0610281

UNITED STATES OF AMERICA

BEFORE FEDERAL TRADE COMMISSION

COMMISSIONERS: Deborah Platt Majoras, Chairman

Pamela Jones Harbour

Jon Leibowitz

William E. Kovacic

J. Thomas Rosch

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In the Matter of

OWENS CORNING,

 a corporation. 

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Docket No. C-4210

DECISION AND ORDER

[Public Record Version]

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

proposed acquisition by Owens Corning (“Respondent”) of certain fiberglass reinforcements and

composite fabrics assets of Compagnie de Saint Gobain (“Saint Gobain”) and Respondent

having been furnished thereafter with a 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 Respondent 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

Respondent, its attorneys, and counsel for the Commission having thereafter executed an

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

Respondent 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 Respondent that the law has been violated as alleged in such
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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 Respondent has violated the said Acts, and that a Complaint should

issue stating its charges in that respect, and thereupon having issued its Complaint, 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 Owens Corning is a publicly traded company, organized, existing and

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

principal place of business located at One Owens Corning Parkway, Toledo, Ohio 43659.

2. The Federal Trade Commission has jurisdiction of the subject matter of this

proceeding and of Respondent, and the proceeding is in the public interest.

ORDER

I.

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

A. “Respondent Owens Corning”or “Owens Corning” means Owens Corning, a corporation,

its directors, officers, employees, agents, attorneys, representatives, successors, and

assigns; its joint ventures, subsidiaries, divisions, groups and affiliates controlled by

Owens Corning, and the respective directors, officers, employees, agents, attorneys,

representatives, predecessors, successors, and assigns of each.

B. “Saint Gobain” means Compagnie de Saint Gobain, a corporation, its directors, officers,

employees, agents, attorneys, representatives, successors, and assigns; its joint ventures,

subsidiaries, divisions, groups and affiliates controlled by Saint Gobain, and the

respective directors, officers, employees, agents, attorneys, representatives, predecessors,

successors, and assigns of each.

C. “Commission” means the Federal Trade Commission.

D. “Acquisition” means the proposed acquisition by Respondent Owens Corning of certain

fiberglass reinforcements and composite fabrics assets from Saint Gobain pursuant to and

as described in the Purchase Agreement dated as of July 26, 2007 by and between

“Owens Corning, Société De Participations Financieres Et Industrielles S.A.S., and the

Other Parties Named Herein.” 

E. “Acquisition Date” means the date on which the Acquisition is consummated.
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F. “AGY” means AGY Holding Corp., a privately held company, organized, existing and

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

place of business located at 2556 Wagener Road, Aiken, South Carolina 29801.

G. “AGY Acquisition Agreement” means the Asset Purchase Agreement dated as of August

31, 2007 between Owens Corning Composite Materials, LLC and AGY Huntington LLC,

with amendments, attachments, exhibits, and schedules thereto, attached as Confidential

Appendix B to this Order.

H. “Confidential Business Information” means all information that is not in the public

domain related to research, development, manufacture, marketing, commercialization,

distribution, importation, cost, pricing, supply, sales, sales support, or use of the

particular assets.

I. “CFM” means continuous filament mat.

J. “Designated OC Employee” means those persons, or persons identified in Confidential

Appendix A to this Order.

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

Paragraph IV of this Order.

L. “Effective Date of OC Glass Fiber Divestiture” means the date on which Respondent (or

a Divestiture Trustee) divests to the OC Acquirer the OC North American CFM Business

completely and as required by Paragraphs II or IV of this Order.

M. “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.

N. “Intellectual Property” means any intellectual property including, but not limited to,

software, computer programs, patents, know-how, goodwill, technology, trade secrets,

technical information, marketing information, protocols, research and development,

quality control information, trademarks, trade names, service marks, logos, and the

modifications or improvements to such intellectual property.

O. “Marbles” means glass fiber marbles used in the production of, among other things, CFM

at the OC Huntingdon Facility.

