THE COMPETITION TRIBUNAL

Reference: Commissioner of Compefition V. Lafarge S A. 2001 Comp, Trib, 31

File no.: CT2001004

Registry document no, 12a

PUBLIC VERSION

 

IN TBE MATTER of an application by the Commissioner of Competition for an order pursuant to sections 92 and 105 of the Competition Act, P, S.C, 1985, q. C-34- as amended AND IN THE MATTFR of the proposed acquisition by Lafarge S.A. of Blue Circle Industries PIC,, a company engaged in the construction materials business.

 

 

BETWEEN:

 

The Commissioner of Competition

(applicant)

 

and

 

Lafarge S.A.

(respondent)

 

Date of hearing. 20010801

Member: McKeown, J.   (Chairman),, C. Lloyd,, L. Schwartz

Date of reasons: 20010801

Reasons signed by. McKeown,J.

 

CONSENT ORDER

 

[1] UPON THE application of the Commissioner of Competition (the “Commissioner”), pursuant to sections 92 and 105 of the Competition Act, R.S.C. 1985, c. C-34 as amended (the “Act”), and pursuant to a notice of application dated June 15, 2001, for a consent order directing the Divestiture of certain Assets and other remedies as specified in the draft consent order;

 

[2]AND UPON READING the notice of application, the statement of grounds and material facts, the consent order impact statement and the consent of the parties filed;

 

[3] AND ON CONSIDERING THAT the Commissioner and Lafarge S.A. (“Lafarge”) have reached an agreement which is reflected in this order;

 

[4] AND ON CONSIDERING THAT by the Interim Consent Order dated June 19, 2001, Lafarge is required, pending the final Divestiture of the Affected Businesses or further order of the Competition Tribunal, inter alia, to conduct itself pursuant to the Interim Consent Order, and, in particular, to hold separate and not knowingly to take any action to adversely affect the competitiveness, assets, operations or financial position of the Affected Businesses;

 

[5] AND ON CONSIDERING THAT the Commissioner declares himself satisfied that, on the basis of the considerations outlined in the consent order impact statement, the remedies provided herein, if ordered, will be sufficient to avoid any substantial lessening or prevention of competition in the markets described in the statement of grounds and material facts filed with the notice of application;

 

[6] AND IT BEING UNDERSTOOD by the parties that the Commissioner has alleged certain material facts, and Lafarge does not necessarily agree with all of the facts alleged but does not contest the statement of grounds and material facts or the consent impact statement for the purposes of this application and any proceeding initiated by the Commissioner relating to this consent order, including an application to vary or rescind;

 

[7] AND UPON BEING ADVISED that Lafarge consensually attorns to the jurisdiction of the Competition Tribunal for the purposes of these applications and any proceeding initiated by the Commissioner relating to this consent order, including an application to vary or rescind;

 

[8] AND UPON HEARING counsel for the parties in respect of this application; THE TRIBUNAL ORDERS THAT:

 

Definitions

 

[9] For the purposes of this order, the following definitions shall apply:

 

(a) “Acquisition” means the proposed acquisition by Lafarge of Blue Circle as described in a Merger Agreement dated January 8, 2001, between Lafarge and Blue Circle;

(b) "Affected Businesses” means the Great Lakes Package, Great Lakes Aggregates Package,

 

