191 0087

UNITED STATES OF AMERICA

BEFORE THE FEDERAL TRADE COMMISSION

COMMISSIONERS: Joseph J. Simons, Chairman

Noah Joshua Phillips

Rohit Chopra

Rebecca Kelly Slaughter

Christine S. Wilson

In the Matter of

DECISION AND ORDER

DOCKET NO. C-4708

One Rock Capital Partners II, LP

 a limited partnership,

FXI Holdings, Inc.

 a corporation,

 and

Bain Capital Fund XI, LP

 a limited partnership,

 and

Innocor, Inc.

 a corporation.

DECISION

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

proposed acquisition by Respondent FXI Holdings, Inc., an indirect subsidiary of Respondent 

One Rock Capital Partners II, LP, of Respondent Innocor, Inc., an indirect subsidiary of 

Respondent Bain Capital Fund XI, LP (each a “Respondent,” and collectively “Respondents”). 

The Commission’s Bureau of Competition prepared and furnished to Respondents the Draft 

Complaint, which it proposed to present to the Commission for its consideration. If issued by the 

Commission, the Draft Complaint would charge Respondents with violations of Section 7 of the 
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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.

Respondents and the Bureau of Competition executed an Agreement Containing Consent 

Order (“Consent Agreement”) containing (1) an admission by Respondents of all the 

jurisdictional facts set forth in the Draft Complaint, (2) a statement that the signing of said 

agreement is for settlement purposes only and does not constitute an admission by Respondents 

that the law has been violated as alleged in the Draft Complaint, or that the facts as alleged in the 

Draft Complaint, other than jurisdictional facts, are true, (3) waivers and other provisions as 

required by the Commission’s Rules, and (4) a proposed Decision and Order and Order to 

Maintain Assets.

The Commission considered the matter and 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. The Commission accepted the Consent Agreement and placed it on the public 

record for a period of 30 days for the receipt and consideration of public comments; at the same 

time, it issued and served its Complaint and Order to Maintain Assets. The Commission duly 

considered any comments received from interested persons pursuant to Commission Rule 2.34, 

16 C.F.R. § 2.34. Now, in further conformity with the procedure described in Rule 2.34, the 

Commission makes the following jurisdictional findings:

1. Respondent One Rock Capital Partners II, LP is a limited partnership organized, existing, 

and doing business under and by virtue of the laws of Delaware, with its executive offices

and principal place of business located at 30 Rockefeller Plaza, 54th Floor, New York, 

NY 10112.

2. Respondent FXI Holdings, Inc. is a corporation organized, existing, and doing business 

under and by virtue of the laws of Delaware, with its executive offices and principal place 

of business located at 100 Matsonford Road, 5 Radnor Corporate Center, Suite 300, 

Radnor, PA 19087-4560.

3. Respondent Bain Capital Fund XI, LP is a limited partnership organized, existing, and 

doing business under and by virtue of the laws of the Cayman Islands, with its executive 

offices and principal place of business located at 200 Clarendon Street, Boston, MA 

02116. 

4. Respondent Innocor, Inc. is a corporation, existing, organized, and doing business under 

and by virtue of the laws of New Jersey, with its executive offices and principal place of 

business located at 200 Schulz Drive, Red Bank, NJ 07701.

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

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

I. Definitions

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

A. “FXI” means FXI Holdings, Inc., its directors, officers, employees, agents, 

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

divisions, groups, and affiliates controlled by FXI Holdings, Inc., and the respective 

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

B. “One Rock Capital” means One Rock Capital Partners II, LP, its directors, officers, 

employees, agents, representatives, successors, and assigns; and the joint ventures, 

subsidiaries, partnerships, divisions, groups, and affiliates controlled by One Rock 

Capital Partners II, LP, and the respective directors, officers, employees, agents, 

representatives, successors, and assigns of each.

C. “Innocor” means Innocor, Inc., its directors, officers, employees, agents, representatives, 

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

groups, and affiliates controlled by Innocor, Inc., and the respective directors, officers, 

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

D. “Bain” means Bain Capital Fund XI, LP, its directors, officers, employees, agents, 

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

divisions, groups, and affiliates controlled by Bain Capital Fund XI, LP, and the 

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

of each.

E. “Future Foam” means Future Foam, Inc., a corporation organized, existing, and doing 

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

of business located at 1610 Avenue N. Council Bluffs, Iowa, 51501.

F. “Commission” means the Federal Trade Commission. 

G. “Acquirer” means:

1. Future Foam; or

2. Any other person that the Commission approves to acquire the Polyurethane 

Foam Assets pursuant to this Decision and Order.

H. “Acquisition” means the proposed acquisition by FXI of Innocor pursuant to the terms set 

forth in the transaction agreement by and among Respondents dated as of March 4, 2019. 

I. “Acquisition Date” means the date Respondents consummate the Acquisition.

J. “Business Information” means all books, records, data, and information, wherever 

located and however stored, relating to the Polyurethane Foam Assets or used in the 

Polyurethane Foam Business, including documents, written information, graphic 

materials, and data and information in electronic format, along with the unwritten 
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knowledge of employees, contractors and representatives. Business Information includes 

records and information relating to research and development, manufacturing, process 

technology, engineering, product formulations, production, sales, marketing, logistics, 

advertising, personnel, accounting, business strategy, information technology systems, 

customers, customer purchasing histories, customer preferences, delivery histories, 

delivery routing information, suppliers and all other aspects of the Polyurethane Foam

Business or Polyurethane Foam Assets. For clarity, Business Information includes 

Respondents’ right and control over information and material provided to any other 

person.

