Federal Register / Vol. 60, No. 60 / Wednesday, March 29, 1995 / Notices 16139

1. Union Bancshares of Campbell

County, Inc., Jellico, Tennessee; to

retain 6.1 percent of its subsidiary Gem

City Development Corporation, Jellico,

Tennessee, and thereby engage in

community, development activities,

pursuant to § 225.25(b)(6) of the Board’s

Regulation Y. The proposed activity will

be conducted throughout the state of

Tennessee.

B. Federal Reserve Bank of Chicago

(James A. Bluemle, Vice President) 230

South LaSalle Street, Chicago, Illinois

60690:

1. First Midwest Bancorp, Inc., to

engage de novo in the purchasing of

loan participations and the making of

direct loans, pursuant to § 225.25(b)(1)

of the Board’s Regulation Y.

C. Federal Reserve Bank of Kansas

City (John E. Yorke, Senior Vice

President) 925 Grand Avenue, Kansas

City, Missouri 64198:

1. First Ainsworth Company,

Ainsworth, Nebraska; to engage de novo

through its subsidiary First National

Agency of Ainsworth, Inc., Ainsworth,

Nebraska, in securities brokerage

activities, pursuant to § 225.25(b)(15) of

the Board’s Regulation Y.

Board of Governors of the Federal Reserve

System, March 23, 1995.

Jennifer J. Johnson,

Deputy Secretary of the Board.

[FR Doc. 95–7691 Filed 3–28–95; 8:45 am]

BILLING CODE 6210–01–F

U.S. Trust Corporation; Formation of,

Acquisition by, or Merger of Bank

Holding Companies; and Acquisition

of Nonbanking Company

The company listed in this notice has

applied under § 225.14 of the Board’s

Regulation Y (12 CFR 225.14) for the

Board’s approval under section 3 of the

Bank Holding Company Act (12 U.S.C.

1842) to become a bank holding

company or to acquire voting securities

of a bank or bank holding company. The

listed company has also applied under

§ 225.23(a)(2) of Regulation Y (12 CFR

225.23(a)(2)) for the Board’s approval

under section 4(c)(8) of the Bank

Holding Company Act (12 U.S.C.

1843(c)(8)) and § 225.21(a) of Regulation

Y (12 CFR 225.21(a)) to acquire or

control voting securities or assets of a

company engaged in a nonbanking

activity that is listed in § 225.25 of

Regulation Y as closely related to

banking and permissible for bank

holding companies, or to engage in such

an activity. Unless otherwise noted,

these activities will be conducted

throughout the United States.

The application is available for

immediate inspection at the Federal

Reserve Bank indicated. Once the

application has been accepted for

processing, it will also be available for

inspection at the offices of the Board of

Governors. Interested persons may

express their views in writing on the

question whether consummation of the

proposal can ‘‘reasonably be expected to

produce benefits to the public, such as

greater convenience, increased

competition, or gains in efficiency, that

outweigh possible adverse effects, such

as undue concentration of resources,

decreased or unfair competition,

conflicts of interests, or unsound

banking practices.’’ Any request for a

hearing on this question must be

accompanied by a statement of the

reasons a written presentation would

not suffice in lieu of a hearing,

identifying specifically any questions of

fact that are in dispute, summarizing the

evidence that would be presented at a

hearing, and indicating how the party

commenting would be aggrieved by

approval of the proposal.

Comments regarding the application

must be received at the Reserve Bank

indicated or the offices of the Board of

Governors not later than April 12, 1995.

A. Federal Reserve Bank of New

York (William L. Rutledge, Senior Vice

President) 33 Liberty Street, New York,

New York 10045:

1. U.S. Trust Corporation, New York,

New York; to acquire all of the voting

shares of New USTC Holding Company,

New York, New York, and New U.S.

Trust Company, New York, New York.

United States Trust Company of New

York, New York, New York, also has

applied to become a bank holding

company by acquiring New U.S. Trust

Company of New York (in organization).

New USTC Holding Company has

applied to become a bank holding

company by acquiring New U.S. Trust

Company of New York, New York, New

York; U.S.T.L.P.O. Corp., Dallas, Texas,

and thereby indirectly acquire U.S.

Trust Company of Texas, N.A., Dallas,

Texas; and U.S. Trust Company of

California, Los Angeles, California.

In connection with these applications,

New USTC Holdings Corporation has

applied to acquire certain of U.S. Trust

Corporation’s nonbanking subsidiaries

and thereby engage in through the U.S.

Trust Company of Florida Savings Bank,

Palm Beach, Florida, in the following

activities: (1) trust company, investment

and financial advisory, community

development, and savings association

operations activities, pursuant to §§

225.25(b)(3), (4), (6), and (9), of the

Board’s Regulation Y; (2) through CTMC

Holding Company and its whollyowned subsidiaries, U.S. Trust

Company of the Pacific Northwest, and

CTC Consulting, all of Portland, Oregon,

in trust company, and investment and

financial advisory activities, pursuant to

§§ 225.25(b)(3) and (4) of the Board’s

Regulation Y; (3) through Campbell,

Cowperthwait & Co., Inc., New York,

New York, in investment or financial

advice, pursuant to § 225.25(b)(4) of the

Board’s Regulation Y; (4) through U.S.

