July 6, 2021 2021-003 COMPETITION TRIBUNAL
2 IN THE MATTER OF the Competition Act, R.S.C. 1985, c. C-34, and the Competition Tribunal Rules, SOR/2008-141;
AND IN THE MATTER OF the proposed acquisition by a subsidiary of Federated Cooperatives Limited of the agricultural retail business carried on by Blair’s Fertilizer Ltd. and Blair’s Crop Solutions Inc., and the creation of a joint venture between FCL and Blair’s;
AND IN THE MATTER OF the filing and registration of a consent agreement pursuant to sections 92 and 105 of the Competition Act.
B E T W E E N : THE COMMISSIONER OF COMPETITION Applicant – and – FEDERATED CO-OPERATIVES LIMITED, BLAIR’S FERTILIZER LTD. and BLAIR’S CROP SOLUTIONS (2020) INC. Respondents
CONSENT AGREEMENT RECITALS: A. Federated Co-operatives Limited (“FCL”) proposes that its subsidiary Blair’s Crop Solutions (2020) Inc. (“BCS”) will acquire the agricultural retail business carried on by Blair’s Fertilizer Ltd. and Blair’s Crop Solutions Inc., now amalgamated as Blair’s Fertilizer Ltd. (“Blair’s”), Blair’s proposes to acquire 20% of BCS, and FCL and Blair’s propose to enter into a unanimous shareholders agreement that will govern BCS (the “Transaction”).
B. The Respondents have amended and restated their Asset Purchase Agreement to, among other things, resolve the Commissioner’s concerns in respect of Blair’s fertilizer terminal logistics business in Hanley, Saskatchewan.
PUBLIC VERSION CT-
PUBLIC VERSION C. The Commissioner has concluded that the Transaction is likely to result in a substantial lessening of competition in the supply of Crop Production Products in the Lipton, Saskatchewan area and that the implementation of this Agreement is necessary to ensure that any substantial lessening of competition will not result from the Transaction.
D. The Respondents do not admit but will not for the purposes of this Agreement, including execution, registration, enforcement, variation or rescission, contest the Commissioner’s conclusions that (i) the Transaction is likely to result in a substantial lessening of competition in the supply of Crop Production Products in the Lipton, Saskatchewan area; and (ii) the implementation of this Agreement is necessary to ensure that any substantial lessening of competition will not result from the Transaction.
E. Nothing in this Agreement affects any investigation, inquiry or proceeding other than under section 92 of the Act in respect of the Transaction.
THEREFORE the Respondents and the Commissioner agree as follows: I. DEFINITIONS [1] Whenever used in this Agreement, the following words and terms have the meanings set out below:
(a) “Act” means the Competition Act, R.S.C. 1985, c. C-34, as amended; (b) “Affiliate” has the meaning given to it in subsection 2(2) of the Act; (c) “Agreement” means this Consent Agreement, including the schedules hereto, and references to a “Part”, “Section”, “Paragraph” or “Schedule” are, unless otherwise indicated, references to a part, section, paragraph or schedule of or to this Agreement;
(d) “BCS” means Blair’s Crop Solutions (2020) Inc.; (e) “Blair’s” means Blair’s Fertilizer Ltd., the successor by way of amalgamation of, among others, Blair’s Fertilizer Ltd. and Blair’s Crop Solutions Inc., its Affiliates, and their directors, officers, employees, agents, representatives, successors and assigns;
(f) “Business Day” means a day on which the Competition Bureau’s Gatineau, Quebec office is open for business;
(g) “Closing” means the completion of the Transaction under the Transaction Agreement;
(h) “Closing Date” means the date on which Closing occurs; (i) “Commissioner” means the Commissioner of Competition appointed under the Act and includes his authorized representatives;
PUBLIC VERSION (j) “Confidential Information” means competitively sensitive, proprietary and all other information that is not in the public domain, and that is owned by or pertains to a Person or a Person’s business, and includes, but is not limited to, manufacturing, operations and financial information, customer lists, price lists, contracts, cost and revenue information, marketing methods, patents, technologies, processes, or other trade secrets;
(k) “Crop Production Products” means fertilizer, custom-blended macro- and micro-nutrients, crop protection products, seed products and seed treatments;
(l) “Crop Production Product Business” means the retail sale of Crop Production Products to end-use customers, and does not include wholesale sales of Crop Production Products to retailers;
(m) “Designated Personnel” means the employees of FCL listed in Confidential Schedule C to this Agreement, as modified from time to time by agreement of FCL and the Commissioner, who shall have signed a confidentiality agreement in a form satisfactory to the Commissioner;
(n) “Divested Business” means Blair’s agricultural retail business at Lipton, Saskatchewan, including the anhydrous ammonia operations located at NW 12-23-14-2 (the Lipton Site) and SW 15-21-11-2 (the Balcarres Site);
(o) “Divestiture” means the sale, conveyance, transfer, assignment or other disposal of the Divestiture Assets to a Purchaser pursuant to this Agreement and with the prior approval of the Commissioner, such that the Respondents will have no direct or indirect interest in the Divestiture Assets;
(p) “Divestiture Agreement” means a binding and definitive agreement between the Respondents and a Purchaser to effect the Divestiture pursuant to this Agreement and subject to the prior approval of the Commissioner;
(q) “Divestiture Applicant” means the Respondents during the Initial Sale Period or the Divestiture Trustee during the Divestiture Trustee Sale Period;
(r) “Divestiture Assets” means all of the right, title and interest in, to and under, or relating to, the tangible assets, Intangible Assets, property and undertaking owned or used by the Respondents or held by the Respondents for use in, or relating to, the Divested Business, excluding the Excluded Assets;
(s) “Divestiture Process Agreement” means the agreement described in Section 6 of this Agreement;
PUBLIC VERSION (t) “Divestiture Trustee” means the Person appointed pursuant to Part III of this Agreement (or any substitute appointed thereto) and any employees, agents or other Persons acting for or on behalf of the Divestiture Trustee;
(u) “Divestiture Trustee Sale” means the Divestiture to be conducted by the Divestiture Trustee pursuant to Part III of this Agreement;
(v) “Divestiture Trustee Sale Period” means the 6 month period commencing upon expiry of the Initial Sale Period;
(w) “Excluded Assets” means the following assets, properties, rights and interests owned or used by the Respondents or held by the Respondents:
(i) all of the right, title and interest in, to and under, or relating to, the following Intangible Assets:
a. the domain www.Blairs.ag; and b. the following logos and names and any and all derivatives thereof:
(i) Blair’s Fertilizer; (ii) Blair’s Crop Solutions; (iii) Blair’s Family of Companies; (iv) Blair’s Direct; (v) Blair’s University; (vi) AG ESP TV; (vii) Ag Intelligence; (viii) Blair’s Crop and Livestock; (ix) Blair’s Professional Agronomy; (x) Blair’s MegaPlot; (xi) PerforMAX Nutrition; and (xii) PerforMAX Weatherprotect Technology; and (ii) the “Excluded Assets” as defined in the Transaction Agreement; (x) “FCL” means Federated Co-operatives Limited and its Affiliates and their directors, officers, employees, agents, representatives, successors and assigns;
