991 0301

UNITED STATES OF AMERICA

BEFORE FEDERAL TRADE COMMISSION

COMMISSIONERS: Robert Pitofsky, Chairman

Sheila F. Anthony

Mozelle W. Thompson

Orson Swindle

Thomas B. Leary

In the Matter of )

)

The Dow Chemical Company, )

a corporation, and ) DOCKET NO. C-3999

)

Union Carbide Corporation, )

a corporation. )

ORDER TO MAINTAIN ASSETS

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

proposed acquisition by Respondent The Dow Chemical Company (“Dow”) of Respondent Union

Carbide Corporation (“Union Carbide”), and Respondents having been furnished

thereafter with 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 the 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 the Consent Agreement is for settlement purposes only and does not constitute

an admission by Respondents that the law has been violated as alleged in such Complaint, or that

the facts as alleged in such Complaint, other than jurisdictional facts, are true, and waivers and

other provisions as required by the Commission’s Rules; and

The Commission having thereafter considered the matter and having determined 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 determined to accept the executed Consent

Agreement and to place such Consent Agreement on the public record for a period of thirty (30)

days, the Commission hereby issues its Complaint, makes the following jurisdictional findings and

issues this Order to Maintain Assets:
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1. Respondent The Dow Chemical Company is a corporation organized, existing, and

doing business under and by virtue of the laws of the State of Delaware, having its principal

offices at 2030 Dow Center, Midland, Michigan 48674.

2. Respondent Union Carbide Corporation is a corporation organized, existing and

doing business under and by virtue of the laws of the State of New York with its principal

executive offices located at 39 Old Ridgebury Road, Danbury, Connecticut 06817.

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

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

I.

IT IS ORDERED that, as used in this Order to Maintain Assets, the definitions used in

the attached Decision and Order shall apply, and that, for purposes of this Order to Maintain

Assets, the following definitions shall also apply:

A. “Persons with Access to Non-Public Confidential Information” means (1)

Respondents’ Support Personnel, (2) employees of Respondents who were

employees of the Dow Global Ethyleneamines Business, the Dow Global

Ethanolamines Business, or the Dow Gas Spec MDEA Business during any time

since January 1, 1998, as well as (3) any other employees of Respondents who had

access to Non-Public Confidential Information during any time since January 1,

1998.

B “Decision and Order” means the Decision and Order, incorporated into and made a

part of the Consent Agreement.

II.

IT IS FURTHER ORDERED that:

A. From the date Respondents sign the Consent Agreement until the Effective Date of

Divestiture, Respondents shall:

1. Maintain the Businesses and Assets to Be Divested in substantially the

same condition (except for normal wear and tear) existing at the time

Respondents sign the Consent Agreement and take such action that is

consistent with the past practices of Respondents in connection with the

Businesses and Assets to Be Divested and is taken in the ordinary course of

the normal day-to-day operations of Respondents;
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2. Keep available the services of the current officers, employees, and agents

of the Businesses and Assets to Be Divested; and maintain the relations and

good will with suppliers, customers, landlords, creditors, employees,

agents, and others having business relationships with the Businesses and

Assets to Be Divested; and

3. Preserve the Businesses and Assets to Be Divested intact as an ongoing

business and not take any affirmative action, or fail to take any action

within their control, as a result of which the viability, competitiveness, and

marketability of the Businesses and Assets to Be Divested would be

diminished.

B. Respondents shall adhere to and abide by the Divestiture Agreements incorporated

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

C. From the date Respondents sign the Consent Agreement until the date this Order

to Maintain Assets terminates pursuant to Paragraph VII:

1. Respondents shall not assign Persons with Access to Non-Public

Confidential Information to any employment positions or duties relating to

Respondents’ Ethyleneamines Business, Respondents’ Ethanolamines

Business, or Respondents’ MDEA Business.

2. Respondents’ Ethyleneamines Business, Respondents’ Ethanolamines

Business, or Respondents’ MDEA Business shall not retain, request,

receive, solicit, accept, nor seek to obtain, any Non-Public Confidential

Information.

III.

IT IS FURTHER ORDERED that:

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

appoint one or more Persons to serve as Monitor Trustee to monitor Respondents’

compliance with the terms of this Order to Maintain Assets, Decision and Order,

and the Divestiture Agreement(s) made a part of this Order.

B. If one or more Monitor Trustees are appointed pursuant to Paragraph III of this

Order to Maintain Assets, Respondents shall consent to the following terms and

conditions regarding the powers, duties, authorities, and responsibilities of each

Monitor Trustee:
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1. The Commission shall select the Monitor Trustee, 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 trustee within ten (10) days after

notice by the staff of the Commission to Respondents of the identity of any

proposed trustee, Respondents shall be deemed to have consented to the

selection of the proposed trustee.

