071 0203 UNITED STATES OF AMERICA BEFORE FEDERAL

071 0203

UNITED STATES OF AMERICA

BEFORE FEDERAL TRADE COMMISSION

COMMISSIONERS: William E. Kovacic, Chairman

Pamela Jones Harbour

Jon Leibowitz

J. Thomas Rosch

___________________________________

)

In the Matter of )

)

Carlyle Partners IV, L.P., )

a limited partnership, )

)

PQ Corporation, )

a corporation, ) Docket No. C-

)

INEOS Group Ltd., )

a corporation, and )

)

James Ratcliffe, )

an individual. )

)

DECISION AND ORDER

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

proposed acquisition by Respondent Carlyle Partners IV, L.P. (“CPIV”), the parent of

Respondent PQ Corporation (“PQ”), of US Silicas and certain foreign silicas assets of INEOS

Silicas, a specialty inorganic chemical division of Respondent INEOS Group Ltd., the

controlling interest of which is owned by Respondent James Ratcliffe, an individual

(“collectively “INEOS”), and Respondents having been furnished thereafter with a copy of the

draft of Complaint that the Bureau of Competition proposed to present to the Commission for its

consideration and that, if issued by the Commission, would charge 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

a Consent Agreement, 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 thereupon issued its Complaint and its Order

to Maintain Assets and having accepted the executed Consent Agreement and placed such

Consent Agreement on the public record for a period of thirty (30) days for the receipt and

consideration of public comments, now in further conformity with the procedure described in

Commission Rule 2.34, 16 C.F.R. § 2.34, the Commission hereby makes the following

jurisdictional findings and issues the following Decision and Order (“Order”):

1. Respondent CPIV is a limited partnership organized, existing and doing business

under and by virtue of the laws of Delaware, with its office and principal place of business

located at 1001 Pennsylvania Avenue, N.W., Suite 220 South, Washington, DC 20004-2505.

2. Respondent PQ is a corporation organized, existing and doing business under and by

virtue of the laws of Pennsylvania, with its office and principal place of business located at 300

Lindenwood Drive, Valleybrooke Corporate Center, Malvern, PA 19355-1740.

3. Respondent INEOS, the controlling interest of which is owned by James Ratcliffe, is a

corporation organized, existing, and doing business under and by virtue of the laws of the United

Kingdom, with its office and principal place of business located at Hawkslease, Chapel Lane,

Lyndhurst, Hampshire SO43 7FG United Kindgom.

4. Respondent James Ratcliffe is an individual with his office and principal place of

business located at Hawkslease, Chapel Lane, Lyndhurst, Hampshire SO43 7FG United

Kindgom.

5. 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.

ORDER

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

apply:

A. “CPIV" means Carlyle Partners IV, L.P., its directors, officers, employees, agents,

representatives, successors, and assigns; its subsidiaries, divisions, groups, and affiliates

controlled by Carlyle Partners IV, L.P., and the respective directors, officers, employees,

agents, representatives, successors, and assigns of each.

B. “PQ” means PQ Corporation, its directors, officers, employees, agents, representatives,

successors, and assigns; its subsidiaries, divisions, groups, and affiliates controlled by PQ

Corporation and the respective directors, officers, employees, agents, representatives,

successors, and assigns of each.

C. “INEOS” means INEOS Group Ltd., its directors, officers, employees, agents,

representatives, successors, and assigns; its subsidiaries, divisions, groups, and affiliates

controlled by INEOS Group Ltd., and the respective directors, officers, employees,

agents, representatives, successors, and assigns of each.

D. “Commission” means the Federal Trade Commission.

E. "Respondents" means CPIV, PQ, and INEOS, and James Ratcliffe individually and

collectively.

F. “Acquisition” means the October 11, 2007, proposed acquisition by CPIV for which a

filing was made pursuant to the Hart-Scott-Rodino Antitrust Improvements Act on

November 15, 2007, by CPIV.

G. “Asset Purchase Agreement” means “Asset Purchase Agreement by and Between Oak

Hill Acquisition Company, LLC and PQ Corporation” dated as of May 26, 2008, and

amendments, exhibits, attachments, agreements, and schedules thereto, related to the

Sodium Silicate Assets to be divested, that have been approved by the Commission to

accomplish the requirements of this Order. The Asset Purchase Agreement is attached to

this Order as non-public Appendix I.

H. “Closing Date” means the date on which Respondents (or a Divestiture Trustee) and a

Commission-approved Acquirer consummate a transaction to assign, grant, license,

divest, transfer, deliver, or otherwise convey the relevant assets pursuant to this Order.