P. “Marbles Furnace” means the furnace for the production of Marbles including, all

attachments and assets used on, attached to, appurtenant or adjacent to, or directly related

to the furnace and used in the operation of the furnace in the production or distribution of

Marbles produced at the OC Anderson Facility, and includes, but is not limited to:

1. copies of all books, records, and documents, including but not limited to

electronically stored documents and records produced in an electronically

readable form, together with all necessary instructions and software, or access to

software licenses, relating to the Marbles Furnace and to the production,
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marketing, distribution, or sale of products produced by the Marbles furnace;

PROVIDED, HOWEVER, that if any such books, records, or documents also

include matters not related to the Marbles Furnace or Marbles produced at the OC

Anderson Facility, then only those portions of the books, records, and documents

that relate to the furnace that produces Marbles at the OC Anderson Facility or the

Marbles produced at the facility may be included;

2. raw materials in use at the time of the divestiture in the marbles furnace at the OC

Anderson Facility, alloy metals currently used with the furnace at the OC

Anderson Facility (or stored at and designated for use with the marbles furnace at

the OC Anderson Facility, or held elsewhere on account for use with the marbles

furnace at the OC Anderson Facility), work-in-process, finished goods, and

packaging materials, PROVIDED, HOWEVER, Respondent may, at the OC

Acquirer’s option and with the Commission’s approval, not sell all or some of the

alloy metals to the OC Acquirer;

3. exclusive right to all Intellectual Property used solely in the operation of the

Marbles Furnace or in the production, marketing, distribution, or sale of the

Marbles produced at the OC Anderson Facility, and a non-exclusive right to all

other Intellectual Property used in the operation of the Marbles Furnace and in the

production, marketing, distribution, or sale of the products produced at the

Marbles Furnace for the field of use of CFM;

4. all plans (including proposed and tentative plans, whether or not adopted),

specifications, drawings, and other assets (including the non-exclusive right to

use patents, know-how, and other Intellectual Property relating to such plans)

related to the operation of the Marbles Furnace;

5. all licenses, permits, contracts, agreements, and understandings relating to the

ownership and operation of the Marbles Furnace.

Q. “Marbles Furnace Operational Areas” means the:

1. areas appurtenant to and used in the operation of the Marbles Furnace including,

but not limited to, loading and unloading areas, storage areas for inputs and

inventory, at the OC Anderson Facility;

2. areas for the use of employees working at or on the Marbles Furnace at the OC

Anderson Facility, similar to those areas available to Owens Corning employees

working at the OC Anderson Facility, including, but not limited to, exits and

entrances, parking areas, machine rooms, work rooms, break rooms, bathrooms,

and locker rooms;

3. existing easements and rights of way relating to the Marbles Furnace;

4. related facilities required for the storage of Marbles produced at the OC Anderson

Facility.
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R. “Marbles Inventory” means Respondent’s supply of Marbles at the OC Anderson Facility

and Respondent’s warehouse in Commerce, South Carolina in existence at the time of the

AGY Acquisition Agreement.

S. “Marbles Raw Materials” means the raw materials necessary for the manufacture of

Marbles.

T. “OC Acquirer” means either AGY or any other entity that receives the prior approval of

the Commission to acquire the OC North American CFM Business pursuant to

Paragraphs II or IV of this Order. 

U. “OC Anderson Facility” means the Owens Corning manufacturing facility, located at

Highway 81 S, Anderson, South Carolina, 29624, which includes approximately 178

acres of land on which the manufacturing facility sits.

V. “OC Battice Facility” means the Owens Corning glass fiber reinforcements

manufacturing facility, located at Rue de Maestricht, Battice, Leige 4641.

W. “OC Bushing Fabrication Business” means the fabrication of bushings conducted by OC

in Concord, NC, Rio Claro, Brazil, and Ibaraki, Japan.

X. “OC CFM Divestiture Agreement” means either the AGY Acquisition Agreement or any

other agreement that receives the prior approval of the Commission between Respondent

and an OC Acquirer (or between a Divestiture Trustee and an OC Acquirer), as well as

all amendments, exhibits, attachments, agreements, and schedules thereto, related to the

divestiture of the OC North American CFM Business pursuant to Paragraphs II or IV of

this Order.

Y. “OC CFM Intellectual Property” means all Intellectual Property relating to the design,

manufacture, and sale of CFM designed, manufactured, or sold by, or on behalf of,

Owens Corning, even where such Intellectual Property has not been reduced to practice

or commercialized including, but not limited to:

1. manufacturing process technology and technology for equipment used in the

manufacturing process, such as bushings and windings;

2. all United States and foreign patents, trademarks, trade names, domain names,

service marks and copyrights and any applications for and registrations of such

patents, trademarks, trade names, domain names, service marks and copyrights

and any renewal, derivation, divisions, reissues, continuation, continuations-in

part, modifications or extensions thereof or, if the patents have already been

issued on the basis of said applications, the resulting patents;

3. Intellectual Property relating to applications in which CFM products produced by

Owens Corning are used;
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4. all plans (including proposed and tentative plans, whether or not adopted),

specifications, drawings, and other assets (including the non-exclusive right to

use patents, know-how, and other Intellectual Property relating to such plans);

5. any other Intellectual Property used in the past by Owens Corning in the design,

manufacture, and sale of CFM.