(y) “FCL’s Continuing Employees” means those employees of FCL who are not employed in connection with the Divestiture Assets;
PUBLIC VERSION (z) “First Reference Date” shall have the meaning set out in Paragraph 22(d) of this Agreement;
(aa) “Initial Sale Period” means the period that commences at Closing and ends at the time set out in Confidential Schedule A to this Agreement;
(bb) “Intangible Assets” means intellectual property of any nature and kind, including:
(i) patents, copyrights, trademarks and software; (ii) trade dress, industrial designs, distinguishing guises, trade secrets, know-how, techniques, data, inventions, practices, methods and other confidential or proprietary technical, business, research, development and other information, and all rights in any jurisdiction to limit the use or disclosure thereof;
(iii) rights to obtain and file for patents and registrations thereof; and (iv) rights to sue and recover damages or obtain injunctive relief for infringement, dilution, misappropriation, violation or breach of any of the foregoing;
(cc) “Monitor” means the Person appointed pursuant to Part X of this Agreement (or any substitute appointed thereto), and any employees, agents or other Persons acting for or on behalf of the Monitor, provided that if no Monitor is appointed, other than in Part X of this Agreement Monitor means the Commissioner;
(dd) “Monitor Agreement” means the agreement described in Section 35 of this Agreement;
(ee) “Person” means any individual, corporation or partnership, sole proprietorship, trust or other unincorporated organization capable of conducting business, and any Affiliates thereof;
(ff) “Purchaser” means a Person that acquires Divestiture Assets pursuant to this Agreement and a Divestiture Agreement;
(gg) “Records” means records within the meaning of subsection 2(1) of the Act;
(hh) “Respondents” means FCL, BCS and Blair’s; (ii) “Second Reference Date” shall have the meaning set out in Paragraph 22(e) of this Agreement;
PUBLIC VERSION (jj) “Third Party” means any Person other than the Commissioner, the Respondents or the Purchaser;
(kk) “Transaction” means the transaction described in the first recital to this Agreement;
(ll) “Transaction Agreement” means the Amended and Restated Asset Purchase Agreement dated June 17, 2021; and
(mm) “Tribunal” means the Competition Tribunal established by the Competition Tribunal Act, R.S.C. 1985, c.19 (2 nd Supp.). II. OBLIGATION TO COMPLETE DIVESTITURE [2] The Respondents shall use commercially reasonable efforts to complete the Divestiture.
[3] During the Initial Sale Period, the Respondents shall use commercially reasonable efforts to complete the Divestiture in accordance with the provisions of this Part and Confidential Schedule A and subject to Part IV.
[4] During the Initial Sale Period, the Respondents shall provide to the Commissioner and to the Monitor every 30 days a written report describing the progress of its efforts to effect the Divestiture. The report shall include a description of contacts, negotiations, due diligence and offers regarding the Divestiture Assets, the name, address and phone number of all parties contacted and of prospective Purchasers who have come forward. The Respondents shall, within 3 Business Days, respond to any request by the Commissioner for additional information regarding the status of the Respondents’ efforts to complete the Divestiture. An officer or other duly authorized representative of the Respondents shall certify that he or she has examined the information provided in any such response and that such information is, to the best of his or her knowledge and belief, correct and complete in all material respects.
III. DIVESTITURE TRUSTEE SALE PROCESS [5] In the event that the Respondents fail to complete the Divestiture during the Initial Sale Period, the Commissioner shall appoint a Divestiture Trustee to complete the Divestiture in accordance with this Agreement. Such appointment may be made at any time prior to the expiry of the Initial Sale Period or on such later date as the Commissioner determines.
[6] Within 5 Business Days after the appointment of the Divestiture Trustee, the Respondents shall submit to the Commissioner for approval the terms of a proposed Divestiture Process Agreement with the Divestiture Trustee and the Commissioner that confers on the Divestiture Trustee all rights and powers necessary to permit the Divestiture Trustee to effect the Divestiture.
6
PUBLIC VERSION [7] Within 5 Business Days after receipt of the proposed Divestiture Process Agreement referred to in Section 6, the Commissioner shall advise the Respondents whether or not he approves the terms of the proposed Divestiture Process Agreement. If the Commissioner does not approve the terms of the proposed Divestiture Process Agreement, he shall prescribe alternative terms that the Respondents shall incorporate into a final Divestiture Process Agreement with the Divestiture Trustee and the Commissioner.
[8] Without limiting the Commissioner’s discretion to require additional terms, the Respondents consent to the following terms and conditions regarding the Divestiture Trustee’s rights, powers and duties, and shall include such terms in the Divestiture Process Agreement:
(a) The Divestiture Trustee shall complete the Divestiture as expeditiously as possible, and in any event prior to expiry of the Divestiture Trustee Sale Period.
(b) The Divestiture Trustee shall use reasonable efforts to negotiate terms and conditions for the Divestiture that are as favourable to the Respondents as are reasonably available at that time; however, the Divestiture shall not be subject to any minimum price. The Divestiture Trustee’s opinion of what constitutes favourable terms and conditions and what constitutes reasonably available terms and conditions, is subject to review and approval by the Commissioner.
(c) Subject to oversight and approval by the Commissioner, the Divestiture Trustee shall have full and exclusive authority during the Divestiture Trustee Sale Period:
(i) to complete the Divestiture in accordance with the provisions of this Part;
(ii) to solicit interest in a possible Divestiture by whatever process or procedure the Divestiture Trustee believes is suitable to allow a fair opportunity for one or more prospective good faith Purchasers to offer to acquire the Divestiture Assets, and for greater certainty, in determining whether to pursue negotiations with a prospective Purchaser, may have regard to the approval criteria in Section 23;
(iii) to enter into a Divestiture Agreement with a Purchaser that will be legally binding on the Respondents;
(iv) to negotiate reasonable commercial covenants, representations, warranties and indemnities to be included in a Divestiture Agreement; and
(v) to employ, at the expense of the Respondents, such consultants, accountants, legal counsel, investment bankers, business brokers,
PUBLIC VERSION appraisers, and other representatives and assistants as the Divestiture Trustee believes are necessary to carry out the Divestiture Trustee’s duties and responsibilities.
(d) Where any Person makes a good faith inquiry respecting a possible purchase of Divestiture Assets, the Divestiture Trustee shall notify such Person that the Divestiture is being made and shall provide to such Person a copy of this Agreement, with the exception of the provisions hereof that are confidential pursuant to Section 61 of this Agreement.