Trust Company of New Jersey and its

wholly-owned subsidiary, U.S.T.

Securities Corp., both of Princeton, New

Jersey, in trust company, investment

and financial advisory, securities

brokerage, and riskless principal

activities, pursuant to §§ 225.25(b)(3),

(4), and (15) of the Board’s Regulation

Y and by Board order (U.S. Trust

Corporation 78 Federal Reserve Bulletin

336 (1992)); and (5) through U.S. Trust

Company of Connecticut, Stamford,

Connecticut, in trust company and

investment and financial advisory

activities, pursuant to §§ 225.25(b)(3)

and (4) of the Board’s Regulation Y.

Board of Governors of the Federal Reserve

System, March 23, 1995.

Jennifer J. Johnson,

Deputy Secretary of the Board.

[FR Doc. 95–7692 Filed 3–28–95; 8:45 am]

BILLING CODE 6210–01–F

FEDERAL TRADE COMMISSION

[File No. 951–0054]

Glaxo plc; Proposed Consent

Agreement With Analysis To Aid

Public Comment

AGENCY: Federal Trade Commission.

ACTION: Proposed Consent Agreement.

SUMMARY: In settlement of alleged

violations of federal law prohibiting

unfair acts and practices and unfair

methods of competition, this consent

agreement, accepted subject to final

Commission approval, would require,

among other things, a British drug

company to divest, within nine months,

Wellcome’s worldwide research and

development assets for certain noninjectable drugs used to treat migraine

headaches, or else agree to have a

Commission-appointed trustee complete

the transaction. In addition, the consent

agreement would require Glaxo, for a

period to ten years, to obtain

Commission approval before acquiring

more than a one percent interest in any

entity involved in the clinical

development, manufacture or sale of

non-injectable migraine drugs.

DATES: Comments must be received on

or before May 30, 1995.

ADDRESSES: Comments should be

directed to: FTC/Office of the Secretary,
16140 Federal Register / Vol. 60, No. 60 / Wednesday, March 29, 1995 / Notices

Room 159, 6th St. and Pa. Ave., NW.,

Washington, DC 20580.

FOR FURTHER INFORMATION CONTACT:

Claudia Higgins or Ann Malester, FTC/

S–2224, Washington, DC 20580. (202)

326–2682.

SUPPLEMENTARY INFORMATION: Pursuant

to Section 6(f) of the Federal Trade

Commission Act, 38 Stat. 721, 15 U.S.C.

46 and section 2.34 of the Commission’s

Rules of Practice (16 CFR 2.34), notice

is hereby given that the following

consent agreement containing a consent

order to cease and desist, having been

filed with and accepted, subject to final

approval, by the Commission, has been

placed on the public record for a period

of sixty (60) days. Public comment is

invited. Such comments or views will

be considered by the Commission and

will be available for inspection and

copying at its principal office in

accordance with Section 4.9(b)(6)(ii) of

the Commission’s Rules of Practice (16

CFR 4.9(b)(6)(ii)).

Agreement Containing Consent Order

In the Matter of: Glaxo plc, a corporation.

The Federal Trade Commission

(‘‘Commission’’), having initiated an

investigation of the Acquisition of

certain stock of Wellcome plc

(‘‘Wellcome’’) by Glaxo plc (‘‘Glaxo’’),

and it now appearing that Glaxo,

hereinafter sometimes referred to as

‘‘Proposed Respondent,’’ is willing to

enter into an Agreement Containing

Consent Order to (i) divest certain

assets, (ii) cease and desist from certain

acts, and (iii) provide for certain other

relief:

It is hereby agreed by and between

Proposed Respondent, by its duly

authorized officers and its attorneys,

and counsel for the Commission that:

1. Proposed Respondent Glaxo is a

corporation organized, existing, and

doing business under and by virtue of

the laws of England, with its principal

place of business located at

Landsdowne House, Berkeley Square,

London W1X 6BQ, England.

2. Proposed Respondent admits all the

jurisdictional facts set forth in the draft

of complaint here attached.

3. Proposed Respondent waives:

(a) Any further procedural steps;

(b) The requirement that the

Commission’s decision contain a

statement of findings of fact and

conclusions of law;

(c) All rights to seek judicial review

or otherwise to challenge or contest the

validity of the Order entered pursuant to

this Agreement; and

(d) Any claim under the Equal Access

to Justice Act.

4. This Agreement shall not become

part of the public record of the

proceeding unless and until it is

accepted by the Commission. If this

Agreement is accepted by the

Commission it, together with the draft of

complaint contemplated thereby, will be

placed on the public record for a period

of sixty (60) days and information in

respect thereto publicly released. The

Commission thereafter may either

withdraw its acceptance of this

Agreement and so notify Proposed

Respondent, in which event it will take

such action as it may consider

appropriate, or issue and serve its

complaint (in such form as the

circumstances may require) and

decision, in disposition of the

proceeding.

