Oerlikon-Buhrle Holding Ag

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IN THE MA TIER OF OERLIKON-BUHRLE HOLDING AG MODIFYING ORDER IN REGARD TO ALLEGED VIOLA non OF SEe. 7 OF THE CLA YTON ACT A'ID SEe. 5 OF THE FEDERAL TRADE COMMISSION ACT , Sept. , 1997 Docket 3555. Consent Order, Feb. 1995--ModiD'lIg Order This order reopens a 1995 consent order -- involving Oerlikon-Buhrle s acquisition of Ley bold AG -- and modifies the consent order by substitutig a prior notice provision for the prior approval provision of the consent order. ORDER REOPENING A0!D MODIFYING ORDER On May 12, 1997, Oerlikon-Buhrle Holding AG (" Oerlikon ), the respondent named in thc consent ordcr issued by the Commission on February 1 , 1995 , in Docket 1\0. C-3555 ("order ), fied its Petition To Reopen and Modify Consent Order ("Petition ) in this matter. Oerlikon asks that the Commission reopen and modify the order pursuant to Section 5(b) of the Federal Trade Commission Act, 15 c. 45(b), and Section 2. 51 of the Commission s Rules of Practice, 16 CFR 2. , and consistent with the Statement of the Federal Trade Commission Concerning Prior Approval and Prior Notice Provisions, issued June 21 , 1995 ("Prior Approval Policy l to eliminate the requircment that Oerlikon obtain theStatement prior approval of the Commission before acquiring certain assets or interests relating to the manufacture and sale of compact disc s Petitionmetallizer machines or turbomolecular pumps. Oerlikon was on the public record for thirty days until May 14, 1997, and no the prior approvalcomments were received. As discussed below, requirement of paragraph VII of the order is set asidc and a limited prior notice provision is substituted in paragraph VII. The Commission, in its Prior Approval Policy Statement concludcd that a general policy of requiring prior approval is no longer needed, citing the availability of thc premerger notification and waiting period requirements of Section 7 A of the Clayton Act 15 commonly referred to as the Hart-Scott-Rodino ("HSR") Act, c. l8a, to protect the public interest in effective merger law enforcement. Prior approval or prior notice may be appropriatc in the a public interest in certain limitcd circumstances. For example, narrow prior approval provision may be appropriate "where there is 1 60 Fed. Reg. 39,745-47 (Aug. 3, 1995); 4 Trade Reg. Rep. (CCl-) 241 OERLIKON-BUHRLE HOLDING AG 247 246 Modifying Order a credible risk that a company that engaged or attempted to engage in an anti competitive merger would, but for the provision, attempt the same or approximately the same merger " and "a narrow prior notification provision may be used where there is a credible risk that a company that engaged or attcmptcd to engage in an anti competitive merger would, but for an order, engage in an otherwise unreportable anticompctitive merger. !d. at 3. The need for prior approval or prior notice wil depend on circumstances such as the structural characteristics of the relevant markets, the size and other characteristics of the market participants, and other relevant factors. When a petition is filed to reopen and modify an order pursuant to thc Prior Approval Policy Statement, the rebuttable presumption is that the public interest requires reopening the order and modifying it consistent with the announced policy. Sctting aside the prior approval requirement in the ordcr would be consistent with the announced policy. Characteristics of the markets identified in the complaint and order suggest, however, that a limited prior notice provision would be appropriate. The markets identificd in the complaint remain concentrated, and an acquisition by Oerlikon of a significant competitor in one of the markets may not be rcportable under the Hart-Scott-Rodino Act. A prior notice requircment would cnsure the opportunity to review any such transactions. Therefore consistent with the Prior Approval Policy Statement, paragraph VII of the order should be modified to substitute a prior notification provision for the prior approval provision. Accordingly, It is ordered That this matter be, and it hereby is reopened; and It is further ordered That paragraph VII of thc ordcr be, and it hereby is, modified as of the effective date of this order as follows: VII.

It is fill-ther ordered That, for a period of tcn (10) years from the date this order becomes final, Oerlikon Buhrle shall not, without prior notification to the Commission, directly or indirectly, through subsidiaries, partnerships, or otherwise: A. Acquire any of the stock, share capital, equity or other interest in any concern, corporate or non-corporate, engaged in at the time of such acquisition, or within the two years preceding such acquisition thc manufacture ofturbomolccular pumps;

Modifying Order 124 FTC. B. Acquire any assets used for or previously used for (and still suitable for use for) the manufacture, distribution, or sale of turbomolecular pumps;

C. Acquire any of the stock, share capital, equity or other interest in any concern, corporate or non-corporate, engaged in at the time of such acquisition, or within the two years preceding such acquisition the manufacture of compact disc meta11zers; or D. Acquire any assets used for or previously used for (and stil suitable for use for) the manufacture, distribution, or sale of compact disc metallizers.

Provided, however, that this paragraph VII shall not apply to the acquisition of products or services in the ordinary course of business or of any non-exclusive license to any patent or other form of intellectual propert (excluding assets of the Leybold Compact Disc Business and Balzers-Pfeiffer).

The prior notifications required by this paragraph VII shall be given on the Notification and Report Form set forth in thc Appendix to Part 803 of Title 16 of thc Code of Federal Regulations, as amended (hereinafter referred to as "the Notification ), and shall be prepared and transmitted in accordance with the requirements of that Part, except that no filing fee shall be required for any such notification, notification shan be filed with the Secretary of the Commission, notification need not be made to the United States Department of Justice, and notification is required only of respondent and not of any other party to the transaction. Respondent shall provide the Notification to the Commission at least thirty days prior to consumating any such 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, respondent shall not consummatc the transaction until twenty days after substantially complying with such request for additional information. Early termination of the waiting periods in this paragraph may be requested and, where appropriate granted by letter from the Bureau of Competition. Notwithstanding, prior notification shan not be required by this paragraph for a transaction for which notification is required to be made and has been made pursuant to Section 7A of the Clayton Act, 15 U.sc. 18a. EXXON CORPORATION 249 249 Complain!