001 0186

UNITED STATES OF AMERICA

BEFORE FEDERAL TRADE COMMISSION

COMMISSIONERS: Timothy J. Muris, Chairman

Sheila F. Anthony

Mozelle W. Thompson

Orson Swindle

Thomas B. Leary

__________________________________

 )

 In the Matter of )

 )

Metso Oyj, )

 a corporation, )

 ) Docket No. C-4024

and )

 )

Svedala Industri AB, ) DECISION AND ORDER

 a corporation. )

 ) 

__________________________________) 

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

proposed acquisition of Respondent Svedala Industri AB (“Svedala”) by Respondent Metso Oyj

(“Metso”), hereinafter referred to as “Respondents,” and Respondents having been furnished thereafter

with a copy of a draft of Complaint that the Bureau of Competition presented 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 
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The Commission having thereafter considered the matter and having determined that it had

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

stating its charges in that respect, and having thereupon issued its Complaint and an Order to Maintain

Assets, 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 Metso is a corporation organized, existing and doing business under and

by virtue of the laws of Finland, with its office and principal place of business located at Fabianinkatu 9

A, P.O. Box 1220, FIN-00101, Helsinki, Finland. Metso’s principal subsidiary in the United States is

located at 133 Federal Street, Suite 302, Boston, MA 02110.

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

by virtue of the laws of Sweden, with its office and principal place of business located at Kaptensgatan

1, Box 4004, SE-203 11, Malmö, Sweden. Svedala’s principal subsidiary in the United States is

located at 20965 Crossroads Circle, Waukesha, WI 53186.

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

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

ORDER

I.

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

A. "Metso" means Metso Oyj, its directors, officers, employees, agents, representatives,

predecessors, successors, and assigns; its joint ventures, subsidiaries, divisions, groups and

affiliates controlled by Metso Oyj (including, but not limited to, Metso Minerals f/k/a Nordberg),

and the respective directors, officers, employees, agents, representatives, successors, and assigns

of each. 

B. "Svedala" means Svedala Industri AB, its directors, officers, employees, agents, representatives,

predecessors, successors, and assigns; its joint ventures, subsidiaries, divisions, groups and

affiliates controlled by Svedala Industri AB, and the respective directors, officers, employees,

agents, representatives, successors, and assigns of each.
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C. "Respondents" means Metso and Svedala, individually and collectively. 

D. “Acquisition” means Respondent Metso’s proposed acquisition of the common stock and

convertible debentures of Respondent Svedala in accordance with the terms and conditions of the

recommended public takeover offer announced on 21 June 2000 (offer document dated 7 July

2000).

E. "Commission" means the Federal Trade Commission.

F. “Sandvik” means Sandvik AB (publ), Reg. No. 556000-3468, a corporation organized, existing

and doing business under and by virtue of the laws of Sweden, with its offices and principal place

of business located at SE-81181 Sandviken, Sweden.

G. “Outokumpu” means Outokumpu Mintec Oy, Reg. No. 764.823, a corporation organized,

existing and doing business under and by virtue of the laws of Finland, with its offices and principal

place of business located at Riihitontuntie 7 B, PO Box 140, FIN-02201 Espoo, Finland.

H. “Acquirer” means any person or business that purchases the Cone Crusher Business, the Grinding

Mill Business, the Jaw Crusher Business or the Primary Gyratory Crusher Business pursuant to

this Order. Acquirer includes Sandvik and/or Outokumpu.

I. “Agency” means any governmental regulatory authority in the world responsible for granting

approvals, clearances, qualifications, licenses or permits for any aspect of the research, design,

development, engineering, manufacturing, constructing, marketing, distribution, sale, or after-sales

support of a Product. 

J. “Autogenous Mill” means a Grinding Mill utilizing a horizontal tube design that breaks rocks down

into smaller particles strictly by inducing frequent, high energy impacts between the rocks

themselves.

K. “Ball Mill” means a Grinding Mill utilizing a horizontal tube design that employs a tumbling charge

of steel balls to break rocks down into smaller particles as the mill rotates. 

L. “Business Day” means any day excluding Saturday, Sunday and any other United States Federal

holiday.

M. “Classic Products” means the following discontinued and non-U.S. models of Cone Crushers:

Hydrocone 30", Hydrocone 36", Superior 36", Hydrocone 45", Superior 45", Hydrocone 51",

Superior 50", Hydrocone 60", Hydrocone 84", Hydrocone 200, Hydrocone 300, Hydrocone

400, Hydrocone 500, Hydrocone 600, Hydrocone 700, Loro Prisini Neytrec Cone Crushers,

Rollercones, Dracar Cones, BS Cones, Gyrasphere 24FC-24S-245, Gyrasphere 36S-367-
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36X10, Gyrasphere 48fc-48s-489-48X13, Gyrasand 24GS-36GS-48GS, 90RB, 120RB, 50T

and 60T; and the following discontinued and non-U.S. models of Jaw Crushers: R 2513, TRF

3521, R 5026 = 50 F, TRF 6026, R 6030 = TRF 6030 & 60 F, R 6040 = 60 G-96, R 7550 =

75G-120, RG 8013 = TRF 8013 R, TRG 9060, TRG 9075, R 9075 = 90G-160, R 9090, RG

10015 = TRF 10015, RG 12030 = TRF 12030, R 10580, R 105100, R 120100, R 150120, R

210170, FS 4025, FS 5032, FS 6540, P 7055, P 7550, FS 9060, P 10080, P 100100, P 12090

= FS 12090, P 120100-210, P 120100-240, P 150130, P 180140, A-1 48x60, A-1 60x84,

Universal 1536, Universal 1830, Universal 2036, Universal 3042, Universal 3242, Universal

3254, Universal 3648, Universal 4248, Universal 4250, Universal 5060, 8013, 9026, 12040,

2015, 3020, 4230, 6240, 8050, 10060, 10080, 12090, 150120, RT 6090, RT 75105, RT

60120, RT 80120, RT 105120, Cfbk, Altairac, and Dragon & Babbitless.

N. “Closing Date” means the date on which Respondents and a Commission-approved Acquirer

close on a transaction to divest or transfer relevant assets pursuant to this Order.

O. “Commission-approved Acquirer” means an entity approved by the Commission to acquire

particular assets the Respondents are required to divest or transfer pursuant to this Order.

P. “Cone Crusher” means a fixed or mobile machine, other than a Primary Gyratory Crusher, used to

crush rocks in mines, quarries and certain other applications, that achieves crushing by using two

cones (one placed inside the other) which crush rock fed into the space between the two cones by

elliptical rotation of the inner cone in a manner that causes the gap between the mobile cone and

the fixed cone to open and close.