(e) Where, in the opinion of the Divestiture Trustee, a Person has a good faith interest in purchasing Divestiture Assets and has executed a confidentiality agreement, in a form satisfactory to the Commissioner, with the Divestiture Trustee protecting any Confidential Information that such Person may receive in the course of its due diligence review of the Divestiture Assets, the Divestiture Trustee shall:
(i) promptly provide to such Person all information respecting the Divestiture Assets that is determined by the Divestiture Trustee to be relevant and appropriate;
(ii) permit such Person to make reasonable inspection of the Divestiture Assets and of all financial, operational or other non-privileged Records and information, including Confidential Information, that may be relevant to the Divestiture; and
(iii) give such Person as full and complete access as is reasonable in the circumstances to the personnel involved in managing the Divestiture Assets.
(f) The Divestiture Trustee shall have no obligation or authority to operate or maintain the Divestiture Assets.
(g) The Divestiture Trustee shall provide to the Commissioner and to the Monitor, within 14 days after the later of the Divestiture Trustee’s appointment and the commencement of the Divestiture Trustee Sale Period and thereafter every 30 days, a written report describing the progress of the Divestiture Trustee’s efforts to complete the Divestiture. The report shall include a description of contacts, negotiations, due diligence and offers regarding the Divestiture Assets, the name, address and phone number of all parties contacted and of prospective Purchasers who have come forward. The Divestiture Trustee shall, within 3 Business Days, respond to any request by the Commissioner for additional information regarding the status of the Divestiture Trustee’s efforts to complete the Divestiture.
(h) The Divestiture Trustee shall notify the Respondents and the Commissioner immediately upon the signing of any letter of intent or
PUBLIC VERSION agreement in principle relating to the Divestiture Assets, and shall provide to the Respondents a copy of any executed Divestiture Agreement upon receipt of the Commissioner’s approval of the Divestiture contemplated in such Divestiture Agreement.
[9] The Respondents shall not be involved in the Divestiture process during the Divestiture Trustee Sale Period or in any negotiations with prospective Purchasers undertaken by the Divestiture Trustee, nor will the Respondents have contact with prospective Purchasers during the Divestiture Trustee Sale Period.
[10] Subject to any legally recognized privilege, the Respondents shall provide to the Divestiture Trustee full and complete access to all personnel, Records, information (including Confidential Information) and facilities relating to the Divestiture Assets, to enable the Divestiture Trustee to conduct its own investigation of the Divestiture Assets and to provide access and information to prospective Purchasers.
[11] The Respondents shall take no action that interferes with or impedes, directly or indirectly, the Divestiture Trustee’s efforts to complete the Divestiture.
[12] The Respondents shall fully and promptly respond to all requests from the Divestiture Trustee and shall provide all information the Divestiture Trustee may request. The Respondents shall identify an individual who shall have primary responsibility for fully and promptly responding to such requests from the Divestiture Trustee on behalf of the Respondents.
[13] The Respondents will do all such acts and execute all such documents, and will cause the doing of all such acts and the execution of all such documents as are within its power to cause the doing or execution of, as may be reasonably necessary to ensure that the Divestiture Assets are divested in the Divestiture Trustee Sale Period and that agreements entered into by the Divestiture Trustee are binding upon and enforceable against the Respondents.
[14] The Respondents shall be responsible for all reasonable fees and expenses properly charged or incurred by the Divestiture Trustee in the course of carrying out the Divestiture Trustee’s duties and responsibilities under this Agreement. The Divestiture Trustee shall serve without bond or security, and shall account for all fees and expenses incurred. The Respondents shall pay all reasonable invoices submitted by the Divestiture Trustee within 30 days after receipt and, without limiting this obligation, the Respondents shall comply with any agreement they reach with the Divestiture Trustee regarding interest on late payments. In the event of any dispute: (i) such invoice shall be subject to the approval of the Commissioner; and (ii) the Respondents shall promptly pay any invoice approved by the Commissioner. Any outstanding monies owed to the Divestiture Trustee by the Respondents shall be paid out of the proceeds of the Divestiture.
9
PUBLIC VERSION [15] The 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 or defence of any claim, whether or not resulting in any liability, except to the extent that such losses, claims, damages, liabilities, or expenses result from malfeasance, gross negligence or bad faith by the Divestiture Trustee.
[16] The Respondents shall indemnify the Commissioner and hold the Commissioner 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 or defence of any claim, whether or not resulting in any liability.
[17] If the Commissioner determines that the Divestiture Trustee has ceased to act or has failed to act diligently, the Commissioner may remove the Divestiture Trustee and appoint a substitute Divestiture Trustee. The provisions of this Agreement respecting the Divestiture Trustee shall apply in the same manner to any substitute Divestiture Trustee.
[18] The Respondents may require the Divestiture Trustee and each of the Divestiture Trustee’s consultants, accountants, legal counsel, investment bankers, business brokers, appraisers, and other representatives and assistants to sign an appropriate confidentiality agreement in a form satisfactory to the Commissioner; provided, however, that such agreement shall not restrict the Divestiture Trustee from providing any information to the Commissioner.
[19] The Commissioner may require the Divestiture Trustee and each of the Divestiture Trustee’s consultants, accountants, legal counsel, investment bankers, business brokers, appraisers, and other representatives and assistants to sign an appropriate confidentiality agreement relating to materials and information the Divestiture Trustee may receive from the Commissioner in connection with the performance of the Divestiture Trustee’s duties.
[20] Notwithstanding any term of this Agreement, the rights, powers and duties of the Divestiture Trustee under this Agreement shall not expire until the Divestiture is completed.
IV. COMMISSIONER APPROVAL OF DIVESTITURE [21] The Divestiture shall be made to a single Purchaser and may proceed only with the prior approval of the Commissioner in accordance with this Part. For greater certainty, if a Divestiture is a notifiable transaction nothing in this Agreement affects the operation of Part IX of the Act.
10
PUBLIC VERSION [22] The Divestiture Applicant shall comply with the following process for seeking and obtaining a decision of the Commissioner regarding his approval of a proposed Divestiture:
(a) The Divestiture Applicant shall promptly: (i) inform the Commissioner of any negotiations with a prospective Purchaser that may lead to a Divestiture; and
(ii) forward to the Commissioner copies of any agreement that is signed with a prospective Purchaser, including non-binding expressions of interest.
(b) The Divestiture Applicant shall immediately notify the Commissioner that it intends to enter a Divestiture Agreement with a prospective Purchaser, or has entered into an agreement that, if approved by the Commissioner, will be a Divestiture Agreement within the meaning of this Agreement. If the Divestiture Applicant has entered into or intends to enter into more than one agreement in respect of the same Divestiture Assets, the Divestiture Applicant shall identify the agreement in respect of which it seeks the Commissioner’s approval and the remainder of this Part shall apply only to that agreement unless the Divestiture Applicant designates a substitute agreement.