I. “Commission-approved Acquirer” means the following: (1) an entity that is specifically

identified in this Order to acquire particular assets that the Respondents are required to

assign, grant, license, divest, transfer, deliver, or otherwise convey pursuant to this Order

and that has been approved by the Commission to accomplish the requirements of this

Order in connection with the Commission’s determination to make this Order final; or (2)

an entity approved by the Commission to acquire particular assets that the Respondents

are required to assign, grant, license, divest, transfer, deliver, or otherwise convey

pursuant to this Order.

J. “Confidential Business Information” means all information owned by, or in the

possession or control of, Respondents that is not in the public domain related to the

production, marketing, commercialization, distribution, importation, exportation, cost,

pricing, supply, sales, sales support, or use of Product at the Utica Sodium Silicate Plant.

K. “Day(s)” means the period of time prescribed under this Order as computed pursuant to

16 C.F.R. § 4.3 (a).

L. “Direct Cost” means the cost of direct labor and direct material used to provide the

relevant assistance or service.

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

relevant provisions of this Order.

N. “Effective Date” means the date on which the Acquisition occurs.

O. “Governmental Entity” means any Federal, state, local or non-U.S. government, or any

court, legislature, governmental agency, or governmental commission, or any judicial or

regulatory authority of any government.

P. “Interim Monitor” means any monitor appointed pursuant to the relevant provisions of

this Order or of the related Order to Maintain Assets.

Q. “Law” means all laws, statutes, rules, regulations, ordinances, and other pronouncements

by any Governmental Entity having the effect of law.

R. “Oak Hill Acquisition Company, LLC “ means Oak Hill Acquisition Company, LLC, its

directors, officers, employees, agents, representatives, successors, and assigns; its

subsidiaries, divisions, groups, and affiliates controlled by Oak Hill Acquisition

Company, LLC and the respective directors, officers, employees, agents, representatives,

successors, and assigns of each.

S. “Patents” means all patents, patent applications, and statutory invention registrations, in

each case existing as of the Effective Date (except where this Order specifies a different

time), and includes all reissues, divisions, continuations, continuations-in-part,

supplementary protection certificates, extensions and reexaminations thereof, all

inventions disclosed therein, all rights therein provided by international treaties and

conventions, and all rights to obtain and file for patents and registrations thereto in the

world, used in the production of Product at the Utica Sodium Silicate Plant as of the

Closing Date.

T. “Product” means sodium silicate.

U. “Product Licensed Intellectual Property” means the following:

1. Patents;

2. trade secrets, know-how, techniques, data, inventions, practices, methods, and

other confidential or proprietary technical, business, and other information, and

all rights in any jurisdiction to limit the use or disclosure thereof, that are related

to Product and that have been routinely used in the production of Product at the

Utica Sodium Silicate Plant as of the Closing Date.

V. “Product Marketing Materials” means all marketing materials related to Product

produced at the Utica Sodium Silicate Plant as of the Closing Date, including, without

limitation, all advertising materials, training materials, product data, price lists, mailing

lists, sales materials (e.g., detailing reports; vendor lists; sales data; reimbursement data),

marketing information (e.g., competitor information; research data; market intelligence

reports; statistical programs (if any) used for marketing and sales research; customer

information, including customer sales information; sales forecasting models; and

advertising and display materials; promotional and marketing materials, and other

similar materials related to Product produced at the Utica Sodium Silicate Plant;

provided, however, that “Product Marketing Materials” does not include any such

material with a PQ trademark or label.

W. “Remedial Agreement” means the following: (1) any agreement between Respondent(s)

and a Commission-approved Acquirer that is specifically referenced and attached to this

Order, including all amendments, exhibits, attachments, agreements, and schedules

thereto, related to the relevant assets to be assigned, granted, licensed, divested,

transferred, delivered, or otherwise conveyed, and that has been approved by the

Commission to accomplish the requirements of the Order in connection with the

Commission’s determination to make this Order final; and/or (2) any agreement between

the Respondent(s) and a Commission-approved Acquirer (or between a Divestiture

Trustee and a Commission-approved Acquirer) that has been approved by the

Commission to accomplish the requirements of this Order, including all amendments,

exhibits, attachments, agreements, and schedules thereto, related to the relevant assets to

be assigned, granted, licensed, divested, transferred, delivered, or otherwise conveyed,

and that has been approved by the Commission to accomplish the requirements of this

Order.

X. “Services Agreement” means the Services Agreement attached as Exhibit I to the Asset

Purchase Agreement, or an agreement between Respondents and the Commission-

approved Acquirer pursuant to which Respondents shall provide Services and Utilities to

the Commission-approved Acquirer at the Utica Facility.