2. The Monitor Trustee shall have the power and authority to monitor

Respondents’ compliance with the terms of the Order to Maintain Assets,

Decision and Order and the Divestiture Agreement(s) and shall exercise

such power and authority and carry out the duties and responsibilities of

the Monitor Trustee in a manner consistent with the purposes of the Order

to Maintain Assets and in consultation with the Commission.

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

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

Commission, confers on the Monitor Trustee all the rights and powers

necessary to permit the Monitor Trustee to monitor Respondents’

compliance with the terms of the Order to Maintain Assets, Decision and

Order and the Divestiture Agreement(s), in a manner consistent with the

purposes of such orders and agreements. Respondents may require the

Monitor Trustee to sign a confidentiality agreement prohibiting the use, or

disclosure to anyone other than the Commission, of any competitively

sensitive or proprietary information gained as a result of his or her role as

Monitor Trustee.

4. The Monitor Trustee shall serve for such time as is necessary to monitor

Respondents’ compliance with the provisions of this Order to Maintain

Assets.

5. The Monitor Trustee shall have full and complete access to Respondents’

books, records, documents, personnel, facilities and technical information

relating to compliance with the Order to Maintain Assets, Decision and

Order and the Divestiture Agreement(s), or to any other relevant

information, as the Monitor Trustee may reasonably request. Respondents

shall cooperate with any reasonable request of the Monitor Trustee. 

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

Trustee's ability to monitor Respondents’ compliance with this Order to

Maintain Assets, Decision and Order and the Divestiture Agreement(s).

6. The Monitor Trustee shall serve, without bond or other security, at the
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expense of Respondents, on such reasonable and customary terms and

conditions as the Commission may set. The Monitor Trustee 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 Monitor Trustee’s duties and

responsibilities. The Monitor Trustee 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 Monitor Trustee and hold the Monitor

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

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

Trustee's duties (including the duties of the Monitor Trustee’s employees),

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, willful or

wanton acts, or bad faith by the Monitor Trustee.

8. If at any time the Commission determines that the Monitor Trustee has

ceased to act or failed to act diligently, or is unwilling or unable to continue

to serve, the Commission may appoint a substitute to serve as Monitor

Trustee in the same manner as provided in this Paragraph III.

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

Trustee issue such additional orders or directions as may be necessary or

appropriate to assure compliance with the requirements of this Order to

Maintain Assets, Decision and Order and the Divestiture Agreement(s).

10. The Monitor Trustee shall report to the Commission in writing concerning

compliance by Respondents with the provisions of this Order to Maintain

Assets, Decision and Order and Divestiture Agreement(s), within twenty

(20) days from the date of appointment and every thirty (30) days

thereafter during the remainder of the Monitor Trustee’s period of

appointment, and at such other time as representatives of the Commission

may request.

C. The Monitor Trustee(s) appointed pursuant to Paragraph III.A. of this Order to

Maintain Assets may be the same person(s) appointed as Monitor Trustee(s)

pursuant to Paragraph IX.A. of the Decision and Order, and/or as divestiture

trustee(s) pursuant to Paragraph X.A. of the Decision and Order in this matter.

IV.
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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 Decision and Order or this Order to Maintain Assets.

V.

IT IS FURTHER ORDERED that within thirty (30) days after Respondents sign the

Consent Agreement and every thirty (30) days thereafter until thirty (30) days after Respondents

have divested the Dow Global Ethyleneamines Business, the Dow Global Ethanolamines

Business, the Dow Gas Spec MDEA Business, and the Dow Gas Phase Metallocene PE Assets,

as required by the provisions of Paragraphs II, III, IV, VI, and VII of the Decision and Order,

Respondents shall submit to the Commission a verified written report setting forth in detail the

manner and form in which it intends to comply, is complying, and has complied with this Order to

Maintain Assets and the Decision and Order. Respondents shall include in their compliance

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

being made to comply with Paragraphs II, III, IV, VI, and VII of the Decision and Order,

including a description of all substantive contacts or negotiations for the divestiture and the

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

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

recommendations concerning divestiture.

 VI.

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

compliance with this Order to Maintain Assets, upon written request, Respondents shall permit

any duly authorized representative of the Commission:

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

to inspect and copy all books, ledgers, accounts, correspondence, memoranda and other records

and documents in the possession or under the control of Respondents relating to any matters

contained in this Order to Maintain Assets; and 

B. Upon five days' notice to Respondents and without restraint or interference from them,

to interview in the presence of counsel, officers, directors, employees, agents or independent

contractors of Respondents.

 VII.

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

earlier of:
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A. three (3) business days after the Commission withdraws its acceptance of the

Consent Agreement pursuant to the provisions of Commission Rule 2.34, 16

C.F.R. § 2.34; or

B. such time as all Businesses and Assets to Be Divested have been divested pursuant

to the terms of the Consent Agreement.

By the Commission.

Donald S. Clark

Secretary

SEAL:

ISSUED: February 5, 2001