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UNITED STATES OF AMERICA

BEFORE FEDERAL TRADE COMMISSION

COMMISSIONERS: Edith Ramirez, Chairwoman

Maureen K. Ohlhausen

Terrell McSweeny

____________________________________

)

In the Matter of )

)

BALL CORPORATION, )

a corporation, )

)

and ) Docket No. C-4581

)

REXAM PLC, )

a public limited company. )

)

____________________________________)

ORDER TO MAINTAIN ASSETS

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

proposed acquisition by Respondent Ball Corporation (“Ball”) of the voting securities of 

Respondent Rexam PLC (“Rexam”), collectively “Respondents,” and Respondents having been 

furnished thereafter with a copy of a draft of Complaint that the Bureau of Competition proposed 

to present to the Commission for its consideration and which, 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 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, 
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the Commission hereby issues its Complaint, makes the following jurisdictional findings and 

issues this Order to Maintain Assets:

1. Respondent Ball Corporation, is a corporation organized, existing, and doing 

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

executive offices and principal place of business at 10 Longs Peak Drive, 

Bloomfield, CO 80021.

2. Respondent Rexam PLC, is a public limited company organized, existing, and 

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

principal executive offices located at 4 Millbank, London SW1P 3XR, United 

Kingdom, and its United States address for service of process and the Complaint, 

the Decision and Order, and the Order to Maintain Assets, as follows: Corporate 

Secretary, Rexam Beverage Can Company, 4201 Congress Street, Suite 340, 

Charlotte, NC 28209.

3. The Commission has jurisdiction over 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, and all other definitions used in the Consent Agreement and proposed 

Decision and Order (and when made final, the Decision and Order), which are incorporated 

herein by reference and made a part hereof, shall apply:

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

successors, and assigns; and the joint ventures, subsidiaries, partnerships, divisions, 

groups, and affiliates in each case controlled by Ball Corporation, including, but not 

limited to, Ball UK Acquisition Ltd., and the respective directors, officers, employees, 

agents, representatives, successors, and assigns of each. Ball includes Rexam, after the 

Acquisition Date.

B. “Rexam” means Rexam PLC, its directors, officers, employees, agents, representatives, 

successors, and assigns; and the joint ventures, subsidiaries, partnerships, divisions, 

groups, and affiliates in each case controlled by Rexam PLC, including, but not limited 

to, Rexam Beverage Can Company (“RBCC”), and the respective directors, officers, 

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

C. “Respondents” means Ball and Rexam, individually and collectively.

D. “Commission” means the Federal Trade Commission.
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E. “Decision and Order” means the:

1. Proposed Decision and Order contained in the Consent Agreement in this matter 

until the issuance of a final and effective Decision and Order by the Commission; 

and

2. Final Decision and Order issued by the Commission following the issuance and 

service of a final Decision and Order by the Commission in this matter.

F. “Acquirer” means:

1. Ardagh; or

2. A Person approved by the Commission to acquire the Aluminum Beverage Cans 

Business pursuant to the Decision and Order.

G. “Aluminum Beverage Cans Business” means all of RBCCs assets, including Tangible 

Personal Property and intangible assets, businesses and goodwill, related to the research, 

development, manufacture, distribution, marketing or sale of Aluminum Beverage Cans 

Products including, but not limited to:

1. The Aluminum Beverage Cans Manufacturing Facilities;

2. The Aluminum Beverage Cans Corporate Facility;

3. The Aluminum Beverage Cans Technical and Engineering Facility;

4. The Aluminum Beverage Cans Contracts;

5. An upfront, paid up, perpetual and royalty-free license to all Intellectual Property 

relating to the research, development, manufacture, distribution, marketing or sale 

of Aluminum Beverage Cans Products; PROVIDED, HOWEVER, this license 

shall include rights to all of Respondent Rexam’s Intellectual Property related to 

the Aluminum Beverage Cans Products worldwide;

6. All inventories relating to Aluminum Beverage Cans Products, affiliated with an 

Aluminum Beverage Cans Manufacturing Facility, wherever located;

