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1
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DECISION & ORDER
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EXTRACTED KEY WORDS
COMMISSION AGREEMENT TYCO TRUSTEE CONSENT DIVESTITURE TRADE COMMISSION ACT ACQUIRER FEDERAL TRADE COMMISSION ACQUISITION ASSETS PARAGRAPH MONITOR TRUSTEE SHERIDAN PRODUCT MALLINCKRODT COMPLAINT EMPLOYEES UNITED STATES GPO CUSTOMER THEREAFTER VIOLATION ATTORNEYS JURISDICTIONAL FACTS CUSTOMER CONTRACT ACCOMPLISH TRANSITIONAL SERVICES COMPETITION PUBLIC RECORD PATENT RIGHTS |
001-0208
UNITED STATES OF AMERICA
BEFORE FEDERAL TRADE COMMISSION
COMMISSIONERS:
Robert Pitofsky, Chairman
Sheila F. Anthony
Mozelle W. Thompson
Orson Swindle
Thomas B. Leary
In the Matter of
Tyco International Ltd., a corporation.
Docket No. C-3985
DECISION AND ORDER
The Federal Trade Commission ("Commission") having initiated an
investigation of the acquisition by Tyco International Ltd. ("Tyco")
of Mallinckrodt Inc. ("Mallinckrodt"), and Respondent having been
furnished thereafter with a copy of a draft of Complaint which 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 U.S.C. § 18, and Section 5 of the Federal Trade Commission
Act, as amended, 15 U.S.C. § 45; and
Respondent, its attorneys and counsel for the Commission having
thereafter executed an Agreement Containing Consent Order ("Consent
Agreement"), containing an admission by Respondent of all the
jurisdictional facts set forth in the aforesaid draft of Complaint, a
statement that the signing of said Consent Agreement is for settlement
purposes 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 has reason to believe that Respondent has violated
the said Acts and that a Complaint should issue stating its charges in
that respect, 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
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2
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AGREEMENT
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EXTRACTED KEY WORDS
CONSENT AGREEMENT COMMISSION COMPLAINT ACCEPTANCE LAW FACTS DRAFT REPORT CONTEMPLATES UNITED STATES FEDERAL TRADE COMMISSION OFFICERS COUNSEL PURSUANT COMMISSION RULE ACCOMPANYING MANNER COMPLIANCE PUBLIC RECORD RELIEF HEREBY ATTORNEYS BUSINESS BERMUDA JURISDICTIONAL FACTS PROPOSED RESPONDENT WAIVES SUBSEQUENT THEREAFTER PROCEEDING |
UNITED STATES OF AMERICA
BEFORE FEDERAL TRADE COMMISSION
In the Matter of
Tyco International Ltd., a corporation.
AGREEMENT CONTAINING CONSENT ORDER
The Federal Trade Commission ("Commission"), having initiated an
investigation of the acquisition by Tyco International Ltd. ("Tyco")
of Mallinckrodt Inc. ("Mallinckrodt"), and it now appearing that Tyco,
hereinafter sometimes referred to as "Proposed Respondent," is willing
to enter into this Agreement Containing Consent Order ("Consent
Agreement") to divest certain assets and providing for other relief:
IT IS HEREBY AGREED by and between Proposed Respondent, by its duly
authorized officers and attorneys, and counsel for the Commission
that:
1. Proposed Respondent Tyco is a corporation organized, existing and
doing business under and by virtue of the laws of Bermuda with its
office and principal place of business located at The Zurich Center,
Second Floor, 90 Pitts Bay Road, Pembroke HM08, Bermuda. Tyco's
principal operating subsidiary in the United States is located at One
Tyco Park, Exeter, New Hampshire 03833.
2. Proposed Respondent admits all the jurisdictional facts set forth
in the draft of Complaint here attached.
3. Proposed Respondent waives:
a. any further procedural steps;
b. the requirement that the Commission's Decision and Order, here
attached and made a part hereof, contain a statement of findings of
fact and conclusions of law;
c. all rights to seek judicial review or otherwise to challenge or
contest the validity of the Decision and Order entered pursuant to
this Consent Agreement; and
d. any claim under the Equal Access to Justice Act.
