Insilco Corporation

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IN THE MA TTER OF INSILCO CORPORATION CONSENT ORDER, ETe., IN REGARD TO ALLEGED VIOLATION OF SEC. 7 OF THE CLAYTON ACT AND SEe. 5 OF THE FEDERAL TRADE COMMISSION ACT Docket C-3783. Complaint, Jan. 1998--Decision, Jan. 1998 This consent order requires, among other things, the Ohio-based company to divest two of the Helima alumnum tube mills and associated assets to a Commssionapproved buyer and prohibits the respondent from obtaining or providing the tye of sensitive information -- such as price and cost infonntion, pricing plans, strategies or policies relating to competition -- to others that it obtained before consumating the acquisition of Helima. Appearances For the Commission: Casey Triggs, Nicholas Koberstein Katherine Funk, Ann Malester and Wiliam Baer. For the respondent: Linda R. Blumkin, Fried, Frank, Harris Shriver Jacobson New York, N.

COMPLAINT The Federal Trade Commission ("Commission ), having reason to believe that respondent Insilco Corporation ("Insilco ), a corporation subject to the jurisdiction of the Federal Trade Commission, has acquired certain assets of Helmut Lingemann Gmbh Lingemann ) in violation of Section 7 of the Clayton Act as amended, 15 U.S. C. 18 , and Section 5 of the Federal Trade Commission Act ("FTC Act"), 15 D. C. 45; and it appearing to the Commission that a proceeding in respect thereof would be in the public interest, hereby issues its complaint, stating its charges as follows:

L DEFIC'ITIONS For purposes of this complaint the following definitions apply: 1. " Welded Aluminum Tubes, including welded aluminum tubes with diameters of 50 millimeters or greater ("Large Welded Aluminum Tubes ) and welded aluminum tubes with diameters less than 50 millimeters ("Small Welded Aluminum Tubes ), means thin wall welded-seam aluminum tubes used in the manufacture of heat Complaint 125 FTC. exchangers, which are devices that transfer heat from one fluid or gas to another medium, generally air 2. "Non-Aggregated, Customer-Specifc Information means information about a product' s cost and/or price that is in such a form that the cost and/or price of a product for an identifiable individual customer can be identified.

II. THE RESPONDENT 3. Respondent Insilco is a corporation organized, existing, and doing business under and by virtue of the laws of the State of Delaware, with its principal place of business at 425 Metro Place N Box 7196, Dublin, Ohio.

4. Insilco is, and at all times relevant herein has been, engaged in commerce as "commerce" is defined in Section 1 of the Clayton Act as amended, 15 U.S.c. 12, and is a corporation whose business is in or affecting commerce as "commerce" is defined in Section 4 of the FTC Act, as amended, 15 U. C. 44.

II THE ACQUIRED COMPANY 5. Helima-Helvetion, Inc. ("Helima ) was a corporation organized, existing, and doing business under and by virtue of the laws of the State of New York, with its principal place of business having been located at Duncan, South Carolina. 6. Helima, at all times relevant herein, was engaged in commerce as "commerce" is defined in Section I of the Clayton Act, as amended, 15 U.S. c. 12, and was a corporation whose business is in or affecting commerce as "commerce" is defined in Section 4 of the FTC Act, as amended, 15 U.S. c. 44.

IV. THE ACQU1SITONS 7. On or about July 10, 1996, Insilco purchased from Lingemann for $12.8 million the assets of Helima ("Helima Acquisition ); for $17 million, the stock of Lingemann s European manufacturer of welded aluminum heat exchanger tubes, ARUP AJu-Rohr und Profi Gmbh; and the option to purchase Maschinenbau, Gmbh, a Lingemann subsidiary in Germany that manufactures mills used in the production of aluminum tubes (together, the "Acquisitions 8. Prior to the consummation of the Acquisitions, Insilco requested and received from Lingemann Non-Aggregated, Customer- Specific Information all of which is the type of information that INSILCO CORPORATION 295 293 Complaint would likely have been detrimental to competition in the relevant markets if the Acquisition had not been consummated. 9. The Non-Aggregated, Customer-Specific Information transferred ITom Helima to Insilco included descriptions of prior customer negotiations; detailed customer-by-customer price quotes; current pricing policies and strategies; and detailed, customer-bycustomer future pricing strategies.