5. This Agreement is for settlement

purposes only and does not constitute

an admission by Proposed Respondent

that the law has been violated as alleged

in the draft of complaint here attached,

or that the facts as alleged in the draft

complaint, other than jurisdictional

facts, are true.

6. This Agreement contemplates that,

if it is accepted by the Commission, and

if such acceptance is not subsequently

withdrawn by the Commission pursuant

to the provisions of Section 2.34 of the

Commission’s Rules, the Commission

may, without further notice to Proposed

Respondent, (1) issue its complaint

corresponding in form and substance

with the draft of complaint here

attached and its decision containing the

following Order to divest and to cease

and desist in disposition of the

proceeding, and (2) make information

public with respect thereto. When so

entered, the Order shall have the same

force and effect and may be altered,

modified, or set aside in the same

manner and within the same time

provided by statute for other orders. The

Order shall become final upon service.

Delivery by the United States Postal

Service of the complaint and decision

containing the agreed-to Order to

Proposed Respondent’s counsel, Charles

E. Koob, Esquire, of Simpson, Thacher

& Bartlett at 425 Lexington Avenue,

New York, New York 10017–3954, shall

constitute service. Proposed Respondent

waives any right it may have to any

other manner of service. The complaint

may be used in construing the terms of

the Order, and no agreement,

understanding, representation, or

interpretation not contained in the

Order or the Agreement may be used to

vary or contradict the terms of the

Order.

7. Proposed Respondent has read the

proposed Complaint and Order

contemplated hereby. Proposed

Respondent understands that once the

Order has been issued, it will be

required to file one or more compliance

reports showing it has fully complied

with the Order. Proposed Respondent

further understands that it may be liable

for civil penalties in the amount

provided by law for each violation of

the Order after it becomes final.

Order

I

It is ordered that, as used in this

Order, the following definitions shall

apply:

A. ‘‘Respondent’’ or ‘‘Glaxo’’ means

Glaxo plc, its directors, officers,

employees, agents and representatives,

successors and assigns; its subsidiaries,

divisions, groups and affiliates

controlled by Glaxo plc; and the

respective directors, officers, employees,

agents and representatives, and the

respective successors and assigns of

each.

B. ‘‘Wellcome’’ means Wellcome plc,

its directors, officers, employees, agents

and representatives, successors and

assigns; its subsidiaries, divisions,

groups and affiliates controlled by

Wellcome plc; and the respective

directors, officers, employees, agents

and representatives, and the respective

successors and assigns of each.

C. ‘‘Commission’’ means the Federal

Trade Commission.

D. ‘‘Acquisition’’ means the

acquisition by Glaxo of the capital stock

of Wellcome pursuant to an offer

announced on January 23, 1995.

E. ‘‘Sumatriptan’’ means the

compound with the formula 3-[2-

(Dimethylamino)ethyl]-N-methylindole5-methanosulfonamide and/or or the

butanedioate (I:I) salt thereof [i.e. the

‘‘succinate’’] in respect of its therapeutic

indication for the treatment of the

disease migraine.

F. ‘‘311C90’’ means the compound

with the formula (S)-4-[[3-2-

(dimethylamino)ethyl]-]H-indol-5-

yl]methyl]-2-oxazolidinone and/or a

pharmaceutically acceptable salt thereof

in respect of its therapeutic indication

for the treatment of the disease

migraine.

G. ‘‘Wellcome’s 311C90 Assets’’

means Wellcome’s worldwide assets

relating to the worldwide research and

development, manufacture, distribution

and sale of 311C90 that are not part of

Wellcome’s physical facilities.

‘‘Wellcome’s 311C90 Assets’’ include,

but are not limited to, all formulations,

patents, trade secrets, technology, knowhow, specifications, designs, drawings,

processes, production information,

manufacturing information, testing and

quality control data, research materials,

technical information, distribution
Federal Register / Vol. 60, No. 60 / Wednesday, March 29, 1995 / Notices 16141

information, customer lists, information

stored on management information

systems (and specifications sufficient

for the Acquirer to use such

information), software used in

connection with Wellcome’s 311C90,

inventory sufficient for the Acquirer to

complete all clinical trials or

bioequivalency studies necessary to

obtain United States Food and Drug

Administration (‘‘FDA’’) approvals and

all data, contractual rights, materials

and information relating to obtaining

FDA approvals and other government or

regulatory approvals for the United

States or other countries for Wellcome’s

311C90.

H. ‘‘Glaxo’s Sumatriptan Assets’’

means Glaxo’s worldwide assets relating

to the worldwide research and

development, manufacture, distribution

and sale of Glaxo’s Sumatriptan that are

not part of Glaxo’s physical facilities.

‘‘Glaxo’s Sumatriptan Assets’’ include,

but are not limited, to all formulations,

patents, trade secrets, technology, knowhow, specifications, designs, drawings,

processes, production information,

manufacturing information, testing and

quality control data, research materials,

technical information, distribution

information, customer lists, information

stored on management information

systems (and specifications sufficient

for the Acquirer to use such

information), software used in

connection with Glaxo’s Sumatriptan,

inventory sufficient for the Acquirer to

complete all clinical trials or

bioequivalency studies necessary to

obtain FDA approvals and all data,

contractual rights, materials and

information relating to obtaining FDA

approvals and other government or

regulatory approvals for the United

States or other countries for Glaxo’s

Sumatriptan.