K. “Confidential Business Information” means any non-public Business Information relating 

to the Polyurethane Foam Assets and Polyurethane Foam Business:

1. Obtained by Respondents prior to the Divestiture Date; or

2. Obtained by Respondents after the Divestiture Date, in the course of performing 

Respondents’ obligations under this Order or any Divestiture Agreement 

(including any Transition Assistance agreement); 

Provided, however, that Confidential Business Information shall not include:

1. Information that is in the public domain when received by Respondents;

2. Information that is not in the public domain when received by Respondents and 

thereafter becomes public through no act or failure to act by Respondents;

3. Information that Respondents develop or obtain independently, without violating 

any applicable law or this Order, and without breaching any confidentiality 

obligation with respect to the information; and

4. Information that becomes known to Respondents from a third party not in breach 

of applicable law or a confidentiality obligation with respect to the information.

L. “Consent” means any approval, consent, ratification, waiver, or other authorization.

M. “Contract” means a contract, lease, sub-lease and other agreement or obligation.

N. “Direct Cost” means a cost not to exceed the cost of labor, material, travel, and other 

expenditures to the extent the costs are directly incurred to provide the relevant assistance 

or service. “Direct Cost” to the Acquirer for its use of any of the Respondents’ 

employees shall not exceed then-current average hourly wage rate for such employee.

O. “Divestiture Agreement” means:

1. Future Foam Divestiture Agreement; or

2. Any agreement between Respondents (or a Divestiture Trustee appointed 

pursuant to Paragraph IX of this Order) and an Acquirer to purchase the 

Polyurethane Foam Assets, and all amendments, exhibits, attachments, ancillary 

agreements (including any Shared Intellectual Property License or agreements to 

provide Transition Assistance), and schedules thereto. 
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P. “Divestiture Date” means the date on which Respondents (or a Divestiture Trustee 

appointed pursuant to Paragraph IX of this Order) close on each of the divestitures 

required by Paragraph II of this Order.

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

Paragraph IX of this Order.

R. “Elkhart Polyurethane Foam Facility” means Respondent Innocor’s polyurethane foam

production facilities located at 1900 West Lusher Road in Elkhart, Indiana, including 

associated production plants, warehouses, storage facilities, equipment, offices, 

fabricating operations, and transportation assets.

S. “Employee Information” means, for each Polyurethane Foam Employee, the following 

information summarizing the employment history of each employee that includes, as 

requested by the proposed Acquirer and to the extent permitted by applicable law: 

1. Name, job title or position, date of hire, and effective service date;

2. Specific description of the employee’s responsibilities;

3. The base salary or current wages;

4. Most recent bonus paid, aggregate annual compensation for Respondents’ last 

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

5. Written performance reviews for the past three years, if any;

6. Employment status (i.e., active or on leave or disability; full-time or part-time);

7. Any other material terms and conditions of employment in regard to such 

employee that are not otherwise generally available to similarly situated 

employees; and

8. At the proposed Acquirer’s option, copies of all employee benefit plans and 

summary plan descriptions (if any) applicable to the employee.

T. “Excluded Assets” means those assets and Contracts listed at Non-Public Appendix III to 

this Order.

U. “Future Foam Divestiture Agreement” means the agreements by and among the 

applicable Respondents and Future Foam, dated as of January 27, 2020, and all 

amendments, exhibits, attachments, ancillary agreements (including any agreements for 

Transition Assistance) related thereto and attached to this Order as Non-Public Appendix

I. 

V. “Governmental Authorization” means any license, registration, or permit issued, granted, 

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

pursuant to any legal requirement.

W. “Intellectual Property” means intellectual property of any kind, including patents, patent 

applications, mask works, trademarks, service marks, copyrights, trade dress, commercial 

names, internet web sites, internet domain names, inventions, discoveries, written and 

unwritten know-how, process technology, engineering technology, product technology, 

product rights, trade secrets, and proprietary information.
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X. “Kent Polyurethane Foam Facility” means Respondent FXI’s polyurethane foam

production facilities located at 19635 78th Avenue and 7620 S. 196 Street in Kent, 

Washington, including associated production plants, warehouses, storage facilities, 

equipment, offices, fabricating operations, and transportation assets.

Y. “Key Employees” means the employees listed at Appendix II to this Order.

Z. “Monitor” means the person approved by the Commission to serve as a Monitor pursuant 

to this Order or the Order to Maintain Assets. 

AA. “Polyurethane Foam Assets” means all of Respondent’s legal or equitable rights, title, 

and interests in and to all tangible and intangible assets, wherever located, relating to the 

Polyurethane Foam Business (including any such assets removed and not replaced after 

the announcement of the Acquisition, other than in the ordinary course of business), 

including:

1. The Polyurethane Foam Facilities;

2. Real property interests owned, leased or otherwise held, including easements and 

appurtenances, together with buildings, facilities and other structures, and 

improvements thereto;

3. Intangible rights and property, including Intellectual Property, owned, used, or 

licensed (as licensor or licensee) by Respondent, going concern value, goodwill, 

and telephone listings, internet sites and social media accounts;

4. Tangible personal property, whether owned or leased, including machinery, 

equipment, tools, furniture, office equipment, computer hardware, supplies, 

materials, vehicles, together with all express or implied warranties by 

manufacturers, sellers or lessors and all maintenance records and operating 

manuals;

5. Inventories;

6. Business Information; 

7. Contracts and all outstanding offers or solicitations to enter into any Contract, and

all rights thereunder and related thereto; and

8. Governmental Authorizations and all pending applications therefor or renewals 

thereof;