(c) The notice described in Paragraph 22(b) shall be in writing and shall include: the identity of the proposed Purchaser; the details of the proposed Divestiture Agreement and any related agreements; and information concerning whether and how the proposed Purchaser would, in the view of the Divestiture Applicant, likely satisfy the terms of this Agreement.
(d) Within 14 days following receipt of the notice described in Paragraph 22(b), the Commissioner may request additional information concerning the proposed Divestiture from any or all of the Respondents, the Monitor, the prospective Purchaser and, in the Divestiture Trustee Sale Period, the Divestiture Trustee. These Persons shall each provide any additional information requested from them. When they have provided a complete response to the Commissioner’s request, these Persons shall comply with the following procedures:
(i) the Divestiture Trustee shall provide written confirmation to the Commissioner that the Divestiture Trustee has provided to the Commissioner all additional information requested from the Divestiture Trustee;
(ii) the Monitor shall provide written confirmation to the Commissioner that the Monitor has provided to the Commissioner all additional information requested from the Monitor;
11
PUBLIC VERSION (iii) an officer or other duly authorized representative of the Respondents shall certify that he or she has examined the additional information provided by the Respondents in response to the Commissioner’s request and that such information is, to the best of his or her knowledge and belief, correct and complete in all material respects;
(iv) an officer or other duly authorized representative of the prospective Purchaser shall certify that he or she has examined the additional information provided by the prospective Purchaser in response to the Commissioner’s request and that such information is, to the best of his or her knowledge and belief, correct and complete in all material respects.
The date on which the last of the Divestiture Trustee, the Respondents, the Monitor and the prospective Purchaser provides to the Commissioner a confirmation or certification required under this Paragraph is the “First Reference Date”.
(e) Within 7 days after the First Reference Date, the Commissioner may request further additional information concerning the proposed Divestiture from any or all of the Persons identified in Paragraph 22(d). These Persons shall each provide any further additional information requested from them. When they have provided a complete response to the Commissioner’s request, if any, these Persons shall comply with the procedures outlined in Paragraph 22(d) in regard to the further additional information provided. The date on which the last of the Divestiture Trustee, the Respondents, the Monitor and the prospective Purchaser provides to the Commissioner a confirmation or certification required under this Paragraph is the “Second Reference Date”.
(f) The Commissioner shall notify the Divestiture Applicant of the approval of, or the objection to, the proposed Divestiture as soon as possible, and in any event within 14 days after the date on which the Commissioner receives the notice described in Paragraph 22(b) or, if he requests any additional information under Paragraph 22(d) or further additional information under Paragraph 22(e), within 14 days after the later of:
(i) the First Reference Date; and (ii) the Second Reference Date, if any. (g) The Commissioner’s determination as to whether to approve a proposed Divestiture shall be in writing.
[23] In exercising his discretion to determine whether to approve a proposed Divestiture, the Commissioner shall take into account the likely impact of the Divestiture on competition, and may consider any other factor he considers
12
PUBLIC VERSION relevant. Prior to granting his approval, the Commissioner must also be satisfied that:
(a) the proposed Purchaser is fully independent of and operates at arm’s length from the Respondents;
(b) the Respondents will have no direct or indirect interest in the Divestiture Assets following the Divestiture;
(c) the proposed Purchaser is committed to carrying on the Divested Business; (d) the proposed Purchaser has the managerial, operational and financial capability to compete effectively in the supply of Crop Production Products in the Lipton, Saskatchewan area; and
(e) the proposed Purchaser will (i) if the Commissioner grants his approval during the Initial Sale Period, complete the Divestiture prior to the expiry of the Initial Sale Period; or (ii) if the Commissioner grants his approval during the Divestiture Trustee Sale Period, complete the Divestiture during the Divestiture Trustee Sale Period.
V. PRESERVATION OF DIVESTITURE ASSETS [24] In order to preserve the Divestiture Assets pending completion of the Divestiture, the Respondents shall maintain the economic viability, marketability and competitiveness of the Divestiture Assets and Divested Business, and shall comply with any decision of or direction given by the Monitor that relates to preservation of the Divestiture Assets. Until Closing, Blair’s shall preserve the Divestiture Assets in a manner consistent with this Part V of this Agreement. Without limiting the generality of the foregoing, the Respondents shall:
(a) maintain and hold the Divestiture Assets in good condition and repair, normal wear and tear excepted, and to standards that are, in the view of the Monitor, at least equal to those that existed at Closing;
(b) ensure that the management and operation of the Divestiture Assets continues in the ordinary course of business and in a manner that is, in the view of the Monitor, reasonably consistent in nature, scope and magnitude with past practices and generally accepted industry practices, and in compliance with all applicable laws;
(c) not knowingly take or allow to be taken any action that, in the view of the Monitor, adversely affects the competitiveness, operations, financial status or value, viability and saleability of the Divestiture Assets;
13
PUBLIC VERSION (d) ensure that the Divestiture Assets are not engaged in any type of business other than the type of business conducted as of the date of this Agreement, except with the prior approval of the Monitor and the Commissioner;
(e) maintain all approvals, registrations, consents, licences, permits, waivers, and other authorizations that are, in Monitor’s view subject to consultation with the Respondents, advisable for the operation of the Divestiture Assets and Divested Business;
(f) take all commercially reasonable steps to honour all customer contracts and to maintain quality and service standards for customers of the Divestiture Assets that are, in the view of the Monitor, at least equal to the standards that existed during the fiscal year prior to this Agreement;
(g) not curtail marketing, sales, promotional or other activities of the Divestiture Assets or Divested Business, except with the prior approval of the Monitor;
(h) not alter, or cause to be altered, the management of the Divestiture Assets as it existed during the fiscal year prior to the date of this Agreement, except with the prior approval of the Monitor;
(i) not terminate or alter any employment, salary or benefit agreements, as they existed at the date of this Agreement, for Persons employed in connection with the Divestiture Assets, without the prior approval of the Monitor;
(j) ensure that the Divestiture Assets are staffed with sufficient employees to ensure their viability and competitiveness, including by replacing any departing employees with other qualified employees provided that the Monitor has approved both the qualifications and the need for such replacement employees;
(k) maintain inventory levels and payment terms consistent with the practices of the Respondents that existed, with respect to the Divestiture Assets, during the fiscal year prior to the date of this Agreement; and
(l) maintain in accordance with Canadian generally accepted accounting principles, separate and adequate financial ledger books and records of material financial information with respect to the Divestiture Assets and the Divested Business as are maintained currently by Blair’s.
