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PLEASE NOTE: The Information contained in this facsimile messages is privileged and confidential, and is intended only for the use of the individual named above and others who have been specifically authorized to receive it. If you are not the intended recipient, you are hereby notified that any dissemination, distribution or copying of this communication is strictly prohibited. If you have received this communication in error, or if any problems occur with transmission, please contact sender or call (212) 819-7583. Thank you.
Please see attached:
Elaine Johnston, Esq.
John French, Esq.
Re: Proposed Acquisition by UPM-Kymmene Oyj of Morgan
Dear Ms. Johnston and Mr. French:
On September 17, 2002, UPM-Kymenne Oye ("UPM") and Bemis Company Inc. ("Bemis") filed pre-merger notifications to the Department of Justice ("the Department") and the Federal Trade Commission in connection with Bemis' proposed sale of Morgan Adhesives Company, Inc. to UPM. Item 4(c) of the pre-merger filing instructions required UPM and Bemis to submit "all studies, surveys and reports which were prepared by or for any officer(s) or director(s) . . . for the purpose of evaluating or analyzing the acquisition with respect to market shares, competition, competitors, markets, potential for sales growth or expansion into product or geographic markets. . ."
UPM and Bemis have advised the Department that their pre-merger notifications omitted certain documents that potentially were required to be produced pursuant to Item 4(c) (hereafter, "the omitted 4(c) documents"). Rather than submitting these documents with their pre-merger notifications, UPM and Bemis did not produce them until the week of November 18, 2002, as part of their responses to requests for additional information and documents ("second requests") issued on October 17, 2002. By the time the Department received the omitted 4(c) documents, the investigation had been underway for several weeks and the second requests had been issued without benefit of the information contained in the documents.
From our review of the documents and the background information provided about them to date, the Department has substantial reason to believe that the documents should have been submitted with the pre-merger notifications pursuant to Item 4(c). Moreover, the omitted 4(c) documents contain highly relevant information and raise substantial issues not disclosed in the pre-merger notifications, and had they been submitted at the outset, the documents would have substantially assisted the Department's investigation, including the Department's preparation of interrogatory and document specifications in the second requests issued to UPM and Bemis. Not having these documents materially disadvantaged the Department's investigation by precluding the Department from identifying, evaluating, and seeking discovery with respect to potentially critical facts and issues on a timely basis.
The Department has considered asking the FTC Premerger Notification Office to require UPM and Bemis to recertify their pre-merger notifications and include the omitted 4(c) documents, thereby restarting the waiting period. However, UPM and Bemis have requested that the Department consider possible remedies that would not require the parties to recertify their pre-merger notifications. Upon consideration of the available alternatives, the Department will not seek to require UPM and Bemis to recertify the pre-merger notifications or take any other enforcement action with respect to the omitted 4(c) documents if they agree to the conditions set forth below.A. Agreement to amend and modify the second requests
1. With respect to both UPM's and Bemis' second requests, Definition J, covering the term "relevant product," is replaced in its entirety with the following:
The term "relevant product" as used herein means, and information shall be provided separately for, the following categories of pressure sensitive labelstock products as defined by the Tag and Label Manufacturers Institute:
With respect to both UPM's and Bemis' second requests, Specification 4 is replaced in its entirety with the following:
State the location of each of the company's facilities that employ coater lines to produce any relevant product, and for each such facility state:
3. Bemis' second request is amended to include the following Specification 20:
Identify and describe each product produced by UPM (including a description of the product's functional properties and its end-use applications) that the company has used or has considered using in the production of any relevant product, and separately for each such product identified:
4. UPM's second request is amended to include the following Specification 20:
Identify and describe each product produced by the company (including a description of the product's functional properties and its end-use applications) that has been used in the production of any relevant product, and separately for each such product identified:
5. UPM agrees that none of the previously discussed limitations on the scope of UPM's search for responsive documents (see the Department's letter of November 14, 2002) apply to its responses to Specification 20. Subject to the Department's review of UPM documents produced in response to Specification 20(d), the Department will consider reasonable proposals by UPM to limit its search for other documents responsive to Specification 20.Agreement on Timing
UPM and Bemis agree that : (1) UPM and Bemis will not close the proposed transaction without first having provided the Department with 20 calendar days written notice of closing; and (2) UPM and Bemis will not give the 20-day notice of closing until 60 calendar days after they are both in compliance with their second requests.
Please signify acceptance of these agreements by signing and dating copies of this letter in the spaces provided below and returning the signed copies to me promptly.
Agreed: /s/Elaine Johnston dated 12/10/02
Agreed:_______________________________ dated _________