Y. “Services and Utilities” means:

1. maintenance of certain easements, including but not limited to, vehicular and

pedestrian access, rail access, Sewers, Etc. easements;

2. provision of certain services, including but not limited to, utility services,

information technology services, and office space; and

3. provision of certain commodities, including but not limited to steam, potable

water, water that is softened by means of water softener equipment, electrical

power, natural gas, fuel oil, and water generated as a result of the production

activities at the Utica Facility that are not related to the Utica Sodium Silicate

Plant.

Z. “Sewers, Etc.” means all sanitary and/or non-sanitary sewers, conduits, water lines, gas

lines, rainfall run-off, or any other utility pipe, line or conduit.

AA. “Sodium Silicate Assets” means Respondents' rights, titles, and interests in and to all

assets, properties, business and goodwill, tangible or intangible, used in the production of

Product at the Utica Sodium Silicate Plant as of the Closing Date, including, but not

limited to:

1. a ninety-nine year ground lease on all related real property (together with

appurtenances, licenses and permits) owned, leased or otherwise held by

Respondents, including, at the option of the Commission-approved Acquirer, an

option for additional space for expansion, with the term of such option to be co-

terminus with that of the prime lease, and also including, at, the option of the

Commission-approved Acquirer, an easement or easements for Sewers, Etc.;

2. all personal property owned, leased or otherwise held by Respondents CPIV and

PQ;

3. a non-exclusive license to use and practice all Product Licensed Intellectual

Property owned by or licensed to Respondents CPIV and PQ, including but not

limited to, trademarks, Patents, mask works, copyrights, trade secrets, research

materials, technical information, management information systems, software,

inventions, test data, technological know-how, licenses, registrations,

submissions, approvals, technology, specifications, designs, drawings, processes,

recipes, protocols, and formulas, such license to be royalty free at the Utica

Sodium Silicate Plant and, should the Commission-approved Acquirer determine

to produce Product at a location other than the Utica Facility, to be at a reasonable

market-based royalty negotiated by the Commission-approved Acquirer and

Respondents;

4. all rights of Respondents CPIV and PQ under any contract related to Product

entered into with customers (together with associated bid and performance

bonds), suppliers, sales representatives, distributors, agents, personal property

lessors, personal property lessees, licensors, licensees, consignors and consignees,

and joint venture partners;

5. a list of all targeted customers for Product and the planned or proposed pricing of

Product for such customers;

6. all Product Marketing Materials;

7. all governmental approvals, consents, licenses, permits, waivers, or other

authorizations relating to Product held by Respondents CPIV and PQ;

8. all rights of Respondents CPIV and PQ under any warranty and guarantee,

express or implied, relating to Product;

9. all books, records, and files;

10. the Utica Sodium Silicate Plant, including, but not limited to:

a. all plant facilities, machinery, equipment, furniture, fixtures, tools,

vehicles, transportation and storage facilities, and supplies;

b. all rights in and to inventories of products, raw materials, supplies and

parts, including work-in-process and finished goods;

c. all customer and vendor lists, catalogs, sales promotion literature, and

advertising materials; and

11. Services and Utilities as provided in a Services Agreement;

BB. “Utica Facility” means Respondent PQ’s facility containing plants for the production of

various products including metasilicate, epsom salts, and Product, situated at 340 East

Grove Street, Utica, Illinois 61373-0410.

CC. “Utica Sodium Silicate Plant” means the plant for the production of Product located at

the Utica Facility.

II.

IT IS FURTHER ORDERED that:

A. Not later than five (5) Days after the Effective Date, Respondents shall divest the Sodium

Silicate Assets, absolutely and in good faith, to Oak Hill Acquisition Company, LLC

(“Oak Hill”) pursuant to and in accordance with the Asset Purchase Agreement (which

agreement shall not vary or contradict, or be construed to vary or contradict, the terms of

this Order, it being understood that nothing in this Order shall be construed to reduce any

rights or benefits of Oak Hill or to reduce any obligations of the Respondents under such

agreement), and such agreement, if it becomes the Remedial Agreement related to the

Sodium Silicate Assets, is incorporated by reference into this Order and made a part

hereof. If Respondents do not divest the Sodium Silicate Assets to Oak Hill within five

(5) Days after the Effective Date, the Commission may appoint a Divestiture Trustee to

divest the Sodium Silicate Assets;

provided, however, that if Respondents have divested the Sodium Silicate Assets to Oak

Hill after the Commission has accepted this Order for public comment but prior to the

date this Order becomes final, and if, at the time the Commission determines to make this

Order final, the Commission notifies Respondents that Oak Hill is not an acceptable

purchaser of the Sodium Silicate Assets, then Respondents shall immediately rescind the

transaction with Oak Hill and shall divest the Sodium Silicate Assets within six (6)

months from the date the Order becomes final, absolutely and in good faith, at no

minimum price, to a Commission-approved Acquirer and only in a manner that receives

the prior approval of the Commission;

provided further that if the Respondents have divested the Sodium Silicate Assets to Oak

Hill after the Commission has accepted this Order for public comment but prior to the

date this Order becomes final, and if, at the time the Commission determines to make this

Order final, the Commission notifies the Respondents that the manner in which the

divestiture was accomplished is not acceptable, the Commission may direct the

Respondents, or appoint a Divestiture Trustee, to effect such modifications to the manner

of divestiture of the Sodium Silicate Assets to Oak Hill (including, but not limited to,

entering into additional agreements or arrangements) as the Commission may determine

are necessary to satisfy the requirements of this Order.

