Notice given by Holcim Limited; and Lafarge S.A — Combination C-2014/07/190 (Part 2)

1. On 14.07.2014, the Competition Commission of India (“Commission”) received a notice (“Notice”) under sub-section (2) of Section 6 of the Competition Act, 2002 (“Act”) given by Holcim Ltd. (“Holcim”) and Lafarge S.A. (“Lafarge”) (hereinafter, Holcim and Lafarge are collectively referred to as the “Parties”).

2. The Commission in its meeting held on 30.03.2015 considered and approved the proposed combination with modification by passing an order dated 30.03.2015 under sub-section (7) of Section 31 of the Act (hereinafter referred to as “Order”).

3. In accordance with paragraph 53 of the Order, the Parties submitted a detailed proposal along with the Business Transfer Agreement (hereinafter referred to as “BTA”) and Transitional Support Agreement for approval of the Commission on 26.08.2015.

4. The Commission considered the proposal in its meeting held on 10.09.2015. The Commission noted that as per the BTA, obtaining all approvals necessary for the transfer of the mining lease and the mineral rights was one of the conditions precedent for sale of the Divestment Business. However, given the uncertainty regarding transfer of mining leases on account of amendment in the Mines and Minerals (Development and Regulation) Act, 1957, the Commission sought clarifications from the Parties regarding the transfer of mining leases under the BTA.

5. The Parties requested for extension of the timelines mentioned in paragraph 28 of the Order, (i.e., the timelines by which the Parties were required to execute the approved

COMPETITION COMMISSION OF INDIA For Greater Good sale and purchase agreement with the approved purchaser) from 29.09.2015 to 30.10.2015. The Commission considered the request of the Parties in its meeting held on 21.09.2015 and decided to grant the extension, as requested.

6. On 23.10.2015, the Parties, in order to ensure compliance with the Order, submitted an alternative proposal envisaging sale of 100 percent of the share capital of Lafarge India (hereinafter referred to as “Alternative Proposal”). The Parties requested that the Commission may consider the Alternative Proposal in supersession of their previous proposals.

7. The Alternative Proposal envisages the sale of the entire share capital of Lafarge India as opposed to sale of assets as envisaged in the Order.

8. The Commission considered the Alternative Proposal submitted by the Parties in its meetings held on 03.12.2015, 12.01.2016, 18.01.2016 and 02.02.2016 and after obtaining certain additional information and clarifications, approved the Alternative Proposal in form of a share sale option which contemplates sale of 100 percent of the share capital of Lafarge India to one strategic and/or one or more financial investors, subject to the purchaser(s) meeting the Purchaser Requirements as laid down in paragraph 52 of the Order.

9. Based on the submissions made by the Parties, the Commission noted that subsequent to the Order, Lafarge A&C has been amalgamated with Lafarge India. Thus, Lafarge India at present is carrying out business relating to cement, RMC and aggregates in India.

10. In light of the above approval of the Alternative Proposal by the Commission, certain paragraphs of the Order that pertain, inter alia, to the Divestment Business and mode of sale of Divestment Business would require amendment. Accordingly, by means of this supplementary order (hereinafter referred to as “Supplementary Order”), the Order stands amended to the following extent:

COMPETITION COMMISSION OF INDIA For Greater Good a. The following definition shall be inserted in Appendix A after the definition of ‘Key Personnel’: Modified Date The date of communication of the Supplementary Order b. Paragraph 28 of the Order shall stand amended to read as under:

“The Parties shall execute the Approved Sale and Purchase Agreement with the Approved Purchaser within […] months from the Modified Date”.

c. Paragraph 31 of the Order shall stand amended to read as under:

“The Divestiture shall be carried out by way of a sale of shares to an Approved Purchaser”.

d. Paragraph 42 of the Order shall stand amended to read as under:

“Until Closing, the Parties shall assist the Monitoring Agency in ensuring that the Divestment Business is managed as a distinct and saleable entity separate from the business retained by the Parties. Within seven days from the Modified Date, the Parties shall appoint a Hold Separate Manager for the Divestment Business, who shall be part of the Key Personnel, and shall manage Divestment Business independently and in the best interest of the business with a view to ensure its continued economic viability, marketability and competitiveness and its independence from the businesses retained by the Parties. The Hold Separate Manager shall closely cooperate with and report exclusively to the Monitoring Agency and, if applicable, the Divestiture Agency. Any replacement of the Hold Separate Manager shall be subject to the approval of the Commission.”

e. Paragraph 46 of the Order shall stand deleted.

f. Paragraph 53 of the Order shall stand amended to read as under:

COMPETITION COMMISSION OF INDIA For Greater Good “The final binding sale and purchase agreement (as well as ancillary agreements including transitional agreement(s)), relating to the Divestiture of the Divestment Business shall be conditional on the Commission’s approval. Further, any and all shareholding arrangements inter-se between the members of the consortium, whether by way of shareholders' agreements or otherwise, will be subject to the approval of the Commission. Within a period of […] months from the Modified Date, the Parties shall submit a fully documented and reasoned proposal, including a copy of the final agreement(s), to the Commission and the Monitoring Agency. The Parties must be able to demonstrate to the Commission that the purchaser proposed by the Parties, fulfils the Purchaser Requirements and that the Divestment Business is being divested in a manner consistent with the Order. Further, any transfer of shares (irrespective of the shareholding percentage) by an approved purchaser to any third party within a period of (18) months from date of acquisition of such shares, will be subject to the approval of the Commission.”

g. The definition of Alternative Divestment Business in Appendix A shall stand deleted.

h. […]

i. The definition of Divestment Business in Appendix A shall stand amended to read as under:

“shall mean the entirety of Lafarge India’s business activities in India as defined in Schedule I.”

j. The definition of First Divestiture Period in Appendix A shall stand amended to read as under:

“The period of […] months from the Modified Date.”