V. THE RELEVANT MARKTS 10. For purposes ofthis complaint, a relevant line of commerce in which to analyze the Helima Acquisition is the market for Large Welded Aluminum Tubes.

II. For purposes ofthis complaint, a relevant line of commerce in which to analyze the Helima Acquisition is the market for Small Welded Aluminum Tubes.

12. For purposes of this complaint, the relevant geographic market for both relevant lines of commerce is North America. 13. Each of the relevant markets is highly concentrated. As a result of the Helima Acquisition, Insilco is currently the only supplier of Large Welded Aluminum Tubes with 100% of the market, and one of only two suppliers of Small Welded Aluminum Tubes, with a market share of over 90%.

14. There has been no entry into the market for Large Welded Aluminum Tubes since the time ofthe Acquisitions, and the threat of entry has not deterred anticompetitive effects resulting ITom the Helima Acquisition. Because the cost of entering and producing Large Welded Aluminum Tubes is relatively high compared to the limited potential sales revenues available to an entrant, entry into this market is not likely to be profitable. Consequently, entry into the Large Welded Aluminum Tube market is not likely to occur in a timely manner and counteract the additional anticompetitive effects likely to result ITom the Helima Acquisition. Entry into this relevant market is diffcult and unlikely.

IS. There has been no entry into the market for Small Welded Aluminum Tubes since the time of the Acquisitions, and the threat of entry has not deterred anticompetitive effects resulting from the Helima Acquisition. Additional anti competitive effects resulting ITom the Helima Acquisition are likely and will continue until such time as actual and suffcient entry occurs.

Complaint 125 FTC. 16. Prior to the Acquisitions, Insilco and Helima were actual competitors in the relevant markets.

VI. EFFECTS OF THE ACQUISITON 17. The Acquisitions have substantially lessened or may substantially lessen competition in the following ways: a. They have eliminated Helima as a substantial independent competitor in the relevant markets;

b. They have eliminated actual, direct, and substantial competition between Insilco and Helima in the relevant markets;

c. They have increased the level of concentration in the already highly concentrated relevant markets;

d. They have led, or may lead, to increases in prices in the relevant markets;

e. They have led, or may lead, to a reduction in service in the relevant markets;

f. They have led, or may lead, to the reduction in quality in the relevant markets;

g. They have led, or may lead, to a reduction in technological improvements in the relevant markets;

h. They have increased barriers to entry into the relevant markets; and 1. They have given Insilco market power in the relevant markets. VII. EFFECTS OF INFORMATION TRANSFER 18. Insilco received from Lingemann competitively sensitive information prior to the consummation of the Acquisitions, that, but for the consummation of the Acquisitions, may have detrimentally affected competition in the relevant markets. VII VIOLATIONS CHARGED 19. The effects of the Acquisitions may be substantially to lessen competition or tend to create a monopoly in violation of Section 7 of the Clayton Act, 15 U. C. 18, and Section 5 of the FTC Act, 15 U.S. c. 45.

20. Insilco, through the Acquisitions, has engaged in unfair methods of competition in or affecting commerce in violation of Section 5 of the FTC Act, 15 U. c. 45.

INSILCO CORPORATION 297 293 Decision and Order 21. Prior to the Acquisitions, Insilco requested and received ITom Lingemann Non-Aggregated, Customer-Specific Infonnation about customers for which they both competed in the relevant product markets in violation of Section 5 of the FTC Act, 15 U. C. 45. Commissioner Swindle not participating.