I. ‘‘Alternative Assets to be Divested’’

means Wellcome’s 311C90 Assets or

Glaxo’s Sumatriptan Assets at the

discretion of the trustee to be appointed

pursuant to Paragraph IV. of this Order.

J. ‘‘Acquirer’’ means the entity to

whom Glaxo shall divest either

Wellcome’s 311C90 Assets or Glaxo’s

Sumatriptan Assets pursuant to this

Order.

K. ‘‘Non-injectable 5HT1D agonists’’

means any 5HT1D agonist medicine

formulation intended for the treatment

of the disease migraine to be

administered to patients by any method

other than subcutaneous, intramuscular

or intravenous injection.

II

It is further ordered that:

A. Respondent shall divest, absolutely

and in good faith, within nine (9)

months of the date this Order becomes

final Wellcome’s 311C90 Assets.

B. Respondent shall divest

Wellcome’s 311C90 Assets only to an

Acquirer that receives the prior

approval of the Commission and only in

a manner that receives the prior

approval of the Commission. The

purpose of the divestiture of Wellcome’s

311C90 Assets is to ensure continued

research and development of

Wellcome’s 311C90, in the same manner

in which Wellcome’s 311C90 would be

researched and developed absent the

proposed Acquisition, and to remedy

the lessening of competition resulting

from the proposed Acquisition as

alleged in the Commission’s Complaint.

C. The time period for divestiture

pursuant to this Paragraph II. of this

Order shall be tolled if and when

Respondent:

1. Provides to the Commission

objective evidence, including, but not

limited to, results of clinical trials,

indicating that, based on 311C90’s

medical profile, and through no fault of

Respondent, Wellcome’s 311C90 Assets

are not viable or marketable; and

2. Petitions the Commission to modify

this Order, pursuant to section 5(b) of

the FTC Act and Section 2.51 of the

Commission’s Rules of Practice, based

on the circumstances described in

Subparagraph II.C.1 of this Order.

This tolling of the time period for

divestiture shall end when the

Commission rules on Respondent’s

petition to modify this Order.

III

It is further ordered that:

A. Within forty-five (45) days of the

date this Order becomes final, the

Commission shall appoint a trustee to

ensure that Glaxo expeditiously

performs its responsibilities required by

this Order. Glaxo shall consent to the

following terms and conditions

regarding the trustee’s powers, duties,

authorities, and responsibilities:

1. The Commission shall select the

trustee, subject to the consent of

Respondent which consent shall not be

unreasonably withheld. If Respondent

has not opposed, in writing, including

the reasons for opposing, the selection

of any proposed trustee with ten (10)

days after notice by the staff of the

Commission to Respondent of the

identity of any proposed trustee,

Respondent shall be deemed to have

consented to the selection of the

proposed trustee.

2. Within ten (10) days after the

appointment of the trustee, Glaxo shall

execute a trust agreement that, subject to

the prior approval of the Commission,

confers on the trustee all the rights and

powers necessary to permit the trustee

to assure Glaxo’s compliance with the

terms of this Order. As part of the

trustee agreement, the trustee shall

execute confidentiality agreement(s)

with Glaxo.

3. The trustee shall serve until either

(a) the Acquirer has filed with the FDA

for approval to manufacture and sell a

product based on Wellcome’s 311C90

Assets (or Glaxo’s Sumatriptan Assets, if

Glaxo’s Sumatriptan Assets are divested

to the Acquirer pursuant to Paragraph

IV.A. of this Order); (b) the trustee

determines that the Acquirer has

abandoned its efforts to obtain FDA

approval to manufacture and sell a

product based upon Wellcome’s 311C90

Assets (or Glaxo’s Sumatriptan Assets, if

Glaxo’s Sumatriptan Assets are divested

to the Acquirer pursuant to Paragraph

IV.A. of this Order); or (c) the trustee

determines that the Acquirer has failed

to exercise reasonable diligence in

research and development toward

obtaining FDA approval to manufacture

and sell a product based upon

Wellcome’s 311C90 Assets (or Glaxo’s

Sumatriptan Assets, if Glaxo’s

Sumatriptan Assets are divested to the

Acquirer pursuant to Paragraph IV.A. of

this Order), which lack of diligence will

have been certified to and accepted by

the Commission, whichever comes first.

The trustee’s service shall continue for

no more than two (2) years following

divestiture of Wellcome’s 311C90 Assets

or the Alternative Assets to be Divested.

4. The trustee shall have full and

complete access to the personnel, books,

records, facilities and technical

information related to Wellcome’s

311C90 Assets and Glaxo’s Sumatriptan

Assets or to any other relevant

information as the trustee may

reasonably request, including but not

limited to all records kept in the normal

course of business that relate to the

research and development of, and the

cost of manufacturing, Wellcome’s

311C90 and Glaxo’s Sumatriptan.

Respondent shall develop such financial

or other information as the trustee may

request and shall cooperate with the

trustee. Respondent shall take no action

to interfere with or impede the trustee’s

accomplishment of his or her

responsibilities pursuant to this Order.