Q. “Cone Crusher Assets” means all ofRespondent Svedala’s rights, title and interest, worldwide, in

and to all assets relating to the Cone Crusher Business, including, without limitation, the following:

1. all rights, title, and interest in and to Product Intellectual Property relating to the research,

design, development, engineering, manufacture, construction, distribution, marketing, sale, or

after-sales support of Cone Crushers worldwide;

2. all rights, title, and interest in all equipment, machinery, tools, furniture, and other tangible

property listed in Schedules 1 b), 1 j), 1 k) and 2.3 of the Sandvik Share Purchase

Agreement; 

3. all rights, title, and interest in and to Patents relating to the research, design, development,

engineering, manufacture, construction, distribution, marketing, sale or after-sales support of

Cone Crushers worldwide, including, but not limited to, those Patents listed in Schedules 1 l)

and 2.3 of the Sandvik Share Purchase Agreement;
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4. all rights, title, and interest in and to inventories of products, raw materials (to the extent

requested by the Commission-approved Acquirer), supplies and parts, including work-inprocess and finished goods, relating to the research, design, development, engineering,

manufacturing, construction, marketing, sale, or after-sales support of Cone Crushers

worldwide, listed and described in Schedules 1 b), 1 j), 1 k) and 2.3 of the Sandvik Share

Purchase Agreement;

5. all rights, title, and interest in and to agreements, express or implied, relating to the research,

design, development, engineering, manufacturing, construction, distribution, marketing, sale or

after-sales support of Cone Crushers worldwide, regardless of whether such agreements

relate exclusively to such purposes, including, but not limited to, warranties, guarantees, and

contracts with joint venture partners, suppliers, personal property lessors, personal property

lessees, licensors, licensees, consignors, consignees, and customers;

6. all Product Marketing Materials;

7. all unfilled customer orders for finished Cone Crushers as of the Closing Date (a list of such

orders to be provided to the Commission-approved Acquirer within five Business Days after

the Closing Date);

8. all books, records and files that relate to Product Manufacturing Technology, Product

manufacturing, and Product manufacturing processes; and

9. all inventories on hand as of the Closing Date.

PROVIDED, HOWEVER, that the definition of Cone Crusher Assets does not include:

(i) Consignment Stock; and

(ii) Any inventory, drawing, pattern, computer software or program solely related

to the Classic Products and previously used by Respondent Svedala.

R. “Cone Crusher Business” means Respondent Svedala’s business of researching, designing,

developing, engineering, manufacturing, constructing, distributing, marketing, selling, and providing

after-sales support for Cone Crushers, including, but not limited to, the following model

designations: Hydrocone H-22", Hydrocone S-2000, Hydrocone S-3000, Hydrocone S-4000,

Hydrocone S-6000, Hydrocone H-2000, Hydrocone H-3000, Hydrocone H-4000, Hydrocone

H-6000, Hydrocone H-8000, Eurocone 942, Eurocone 1152, Eurocone 1362, Eurocone 1572,

as well as mobile versions of these models where the crusher is installed on wheel- or trackmounted chassis, Crawlmaster S3000, Crawlmaster S4000, Scorpion 2000, Scorpion 4000,

Scorpion 3000, Roadmaster 3000 and Roadmaster 4000.
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S. “Cone Crusher Employees” means all of those individuals employed by Respondent Svedala with

responsibility for the research, design, development, engineering, manufacturing, constructing,

distributing, marketing, sales or after-sales support of Cone Crushers, who directly participated

(irrespective of the portion of working time involved) in the research, design, development,

engineering, manufacturing, constructing, distributing, marketing, sales or after-sales support of

Cone Crushers worldwide within the eighteen (18) month period immediately prior to the Closing

Date.

T. “Confidential Business Information” means all information owned by Respondents that is not in the

public domain relating to the research, design, development, engineering, manufacturing,

construction, marketing, commercialization, distribution, cost, pricing, supply, sales, after-sales

support, or use of any of Respondents’ Products or Respondents’ Products in development.

U. “Consignment Stock” means finished Products, including spare parts and wear parts, and secondhand equipment owned by Respondent Svedala’s distribution organization or Respondent Metso

and does not include the inventory of work in process, raw materials and components owned by

Svedala-Arbrå Aktiebolag, Svedala Mobile Equipment AB, or Svedala SA.

V. “Contract Manufacture” means the manufacture of a Product supplied pursuant to a Divestiture

Agreement by Respondents for sale to a Commission-approved Acquirer.

W. “Divestiture Agreement” means each of the following agreements individually: the Outokumpu

Asset Purchase Agreement, the Sandvik Share Purchase Agreement, and the Jaw Crusher Supply

Agreement; or any agreement signed by the Respondents and approved by the Commission to

accomplish the requirements of this Order.

X. “Divestiture Trustee” means the trustee appointed by the Commission pursuant to Paragraph V.A.

of the Decision and Order in this matter.

Y. “Grinding Mill” means a cylindrical machine used to grind rock to a powder or liquid slurry in

mines, industrial mineral processes and certain other applications by inducing movement and

motion to the rocks contained within the mill body, which causes them to impact one another or to

have impact with some form of grinding media (steel balls, steel rods, or ceramic balls) and,

through repetition, causes the rocks to break apart and gradually wear down to small particles.

Z. “Grinding Mill Assets” means all of Respondent Metso’s rights, title and interest, worldwide, in

and to all assets relating to the Grinding Mill Business, including without limitation, the following:

1. all rights, title, and interest in and to Product Intellectual Property relating to the research,

design, development, engineering, manufacturing, construction, distribution, marketing, sale or

after-sales support of Grinding Mills worldwide;
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2. all rights, title, and interest in all equipment, machinery, tools, furniture, and other tangible

property listed in Schedules 1.2 and 7.9 of the Outokumpu Asset Purchase Agreement;

3. all rights, title, and interest in and to Patents relating to the research, design, development,

engineering, manufacturing, construction, distribution, marketing, sale, or after-sales support of

Grinding Mills worldwide, including, but not limited to, those Patents listed in Schedule 7.14 of

the Outokumpu Asset Purchase Agreement;

4. all rights, title, and interest in and to inventories of products, raw materials (to the extent

requested by the Commission-approved Acquirer), supplies and parts, including work-inprocess and finished goods, relating to the research, design, manufacturing, construction,

development, engineering, marketing, sale or after-sales support of Grinding Mills worldwide,

listed and described in Schedule 1.2 of the Outokumpu Asset Purchase Agreement;

5. all rights, title, and interest in and to agreements, express or implied, relating to the research,

design, development, engineering, manufacturing, construction, distribution, marketing, sale or

after-sales support of Grinding Mills worldwide, regardless of whether such agreements relate

exclusively to such purposes, including, but not limited to, warranties, guarantees, and

contracts with joint venture partners, suppliers, personal property lessors, personal property

lessees, licensors, licensees, consignors, consignees, and customers;

6. all Product Marketing Materials;

7. all unfilled customer orders for finished Grinding Mills as of the Closing Date (a list of such

orders to be provided to the Commission-approved Acquirer within five Business Days after

the Closing Date);

8. at the Acquirer’s option, and with the concurrence of the Commission, a contract pursuant to

which Respondents will provide to the Acquirer certain services related to Grinding Mills,

including administrative services, as provided in Section 5.6 of the Outokumpu Asset Purchase

Agreement;

9. all books, records and files that relate to Product Manufacturing Technology, Product

manufacturing, and Product manufacturing processes; and

10. all inventories on hand as of the Closing Date.