DECISION AN ORDER The Federal Trade Commission having initiated an investigation of the acquisition ofthe assets ofHelima-Helvetion International, Inc. Helima ), and of all the capital stock of ARUP Alu-Rohr und Profi Gmbh ("ARUP") ITom Helmut Lingemann Gmbh & Co. by respondent, and the respondent having been furnished thereafter with a copy of a draft of complaint that the Bureau of Competition presented to the Commission for its consideration and which, if issued by the Commission, would charge respondent with violations of Section 7 of the Clayton Act, as amended, 15 US. c. 18, and Section 5 of the Federal Trade Commission Act, as amended, 15 c. 45; and Respondent, its attorneys, and counsel for the Commission having thereafter executed an agreement containing a consent order, an admission by respondent of all the jurisdictional facts set forth in the aforesaid draft of complaint, a statement that the signing of said agreement is for settlement puroses only and does not constitute an admission by respondent 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 the respondent has violated the said Acts, and that a complaint should issue stating its charges in that respect, and having thereupon accepted the executed consent agreement and placed such agreement on the public record for a period of sixty (60) days, and having duly considered the comment received, now in further confonnity with the procedure described in Section 2.34 of its Rules, the Commission hereby issues its complaint, makes the following jurisdictional findings and enters the following order:

Decision and Order 125 FTC. 1. Respondent Insilco is a corporation organized, existing, and doing business under and by virtue of the laws of the state of Delaware, with its offce and principal place of business Jocated at 425 Metro PJace N. , Dublin, Ohio.

2. The Federal Trade Commission has jurisdiction of the subject matter of this proceeding and of the respondent, and the proceeding is in the public interest.

ORDER It is ordered That, as used in this order, the following definitions shall apply:

A. Respondent means 1nsiJco Corporation ("InsiJco ), its directors, offcers, employees, agents, and representatives predecessors, successors, and assigns; its subsidiaries, divisions groups, and affliates controlled by Insilco; and the respective directors, offcers, employees, agents, representatives, successors, and assigns of each.

B. Lingemann means HeJmut Lingemann Gmbh & Co. , its directors, offcers, employees, agents, and rcpresentatives predecessors, successors, and assigns; its subsidiares, divisions groups, and affJiates controlled by Lingemann; and the respective directors, offcers, employees, agents, representatives, successors, and assigns of each.

C. Maschinenbau means Helmut Lingemann Maschinenbau Gmbh, its directors, offcers, employees, agents, and representatives predecessors, successors, and assigns; its subsidiaries, divisions groups, and affiliates controlled by Maschinenbau; and the respective directors, offcers, employees, agents, representatives, successors, and assigns of each.

D. Commission means the Federal Trade Commission. E. Helima Acquisition means the acquisition of the assets of HeJima-HeJvetion International, Inc. and of an the capital stock of ARUP Alu-Rohr und Profi Gmbh from Lingemann by InsiJco. F. Thin- Wall Welded-Seam Aluminum Tubes means weldedseam aluminum heat exchanger tubes with waJJ thickness Jess than 65 miJJimeters used in the manufacture of heat exchangers, which are devices that transfer heat from one fluid or gas to another medium, generally air. These heat exchangers generally are us cd in INSILCO CORPORA TIOJ\ 299 293 Decision and Order automotive applications. Thin-Wall Welded-Seam Aluminum Tubes does not include tubes used as spacers between thennal pane windows, condenser headers, or manifolds. G. Welded Tube Mill means a high frequency welding machine capable of producing Thin-Wall Welded-Seam Aluminum Tubes. H. Lingemann Mil" means a Welded Tube Mill manufactured by Lingemann and operated by Helima-Helvetion International, Inc. or ARUP Alu-Rohr und Profil Gmbh prior to the Helima Acquisition.