5. The trustee shall serve, without

bond or other security, at the cost and

expense of Respondent, on such

reasonable and customary terms and

conditions as the Commission may set.

The trustee shall have authority to

employ, at the cost and expense of

Respondent, such consultants,

accountants, attorneys and other

representatives and assistants as are

reasonably necessary to carry out the
16142 Federal Register / Vol. 60, No. 60 / Wednesday, March 29, 1995 / Notices

trustee’s duties and responsibilities. The

trustee shall account for all expenses

incurred. The Commission shall

approve the account of the trustee,

including fees for his or her services.

6. Respondent shall indemnify the

trustee and hold the trustee harmless

against any losses, claims, damages,

liabilities, or expenses arising out of, or

in connection with, the performance of

the trustee’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

liabilities, losses, damages, claims or

expenses result from misfeasance, gross

negligence, willful or wanton acts, or

bad faith by the trustee.

7. If the trustee ceases to act or fails

to act diligently a substitute trustee shall

be appointed in the same manner as

provided in Paragraph III.A. of this

Order.

8. The Commission may on its own

initiative or at the request of the trustee

issue such additional orders or

directions as may be necessary or

appropriate to accomplish the

requirements of this Order.

9. The trustee shall report in writing

to Respondent and the Commission

every one hundred and eighty (180)

days concerning the trustee’s obligation

pursuant to this Paragraph III.

B. Respondent shall comply with all

reasonable directives of the trustee

regarding Respondent’s obligations to

comply with this Order.

C. The trustee may require Glaxo to

manufacture Wellcome’s 311C90 (or

Sumatriptan, if Glaxo’s Sumatriptan

Assets are divested to the Acquirer

pursuant to Paragraph IV.A. of this

Order) for use by the Acquirer in

conducting clinical trials or

bioequivalency studies if:

1. The Acquirer has depleted its

inventory of 311C90 (or Sumatriptan, if

Glaxo’s Sumatriptan Assets are divested

to the Acquirer pursuant to Paragraph

IV.A. of this Order) acquired pursuant to

the divestiture;

2. The Acquirer has a need to conduct

further clinical development trials or

bioequivalency studies prior to

submission of an application to the FDA

to manufacture and sell a product based

on Wellcome’s 311C90 Assets (or

Glaxo’s Sumatriptan Assets, if Glaxo’s

Sumatripan Assets are divested to the

Acquirer pursuant to Paragraph IV.A. of

this Order); and

3. Despite good faith support to

establish its own manufacturing

capability for 311C90 (or Sumatripan, if

Galaxo’s Sumatriptan Assets are

divested to the Acquirer pursuant to

Paragraph IV.A. of this Order), the

Acquirer has not succeeded in doing so

as of the time 311C90 (or Sumatripan,

if Galaxo’s Sumatriptan Assets are

divested to the Acquirer pursuant to

Paragraph IV.A. of this Order) is needed

for such clinical trials or bioequivalency

studies. The trustee shall determine

reasonable compensation for Glaxo,

based upon the costs of manufacture, for

such production.

IV

It is further ordered that:

A. If Glaxo has not divested,

absolutely and in good faith and with

the Commission’s prior approval,

Wellcome’s 311C90 Assets within the

time required by Paragraphs II.A. and

II.C. of this Order, the Commission may

direct the trustee appointed pursuant to

Paragraph III. of this Order to divest the

Alternative Assets to be Divested.

Neither the decision of the Commission

to direct the trustee nor the decision of

the Commission not to direct the trustee

to divest the Alternative Assets to be

Divested shall preclude the Commission

or the Attorney General from seeking

civil penalties or any other relief

available to it, including a courtappointed trustee, pursuant to section

5(l) of the Federal Trade Commission

Act, or any other statute enforced by the

Commission, for any failure by the

Respondent to comply with this Order.

B. If the trustee is directed under

Subparagraph A. of this Paragraph to

divest the Alternative Assets to be

Divested, Respondent shall consent to

the following terms and conditions

regarding the trustee’s powers, duties,

authority, and responsibilities:

1. The Commission shall extend the

authority and responsibilities of the

trustee appointed under Paragraph III. of

this Order to include divesting the

Alternative Assets to be Divested.

2. Subject to the prior approval of the

Commission, the trustee shall have the

exclusive power and authority to divest

the Alternative Assets to be Divested.

3. Within ten (10) days after the

extension of the trustee’s authority and

responsibilities, Respondent shall

amend the existing trust agreement in a

manner that, subject to the prior

approval of the Commission and, in the

case of a court-appointed trustee, of the

court, transfers to the trustee all rights

and powers necessary to permit the

trustee to effect the divestiture required

by this Order.

4. The trustee shall have twelve (12)

months from the date the Commission

approves the extension of the trustee’s

authorities and responsibilities as

described in Paragraph IV.B.3. to

accomplish the divestiture, which shall

be subject to the prior approval of the

Commission. If, however, at the end of

the twelve month period, the trustee has

submitted a plan of divestiture or

believes that divestiture can be achieved

within a reasonable time, the divestiture

period may be extended by the

Commission, or, in the case of a courtappointed trustee, by the court;

provided, however, the Commission

may extend this period only two (2)

times.