PROVIDED, HOWEVER, that the definition of Grinding Mill Assets does not include:

(i) one pilot scale grinding mill located in Milwaukee, Wisconsin;
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(ii) a license agreement, dated January 1, 1982, between Nordberg Technology

NV, Nordberg Inc., Nordberg Licensing BV and Nordberg Manufacturing

Company (SA) (Proprietary) Limited, including all amendments thereto; 

(iii) rights relating to an outstanding dispute with Ashanti Goldfields in Tanzania; 

(iv) any rights, titles and interests in or to owned or leased real property, buildings,

office equipment or furniture at Metso’s offices in Milwaukee, Wisconsin;

Perth, Australia; or Johannesburg, South Africa; 

(v) real property and improvements, office space and personal property related

solely to Respondent Metso’s sales and distribution organization; and

(vi) the project contracts listed on Schedule A hereto.

AA. “Grinding Mill Business” means Respondent Metso’s business of researching, designing,

developing, engineering, manufacturing, constructing, distributing, marketing, selling and providing

after-sales support for, Grinding Mills including, but not limited to, Autogenous Mills, SemiAutogenous Mills, Rod Mills, Ball Mills, and Pebble Mills. 

BB. “Grinding Mill Employees” means all of those individuals employed by Respondent Metso with

responsibility for the research, design, development, engineering, manufacturing, constructing,

distributing, marketing, sales or after-sales support of Grinding Mills, who directly participated

(irrespective of the portion of working time involved) in the research, design, development,

engineering, manufacturing, constructing, marketing, sales or after-sales support of Grinding Mills

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

CC. “Intellectual Property” means all: (1) Patents; (2) mask works and copyrights in works of

authorship of any type, including, but not limited to, computer software and industrial designs,

registrations and applications for registration thereof; (3) Product Trademarks, including the

goodwill of the business symbolized thereby and associated therewith, as well as registrations and

applications for registration thereof; (4) trade secrets, know-how and other confidential or

proprietary technical, business, research, development and other information, and all rights in any

jurisdiction to limit the use or disclosure thereof; (5) rights to obtain and file for Patents and

registrations thereof; and (6) rights to sue and recover damages or obtain injunctive relief for

infringement, dilution, misappropriation, violation or breach thereof.

DD. “Interim Monitor” means the Interim Monitor appointed by the Commission pursuant to Paragraph

III.A. of the Order to Maintain Assets and/or Paragraph IV. A. of the Decision and Order in this

matter.
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EE. “Jaw Crusher” means a fixed or mobile machine used in mines, quarries and certain other

applications, that crushes rocks by trapping them in between a fixed steel plate and a pivoting,

oscillating steel plate, which moves backwards and forwards, being operated by a revolving

flywheel mounted on an eccentric shaft. 

FF. “Jaw Crusher Assets” means all of Respondent Svedala’s rights, title and interest, worldwide, in

and to all assets relating to the Jaw Crusher Business, including without limitation, the following:

1. all rights, title, and interest in and to Product Intellectual Property relating to the research,

design, development, engineering, manufacturing, construction, distribution, marketing, sale or

after-sales support of Jaw Crushers worldwide;

2. all rights, title, and interest in all equipment, machinery, tools, furniture, and other tangible

property listed in Schedules 1 b), 1 j), 1 k) and 2.3 of the Sandvik Share Purchase

Agreement;

3. all rights, title, and interest in and to Patents relating to the research, design, development,

engineering, manufacturing, construction, distribution, marketing, sale, or after-sales support of

Jaw Crushers worldwide, including, but not limited to, those Patents listed in Schedules 1 l)

and 2.3 of the Sandvik Share Purchase Agreement;

4. all rights, title, and interest in and to inventories of products, raw materials (to the extent

requested by the Commission-approved Acquirer), supplies and parts, including work-inprocess and finished goods, relating to the research, design, manufacturing, construction,

development, engineering, marketing, sale, or after-sales support of Jaw Crushers worldwide,

listed and described in Schedules 1 b), 1 j), 1 k) and 2.3 of the Sandvik Share Purchase

Agreement;

5. all rights, title, and interest in and to agreements, express or implied, relating to the research,

design, development, engineering, manufacturing, construction, distribution, marketing, sale or

after-sales support of Jaw Crushers worldwide, regardless of whether such agreements relate

exclusively to such purposes, including, but not limited to, warranties, guarantees, and

contracts with joint venture partners, suppliers, personal property lessors, personal property

lessees, licensors, licensees, consignors, consignees, and customers;

6. all Product Marketing Materials;

7. at the Acquirer’s option, and with the concurrence of the Commission, a contract pursuant to

which Respondents will Contract Manufacture Jaw Crushers, in accordance with the Jaw

Crusher Supply Agreement;
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8. all unfilled customer orders for finished Jaw Crushers as of the Closing Date (a list of such

orders to be provided to the Commission-approved Acquirer within five Business Days after

the Closing Date);

9. all books, records and files that relate to Product Manufacturing Technology, Product

manufacturing, and Product manufacturing processes; and

10. all inventories on hand as of the Closing Date.

PROVIDED, HOWEVER, that the definition of Jaw Crusher Assets does not include:

(i) any rights, titles and interests in or to owned or leased real property or buildings at

Svedala’s foundry and manufacturing facility in Faco, Brazil;

(ii) Consignment Stock; and

(iii) any inventory, drawing, pattern, computer software or program solely related to the

Classic Products and previously used by Respondent Svedala.

GG. “Jaw Crusher Business” means Respondent Svedala’s business of researching, designing,

developing, engineering, manufacturing, constructing, distributing, marketing, selling, and providing

after-sales support for, Jaw Crushers, including, but not limited to, the following model

designations: Jawmaster 806, Jawmaster 907, Jawmaster 1108, Jawmaster 1206, Jawmaster

1208, Jawmaster 1211, Jawmaster 1312, Jawmaster 1511, Jawmaster 1513, as well as mobile

versions of these models where the crusher is installed on wheel- or track-mounted chassis,

Crawlmaster 907, Crawlmaster 1108, Crawlmaster 1206, Crawlmaster 1208, Crawlmaster

1208F, and Crawlmaster 1211F.

HH. “Jaw Crusher Employees” means all of those individuals employed by Respondent Svedala with

responsibility for the research, design, development, engineering, manufacturing, constructing,

distributing, marketing, sales or after-sales support of Jaw Crushers, who directly participated

(irrespective of the portion of working time involved) in the research, design, development,

engineering, manufacturing, constructing, marketing, sales or after-sales support of Jaw Crushers

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

II. “Jaw Crusher Supply Agreement” means the Framework Sub-Contracting Agreement, as

amended, attached as Schedule 15 to the Sandvik Share Purchase Agreement, and any

modifications and amendments thereto that have been approved by the Commission, which is

contained in non-public Appendix I attached to this Order.
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JJ. “Manufacturing Technology” means all technology, trade secrets, know-how, and proprietary

information relating to the manufacture, assembly, or construction of the Product.

KK. “Outokumpu Asset Purchase Agreement” means the Asset Purchase Agreement by and between

Metso Corporation and Outokumpu Mintec OY dated June 7, 2001, as amended, which is

contained in non-public Appendix II attached to this Order.

LL. “Patents” mean all patents, patents pending, patent applications and statutory invention

registrations, including reissues, divisions, continuations, continuations-in-part, supplementary

protection certificates, extensions and reexaminations thereof, all inventions disclosed therein, all

rights therein provided by international treaties and conventions, and all rights to obtain and file for

patents and registrations thereto in the world, related to any Product of or owned by Respondents

as of the Closing Date. 