PROVIDED, HOWEVER, OC CFM Intellectual Property does not include Intellectual

Property related to AdvantexTM glass, oxygen-firing processes, advanced glass melting,

furnace designs, and OC Furnace Technology.

Z. “OC Furnace Technology” means:

1. all Intellectual Property related to Owens Corning’s furnaces located at, and

furnace technology and furnace processes used in the OC Guelph Facility and the

OC Battice Facility;

2. a copy of all plans (including proposed and tentative plans, whether or not

adopted), specifications, drawings, and other assets (including the non-exclusive

right to use patents, know-how, and other Intellectual Property relating to such

plans) related to Owens Corning’s furnaces located at, and furnace technology

and furnace processes used in the OC Guelph Facility and the OC Battice Facility.

AA. “OC Guelph Facility” means the Owens Corning glass fiber reinforcements

manufacturing facility located in Guleph, Ontario, NIH6P6, Canada.

BB. “OC Huntingdon Facility” means the Owens Corning glass fiber continuous filament mat

manufacturing facility, located at 1200 Susquehanna Ave., Huntingdon, Pennsylvania,

16652, which includes approximately 19 acres of land on which the manufacturing

facility sits.

CC. “OC North American CFM Business” means the Owens Corning North American glass

fiber continuous filament mat business including, but not limited to:

1. the OC Huntingdon Facility and:

a. all tangible and real assets used in the operation of the OC Huntingdon

Facility, including any leasehold, ownership, fee, or any other interest in

real estate at the OC Huntingdon Facility grounds in Huntingdon,

Pennsylvania, and in the production or distribution of the products

produced at the facility, and includes, but is not limited to, 

(1) the main plants; 

(2) rail cars, trucks, and other vehicles owned by Respondent Owens

Corning related to the transportation and distribution of products

produced or used in the OC Huntingdon Facility; and
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(3) raw materials including, but not limited to, alloy metals currently

used at the OC Huntingdon Facility, or stored at and designated for

use at the OC Huntingdon Facility, or held elsewhere on account

for use at the OC Huntingdon Facility, work-in-process

inventories, stores and spares, inventories, packaging materials,

finished goods inventories, finished goods in transit to offsite

storage or to customers, and offsite inventory, PROVIDED,

HOWEVER, Respondent may, at the OC Acquirer’s option and

with the Commission’s approval, not sell all or some of the alloy

metals to the OC Acquirer; 

b. all books, records, and documents, including but not limited to

electronically stored documents and records produced in an electronically

readable form, together with all necessary instructions and software, or

access to software licenses to the OC Acquirer, relating to the OC

Huntingdon Facility and to the production, marketing, distribution, or sale

of products produced at the facility; PROVIDED, HOWEVER, that if any

such books, records, or documents also include matters not related to the

OC Huntingdon Facility or products produced at the OC Huntingdon

Facility, then only those portions of the books records and documents that

relate to the OC Huntingdon Facility or the products produced at the

facility may be included;

c. all Intellectual Property used solely in the operation of the OC Huntingdon

Facility or in the production, marketing, distribution, or sale of the

products produced at the OC Huntingdon Facility, and a non-exclusive 

right for the purpose of the production, marketing, distribution or sale of

CFM to all other Intellectual Property used in the operation of the OC

Huntingdon Facility and in the production, marketing, distribution, or sale

of the products produced at the OC Huntingdon Facility;

d. all contracts, agreements, and understandings, relating to the manufacture,

transportation, storage, marketing, distribution, or sale of the products

produced at the OC Huntingdon Facility, which includes but is not limited

to:

(1) agreements under which the OC Huntingdon Facility receives

electricity, natural gas, or other inputs at or for the OC Huntingdon

Facility; PROVIDED, HOWEVER, any current or future supply

contract for Marbles is excluded and prohibited unless a separate

contract for Marbles is expressly agreed to as part of the OC CFM

Divestiture Agreement;