5. The trustee shall have full and

complete access to the personnel books,

records, facilities and technical

information related to Wellcome’s

311C90 Assets and Glaxo’s Sumatriptan

Assets, or to any other relevant

information, as the trustee may

reasonable request, including but not

limited to all records kept in the normal

course of business that relate to research

and development of, and the cost of

manufacturing, Wellcome’s 311C90 and

Glaxo’s Sumatriptan. Respondent shall

develop such financial or other

information as the trustee may request

and shall cooperate with the trustee.

Respondent shall take no action to

interfere with or impede the trustee’s

accomplishment of the divestiture. Any

delays in divestiture caused by

Respondent 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 trustee, by the court.

6. The trustee shall serve, without

bond or other security, at the cost and

expense of Respondent, on such

reasonable and customary terms and

conditions as the Commission may set.

The trustee shall have authority to

employ, at the cost and expense of

Respondent, such consultants,

accountants, attorneys and other

representatives and assistants as are

reasonably necessary to carry out the

trustee’s duties and responsibilities. The

trustee shall account for all monies

derived from the sale and all expenses

incurred. After approval by the

Commission and, in the case of a courtappointed trustee, by the court, of the

account of the trustee, including fees for

his or her services, all remaining monies

shall be paid at the direction of the

Respondent. The trustee’s compensation

shall be based at least in significant part

on a commission arrangement

contingent on the trustee’s divesting the

Alternative Assets to be Divested.

7. Respondent shall indemnify the

trustee and hold the trustee harmless

against any losses, claims, damages,

liabilities, or expenses arising out of, or

in connection with, the performance of

the trustee’s duties, including all

reasonable fees of counsel and other
Federal Register / Vol. 60, No. 60 / Wednesday, March 29, 1995 / Notices 16143

expenses incurred in connection with

the preparations for, or defense of, any

claim whether or not resulting in any

liability, except of the extent that such

liabilities, losses, damages, claims or

expenses result from misfeasance, gross

negligence, willful or wanton acts, or

bad faith by the trustee.

8. If the trustee ceases to act or fails

to act diligently, a substitute trustee

shall be appointed in the same manner

as provided in Paragraph III.A. of this

Order.

9. The Commission or, in the case of

a court-appointed trustee, the court may

on its own initiative or at the request of

the trustee issue such additional orders

or directions as may be necessary or

appropriate to accomplish the

divestiture required by this Order.

10. The trustee shall report in writing

to Respondent and the Commission

every sixty (60) days concerning the

trustee’s efforts to accomplish

divestiture.

11. If a divestiture application filed

pursuant to this Paragraph IV. is

pending before the Commission, and

Respondent petitions the Commission to

modify this Order based on the

conditions in Paragraph II.C., then the

Commission shall not approve the

divestiture application until it rules on

the petition to modify.

V

It is further ordered that:

A. Upon reasonable notice and

request from the Acquirer to Glaxo,

Glaxo shall provide information,

technical assistance and advice to the

Acquirer with respect to Wellcome’s

311C90 Assets (or Glaxo’s Sumatriptan

Assets, if Glaxo’s Sumatriptan Assets

are divested to the Acquirer pursuant to

Paragraph IV.A. of this Order) such that

the Acquirer will be capable of

continuing the current research and

development. Such assistance shall

include reasonable consultation with

knowledgeable employees of Glaxo and

training at the Acquirer’s facility for a

period of time sufficient to satisfy the

Acquirer’s management that its

personnel are adequately knowledgeable

about Wellcome’s 311C90 Assets (or

Glaxo’s Sumatriptan Assets, if Glaxo’s

Sumatriptan Assets are divested to the

Acquirer pursuant to Paragraph IV.A. of

this Order). However, Respondent shall

not be required to continue providing

such assistance for more than twelve

(12) months after divestiture of

Wellcome’s 311C90 Assets or the

Alternative Assets to be Divested.

Respondent may require reimbursement

from the Acquirer for all of its own

direct costs incurred in providing the

services required by this Subparagraph

V.A. Direct costs, as used in this

Subparagraph V.A., means all actual

costs incurred exclusive of overhead

costs.

B. Pending divestiture of Wellcome’s

311C90 Assets pursuant to Paragraph II.

of this Order or the Alternative Assets

to be Divested pursuant to Paragraph IV.

of this Order, Respondent shall:

1. Take such actions as are necessary

to prevent the destruction, removal,

wasting, deterioration or impairment of

Wellcome’s 311C90 Assets and Glaxo’s

Sumatriptan Assets, except for ordinary

wear and tear; and

2. Maintain research and development

of Wellcome’s 311C90 Assets and

Glaxo’s Sumatriptan Assets at the levels

planned by Wellcome for 311C90 and

Glaxo for Sumatriptan as of January 1,

1995.