MM. “Pebble Mill” means a Grinding Mill that either: (a) utilizes a horizontal tube design where the

inside of the cylinder is lined with ceramic bricks and employs ceramic balls to break the rocks

down into smaller particles to produce a very pure, finely ground product; or (b) operates as the

second stage to an Autogenous Mill and uses rocks from the Autogenous Mill discharge as its

grinding media.

NN. “Primary Gyratory Crusher” means a machine used as a primary crusher of rocks in mines,

quarries, and certain other applications, that achieves crushing by using two cones (one placed

inside the other) in which the interior mobile cone is inverted relative to the fixed outside cone to

allow very large rocks to enter the crusher and which crushes rocks fed into the space between

the gap in the two cones by movement of the interior cone in an eccentric manner inside the fixed

cone with the result that the gap between the two cones opens and closes.

OO. “Primary Gyratory Crusher Assets” means all of Respondent Metso’s rights, title and interest,

worldwide, in and to all assets relating to the Primary Gyratory Crusher Business, including without

limitation, the following:

1. all rights, title, and interest in and to Product Intellectual Property relating to the research,

design, development, engineering, manufacturing, construction, distribution, marketing, sale, or

after-sales support of Primary Gyratory Crushers worldwide;

2. all rights, title, and interest in all equipment, machinery, tools, furniture, and other tangible

property listed in Schedule 1 f) of the Sandvik Share Purchase Agreement; 

3. all rights, title, and interest in and to Patents relating to the research, design, development,

engineering, manufacturing, construction, distribution, marketing, sale or after-sales support of
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Primary Gyratory Crushers worldwide, including, but not limited to, those Patents listed in

Schedule 1 l) of the Sandvik Share Purchase Agreement;

4. all rights, title, and interest in and to inventories of products, raw materials (to the extent

requested by the Commission-approved Acquirer), supplies and parts, including work-inprocess and finished goods, relating to the research, design, manufacturing, construction,

development, engineering, marketing, sale or after-sales support of Primary Gyratory Crushers

worldwide, listed and described in Schedule 1 f) of the Sandvik Share Purchase Agreement;

5. all rights, title, and interest in and to agreements, express or implied, relating to the research,

design, development, engineering, manufacturing, construction, distribution, marketing, sale or

after-sales support of Primary Gyratory Crushers worldwide, regardless of whether such

agreements relate exclusively to such purposes, including, but not limited to, warranties,

guarantees, and contracts with joint venture partners, suppliers, personal property lessors,

personal property lessees, licensors, licensees, consignors, consignees, and customers;

6. all Product Marketing Materials;

7. all unfilled customer orders for finished Primary Gyratory Crushers as of the Closing Date (a

list of such orders to be provided to the Commission-approved Acquirer within five Business

Days after the Closing Date);

8. all books, records and files that relate to Product Manufacturing Technology, Product

manufacturing, and Product manufacturing processes; and

9. all inventories on hand as of the Closing Date.

PROVIDED, HOWEVER, that the definition of Primary Gyratory Crusher Assets does not

include:

(i) any rights, titles and interests in or to owned or leased real property, buildings,

office equipment or furniture at Metso’s offices in Milwaukee, Wisconsin and

Smedjebacken, Sweden; 

(ii) Consignment Stock; 

(iii) a license agreement, dated January 1, 1982, between Nordberg Technology

NV, Nordberg Inc., Nordberg Licensing BV and Nordberg Manufacturing

Company (SA) (Proprietary) Limited, including all amendments thereto; and
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(iv) real property and improvements, office space and personal property related

solely to Respondent Metso’s sales and distribution organization.

PP. “Primary Gyratory Crusher Business” means Respondent Metso’s business of researching,

designing, developing, engineering, manufacturing, constructing, distributing, marketing, selling, and

providing after-sales support for, Primary Gyratory Crushers, including, but not limited to, the

following model designations: Morgardshammer BS, Nordberg GY and Nordberg XP. 

QQ. “Primary Gyratory Crusher Employees” means all of those individuals employed by Respondent

Metso with responsibility for the research, design, development, engineering, manufacturing,

constructing, distributing, marketing, sales or after-sales support of Primary Gyratory Crushers,

who directly participated (irrespective of the portion of working time involved) in the research,

design, development, engineering, manufacturing, constructing, distributing, marketing, sales, or

after-sales support of Primary Gyratory Crushers worldwide within the eighteen (18) month period

immediately prior to the Closing Date.

RR. “Product(s)” means Cone Crushers, Jaw Crushers, Grinding Mills, and Primary Gyratory

Crushers.

SS. “Product Intellectual Property” means all worldwide (1) Product Patents, (2) Product

Trademarks, (3) Manufacturing Technology, (4) all copyrights in and to the Product Marketing

Materials, (5) all other Intellectual Property relating to a Product, and (6) all Confidential Business

Information as of the Closing Date.

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

respect to the Products as of the Closing Date, including, without limitation, all advertising

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

information (e.g., customer sales and competitor data), promotional materials and other materials

associated with the Products.

UU. “Product Registrations” means all registrations, permits, licenses, consents, authorizations and

other approvals, and pending applications and requests therefor, required by applicable Agencies

relating to the research, development, engineering, manufacturing, construction, distribution,

marketing, sale or after-sales support of the Products worldwide.

VV. “Product Trademarks” means all trademarks, trade names and brand names including registrations

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

and all common law rights, and the goodwill symbolized by and associated therewith, for a

Product. Provided, however, that Product Trademarks do not include the trade names,

trademarks or logos “Metso,” “Nordberg,” “Svedala,” “Svedala Gold,” “Allis Minerals Systems,”

“Universal,” “Superior” and “Faco”. 
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WW. “Rod Mill” means a Grinding Mill utilizing a horizontal tube design that employs a tumbling charge

of steel rods to break rocks down into smaller particles by trapping and crushing rocks between

the rods as the mill rotates.

XX. “Sandvik Share Purchase Agreement” means the Share Purchase Agreement by and between

Metso Corporation and Sandvik AB (publ) dated June 7, 2001, as amended, which is contained

in non-public Appendix III attached to this Order.

YY. “Semi-Autogenous Mill” means a Grinding Mill utilizing a horizontal tube design that breaks rocks

down into smaller particles using a combination of rock-on-rock impacts and steel media-on-rock

impacts.

II.

IT IS FURTHER ORDERED that:

A. Not later than twenty (20) Business Days after the Acquisition is consummated, Respondents shall

divest the Cone Crusher Assets, Jaw Crusher Assets, and the Primary Gyratory Crusher Assets

as ongoing businesses to Sandvik pursuant to and in accordance with the Sandvik Share Purchase

Agreement (which agreement shall not vary or contradict, or be construed to vary or contradict,

the terms of this Order), and such agreement, if approved by the Commission as the Divestiture

Agreement for the Cone Crusher Assets, Jaw Crusher Assets and the Primary Gyratory Crusher

Assets, is incorporated by reference into this Order and made part hereof as non-public Appendix

III. If Respondents do not divest the Cone Crusher Assets, Jaw Crusher Assets, and the Primary

Gyratory Crusher Assets to Sandvik within twenty (20) Business Days after the Acquisition is

consummated, the Commission may appoint a trustee to divest the Cone Crusher Assets, Jaw

Crusher Assets, and the Primary Gyratory Crusher Assets. Provided, however, that if

Respondents have divested the Cone Crusher Assets, Jaw Crusher Assets, and the Primary

Gyratory Crusher Assets to Sandvik prior to the date this Order becomes final, and if, at the time

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

Sandvik is not an acceptable purchaser of the Cone Crusher Assets, Jaw Crusher Assets, and the

Primary Gyratory Crusher Assets or that the manner in which the divestiture was accomplished is

not acceptable, then Respondents shall immediately rescind the transaction with Sandvik and the

Commission may appoint a trustee to divest the Cone Crusher Assets, Jaw Crusher Assets, and

the Primary Gyratory Crusher Assets to a Commission-approved Acquirer.