Other Aggregates Package and the Asphalt and Paving Package, save the assets identified in Schedule “B” (“Excluded Assets”) hereto, including all rights, titles and interests in and to all assets, properties, business and goodwill, tangible or intangible, used to operate the said businesses in the ordinary course and in accordance with past practice, including but not limited to (i) all real property (together with appurtenances, licenses and permits) owned, leased or otherwise held by Blue Circle and used to operate the said businesses; (ii) all personal property owned, leased or otherwise held by Blue Circle and used to operate the said businesses; (iii) all intellectual property owned by or licensed to Blue Circle and used in respect of the operation of the said businesses, 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, (iv) all rights of Blue Circle relating to the said businesses under any contract 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; (v) all governmental approvals, consents, licenses, permits, waivers, or other authorizations held by Blue Circle and used to operate the said businesses; (vi) all rights of Blue Circle relating to the said businesses under any warranty and guarantee, express or implied; (vii) all books, records, and files held by Blue Circle relating to the said businesses; (viii) all plant facilities, machinery, equipment, furniture, fixtures, tools, vehicles, transportation and storage facilities, and supplies held by Blue Circle and used to operate the said businesses; (ix) all rights in and to inventories of products, raw materials, supplies and parts, including work-in-process and finished goods held by Blue Circle and used in respect of the operation of the said businesses; (x) all customer and vendor lists, catalogues, sales promotion literature, and advertising materials held by Blue Circle and used in the operation of the said businesses; (xi) all rights in and to quarries and pits (together with appurtenances, licenses and permits) owned, leased or otherwise held by Blue Circle and used to operate the said businesses; and, (xii) all items of prepaid expense held by Blue Circle and used in respect of the operation of the said businesses;

 

(c) “Affected Business(es) Employees” means employees of Blue Circle who worked at least one hundred (100) work days for the relevant Affected Business(es) during the twelve month period prior to the date of Divestiture of the Affected Business(es);

 

(d) “Affected Business(es) Key Employees” means any Affected Business(es) Employees identified as such between Lafarge and the Purchaser of the Affected Business(es);

 

(e) “Asphalt and Paving Package” means all of the business identified as such in Schedule “A” hereto;

 

(f) “Blue Circle” means Blue Circle Industries plc, a corporation existing under the laws of England and Wales, and affiliates thereof;

 

(g) “Blue Circle Fonthill Aggregate Operation” means Blue Circle’s aggregates production facilities located at Fonthill, in the Town of Pelham, Region of Niagara, including the lands known as the “Haist Land”, “Haist Parcel A”, “Haist Parcel B”, “Washutta Lands”, “Park Street”, “Collins Land”, “Woodgate Land”, and “Haun Land”;

 

(h) “Commissioner” means the Commissioner of Competition appointed pursuant to section 7 of the Competition Act;

 

(i) “Confidential Information” means competitively sensitive or proprietary information relating to the Affected Businesses not independently known to Lafarge or its affiliates, including, without limiting the generality of the foregoing, any such customer lists, price lists, marketing methods or other trade secrets that relate to the said businesses;

 

(j) “Consent Proceeding” means the application of the Commissioner pursuant to sections 92 and 105 of the Act for this order directing the divestiture of certain assets owned by affiliates of Blue Circle in Canada and certain other remedies in respect of this matter;

 

(k) “Divest” means to implement a Divestiture(s);

 

(l) “Divestiture(s)” means the sale, transfer, assignment, redemption or other disposition necessary to ensure that, by completion of the Divestiture(s), Lafarge has, directly or indirectly, no remaining right, title or interest in the Affected Business(es) inconsistent with the terms of this order;

 

(m) “Excluded Assets” means the assets identified in Schedule “B” hereto, which need not be included in the Divestiture of the Affected Businesses;

 

(n) “Final Divestiture” means the Divestiture which results in the circumstances described in paragraph 12 of this order;

 

(o) “Great Lakes Aggregates Package” means all of the businesses identified as such in Schedule “A” hereto;

 

(p) “Great Lakes Package” means all of the businesses identified as such in Schedule “A” hereto, including, for greater certainty, all of Blue Circle’s rights, titles and interests in and to the Great Lakes Slag Joint Venture;

 

(q) “Great Lakes Slag Joint Venture” means the joint venture between Blue Circle Canada Inc. and St. Lawrence Cement Inc. (“St. Lawrence”) as set forth in the Share Purchase and Shareholder Agreement by and among St. Lawrence, Blue Circle Canada Inc. and Great Lakes Slag Inc., dated March 27, 2000;

 