4. Proposed Respondent shall submit within thirty (30) days of the
date this Consent Agreement is signed by Proposed Respondent an
initial report, pursuant to Commission Rule 2.33, 16 C.F.R. § 2.33,
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3
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COMPLAINT
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EXTRACTED KEY WORDS
TYCO ACQUISITION COMMISSION MALLINCKRODT MARKET UNITED STATES ACT RESPONDENT COMMERCE FEDERAL TRADE COMMISSION VIOLATION ACQUISITION AGREEMENT SALE CLAYTON ACT COMPLAINT BUSINESS ENTRY RELEVANT GEOGRAPHIC AREA FTC ACT MERGER COMPETITION PARAGRAPH JURISDICTION CHARGES PLAN VIRTUE LAWS BERMUDA VOTING SECURITIES |
001-0208
UNITED STATES OF AMERICA
BEFORE FEDERAL TRADE COMMISSION
COMMISSIONERS:
Robert Pitofsky, Chairman
Sheila F. Anthony
Mozelle W. Thompson
Orson Swindle
Thomas B. Leary
In the Matter of
Tyco International Ltd., a corporation.
Docket No. C-3985
COMPLAINT
The Federal Trade Commission ("Commission"), having reason to believe
that Respondent, Tyco International Ltd. ("Tyco"), a corporation
subject to the jurisdiction of the Commission, has agreed to acquire
Mallinckrodt Inc. ("Mallinckrodt"), a corporation subject to the
jurisdiction of the Commission, 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, as amended, 15.U.S.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:
I. DEFINITIONS
1. "Acquisition Agreement" means the Agreement and Plan of Merger By
and Among Tyco Acquisition Corp. VI (NV), EVM Merger Corp. and
Mallinckrodt Inc. Including Guarantee of Tyco International Ltd.,
dated June 28, 2000.
2. "Endotracheal Tube" means a device inserted into the trachea via
the nose or mouth and used to maintain an open airway and to
administer anesthesia or oxygen, and any related accessories attached
to the device used to accomplish those ends.
3. "Respondent" means Tyco.
II. THE PARTIES
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4
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ANALYSIS
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EXTRACTED KEY WORDS
TYCO CONSENT AGREEMENT MARKET COMMISSION DIVEST MALLINCKRODT PUBLIC RECORD ENDOTRACHEAL TUBE BUSINESS ANTICOMPETITIVE EFFECTS PROPOSED CONSENT AGREEMENT UNITED STATES ENTRY EMPLOYEES ACQUISITION REQUIRING HOSPITAL GROUP PURCHASING GROUP PURCHASING ORGANIZATION CONTRACTS ACCOMPLISHING SHERIDAN ACQUIRER CUSTOMERS HUDSON RCI SALES SUPPLIER TRANSACTION EMERGENCY SURGICAL PROCEDURES FIRM |
_________________________________________________________________
ANALYSIS OF AGREEMENT CONTAINING CONSENT ORDER
TO AID PUBLIC COMMENT
_________________________________________________________________
The Federal Trade Commission ("Commission") has accepted, subject to
final approval, an Agreement Containing Consent Order ("Consent
Agreement") from Tyco International, Ltd. ("Tyco"), which is designed
to remedy the anticompetitive effects resulting from Tyco's
acquisition of Mallinckrodt, Inc. Under the terms of the agreement,
Tyco will be required to divest its endotracheal tube business within
ten days of the date the Consent Agreement is placed on the public
record to Hudson RCI, or to another Commission-approved buyer no later
than six (6) months from the date Tyco signed the Consent Agreement.
If the sale of Tyco's endotracheal tube business is not made within
six (6) months, the Commission may appoint a trustee to divest it.
The proposed Consent Agreement has been placed on the public record
for thirty (30) days for reception of comments by interested persons.
Comments received during this period will become part of the public
record. After thirty (30) days, the Commission will again review the
proposed Consent Agreement and the comments received, and will decide
whether it should withdraw from the proposed Consent Agreement or make
final the Decision & Order.
Pursuant to a July 28, 2000 Agreement and Plan of Merger, Tyco agreed
to acquire Mallinckrodt in a stock-for-stock transaction valued at
approximately $4.2 billion. The Commission's Complaint alleges that
the acquisition, if consummated, would violate 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, in the market for
endotracheal tubes.
Tyco, through its Kendall Division, and Mallinckrodt are the largest
providers of endotracheal tubes in the United States. Endotracheal
tubes are devices that are inserted through the nose or mouth into the
trachea to provide oxygen or anesthesia. Hospitals and emergency
personnel use endotracheal tubes to maintain a secure airway during
surgical procedures and emergency situations.
The United States endotracheal tube market is highly concentrated, and
the proposed acquisition would produce a firm controlling
approximately 86% of the market. Mallinckrodt is the largest supplier
of endotracheal tubes, claiming that its products are used in over 70%
of the surgical procedures performed in the United States each year.
Tyco is the next largest supplier. Both companies have product lines
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