B. Respondents shall comply with all terms of the Remedial Agreement which shall be

incorporated by reference and made a part of this Order. Failure by Respondents to

perform under or comply with the Remedial Agreement shall also constitute a violation

of this Order. Notwithstanding any paragraph, section, or other provision of the

Remedial Agreement, Respondents shall not, without the prior approval of the

Commission, modify any term of the Remedial Agreement or fail to satisfy each

condition to the Commission-approved Acquirer’s obligation to acquire the Sodium

Silicate Assets (whether or not waived). The terms of the Remedial Agreement shall not

be construed to vary from or contradict the terms of this Order.

C. Respondents shall:

1. submit to the Commission-approved Acquirer, at Respondents’ expense, all

Confidential Business Information;

2. deliver such Confidential Business Information as follows: (1) in good faith; (2)

as soon as practicable, avoiding any delays in transmission of the respective

information; and (3) in a manner that ensures its completeness and accuracy and

that fully preserves its usefulness;

3. pending complete delivery of all such Confidential Business Information to the

Commission-approved Acquirer, provide the Commission-approved Acquirer and

the Interim Monitor (if any has been appointed) with access to all such

Confidential Business Information and employees who possess or are able to

locate such information for the purposes of identifying the books, records, and

files related to Product at the Utica Facility that contain such Confidential

Business Information and facilitating the delivery in a manner consistent with this

Order;

4. not use, directly or indirectly, any such Confidential Business Information, other

than as necessary to comply with the following: (1) the requirements of this

Order; (2) the Respondents’ obligations to the Commission-approved Acquirer

under the terms of any Remedial Agreement related to the Sodium Silicate

Assets; or (3) applicable Law; provided, however, that Respondents may use

Confidential Business Information which does not relate solely to the Utica

Sodium Silicate Plant; and

5. not disclose or convey any such Confidential Business Information, directly or

indirectly, to any person except the Commission-approved Acquirer.

D. For a period of up to two (2) years from the Closing Date, upon reasonable notice and

request by the Commission-approved Acquirer, Respondents shall make available to the

Commission-approved Acquirer, at no greater than Direct Cost, such personnel,

assistance and training to enable the Commission-approved Acquirer to operate the

Sodium Silicate Assets in substantially the same manner as Respondents operated the

Sodium Silicate Assets immediately prior to the Closing Date.

E. Respondents shall, as of the Closing Date, enter into an employee services agreement,

which, if the Asset Purchase Agreement is the Remedial Agreement shall be the

Employee Services Agreement at Exhibit C thereof, with the Commission-approved

Acquirer for the provision of employee services for the job classifications set forth in the

collective bargaining agreement between Respondent PQ and employees at the Utica

Sodium Silicate Plant (“Utica Sodium Silicate Plant Employees”), and for the services of

such other employees and individuals as the Respondents and the Commission-approved

Acquirer may agree:

1. no later than ten (10) days before the Closing Date, Respondents shall (i) provide

to the Commission-approved Acquirer a list of all Utica Sodium Silicate Plant

Employees, (ii) allow the Commission-approved Acquirer an opportunity to

interview any Utica Sodium Silicate Plant Employees, and (iii) allow the

Commission-approved Acquirer to inspect the personnel files and other

documentation relating to such Utica Sodium Silicate Plant Employees, to the

extent permissible under applicable laws;

2. respondents shall (i) not offer any incentive to any Utica Sodium Silicate Plant

Employee to decline providing employee services to the Commission-approved

Acquirer, (ii) remove any contractual impediments with Respondents, excluding

Respondent PQ’s collective bargaining agreement with such Utica Sodium

Silicate Plant Employees, that may deter any Utica Sodium Plant Employee from

providing employee services to the Commission-approved Acquirer, including,

but not limited to, any non-compete or confidentiality provisions of employment

or other contracts with Respondents that would affect the ability of the Utica

Sodium Silicate Plant Employees to provide employee services to the

Commission-approved Acquirer, and (iii) not interfere with any Utica Sodium

Silicate Plant Employee providing employee services to the Commission-

approved Acquirer;