B. Failure by Respondents to comply with all terms of the Sandvik Share Purchase Agreement, if

approved by the Commission, shall constitute a failure to comply with this Order. Any Divestiture

Agreement between Respondents (or a trustee appointed pursuant to Paragraph V of this Order)

and an Acquirer of the Cone Crusher Assets, Jaw Crusher Assets and Primary Gyratory Crusher
15

Assets that has been approved by the Commission shall be deemed incorporated by reference into

this Order, and any failure by Respondents to comply with the terms of such Divestiture

Agreement shall constitute a failure to comply with this Order.

C. Respondents shall waive any and all rights to bring legal proceedings or take other legal action

against the Commission-approved Acquirer, or any third-party authorized by the Commissionapproved Acquirer to provide spare and wear parts for the Classic Products to the Commissionapproved Acquirer, alleging infringement of Intellectual Property or Manufacturing Technology

rights in connection with the Commission-approved Acquirer's research, design, development,

engineering, manufacturing, constructing, distributing, marketing or sale of spare and wear parts for

the Classic Products. PROVIDED THAT Respondents do not waive any rights to bring such

proceedings or take such action based on a violation by the Commission-approved Acquirer of

trademark or tradename rights, Respondents acknowledging for purposes of this proviso that it will

not be a violation of trademark or tradename rights for the Commission-approved Acquirer to

fairly and accurately describe such spare and wear parts as being for use with the Classic

Products.

D. Respondents shall include in any Divestiture Agreement related to the Jaw Crusher Assets the

following provisions, and Respondents shall commit to satisfy the following:

1. Respondents shall Contract Manufacture and deliver to the Commission-approved Acquirer in

a timely manner and under reasonable terms and conditions, a supply of Jawmaster model Jaw

Crushers, for a period of years sufficient to allow the Commission-approved Acquirer to

manufacture Jaw Crushers independently of Respondents. The Contract Manufacture

agreement shall specify an exact monetary price for each make and model of Jawmaster

model Jaw Crusher. Respondents shall provide a detailed explanation of all cost components,

including, but not limited to, the specific amount, categories and allocation methodologies of

costs for each make and model of Jawmaster model Jaw Crusher to staff of the Commission.

2. After Respondents commence delivery of Jaw Crushers to the Commission-approved

Acquirer pursuant to a Divestiture Agreement and for the term of the Contract Manufacture

related to Jaw Crushers, Respondents will make inventory of Jawmaster model Jaw Crushers

available for sale or resale only to the Commission-approved Acquirer.

3. Respondents shall make representations and warranties that Respondents will hold harmless

and indemnify the Commission-approved Acquirer for any liabilities or loss of profits resulting

from the failure by Respondents to deliver Jawmaster model Jaw Crushers in a timely manner

as required by the Divestiture Agreement unless Respondents can demonstrate that their failure

was entirely beyond the control of the Respondents and in no part the result of negligence or

willful misconduct by Respondents.
16

4. During the term of the Contract Manufacture between Respondents and the Commissionapproved Acquirer, upon request of the Commission-approved Acquirer or the Interim

Monitor, Respondents shall make available to the Interim Monitor all records that relate to the

manufacture of Jawmaster model Jaw Crushers.

E. Respondents shall submit to the Commission-approved Acquirer, at Respondents’ expense, all

Confidential Business Information relating to the Cone Crusher Business, the Jaw Crusher

Business, and the Primary Gyratory Crusher Business.

F. Respondents shall not use, directly or indirectly, any Confidential Business Information relating to

the Cone Crusher Business, Jaw Crusher Business, and Primary Gyratory Crusher Business, and

shall not disclose or convey such Confidential Business Information, directly or indirectly, to any

person except the Commission-approved Acquirer. Notwithstanding the foregoing, Respondents

shall be permitted to disclose any such Confidential Business Information to the extent legally

required or necessary for obtaining appropriate regulatory licenses or approvals or responding to

Agency inquiries, to the extent necessary to permit Respondents to comply with obligations under

the Divestiture Agreements and this Order, or as required by a court of competent jurisdiction.

G. For a period of one (1) year following the Closing Date, Respondents shall not, directly or

indirectly, solicit or otherwise attempt to induce any employees of the Commission-approved

Acquirer with any amount of responsibility relating to Cone Crushers, Jaw Crushers or Primary

Gyratory Crushers who are former employees of Respondents to terminate their employment

relationship with the Commission-approved Acquirer; provided, however, a violation of this

provision will not occur if: (i) Respondents advertise for employees in newspapers, trade

publications or other media not targeted specifically at the employees of the Commissionapproved Acquirer, (ii) Respondents hire employees who apply for employment with

Respondents, as long as such employees were not solicited by Respondents in violation of this

paragraph, or (iii) the Commission-approved Acquirer has terminated the individual’s employment

or has otherwise granted a release to the individual to permit the individual to be employed by the

Respondents.

H. For a period of six (6) months following the Closing Date, Respondents shall not interfere with the

employment by the Commission-approved Acquirer of any Cone Crusher Employees, Jaw

Crusher Employees or Primary Gyratory Crusher Employees; shall not offer any incentive to such

employees to decline employment with the Commission-approved Acquirer or to accept other

employment with the Respondents; and shall remove any impediments that may deter such

employees from accepting employment with the Commission-approved Acquirer, including, but

not limited to, any confidentiality provisions relating to the Products or any non-compete or

confidentiality provisions of employment or other contracts with the Respondents that would affect

the ability of those individuals to be employed by the Commission-approved Acquirer.
17

I. Respondents shall secure, prior to divestiture, all consents and waivers from all private entities that

are necessary for the divestiture of the Cone Crusher Assets, Jaw Crusher Assets or Primary

Gyratory Crusher Assets, or for the continued research, development, engineering, manufacturing,

construction, distribution, sale, or marketing of Cone Crushers, Jaw Crushers, or Primary

Gyratory Crushers by the Commission-approved Acquirer.

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

Cone Crusher Employee, Jaw Crusher Employee and Primary Gyratory Crusher Employee sign a

confidentiality agreement pursuant to which such employee shall be required to maintain all

Confidential Business Information (including, without limitation, all field experience) related to the

Cone Crusher Business, Jaw Crusher Business, or Primary Gyratory Crusher Business strictly

confidential, including the nondisclosure of such information to all other employees, executives or

other personnel of Respondents. Such agreement shall provide for the following: (i) restrictions on

the use of trade secrets and Confidential Business Information; (ii) retention of such information;

(iii) appropriate conduct relating to information that could be used to the detriment of competitors;

and (iv) sanctions for violation of the terms of the notification. (A copy of this confidentiality 

agreement will be in a form substantially similar to Schedule 1 of the Sandvik Share Purchase

Agreement). Respondents shall send such agreement by e-mail with return receipt requested or

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

Respondents shall provide a copy of such agreement to the Commission-approved Acquirer. 