I. Marketabilty, viability, and competitiveness means that the specified assets, when used in conjunction with the assets of the acquirer, are capable of operating in substantially the same manner quality, and effciency employed or achieved by the respondent prior to divestiture.

J. Non-Aggregated, Customer-Specifc Information means information about a product' s cost and/or price that is in such a fonn that the cost and/or price of a product for an identifiable individual customer can be identified.

K. Strategies or policies related to competition means infonnation relating to a company s approach to negotiating with specific customers, targeting specific customers, identifying or in any other manner attempting to win specific customers, retaining specific customers, or risk of loss of specific customers, including, but not limited to, all sales personnel call reports, market studies, forecasts and surveys which contain such infonnation. L. Analyses or formulas used to determine costs or prices means a method, study, test, program, examination, tool, or other type of logical reasoning used to detennine a product' s cost and/or price for an identifiable individual customer.

M. Person means any natural person, corporate entity, partnership, association, joint venture, or trust. N. Independenl agenl means a person not regularly employed by the company that does not have and will not have direct or indirect responsibility for prices or pricing or the ability to influence prices or pricing or an attorney regularly employed by the company that does not have and wi1 not have direct or indirect responsibility for prices or pricing or the ability to influence prices or pricing. Decision and Order 125 FTC. O. Assets To Be Divested" include the following: (a) One (1) fully functioning and operational Lingemann Mill consisting of a high frequency welder, a rollfonning base, a cutoff saw, a finished product drop table, a stock reel decoder, a vacuum coil lifter, and control cabinets, capable of producing Thin-Wall Welded-Seam Aluminum Tubes with a diameter of less than forty (40) millimeters;

(b) One (1) fully functioning and operational Lingemann Mill consisting of a high frequency welder, a rollfonning base, a cutoff saw, a finished product drop table, a stock reel decoder, a vacuum coil lifter, and control cabinets, capable of producing Thin-Wall Welded-Seam Aluminum Tubes with a diameter of greater than seventy-five (75) millimeters; and (c) One (1) set of tooling capable of operating on both mills. P. Technology and know-how means all of respondent' drawings, patents, specifications, tests, and other documentation, and all infonnation contained therein or available to respondent' personnel relating to the design, and the production methods processes, and systems used in the production of Thin- Wall Welded- Seam Aluminum Tubes utilizing Lingemann Mills or the operation and maintenance of Lingemann Mills for use in the production of Thin-Wall Welded-Seam Aluminum Tubes. Technology and knowhow does not include the drawings, patents, specifications, tests, and other documentation, and all infonnation not acquired by respondent in the Helima Acquisition and not developed by respondent following the Helima Acquisition specifically relating to the design, and the production methods, processes, and systems used in the production of Thin-Wall Welded-Seam Aluminum Tubes utilizing Lingemann Mills or the operation and maintenance of Lingemann Mills for use in the production of Thin-Wall Welded-Seam Aluminum Tubes. Q. Sale Source Replacement Parts means all parts needed to operate and maintain the Assets To Be Divested that are not readily available from a source other than respondent. R. fIelima Assets means all Welded Tube Mills, including machinery, fixtures, equipment, and tooling used in the maintenance or operation of such mills, acquired by Insi1co in its acquisition ofthe assets of Helima-Helvetion International, Inc. , from Lingemann. INSILCO CORPORATION 301 293 Dccision and Order II.

It is further ordered That:

A. Respondent shall divest, absolutely and in good faith, no later than four (4) months after the date on which this order becomes final the Assets To Be Divested.