[25] Except for those matters that are expressly contemplated in the Transaction Agreement, pending completion of the Divestiture, the Respondents shall not, without the Commissioner’s prior written approval:
14
PUBLIC VERSION (a) create any new encumbrances on the Divestiture Assets or Divested Business, other than ordinary course obligations that are not due or delinquent;
(b) enter into, withdraw from, amend or otherwise take steps to alter any obligations in material contracts relating to the Divestiture Assets or Divested Business, except as necessary to comply with this Agreement; or
(c) make any material changes to the Divestiture Assets or Divested Business, except as required to comply with this Agreement.
[26] The Respondents shall provide sufficient financial resources, including general funds, capital funds, working capital and reimbursement for any operating, capital or other losses, to maintain the Divestiture Assets in accordance with this Part. If the Monitor believes that the Respondents have not provided, are not providing or will not provide sufficient financial and other resources under this Part, the Monitor shall forthwith refer the matter to the Commissioner, who shall make a final determination respecting the financial and other resources that the Respondents must provide. The Respondents shall comply with any determination made by the Commissioner on this issue.
[27] The Respondents shall implement, and at all times prior to the completion of the Divestiture maintain in operation, a system, as approved by the Monitor in consultation with the Commissioner of access and data controls to prevent unauthorized access to or dissemination of Confidential Information of the Divested Business. The system shall include the following protocols:
(a) The Monitor shall approve all proposed communications between the Divested Business and FCL’s Continuing Employees before such communications occur.
(b) FCL’s Continuing Employees shall not receive, have access to or use any Confidential Information respecting the Divested Business.
(c) Notwithstanding Paragraph 27(b), Designated Personnel of FCL may receive aggregate financial and operational information relating to the Divestiture Assets only to the extent necessary to comply with securities laws, prepare financial and regulatory reports, tax returns, administer employee benefits, defend litigation and comply with this Agreement. Any such information shall be: (i) approved by the Monitor prior to its receipt by any Designated Personnel; (ii) maintained in a separate confidential file that is accessible only to the Designated Personnel; and (iii) used only for the purposes set forth in this Section.
PUBLIC VERSION VI. THIRD PARTY CONSENTS [28] It shall be a condition in any Divestiture Agreement (whether negotiated by the Respondents or by the Divestiture Trustee) that the Respondents shall, as a condition of closing, obtain any consents and waivers from Third Parties that are necessary to permit the assignment to, and assumption by, a Purchaser of all Material Contracts, Approvals and Authorizations relating to the Divestiture Assets; provided, however, that the Respondents may satisfy this requirement by certifying that the Purchaser has executed agreements directly with one or more Third Parties which make such assignment and assumption unnecessary.
VII. TRANSITIONAL SUPPORT ARRANGEMENTS [29] At the option of the Purchaser, for up to the remaining portion of the crop year and the next full crop year following the Divestiture, FCL shall sell to the Purchaser the amount of Crop Production Products requested by the Purchaser at prices not to exceed the lowest price charged to local co-ops in Saskatchewan for similar quantity and quality of sales. Any price rebates paid to co-ops in Saskatchewan shall be paid to the Purchaser under similar qualifying terms and conditions. Nothing in this Agreement requires FCL to provide the Purchaser with any patronage payments that are earned by co-op retailers who hold an equity interest in FCL. If FCL is not able to fulfill its supply commitments to its network of retailers, then all retailers, including the Purchaser, will have their supply of Crop Production Products from FCL pro-rationed on an equal basis.
VIII. EMPLOYEES [30] The Respondents (during the Initial Sale Period) and the Divestiture Trustee (during the Divestiture Trustee Sale Period) shall provide to any prospective Purchaser, the Commissioner and the Monitor information relating to the employees whose responsibilities involve the operation of the Divestiture Assets, to enable such Purchaser to make decisions regarding offers of employment to such employees. The Monitor shall review the information provided to ensure that it is sufficient to enable the Purchaser to make such decisions.
[31] The Respondents shall: (a) not interfere, directly or indirectly, with any negotiations by a Purchaser to employ any employees whose responsibilities involve the operation of the Divestiture Assets;
(b) not offer any incentive to such employees to decline employment with the Purchaser or to accept other employment with the Respondents;
(c) remove any impediment that may deter such employees from accepting employment with the Purchaser;
PUBLIC VERSION (d) waive any non-compete or confidentiality provisions of employment or other contracts that could impair the ability of such employees to be employed by the Purchaser; and
(e) pay or transfer to the employees subsequently employed by the Purchaser all current and accrued bonuses, pensions and other current and accrued benefits to which such employees would otherwise have been entitled had they remained in the employment of the Respondents.
[32] For a period of one year following completion of the Divestiture, the Respondents shall not, without the prior written consent of the Commissioner, directly or indirectly solicit or employ any Persons employed in connection with the Divestiture Assets who has accepted an offer of employment with the Purchaser unless such Person’s employment has been terminated by the Purchaser. Nothing in this Agreement shall restrict the solicitation or employment by the Respondents of any Person who is solicited by advertising placed in a newspaper, trade journal, through a web site or via other media of general circulation which is not directed at or focused on Persons employed in connection with the Divestiture Assets.
IX. FAILURE OF DIVESTITURE TRUSTEE SALE [33] If, by the end of the Divestiture Trustee Sale Period, the Divestiture has not been completed, or if the Commissioner is of the opinion that the Divestiture likely will not be completed prior to the end of the Divestiture Trustee Sale Period, the Commissioner may apply to the Tribunal, at his election, for either (i) such order as is necessary to complete the Divestiture; or (ii) such order as is necessary to ensure that the Transaction is not likely to prevent or lessen competition substantially.
X. MONITOR [34] The Commissioner shall appoint a Monitor, responsible for monitoring compliance by the Respondents with this Agreement. Such appointment may occur at any time following registration of this Agreement. A reference in this Agreement to specific monitoring functions or tasks that are to be undertaken by the Monitor shall in no way detract from the Monitor’s general right, power and duty to monitor all aspects of the Respondents’ compliance with this Agreement.
[35] Within 5 Business Days after the appointment of the Monitor, the Respondents shall submit to the Commissioner for approval the terms of a proposed Monitor Agreement with the Monitor and the Commissioner that confers on the Monitor all rights and powers necessary to permit the Monitor to monitor compliance by the Respondents with this Agreement.
[36] Within 5 Business Days after receipt of the proposed Monitor Agreement referred to in Section 35, the Commissioner shall advise the Respondents whether or not he approves the terms of the proposed Monitor Agreement. If the Commissioner does
PUBLIC VERSION not approve the terms of the proposed Monitor Agreement, he shall prescribe alternative terms for the Monitor Agreement that the Respondents shall incorporate into a final Monitor Agreement with the Monitor and the Commissioner.