Respondents shall maintain complete records of all such agreements at Respondents’ corporate

headquarters and shall provide an officer’s certificate to the Commission, stating that such

acknowledgment program has been implemented and is being complied with. Respondents shall

make available at the Commission-approved Acquirer’s request copies of all certifications,

notifications and reminders sent to Respondents’ personnel. 

K. At the time of divestiture, and at the Commission-approved Acquirer’s option, Respondents shall

make available to the Commission-approved Acquirer such personnel, assistance and training as

the Commission-approved Acquirer might reasonably need to transfer the Cone Crusher Assets,

Jaw Crusher Assets and Primary Gyratory Crusher Assets and shall continue providing such

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

Commission-approved Acquirer is fully capable of independently manufacturing the Cone

Crushers, Jaw Crushers, and Primary Gyratory Crushers. At the time of divestiture, and at the

Commission-approved Acquirer’s option, Respondents shall also divest any additional, incidental

assets of Respondents and make any further arrangements for transitional services within the first

twelve (12) months after divestiture that may be reasonably necessary to assure the viability and

competitiveness of the Cone Crusher Assets, Jaw Crusher Assets and Primary Gyratory Crusher

Assets.

L. Pending divestiture of the Cone Crusher Assets, Jaw Crusher Assets, and Primary Gyratory

Crusher Assets, Respondents shall take such actions as are necessary to maintain the viability and
18

marketability of the Cone Crusher Assets, Jaw Crusher Assets, and Primary Gyratory Crusher

Assets and to prevent the destruction, removal, wasting, deterioration, or impairment of any of the

Cone Crusher Assets, Jaw Crusher Assets, and Primary Gyratory Crusher Assets except for

ordinary wear and tear.

M. The purpose of the divestiture of the Cone Crusher Assets, Jaw Crusher Assets, and Primary

Gyratory Crusher Assets is to ensure the continued use of the Cone Crusher Assets, Jaw Crusher

Assets, and Primary Gyratory Crusher Assets in the same business in which the Cone Crusher

Assets, Jaw Crusher Assets, and Primary Gyratory Crusher Assets were engaged at the time of

the announcement of the Acquisition, and to remedy the lessening of competition resulting from the

Acquisition as alleged in the Commission's complaint.

III.

IT IS FURTHER ORDERED that:

A. Not later than twenty (20) Business Days after the Acquisition is consummated, Respondents shall

divest the Grinding Mill Assets as an ongoing business to Outokumpu pursuant to and in

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

contradict, or be construed to vary or contradict, the terms of this Order), and such agreement, if

approved by the Commission as the Divestiture Agreement for the Grinding Mill Assets, is

incorporated by reference into this Order and made part hereof as non-public Appendix II. If

Respondents do not divest the Grinding Mill Assets to Outokumpu within twenty (20) Business

Days after the Acquisition is consummated, the Commission may appoint a trustee to divest the

Grinding Mill Assets. Provided, however, that if Respondents have divested the Grinding Mill

Assets to Outokumpu prior to the date this Order becomes final, and if, at the time the

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

Outokumpu is not an acceptable purchaser of the Grinding Mill Assets or that the manner in which

the divestiture was accomplished is not acceptable, then Respondents shall immediately rescind the

transaction with Outokumpu and the Commission may appoint a trustee to divest the Grinding Mill

Assets to a Commission-approved Acquirer.

B. Failure by Respondents to comply with all terms of the Outokumpu Asset Purchase Agreement, if

approved by the Commission, shall constitute a failure to comply with this Order. Any Divestiture

Agreement between Respondents (or a trustee appointed pursuant to Paragraph V of this Order)

and an Acquirer of the Grinding Mill Assets that has been approved by the Commission shall be

deemed incorporated by reference into this Order, and any failure by Respondents to comply with

the terms of such Divestiture Agreement shall constitute a failure to comply with this Order.
19

C. Respondents shall submit to the Commission-approved Acquirer, at Respondents’ expense, all

Confidential Business Information relating to the Grinding Mill Business.

D. Respondents shall not use, directly or indirectly, any Confidential Business Information relating to

the Grinding Mill Business, and shall not disclose or convey such Confidential Business

Information, directly or indirectly, to any person except the Commission-approved Acquirer. 

Notwithstanding the foregoing, Respondents shall be permitted to disclose any such Confidential

Business Information to the extent legally required or necessary for obtaining appropriate

regulatory licenses or approvals or responding to Agency inquiries, to the extent necessary to

permit Respondents to comply with obligations under the Divestiture Agreement and this Order, or

as required by a court of competent jurisdiction. 

E. For a period of one (1) year following the Closing Date the divestiture is accomplished,

Respondents shall not, directly or indirectly, solicit or otherwise attempt to induce any employees

of the Commission-approved Acquirer with any amount of responsibility relating to Grinding Mills

who are former employees of Respondents to terminate their employment relationship with the

Commission-approved Acquirer; provided, however, a violation of this provision will not occur if

(i) Respondents advertise for employees in newspapers, trade publications or other media not

targeted specifically at the employees of the Commission-approved Acquirer, (ii) Respondents

hire employees who apply for employment with Respondents, as long as such employees were not

solicited by Respondents in violation of this paragraph, or (iii) the Commission-approved Acquirer

has terminated the individual’s employment or has otherwise granted a release to the individual to

permit the individual to be employed by the Respondents.

F. For a period of six (6) months following the Closing Date, Respondents shall not interfere with the

employment by the Commission-approved Acquirer of any Grinding Mill Employees; shall not

offer any incentive to such employees to decline employment with the Commission-approved

Acquirer or to accept other employment with the Respondents; and shall remove any impediments

that may deter such employees from accepting employment with the Commission-approved

Acquirer, including, but not limited to, any confidentiality provisions relating to the Products or any

non-compete or confidentiality provisions of employment or other contracts with the Respondents

that would affect the ability of those individuals to be employed by the Commission-approved

Acquirer.

G. Respondents shall secure, prior to divestiture, all consents and waivers from all private entities that

are necessary for the divestiture of the Grinding Mill Assets, or for the continued research,

development, engineering, manufacturing, construction, distribution, marketing, sale, after-sales

support, marketing or distribution of Grinding Mills by the Commission-approved Acquirer.

H. Respondents shall require, as a condition of continued employment post-divestiture, that each

Grinding Mill Employee sign a confidentiality agreement pursuant to which such employee shall be
20

required to maintain all Confidential Business Information (including, without limitation, all field

experience) related to the Grinding Mill Business, strictly confidential, including the nondisclosure

of such information to all other employees, executives or other personnel of Respondents. Such

agreement shall provide for the following: (i) restrictions on the use of trade secrets and

Confidential Business Information; (ii) retention of such information; (iii) appropriate conduct

relating to information that could be used to the detriment of competitors; and (iv) sanctions for

violation of the terms of the notification. (A copy of this confidentiality agreement will be in a form

substantially similar to Schedule A of the Outokumpu Asset Purchase Agreement). Respondents

shall send such agreement by e-mail with return receipt requested or similar transmission, and keep

a file of such return receipts for one (1) year after the Closing Date. Respondents shall provide a

copy of such agreement to the Commission-approved Acquirer. Respondents shall maintain

complete records of all such agreements at Respondents’ corporate headquarters and shall

provide an officer’s certificate to the Commission, stating that such acknowledgment program has

been implemented and is being complied with. Respondents shall make available at the

Commission-approved Acquirer’s request copies of all certifications, notifications and reminders

sent to Respondents’ personnel. 