9. Provided, however, that Polyurethane Foam Assets need not include:

a. Corporate headquarters of Respondents;

b. Corporate, business, or other names of Respondents or any logo, 

trademark, service mark, domain name, trade or other name or any 

derivation thereof;

c. Cash, cash equivalents and accounts receivable;

d. Software that can readily be purchased or licensed from sources other than 

Respondents and that has not been materially modified (other than through 

user preference settings);
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e. Enterprise software that Respondents also use in their businesses other 

than the Polyurethane Foam Business;

f. The portion of Business Information that contains information about any 

business other than the business divested to an Acquirer;

g. Any original document that Respondents have a legal, contractual, or 

fiduciary obligation to retain the original; provided, however, that 

Respondents shall provide copies of the record and shall provide the 

Acquirer access to the original materials if copies are insufficient for 

regulatory or evidentiary purposes; and 

h. The following assets, unless the Commission, in its sole discretion and 

within 12 months of the date this Order is issued, determines in 

consultation with the Acquirer and the Monitor, that any such assets are 

necessary for the Acquirer to operate the Polyurethane Foam Assets or 

Polyurethane Foam Business in a manner that achieves the purposes of 

this Order: 

i. Excluded Assets; and

ii. Shared Intellectual Property, but only if the Shared Intellectual 

Property License is granted pursuant to Paragraph II of this Order.

BB. “Polyurethane Foam Business” means the applicable Respondent’s business of 

manufacturing, fabricating, and selling polyurethane foam and related products at the 

Polyurethane Foam Facilities. 

CC. “Polyurethane Foam Employees” means: (1) with respect to each of the Polyurethane 

Foam Facilities, each of Respondents employees who were employed or under contract

by the Polyurethane Foam Business at any time between June 1, 2019, and the 

Divestiture Date; and (2) the Key Employees.

DD. “Polyurethane Foam Facilities” means the Elkhart Polyurethane Foam Facility, the Kent 

Polyurethane Foam Facility, and the Tupelo Polyurethane Foam Facility.

EE. “Relevant Area” means the states of Indiana, Michigan, Mississippi, Ohio, Oregon, and 

Washington. 

FF. “Shared Intellectual Property” means Intellectual Property that, at any time prior to the 

Divestiture Date, was used by both the Polyurethane Foam Business and Respondents’

retained businesses. 

GG. “Shared Intellectual Property License” means a perpetual, non-exclusive, fully paid-up, 

irrevocable, transferable, and royalty-free license(s), granted by Respondents to an 

Acquirer, to use Shared Intellectual Property (other than trademarks, domain names, and 

similar names and marks) in the operation of the Polyurethane Foam Business.

HH. “Tupelo Polyurethane Foam Facility” means Respondent Innocor’s polyurethane foam

production facilities located at 1665 South Veterans Boulevard in Tupelo, Mississippi, 

including associated production plants, warehouses, storage facilities, equipment, offices, 

fabricating operations, and transportation assets.
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II. “Transition Assistance” means services, assistance, cooperation, training and access to 

personnel regarding the transfer and operation of the Polyurethane Foam Business, 

including, but not limited to, accounting and finance, human resources (employee 

benefits, payroll, etc.) information technology and systems, logistics (purchasing, 

distribution, warehousing, supply chain management, etc.), manufacturing (technology, 

technology transfer, operating permits and licenses, regulatory compliance, quality 

control, manufacturing processes and troubleshooting, etc.), research and development, 

sales and marketing (including customer service), and allowing an Acquirer to use

Respondents’ brands and marks for transitional purposes.

II. Divestiture

IT IS FURTHER ORDERED that:

A. Within 10 days of the Acquisition Date, Respondents shall divest, absolutely and in good 

faith, the Polyurethane Foam Assets as an ongoing business to Future Foam pursuant to 

the Future Foam Divestiture Agreement.

B. No later than the Divestiture Date, Respondents shall grant the Shared Intellectual 

Property License to Future Foam to use Shared Intellectual Property to operate the 

Polyurethane Foam Business, including by extending or improving existing products, 

processes, and services; developing new products, processes and services; and expanding, 

constructing, or operating additional on-site facilities or production lines.

C. If Respondents have divested the Polyurethane Foam Assets to Future Foam before the 

Commission issues this Order, and the Commission subsequently notifies Respondents 

that: 

1. Future Foam is not an acceptable Acquirer of the Polyurethane Foam Assets, then 

Respondents shall:

a. Within 5 days of notification by the Commission, rescind the Future Foam

Divestiture Agreement,

b. Within 120 days of notification by the Commission, divest the 

Polyurethane Foam Assets as an ongoing business, absolutely and in good 

faith, at no minimum price, and grant the Shared Intellectual Property 

License, to an Acquirer and in a manner that receives the prior approval of 

the Commission, and

c. Set forth the manner in which they will divest the Polyurethane Foam

Assets, and comply with the other provisions of this Order, in a proposed 

Divestiture Agreement that is submitted to the Commission for the prior 

approval required by this Order.

2. The manner of the divestiture is not acceptable, then the Commission will direct 

the Respondents (or appoint a Divestiture Trustee) to modify the divestiture in the 

manner the Commission determines is necessary to satisfy the requirements of 
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this Order, which may include entering into additional agreements or 

arrangements, or modifying a Divestiture Agreement.

D. Respondents shall deliver the Business Information to the Acquirer as soon as practicable 

in a manner that ensures their completeness, accuracy and usefulness and meets the 

reasonable requirements of the Acquirer.