C. Glaxo shall maintain physical

assets necessary to manufacture

Wellcome’s 311C90 and Glaxo

Sumatriptan until the Acquirer has filed

with the FDA for approval to

manufacture and sell a product based

upon Wellcome’s 311C90 Assets (or

Glaxo’s Sumatriptan Assets, if Glaxo’s

Sumatriptan Assets are divested

pursuant to Paragraph IV.A. of this

Order). The maintenance of physical

assets described in this Subparagraph

shall not exceed two (2) years following

divestitute of Wellcome’s 311C90 Assets

or the Alternative Assets to be Divested.

Provided however, that Glaxo shall be

allowed to discontinue maintenance of

the physical assets necessary to

manufacture Glaxo’s Sumatriptan if

Glaxo divests Wellcome’s 311C90

Assets pursuant to this Order.

VI

It is further ordered that, for a period

of ten (10) years from the date this Order

becomes final, Respondent shall not

without the prior approval of the

Commission, directly or indirectly,

through subsidiaries, partnerships, or

otherwise:

A. Acquire more than 1% of the stock,

share capital, equity, or other interest in

any concern, corporate or noncorporate,

engaged in at the time of such

acquisition, or within the two years

preceding such acquisition engaged in,

(1) the clinical development of noninjectable 5HT1D agonists for approval

by the FDA for the treatment of

migraines or (2) the manufacture and

sale of non-injectable 5HT1D agonists for

approval by the FDA for the treatment

of migraines; or

B. Acquire any assets currently used

for or previously used for (and still

suitable for use for) (1) the clinical

development of non-injectable 5HT1D

agonists approved by the FDA for the

treatment of migraines or (2) the

manufacture and sale of noninjectable

5HT1D agonists approved by the FDA for

the treatment of migraines.

Provided, however, that this

Paragraph VI. shall not apply to the

acquisition of products or services in

the ordinary course of business.

VII

It is further ordered that:

A. Within sixty (60) days after the

date this Order becomes final and every

sixty days (60) days thereafter until

Respondent has fully complied with the

provisions of Paragraphs II., III., IV.,

V.A. and V.B. of this Order, Respondent

shall submit to the Commission a

verified written report setting forth in

detail the manner and form in which it

intends to comply, is complying, and

has complied with Paragraphs II., III.,

IV. and V. of this Order. Respondent

shall include in its compliance reports,

among other things that are required

from time to time, a full description of

the efforts being made to comply with

Paragraphs II., III., IV. and V. of this

Order, including a description of all

substantive contacts or negotiations for

accomplishing the divestiture and the

identity of all parties contacted.

Respondent shall include in its

compliance reports copies of all written

communications to and from such

parties, all internal memoranda, and all

reports and recommendations

concerning divestiture.

B. One (1) year from the date this

Order becomes final, annually for the

next nine (9) years on the anniversary of

the date this Order becomes final, and

at other times as the Commission may

require, Respondent shall file a verified

written report with the Commission

setting forth in detail the manner and

form in which it has complied and is

complying with this Order.

VIII

It is further ordered that, for the

purpose of determining or securing

compliance with this Order, Respondent

shall permit any duly authorized

representatives of the Commission:

A. Access, during office hours and in

the presence of counsel, to inspect and

copy all books, ledgers, accounts,

correspondence, memoranda and other

records and documents in the

possession or under the control or

Respondent, relating to any matters

contained in this Order; and

B. Upon five (5) days’ notice to

Respondent, and without restraint or

interference from Respondent, to

interview officers, directors, or

employees of Respondent, who may
16144 Federal Register / Vol. 60, No. 60 / Wednesday, March 29, 1995 / Notices

1 Glaxo’s Sumatriptan, marketed under the brand

name Imitrex, is currently on the market in the

U.S. to treat patients with migraine attacks. It is

available in the U.S. only in injectable form.

have counsel present regarding such

matters.

IX

It is further ordered that Respondent

shall notify the Commission at least

thirty (30) days prior to any proposed

change in Respondent such as

dissolution, assignment, sale resulting

in the emergence of a successor, or the

creation or dissolution of subsidiaries,

or any other change that may affect

compliance obligations arising out of

this Order.

Analysis of Proposed Consent Order To

Aid Public Comment

The Federal Trade Commission

(‘‘Commission’’) has accepted

provisionally an agreement containing a

proposed Consent Order from Glaxo plc

(‘‘Glaxo’’) under which Glaxo would be

required to divest worldwide assets

relating to the research and

development, manufacture, distribution

and sale of a therapeutic compound for

the treatment of migraine headaches

(‘‘Wellcome’s 311C90 Assets’’) to a

Commission-approved purchaser.

The proposed Consent Order has been

placed on the public record for sixty

(60) days for reception of comments by

interested persons. Comments received

during this period will become part of

the public record. After sixty (60) days,

the Commission will again review the

agreement and the comments received

and will decide whether it should

withdraw from the agreement or make

final the agreement’s proposed Order.

Pursuant to an offer announced on

January 23, 1995, Glaxo, a British

company, will acquire all of the capital

stock of Wellcome plc (‘‘Wellcome’’), a

British company.

The proposed complaint alleges that

the proposed acquisition, if

consummated, would constitute a

violation of Section 7 of the Clayton

Act, as amended, 15 U.S.C. 18, and

Section 5 of the FTC Act, as amended,

15 U.S.C. 45, in the market for the

research and development of noninjectable 5HT1D agonists. 5HT1D

agonists are a specific class of drugs

known to act on receptors in the human

body that are responsible for migraine

attacks.