(2) agreements for services provided to the OC Huntingdon Facility,

including, but not limited to, rail, trucking, capital maintenance,

and technology;
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(3) agreements and contracts with customers for products produced

exclusively by the OC Huntingdon Facility;

e. all joint ventures relating to the operation of the OC Huntingdon Facility

and the production, marketing, distribution, or sale of the products

produced at the OC Huntingdon Facility;

f. all plans (including proposed and tentative plans, whether or not adopted),

specifications, drawings, and other assets (including the non-exclusive

right to use patents, know-how, and other Intellectual Property relating to

such plans) related to the operation of the OC Huntingdon Facility

including, but not limited to bushing designs;

g. existing easements and rights of way;

h. related facilities required for the operation or the storage of products

produced or used at the OC Huntingdon Facility;

i. all licenses, permits, contracts, agreements, and understandings relating to

the ownership and operation of the OC Huntingdon Facility;

2. the Marbles Furnace;

3. a twenty (20) year lease for the Marbles Furnace Operational Areas, PROVIDED,

HOWEVER, such lease shall include terms that allow the OC Acquirer to

terminate such lease at any time, without penalty, with at least five (5) days prior

notice to Respondent Owens Corning;

4. an agreement for the acquisition of Marbles Inventory.

PROVIDED, HOWEVER, the OC North American CFM Business does not include the OC

Bushing Fabrication Business or the OC Guelph Facility.

DD. “Person” means any individual, partnership, association, company or corporation.

EE. “Plastic Reinforcements Products” means products which are manufactured by melting

quarry inputs (combinations of silica, clay, and other materials) in a refractory-lined

furnace to create molten glass which is drawn through a surface with one or more holes

to create filaments. The filaments are then treated by various chemical and physical

processes to alter their properties so that these products can be used in a wide variety of

reinforcement applications to provide, among other things, strength, thermal or chemical

resistance.
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II.

IT IS FURTHER ORDERED that:

A. Within ten (10) days after the Acquisition Date: 

1. Respondent shall divest the OC North American CFM Business in good faith to

AGY, pursuant to and in accordance with the AGY Acquisition 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 AGY or to reduce any

obligations of Respondent under such agreements), and such agreement, if

approved by the Commission as the OC CFM Divestiture Agreement, is

incorporated by reference into this Order and made a part hereof as Confidential

Appendix C. 

PROVIDED, HOWEVER, with respect to assets that are to be divested or

agreements entered into pursuant to this paragraph at the Acquirer’s option,

Respondent need not divest such assets or enter into such agreements only if the

Acquirer chooses not to acquire such assets or enter into such agreements and the

Commission approves the divestiture without such assets or agreements.

2. Respondent shall grant to the Acquirer a worldwide, royalty-free, fully paid-up,

perpetual, irrevocable, license to or copies of, where appropriate, the OC CFM

Intellectual Property for the purpose of the production, marketing, distribution or

sale of CFM. PROVIDED, HOWEVER, Respondent shall have up to sixty (60)

days following the grant of such OC CFM Intellectual Property license to deliver

documents or information from locations other than the OC Huntingdon Facility

and the OC Anderson Facility.

3. Respondent shall grant to the Acquirer a royalty-free, fully paid-up, perpetual,

irrevocable license to or copies of, where appropriate, the OC Furnace

Technology for the purpose of the production, marketing, distribution or sale of

CFM. PROVIDED, HOWEVER, Respondent shall have up to sixty (60) days

following the grant of such OC Furnace Technology license to deliver documents

or information from locations other than the OC Huntingdon Facility and the OC

Anderson Facility.

B. If, at the time the Commission determines to make this Order final, the Commission

notifies Respondent that AGY is not an acceptable acquirer of the OC North American

CFM Business or that the manner in which the divestiture was accomplished is not

acceptable, then, after receipt of such written notification:

1. Respondent shall immediately notify AGY of the notice received from the

Commission and shall as soon as practicable effect the rescission of the AGY

Acquisition Agreement; and
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2. Respondent shall, within six (6) months from the date this Order becomes final,

divest the OC North American CFM Business absolutely and in good faith, at no

minimum price, to an acquirer that receives the prior approval of the Commission

and in a manner that receives the prior approval of the Commission. PROVIDED,

HOWEVER, with respect to assets that are to be divested or agreements entered

into pursuant to this paragraph at the OC Acquirer’s option, Respondent need not

divest such assets or enter into such agreements only if the OC Acquirer chooses

not to acquire such assets or enter into such agreements and the Commission

approves the divestiture without such assets or agreements.