E. No later than the Divestiture Date, Respondents shall, at their sole expense, obtain each 

Consent required to transfer the Polyurethane Foam Assets, including Contracts and 

Governmental Authorizations. Respondents may satisfy this requirement for a required 

Consent by certifying that the Acquirer has equivalent arrangements or has otherwise 

directly obtained the necessary Consent.

Provided, however, it is not a violation of this provision for Respondents not to transfer a 

Contract or Governmental Authorization that Respondents have no legal right to assign, 

transfer or sublicense (even by obtaining relevant Consents) so long as (i) prior to signing 

the Consent Order, Respondents inform Commission staff and the Acquirer that they 

cannot transfer the relevant Contract or Governmental Authorization, and (ii)

Respondents assist the Acquirer in obtaining an equivalent Contract or Governmental 

Authorization.

F. Respondents shall cooperate and assist the Acquirer (or any other person with whom 

Respondents engage in negotiations to acquire the Polyurethane Foam Assets) with a due 

diligence investigation of the Polyurethane Foam Assets and the Polyurethane Foam

Business, including by providing sufficient and timely access to all information and 

employees customarily provided as part of a due diligence process.

III. Divestiture Agreement

IT IS FURTHER ORDERED that:

A. The Divestiture Agreements shall be incorporated by reference into this Order and made 

a part hereof, and any failure by Respondents to comply with the terms of a Divestiture 

Agreement shall constitute a violation of this Order; provided, however, that the 

Divestiture Agreements shall not limit, or be construed to limit, the terms of this Order. 

To the extent any provision in a Divestiture Agreement varies from or conflicts with any 

provision in the Order such that Respondents cannot fully comply with both, 

Respondents shall comply with the Order.

B. Respondents shall not modify, replace, or extend the terms of a Divestiture Agreement 

after the Commission issues the Order without the prior approval of the Commission, 

except as otherwise provided in Commission Rule 2.41(f)(5), 16 C.F.R. § 2.41(f)(5).
10

IV. Transition Assistance

IT IS FURTHER ORDERED that:

A. Until Respondents have transferred all Business Information included in the Polyurethane 

Foam Assets, Respondents shall provide the Acquirer with access to records and 

information (wherever located and however stored) included in the Business Information 

that Respondents have not yet transferred to the Acquirer, and to employees who possess 

the records and information. 

B. Respondents shall provide the Acquirer with Transition Assistance sufficient to (i) 

efficiently transfer the Polyurethane Foam Assets to the Acquirer and (ii) assist the 

Acquirer in operating the Polyurethane Foam Assets and Polyurethane Foam Business in 

a manner equivalent in all material respects to the manner in which Respondents did so

prior to the Acquisition, and shall Provide Transition Assistance:

1. As set forth in a Divestiture Agreement, or as otherwise reasonably requested by 

the Acquirer (whether before or after the Divestiture Date);

2. At the price set forth in a Divestiture Agreement, or if no price is set forth, at 

Direct Cost; and

3. For a period sufficient to meet the requirements of this paragraph, which shall be, 

at the option of the Acquirer, for up to 12 months after the Divestiture Date.

C. Respondents shall not cease providing Transition Assistance due to a breach by the 

Acquirer of a Divestiture Agreement, and shall not limit the damages (including indirect, 

special, and consequential damages) that an Acquirer is entitled to receive in the event of 

Respondents’ breach of an agreement to provide Transition Assistance.

D. The Acquirer may terminate, in whole or part, any Transition Assistance provisions of 

the Divestiture Agreement upon commercially reasonable notice and without cost or 

penalty.

V. Employees

IT IS FURTHER ORDERED that:

A. Respondents shall cooperate with and assist any proposed Acquirer of the Polyurethane 

Foam Assets to evaluate independently and offer employment to the Polyurethane Foam 

Employees relating to each of the Polyurethane Foam Facilities, with such cooperation to 

include at least the following:

1. Not later than 5 business days after a request from a proposed Acquirer, 

Respondents shall, to the extent permitted by applicable law: 

a. Provide to the proposed Acquirer a list of all Polyurethane Foam

Employees and provide Employee Information for each; and 
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b. Allow the proposed Acquirer a reasonable opportunity to interview any 

Polyurethane Foam Employees;

2. Not later than 10 days after a request from a proposed Acquirer, Respondents

shall provide an opportunity for the proposed Acquirer to: 

a. Meet personally, and outside the presence or hearing of any employee or 

agent of Respondents, with any of the Polyurethane Foam Employees; and 

b. Make offers of employment to any of the Polyurethane Foam Employees;

3. Respondents shall not directly or indirectly interfere with a proposed Acquirer’s 

offer of employment to any one or more of the Polyurethane Foam Employees, 

not offer any incentive to Polyurethane Foam Employees to decline employment 

with a proposed Acquirer, and not otherwise interfere with the recruitment of any

Polyurethane Foam Employees by a proposed Acquirer; 

4. Respondents shall remove any impediments within the control of Respondents 

that may deter any Polyurethane Foam Employees from accepting employment 

with a proposed Acquirer, including, but not limited to, removal of any noncompete or confidentiality provisions of employment or other contracts with 

Respondents that may affect the ability or incentive of those individuals to be 

employed by a proposed Acquirer, and shall not make any counteroffer to any 

Polyurethane Foam Employees who receive an offer of employment from the 

Acquirer; provided, however, that nothing in this Order shall be construed to 

require Respondents to terminate the employment of any employee or prevent 

Respondents from continuing the employment of any employee;

5. Respondents shall provide Polyurethane Foam Employees with reasonable 

financial incentives to continue in their positions, and as may be necessary to 

facilitate the employment of such Polyurethane Foam Employees by the proposed 

Acquirer. Such incentives shall include a continuation of all employee 

compensation and benefits offered by Respondents, including regularly scheduled 

or merit raises and bonuses, regularly scheduled vesting of pension benefits, and 

additional reasonable incentives as may be necessary. 

