ralston Purina” means Ralston Purina Company, its directors, officers, employees, agents,

representatives, successors, and assigns; its subsidiaries, divisions, groups, and affiliates controlled by Ralston Purina, and the respective directors, officers, employees, agents, representa-
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tives, successors, and assigns of each.

D. “Commission” means the Federal Trade Commission.

E. “Acquisition” means the proposed acquisition described in the Agreement and Plan of Merger

between Nestle and Ralston Purina, dated January 15, 2001, pursuant to which Nestle agreed

to acquire certain voting securities of Ralston Purina.

F. “Acquisition Date” means the date of consummation of the Acquisition.

G. “Administrative Services” means provision of administrative services, including but not limited

to, order processing, warehousing, shipping, accounting, and information transitioning services.

H. “Alley Cat Product” means the Alley Cat brand of dry cat food products.

I. “Childs Acquisition Agreement” means the Asset Purchase Agreement (including all related

agreements, schedules, exhibits, and appendices) among Nestle Holdings, Inc., Ralston Purina

Company and J.W. Childs Equity Partners II, L.P., dated October 17, 2001, as amended.

J. “Coating Patent” means the U.S. and foreign patents and patent applications identified in

Appendix A of this Order to Maintain Assets.

K. “Consent Agreement” means the Agreement Containing Consent Orders executed by Respondents and the Commission in this matter.

L. "Cost" means (i) if in connection with Paragraph III.C. of this Order to Maintain Assets: (x) the

cost of manufacturing an item, including the actual cost of raw materials (which includes packaging), direct labor, and reasonably allocated factory overhead; and (y) in the case of a Force

Majeure Event as defined in Paragraph 19 of the Childs Co-Pack Agreement, reasonable out

of pocket costs incurred for actual contracted services, provided that such costs shall not

exceed the out of pocket costs incurred in connection with any alternative supply arrangements

for Respondents' dry cat food products produced at the facility affected by the Force Majeure

Event calculated on a non-discriminatory pro rata basis, and provided further that in making any

alternative supply arrangements, Respondents shall not discriminate in any manner against

Ralston Acquirer's products or in favor of the dry cat food products retained by Respondents

after this Order to Maintain Assets goes into effect; or (ii) if in connection with Paragraphs

III.D. and III.E. of this Order to Maintain Assets, the cost of direct material, labor, and out of

pocket expenses used to provide the relevant service.

M. “Decision and Order” means the Decision and Order issued by the Commission in this matter.
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N. “Intellectual Property” means, without limitation, (i) all trade names, registered and unregistered trademarks, service marks and applications, domain names, trade dress, all copyrights, copyright registrations and applications, in both published works and unpublished works,

and goodwill associated with each of them; (ii) all patents, patent applications, and inventions

and discoveries that may be patentable, and goodwill associated with each of them; and (iii) all

know-how, trade secrets, confidential information, software, technical information, data,

processes and inventions, formulae, recipes, methods, and product and packaging specifications, and goodwill associated with each of them; provided, however that Intellectual Property

shall not include customer lists or supplier lists.

O. “International Assets” means any right, title, and interest that Respondents’ may have, at the

time the International Trademarks are divested, in, to, and under the International Trademarks.

P. “International Trademarks” means any and all trademarks, service marks, trademark and

service mark registrations and pending trademark and service mark registrations that relate

exclusively to the Meow Mix Product or Alley Cat Product outside of the United States and

Canada.

Q. “Manufacturing Information” means know-how and procedures used in the manufacture of the

Meow Mix Product and the Alley Cat Product in the United States or Canada as of the date

the Ralston Assets are divested.

R. “Meow Mix Marketing Plan” means the F’02 Meow Mix Marketing Plan described in the

Ralston Acquisition Agreement.

S. “Meow Mix Product” means the Meow Mix brand of dry cat food products (which does not

include cat treats), including the brand extension Meow Mix Seafood Middles.

T. “Monitor” means the Monitor appointed pursuant to Paragraph V of this Order to Maintain

Assets.

U. “Non-Public Ralston Acquirer Information” means any propriety information of the Ralston

Acquirer relating to the Ralston Assets or the Ralston Business obtained by Respondents in the

course of fulfilling the obligations required by Paragraphs III.C., III.D., and III.E. of this Order

to Maintain Assets.

V. “Person” means any individual, partnership, firm, corporation, association, trust, unincorporated

organization or other entity.