[37] The Respondents consent to the following terms and conditions regarding the Monitor’s rights, powers and duties, and shall include such terms in the Monitor Agreement:
(a) The Monitor shall have the power and authority to monitor the Respondents’ compliance with this Agreement, and shall exercise such power and authority and carry out the duties and responsibilities of the Monitor in a manner consistent with the purposes of this Agreement and in consultation with the Commissioner.
(b) The Monitor shall have the authority to employ, at the expense of the Respondents, such consultants, accountants, legal counsel and other representatives and assistants as the Monitor believes are necessary to carry out the Monitor’s duties and responsibilities.
(c) The Monitor shall have no obligation or authority to operate or maintain the Divestiture Assets.
(d) The Monitor shall act for the sole benefit of the Commissioner, maintain all confidences and avoid any conflict of interest.
(e) The Monitor shall have no duties of good faith (except as required by law), of a fiduciary nature, or otherwise, to the Respondents.
(f) The Monitor shall provide to the Commissioner every 30 days after the date of the Monitor’s appointment until the Divestiture is complete and thereafter annually on or before the anniversary of the Divestiture, a written report concerning performance by the Respondents of their obligations under this Agreement. The Monitor shall, within 3 Business Days, respond to any request by the Commissioner for additional information regarding the Respondents’ compliance.
[38] Subject to any legally recognized privilege, the Respondents shall provide to the Monitor full and complete access to all personnel, Records, information (including Confidential Information) and facilities relevant to monitoring the Respondents’ compliance with this Agreement.
[39] The Respondents shall take no action that interferes with or impedes, directly or indirectly, the Monitor’s efforts to monitor the Respondents’ compliance with this Agreement.
[40] The Respondents shall fully and promptly respond to all requests from the Monitor and, subject to any legally recognized privilege, shall provide all
PUBLIC VERSION information the Monitor may request. The Respondents shall identify an individual who shall have primary responsibility for fully and promptly responding to such requests from the Monitor on behalf of the Respondents.
[41] The Respondents may require the Monitor and each of the Monitor’s consultants, accountants, legal counsel and other representatives and assistants to sign an appropriate confidentiality agreement in a form satisfactory to the Commissioner; provided, however, that such agreement shall not restrict the Monitor from providing any information to the Commissioner.
[42] The Commissioner may require the Monitor and each of the Monitor’s consultants, accountants, legal counsel and other representatives and assistants to sign an appropriate confidentiality agreement relating to materials and information the Monitor may receive from the Commissioner in connection with the performance of the Monitor’s duties.
[43] The Respondents shall be responsible for all reasonable fees and expenses properly charged or incurred by the Monitor in the course of carrying out the Monitor’s duties under this Agreement. The Monitor shall serve without bond or security, and shall account for all fees and expenses incurred. The Respondents shall pay all reasonable invoices submitted by the Monitor within 30 days after receipt and, without limiting this obligation, the Respondents shall comply with any agreement they reach with the Monitor regarding interest on late payments. In the event of any dispute: (i) such invoice shall be subject to the approval of the Commissioner; and (ii) the Respondents shall promptly pay any invoice approved by the Commissioner. Any outstanding monies owed to the Monitor by the Respondents shall be paid out of the proceeds of the Divestiture.
[44] The Respondents shall indemnify the Monitor and hold the Monitor harmless against any losses, claims, damages, liabilities or expenses arising out of, or in connection with, the performance of the Monitor’s duties, including all reasonable fees of counsel and other expenses incurred in connection with the preparation or defence of any claim, whether or not resulting in any liability, except to the extent that such losses, claims, damages, liabilities, or expenses result from malfeasance, gross negligence or bad faith by the Monitor.
[45] If the Commissioner determines that the Monitor has ceased to act or has failed to act diligently, the Commissioner may remove the Monitor and appoint a substitute Monitor. The provisions of this Agreement respecting the Monitor shall apply in the same manner to any substitute Monitor.
[46] The Monitor shall serve for such time as is necessary to monitor the Respondents’ compliance with this Agreement.
PUBLIC VERSION XI. COMPLIANCE [47] Within 5 Business Days after the Closing Date, the Respondents shall provide written confirmation to the Commissioner of the date on which the Transaction was completed.
[48] The Respondents shall provide a copy of this Agreement to each of their own and their Affiliates’ directors, officers, employees and agents having managerial responsibility for any obligations under this Agreement, within 3 Business Days after the date of registration of this Agreement. The Respondents shall ensure that their directors, officers, employees and agents with responsibility for any obligations under this Agreement receive sufficient training respecting the Respondents’ responsibilities and duties under this Agreement, and the steps that such individuals must take in order to comply with this Agreement.
[49] The Respondents shall not, for a period of 10 years after the date when the Divestiture is completed, directly or indirectly acquire any interest in the Divestiture Assets or take any steps to cause or facilitate the Divestiture Assets to operate as part of FCL’s Co-operative Retailing System, without the prior written approval of the Commissioner.
[50] For a period of 3 years after the date when the Divestiture is completed, the Respondents shall not, without providing advance written notification to the Commissioner in the manner described in this Section, directly or indirectly:
(a) acquire any assets or shares of, or any other interest in, any Crop Production Product Business within a radius of 55 km from Blair’s facilities at Lipton, Saskatchewan; or
(b) consummate any merger or other combination relating to the Crop Production Product Business within a radius of 55 km from Blair’s facilities at Lipton, Saskatchewan.
Nothing in this Agreement prevents FCL from supplying on usual terms and conditions a retailer of Crop Production Products located within a radius of 55 km from Blair’s facilities at Lipton, Saskatchewan, or as a result of supplying Crop Production Products becoming a secured creditor of any such retailer.
If a transaction described in (a) or (b) is one for which notice is not required under section 114 of the Act, the Respondents shall supply to the Commissioner the information described in section 16 of the Notifiable Transactions Regulations at least 30 days before completing such transaction (or such shorter period as the Commissioner may agree). The Respondents shall certify such information in the same manner as would be required if section 118 of the Act applied. The Commissioner may accept a competitive impact brief from the Respondents instead of such information. The Commissioner may, within 30 days after receiving the information described in this Section, request that the Respondents
PUBLIC VERSION supply additional information that is relevant to the Commissioner’s assessment of the transaction. In the event that the Commissioner issues such a request for additional information, the Respondents shall supply information to the Commissioner in the form specified by the Commissioner and shall not complete such transaction until at least 30 days (or such shorter period as the Commissioner may agree) after the Respondents have supplied all such requested information in the form specified by the Commissioner.