B. If, at any point within 6 months of the Divestiture Date, the Commission, in consultation 

with the Acquirer and the Monitor, determines in its sole discretion that the Acquirer 

should have the ability to interview, make offers of employment to, or hire any of 

Respondent Innocor or Respondent FXI’s employees that are not otherwise included as 

Polyurethane Foam Employees, then the Commission may notify Respondents that such 

employees are to be designated as Polyurethane Foam Employees, and the provisions of 

this Paragraph V shall apply to such employees as of that notification date. 

C. Respondents shall:

1. For a period of 1 year from the Divestiture Date, not directly or indirectly solicit 

or induce, or attempt to solicit or induce, any Polyurethane Foam Employee who 

has accepted an offer of employment with, or who is employed by, an Acquirer to 

terminate his or her employment relationship with the Acquirer.
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2. For a period of 2 years from the Divestiture Date, not directly or indirectly solicit 

or induce, or attempt to solicit or induce, any Key Employee who has accepted an 

offer of employment with, or who is employed by, an Acquirer to terminate his or 

her employment relationship with the Acquirer.

Provided, however, a violation of this Paragraph V.C will not occur if:

1. The employee’s employment has been terminated by the Acquirer; 

2. Respondents advertise for employees in newspapers, trade publications, or other 

media not targeted specifically at any one or more of the employees of the 

Acquirer; or 

3. Respondents hire an employee who has applied for employment with 

Respondents, provided that such application was not solicited or induced in 

violation of this Order. 

VI. Asset Maintenance

IT IS FURTHER ORDERED that, pending divestiture of the Polyurethane Foam

Assets, Respondents shall operate the Polyurethane Foam Assets in the ordinary course of 

business consistent with past practices, and shall:

A. Take such actions as are necessary to maintain the full economic viability, marketability, 

and competitiveness of the Polyurethane Foam Assets, to minimize any risk of loss of 

competitive potential of the Polyurethane Foam Assets, to operate the Polyurethane Foam

Assets in a manner consistent with applicable laws and regulations, and to prevent the 

destruction, removal, wasting, deterioration, or impairment of the Polyurethane Foam

Assets (including regular repair and maintenance efforts), except for ordinary wear and 

tear. Respondents shall not sell, transfer, encumber, terminate the operations of, or 

otherwise impair the Polyurethane Foam Assets (other than in the manner prescribed in 

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

competitiveness of the Polyurethane Foam Assets; and

B. Conduct or cause to be conducted the Polyurethane Foam Business in the regular and 

ordinary course of business and in accordance with past practice and as may be necessary 

to preserve the full economic viability, marketability, and competitiveness of the

Polyurethane Foam Business, and shall use best efforts to preserve the relationships and 

goodwill with suppliers, customers, employees, governmental authorities, vendors, 

landlords, creditors, agents, and others having business relationships with the 

Polyurethane Foam Business; 

Provided, however, that Respondents shall not be in violation of this Paragraph VI if 

Respondents take actions (i) as explicitly permitted or required by any Divestiture 

Agreement, or (ii) that have been requested or agreed-to by an Acquirer, in writing, and

approved in advance by the Monitor (in consultation with Commission staff), in all cases 
13

to facilitate the Acquirer’s acquisition of the Polyurethane Foam Assets and consistent 

with the purposes of the Order.

VII. Additional Obligations

IT IS FURTHER ORDERED that:

A. Respondents, in consultation with the proposed Acquirer, for the purposes of ensuring an 

orderly transition, shall:

1. Develop and implement a detailed transition plan to ensure that the 

commencement of the operation of the Polyurethane Foam Business by the 

Acquirer is not delayed or impaired by the Respondents;

2. Designate employees of Respondents knowledgeable about the operation of the 

Polyurethane Foam Assets and Polyurethane Foam Business, who will be 

responsible for communicating directly with the Acquirer, and the Monitor (if one 

has been appointed), for the purposes of assisting in the transfer to the Acquirer of 

the Polyurethane Foam Assets and Polyurethane Foam Business;

3. Allow the Acquirer reasonable access to all Business Information related to the 

Polyurethane Foam Assets and Polyurethane Foam Business and to employees 

who possess or are able to locate such information; and 

4. Establish projected timelines for accomplishing all tasks necessary to effectuate

the transition to the Acquirer in an efficient and timely manner.

B. Respondents shall:

1. Not provide, disclose, or otherwise make available any Confidential Business 

Information to any person, except as required or permitted by this Order, the 

Order to Maintain Assets, or a Divestiture Agreement;

2. Not use any Confidential Business Information for any reason or purpose, other 

than as required or permitted by this Order, the Order to Maintain Assets, or a 

Divestiture Agreement;

3. To the extent practicable, maintain Confidential Business Information separate 

and apart from other data or information of the Respondents; and

4. Following the Acquisition Date, ensure that Confidential Business Information is 

not shared with Respondents’ employees engaged in polyurethane foam 

production or sales activities in any of the Relevant Areas, other than employees 

who had access to the information prior to the Acquisition Date in the normal 

course of business and subject to the provisions of VII.B.1 and VII.B.2 above.