7. All consents, licenses, certificates, registrations, or permits issued, granted, given, 

or otherwise made available by or under the authority of any governmental body 

or pursuant to any legal requirement relating to the research, development, 

manufacture, distribution, marketing or sale of Aluminum Beverage Cans

Products, and all pending applications therefor or renewals thereof;

8. All Business Records relating to the research, development, manufacture, 

distribution, marketing or sale of Aluminum Beverage Cans Products; 

PROVIDED, HOWEVER, that where documents or other materials included in the 

Business Records to be divested contain information: (a) that relates both to the 
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Aluminum Beverage Cans Business to be divested and to the Retained Business 

or other products or businesses and cannot be segregated in a manner that 

preserves the usefulness of the information as it relates to the Aluminum 

Beverage Cans Business to be divested; or (b) for which the relevant party has a 

legal obligation to retain the original copies, the relevant party shall be required to 

provide only copies or relevant excerpts of the documents and materials 

containing this information, then Respondents may keep such records and provide 

copies with appropriate redactions to the Acquirer. In instances where such 

copies are provided to the Acquirer, the relevant party shall provide the Acquirer 

access to original documents under circumstances where copies of the documents 

are insufficient for evidentiary or regulatory purposes.

PROVIDED, HOWEVER, assets contained in Schedules 1.2(c), 1.2(m), 1.2(n)(i), 

1.2(n)(ii), and 1.2(v) of the Divestiture Agreement shall be excluded.

H. “Aluminum Beverage Cans Designated Employee” means any person employed by 

RBCC (1) at the Aluminum Beverage Cans Manufacturing Facilities; (2) working at or 

out of the Aluminum Beverage Cans Corporate Facility; (3) at the Aluminum Beverage 

Cans Technical and Engineering Facility; (4) who has spent over twenty-five percent 

(25%) of his or her time, from January 2015 to December 2015, working for or on behalf 

of the Aluminum Beverage Cans Business, wherever located; or (5) identified by 

agreement between Respondent Rexam and an Acquirer and made a part of a Divestiture 

Agreement including, but not limited to, the Aluminum Beverage Cans Divestiture 

Employees.

I. “Aluminum Beverage Cans Divestiture Employees” are certain employees working at or 

out of the Aluminum Beverage Cans Corporate Facility and the Aluminum Beverage 

Cans Technical and Engineering Facility, and are identified in Non-Public Confidential 

Appendix C attached to the Decision and Order. 

J. “Ardagh” means Ardagh Group S.A., a limited liability corporation organized, existing, 

and doing business under, and by virtue of, the laws of Luxembourg with its office and 

principal executive offices located at 56, rue Charles Martel, Luxembourg, and its United 

States address for business operations is 401 E. Jackson Street, Suite 2800, Tampa, FL 

33062.

G. “Confidential Business Information” means information owned by, or in the possession 

or control of, RBCC that is not in the public domain and that is directly related to the 

conduct of the Aluminum Beverage Cans Business. The term “Confidential Business 

Information” excludes the following: 

1. information specifically excluded from the Aluminum Beverage Cans Business 

conveyed to the Acquirer;

2. information that is contained in documents, records, or books of RBCC that is 

provided to an Acquirer that is unrelated to the Aluminum Beverage Cans 
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Business acquired by that Acquirer or that is exclusively related to businesses or

products retained by Respondent Rexam;

3. information that is protected by the attorney work product, attorney-client, joint 

defense, or other privilege prepared in connection with the Acquisition and 

relating to any United States, state, or foreign antitrust or competition law; and 

4. information that Respondent Rexam demonstrates to the satisfaction of the 

Commission, in the Commission’s sole discretion:

a. Was or becomes generally available to the public other than as a result of 

disclosure by Respondent Rexam;

b. Is necessary to be included in Respondent Rexam’s mandatory regulatory 

filings; PROVIDED, HOWEVER, that Respondent Rexam shall make all 

reasonable efforts to maintain the confidentiality of such information in 

the regulatory filings;

c. Was available, or becomes available, to Respondent Ball on a nonconfidential basis, but only if, to the knowledge of Respondent Ball, the 

source of such information is not in breach of a contractual, legal, 

fiduciary, or other obligation to maintain the confidentiality of the 

information;

d. Is information the disclosure of which is consented to by the Acquirer;

e. Is necessary to be exchanged in the course of consummating the 

Acquisition or the transaction under the Divestiture Agreement or any 

Remedial Agreement;

f. Is disclosed in complying with the Order;

g. Is information the disclosure of which is necessary to allow Respondents 

to comply with the requirements and obligations of the laws of the United 

States and other countries, and decisions of Government Entities; or

h. Is disclosed in obtaining legal advice.

