Case Documents

COMPETITION TRIBUNAL

PUBLIC VERSION

CT-

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 Béton Provincial Ltée or a wholly-owned subsidiary thereof of the Québec-based cement, aggregate and ready-mix concrete operations of CRH Canada Group Inc. and its affiliates;

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 –

BÉTON PROVINCIAL LTÉE

Respondent

CONSENT AGREEMENT

RECITALS: A. Pursuant to an asset purchase agreement dated December 19, 2023, Béton Provincial Ltée (“Béton Provincial”) proposes to acquire CRH Canada Group Inc’s (“CRH Canada”) cement operations, certain aggregates operations and ready-mix concrete operations in Québec (the “Transaction”).

B. The Commissioner has concluded that the Transaction is likely to result in a substantial lessening of competition in the production and supply of ready-mix concrete in the area between Mont-Tremblant and Piedmont in the Laurentians area of the province of Québec, and that the implementation of this Agreement is necessary to ensure that any substantial lessening of competition will not result from the Transaction.

C. Béton Provincial does 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

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PUBLIC VERSION

lessening of competition in the production and supply of ready-mix concrete in the area between Mont-Tremblant and Piedmont in the Laurentians area of the province of Québec; and (ii) the implementation of this Agreement is necessary to ensure that any substantial lessening of competition will not result from the Transaction.

D. Nothing in this Agreement affects any investigation, inquiry or proceeding other than under section 92 of the Act in respect of the Transaction.

THEREFORE Béton Provincial 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) (b) (c)

(d)

(e)

(f)

(g)

(h) (i)

(j)

“Act” means the Competition Act, R.S.C. 1985, c. C-34, as amended; “Affiliate” has the meaning given to it in subsection 2(2) of the Act; “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;

“Béton Provincial” means Béton Provincial Ltée and its Affiliates and their directors, officers, employees, agents, representatives, successors and assigns;

“Béton Provincial’s Continuing Employees” means those employees of Béton Provincial who are not employed in connection with the Divestiture Assets;

“Business Day” means a day on which the Competition Bureau’s Gatineau, Quebec office is open for business;

“Closing” means the completion of the Transaction under the Transaction Agreement;

“Closing Date” means the date on which Closing occurs; “Commissioner” means the Commissioner of Competition appointed under the Act and includes the Commissioner’s authorized representatives;

“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

2

(k)

(l)

(m)

(n)

(o)

(p)

(q)

PUBLIC VERSION

lists, price lists, contracts, cost and revenue information, marketing methods, patents, technologies, processes, or other trade secrets;

“CRH Canada” means CRH Canada Group Inc., its Affiliates, and their directors, officers, employees, agents, representatives, successors and assigns;

“Designated Personnel” means the employees of Béton Provincial or CRH Canada listed in Confidential Schedule C to this Agreement, as modified from time to time by agreement of Béton Provincial and the Commissioner, who shall have signed a confidentiality agreement in a form satisfactory to the Commissioner only;

“Divested Business” means the business of producing and supplying ready-mix concrete carried out at CRH Canada’s ready-mix concrete facility in Mont-Tremblant, Quebec;

“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 Béton Provincial will have no direct or indirect interest in the Divestiture Assets;

“Divestiture Agreement” means a binding and definitive agreement between Béton Provincial and a Purchaser to effect the Divestiture pursuant to this Agreement and subject to the prior approval of the Commissioner;

“Divestiture Applicant” means Béton Provincial during the Initial Sale Period or the Divestiture Trustee during the Divestiture Trustee Sale Period;

“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 or held for use in, or related to, the Divested Business, excluding the Excluded Assets but including, without limitation, the following properties, assets and rights:

(i)

(ii)

(iii) (iv)

the immovable or real property, whether owned or leased in related to the Divested Business;

all applicable facility specific licenses, permits, contracts, agreements and authorizations, including all leases to which the Divested Business is a party or beneficiary used in the operation of the Divested Business;

the Intangible Assets used in connection with the Divested Business the tangible assets and equipment including all inventory of equipment and assets used to produce and supply ready-mix

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(r)

(s)

(t)

(u)

(v)

(w)

(x)

(y)

(z)

(v)

(vi)