Provided, however, that nothing in this Paragraph VII shall prevent Respondents from 

retaining and using any tangible or intangible property that Respondents retain the right 

to use pursuant to this Order (including Shared Intellectual Property), provided further 

that to the extent that the use of such property involves disclosure of Confidential 
14

Business Information to another person, Respondents shall require such person to 

maintain the confidentiality of such Confidential Business Information under terms no 

less restrictive than Respondents’ obligations under this Order.

C. Respondents shall devise and implement measures to protect against the storage, 

distribution, and use of Confidential Business Information that is not permitted by this 

Order, the Order to Maintain Assets, or any Divestiture Agreement. These measures 

shall include, but not be limited to, restrictions placed on access by persons to 

information available or stored on any of Respondents’ computers or computer networks.

D. No later than 10 days after the Divestiture Date, and no less than annually for 3 years

after the Divestiture Date, Respondents shall provide written notification of the 

restrictions on the use and disclosure of the Confidential Business Information by 

Respondents’ personnel to all of its officers, directors, employees, or agents who may 

have possession or access to such Confidential Business Information. Respondents shall 

require such personnel to acknowledge in writing or electronically their receipt and 

understanding of these written instructions, and shall maintain custody of these written 

instructions and acknowledgments for inspection upon request by the Commission.

E. Notwithstanding this Paragraph VII of this Order, and subject to the Order to Maintain 

Assets, Respondent may use Confidential Business Information:

1. For the purpose of performing Respondents’ obligations under this Order, the 

Order to Maintain Assets, or the Divestiture Agreements; and

2. For purposes of complying with financial reporting requirements, obtaining legal 

advice, ensuring compliance with legal and regulatory requirements, prosecuting 

or defending legal claims, conducting investigations, or as otherwise required by 

law.

VIII. Monitor

IT IS FURTHER ORDERED that:

A. Edward J. Buthusiem shall serve as the Monitor pursuant to the agreement executed by 

the Monitor and Respondents, and attached as Appendix IV (“Monitor Agreement”) and 

Non-Public Appendix IV-1 (“Monitor Compensation”). The Monitor is appointed to 

monitor Respondents’ compliance with the terms of this Order, the Order to Maintain 

Assets, and the Divestiture Agreement.

B. No later than 1 day after the Order to Maintain Assets is issued, Respondents shall, 

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

authorities necessary to permit the Monitor to monitor Respondents’ compliance with the 

terms of this Order, the Order to Maintain Assets, and the Divestiture Agreement, in a 

manner consistent with the purposes of the orders. 

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

duties, authorities, and responsibilities of the Monitor:
15

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

compliance with the divestiture and related requirements of this Order, the Order 

to Maintain Assets, and the Divestiture Agreement, and shall exercise such power 

and authority and carry out the duties and responsibilities of the Monitor in a 

manner consistent with the purposes of the orders.

2. The Monitor shall act in consultation with the Commission or its staff, and shall 

serve as an independent third party and not as an employee or agent of the 

Respondents or of the Commission.

3. The Monitor shall serve until 30 days after Respondents have satisfied all 

obligations under Paragraph II and IV of this Order, or until such other time as 

may be determined by the Commission or its staff.

D. Subject to any demonstrated legally recognized privilege, the Monitor shall have full and 

complete access to Respondents’ personnel, books, documents, records kept in the 

ordinary course of business, facilities and technical information, and such other relevant 

information as the Monitor may reasonably request, related to Respondents’ compliance 

with its obligations under this Order, the Order to Maintain Assets, and the Divestiture 

Agreement.

E. Respondents shall cooperate with any reasonable request of the Monitor and shall take no 

action to interfere with or impede the Monitor’s ability to monitor Respondents’ 

compliance with this Order, the Order to Maintain Assets, and the Divestiture 

Agreement.

F. The Monitor shall serve, without bond or other security, at the expense of Respondents, 

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

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

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

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

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

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

performance of the Monitor’s duties, including all reasonable fees of counsel and other 

reasonable expenses incurred in connection with the preparations for, or defense of, any 

claim, whether or not resulting in any liability, except to the extent that such losses, 

claims, damages, liabilities, or expenses result from gross negligence, willful or wanton 

acts, or bad faith by the Monitor. For purposes of this Paragraph VIII.G, the term 

“Monitor” shall include all persons retained by the Monitor pursuant to Paragraph VIII.F

of this Order.

H. Respondents shall report to the Monitor in accordance with the requirements of this 

Order or the Order to Maintain Assets, and as otherwise provided in the Monitor 

Agreement approved by the Commission. The Monitor shall evaluate the reports 

submitted by the Respondents with respect to the performance of Respondents’ 

obligations under this Order and the Order to Maintain Assets. Within 30 days from the 

date the Monitor receives the first such report, and every 90 days thereafter (and 

otherwise as the Commission or its staff may request), the Monitor shall report in writing 
16

to the Commission concerning performance by Respondents of their obligations under 

the orders.

I. Respondents may require the Monitor and each of the Monitor’s consultants, accountants,

and other representatives and assistants to sign a customary confidentiality agreement; 

provided, however, that such agreement shall not restrict the Monitor from providing any 

information to the Commission.

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

consultants, accountants, attorneys, and other representatives and assistants to sign an 

appropriate confidentiality agreement related to Commission materials and information 

received in connection with the performance of the Monitor’s duties.

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

diligently, the Commission may appoint a substitute Monitor:

1. The Commission shall select the substitute 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 

a proposed Monitor within 10 days after the notice by the staff of the Commission 

to Respondents of the identity of any proposed Monitor, Respondents shall be 

deemed to have consented to the selection of the proposed Monitor.