K. “Divestiture Agreement” means:

1. the Equity and Asset Purchase Agreement by and among Ardagh Group S.A., 

Ball Corporation, and Rexam PLC, dated April 22, 2016, and all amendments, 

exhibits, attachments, agreements, and schedules thereto, attached to the Decision 

and Order as Non-public Confidential Appendix A; or

2. any agreement that receives the prior approval of the Commission between 

Respondents (or between a Divestiture Trustee appointed pursuant to Paragraph 

IV. of this Order) and an Acquirer to purchase the Aluminum Beverage Cans 
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Business, and all amendments, exhibits, attachments, agreements, and schedules 

thereto that have been approved by the Commission.

L. “Divestiture Date” means the date on which Respondent Rexam (or a Divestiture 

Trustee) closes on the divestiture of the Aluminum Beverage Cans Business as required 

by Paragraph II (or Paragraph IV) of the Decision and Order.

M. “Employee Access Period” means one (1) year from the Divestiture Date. 

N. “Monitor” means any monitor appointed pursuant to Paragraph III of this Order to 

Maintain Assets or Paragraph III of the Decision and Order.

O. “Monitor Agreement” means the Monitor Agreement dated February 25, 2016, between 

ING Financial Markets LLC, and Ball Corporation. The Monitor Agreement is attached 

to the Decision and Order as Public Appendix E.

P. “Orders” means the Decision and Order and the Order to Maintain Assets.

Q. “Remedial Agreement(s)” means:

1. Any agreement between Respondents and an Acquirer that is specifically 

referenced and attached to this Order, including all amendments, exhibits, 

attachments, agreements, and schedules thereto, related to the relevant assets or 

rights to be assigned, granted, licensed, and 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 Respondents and an Acquirer (or between a Divestiture 

Trustee and an 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 or 

rights 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.

R. “Transition Services” means any transitional services required by the Acquirer for the 

operation of the divested business including, but not limited to administrative assistance 

(including, but not limited to, order processing, shipping, accounting, and information 

transitioning services), technical assistance, and supply agreements.

S. “Transitional Services Agreement(s)” means:

1. The agreements between Respondents and Ardagh for the provision of Transition 

Services and attached to the Decision and Order as Non-Public Confidential 

Appendix B; or
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2. Any agreement entered into between Respondents and an Acquirer (or the 

Divestiture Trustee and an Acquirer) for the provision of Transition Services.

II.

IT IS FURTHER ORDERED that from the date this Order to Maintain Assets becomes 

final and effective:

A. Respondents shall take such actions as are necessary to maintain the full economic 

viability, marketability, and competitiveness of the Aluminum Beverage Cans Business, 

to minimize any risk of loss of competitive potential for such Aluminum Beverage Cans 

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

of the Aluminum Beverage Cans Business except for ordinary wear and tear. 

Respondents shall not sell, transfer, encumber, or otherwise impair the Aluminum 

Beverage Cans Business (other than in the manner prescribed in the Decision and Order)

nor take any action that lessens the full economic viability, marketability, or 

competitiveness of the related Aluminum Beverage Cans Business.