W. “Ralston Acquirer” means the Person that acquires the Ralston Assets pursuant to this Order to

Maintain Assets.
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X. “Ralston Acquisition Agreement” means either the Childs Acquisition Agreement or the acquisition agreement described in Paragraph II.C.2. of the Decision and Order.

Y. “Ralston Assets” means all of Respondents’ right, title, and interest in and to all assets, tangible

or intangible, relating to the operation of the Ralston Business, including, but not limited to:

1. All inventories and supplies held by, or under the control of Respondents;

2. All Intellectual Property owned by or licensed to Respondents;

3. Copies of all customer lists and supplier lists;

4. All rights of Respondents under any contract;

5. All governmental approvals, consents, licenses, permits, waivers, or other authorizations

held by Respondents, to the extent transferable;

6. All rights of Respondents under any warranty and guarantee, express or implied; and

7. Copies of all relevant portions of books, records, and files held by, or under the control

of, Respondents (subject to Respondents’ rights to maintain attorney client privilege).

Provided, however, that the Ralston Assets shall not include (i) any assets of the kind described

in Sections 1.02(b)(i) through (vii), (ix), (x), and (xii) of the Childs Acquisition Agreement, (ii)

except for copies or portions thereof reasonably requested by the Ralston Acquirer for the

purpose of operating the Ralston Business in a viable and competitive manner, any assets of the

kind described in Section 1.02(b)(xi) of the Childs Acquisition Agreement, (iii) any real property (together with appurtenances, licenses and permits) owned, leased, or otherwise held by

Respondents, (iv) any personal property (including rights under any contract) owned, leased, or

otherwise held by Respondents that does not relate exclusively to operation of the Ralston

Business, and (v) any Intellectual Property that does not relate exclusively to operation of the

Ralston Business. 

Z. “Ralston Business” means Respondent Ralston’s business of researching, developing, manufacturing, distributing, marketing, and selling Meow Mix Product and Alley Cat Product, in any

market anywhere in the United States and Canada, prior to the Acquisition Date.

AA. “Respondents” means Nestle and Ralston Purina, individually and collectively.

BB. “Technical Assistance” means providing (i) expert advice, assistance, and training with respect
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to the Manufacturing Information, and (ii) access to Manufacturing Information.

II.

IT IS FURTHER ORDERED that:

A. Between the date Respondents sign the Consent Agreement and the date Respondents divest

the Ralston Assets pursuant to Paragraph II.A. of the Decision and Order, Respondents shall

maintain the viability, competitiveness, and marketability of the Ralston Assets and Ralston

Business:

1. Respondents shall prevent the destruction, wasting, deterioration, disposition, or impairment of any of the Ralston Assets, except for ordinary wear and tear and as would

otherwise occur in the ordinary course of business.

2. Respondents shall use their best efforts to maintain and increase sales in the ordinary

course of the Ralston Business, and shall maintain at levels set forth in the Meow Mix

Marketing Plan, all advertising and promotion, sales, technical assistance, marketing

and merchandising support for the Ralston Business.

3. Respondents shall use their best efforts to maintain the relations and good will with

suppliers, customers, landlords, creditors, agents, and others having business relationships with the Ralston Business.

4. Respondents shall not, except in the ordinary course of business or as part of a divestiture approved by the Commission pursuant to the Decision and Order, remove, sell,

lease, assign, transfer, license, pledge for collateral or otherwise dispose of the Ralston

Assets.

5. Respondents shall not take any affirmative action, or fail to take any action within their

control, as a result of which the viability, competitiveness, or marketability of the

Ralston Assets would be diminished or the divestiture of the Ralston Assets would be

jeopardized.

B. Between the date Respondents sign the Consent Agreement and the date that is 180 days after

the date the Ralston Assets are divested, Respondents shall not take any affirmative actions to

convey to any Person other than the Ralston Acquirer any right, title, or interest that

Respondents may have, as of the date the Respondents sign the Consent Agreement, in, to and

under the International Trademarks. 

C. The Childs Acquisition Agreement is incorporated by reference and made a part of this Order
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to Maintain Assets as Confidential Appendix B. Respondents shall comply with all terms of the

Childs Acquisition Agreement, and any breach by Respondents of any term of the Childs

Acquisition Agreement shall constitute a violation of this Order to Maintain Assets. In the event

any term of the Childs Acquisition Agreement contradicts any other terms of this Order to

Maintain Assets, such other terms of this Order to Maintain Assets shall govern Respondents’

obligations under this Order to Maintain Assets and the Childs Acquisition Agreement. 