I. At the time of divestiture, and at the Commission-approved Acquirer’s option, Respondents shall

make available to the Commission-approved Acquirer such personnel, assistance and training as

the Commission-approved Acquirer might reasonably need to transfer the Grinding Mill Assets,

and shall continue providing such personnel, assistance and training, at Respondents’ cost, at the

request of the Commission-approved Acquirer, until the Commission-approved Acquirer is fully

capable of independently producing Grinding Mills. At the time of divestiture, and at the

Commission-approved Acquirer’s option, Respondents shall also divest any additional, incidental

assets of Respondents and make any further arrangements for transitional services within the first

twelve (12) months after divestiture that may be reasonably necessary to assure the viability and

competitiveness of the Grinding Mill Assets.

J. Pending divestiture of the Grinding Mill Assets, Respondents shall take such actions as are

necessary to maintain the viability and marketability of the Grinding Mill Assets, and to prevent the

destruction, removal, wasting, deterioration, or impairment of any of the Grinding Mill Assets

except for ordinary wear and tear.

K. The purpose of the divestiture of the Grinding Mill Assets is to ensure the continued use of the

Grinding Mill Assets in the same business in which the Grinding Mill Assets were engaged at the

time of the announcement of the Acquisition, and to remedy the lessening of competition resulting

from the Acquisition as alleged in the Commission's complaint.
21

IV.

IT IS FURTHER ORDERED that:

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

appoint an Interim Monitor to assure that Respondents expeditiously comply with all of their

obligations and perform all of their responsibilities as required by this Order and the Divestiture

Agreements. The Commission may appoint one or more Interim Monitors to assure

Respondents’ compliance with the requirements of Paragraphs II and III of this Order, and the

related Divestiture Agreements.

B. If one or more Interim Monitors are appointed pursuant to Paragraph IV. A. of this Order,

Respondents shall consent to the following terms and conditions regarding the powers, duties,

authorities, and responsibilities of each Interim Monitor:

1. The Commission shall select the Interim 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 any

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

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

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

Interim Monitor.

2. The Interim Monitor shall have the power and authority to monitor Respondents’

compliance with the terms of this Order and with the relevant Divestiture Agreement(s)

made a part of this Order, and shall exercise such power and authority and carry out

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

purposes of this Order and in consultation with the Commission.

3. Within ten (10) days after appointment of the Interim Monitor, Respondents shall

execute an agreement that, subject to the prior approval of the Commission, confers on

the Interim Monitor all the rights and powers necessary to permit the Interim Monitor to

monitor Respondents’ compliance with the terms of this Order and with the relevant

Divestiture Agreement(s) in a manner consistent with the purposes of this Order.

4. The Interim Monitor shall serve until the last obligation under each of the Divestiture

Agreements has been fully performed and each of the Commission-approved Acquirers

pursuant to Paragraphs II and III of this Order (or as otherwise specified by the

Commission) is fully capable of independently manufacturing and selling the Product(s)

acquired pursuant to a Divestiture Agreement; provided, however, that the Commission
22

may extend or modify this period as may be necessary or appropriate to accomplish the

purposes of this Order.

5. The Interim Monitor shall have full and complete access to Respondents’ personnel,

books, records, documents, facilities and technical information relating to the research,

development, engineering, and manufacture of the relevant Products, or to any other

relevant information, as the Interim Monitor may reasonably request, including, but not

limited to, all documents and records kept in the normal course of business that relate to

the manufacture of the relevant Products and all materials and information relating to

Agency approvals. Respondents shall cooperate with any reasonable request of the

Interim Monitor. Respondents shall take no action to interfere with or impede the

Interim Monitor's ability to monitor Respondents’ compliance with this Order and the

relevant Divestiture Agreement(s).

6. The Interim Monitor shall serve, without bond or other security, at the expense of

Respondents, on such reasonable and customary terms and conditions as the

Commission may set. The Commission may, among other things, require the Interim

Monitor to sign an appropriate confidentiality agreement relating to Commission

materials and information received in connection with the performance of the Interim

Monitor's duties. The Interim Monitor shall have 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 Interim Monitor's duties and

responsibilities. The Interim Monitor shall account for all expenses incurred, including

fees for his or her services, subject to the approval of the Commission.

7. Respondents shall indemnify the Interim Monitor and hold the Interim Monitor harmless

against any losses, claims, damages, liabilities or expenses arising out of, or in

connection with, the performance of the Interim Monitor's duties, including all

reasonable fees of counsel and other expenses incurred in connection with the

preparations for, or defense of, any claim whether or not resulting in any liability, except

to the extent that such losses, claims, damages, liabilities, or expenses result from

misfeasance, gross negligence, willful or wanton acts, or bad faith by the Interim

Monitor.

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

diligently, the Commission may appoint a substitute Interim Monitor in the same manner

as provided in Paragraph IV.A. of this Order.

9. The Commission may on its own initiative or at the request of the Interim Monitor issue

such additional orders or directions as may be necessary or appropriate to assure
23

compliance with the requirements of this Order and the relevant Divestiture

Agreement(s).

10. Respondents shall report to the Interim Monitor in accordance with the requirements of

Paragraph VI.A. of this Order and/or as otherwise provided in any agreement

approved by the Commission. The Interim Monitor shall evaluate the reports submitted

to it by the Respondents, and any reports submitted by the relevant Commissionapproved Acquirer(s), with respect to the performance of Respondents’ obligations

under the relevant Divestiture Agreement(s). Within one (1) month from the date the

Interim Monitor receives these reports, the Interim Monitor shall report in writing to the

Commission concerning compliance by Respondents with the provisions of this Order

and the relevant Divestiture Agreement(s). These responsibilities of the Interim Monitor

shall continue until the last obligation under the relevant Divestiture Agreement(s) has

been fully performed, unless otherwise directed by the Commission.

11. Respondents may require the Interim Monitor to sign a customary confidentiality

agreement; provided, however, such agreement shall not restrict the Interim Monitor

from providing any information to the Commission.

C. The Interim Monitor(s) appointed pursuant to Paragraph III.A. of the Order to Maintain Assets

may be the same person(s) appointed as Interim Monitor(s) pursuant to Paragraph IV.A. of the

Decision and Order in this matter, and/or as Divestiture Trustee(s) pursuant to Paragraph V.A.

of the Decision and Order in this matter.

V.

IT IS FURTHER ORDERED that:

A. If Respondents have not fully complied with the obligations specified in Paragraphs II through

IV of this Order, the Commission may appoint a trustee or trustees to divest or transfer the

assets required to be divested or transferred pursuant to each of the relevant Paragraphs in a

manner that satisfies the requirements of each such Paragraph, as applicable. The Commission

may appoint a different Divestiture Trustee to accomplish each of the divestitures described in

Paragraphs II and III, respectively. In the event that the Commission or the Attorney General

brings an action pursuant to § 5(l) of the Federal Trade Commission Act, 15 U.S.C. § 45(l), or

any other statute enforced by the Commission, Respondents shall consent to the appointment of

a Divestiture Trustee in such action to divest the relevant assets. Neither the appointment of a

Divestiture Trustee nor a decision not to appoint a Divestiture Trustee under this Paragraph

shall preclude the Commission or the Attorney General from seeking civil penalties or any other

relief available to it, including a court-appointed Divestiture Trustee, pursuant to § 5(l) of the
24

Federal Trade Commission Act, or any other statute enforced by the Commission, for any

failure by the Respondents to comply with this Order.