(r) “Independent Manager(s)” means the Independent Manager(s) of the Affected Business(es) appointed pursuant to paragraphs 7 or 8 of the Interim Consent Order dated June 19, 2001, and any employees, agents or other persons acting for or on behalf of the Independent Manager(s) with respect to any matter referred to in the Interim Consent Order

dated June 19, 2001;

 

(s) “Lafarge” means Lafarge S.A., a corporation existing under the laws of France;

 

(t) “Monitor” means any Monitor appointed pursuant to paragraphs 21–22 of the Interim Consent Order dated June 19, 2001, and any employees, agents or other persons acting for or on behalf of the Monitor with respect to any matter referred to in the Interim Consent Order dated June 19, 2001;

 

(u) “Other Aggregates Package” means all of the businesses identified as such in Schedule “A” hereto;

 

(v) “Person” means any natural person, corporation, association, firm, partnership or other business or legal entity;

 

(w) “Purchaser(s)” means the person(s) or entity(ies) who will purchase any, or all, of the Affected Businesses in accordance with the procedure for Divestiture set out in this order;

 

(x) “Respondent” means Lafarge;

 

(y) “Trustee” means any trustee appointed pursuant to paragraph 27 or 30 of this order, and any employees, agents, or other Persons acting for or on behalf of the Trustee with respect to any matter referred to in this order.

 

Continuation of the Interim Consent Order

 

[10] Paragraphs 7 to 31 and 35 to 38 of the Interim Consent Order dated June 19, 2001, are attached hereto as Schedule “C” and are hereby incorporated into and made a part of this order and expressions not defined therein shall have the meanings set out in paragraph 9 of this order. Reference to “this order” in such incorporated paragraphs of the Interim Consent Order shall be read as references to the present order, except in relation to paragraph references, which references shall be to the numbers of the incorporated paragraphs. Except to the extent incorporated hereby, the Interim Consent Order is hereby rescinded as of the date of the making of this order.

 

Application

 

[11] The provisions of this order apply to:

 

(a)    the Respondent;

 

(b) each division, subsidiary, or other Person controlled by the Respondent and each officer, director, employee, agent or other Person acting for or on behalf of the Respondent with respect to any of the matters referred to in this order save the Affected Businesses;

 

(c) the successors and assigns of the Respondent, and all other Persons acting in concert or participating with any of them with respect to the matters referred to in this order, save the Affected Businesses, who shall have received actual notice of this order;

 

(d) the Independent Manager(s) of the Affected Businesses or any substitute Independent Manager(s) appointed pursuant to paragraphs 7 and 8 of the Interim Consent Order dated June 19, 2001, and each employee, agent or other Person acting for or on behalf of the Independent Manager with respect to any matter referred to in this order;

 

(e) Daniel E. Somes or any other individual appointed herein as Monitor pursuant to paragraph 21 of the Interim Consent Order dated June 19, 2001, or any substitute Monitor(s) appointed pursuant to paragraph 22 of the Interim Consent Order dated June 19, 2001, and each employee, agent or other Person acting for or on behalf of such Monitor with respect to any matter referred to in this order;

 

(f) the Trustee; and,

 

(g) the Purchaser(s) and the Purchaser’s successors and assigns.

 

Divestiture of the Affected Businesses

 

[12] Lafarge shall use its best efforts to Divest the Affected Businesses as soon as possible, but in any event no later than one hundred and eighty (180) days from the date of closing of the Acquisition, in accordance with the procedure for Divestiture set out herein. To the extent that the Divestiture(s) of an Affected Business(es) required hereby was completed prior to the issuance of this order, to the satisfaction of the Commissioner, the Commissioner shall waive compliance with the obligations herein and the Divestiture will be deemed to have been implemented in accordance with this order. To the extent that the Divestiture(s) of an Affected Business(es) required hereby was commenced, but not completed, prior to the issuance of this order, to the satisfaction of the Commissioner, the Commissioner may waive compliance with the obligations in paragraphs 23, 24 and/or 26 herein and the Divestiture(s) procedures undertaken to that date will be deemed to have been undertaken in accordance with this order. If the Divestiture of any, or all, of the Affected Businesses is not completed by Lafarge within one hundred and eighty (180) days from the date of the closing of the Acquisition, the Divestiture(s) of such remaining Affected Business(es) shall be carried out by the Trustee in accordance with the procedure set out hereafter.