B. Respondents shall maintain the operations of the Aluminum Beverage Cans Business in 

the regular and ordinary course of business and in accordance with past practice 

(including regular repair and maintenance of the assets of such business) and shall use 

their best efforts to preserve the existing relationships with the following: suppliers; 

vendors and distributors; customers; employees; and others having business relations 

with the Aluminum Beverage Cans Business. Respondents’ responsibilities shall include, 

but are not limited to, the following:

1. Providing the Aluminum Beverage Cans Business with sufficient working capital 

to operate at least at current rates of operation, to meet all capital calls with 

respect to such business, and to carry on, at least at their scheduled pace, all 

capital projects, business plans, and promotional activities for the Aluminum 

Beverage Cans Business;

2. Continuing, at least at their scheduled pace, any additional expenditures for the 

Aluminum Beverage Cans Business authorized prior to the date the Consent 

Agreement was signed by Respondents, including, but not limited to, all research, 

development, manufacturing, distribution, marketing, and sales expenditures;

3. Providing such resources as may be necessary to respond to competition against 

the Aluminum Beverage Cans Business and/or to prevent any diminution in sales 

of each of the Aluminum Beverage Cans Products prior to the divestiture;

4. Making available for use by the Aluminum Beverage Cans Business funds 

sufficient to perform all routine maintenance and other maintenance as may be 

necessary to, and all replacements of, the assets related to the Aluminum 

Beverage Cans Business;
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5. Providing the Aluminum Beverage Cans Business with such funds as are 

necessary to maintain the full economic viability, marketability and 

competitiveness of the Aluminum Beverage Cans Business;

6. Providing such support services to the Aluminum Beverage Cans Business as 

were being provided by Respondents as of the date the Consent Agreement was 

signed by Respondents; and

7. Maintaining a work force at least equivalent in size, training, and expertise to 

what has been associated with the Aluminum Beverage Cans Business for the last 

fiscal year. 

C. Until the Divestiture Date, Respondents shall provide all Aluminum Beverage Cans 

Designated Employees with reasonable financial incentives to continue in their positions 

and to research, develop, manufacture, and/or market the Aluminum Beverage Cans 

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

marketability, viability, and competitiveness of the Aluminum Beverage Cans Business

pending divestiture. Such incentives shall include a continuation of all employee 

compensation and benefits offered by Respondents until the divestiture of the Aluminum 

Beverage Cans Business has occurred, including regularly scheduled raises, bonuses, and 

vesting of pension benefits (as permitted by law), and additional incentives as may be 

necessary to prevent any diminution of the competitiveness of the Aluminum Beverage 

Cans Business.

D. From the date Respondents execute the Divestiture Agreement until the Employee 

Access Period terminates, Respondents shall provide a proposed Acquirer with the 

opportunity to recruit and employ any Aluminum Beverage Cans Designated Employee 

in conformance with the following:

1. No later than ten (10) days after a request from a proposed Acquirer, or staff of 

the Commission, Respondents shall provide a proposed Acquirer with the 

following information for each Aluminum Beverage Cans Designated Employee, 

as and to the extent permitted by law:

a. name, job title or position, date of hire and effective service date;

b. a specific description of the employee’s responsibilities;

c. the base salary or current wages;

d. the most recent bonus paid, aggregate annual compensation for RBCC’s

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

e. employment status (i.e., active or on leave or disability; full-time or parttime);
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f. any other material terms and conditions of employment in regard to such 

employee that are not otherwise generally available to similarly-situated 

employees; and

g. at a proposed Acquirer’s option, copies of all employee benefit plans and 

summary plan descriptions (if any) applicable to the relevant Aluminum 

Beverage Cans Designated Employee(s);

2. No later than ten (10) days after a request from a proposed Acquirer, Respondents 

shall provide the proposed Acquirer with:

a. an opportunity to meet, personally and outside the presence or hearing of 

any employee or agent of Respondents, with any Aluminum Beverage 

Cans Designated Employee;

b. an opportunity to inspect the personnel files and other documentation 

relating to any such employee, to the extent permissible under applicable 

laws; and

c. to make offers of employment to any Aluminum Beverage Cans 

Designated Employee;

3. Respondents shall (i) not interfere, directly or indirectly, with the hiring or 

employing by a proposed Acquirer of any Aluminum Beverage Cans Designated 

Employee, (ii) not offer any incentive to any Aluminum Beverage Cans 

Designated Employee to decline employment with a proposed Acquirer, (iii) not 

make any counteroffer to any Aluminum Beverage Cans Designated Employee 

who receives a written offer of employment from a proposed Acquirer, and (iv) 

remove any impediments within the control of Respondents that may deter any 

Aluminum Beverage Cans Designated Employee from accepting employment 

with a proposed Acquirer, including, but not limited to, any non-compete or 

confidentiality provisions of employment or other contracts with Respondents that 

would affect the ability of such employee to be employed by a proposed Acquirer;

PROVIDED, HOWEVER, that nothing in this Order shall be construed to require 

Respondents to terminate the employment of any employee or prevent 

Respondents from continuing the employment of any employee.