The proposed consent order would

remedy the alleged violation by

replacing the lost competition that

would result from the acquisition.

Under the proposed Consent Order,

Glaxo is required to provide technical

assistance and advice to assist the

purchaser of Wellcome’s 311C90 Assets

in obtaining FDA approval to

manufacture and sell non-injectable

5HT1D agonists. The proposed Order

also provides for a trustee to assure that

Glaxo appropriately divests the

Wellcome 311C90 Assets. If Glaxo fails

to divest the Wellcome 311C90 Assets

within nine months, then the trustee’s

authority may be extended to include

responsibility to divest either

Wellcome’s 311C90 Assets or Glaxo’s

Sumatriptan Assets.1 The potential that

the trustee could ultimately divest

Sumatriptan, a highly-valued product

already on the market to treat migraine,

ensures that Glaxo will exert all possible

efforts to divest Wellcome’s 311C90

Assets.

Under the provisions of the order,

Glaxo is also required to provide to the

Commission a report of compliance

with the divestiture provisions of the

order within sixty (60) days following

the date this order becomes final, and

every sixty (60) days thereafter until

Glaxo has completely divested its

interest in Wellcome’s 311C90 Assets.

The proposed Consent Order will also

prohibit Glaxo, for a period of ten (10)

years, from acquiring more than a one

percent interest in any entity involved

in, or any assets used for, the clinical

development or manufacture and sale of

non-injectable 5HT1D agonists either to

be approved by or already approved by

the Food and Drug Administration

(‘‘FDA’’) for the treatment of migraines.

One year from the date the Order

becomes final and annually thereafter

for nine (9) years, Glaxo will be required

to provide to the Commission a report

of its compliance with the Consent

Order. The Consent Order also requires

Glaxo to notify the Commission at least

thirty (30) days prior to any change in

the structure of Glaxo resulting in the

emergence of a successor.

The purpose of this analysis is to

facilitate public comment on the

proposed Order, and it not intended to

constitute an official interpretation of

the agreement and proposed Order or to

modify in any way their terms.

Donald S. Clark,

Secretary.

[FR Doc. 95–7630 Filed 3–28–95; 8:45 am]

BILLING CODE 6750–01–M

[Filed No. 911 0095]

La Asociacion Medica de Puerto Rico,

et al.; Proposed Consent Agreement

With Analysis to Aid Public Comment

AGENCY: Federal Trade Commission.

ACTION: Proposed Consent Agreement.

SUMMARY: In settlement of alleged

violations of federal law prohibiting

unfair acts and practices and unfair

methods of competition, this consent

agreement, accepted subject to final

Commission approval, would prohibit,

among other things, the Medical

Association, the Physiatry Section, and

the two doctors from encouraging,

organizing or entering into: any boycott

or refusal to deal with any third-party

payer; or any agreement to refuse to

provide services to patients covered by

any third-party payer. In addition, the

consent agreement would prohibit, for

five years, the respondents from

soliciting information from physiatrists

regarding their decisions whether to

participate in agreements with insurers

and provide service; from passing such

information along to other doctors; and

from giving physiatrists advice about

making those decisions.

DATES: Comments must be received on

or before May 30, 1995.

ADDRESSES: Comments should be

directed to: FTC/Office of the Secretary,

Room 159, 6th St. and Pa. Ave., NW.,

Washington, DC 20580.

FOR FURTHER INFORMATION CONTACT:

Alan Loughnan or Alice Au, New York

Regional Office, Federal Trade

Commission, 150 William St., Suite

1300, New York, N.Y. 10038. (212) 264–

1207.

SUPPLEMENTARY INFORMATION: Pursuant

to Section 6(f) of the Federal Trade

Commission Act, 38 Stat. 721, 15 U.S.C.

46 and Section 2.34 of the Commission’s

Rules of Practice (16 CFR 2.34), notice

is hereby given that the following

consent agreement containing a consent

order to cease and desist, having been

filed with and accepted, subject to final

approval, by the Commission, has been

placed on the public record for a period

of sixty (60) days. Public comment is

invited. Such comments or views will

be considered by the Commission and

will be available for inspection and

copying at its principal office in

accordance with § 4.9(b)(6)(ii) of the

Commission’s Rules of Practice (16 CFR

4.9(b)(6)(ii)).

Agreement Containing Consent Order

To Cease and Desist

In the Matter of : La Asociacio ́ Me ́dica de

Puerto Rico, an unincorporated association,

La Seccio ́n de Fisiatrı ́a de La Asociacio ́n

Me ́dica de Puerto Rico, an unincorporated

association, Rafael L. Oms, M.D.,

individually and as an officer of La Seccio ́n

de Fisiatrı ́a de la Asociacio ́n Me ́dica de

Puerto Rico, and Rafael E. Seı ́n, M.D.,

individually and as an officer of La Seccio ́n

de Fisiatrı ́a de la Asociacio ́n Me ́dica de

Puerto Rico.