 

Divestiture Procedure

 

[13] Lafarge shall Divest the Great Lakes Package to a Purchaser approved by the Commissioner.

 

[14] Lafarge shall offer to Divest all of the Great Lakes Aggregates Package to the proposed Purchaser of the Great Lakes Package, as approved by the Commissioner per paragraph 13 above, and shall divest to such Purchaser any, or all, of the Great Lakes Aggregates Package which such Purchaser wishes to acquire.

 

[15] Lafarge shall offer to Divest all of the Great Lakes Aggregates Package, not divested pursuant to paragraph 14 above, and all of the Other Aggregates Package, to prospective Purchaser(s), including, but not limited to, the Purchaser referenced in paragraph 14 above, all of whom will be free to bid on any or all of the businesses within these Packages. Lafarge may Divest all, or any, of these businesses to a Purchaser(s) approved by the Commissioner. If the Purchaser of the Great Lakes Package, referenced in paragraph 14 above offers the most advantageous terms, including but not limited to price, for the Other Aggregates Package, or any part thereof, Lafarge shall divest the Other Aggregates Package, or such parts thereof, to such Purchaser.

 

[16] Lafarge shall offer to Divest the Asphalt and Paving Package to a prospective Purchaser(s). The said prospective Purchaser(s) will be free to bid on any or all of the Asphalt and Paving Package. Lafarge will Divest all, or any, of the Asphalt and Paving Package to a Purchaser(s) approved by the Commissioner.

 

[17] Lafarge shall not, without the consent of the Commissioner, provide financing for all or any part of any Divestiture under this order which would permit Lafarge to influence or control, directly or indirectly, the relevant businesses after the Divestiture.

 

[18] Lafarge need not divest any of the assets of the Affected Businesses, referenced in paragraphs 13-16 above, if the Purchaser(s) chooses not to acquire such businesses and the Commissioner approves the Divestiture without such businesses.

 

[19] The Divestiture(s) of the Affected Business(es) shall be completed on the following terms:

 

(a)    by way of disposition of the Affected Businesses for use as a going concern;

 

(b)   to an arm’s length Purchaser(s) who will meet the following objective criteria:

 

(i) effect the purchase with the expressed intention of carrying on the relevant business(es);

ii) have the managerial, operational and financial capability to so carry on the relevant

business(es);

 

(c)    by way of a commercially reasonable procedure; and

 

(d) on usual commercial terms for transactions of the size and nature of that contemplated in this order and in the circumstances contemplated by this order.

 

[20] In connection with any Divestiture made pursuant to this order, Lafarge will not require or otherwise cause to be instituted, any restrictions, whether in the form of restrictive covenants, non-compete agreements or other terms or conditions, which in any way limit or impair the ability of any Person(s) acquiring any of the Affected Businesses to operate those businesses as a going concern.

 

[21] The Affected Businesses shall not be Divested on the condition that the Purchaser enter into any joint venture, marketing, co-packing, swap or other collaborative arrangement with Lafarge, but this provision shall not preclude Lafarge and the Purchaser from entering into mutually agreeable transitional arrangements necessary or desirable to facilitate the sale of the Affected Businesses, subject to the approval of the Commissioner.

 

[22] For a period of up to six (6) months from the date of Divestiture of the Affected Business(es):

 

(a) at the request of the Purchaser of the Affected Business(es), Lafarge shall provide technical assistance and advice sufficient to enable the Purchaser of the Affected Business(es) to obtain government approvals necessary to operate the Affected Business(es);

 

(b) at the request of the Purchaser of the Affected Business(es), Lafarge shall provide such technical assistance as is necessary to enable the Purchaser of the Affected Business(es) to conduct the Affected Business(es) in substantially the same manner as Blue Circle operated the Affected Business(es) at the time of the announcement of the Acquisition; and,

 

(c) Lafarge shall receive no compensation for providing the assistance required that exceeds the out-of-pocket costs associated with providing such technical assistance and the direct cost of the material and labor to provide such assistance.