2. Not later than 10 days after the appointment of the substitute Monitor, 

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

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

Monitor to monitor Respondents’ compliance with the relevant terms of this

Order, the Order to Maintain Assets, and the Divestiture Agreement in a manner 

consistent with the purposes of the orders and in consultation with the 

Commission.

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

additional orders or directions as may be necessary or appropriate to assure compliance 

with the requirements of this Order.

M. The Monitor appointed pursuant to this Order may be the same person appointed as a 

Divestiture Trustee pursuant to the relevant provisions of this Order.

IX. Divestiture Trustee

IT IS FURTHER ORDERED that:

A. If Respondents have not fully complied with the obligations of Paragraph II of this Order, 

the Commission may appoint one or more Divestiture Trustees to divest any or all of the 

Polyurethane Foam Assets, enter agreements for Transition Assistance, grant the Shared

Intellectual Property License, and perform Respondents’ other obligations in a manner 

that satisfies the requirements of this Order. In the event that the Commission or the 

Attorney General brings an action pursuant to Section 5(l) of the Federal Trade 
17

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 required assets. Neither the appointment of a Divestiture Trustee nor a 

decision not to appoint a Divestiture Trustee under this Paragraph IX shall preclude the 

Commission or the Attorney General from seeking civil penalties or any other relief 

available to it, including one or more court-appointed Divestiture Trustees, pursuant to 

Section 5(l) of the Federal Trade Commission Act, or any other statute enforced by the 

Commission, for any failure by Respondents to comply with this Order.

B. The Commission may select one or more Divestiture Trustees, subject to the consent of

Respondents, which consent shall not be unreasonably withheld. The Commission may 

appoint one Divestiture Trustee or separate Divestiture Trustees to divest one or more of 

the Polyurethane Foam Assets, enter agreements for Transition Assistance, grant the 

Shared Intellectual Property License, and perform Respondents’ other obligations in a 

manner that satisfies the requirements of this Order. Any Divestiture Trustee shall be a 

person with experience and expertise in acquisitions and divestitures. If Respondents 

have not opposed, in writing, and stated in writing their reasons for opposing, the 

selection of any proposed Divestiture Trustee within 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.

1. Not later than 10 days after the appointment of a Divestiture Trustee, Respondents 

shall execute a trust agreement for any divestitures required by this Order 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 

effectuate the divestitures required by, and satisfy the additional obligations 

imposed by this Order. Any failure by Respondents to comply with a trust 

agreement approved by the Commission shall be a violation of this Order.

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

Paragraph, Respondents shall consent to the following terms and conditions 

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

a. Subject to the prior approval of the Commission, the Divestiture Trustee 

shall have the exclusive power and authority to effectuate the divestitures

required by, and satisfy the additional obligations (including obligations to

provide Transition Assistance and grant the Shared Intellectual Property

License) imposed by, this Order.

b. The Divestiture Trustee shall have 1 year after the date the Commission 

approves each trust agreement described herein to accomplish the 

divestitures required by this Order, which shall be subject to the prior 

approval of the Commission. If, however, at the end of the 1 year period, 

the Divestiture Trustee has submitted a plan to satisfy the divestiture 

obligations of this Order, or believes that such obligations can be achieved 

within a reasonable time, the period may be extended by the Commission, 

or, in the case of a court-appointed Divestiture Trustee, by the court; 
18

provided, however, that the Commission may extend the period only 2 

times. 

c. Subject to any demonstrated legally recognized privilege, any 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. Respondents shall develop such 

financial or other information as any Divestiture Trustee may request and 

shall cooperate with the Divestiture Trustee. Respondents shall take no 

action to interfere with or impede any Divestiture Trustee’s 

accomplishment of the divestiture. Any delays caused by Respondents 

shall extend the time under this Paragraph IX for a time period equal to the 

delay, as determined by the Commission or, for a court-appointed 

Divestiture Trustee, by the court.

d. Any Divestiture Trustee shall use commercially reasonable 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 expeditiously and at no minimum price. 

The divestitures shall be made in the manner that receives the prior 

approval of the Commission and to an Acquirer that receives the prior 

approval of the Commission as required by this Order; provided, however,

if any Divestiture Trustee receives bona fide offers for any asset to be 

divested 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 5 days after receiving 

notification of the Commission’s approval.

e. Any 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. Any 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. Any Divestiture Trustee shall account for all monies 

derived from the divestitures 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 Respondents, and the Divestiture Trustee’s power shall be 

terminated. The compensation of any 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.
19

f. Respondents shall indemnify any 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 gross negligence, malfeasance, willful or wanton 

acts, or bad faith by the Divestiture Trustee.

g. Any Divestiture Trustee shall have no obligation or authority to operate or 

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

h. Any Divestiture Trustee shall report in writing to Respondents and to the 

Commission every 30 days concerning the Divestiture Trustee’s efforts to 

accomplish the divestitures.

i. Respondents may require any 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.

C. If the Commission determines that any 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 IX.

D. The Commission or, in the case of a court-appointed Divestiture Trustee, the court, may 

on its own initiative or at the request of any Divestiture Trustee, issue such additional 

orders or directions as may be necessary or appropriate to accomplish the divestitures 

required by this Order.

X. Prior Notice

IT IS FURTHER ORDERED that:

A. For a period of 10 years from the date this Order is issued, Respondents FXI and One 

Rock Capital shall not, without providing advance written notification to the Commission 

in the manner described in this Paragraph X, acquire any assets of, or any financial,

ownership, or leasehold interest in, any facility that has operated as a polyurethane foam 

production facility within 12 months prior to the date of such proposed acquisition, in any 

Relevant Area.