3. The Commission may appoint a Monitor pursuant to Paragraph III of this Order

to assist Respondent in:

a. effectuating modifications to the OC CFM Divestiture Agreement or

manner of divestiture of the OC North American CFM Business

(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; and

b. taking such actions as are necessary to maintain the full economic

viability, marketability and competitiveness of the OC North American

CFM Business, including, but not limited to, monitoring the exchange of

Confidential Business Information about the OC North American CFM

Business to and between Respondent, to minimize any risk of loss of

competitive potential for the businesses associated with the OC North

American CFM Business, and to prevent the destruction, removal,

wasting, deterioration, or impairment of any of the OC North American

CFM Business except for ordinary wear and tear.

C. Any OC CFM Divestiture Agreement that has been approved by the Commission

between the Respondent (or a Divestiture Trustee) and an OC Acquirer of the OC North

American CFM Business shall be deemed incorporated into this Order, and any failure by

Respondent to comply with any term of such OC CFM Divestiture Agreement shall

constitute a failure to comply with this Order.

D. Respondent shall not enter into any agreement with Saint Gobain for Plastic

Reinforcements Products that would, directly or indirectly, affect the viability,

marketability and competitiveness of the Saint Gobain businesses and assets that are not

sold to Respondent pursuant to the Acquisition.

E. Until the Effective Date of OC Glass Fiber Divestiture, Respondent shall:

1. take such actions as are necessary to maintain the viability and marketability of

the OC North American CFM Business and to prevent the destruction, removal,

wasting, deterioration, or impairment of the OC North American CFM Business

except for ordinary wear and tear; and
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2. not sell, transfer, encumber or otherwise impair the full economic viability,

marketability, or competitiveness of the OC North American CFM Business.

F. For the length of time during which Respondent leases the Marbles Furnace Operational

Area to the OC Acquirer, Respondent shall:

1. except as requested by the OC Acquirer, take such actions as are necessary to

prevent the destruction, removal, wasting, deterioration, or impairment of the

Marbles Furnace and the Marbles Furnace Operational Area, PROVIDED,

HOWEVER, Respondent shall not be responsible for changes to or problems of

the Marbles Furnace or the Marbles Furnace Operational Area caused by the OC

Acquirer; PROVIDED, FURTHER, HOWEVER, Respondent shall not be

responsible for the maintenance, upkeep, rebuilding or replacement of the

Marbles Furnace; PROVIDED, FURTHER, HOWEVER, Respondent shall give

the OC Acquirer sixty (60) days prior notice of any facility maintenance,

including ordinary and regular maintenance, when such maintenance may affect

the operation of the Marbles Furnace or the OC Acquirer’s access to the Marbles

Furnace Operational Area; PROVIDED, FURTHER, HOWEVER, in the event

Respondent cannot give the OC Acquirer sixty (60) days prior notice, then

Respondent must notify the OC Acquirer as soon as it first notifies any persons at

the OC Anderson Facility regarding maintenance or problems that may affect the

operation of the Marbles Furnace or the OC Acquirer’s access to the Marbles

Furnace Operational Area; and

2. maintain the Marbles Furnace and Marbles Furnace Operational Area in the same

general way in which it maintains the other furnaces owned by Respondent and

common areas of the OC Anderson Facility (to the extent the OC Acquirer

complies with the lease terms) including, but not limited to, the uninterrupted

provision of utilities and services, and Respondent shall allow access to the OC

Anderson Facility.

G. No later than the Effective Date of OC Glass Fiber Divestiture, Respondent shall:

1. secure all assignments, consents, and waivers, including rights of approval and

rights of first refusal, from all private and Governmental Entities that are

necessary for the divestiture of the OC North American CFM Business; and

2. remove all non-compete agreements or other agreements as may be necessary to

accomplish the divestiture of the OC North American CFM Business. 

H. Respondent shall, at the option of the Acquirer, no later than the Effective Date of OC

Glass Fiber Divestiture, and as part of the OC CFM Divestiture Agreement, enter into

one or more transition agreements for the short-term provision of services provided by

Respondent to the OC Acquirer. 