[51] One year after the date of registration of this Agreement and annually on the anniversary of the date of registration, and at such other times as the Commissioner may require, the Respondents shall file an affidavit or certificate, substantially in the form of Schedule B to this Agreement, certifying their compliance with Parts VII, VIII and XI of this Agreement and setting out the following information in detail:
(a) the steps taken to ensure compliance; (b) the controls in place to verify compliance; and (c) the names and titles of employees who have oversight of compliance. [52] If any of the Respondents, the Divestiture Trustee or the Monitor becomes aware that there has been a breach or possible breach of any of the terms of this Agreement, such Person shall, within 5 Business Days after becoming aware of the breach or possible breach, notify the Commissioner thereof, and shall provide details sufficient to describe the nature, date and effect (actual and anticipated) of the breach or possible breach, provided that notification of a possible breach is not required if such Person determines within those 5 Business Days that it could not reasonably be considered a breach of any of the terms of this Agreement. the Respondents shall provide confirmation of its compliance with this provision in all affidavits and certificates of compliance filed with the Commissioner pursuant to Section 57 of this Agreement.
[53] The Respondents shall notify the Commissioner at least 30 days prior to: (a) any proposed dissolution of a Respondent; (b) any change to the Respondents’ joint venture; or (c) any other change in a Respondent if such change may affect compliance obligations arising out of this Agreement including, but not limited to, a reorganization, material acquisition, disposition or transfer of assets, or any fundamental change for purposes of the Respondent’s incorporating statute.
[54] For purposes of determining or securing compliance with this Agreement, and subject to any legally recognized privilege, the Respondents shall, upon written request given at least 5 Business Days in advance to the Respondents, permit any
PUBLIC VERSION authorized representative(s) of the Commissioner, without restraint or interference:
(a) to access, during regular office hours of the Respondents on any Business Day(s), all facilities and to inspect and copy all Records in the possession or control of the Respondents related to compliance with this Agreement, which copying services shall be provided by the Respondents at their expense; and
(b) to interview such officers, directors or employees of the Respondents as the Commissioner requests regarding such matters.
XII. DURATION [55] This Agreement shall become effective on the date when it is registered, and shall remain in effect for 10 years following the Divestiture, except that:
(a) Parts II, III, IV, V and VI of this Agreement shall be effective only until the Divestiture is completed;
(b) Part VII of this Agreement shall be effective only until the transitional support arrangements are completed; and
(c) Section 61 shall survive the expiry of this Agreement. XIII. NOTICES [56] A notice or other communication required or permitted to be given under this Agreement is valid if it is:
(a) in writing and delivered by personal delivery, registered mail, courier service, facsimile or electronic mail; and
(b) addressed to the receiving party at the address(es) listed below, or to any other address designated by the receiving party in accordance with this Section.
if to the Commissioner: Commissioner of Competition Competition Bureau Canada Place du Portage, 21st Floor 50 Victoria Street, Phase I Gatineau, Quebec K1A 0C9
Attention: Commissioner of Competition Fax: (819) 953-5013
PUBLIC VERSION Email address: ic.avisdefusionmergernotification.ic@canada.ca with a copy to: Executive Director and Senior General Counsel Competition Bureau Legal Services Department of Justice Place du Portage, 22nd Floor 50 Victoria Street, Phase I Gatineau, Quebec K1A 0C9 Fax: (819) 953-9267 Email address: ic.cb_lsu_senior_general_counsel- avocat_general_principal_usj_bc.ic@canada.ca
if to FCL: Federated Co-operatives Limited 401 22nd Street East Saskatoon, SK S7K 0H2 Attention: Ron Healey, Vice-President Ag and Consumer Business Email: Ron.Healey@fcl.crs
with a copy to: Ryan Hallman, Partner MLT Aikins LLP Suite 1201 - 409 3rd Avenue S Saskatoon, SK S7K 5R5 Email: rhallman@mltaikins.com
if to Blair’s: Blair’s Fertilizer Ltd. Box 610 Lanigan, SK S0K 2M0 Attention: Kevin Blair Email: kevin@blairs.ag
with a copy to: Mark Dolan, Partner Lakefield LLP Suite 410, 475-2 nd Avenue South Saskatoon, SK S7K 1P4 Email: Mark.Dolan@lakefieldlaw.ca
PUBLIC VERSION if to BCS: Blair’s Crop Solutions (2020) Inc. c/o Federated Co-operatives Limited 401 22nd Street East Saskatoon, SK S7K 0H2 Attention: Ron Healey, Vice-President Ag and Consumer Business Email: Ron.Healey@fcl.crs
with a copy to: Ryan Hallman, Partner MLT Aikins LLP Suite 1201 - 409 3rd Avenue S Saskatoon, SK S7K 5R5 Email: rhallman@mltaikins.com
[57] A notice or other communication under this Agreement is effective on the day that it is received by the receiving party and is deemed to have been received as follows:
(a) if it is delivered in person, by registered mail or by courier, upon receipt as indicated by the date on the signed receipt;
(b) if it is delivered by facsimile, upon receipt as indicated by the time and date on the facsimile confirmation slip; or
(c) if it is delivered by electronic mail, when the recipient, by an email sent to the email address for the sender stated in this Section or by a notice delivered by another method in accordance with this Section, acknowledges having received that email, with an automatic “read receipt” not constituting acknowledgment of an email for purposes of this Section.
If a notice or other communication is received after 5:00 p.m. local time, or on a day that is not a Business Day, it shall be deemed to have been received on the next Business Day.
[58] Notwithstanding Sections 56 and 57, a notice or other communication that is not communicated in accordance with Sections 56 and 57 is valid if a representative of the party to this Agreement that is the recipient of such communication confirms the receipt of such communication and does not, at the time of such confirmation, request that it be delivered differently.
XIV. GENERAL [59] In this Agreement: 24
PUBLIC VERSION (a) Number and Gender – Unless the context otherwise requires, words importing the singular include the plural and vice versa and words importing gender include all genders.
(b) Time Periods – Computation of time periods shall be in accordance with the Interpretation Act, R.S.C. 1985, c. I-21, and the definition of “holiday” in the Interpretation Act shall include Saturday.
[60] The Commissioner shall file this Agreement with the Tribunal for registration in accordance with section 105 of the Act. The Respondents hereby consent to such registration. Following the filing of this Agreement, the Commissioner shall promptly issue a letter to the Respondents indicating that, subject to the implementation of this Agreement, the Commissioner does not intend to make an application under section 92 of the Act in respect of the Transaction.
[61] Information in Confidential Schedule A shall be made public upon the expiry of the Initial Sale Period. Confidential Information in Confidential Schedule C shall remain confidential at all times and shall survive the termination of this Agreement; provided, however, the Commissioner may communicate or allow to be communicated such information for the purposes of the administration or enforcement of the Act.
[62] The Commissioner may, after informing the Respondents, extend any of the time periods contemplated by this Agreement other than Sections 49, 50 and 55. If any time period is extended, the Commissioner shall promptly notify the Respondents of the revised time period.