3. for a period of one year from the date this Order becomes final, Respondents shall

not, directly or indirectly, enter into any arrangement, excluding collective

bargaining arrangements conducted in the ordinary course of business, for the

services of any Utica Sodium Silicate Plant Employee providing employee

services to the Commission-approved Acquirer, unless the Utica Sodium Silicate

Plant Employee’s services have been terminated by the Commission-approved

Acquirer without the Utica Sodium Silicate Plant Employee’s consent; and

4. provide written notification of the restrictions on the use of the Confidential

Business Information to all Respondents’ employees who are involved in the

manufacturing, distribution, sale, or marketing of Product at the Utica Facility or

who may have Confidential Business Information [“Designated Employees”]; and

Respondents shall require each Designated Employee to execute an

acknowledgment of his or her obligation regarding the Confidential Business

Information. Respondents shall provide a copy of such notification to the

Commission-approved Acquirer. Respondents shall maintain complete records at

the Utica Facility regarding the provision of notification to Designated

Employees and shall provide an officer’s certification to the Commission stating

that such notification program has been implemented and is being complied with.

Respondents shall provide the Commission-approved Acquirer with copies of all

certifications, notifications and reminders sent to Designated Employees.

F. At such time that the Commission-approved Acquirer initiates collective bargaining with

Utica Sodium Silicate Plant Employees, Respondents shall:

1. not offer any incentive to any Utica Sodium Silicate Plant Employee to decline to

enter into a collective bargaining agreement with the Commission-approved

Acquirer;

2. remove any contractual impediments with Respondents that may deter any Utica

Sodium Plant Employee from entering into a collective bargaining agreement

with the Commission-approved Acquirer, including, but not limited to, any non-

compete or confidentiality provisions of employment or other contracts with

Respondents that would affect the ability of the Utica Sodium Silicate Plant

Employees to enter into a collective bargaining agreement and to be employed by

the Commission-approved Acquirer; and

3. not interfere with the employment by the Commission-approved Acquirer of any

Utica Sodium Silicate Plant Employee.

G. Respondents shall include in any Remedial Agreement the following provisions:

1. Respondents shall make representations and warranties to the Commission-

approved Acquirer that Respondents shall hold harmless and indemnify the

Commission-approved Acquirer for any liabilities or loss of profits resulting from

the failure by Respondents to perform its obligations pursuant to the Services

Agreement in a timely manner as required by the Remedial Agreement unless the

Respondents can demonstrate that their failure was entirely beyond the control of

the Respondents and in no part the result of negligence or willful misconduct by

Respondents; provided, however, if the Asset Purchase Agreement is the

Remedial Agreement, then the terms of the Asset Purchase Agreement, including

the Services Agreement at Exhibit I thereto shall apply;

2. upon reasonable notice and request from the Commission-approved Acquirer to

Respondents, Respondents shall provide, in a timely manner, at no greater than

Direct Cost, assistance of knowledgeable employees of the Respondents to assist

the Commission-approved Acquirer to defend against, respond to, or otherwise

participate in any litigation related to Product Intellectual Property; and

3. Respondents shall covenant to the Commission-approved Acquirer that

Respondents shall not join, file, prosecute or maintain any suit, in law or equity,

against the Commission-approved Acquirer under any Patents licensed to the

Commission-approved Acquirer pursuant to the Remedial Agreement, if such suit

would have the potential to interfere with the Commission-approved Acquirer’s

freedom to practice in the production, use, import, export, distribution or sale of

Product; provided, however, if the Asset Purchase Agreement is the Remedial

Agreement then the terms of the Asset Purchase Agreement, including the

Technology License Agreement at Exhibit K thereto shall apply.

H. Any Remedial Agreement related to the Sodium Silicate Assets shall be deemed

incorporated into this Order, and any failure by Respondents to comply with any term of

such Remedial Agreement related to the Sodium Silicate Assets shall constitute a failure

to comply with this Order.

I. Pending divestiture of the Sodium Silicate Assets, Respondents shall take such actions as

are necessary to maintain the viability and marketability of the Sodium Silicate Assets,

and to prevent the destruction, removal, wasting, deterioration, or impairment of any of

the Sodium Silicate Assets, except for ordinary wear and tear.

J. The purpose of the divestiture of the Sodium Silicate Assets is to ensure the continued

use of the assets in the same business in which the Sodium Silicate Assets were engaged

at the time of the announcement of the proposed Acquisition by Respondents and to

remedy the lessening of competition alleged in the Commission’s complaint.

III.

IT IS FURTHER ORDERED that:

A. At any time after Respondents sign the Consent Agreement in this matter, the

Commission may appoint one or more Interim Monitors to assure that Respondents

expeditiously comply with all of their obligations and perform all of their responsibilities

as required by this Order and the Remedial Agreement.