1. Such agreements may include, but are not limited to, an agreement for the supply

of Marbles Raw Materials. 
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2. Respondent shall not terminate any transition agreement early: 

a. without the written agreement of the Acquirer and thirty (30) days prior

notice to the Commission; or,

b. in the case of a proposed unilateral termination by Respondent due to an

alleged breach of an agreement by the Acquirer, sixty (60) days notice of

such termination. PROVIDED, HOWEVER, such sixty (60) days notice

shall only be given after the parties: 

(1) have attempted to settle the dispute between themselves, and 

(2) engaged in arbitration and received an arbitrator’s decision, or 

(3) received a final court decision after all appeals.

I. After divestiture of the OC North American CFM Business, Respondent and

Respondent’s employees shall not receive, or have access to, or use or continue to use

any Confidential Business Information about the OC North American CFM Business or

about the production, transportation, delivery, storage, distribution, marketing, and sale

of products of the OC Acquirer from the OC Huntingdon Facility except:

1. As otherwise allowed in this Order;

2. As provided for in a transition services agreement; 

3. As consented to by the OC Acquirer for provision to Respondent Owens Corning;

4. As required by law;

5. To the extent that necessary information is exchanged in the course of

consummating the Acquisition;

6. In negotiating agreements to divest assets pursuant to this Order and engaging in

related due diligence;

7. In complying with this Order;

8. To the extent necessary to allow Respondent to comply with the requirements and

obligations of the laws of the United States and other countries;

9. In defending legal claims, investigations or enforcement actions threatened or

brought against or related to the OC North American CFM Business; and

10. In obtaining legal advice.

Respondent shall require any Persons with access to Confidential Business Information

to immediately enter into agreements with the Respondent and OC Acquirer not to
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disclose any Confidential Business Information to the Respondent or to any third party

except for the purposes set forth in this paragraph.

J. The purposes of this Paragraph II of the Order are: (1) to ensure the continuation of the

OC North American CFM Business as a going concern in the same manner in which it

conducted business as of the date the Consent Agreement is signed, and (2) to remedy the

lessening of competition resulting from the Acquisition as alleged in the Commission’s

Complaint.

III.

IT IS FURTHER ORDERED that:

A. At any time after Respondent signs the Consent Agreement in this matter, the

Commission may appoint a Monitor to assure that Respondent expeditiously complies

with all of its obligations and performs all of its responsibilities as required by this Order;

B. The Commission shall select the Monitor, subject to the consent of Respondent, which

consent shall not be unreasonably withheld. If the Respondent has not opposed, in

writing, including the reasons for opposing, the selection of a proposed Monitor within

ten (10) days after notice by the staff of the Commission to Respondent of the identity of

any proposed Monitor, Respondent shall be deemed to have consented to the selection of

the proposed Monitor.

C. Not later than ten (10) days after appointment of the Monitor, Respondent shall execute

an agreement that, subject to the prior 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 relevant terms of the Order in a manner consistent

with the purposes of the Order.

D. If a Monitor is appointed pursuant to this Paragraph III, 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 the Respondent’s

compliance with the terms of the Order, 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 Order and in consultation with the

Commission including, but not limited to:

a. Assuring that Respondent expeditiously complies with all of its

obligations and performs all of its responsibilities as required by the

Decision and Order in this matter; and

b. Monitoring any transition services agreements.
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2. The Monitor shall act in a fiduciary capacity for the benefit of the Commission.

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

full and complete access to Respondent’s personnel, books, documents, records

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

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

Respondent’s compliance with its obligations under the Order. Respondent 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 Respondent’s

compliance with the Order.

4. 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 the 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 services rendered, subject to the approval of the

Commission. 

5. Respondent 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 misfeasance, gross negligence, willful or wanton acts, or bad faith by

the Monitor.

6. The Monitor Agreement shall state that within one (1) month from the date the

Monitor is appointed pursuant to this paragraph, and every sixty (60) days

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

performance by Respondent of its obligations under the Order.

7. Respondent may require the Monitor and each of the Monitor’s consultants,

accountants, 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 relating 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 in the same manner as

provided in this Paragraph III.
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G. 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 Order.

H. A Monitor appointed pursuant to this Order may be the same person appointed as the 

Divestiture Trustee pursuant to the relevant provisions of this Order.

IV.