B. 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”), 16 C.F.R. § 803 App., 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, 
20

and notification is required only of Respondents FXI and One Rock Capital and not of 

any other party to the transaction. Respondents FXI and One Rock Capital shall provide 

the Notification to the Commission at least 30 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), Respondents FXI and 

One Rock Capital shall not consummate the transaction until 30 days after submitting 

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

periods in this Paragraph X may be requested and, where appropriate, granted by letter 

from staff of the Bureau of Competition. Provided, however, that prior notification shall 

not be required by this Paragraph X 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.

XI. Compliance Reports

IT IS FURTHER ORDERED that:

A. Respondent FXI shall:

1. Notify Commission staff via email at bccompliance@ftc.gov of:

a. The Acquisition Date, no later than 5 days after the Acquisition Date; and

b. The Divestiture Date, no later than 5 days after the Divestiture Date; 

2. Submit the complete Divestiture Agreement to the Commission at 

ElectronicFilings@ftc.gov and bccompliance@ftc.gov no later than 30 days after 

the Divestiture Date.

B. Respondents FXI and One Rock Capital shall file verified written reports (“compliance 

reports”) in accordance with the following:

1. Respondents FXI and One Rock Capital shall submit an interim compliance 

report 30 days after the Order is issued, and additional interim reports every 30

days thereafter until Respondents have fully complied with the provisions of 

Paragraph II and IV of this Order; annual compliance reports one year after the 

date this Order is issued, and annually for the next 9 years on the anniversary of 

that date; and additional compliance reports as the Commission or its staff may 

request;

2. Each compliance report shall set forth in detail the manner and form in which 

Respondents intend to comply, are complying, and have complied with this Order. 

Each compliance report shall contain sufficient information and documentation to 

enable the Commission to determine independently whether Respondents are in 

compliance with the Order. Conclusory statements that Respondents have 

complied with their obligations under the Order are insufficient. Respondents 
21

FXI and One Rock Capital shall include in their reports, among other information 

or documentation that may be necessary to demonstrate compliance, a full 

description of the measures Respondents have implemented or plan to implement 

to ensure that they have complied or will comply with each paragraph of the 

Order, a description of all substantive contacts or negotiations for the divestitures 

and the identities of all parties contacted, and such supporting materials shall be 

retained and produced later if needed.

3. Respondents FXI and One Rock Capital shall verify each compliance report in the 

manner set forth in 28 U.S.C. § 1746 by the Chief Executive Officer or another 

officer or employee specifically authorized to perform this function. Respondents

shall submit an original and 2 copies of each compliance report as required by 

Commission Rule 2.41(a), 16 C.F.R. § 2.41(a), including a paper original 

submitted to the Secretary of the Commission and electronic copies to the 

Secretary at ElectronicFilings@ftc.gov and to the Compliance Division at 

bccompliance@ftc.gov. In addition, Respondents FXI and One Rock Capital

shall provide a copy of each compliance report to the Monitor if the Commission 

has appointed one in this matter.

XII. Change in Respondent

IT IS FURTHER ORDERED that Respondents FXI and One Rock Capital shall notify 

the Commission at least 30 days prior to:

A. Any proposed dissolution of FXI Holdings, Inc. or One Rock Capital Partners II, LP;

B. Any proposed acquisition, merger or consolidation of FXI Holdings, Inc. or One Rock 

Capital Partners II, LP; or

C. Any other change in Respondents FXI and One Rock Capital, including assignment and 

the creation, sale, or dissolution of subsidiaries, if such change may affect compliance 

obligations arising out of this Order.

XIII. Access

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

with this Order, and subject to any legally recognized privilege, upon written request and 5 days’ 

notice to the relevant Respondent, made to its principal place of business as identified in this 

Order, registered office of its United States subsidiary, or its headquarters office, the notified 

Respondent shall, without restraint or interference, permit any duly authorized representative of 

the Commission:

A. Access, during business office hours of the Respondent and in the presence of counsel, to 

all facilities and access to inspect and copy all business and other records and all 

documentary material and electronically stored information as defined in Commission 

Rules 2.7(a)(1) and (2), 16 C.F.R. § 2.7(a)(1) and (2), in the possession or under the 

control of the Respondent related to compliance with this Order, which copying services 
22

shall be provided by the Respondent at the request of the authorized representative of the 

Commission and at the expense of the Respondent; and

B. To interview officers, directors, or employees of the Respondent, who may have counsel 

present, regarding such matters.

XIV. Purpose

IT IS FURTHER ORDERED that the purpose of this Order is to remedy the harm to 

competition the Commission alleged in its Complaint and ensure an Acquirer can operate the 

Polyurethane Foam Business in a manner equivalent in all material respects to the manner in 

which Respondents operated the Polyurethane Foam Business prior to the Acquisition.

XV. Term

 IT IS FURTHER ORDERED that this Order shall terminate 10 years from the date it 

is issued.

By the Commission.

April J. Tabor

Acting Secretary

SEAL

ISSUED:
23

APPENDIX I

Future Foam Divestiture Agreement

[Redacted From the Public Record Version, But Incorporated By Reference]
24

APPENDIX II

Key Employees

[Redacted From the Public Record Version, But Incorporated By Reference]
25

APPENDIX III

Excluded Assets

[Redacted From the Public Record Version, But Incorporated By Reference]
26

APPENDIX IV

Monitor Agreement
27

APPENDIX IV-1

Monitor Compensation

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