D. The purpose of this Order to Maintain Assets is (i) to preserve the Ralston Assets and the

Ralston Business as a viable, competitive, and ongoing business and (ii) to prevent interim harm

to competition.

III.

IT IS FURTHER ORDERED that:

A. No later than the date Respondents divest the Ralston Assets, Respondents shall grant a

perpetual, non-exclusive, transferable, fully paid up, license to the Ralston Acquirer to use the

Coating Patent (except in Spain, Italy, and Greece) (1) in the development, manufacture,

marketing, distribution, or sale of any product manufactured by or for the Ralston Acquirer (or

its successor) and sold for its account (“Ralston Acquirer Products”), and (2) in the

manufacture by the Ralston Acquirer (or its successor) of any pet food products for any third

parties. Neither Respondents nor Ralston Acquirer shall have the right to sublicense or license

the Coating Patent except (i) for use in the development, manufacture, marketing, distribution,

or sale of products manufactured by or for Respondents (in the case of Respondents) or the

Ralston Acquirer Products (in the case of the Ralston Acquirer), and (ii) to the acquirer of any

brand divested (whether by license for any period of time or sale) by Respondents if such

divestiture relates to product that, at the time of such divestiture, uses the Coating Patent. 

B. Respondents shall use their best efforts (1) to fully identify any registrations of the International

Trademarks held by Respondents prior to divesting the International Assets to the Ralston

Acquirer, and (2) to assist and cooperate with the Ralston Acquirer to obtain all governmental

approvals, consents, licenses, permits, waivers, or other authorizations described in Paragraph

I.Y., which are not transferable from Respondents to the Ralston Acquirer. 

C. Upon the request of the Ralston Acquirer, for a period up to 24 months from the date

Respondents divest the Ralston Assets, Respondents shall provide a supply of Meow Mix

Product and Alley Cat Product to the Ralston Acquirer sufficient to enable the Ralston

Acquirer to operate the Ralston Business in a viable and competitive manner.

D. Upon the request of the Ralston Acquirer, for a period up to 24 months from the date

Respondents divest the Ralston Assets:
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1. Respondents shall provide Technical Assistance to the Ralston Acquirer sufficient to

enable the Ralston Acquirer to operate the Ralston Business in a viable and competitive

manner.

2. In connection with the Technical Assistance required by Paragraph III.D.1. of this

Order to Maintain Assets, Respondents shall allow the Ralston Acquirer reasonable

and timely access to Respondents’ manufacturing facilities for the purpose of inspecting

manufacturing operations relating to the production of Meow Mix Product and Alley

Cat Product.

E. Upon the request of the Ralston Acquirer, for a period up to 6 months from the date Respondents divest the Ralston Assets, Respondents shall provide Administrative Services to the

Ralston Acquirer sufficient to enable the Ralston Acquirer to operate the Ralston Business in a

viable and competitive manner.

F. Respondents shall enter into one or more agreements, subject to Commission approval, with

the Ralston Acquirer incorporating the terms of Paragraphs III.C., III.D., and III.E. of this

Order to Maintain Assets:

1. Any such agreement shall not require the Ralston Acquirer to pay compensation for the

goods and services required by Paragraphs III.C., III.D., and III.E. of this Order to

Maintain Assets that exceeds the Cost of providing such goods and services.

2. Any such agreement incorporating the terms of Paragraph III.C. of this Order to

Maintain Assets shall not limit the damages (such as indirect and consequential

damages) to which Ralston Acquirer would be entitled to receive in the event of

Respondents' breach of the agreement.

3. Any such agreement incorporating the terms of Paragraphs III.D. and III.E. of this

Order to Maintain Assets shall not limit the damages (such as indirect and consequential

damages) to which Ralston Acquirer would be entitled to receive in the event of

Respondents' breach of the agreement to an amount less than the damages that the

Ralston Acquirer would recover in a breach of contract action (as opposed to an

indemnity claim) based on such breach.

4. Any such agreement shall not allow Respondents to terminate such agreement for a

material breach of the agreement by the Ralston Acquirer in the absence of a final order

of a court of competent jurisdiction, regardless of whether such order is appealable. 
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IV.