IT IS FURTHER ORDERED that:

A. If Respondent has not fully complied with the obligations to divest the OC North

American CFM Business as required by Paragraph II of this Order, the Commission may

appoint a Divestiture Trustee to divest the OC North American CFM Business in a

manner that satisfies the requirements of Paragraph II. 

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, Respondent shall consent to the appointment of a

Divestiture Trustee in such action to divest the OC North American CFM Business. 

Neither the appointment of a Divestiture Trustee nor a decision not to appoint a

Divestiture Trustee under this Paragraph IV 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

Respondent to comply with this Order.

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

Respondent, which consent shall not be unreasonably withheld. The Divestiture Trustee

shall be a person with experience and expertise in acquisitions and divestitures. If

Respondent 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 of the identity of any proposed Divestiture Trustee,

Respondent 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, Respondent

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 divestitures required by this Order.

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

Paragraph IV, Respondent shall consent to the following terms and conditions regarding

the Divestiture Trustee’s powers, duties, authority, and responsibilities:
16

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

have the exclusive power and authority to divest the OC North American CFM

Business.

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

approves the trust agreement described herein to divest the OC North American

CFM Business absolutely and in good faith, at no minimum price, to an Acquirer

that receives the prior approval of the Commission and in a manner that receives

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 or

periods 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 divested by this Order and to

any other relevant information, as the Divestiture Trustee may request. 

Respondent shall develop such financial or other information as the Divestiture

Trustee may request and shall cooperate with the Divestiture Trustee. 

Respondent shall take no action to interfere with or impede the Divestiture

Trustee’s accomplishment of the divestiture. Any delays in divestiture caused by

Respondent shall extend the time for divestiture under this Paragraph IV in an

amount equal to the delay, as determined by the Commission.

4. The Divestiture Trustee shall use best 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;

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 Respondent, 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 Respondent, 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
17

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

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

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

assets that are required to be divested by this Order.

6. Respondent 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.

8. The Divestiture Trustee shall act in a fiduciary capacity for the benefit of the

Commission.

9. The Divestiture Trustee shall report in writing to Respondent and to the

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

accomplish the divestiture.

10. Respondent 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.

11. The Commission may, among other things, require the Divestiture Trustee and

each of the Divestiture Trustee’s consultants, accountants, attorneys, and other

representatives and assistants to sign an appropriate confidentiality agreement

relating to Commission materials and information received in connection with the

performance of the Divestiture Trustee’s duties.

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 IV.

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.
18

G. The Divestiture Trustee(s) appointed pursuant to Paragraph IV of this Order may be the

same Person appointed as the Monitor pursuant to Paragraph III of this Order. 

V.

IT IS FURTHER ORDERED that:

A. Beginning from the date the Respondent signs the Consent Agreement until sixty (60)

days after the Effective Date of OC Glass Fiber Divestiture, Respondent shall:

1. facilitate employment interviews between each Designated OC Employee and the

OC Acquirer, including providing the names and contact information for such

employees and allowing such employees reasonable opportunity to interview with

the OC Acquirer, and shall not discourage such employee from participating in

such interviews;

2. not interfere in employment negotiations between each Designated OC Employee

and the OC Acquirer;

3. with respect to each Designated OC Employee who receives an offer of

employment from the OC Acquirer:

a. not prevent, prohibit, or restrict, or threaten to prevent, prohibit, or restrict

the Designated OC Employee from being employed by the OC Acquirer,

and shall not offer any incentive to the Designated OC Employee to

decline employment with the OC Acquirer;

b. cooperate with the OC Acquirer in effecting transfer of the Designated OC

Employee to the employ of the OC Acquirer, if the Designated OC

Employee accepts an offer of employment from the OC Acquirer;

c. eliminate any contractual provisions or other restrictions entered into or

imposed by Respondent that would otherwise prevent the Designated OC

Employee from being employed by the OC Acquirer;

d. eliminate any confidentiality restrictions that would prevent the

Designated OC Employee who accepts employment with the OC Acquirer

from using or transferring to the Acquirer any information relating to the

operation of the OC North American CFM Business;

e. pay, for the benefit of any Designated OC Employee who accepts

employment with the OC Acquirer, all accrued bonuses, vested pensions,

and other accrued benefits; 

B. Respondent shall, for a period of two (2) years following the Effective Date of OC Glass

Fiber Divestiture, not, directly or indirectly, solicit, induce, or attempt to solicit or induce
19

any Designated OC Employee who is employed by the OC Acquirer to terminate his or

her employment relationship with the OC Acquirer, unless that employment relationship

has already been terminated by the OC Acquirer; PROVIDED, HOWEVER, Respondent

may make general advertisements for employees including, but not limited to, in

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

OC Acquirer’s employees; PROVIDED FURTHER, HOWEVER, Respondent may hire

Designated OC Employees who apply for employment with Respondent as long as such

employees were not solicited by Respondent in violation of this Paragraph.