 

[23] Lafarge shall allow the Purchaser of the Affected Business(es) an opportunity to employ the Affected Business(es) Employees as follows:

 

(a) not later than thirty (30) days before the date of Divestiture of the Great Lakes Package,   and not later than seven (7) days before the date of Divestiture of the Great Lakes Aggregates Package, Other Aggregates Package and/or the Asphalt and Paving Package, Lafarge shall, to the extent permissible under applicable laws, (i) provide to the Purchaser of the Affected Business(es) a list of all the relevant Affected Business(es) Employees, (ii) allow the Purchaser of such Affected Business(es) an opportunity to interview such Affected Business(es) Employees, and (iii) allow the Purchaser of such Affected Business(es) to inspect the personnel files and other documentation relating to such Affected Business(es) Employees.

 

(b) Lafarge shall, to the extent permissible under applicable laws, (i) not offer any incentive to any Affected Business(es) Employee to decline employment with the Purchaser of such Affected Business(es), (ii) remove any contractual impediments with Lafarge that may deter any Affected Business(es) Employee from accepting employment with the Purchaser of such Affected Business(es), including, but not limited to, any non-compete or confidentiality provisions of employment or other contracts with Lafarge that would affect the ability of the Affected Business(es) Employee to be employed by the Purchaser of such Affected Business(es), (iii) not interfere with the employment by the Purchaser of the Affected Business(es) of any Affected Business(es) Employee, (iv) continue employee benefits offered by Lafarge until the divestiture has been completed, including regularly scheduled raises and bonuses, and regularly scheduled vesting of all pension benefits, and (v) pay a bonus to Affected Business(es) Key Employees who accept an offer of employment from the Purchaser of the Affected Business(es) no later than thirty (30) days from the date Lafarge divests the Affected Business(es) pursuant to the terms set forth in Confidential Schedule “D” to this order.

 

(c) For a period of one year from the earlier of the date this order is issued or the Decision and Order of the Federal Trade Commission in respect of this matter becomes final, Lafarge shall not, directly or indirectly, solicit, hire or enter into any arrangement for the services of any Affected Business(es) Employee employed by the Purchaser of such Affected Business(es), unless the Affected Business(es) Employee’s employment has been terminated by the Purchaser of such Affected Business(es).

 

[24] Any Person making a bona fide inquiry of Lafarge or its agent regarding the possible purchase by that Person or its principal of an Affected Business(es) shall be notified that the Divestiture(s) is being made pursuant to this order and provided with a copy of the public version of this order. Any bona fide prospective Purchaser shall be furnished, subject to the execution by such Person of a customary confidentiality agreement, with all pertinent information regarding the relevant businesses, such information to be provided to the Commissioner on request. Any bona fide prospective Purchaser shall, subject to the execution by such Person of an appropriate confidentiality agreement, be permitted to make such inspection of the relevant assets and of all financial, operational or other documents and information as may be relevant to the Divestiture(s) of the relevant business(es) as are in the possession or control of Lafarge, except for all documents which have been or shall be made the subject of an order of confidentiality of the Competition Tribunal.

 

[25] Lafarge shall use its best efforts to accomplish the Divestiture(s) of the Affected Businesses within the time period specified in this order.

 

[26] Lafarge shall, at a minimum every thirty (30) days, report to the Commissioner, in writing, of the progress of its efforts to accomplish the Divestiture of the Affected Businesses, including a description of contacts or negotiations and the identity of all parties contacted and prospective Purchasers who have come forward, all with reasonable details. The Commissioner has the right to request additional information from Lafarge regarding the Divestiture efforts and Lafarge shall respond forthwith.