B. The divestiture shall be made to an acquirer that receives the prior approval of the Commission and only in a maner that receives the prior approval of the Commission. The purpose ofthe divestiture is to ensure the continued use of the Assets To Be Divested in the same business in which the Assets To Be Divested are presently engaged, and to remedy the lessening of competition resulting from the Helima Acquisition as alleged in the Commission s complaint. C. Respondent shall also divest to the aequirer such additional anei1ar assets that arc not readily available from a source other than respondent, including, but not limited to, machinery, fixtures equipment, and software, used in the maintenance or operation of the Assets To Be Divested as are necessary to assure the marketability, viability, and competitiveness of the Assets To Be Divested. D. Respondent shall grant to the acquirer a perpetual, nonexclusive royalty-free license of any and all technology and knowhow necessary to assure the marketability, viability, and competitiveness of the Assets To Be Divested. Such license shall be effective only in connection with the operation of the Assets To Be Divested by the acquirer, any successor to the acquirer, or any subsequent owner ofthe Lingemann Mills included in the Assets To Be Divested. The acquirer shall also have the right to sublicense the technology and know-how encompassed within its license for use on other assets or equipment physically located in North America. E. A condition of approval by the Commission of the divestiture shall be the submission by the acquirer to the Commission of an acceptable five-year business plan for the Assets To Be Divested demonstrating that the acquirer will establish the Assets To Be Divested as a viable and competitive business in North America. F. On reasonable notice to respondent from the acquirer of the Assets To Be Divested, respondent shall provide assistance and training to the acquirer to enable the acquirer to design, manufacture and produce Thin-Wall Welded-Seam Aluminum Tubes at a comparable cost in substantially the same manner and quality employed or achieved by the respondent with the Assets To Be Decision and Order 125 FTC. Divested prior to divestiture. Such assistance and training shall include, without limitation, consultation with employees of lnsilco knowledgeable about Lingemann Mills and training at the North American manufacturing facilities of lnsilco utilizing Lingeman Mills. If training at the North American manufacturing facilities of lnsilco utilizing Lingemann MilJs is not possible, respondent shall provide training at any manufacturing facility of lnsilco utilizing Lingemann Mills. Respondent shall charge no more than its own direct costs incurred in providing such assistance and training, including reimbursement (commensurate with the salar and benefits of lnsilco personnel involved) for the time plus expenses of lnsilco personnel providing assistance and training. Respondent shall continue to provide such assistance and training until the acquirer of the Assets To Be Divested is satisfied in its reasonable business judgement that it is capable of producing Thin-Wall Welded-Seam Aluminum Tubes utilizing the Assets To Be Divested at a comparable cost in substantially the same manner and quality achieved by respondent prior to divestiture with the Assets To Be Divested; provided, however, respondent shall not be required to continue providing such technical assistance and training for more than one (1) year after the date on which the divestiture required by this order is made ifthe acquirer of the Assets To Be Divested is a manufacturer of Thin-Wall Welded-Seam Aluminum Tubes with sales of Thin- Wall Welded-Seam Aluminum Tubes greater than one million dollars ($1 000 000) in the fiscal year prior to the date of divestiture. If the acquirer of the Assets To Be Divested is not a manufacturer of Thin- Wall Welded-Seam Aluminum Tubes with sales of Thin-Wall Welded-Seam Aluminum Tubes greater than one million dollars ($1 000 000) in the fiscal year prior to the date of divestiture respondent shall be required to provide such technical assistance and training for a period not longer than three (3) years after the date on which the divestiture required by this order is made. G. On reasonable notice to respondent from the acquirer of the Assets To Be Divested, respondent shall provide Sole Source Replacement Pars to the acquirer. Respondent shall charge no more than its own direct costs incurred in providing such Sole Source Replacement Pars. Respondent shall not be required to continue providing such Sole Source Replacement Pars for more than two (2) years after the date on which the divestiture required by this order is made.

INSILCO CORFORATION 303 293 Decision and Order H. The Assets To Be Divested shall be supplied as completely wired and piped systems, requiring only the placement and bolting together of the sub-bases, the reconnection of the electrical wires at numbered tenninal block junctions, and the connection of the piping to the union joints.