PUBLIC VERSION

concrete at the facility, including storage facilities, mixing equipment, mixing stations and other inventories;

all books, records and files (for greater certainty, to the extent that there are any books, records or files which are common to the Divested Business and to Béton Provincial’s ongoing business, Béton Provincial shall provide copies of such books, records and files with respect to only the Divested Business to the Purchaser;

any assets used in any ancillary businesses, including, operated in connection with the Divested Business, including but not limited to, all permits, contracts, agreements and authorizations, to which CRH Canada is a party or a beneficiary, used in the operation of the Divested Business; and related computer hardware;

“Divestiture Process Agreement” means the agreement described in Section 6 of this Agreement;

“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;

“Divestiture Trustee Sale” means the Divestiture to be conducted by the Divestiture Trustee pursuant to Part III of this Agreement;

“Divestiture Trustee Sale Period” means the 6 month period commencing upon expiry of the Initial Sale Period;

“Excluded Assets” means the current assets on Béton Provincial’s financial statements relating to the Divested Business, including cash, cash equivalents, accounts receivables, and other liquid assets, but excluding pre­paid liabilities and inventory;

“First Reference Date” shall have the meaning set out in Paragraph 22(d) of this Agreement;

“Hold Separate Employees” means those employees who are employed in connection with the Divestiture Assets, and “Hold Separate Employee” means any one of them;

“Hold Separate Manager” means the Person appointed pursuant to Part V of this Agreement (or any substitute appointed thereto) to manage the operation of the Divestiture Assets, and any employees, agents or other Persons acting for or on behalf of the Hold Separate Manager;

“Hold Separate Period” means the period that commences at Closing and ends upon the completion of the Divestiture;

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(aa)

(bb)

(cc)

(dd)

(ee)

(ff)

(gg)

(hh) (ii)

(jj)

PUBLIC VERSION

“Initial Sale Period” means the period that commences at Closing and ends at the time set out in Confidential Schedule A to this Agreement;

“Intangible Assets” means intellectual property of any nature and kind, including:

(i) (ii)

(iii) (iv)

patents, copyrights, trademarks and software; 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;

rights to obtain and file for patents and registrations thereof; and rights to sue and recover damages or obtain injunctive relief for infringement, dilution, misappropriation, violation or breach of any of the foregoing;

“Management Agreement” means the agreement described in Section 26 of this Agreement;

“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;

“Monitor Agreement” means the agreement described in Section 40 of this Agreement;

“Person” means any individual, corporation or partnership, sole proprietorship, trust or other unincorporated organization capable of conducting business, and any Affiliates thereof;

“Purchaser” means a Person that acquires Divestiture Assets pursuant to this Agreement and a Divestiture Agreement;

“Records” means records within the meaning of subsection 2(1) of the Act; “Second Reference Date” shall have the meaning set out in Paragraph 22(e) of this Agreement;

“Shared Services” means human resources, payroll, finance & accounting, legal and information technology, as provided to the Divested Business prior to Closing;

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(kk)

(ll)

PUBLIC VERSION

“Shared Services Employees” means those employees who are providing the Shared Services to the Divested Business who have executed a confidentiality undertaking in a form satisfactory to the Commissioner;

“Third Party” means any Person other than the Commissioner, Béton Provincial or a Purchaser;

(mm) “Transaction” means the transaction described in the first recital to this Agreement;

II. [2]

[3]

[4]

III. [5]

[6]

(nn)

(oo)

“Transaction Agreement” means the asset purchase agreement dated December 19, 2023 between Béton Provincial and CRH Canada; and

“Tribunal” means the Competition Tribunal established by the Competition Tribunal Act, R.S.C. 1985, c.19 (2 nd Supp.).

OBLIGATION TO COMPLETE DIVESTITURE Béton Provincial shall use commercially reasonable efforts to complete the Divestiture.

During the Initial Sale Period, Béton Provincial 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.

During the Initial Sale Period, Béton Provincial 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. Béton Provincial shall, within 3 Business Days, respond to any request by the Commissioner for additional information regarding the status of Béton Provincial’s efforts to complete the Divestiture. An officer or other duly authorized representative of Béton Provincial shall certify that the information provided in any such response has been examined and is, to the best of that individual’s knowledge and belief, correct and complete in all material respects.

DIVESTITURE TRUSTEE SALE PROCESS In the event that Béton Provincial fails 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.

Within 5 Business Days after the appointment of the Divestiture Trustee, Béton Provincial shall submit to the Commissioner for approval the terms of a proposed Divestiture Process Agreement with the Divestiture Trustee and the Commissioner

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[7]

[8]

PUBLIC VERSION

that confers on the Divestiture Trustee all rights and powers necessary to permit the Divestiture Trustee to effect the Divestiture.