 

Trustee Sale

 

[27] If the Divestiture of the Affected Businesses is not completed by Lafarge within one hundred and eighty (180) days from the date of closing of the Acquisition, the Commissioner may appoint Daniel E. Somes as Trustee to effect the Divestiture (the “Trustee sale”) of one or more of the Affected Businesses. The Commissioner may select someone other than Daniel E. Somes to serve as the Trustee, subject to the consent of Lafarge, which consent shall not be unreasonably withheld. Lafarge shall be deemed to have consented to the appointment of such person as Trustee if Lafarge has not opposed the appointment, in writing, within ten (10) days of Lafarge’s receipt of written notice by the Commissioner of the identity of the proposed Trustee. The Trustee appointed pursuant to the above shall be appointed on the following terms:

 

(a) the Great Lakes Package shall be sold by the Trustee within twelve (12) months of the Trustee’s appointment by the Commissioner and the U.S. Federal Trade Commission, at a price and on terms and conditions most advantageous to Lafarge then reasonably available, in the opinion of the Trustee, but with no minimum price;

 

(b) the Great Lakes Aggregates Package, the Other Aggregates Package, and the Asphalt and Paving Package shall be sold by the Trustee [ ] of the Trustee’s appointment by the Commissioner and the U.S. Federal Trade Commission, at a price and on terms and conditions most advantageous to Lafarge then reasonably available, in the opinion of the Trustee, but with no minimum price;

 

(c) the Trustee sale shall be considered to have been completed when the proposed Purchaser(s) has signed a binding agreement that has not been the subject of objection by the Commissioner pursuant to paragraph 36, by Lafarge pursuant to paragraph 38, or has been approved by the Competition Tribunal pursuant to paragraph 38 hereinafter;

 

(d) after the appointment of the Trustee becomes effective, only the Trustee shall have the sole right to effect the Divestiture of the Affected Businesses;

 

(e) the Trustee shall have full power and authority to effect the Trustee sale and shall use best efforts to accomplish it;

 

(f) Lafarge shall use its reasonable best efforts to assist the Trustee in accomplishing the Trustee sale. In connection therewith, the Trustee shall have full and complete access, as is reasonable in the circumstances, subject to any legally recognized privilege and an appropriate confidentiality agreement, to the personnel, books, records and facilities of Lafarge relating to the Affected Businesses, who shall take no action to interfere with or impede the Trustee’s accomplishment of the Trustee sale;

 

(g) after his appointment, the Trustee shall, at a minimum, every sixty (60) days, file reports with the Commissioner and Lafarge, setting forth the Trustee’s efforts to accomplish the Trustee sale;

 

(h) the Trustee shall promptly notify Lafarge and the Commissioner of any negotiations with a prospective Purchaser that, in the opinion of the Trustee, may lead to a Trustee sale;

 

(i) all expenses reasonably and properly incurred by the Trustee in the course of the Trustee sale shall be paid by Lafarge and the proceeds of the Trustee sale shall be paid to Lafarge or as Lafarge may direct; and

 

(j) the Trustee shall have such other powers as the Competition Tribunal may grant to the Trustee upon the request of the Commissioner or Lafarge.

 

[28] Lafarge shall not object to the Trustee sale on any grounds other than the Trustee’s malfeasance, gross negligence, bad faith or breach of this order and any such objection shall be made in accordance with provisions of paragraph 38 hereinafter. Lafarge shall hold the Trustee harmless against any losses, claims damages, liabilities or expenses arising out of, or in connection with, the performance of Trustee’s duties under this order except to the extent that such liabilities, losses, damages, claims or expenses result from malfeasance, gross negligence, bad faith or breach of this order.