VI.

IT IS FURTHER ORDERED that for a period of ten (10) years from the date this

Order becomes final, Respondent shall not:

A. without the prior approval of the Commission, acquire, directly or indirectly, any assets

divested pursuant to this Order, PROVIDED, HOWEVER, prior approval shall not be

required by Respondent to take possession of or reacquire the Marbles Furnace, or what

remains of the Marble Furnace, if and only if the OC Acquirer: (1) terminates the lease to

the Marbles Furnace Operational Area, and (2) notifies Respondent that it is abandoning

all of its rights to the Marbles Furnace. In such a situation, Respondent shall provide

written notification to the Commission of the timing and terms of the termination and

abandonment as soon as possible after Respondent receives notice from the OC Acquirer;

and

B. without providing advance written notification to the Commission in the manner

described in this Paragraph VI, directly or indirectly, acquire any stock, share capital,

equity or other interest in any Person, corporate or non-corporate that produces, or assets

used in the design, manufacture, production or sale of, glass fiber reinforcements or

composite fabrics.

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 (herein

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 Respondent and not of any other party to the transaction. Respondent shall

provide the Notification to the Commission at least thirty days prior to consummating the

transaction (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),

Respondent shall not consummate the transaction until thirty days after submitting such

additional information or documentary material. Early termination of the waiting periods

in this paragraph may be requested and, where appropriate, granted by letter from the

Bureau of Competition. 
20

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. 

PROVIDED, FURTHER, HOWEVER, that prior notification shall not be required by this

paragraph for an acquisition, if Respondent acquires no more than one percent of the

outstanding securities or other equity interest in an entity described in this Paragraph VI.

VII.

IT IS FURTHER ORDERED that: 

A. Within thirty (30) days after the date this Order becomes final, and every sixty (60) days

thereafter until Respondent has fully complied with Paragraphs II, IV, and V.A of this

Order, Respondent 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 Divestiture Trustee or the Monitor, if any

Divestiture Trustee or Monitor has been appointed pursuant to this Order. Respondent

shall include in its report, 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 description of all substantive contacts or negotiations related to the

divestiture of the relevant assets and the identity of all parties contacted. Respondent

shall include in its report copies of all written communications to and from such parties,

all internal memoranda, and all reports and recommendations concerning completing the

obligations.

B. Beginning twelve (12) months after the date this Order becomes final, and annually

thereafter on the anniversary of the date this Order becomes final, for the next nine (9)

years, Respondent shall submit to the Commission a verified written report setting forth

in detail the manner and form in which it has complied, is complying, and will comply

with this Order. Respondent shall include in its compliance reports, among other things

that are required from time to time, a full description of the efforts being made to comply

with the Order and copies of all written communications to and from all persons relating

to this Order.

VIII.

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

thirty (30) days prior to any: 

A. proposed dissolution of the Respondent;

B. proposed acquisition, merger or consolidation of each Respondent; or
21

C. any other change in the Respondent, including, but not limited to, assignment and the

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

obligations arising out of this Order.

IX.

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, Respondent shall permit any duly authorized representative of

the Commission:

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

and access to inspect and copy all books, ledgers, accounts, correspondence, memoranda

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

related to compliance with this Order; and

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

Respondent, to interview officers, directors, or employees of Respondent, who may have

counsel present, regarding such matters.

X.

IT IS FURTHER ORDERED that this Order shall terminate on December 4, 2017.

By the Commission.

Donald S. Clark

Secretary

SEAL

ISSUED: December 4, 2007
22

CONFIDENTIAL APPENDIX A

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

DESIGNATED OC EMPLOYEES

Those persons listed in Sections 1.1(d) as Retained Employees and 1.1(e) as Transferred

Employees of the Seller Disclosure Schedule to the AGY Acquisition Agreement.
23

CONFIDENTIAL APPENDIX B

OC CFM DIVESTITURE AGREEMENT

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