E. Respondents shall provide reasonable financial incentives to the Aluminum Beverage 

Cans Divestiture Employees as needed to facilitate the employment of such employees by 

the Acquirer; PROVIDED, HOWEVER, (i) if the proposed Acquirer has made a written 

offer of employment to an Aluminum Beverage Can Divestiture Employee, and (ii) such 

employee has declined employment with the proposed Acquirer, then Respondents, in 

consultation with the Monitor (if one is appointed), shall make available a substitute 

employee with substantially the same skills and job function to the Acquirer for 

employment.
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F. For a period of two (2) years after the Divestiture Date, Respondents shall not, directly or 

indirectly, solicit, induce, or attempt to solicit or induce any Person employed by an 

Acquirer of the Aluminum Beverage Cans Business, to terminate his or her employment 

relationship with an Acquirer;

PROVIDED, HOWEVER, Respondents may: (1) advertise for employees in newspapers, 

trade publications, or other media, or engage recruiters to conduct general employee 

search activities, so long as these actions are not targeted specifically at any Aluminum 

Beverage Cans Designated Employees; and (2) hire employees of the Aluminum 

Beverage Cans Business who apply for employment with Respondents, so long as such 

individuals were not solicited by Respondents in violation of this paragraph; 

PROVIDED, FURTHER, HOWEVER, that this Paragraph shall not prohibit Respondents 

from making offers of employment to or employing any employee of the Aluminum 

Beverage Cans Business if an Acquirer has notified Respondents in writing that an 

Acquirer does not intend to make an offer of employment to that employee, or where 

such an offer has been made and the employee has declined the offer, or where the 

individual’s employment has been terminated by an Acquirer. 

G. Respondents shall ensure that employees of the Respondents’ Retained Business shall not 

receive, have access to, use or continue to use, or disclose any Confidential Business 

Information pertaining to the Aluminum Beverage Cans Business except in the course of:

1. Performing their obligations as permitted under this Order to Maintain Assets or 

the Decision and Order;

2. Performing their obligations under any Remedial Agreement; or

3. Complying with financial reporting requirements or environmental, health, and 

safety policies and standards, ensuring the integrity of the financial and 

operational controls on the Aluminum Beverage Cans Business, obtaining legal 

advice, defending legal claims, investigations, or enforcing actions threatened or 

brought against the Aluminum Beverage Cans Business, or as required by law;

PROVIDED, HOWEVER, for purposes of this Paragraph, Respondents’ employees who 

provide or are involved in the receipt of support services under this Order to Maintain 

Assets shall be deemed to be performing obligations under the Decision and Order.

H. If the receipt, access to, use, or disclosure of Confidential Business Information 

pertaining to the Aluminum Beverage Cans Business is permitted to Respondents’ 

employees under Paragraph II.F. of the Decision and Order, Respondents shall limit such 

information (1) only to those Persons who require such information for the purposes 

permitted under Paragraph II.F. of the Decision and Order, (2) only to the extent such 

Confidential Business Information is required, and (3) only after such Persons have 

signed an appropriate agreement in writing to maintain the confidentiality of such 

information.
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I. Respondents shall enforce the confidentiality terms of this Order to Maintain Assets and 

the Decision and Order as to any Person other than the Acquirer of the Aluminum 

Beverage Cans Business and take such action as is necessary to cause each such Person 

to comply with these terms, including training of Respondents’ employees and all other 

actions that Respondents would take to protect its own trade secrets and proprietary 

information.

J. Respondents shall adhere to and abide by the Remedial Agreements (which agreement 

shall not vary or contradict, or be construed to vary from or contradict, the terms of the 

Orders, it being understood that nothing in the Orders shall be construed to reduce any 

obligations of Respondents under such agreements), which are incorporate by reference 

into this Order to Maintain Assets and made a part hereof.