 

[29] If the Trustee has not accomplished the Trustee sale within the time period specified in paragraph 27 above, the Trustee shall thereupon promptly file with the Competition Tribunal, on a confidential basis, a report setting forth: (1) the Trustee’s efforts to accomplish the required sale; (2) the reasons, in the Trustee’s judgment, why the required sale has not been accomplished, and (3) the Trustee’s recommendations. The Trustee shall, at the same time, furnish such report to the Commissioner and Lafarge, who shall have the right to be heard by, and to make additional recommendations to, the Competition Tribunal consistent with the purpose of the Trustee sale(s). The Competition Tribunal may thereafter make such orders as it deems appropriate in order to effect the Trustee sale.

 

[30] If the Trustee appointed pursuant to paragraph 27 above has ceased to act or failed to act diligently or otherwise in accordance with this order, the Commissioner may appoint a substitute Trustee to carry out the functions of the Trustee in accordance with this order. This order shall apply to any substitute Trustee appointed pursuant to this paragraph.

 

Extension of Time

 

[31] Notwithstanding anything to the contrary herein, if, prior to the expiry of a time period for a Divestiture(s) herein, Lafarge or the Trustee, as the case may be, and a prospective Purchaser(s) of some or all of the Affected Businesses enter into a letter of intent, or Lafarge or the Trustee, as the case may be, receive an offer or similar written communication of intention to purchase such Affected Business(es), Lafarge or the Trustee, as the case may be, shall, advise the Commissioner and shall have an additional thirty (30) days within which to complete such Divestiture.

 

[32] The Commissioner and Lafarge may agree to extend any of the time periods applicable herein.

 

Commissioner’s Approval

 

[33] The Divestiture(s) of the Affected Businesses by Lafarge or the Trustee, pursuant to the order, is subject to the approval of the Commissioner, which shall be based on criteria outlined in paragraph 19 herein above and shall be obtained in accordance with the notification procedure set out in paragraphs 34 to 39 hereinafter. If the proposed Purchaser(s) is an existing or planned participant in the relevant market identified in the statement of grounds and material facts, the Commissioner may also take into account the likely impact of the Divestiture on competition in that market as a consideration in approving the Divestiture.

 

Notification

 

[34] Lafarge or the Trustee, whichever is then responsible for effecting the Divestiture of all or part of the Affected Businesses, shall notify the Commissioner of any proposed Divestiture. If the Trustee is responsible, it shall similarly notify Lafarge. The notice shall include:

 

(a) the identity of the proposed Purchaser(s);

(b) the details of the proposed transaction;

(c) information concerning whether the proposed Purchaser(s) would satisfy the terms of paragraph 19 herein above;

(d)   an update to the last report provided pursuant to paragraphs 26 or 27(g) herein above; and

(e)    (e) the agreement of the proposed Purchaser that it will respond within ten (10) days to a request by the Commissioner for additional information regarding the proposed Divestiture.

 

[35] Within ten (10) days after receipt of the notice referred to in paragraph 34 herein above, the Commissioner and, in the case of a Trustee sale, Lafarge may request additional information concerning the proposed Divestiture(s), the proposed Purchaser(s) and any other potential Purchaser(s). Lafarge, the Trustee, or the proposed Purchaser(s), as the case may be, shall provide the additional information within ten (10) days of the receipt of the request, unless the Commissioner agrees in writing to extend the time.

 

[36] Within fifteen (15) days after receipt of the notice pursuant to paragraph 34 herein above or, if the Commissioner has requested additional information pursuant to paragraph 35, within fifteen (15) days after receipt of the said information, the Commissioner shall notify, in writing, Lafarge and the Trustee, if there is one, if the Commissioner objects to the proposed Divestiture(s) on the ground that it does not conform to the terms of this order, and shall give detailed reasons therefore. If the Commissioner objects, Lafarge may apply to the Competition Tribunal for an order approving the proposed Divestiture(s).

 

[37] If the Commissioner fails to object within the period set out in paragraph 36 herein above and on the grounds set out in paragraph 36, or if the Commissioner notifies, in writing, Lafarge and the Trustee, if there is one, that he does not object, then the Divestiture(s) of the Affected Businesses may be completed, subject to paragraph 38 and 39 hereinafter.