IT IS FURTHER ORDERED that:

A. Except in the course of performing their obligations under the Ralston Acquisition Agreement

or this Order to Maintain Assets, Respondents shall not provide, disclose or otherwise make

available any Non-Public Ralston Acquirer Information to any Person and shall not use any

Non-Public Ralston Acquirer Information for any reason or purpose,

B. Respondents shall disclose Non-Public Ralston Acquirer Information only to those Persons

who require such information for the purposes permitted under Paragraph IV.A. of this Order

to Maintain Assets, and only such part of the Non-Public Ralston Acquirer Information that is

so required.

C. Respondents shall enforce the terms of this Paragraph IV as to any Person and take such action

as is necessary to cause each such Person to comply with the terms of this Paragraph IV,

including all actions that Respondents would take to protect their own trade secrets and

proprietary information.

D. The requirements of this Paragraph IV do not apply to that part of the Non-Public Ralston

Acquirer Information that Respondents demonstrate (i) was or becomes generally available to

the public other than as a result of a disclosure by Respondents or (ii) was available, or becomes available, to Respondents on a non-confidential basis, but only if, to the knowledge of

Respondents, the source of such information is not in breach of a contractual, legal, fiduciary, or

other obligation to maintain the confidentiality of the information.

V.

IT IS FURTHER ORDERED that:

A. Angele Thompson (“Monitor”) is hereby appointed to monitor Respondents’ compliance with

Paragraphs II through IV of this Order to Maintain Assets and Paragraphs II and III of the

Decision and Order:

B. Respondent shall consent to the following terms and conditions regarding the powers, duties,

authorities, and responsibilities of the Monitor: 

1. The Monitor shall have the power and authority to monitor Respondent’s compliance

with the terms of this Order to Maintain Assets and shall exercise such power and

authority and carry out the duties and responsibilities of the Monitor pursuant to the

terms of this Order to Maintain Assets and in a manner consistent with the purposes of
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this Order to Maintain Assets.

2. Within ten days after it signs the Consent Agreement, Respondent shall execute an

agreement that, subject to the approval of the Commission, confers on the Monitor all

the rights and powers necessary to permit the Monitor to monitor Respondent’s

compliance with the terms of this Order to Maintain Assets in a manner consistent with

the purposes of this Order to Maintain Assets. The Monitor shall sign a confidentiality

agreement prohibiting the use, or disclosure to anyone other than the Commission, of

any competitively sensitive or proprietary information gained as a result of his or her

role as Monitor.

3. The Monitor’s power and duties under this Paragraph V shall terminate three business

days after the Monitor has completed his or her final report pursuant to Paragraph

V.B.8.(ii), or at such other time as directed by the Commission.

4. The Monitor shall have full and complete access to Respondents’ books, records,

documents, personnel, facilities and technical information relating to compliance with

this Order to Maintain Assets and the Decision and Order, or to any other relevant

information, as the Monitor may reasonably request. Respondents shall cooperate with

any reasonable request of the Monitor. Respondents shall take no action to interfere

with or impede the Monitor's ability to monitor Respondents’ compliance with this

Order to Maintain Assets and the Decision and Order.

5. The Monitor shall serve, without bond or other security, at the expense of Respondent,

on such reasonable and customary terms and conditions as the Commission may set. 

The Monitor shall have authority to employ, at the expense of Respondent, such

consultants, accountants, attorneys and other representatives and assistants as are

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

Monitor shall account for all expenses incurred, including fees for his or her services,

subject to the approval of the Commission.

6. Respondents shall indemnify the Monitor and hold the Monitor harmless against any

losses, claims, damages, liabilities, or expenses arising out of, or in connection with, the

performance of the Monitor’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 the Monitor’s gross negligence or wilful

misconduct. For purposes of this Paragraph V.B.6., the term “Monitor” shall include

all Persons retained by the Monitor pursuant to Paragraph V.B.5. of this Order to

Maintain Assets.
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7. If at any time the Commission determines that the Monitor has ceased to act or failed to

act diligently, or is unwilling or unable to continue to serve, the Commission may

appoint a substitute to serve as Monitor. The Commission shall select a substitute

Monitor subject to the consent of Respondent, which consent shall not be unreasonably

withheld. If Respondent has not opposed, in writing, including the reasons for

opposing, the selection of any proposed Monitor within ten days after notice by the

staff of the Commission to Respondent (by delivery receipt acknowledged, to

Respondents’ counsel of record) of the identity of any proposed substitute Monitor,

Respondent shall be deemed to have consented to the selection of the proposed

substitute. Respondent shall execute the agreement required by Paragraph V.B.2 of

this Order to Maintain Assets within ten days after the Commission appoints a

substitute Monitor. The substitute Monitor shall serve according to the terms and

conditions of this Paragraph V.