B. The Commission shall select the Interim Monitor, subject to the consent of Respondents,

which consent shall not be unreasonably withheld. If Respondents have not opposed, in

writing, including the reasons for opposing, the selection of a proposed Interim Monitor

within ten (10) Days after notice by the staff of the Commission to Respondents of the

identity of any proposed Interim Monitor, Respondents shall be deemed to have

consented to the selection of the proposed Interim Monitor.

C. Not later than ten (10) Days after the appointment of the Interim Monitor, Respondents

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

on the Interim Monitor all the rights and powers necessary to permit the Interim Monitor

to monitor Respondents’ compliance with the relevant requirements of the Order in a

manner consistent with the purpose of the Order.

D. If one or more Interim Monitors are appointed pursuant to this Paragraph, Respondents

shall consent to the following terms and conditions regarding the powers, duties,

authorities, and responsibilities of each Interim Monitor:

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

compliance with the divestiture and asset maintenance obligations and related

requirements of the Order, and shall exercise such power and authority and carry

out the duties and responsibilities of the Interim Monitor in a manner consistent

with the purposes of the Order and in consultation with the Commission;

2. The Interim Monitor shall act in a fiduciary capacity for the benefit of the

Commission;

3. The Interim Monitor shall serve until the completion by Respondents of the

divestiture of the Sodium Silicate Assets required to be divested pursuant to the

Decision and Order in a manner that fully satisfies the requirements of the Order

and notification by the Commission-approved Acquirer to the Interim Monitor

that it is fully capable of producing Product pursuant to a Remedial Agreement

independently of Respondents; provided, however, that the Commission may

extend or modify this period as may be necessary or appropriate to accomplish

the purposes of the Order;

4. Subject to any demonstrated legally recognized privilege, the Interim Monitor

shall have full and complete access to Respondents’ personnel, books, documents,

records kept in the normal course of business, facilities and technical information,

and such other relevant information as the Interim Monitor may reasonably

request, related to Respondents’ compliance with their obligations under the

Order, including, but not limited to, their obligations related to the relevant assets.

Respondents shall cooperate with any reasonable request of the Interim Monitor

and shall take no action to interfere with or impede the Interim Monitor's ability

to monitor Respondents’ compliance with the Order;

5. The Interim Monitor shall serve, without bond or other security, at the expense of

Respondents on such reasonable and customary terms and conditions as the

Commission may set. The Interim Monitor shall have authority to employ, at the

expense of the Respondents, such consultants, accountants, attorneys and other

representatives and assistants as are reasonably necessary to carry out the Interim

Monitor’s duties and responsibilities;

6. Respondents shall indemnify the Interim Monitor and hold the Interim Monitor

harmless against any losses, claims, damages, liabilities, or expenses arising out

of, or in connection with, the performance of the Interim Monitor’s duties,

including all reasonable fees of counsel and other reasonable expenses incurred in

connection with the preparations for, or defense of, any claim, whether or not

resulting in any liability, except to the extent that such losses, claims, damages,

liabilities, or expenses result from misfeasance, gross negligence, willful or

wanton acts, or bad faith by the Interim Monitor;

7. Respondents shall report to the Interim Monitor in accordance with the

requirements of this Order and/or as otherwise provided in any agreement

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

submitted to the Interim Monitor by Respondents, and any reports submitted by

the Commission-approved Acquirer with respect to the performance of

Respondents’ obligations under the Order or the Remedial Agreement. Within

one (1) month from the date the Interim Monitor receives these reports, the

Interim Monitor shall report in writing to the Commission concerning

performance by Respondents of their obligations under the Orders; and

8. Respondents may require the Interim Monitor and each of the Interim Monitor’s

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

a customary confidentiality agreement; provided, however, that such agreement

shall not restrict the Interim Monitor from providing any information to the

Commission.

E. The Commission may, among other things, require the Interim Monitor and each of the

Interim Monitor’s consultants, accountants, attorneys and other representatives and

assistants to sign an appropriate confidentiality agreement related to Commission

materials and information received in connection with the performance of the Interim

Monitor’s duties.

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

diligently, the Commission may appoint a substitute Interim Monitor in the same manner

as provided in this Paragraph.

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

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

compliance with the requirements of this Order.

H. The Interim Monitor appointed pursuant to this Order may be the same person appointed

as a Divestiture Trustee pursuant to the relevant provisions of this Order.

IV.