 

[38] Within ten (10) days after receipt of the notice pursuant to paragraph 34 herein above or if Lafarge has requested additional information pursuant to paragraph 35, within ten (10) days after receipt of said information, Lafarge shall notify the Commissioner and the Trustee in writing if it objects to the proposed Trustee sale pursuant to paragraph 28 herein above, and the grounds for its objection. Upon objection by Lafarge pursuant to paragraph 28, the proposed Trustee sale shall not be completed unless approved by the Competition Tribunal.

 

[39] Lafarge or the Trustee, as the case may be, shall notify the Commissioner forthwith after the Divestiture of the Affected Businesses required by this order has been completed.

 

Compliance Inspection

 

[40] For the purpose of determining or securing compliance with this order, subject to any valid claim to a legally recognized privilege, and upon written request, the Respondent shall permit any duly authorized representative of the Commissioner:

 

(a) upon a minimum of three (3) days notice to the Respondent, access during office hours of the Respondent to inspect and copy all books, ledgers, accounts, correspondence, memoranda, and other records and documents in the possession or under control of the Respondent relating to compliance with this order; and

 

(b) upon a minimum of eight (8) days notice to the Respondent, and without restraint or interference from the Respondent, to interview directors, officers or employees of the Respondent on matters in the possession or under control of the Respondent relating to compliance with this order.

 

Notice

 

[41] Notices and reports required to be given pursuant to any of the terms of this order, shall be considered given if dispatched by personal delivery, registered mail or facsimile to the address or facsimile number below:

 

(a) If to the Commissioner:

The Commissioner of Competition

Competition Bureau

Industry Canada

Place du Portage

Phase I, 50 Victoria Street,

Hull, Quebec K1A 0C9

Attention: André Brantz

John Symes

Fax: (819) 953-9267

 

(b) If to Lafarge

Lafarge S.A.

61, rue des Belles Feuilles

B.P. 4075782

Paris, Cedex 16 France

Attention: Dominique Hooreman

Fax: (011) 331 44 34 1148

With a copy to:

Stikeman Elliott

Barristers & Solicitors

1600-50 O’Connor Street

Ottawa, Ontario K1P 6L2

Attention: Lawson A.W. Hunter, Q.C.

Susan Hutton

Randall J. Hofley

Fax: (613) 230-8877

 

Further Provision

 

[42] Lafarge shall require, as a condition of sale of the Blue Circle Fonthill Aggregate Operation to Lafarge Corp. or an affiliate thereof, that Lafarge Corp. or an affiliate thereof offer to supply aggregate products produced at the Blue Circle Fonthill Aggregate Operation to all purchasers at commercially reasonable and non-discriminatory prices and terms, provided that Lafarge Corp. or an affiliate thereof, as the case may be, shall not be required to offer to supply any purchaser which is in default of payment under any supply arrangement with Lafarge Corp. or an affiliate thereof. Lafarge, should it maintain the Blue Circle Fonthill Aggregate Operation, shall offer to supply aggregate products produced at the Blue Circle Fonthill Aggregate Operation to all purchasers at commercially reasonable and non-discriminatory prices and terms, provided that Lafarge shall not be required to offer to supply any purchaser which is in default of payment under any supply arrangement with Lafarge or an affiliate thereof.

 

General

 

[43] Jurisdiction shall be retained by the Competition Tribunal for the purpose of any application by the Commissioner or Lafarge to rescind or vary any of the provisions of this order in the event of a change of circumstances or otherwise.

 

[44] In the event of a dispute as to the interpretation of this order, the Commissioner, the Trustee or Lafarge shall be at liberty to apply to the Competition Tribunal for a further order interpreting any of the provisions of this order.

 

DATED at , this day of 2001.

SIGNED on behalf of the Competition Tribunal by the presiding judicial member.

 

[45] SCHEDULE “A”

 

AFFECTED BUSINESSES

 

A. GREAT LAKES PACKAGE

Cement Assets

 

1.      The cement plant located