[63] Nothing in this Agreement precludes the Respondents or the Commissioner from bringing an application under section 106 of the Act. The Respondents will not, for the purposes of this Agreement, including execution, registration, enforcement, variation or rescission, contest the Commissioner’s conclusions that: (i) the Transaction is likely to result in a substantial lessening of competition in the supply of Crop Production Products in the Lipton, Saskatchewan area; and (ii) the implementation of this Agreement is necessary to ensure that any substantial lessening and/or prevention of competition will not result from the Transaction.
[64] The Respondents attorn to the jurisdiction of the Tribunal for the purposes of this Agreement and any proceeding initiated by the Commissioner relating to this Agreement.
[65] This Agreement constitutes the entire agreement between the Commissioner and the Respondents, and supersedes all prior agreements, understandings, negotiations and discussions, whether written or oral, with respect to the subject matter hereof.
[66] This Agreement shall be governed by and interpreted in accordance with the laws of Ontario and the laws of Canada applicable therein, without applying any otherwise applicable conflict of law rules.
25
PUBLIC VERSION [67] In the event of a dispute regarding compliance with or the interpretation, implementation or application of this Agreement, the Commissioner or the Respondents may apply to the Tribunal for directions or an order. In the event of any discrepancy between the English language version of this Agreement and the French language version of this Agreement, the English language version of this Agreement shall prevail. In no event shall any dispute suspend the Initial Sale Period or the Divestiture Trustee Sale Period.
[68] This Agreement may be executed in two or more counterparts, each of which shall be an original instrument, but all of which shall constitute one and the same Agreement.
The undersigned hereby agree to the filing of this Agreement with the Tribunal for registration.
DATED this 30 th day of June, 2021 COMMISSIONER OF COMPETITION _[original signed by Matthew Boswell]____ Name: Matthew Boswell Title: Commissioner of Competition FEDERATED CO-OPERATIVES LIMITED _[original signed by Ron Healey]________ I/We have authority to bind the corporation
Name: Ron Healey Title: Vice-President Ag and Consumer Business _[original signed by Tony Van Burgsteden]_ I/We have authority to bind the corporation
Name: Tony Van Burgsteden Title: Vice-President Finance 26
PUBLIC VERSION BLAIR’S FERTILIZER LTD. _[original signed by Kevin Blair]____ I/We have authority to bind the corporation
Name: Kevin Blair Title: Chief Executive Officer BLAIR’S CROP SOLUTIONS (2020) INC. _[original signed by Ron Healey]____ I/We have authority to bind the corporation
Name: Ron Healey Title: President 27
PUBLIC VERSION CONFIDENTIAL SCHEDULE A INITIAL SALE PERIOD [CONFIDENTIAL]
28
PUBLIC VERSION SCHEDULE B FORM OF COMPLIANCE CERTIFICATION/AFFIDAVIT I, [name], of [place], hereby certify 1 in accordance with the terms of the Registered Consent Agreement dated ● between Federated Co-operatives Limited (“FCL”), Blair’s Fertilizer Ltd. (“Blair’s”) and Blair’s Crop Solutions (2020) Inc. (“BCS” and, together with FCL and Blair’s, “the Respondents”) and the Commissioner of Competition, that:
1. I am the [title] of [FCL/Blair’s/BCS], and have personal knowledge of the matters deposed to herein, unless they are stated to be on information and belief, in which cases I state the source of such information and believe it to be true.
2. On [date], the Respondents entered into a Consent Agreement (the “Consent Agreement”) with the Commissioner of Competition (the “Commissioner”) in connection with the acquisition by a subsidiary of Federated Co-operatives Limited of the agricultural retail business carried on by Blair’s Fertilizer Ltd. and Blair’s Crop Solutions Inc., and the creation of a joint venture between FCL and Blair’s (the “Transaction”).
3. The Transaction closed on [date] (the “Closing Date”). 2 4. The Divestiture (as defined in the Consent Agreement) to [Purchaser] was completed on [date].
5. Pursuant to Section 51 of the Consent Agreement, the Respondents are required to file [annual reports/reports when requested by the Commissioner] certifying its compliance with Parts VII, VIII and XI of the Consent Agreement.
Oversight of Compliance 6. [Names/titles] have primary responsibility for overseeing compliance with this Agreement.
Closing Date 7. Pursuant to Section 47 of the Consent Agreement, the Respondents are required to provide written confirmation to the Commissioner of the date on which the Transaction was completed. Such notice was provided on [date].
1 If this is drafted as an affidavit, the words “hereby certify” should be removed and should be replaced with “make oath and say”. An affidavit should be sworn under oath. A certification should be certified by a Commissioner for taking affidavits.
2 Paragraphs 3, 4, 7 and 8 need only be included in the first certification/affidavit. 29
PUBLIC VERSION Circulation of Consent Agreement 8. Pursuant to Section 48 of the Consent Agreement, the Respondents are required to provide a copy of the Consent Agreement to each of their own and their Affiliates’ directors, officers, employees and agents having managerial responsibility for any obligations under the Consent Agreement, within 3 Business Days after the date of registration of the Consent Agreement. The Consent Agreement was circulated by [whom] to [provide list] on [dates].
9. Pursuant to Section 48 of the Consent Agreement, the Respondents are required to ensure that their directors, officers, employees and agents with responsibility for any obligations under the Consent Agreement receive sufficient training respecting the Respondents’ responsibilities and duties under the Consent Agreement. The following training has been provided: [provide list of who was trained and by whom as well as a general statement of the content of the training]
Transitional Support Arrangements 10. Pursuant to Section 29 of the Consent Agreement, FCL is required to provide transitional support arrangements to the Purchaser. [Describe FCL’s compliance with this provision.]
Employees 11. Sections 30 and 31 of the Consent Agreement require the Respondents to take various steps in regard to its employees whose responsibilities involved the operation of the Divestiture Assets. The Respondents have fully complied with the terms of those Sections and, more particularly:
[Note: Describe steps taken to facilitate employee transfer to Purchaser, having regard to the terms of Sections 30 and 31; provide data on the # of employees who have transferred to the Purchaser.]
Notification of Breach 12. Based on my personal knowledge and my inquiries of [provide names], I am not aware of any breach or possible breach of any of the terms of the Consent Agreement within the meaning of Section 52 of the Consent Agreement.
DATED . Commissioner of Oaths Name and Title of Certifying Officer 30
PUBLIC VERSION CONFIDENTIAL SCHEDULE C Name Title Associate Vice-President, Controls and Reporting
Director, Corporate Accounting
Senior Manager, Corporate Accounting
Financial Reporting Manager Financial Reporting Analyst Senior Analyst Financial Reporting and Budgeting [CONFIDENTIAL] Corporate Accounting Analyst
Fixed Asset Analyst Vice-President, Finance Chief Executive Officer, BCS Chief Operating Officer, BCS Corporate Services Manager Special Projects Director Director Corporate Services
31