Within 5 Business Days after receipt of the proposed Divestiture Process Agreement referred to in Section 6, the Commissioner shall advise Béton Provincial whether or not the Commissioner approves the terms of the proposed Divestiture Process Agreement. If the Commissioner does not approve the terms of the proposed Divestiture Process Agreement, the Commissioner shall prescribe alternative terms that Béton Provincial shall incorporate into a final Divestiture Process Agreement with the Divestiture Trustee and the Commissioner.

Without limiting the Commissioner’s discretion to require additional terms, Béton Provincial consents 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)

(b)

(c)

The Divestiture Trustee shall complete the Divestiture as expeditiously as possible, and in any event prior to expiry of the Divestiture Trustee Sale Period.

The Divestiture Trustee shall use reasonable efforts to negotiate terms and conditions for the Divestiture that are as favourable to Béton Provincial 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.

Subject to oversight and approval by the Commissioner, the Divestiture Trustee shall have full and exclusive authority during the Divestiture Trustee Sale Period:

(i)

(ii)

(iii)

(iv)

to complete the Divestiture in accordance with the provisions of this Part;

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;

to enter into a Divestiture Agreement with a Purchaser that will be legally binding on Béton Provincial;

to negotiate reasonable commercial covenants, representations, warranties and indemnities to be included in a Divestiture Agreement; and

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(d)

(e)

(f)

(g)

(v)

PUBLIC VERSION

to employ, at the expense of Béton Provincial, such consultants, accountants, legal counsel, investment bankers, business brokers, appraisers, and other representatives and assistants as the Divestiture Trustee believes are necessary to carry out the Divestiture Trustee’s duties and responsibilities.

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 66 of this Agreement.

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)

(ii)

(iii)

promptly provide to such Person all information respecting the Divestiture Assets that is determined by the Divestiture Trustee to be relevant and appropriate;

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

give such Person as full and complete access as is reasonable in the circumstances to the personnel involved in managing the Divestiture Assets.

The Divestiture Trustee shall have no obligation or authority to operate or maintain the Divestiture Assets.

The Divestiture Trustee shall provide to the Commissioner and to the Monitor, within 30 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.

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[9]

[10]

[11]

[12]

[13]

[14]

(h)

PUBLIC VERSION

The Divestiture Trustee shall notify Béton Provincial and the Commissioner immediately upon the signing of any letter of intent or agreement in principle relating to the Divestiture Assets, and shall provide to Béton Provincial a copy of any executed Divestiture Agreement upon receipt of the Commissioner’s approval of the Divestiture contemplated in such Divestiture Agreement.

Béton Provincial 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 Béton Provincial have contact with prospective Purchasers during the Divestiture Trustee Sale Period.

Subject to any legally recognized privilege, Béton Provincial and the Hold Separate Manager 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.

Béton Provincial shall take no action that interferes with or impedes, directly or indirectly, the Divestiture Trustee’s efforts to complete the Divestiture.

Béton Provincial and the Hold Separate Manager shall fully and promptly respond to all requests from the Divestiture Trustee and shall provide all information the Divestiture Trustee may request. Béton Provincial shall identify an individual who shall have primary responsibility for fully and promptly responding to such requests from the Divestiture Trustee on behalf of Béton Provincial.

Béton Provincial 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 Béton Provincial.

Béton Provincial 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. Béton Provincial shall pay all reasonable invoices submitted by the Divestiture Trustee within 30 days after receipt and, without limiting this obligation, Béton Provincial shall comply with any agreement it reaches 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) Béton Provincial shall promptly pay any invoice approved by the Commissioner. Any outstanding monies owed to the Divestiture Trustee by Béton Provincial shall be paid out of the proceeds of the Divestiture.

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[15]

[16]

[17]

[18]

[19]

[20]

IV.

[21]

PUBLIC VERSION

Béton Provincial 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.

Béton Provincial 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.

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.

Béton Provincial 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.

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.

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.

COMMISSIONER APPROVAL OF DIVESTITURE

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.

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[22]

PUBLIC VERSION

The Divestiture Applicant shall comply with the following process for seeking and obtaining a decision of the Commissioner regarding approval of a proposed Divestiture:

(a)

(b)