B. If a Divestiture Trustee is appointed by the Commission or a court pursuant to Paragraph V.A.

of this Order, Respondents shall consent to the following terms and conditions regarding the

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

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

Respondents, which consent shall not be unreasonably withheld. The

Divestiture Trustee shall be a person with experience and expertise in

acquisitions and divestitures. If Respondents have 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

Respondents of the identity of any proposed Divestiture Trustee, Respondents

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

Trustee.

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

have the exclusive power and authority to divest or transfer the relevant assets

that are required by this Order to be divested or transferred.

3. Within ten (10) days after appointment of the Divestiture Trustee, Respondents

shall execute a trust agreement that, subject to the prior approval of the

Commission and, in the case of a court-appointed Divestiture Trustee, of the

court, transfers to the Divestiture Trustee all rights and powers necessary to

permit the Divestiture Trustee to effect the relevant divestiture(s) or transfer(s)

required by the Order.

4. The Divestiture Trustee shall have twelve (12) months from the date the

Commission approves the trust agreement described in Paragraph V. B. 3. to

accomplish the divestiture(s), which shall be subject to the prior approval of the

Commission. If, however, at the end of the twelve-month period, the

Divestiture Trustee has submitted a plan of divestiture or believes that the

divestiture(s) can be achieved within a reasonable time, the divestiture period

may be extended by the Commission, or, in the case of a court-appointed

Divestiture Trustee, by the court; provided, however, the Commission may

extend the divestiture period only two (2) times. 

5. The Divestiture Trustee shall have full and complete access to the personnel,

books, records and facilities relating to the relevant assets that are required to

be divested by this Order or to any other relevant information, as the
25

Divestiture Trustee may request. Respondents shall develop such financial or

other information as the Divestiture Trustee may request and shall cooperate

with the Divestiture Trustee. Respondents shall take no action to interfere with

or impede the Divestiture Trustee's accomplishment of the divestiture(s). Any

delays in divestiture caused by Respondents shall extend the time for divestiture

under this Paragraph in an amount equal to the delay, as determined by the

Commission or, for a court-appointed Divestiture Trustee, by the court.

6. The Divestiture Trustee shall use his or her best efforts to negotiate the most

favorable price and terms available in each contract that is submitted to the

Commission, subject to Respondents' absolute and unconditional obligation to

divest at no minimum price. The divestiture(s) 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 Respondents

from among those approved by the Commission; provided further, however,

that Respondents shall select such entity within five (5) Business Days of

receiving notification of the Commission's approval.

7. The Divestiture Trustee shall serve, without bond or other security, at the cost

and expense of Respondents, on such reasonable and customary terms and

conditions as the Commission or a court may set. The Divestiture Trustee shall

have the authority to employ, at the cost and expense of Respondents, such

consultants, accountants, attorneys, investment bankers, business brokers,

appraisers, and other representatives and assistants as are necessary to carry

out the Divestiture Trustee’s duties and responsibilities. The Divestiture Trustee

shall account for all monies derived from the divestiture(s) and all expenses

incurred. After approval by the Commission and, in the case of a

court-appointed Divestiture Trustee, by the court, of the account of the

Divestiture Trustee, including fees for his or her services, all remaining monies

shall be paid at the direction of the Respondents, 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.

8. Respondents shall indemnify the Divestiture Trustee and hold the Divestiture

Trustee harmless against any losses, claims, damages, liabilities, or expenses

arising out of, or in connection with, the performance of the Divestiture

Trustee’s duties, including all reasonable fees of counsel and other expenses
26

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.

9. If the Divestiture Trustee ceases to act or fails to act diligently, a substitute

Divestiture Trustee shall be appointed in the same manner as provided in

Paragraph V.A. of this Order.

10. 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(s) required by this Order.

11. In the event that the Divestiture Trustee determines that he or she is unable to

divest the assets required to be divested pursuant to each of the relevant

Paragraphs in a manner that preserves their marketability, viability and

competitiveness and ensures their continued use in the research, design,

development, engineering, manufacturing, construction, distribution, marketing,

sale, or after-sales support of the relevant Product or Products, the Divestiture

Trustee may divest such additional assets related to the relevant Product or

Products of the Respondents and effect such arrangements as are necessary to

satisfy the requirements of this Order.

12. The Divestiture Trustee shall have no obligation or authority to operate or

maintain the relevant assets required to be divested by this Order.

13. The Divestiture Trustee shall report in writing to Respondents and the

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

to accomplish the divestiture(s).

14. Respondents may require the Divestiture Trustee to sign a customary

confidentiality agreement; provided, however, such agreement shall not restrict

the Divestiture Trustee from providing any information to the Commission. 

C. The Divestiture Trustee(s) appointed pursuant to V.A. of this Order may be the same person(s)

appointed as Interim Monitor(s) pursuant to Paragraph IV.A. of this Order.
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VI.

IT IS FURTHER ORDERED that:

A. Respondents shall submit to the Commission (with simultaneous copies to the Interim

Monitor(s) and the Divestiture Trustee(s), as appropriate) verified written reports setting forth

in detail the manner and form in which they intend to comply, are complying, and have complied

with this Order. These reports are due as follows: the initial report is due thirty (30) days after

the date this Order becomes final; the second report is due sixty (60) days after the initial

report; and all subsequent reports are due every ninety (90) days thereafter until Respondents

have fully complied with Paragraphs II through V of this Order. Respondents shall include in

their reports, among other things that are required from time to time, a full description of the

efforts being made to comply with Paragraphs II through V of this Order, including a

description of all substantive contacts or negotiations for the divestitures and the identity of all

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

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

recommendations concerning completing the obligations. 

B. One (1) year from the date this Order becomes final, annually for the next five (5) years on the

anniversary of the date this Order becomes final, and at other times as the Commission may

require, Respondents shall file a verified written report with the Commission setting forth in

detail the manner and form in which they have complied and are complying with this Order.

VII.

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

(30) days prior to any proposed change in the corporate Respondents such as dissolution, assignment,

sale resulting in the emergence of a successor corporation, or the creation or dissolution of subsidiaries

or any other change in the corporation that may affect compliance obligations arising out of the Order.

VIII.

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 made to their principal United States office, Respondents shall permit

any duly authorized representative of the Commission:

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

facilities and access to inspect and copy all books, ledgers, accounts, correspondence,
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memoranda and all other records and documents in the possession or under the control

of Respondents relating to compliance with this Order; and 

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

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

have counsel present, regarding such matters.

IX.

IT IS FURTHER ORDERED that this Order shall terminate on October 19, 2021.

By the Commission, Chairman Muris not participating.

Donald S. Clark

Secretary

SEAL

ISSUED: October 19, 2001
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[Non-Public Appendices I, II, and III Redacted From Public Record Version]