8. The Monitor shall report in writing to the Commission (i) every thirty days from the date

this Order to Maintain Assets becomes final, (ii) no later than thirty days from the date

Respondents have completed all obligations required by Paragraphs II and III of this

Order to Maintain Assets, and (iii) at any other time as requested by the staff of the

Commission, concerning Respondents’ compliance with this Order to Maintain Assets

and the Decision and Order.

C. The Commission may on its own initiative or at the request of the Monitor issue such additional

orders or directions as may be necessary or appropriate to assure compliance with the

requirements of this Order to Maintain Assets.

VI.

IT IS FURTHER ORDERED that Respondents shall provide a copy of this Order to

Maintain Assets to each of Respondent’s officers, employees, or agents having managerial

responsibility for any of Respondent’s obligations under Paragraphs II through IV of this Order to

Maintain Assets, no later than ten days after Respondents sign the Consent Agreement.

VII.

IT IS FURTHER ORDERED that:

D. Respondents shall file a verified written report with the Commission setting forth in detail the

manner and form in which they intend to comply, are complying, and have complied with this

Order to Maintain Assets and the Decision and Order, no later than thirty days from the date

this Order to Maintain Assets becomes final and every thirty days thereafter (measured from

the due date of the first report) until the obligations required by Paragraphs II through VI of this
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Order to Maintain Assets have been completed or the Decision and Order becomes final,

whichever is earlier.

E. Respondents shall include in their compliance reports a full description of the efforts being made

to comply with Paragraph II.A. (or Paragraph II.C., if applicable) of the Decision and Order,

including a description of all substantive contacts or negotiations for the divestiture and the

identity of all parties contacted. Respondents shall include in their compliance reports copies of

all written communications to and from such parties, all internal memoranda, all reports and

recommendations concerning divestiture, the date of divestiture, and a statement that the

divestiture has been accomplished in the manner approved by the Commission.

VIII.

IT IS FURTHER ORDERED that Respondents and Nestle S.A. shall notify the Commission at least thirty days prior to any proposed change in the corporate Respondents or Nestle S.A.

such as dissolution, assignment, or sale resulting in the emergence of a successor corporation, or the

creation or dissolution of subsidiaries or any other change in the corporation that may affect compliance

obligations arising out of the Decision and Order and this Order to Maintain Assets.

IX.

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

with the Decision and Order and this Order to Maintain Assets, and subject to any legally recognized

privilege, and upon written request with reasonable notice, Respondents and Nestle S.A. shall permit

any duly authorized representatives of the Commission:

F. Access, during office hours and in the presence of counsel, to all facilities and access to

inspect and copy all non-privileged books, ledgers, accounts, correspondence, memoranda,

and all other records and documents in the possession or under the control of Respondents or

Nestle S.A. relating to any matter contained in the Decision and Order and this Order to

Maintain Assets; and

G. Upon five days' notice to Respondents or Nestle S.A. and without restraint or interference from

them, to interview their officers, directors, or employees, who may have counsel present,

regarding any such matters.
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X.

IT IS FURTHER ORDERED that this Order to Maintain Assets shall terminate on the

earlier of three business days from the date (i) the Commission withdraws its acceptance of the Consent

Agreement pursuant to the provisions of Commission Rule 2.34, 16 C.F.R. § 2.34, (ii) Respondents

complete their obligations required by this Order to Maintain Assets, or (iii) the Decision and Order

becomes final.

By the Commission, Chairman Muris not participating.

Benjamin I. Berman

Acting Secretary

SEAL

ISSUED: December 10, 2001

ATTACHMENTS:

Separate Statement of Commissioner Anthony

Concurring Statement of Commissioner Thompson

Concurring Statement of Commissioner Swindle
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Confidential Appendix A

[Redacted From Public Record Version]
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Confidential Appendix B

[Purchase Agreement]

[Redacted From Public Record Version]