1. Qualification, perfonnance, and the acquirer s acceptance of the Assets To Be Divested shall be perfonned at the facility of the acquirer in a manner to ensure that the Assets To Be Divested are capable of producing Thin- W a1l Welded-Seam Aluminum Tubes in substantially the same manner and quality employed or achieved by the respondent with the Assets To Be Divested prior to divestiture. J. On reasonable notice to respondent by a customer, respondent shall provide the approved acquirer tooling owned by, assigned to, or licensed to the respondent, which was produced prior to the date this order becomes final and not included in the Assets To Be Divested and which was manufactured specifically for and used solely for that customer s products. Respondent may charge the reasonable costs incurred in the manufacture of the tooling. K. Pending divestiture ofthe Assets To Be Divested, respondent shall take such actions as are reasonably necessary to maintain the marketability, viability, and competitiveness of the Assets To Be Divested and to prevent the destruction, removal, wasting, deterioration, or impainnent of the Assets To Be Divested. L. Pending divestiture of the Assets To Be Divested, respondent shall take such actions as are reasonably necessary to maintain the marketability, viability, and competitiveness ofthe Helima Assets to prevent the destruction, removal, wasting, deterioration, or impainnent of the Helima Assets.

It is further ordered That:

A. If respondent has not divested, absolutely and in good faith and with the Commission s prior approval, the Assets To Be Divested within four (4) months of the date this order becomes final, then the Commission may appoint a trustee to divest the Helima Assets and effect such additional arrangements as are necessary, in order to assure the marketability, viability, and competitiveness ofthe Helima Assets. In the event the Commission or the Attorney General brings an action pursuant to Section 5(1) ofthc Federal Trade Commission Act, 15 D. C. 45(1), or any other statute enforced by the Decision and Order 125 r. Commission, respondent shall consent to the appointment of a trstee in such action. Neither the appointment of a trustee nor a decision not to appoint a trustee under this paragraph shall preclude the Commission or the Attorney General from seeking civil penalties or any other relief (including, but not limited to, a court-appointed trstee) pursuant to the Federal Trade Commission Act or any other statute, for any failure by the respondent to comply with this order. B. Ifa trstee is appointed by the Commission or a cour pursuant to paragraph II(A) of this order, respondent shall consent to the following terms and conditions regarding the trustee s powers, duties authority, and responsibilities:

I. The Commission shall select the trustee, subject to the consent of respondent, which consent shall not be uneasonably withheld. The trustee shall be a person with experience and expertise in acquisitions and divestitures. If respondent has not opposed, in writing, including the reasons for opposition, the selection of any proposed trustee within 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. Subject to the prior approval of the Commission, the trustee shall have the exclusive power and authority to divest the Helima Assets and effect such additional arrangements as are necessary, in order to assure the marketability, viability, and competitiveness of the Helima Assets.

3. Within ten (10) days after appointment of the trustee respondent shall execute a trust agreement 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 necessar to permit the trustee to effect the divestiture of the Helima Assets and effect such additional arrangements as are necessary to assure the marketability, viability, and competitiveness of the Helima Assets, in order to expeditiously accomplish the remedial purposes of this order.

4. The trustee shall have twelve (12) months to accomplish the divestiture required by this order, which shall be subject to the prior approval of the Commission. If, however, at the end of the twelve (12) 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 court-appointed trustee, by the court); provided, however INSILCO CORPORATION 305 293 Decision and Order the Commission may extend this period for no more than two (2) additional times.

5. The trustee shaB have fuB and complete access to the personnel, books, records, and facilities related to the Helima Assets or to any other relevant information necessary to permit the trustec to effect the divestiture ofthe Helima Assets, as the trustee may request. Respondent shaB develop such financial or other information as such trustee may request and shaB cooperate with the trustee. Respondent shaB take no action to interfere with or impede the trustee accomplishment of the divestiture. Any delays in divestiture caused by the respondent shaB extend the time for divestiture under this paragraph II in an amount equal to the delay, as determined by the Commission (or in the case of a court-appointed trustee, by the court).

