UNITED STATES OF AMERICA

BEFORE FEDERAL TRADE COMMISSION

COMMISSIONERS: Deborah Platt Majoras, Chairman

Pamela Jones Harbour

Jon Leibowitz

William E. Kovacic

J. Thomas Rosch

__________________________________________ 

 )

 In the Matter of )

)

JARDEN CORPORATION, )

 a corporation, and ) File No. 071-0168 

) 

K2 Inc., )

 a corporation. )

)

__________________________________________)

AGREEMENT CONTAINING CONSENT ORDERS

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

proposed acquisition by Proposed Respondent Jarden Corporation ("Jarden") of Proposed

Respondent K2 Inc. (“K2"), and it now appearing that Jarden and K2, hereinafter sometimes

collectively referred to as “Proposed Respondents,” are willing to enter into this Agreement

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

other relief:

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

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

1. Proposed Respondent Jarden 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 555 Theodore Fremd Avenue, Suite B-302, Rye, NY 10580.

2. Proposed Respondent K2 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 5818 El Camino Real, Carlsbad, CA 92008.
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2. Proposed Respondents admit all the jurisdictional facts set forth in the draft of Complaint

here attached.

3. Proposed Respondents waive:

a.. any further procedural steps;

b. the requirement that the Commission’s Order to Maintain Assets and Decision

and Order, both of which are attached hereto and made a part hereof, contain a

statement of findings of fact and conclusions of law;

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

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

Consent Agreement; and

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

4. Because there may be interim competitive harm, the Commission may issue its Complaint

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

Agreement for public comment.

5. Not later than thirty (30) days after the date this Consent Agreement is signed by the

Proposed Respondents, Proposed Respondents shall submit an initial report, pursuant to

Section 2.33 of the Commission’s Rules, 16 C.F.R. § 2.33. Proposed Respondents shall

also submit subsequent reports every thirty (30) days thereafter until the Order to

Maintain Assets becomes final, at which time the reporting obligations contained in the

Order to Maintain Assets (other than the requirement to submit an initial report pursuant

to this Consent Agreement) shall control. Such reports shall be signed by Proposed

Respondents and set forth in detail the manner in which Proposed Respondents have

complied and will comply with the Order to Maintain Assets and the Decision and Order. 

Such reports will not become part of the public record unless and until the Consent

Agreement and Decision and Order are accepted by the Commission for public comment.

6. In each of the above-described reports, Proposed Respondents shall provide sufficient

information and documentation to enable the Commission to determine independently

whether each Proposed Respondents are in compliance with this Agreement and each of

the Orders.

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

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

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

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

publicly released. The Commission thereafter may either withdraw its acceptance of this
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Consent Agreement and so notify Proposed Respondents, in which event it will take such

action as it may consider appropriate, or issue or amend its Complaint (in such form as

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

proceeding.

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

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

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

jurisdictional facts, are true.

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

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

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

and (3) make information public with respect thereto. If such acceptance is not

subsequently withdrawn by the Commission pursuant to the provisions of Commission

Rule 2.34, 16 C.F.R. § 2.34, the Commission may, without further notice to the Proposed

Respondents, issue the attached Decision and Order containing an order to divest and

providing for other relief in disposition of the proceeding.

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

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

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

to Maintain Assets shall become final upon service. Delivery of the Complaint, the

Decision and Order, and the Order to Maintain Assets to Proposed Respondents by any

means provided in Commission Rule 4.4(a), 16 C.F.R. § 4.4(a), shall constitute service. 

Proposed Respondents waive any right they may have to any other manner of service. 

Proposed Respondents also waive any right they may otherwise have to service of any

Appendices incorporated by reference into the Decision and Order, and agree that they are

bound to comply with and will comply with the Decision and Order and the Order to

Maintain Assets to the same extent as if they had been served with copies of the

Appendices, where Proposed Respondents are already in possession of copies of such

Appendices.

12. The Complaint may be used in construing the terms of the Decision and Order and the

Order to Maintain Assets, and no agreement, understanding, representation, or

interpretation not contained in the Decision and Order, the Order to Maintain Assets, or

the Consent Agreement may be used to vary or contradict the terms of the Decision and

Order or the Order to Maintain Assets.

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

they can accomplish the full relief contemplated by the attached Decision and Order and

the Order to Maintain Assets (including effectuating all required divestitures,

assignments, and transfers and obtaining all necessary approvals from governmental
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authorities, leaseholders, and other third parties to effectuate the divestitures,

assignments, and transfers) and that all parents, subsidiaries, affiliates, and successors

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

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

Agreement and were made parties to this proceeding and to the Decision and Order and

the Order to Maintain Assets.

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

Asset Purchase Agreement (as defined in the Decision and Order) that has been submitted

to the Commission at the time of this Consent Agreement for approval by the

Commission in connection with the Commission’s determination to make the Decision

and Order final comports with all of the relevant requirements of the Decision and Order

and requires Proposed Respondents to divest all assets required to be divested pursuant to

the relevant divestiture requirements of the Decision and Order. 

15. Proposed Respondents have read the draft of the Complaint, the Decision and Order, and

the Order to Maintain Assets contemplated hereby. Proposed Respondents understand

that once the Decision and Order and the Order to Maintain Assets have been issued, they

will be required to file one or more compliance reports showing that they have fully

complied with the Decision and Order and the Order to Maintain Assets. 

16. Proposed Respondents agree to comply with the terms of the proposed Decision and

Order and the Order to Maintain Assets, as applicable, from the date they sign this

Consent Agreement. Proposed Respondents further understand that they may be liable

for civil penalties in the amount provided by law for each violation of the Decision and

Order and of the Order to Maintain Assets after they become final.

Signed this ______________ day of [ ] 2007.

JARDEN CORPORATION FEDERAL TRADE COMMISSION,

BUREAU OF COMPETITION

By: ______________________________ By: _____________________________

 

Martin E. Franklin Brendan J. McNamara

Chairman and Chief Executive Officer Tammy L. Imhoff

Jarden Corp. Attorneys

Bureau of Competition

 ______________________________ 

Mitchell D. Hollander

Kane Kessler, P.C.

Counsel for Jarden Corp.
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K2 Inc. APPROVED:

By: _____________________________ _____________________________

J. Wayne Merck Michael R. Moiseyev

Chairman and Chief Executive Officer Assistant Director

K2 Inc. Bureau of Competition

______________________________ _____________________________

Christopher D. Dusseault Jeffrey Schmidt

Gibson, Dunn & Crutcher LLP Director

Counsel for K2 Inc. Bureau of Competition