K. The purpose of this Order to Maintain Assets is to maintain the full economic viability, 

marketability and competitiveness of the Aluminum Beverage Cans Business within the 

Geographic Territory through its full transfer and delivery to the Acquirer, to minimize 

any risk of loss of competitive potential for the Aluminum Beverage Cans Business 

within the Geographic Territory, and to prevent the destruction, removal, wasting, 

deterioration, or impairment of any of the Aluminum Beverage Cans Business except for 

ordinary wear and tear.

III.

IT IS FURTHER ORDERED that:

A. At any time after the Respondents sign the Consent Agreement in this matter, the 

Commission may appoint a monitor (“Monitor”) to assure that the Respondents 

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

as required by the Orders and the Remedial Agreements. The Commission hereby 

appoints ING Financial Markets LLC (“ING”) as the Monitor and approves the Monitor 

Agreement between ING and Respondents which agreement, inter alia, names Philip 

Comerford, Jr., as ING designated Project Manager.

B. Not later than one (1) day after the appointment of the Monitor, Respondents shall, 

pursuant to the Monitor Agreement and to the Orders, confer on the Monitor all the rights 

and powers necessary to permit the Monitor to monitor Respondents’ compliance with 

the relevant requirements of the Orders in a manner consistent with the purposes of the 

Orders.

C. The Monitor shall serve until the later of (1) eighteen (18) months after the Divestiture 

Date or (2) the termination of all Respondents’ obligations under all Remedial 

Agreements; PROVIDED, HOWEVER, the Commission may extend or modify this 

period as may be necessary to accomplish the purposes of the Orders.

D. Respondents 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 Respondents’ 

compliance with the divestiture and asset maintenance obligations and related 
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requirements of the Orders, and shall exercise such power and authority and carry 

out the duties and responsibilities of the Monitor in a manner consistent with the 

purposes of the Orders and in consultation with the Commission, including, but 

not limited to:

a. Assuring that Respondents expeditiously comply with all of their 

obligations and performs all of their responsibilities as required by this 

Orders and the Remedial Agreements;

b. Monitoring all Remedial Agreements; and

c. Assuring that Confidential Business Information is not received or used by 

Respondents or the Acquirer, except as allowing in the Orders;

2. The Monitor shall act in a fiduciary capacity for the benefit of the Commission;

3. The Monitor shall serve for such time as is necessary to monitor Respondents’ 

compliance with the provisions of the Orders and the Remedial Agreements;

4. Subject to any demonstrated legally recognized privilege, the Monitor shall have 

full and complete access to Respondents’ personnel, books, documents, records 

kept in the ordinary course of business, facilities and technical information, and 

such other relevant information as the Monitor may reasonably request, related to 

Respondents’ compliance with its obligations under the Orders and the Remedial 

Agreements. Respondents shall cooperate with any reasonable request of the 

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

to monitor Respondents’ compliance with the Orders and the Remedial 

Agreements;

5. The 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 Monitor shall have the authority to employ, at the 

expense of Respondents, such consultants, accountants, attorneys, and other 

representatives and assistants as are reasonably necessary to carry out the 

Monitor’s duties and responsibilities. The Monitor shall account for all expenses 

incurred, including fees for services rendered, 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 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 malfeasance, gross negligence, willful or wanton acts, or bad faith by 

the Monitor. For purposes of this Paragraph III, the term “Monitor” shall include 

all persons retained by the Monitor pursuant to Paragraph III.D.5 of this Order to 

Maintain Assets and Paragraph III.D.5 of the Decision and Order;
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7. Respondents shall report to the Monitor in accordance with the requirements of 

the Orders and/or as otherwise provided in any agreement approved by the 

Commission. The Monitor shall evaluate the reports submitted to the Monitor by 

the Respondents, and any reports submitted by the Acquirer with respect to the 

performance of Respondents’ obligations under the Orders and the Remedial 

Agreements;

8. Within one (1) month from the date the Monitor is appointed pursuant to this 

Paragraph, every sixty (60) days thereafter, and otherwise requested by the 

Commission, the Monitor shall report in writing to the Commission concerning 

performance by Respondents’ of their obligations under the Orders and the 

Remedial Agreements; 

9. Respondents may require the Monitor and each of the Monitors consultants, 

attorneys, and other representatives and assistants to sign a customary 

confidentiality agreement; PROVIDED, HOWEVER, such agreement shall not 

restrict the Monitor from providing any information to the Commission.