6. The trustee shaB use his or her best efforts to negotiate the most favorable price and teTIS available in each contract that is submitted to the Commission, subject to respondent' absolute and unconditional obligation to divest at no minimum price. The divestiture shaB be made in the manner, and to the acquirer or acquirers, as set out in paragraph II of this order; provided, however ifthe trustee receives bona fide offers from more than one acquiring entity, and ifthe Commission approves more than one such acquiring entity, then the trustee shaB divest to the acquiring entity or entities selected by respondent from among those approved by the Commission.

7. The trustee shaB serve, without bond or other security, at the cost and expense of respondent, on such reasonable and customary teTIS and conditions as the Commission or a court may set. The trustee shaB have authority to employ, at the cost and expense of respondent, such consultants, accountants, attorneys, investment bankers, business brokers, appraisers, and other representatives and assistants as are necessary to carr out the trustee s duties and responsibilities. The trustee shaB account for aB monies derived ITom the divestiture and aB expenses incurred. After approval by the Commission (and, in thc case of a court-appointed trustee, by the court), of the account of thc trustee, including fees for his or her services, aB remaining monies shaB be paid at the direction of respondent and the trustce s power shaB be terminated. The trustee compensation shaB be based at least in significant part on a Decision and Order 125 FTC. commission arrangement contingent on the trustee s accomplishing the divestiture required by this order.

8. Respondent shall indemnify the trustee and hold the trustee hanless against any losses, claims, damages, liabilities, or expenses arsing out of, or in connection with, the performance of the trustee 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 liabilities, losses, damages, claims, or expenses result ftom misfeasance, gross negligence, recklessness, willful or wanton acts or bad faith by the trustee or his or her agent or representative. 9. 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 II(A) of this order.

10. The Commission (or, in the case ofa court-appointed trustee the court) may on its own initiative or at the request of the trustec issue such additional orders or directions as may be necessary or appropriate to accomplish the divestiture required by this order. II. The trustee shall have no obligation or authority to operate or maintain the Helima Assets.

12. The trustee shall report in writing to respondent and the Commission every thirty (30) days concerning the trustcc s efforts to accomplish the divestiture.

IV.

Jt is further ordered That respondent shall not enforce beyond one (I) year any contract for the sale of Thin-Wall Welded-Seam Aluminum Tubes with a term greater than onc (I) year entered into after the consummation of the Helima Acquisition and prior to the divestiture of the Assets To Be Divested. Jt is further ordered That:

A. For a period of twenty (20) years ftom the date this order becomes final, respondent shall not, in any proposed acquisition of stock, share of capital, or production assets of any person that is a competitor of respondent in the design, manufacture, or sale of Thin- Wall Welded-Seam Aluminum Tubes, to which respondent is a party, prior to consummating the acquisition, obtain, seek, provide, or agree to obtain, seek, or provide the following types of information with INSILCO CORPORATION 307 293 Decision and Order respect to Thin-Wall Welded-Seam Aluminum Tubes except to the extent that such infonnation is publicly available: (1) current or future Non-Aggregated, Customer-Specific Infonnation; (2) current or future pricing plans; (3) current or future strategies or policies related to competition; and (4) analyses or fonnulas used to detennine costs or pnces.