IT IS FURTHER ORDERED that:

A. If Respondents have not fully complied with the obligations to assign, grant, license,

divest, transfer, deliver or otherwise convey relevant assets as required by this Order, the

Commission may appoint a Divestiture Trustee(s) to assign, grant, license, divest,

transfer, deliver or otherwise convey the assets required to be assigned, granted, licensed,

divested, transferred, delivered or otherwise conveyed pursuant to each of the relevant

Paragraphs in a manner that satisfies the requirements of each such Paragraph. In the

event that the Commission or the Attorney General brings an action pursuant to § 5(l) of

the Federal Trade Commission Act, 15 U.S.C. § 45(l), or any other statute enforced by

the Commission, Respondents shall consent to the appointment of a Divestiture Trustee

in such action to assign, grant, license, divest, transfer, deliver or otherwise convey the

relevant assets. Neither the appointment of a Divestiture Trustee nor a decision not to

appoint a Divestiture Trustee under this Paragraph shall preclude the Commission or the

Attorney General from seeking civil penalties or any other relief available to it, including

a court-appointed Divestiture Trustee, pursuant to § 5(l) of the Federal Trade

Commission Act or any other statute enforced by the Commission, for any failure by

Respondents to comply with this Order.

B. The Commission shall select the Divestiture Trustee, subject to the consent of

Respondents, which consent shall not be unreasonably withheld. The Divestiture Trustee

shall be a person with experience and expertise in acquisitions and divestitures. If

Respondents have not opposed, in writing, including the reasons for opposing, the

selection of any proposed Divestiture Trustee within ten (10) Days after notice by the

staff of the Commission to Respondents of the identity of any proposed Divestiture

Trustee, Respondents shall be deemed to have consented to the selection of the proposed

Divestiture Trustee.

C. Not later than ten (10) Days after the appointment of a Divestiture Trustee, Respondents

shall execute a trust agreement that, subject to the prior approval of the Commission,

transfers to the Divestiture Trustee all rights and powers necessary to permit the

Divestiture Trustee to effect the divestiture required by the Order.

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

Paragraph, Respondents shall consent to the following terms and conditions regarding the

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

1. Subject to the prior approval of the Commission, the Divestiture Trustee shall

have the exclusive power and authority to assign, grant, license, divest, transfer,

deliver or otherwise convey the assets that are required by this Order to be

assigned, granted, licensed, divested, transferred, delivered or otherwise

conveyed.

2. The Divestiture Trustee shall have one (1) year after the date the Commission

approves the trust agreement described herein 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 Divestiture Trustee has submitted a plan

of divestiture or believes that the 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 Divestiture Trustee, by the court; provided, however, the

Commission may extend the divestiture period only two (2) times.

3. Subject to any demonstrated legally recognized privilege, the Divestiture Trustee

shall have full and complete access to the personnel, books, records and facilities

related to the relevant assets that are required to be assigned, granted, licensed,

divested, delivered or otherwise conveyed by this Order and to any other relevant

information, as the Divestiture Trustee may request. Respondents shall develop

such financial or other information as the Divestiture Trustee may request and

shall cooperate with the Divestiture Trustee. Respondents shall take no action to

interfere with or impede the Divestiture Trustee’s accomplishment of the

divestiture. Any delays in divestiture caused by Respondents 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 Divestiture Trustee, by

the court.

4. The Divestiture Trustee shall use commercially reasonable best efforts to

negotiate the most favorable price and terms available in the contract that is

submitted to the Commission, subject to Respondents’ absolute and unconditional

obligation to divest expeditiously and at no minimum price. The divestiture shall

be made in the manner and to an acquirer as required by this Order; provided,

however, if the Divestiture Trustee receives bona fide offers from more than one

acquiring entity, and if the Commission determines to approve more than one

such acquiring entity, the Divestiture Trustee shall divest to the acquiring entity

selected by Respondents from among those approved by the Commission;

provided further that Respondents shall select such entity within five (5) Days

after receiving notification of the Commission’s approval.

5. The Divestiture Trustee shall serve, without bond or other security, at the cost and

expense of Respondents, on such reasonable and customary terms and conditions

as the Commission or a court may set. The Divestiture Trustee shall have the

authority to employ, at the cost and expense of Respondents, such consultants,

accountants, attorneys, investment bankers, business brokers, appraisers, and

other representatives and assistants as are necessary to carry out the Divestiture

Trustee’s duties and responsibilities. The Divestiture Trustee shall account for all

monies derived from the divestiture and all expenses incurred. After approval by

the Commission and, in the case of a court-appointed Divestiture Trustee, by the

court, of the account of the Divestiture Trustee, including fees for the Divestiture

Trustee’s services, all remaining monies shall be paid at the direction of the

Respondents, and the Divestiture Trustee’s power shall be terminated. The

compensation of the Divestiture Trustee shall be based at least in significant part

on a commission arrangement contingent on the divestiture of all of the relevant

assets that are required to be divested by this Order.