E. The Commission may, among other things, require the Monitor and each of the 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 Monitor’s duties.

F. If the Commission determines that the Monitor has ceased to act or failed to act 

diligently, the Commission may appoint a substitute Monitor.

G. In the event a substitute Monitor is required, the Commission shall select the Monitor, 

subject to the consent of Respondents, which consent shall not be unreasonably withheld. 

If Respondents have not opposed, in writing, including the reasons for opposing, the 

selection of the proposed substitute Monitor within ten (10) days after notice by the staff 

of the Commission to Respondents of the identity of any proposed substitute Monitor, 

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

substitute Monitor. Not later than ten (10) days after appointment of a substitute 

Monitor, Respondents shall execute an agreement that, subject to the prior approval of 

the Commission, confers on the substitute Monitor all the rights and powers necessary to 

permit the substitute Monitor to monitor Respondent’s compliance with the terms of the

Orders and the Remedial Agreements in a manner consistent with the purposes of the

Orders.

H. 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 the Orders and the Remedial Agreements.
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IV.

I.

IT IS FURTHER ORDERED that:

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

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

B. Respondents shall submit to the Commission and, if appointed, the Monitor, a verified 

written report setting forth in detail the manner and form in which it intends to comply, 

are complying, and have complied with this Order:

1. Within thirty (30) days after the date this Order to Maintain Assets becomes final;

2. Every thirty (30) days thereafter until Respondents have fully divested, licensed, 

transferred and/or granted the Aluminum Beverage Cans Business to an Acquirer; 

and

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

obligation under this Order and/or the Remedial Agreements to render services to 

the Acquirer or otherwise to comply with this Order;

PROVIDED, HOWEVER, THAT, AFTER THE PROPOSED Decision and Order in this 

matter becomes final, the reports due under this Order to Maintain Assets may be 

consolidated with, and submitted to the Commission at the same time as the reports 

required to be submitted by Respondents pursuant to the Decision and Order.

V.

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

thirty (30) days prior to:

A. Any proposed dissolution of Respondents; 

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

C. Any other change in the Respondents, including, but not limited to, assignment and the 

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

arising out of the Order.

VI.

IT IS FURTHER ORDERED that for the purpose of determining or securing 

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

request with reasonable notice to Respondents, with respect to any matter contained in this 

Order, Respondents shall permit any duly authorized representative of the Commission:

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

inspect and copy all non-privileged books, ledgers, accounts, correspondence, 
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memoranda and other records and documents in the possession or under the control of 

Respondents related to compliance with the Consent Agreement and/or this Order, which 

copying services shall be provided by Respondents at the request of the authorized 

representative of the Commission and at the expense of Respondents; and

B. Upon five (5) days’ notice to Respondents and without restraint or interference from 

them, to interview officers, directors, or employees of Respondents, who may have 

counsel present.

VII.

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

later of:

A. The day after the divestiture of the Aluminum Beverage Cans Business, as required by 

and described in the proposed Decision and Order, has been completed and the Monitor, 

in consultation with the Commission staff and the Acquirer, notified the Commission that 

all assignments, conveyances, deliveries, grants, license, transactions, transfers and other 

transitions related to such divestiture are complete;

B. The day the proposed Decision and Order becomes final; or

C. The Commission otherwise directs that this Order to Maintain Assets be terminated;

PROVIDED, HOWEVER, if the Commission withdraws its acceptance of the Consent 

Agreement pursuant to the provisions of the Commission Rule 2.34, 16 C.F.R. § 2.34, this Order 

to Maintain Assets shall terminate no later than three (3) days after such action by the 

Commission.

By the Commission.

Donald S. Clark

Secretary

SEAL:

ISSUED: June 28, 2016