B. For a period often (10) years from the date this order becomes final, respondent shall not, in any proposed acquisition of stock, share of capital, or production assets of any person that is a competitor of respondent in the design, manufacture, or sale of any product or service, to which respondent is a party, prior to consummating the acquisition, obtain, seek, provide, or agree to obtain, seek, or provide the following types of infonnation with respect to any competing product or service except to the extent that such infonnation is publicly available: (1) current or future Non-Aggregated, Customer- Specific Infonnation; (2) current or future pricing plans; (3) current or future strategies or policies related to competition; and (4) analyses or fonnulas used to detennine costs or prices. C. Nothing contained in paragraphs Yea) or V(B) of this order shall prohibit respondent or any other person from obtaining, seeking or providing, or agreeing to obtain, seek or provide (1) current or future Non-Aggregated, Customer-Specific Infonnation; (2) current or future pricing plans; (3) current or future strategies or policies related to competition; and (4) analyses or fonnulas used to detennine costs or prices, if such infonnation is provided to an independent agent. Information received by an independent agent pursuant to paragraph V of this order may be provided to respondent or any other person by such independent agent if such infonnation is converted into a fonn that would not be in violation of paragraph V of this order.

VI.

It is further ordered That, for a period often (10) years from the date this order becomes final, respondent shall not, without prior notification to the Commission:

(a) Directly or indirectly acquire any production assets of Maschinenbau if the cumulative value of all such acquisitions in the prior twelve (12) months exceeds $1 million; and Decision and Order 125 FTC. (b) Directly or indirectly acquire any stock, share of capital, or production assets, other than assets acquired in the ordinar course of business, of any person engaged in the design, manufacture, or sale of Welded Tube Mills or any person engaged in the design manufacture, or sale of Thin-Wall Welded-Seam Aluminum Tubes in North America; provided, however, that an acquisition of securities will be exempt from the requirements of this paragraph if, after such acquisition of securities, respondent will hold no more than five (5) percent of the outstanding shares of any class of securities of such person and provided further that an acquisition of assets will be exempt from the requirements of this paragraph if the acquisition price is less than one (1) million dollars. VII.

It is further ordered That the prior notifications required by paragraph VI of this order 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 (hereinafter referred to as the Notification ), and shall be prepared and transmitted in accordance with the requirements ofthat part, except that no fiing fee will be required for any such notification, notification shall be filed with the Secretar of the Commission, notification need not bc made to the United States Deparment 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 consummating 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 consummate 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.

Provided, however, that prior notification shall not be required by paragraph VI of this order for a transaction for which notification is required to be made, and has been made, pursuant to Section 7 A of the Clayton Act, 15 U.S. C. 18a.

INSILCO CORPORATION 309 293 Decision and Order VII It is further ordered That within thirty (30) days after the date this order becomes final, and every thirty (30) days thereafter until respondent has fully complied with the provisions of paragraphs II and II of this order, respondent shall submit to the Commission verified written reports setting forth in detail the manner and form in which respondent intends to comply, is complying, and has complied with paragraphs II and II of this order. Respondent shall include 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 and II of the order, including a description of all substantive contacts or negotiations for the divestiture and the identity of all paries that have contacted respondent or that have been contacted by respondent. Respondent shall include in its compliance reports copies of all wrtten communcations to and from such paries aU internal memoranda, and all reports and recommendations concerning divestiture.

IX.

It is further ordered That one (1) year from the date this order becomes final, annually for the next nine (9) years on the anversary of the date this order becomes final, and at such 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 paragraphs IV , VI, and VII of this order.

It is further ordered That respondent shall notify the Commission at least thirt (30) days prior to any proposed change in the corporate respondent that may affect compliance obligations arising out of the order, such as dissolution, assignment, sale resulting in the emergence of a successor corporation, or the creation or dissolution of subsidiaries.

XI.

It is furlher ordered That, for the purpose of determining or securing compliance with this ordcr, respondent shall permit any duly authorized representatives of the Commission: Decision and Order 125 FTC. A. Access, during offce hours and in the presence of counsel, to inspect and copy aU books, ledgers, accounts, cOlTespondence memoranda, and other records and documents in the possession or under the control of respondent relating to any matters contained in this order; and B. Upon five (5) days' notice to respondent, and without restraint or interference, to interview offcers, employees, or agents of respondent.

Commissioner Swindle not participating.

JITNEY-JUGLE STORES OF AMERlCA me. ET AL 311 Complaint