6. Respondents shall indemnify the Divestiture Trustee and hold the Divestiture

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

arising out of, or in connection with, the performance of the Divestiture Trustee’s

duties, including all reasonable fees of counsel and other expenses incurred in

connection with the preparation for, or defense of, any claim, whether or not

resulting in any liability, except to the extent that such losses, claims, damages,

liabilities, or expenses result from misfeasance, gross negligence, willful or

wanton acts, or bad faith by the Divestiture Trustee.

7. In the event that the Divestiture Trustee determines that he or she is unable to

assign, grant, license, divest, transfer, deliver or otherwise convey the relevant

assets required to be assigned, granted, licensed, divested, transferred, delivered

or otherwise conveyed in a manner that preserves their marketability, viability

and competitiveness and ensures their continued use in the production,

distribution, marketing, promotion, sale, or after-sales support of the relevant

Product, the Divestiture Trustee may assign, grant, license, divest, transfer,

deliver or otherwise convey such additional assets of Respondents and effect such

arrangements as are necessary to satisfy the requirements of this Order.

8. The Divestiture Trustee shall have no obligation or authority to operate or

maintain the relevant assets required to be assigned, granted, licensed, divested,

transferred, delivered or otherwise conveyed by this Order.

9. The Divestiture Trustee shall report in writing to Respondents and to the

Commission every sixty (60) Days concerning the Divestiture Trustee’s efforts to

accomplish the divestiture.

10. Respondents may require the Divestiture Trustee and each of the Divestiture

Trustee’s consultants, accountants, attorneys and other representatives and

assistants to sign a customary confidentiality agreement; provided, however, such

agreement shall not restrict the Divestiture Trustee from providing any

information to the Commission.

E. If the Commission determines that a Divestiture Trustee has ceased to act or failed to act

diligently, the Commission may appoint a substitute Divestiture Trustee in the same

manner as provided in this Paragraph.

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

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

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

required by this Order.

G. The Divestiture Trustee appointed pursuant to this Paragraph may be the same person

appointed as Interim Monitor pursuant to the relevant provisions of this Order.

IT IS FURTHER ORDERED that:

A. Within five (5) Days of the Acquisition, Respondents shall submit to the Commission a

letter certifying the date on which the Acquisition occurred.

B. Within thirty (30) Days after the date this Order becomes final, and every sixty (60) Days

thereafter until Respondents have fully complied with Paragraph II of this Order,

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

detail the manner and form in which they intend to comply, are complying, and have

complied with this Order. Respondents shall submit at the same time a copy of their

report concerning compliance with this Order to the Interim Monitor, if any Interim

Monitor has been appointed. Respondents shall include in their reports, among other

things that are required from time to time, a full description of the efforts being made to

comply with Paragraph II, including a description of all substantive contacts or

negotiations related to the divestiture of the relevant assets and the identity of all parties

contacted. Respondents shall include in their reports copies of all written

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

recommendations concerning completing the obligations.

C. One (1) year after 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, Respondents shall file a verified written report with the

Commission setting forth in detail the manner and form in which they have complied and

are complying with this Order.

VI.

IT IS FURTHER ORDERED that Respondents shall provide a copy of this Order to

each of Respondent’s officers, employees, or agents having managerial responsibility for any of

Respondent’s obligations under Paragraphs II through V of this Order, no later than ten days

from the date this Order becomes final.

VII.

IT IS FURTHER ORDERED that Respondents shall notify the Commission at least

thirty (30) Days prior to any proposed (1) dissolution of the Respondents, (2) acquisition,

merger, or consolidation of Respondents, or (3) other change in the Respondents that may affect

compliance obligations arising out of the order, including, but not limited to, assignment, the

creation or dissolution of subsidiaries, or any other change in Respondents.

VIII.

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

compliance with this Order, and subject to any legally recognized privilege, and upon written

request with reasonable notice to Respondents made to their principal United States offices,

Respondents shall permit any duly authorized representative of the Commission:

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

facilities and access to inspect and copy all books, ledgers, accounts, correspondence,

memoranda and all other records and documents in the possession or under the control of

Respondents related to compliance with this Order; and

B. Upon five (5) Days’ notice to Respondents and without restraint or interference from

Respondents, to interview officers, directors, or employees of Respondents, who may

have counsel present, regarding such matters.

IX.

IT IS FURTHER ORDERED that this Order shall terminate ten (10) years from

the date on which the Order becomes final.

By the Commission.

Donald S. Clark

Secretary

SEAL

ISSUED

NON-PUBLIC

APPENDIX I

TO THE DECISION AND ORDER

ASSET PURCHASE AGREEMENT

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