COMPETITION COMMISSION OF INDIA For Greater Good k. The definition of Key Personnel in Appendix A shall stand amended to read as under:

“The employees who are necessary to maintain the viability and competitiveness of the Divestment Business as identified by the Parties and listed in Appendix II to Schedule I and would include employees recommended by the Monitoring Agency and accepted by the Commission as being necessary to maintain the viability and competitiveness of the Divestment Business.”

l. The definition of Sonadih Quarry Operations in Appendix A shall stand deleted.

m. Schedule I of the Order shall be substituted by the following Schedule I of the Supplementary Order.

n. Schedules II, III, IV and V of the Order shall stand deleted.

11. This Supplementary Order shall form an integral part of the Order and in case of any conflict between the provisions of this Supplementary Order and the Order, the former shall prevail.

COMPETITION COMMISSION OF INDIA For Greater Good

Schedule I of the Supplementary Order Divestment Business 1. The Divestment Business comprises: a. Lafarge India’s integrated cement plants at Sonadih (Chattisgarh), Arasmeta (Chattisgarh) and Chittorgarh (Rajasthan). b. Lafarge India’s grinding stations at Jojobera (Jharkhand), Mejia (West Bengal); c. Lafarge India’s RMC plants listed at Appendix I; d. Lafarge India’s aggregates plants at Kotputli (Rajasthan), Dacapara (Kolkata) and Badlapur, (Maharashtra); and e. Lafarge India’s blending unit at Bhiwani, Haryana.

2. In accordance with paragraph 1 above, the Divestment Business includes, but is not limited to:

i. all tangible assets including those at each of the integrated plants, grinding station, aggregate plants, blending unit and RMC plants referred to in paragraph 1 above, including the plants and grinding station themselves, as well as all land, associated quarries, buildings, offices, machinery and equipment;

ii. all intangible assets including those relating to each of the integrated plants, grinding stations, aggregate plants, blending unit and RMC plants referred to in paragraph 1 above, including all goodwill and software. All brands that are under the proprietorship of Lafarge India will be transferred together with the Divestment Business;

iii. all necessary licences, permits and authorisations relating to each of the integrated plants, aggregate plants, blending unit, the COMPETITION COMMISSION OF INDIA For Greater Good grinding station and RMC plants referred to in paragraph 1 above;

iv. all contracts, agreements, leases, commitments and understandings, in particular, all key supply contracts and all customer contracts held by Lafarge India and/or any third parties;

v. all customer, credit and other records that are held by Lafarge India;

vi. all Personnel; and vii. all Key Personnel as listed in Appendix II.

3. If there is any relevant asset or personnel which is not covered by paragraph 2 of this Schedule but which is both owned (exclusively or not) by Lafarge India and necessary for the continued viability and competitiveness of Lafarge India, that asset or adequate substitute will be offered to potential purchasers.

4. Exclusions from Divestment Business:

i. Brands listed at Appendix III, which are (A) under the proprietorship of Lafarge India and use the word Lafarge (hereinafter called as “Category I excluded brands”); and (B) under the proprietorship of Lafarge and/or other group entities of Lafarge and are currently licenced to Lafarge India (hereinafter called as “Category II excluded brands”), are excluded from Divestment Business, provided that subject to the requirements of the Approved Purchaser, the Parties shall enter into a transitional arrangement with the COMPETITION COMMISSION OF INDIA For Greater Good

Approved Purchaser for use of such brands for a certain mutually agreed duration.

ii. Certain IT applications and software which are at present being used by Lafarge India but are owned by companies controlled and/or owned the Parties, provided that subject to the requirements of the Approved Purchaser, the Parties shall enter into a transitional arrangement with the Approved Purchaser for use of the IT applications and software which are presently licensed to Lafarge India by the group companies of the Parties.

COMPETITION COMMISSION OF INDIA For Greater Good

Appendix I to Schedule I: List of RMC Plants of Lafarge India A. Commercials

Sl No. Zone Area Plant Plant Name/Location 1. East Hyderabad IN4240 Uppal 2. East Hyderabad IN4239 Patencheru 3. East Hyderabad IN4241 Jeedimetla 4. East Hyderabad IN4243 Miyapur 5. East Hyderabad IN4244 Vijayawada 6. East Hyderabad IN4245 Vizag 7. East Hyderabad IN4351 Raipur II 8. East Kolkata IN4250 Bhubaneswar 9. East Kolkata IN4289 Durgapur 10. East Kolkata IN4248 Ranchi 11. East Kolkata IN4249 Dankuni 12. East Kolkata IN4251 Rajarhat 13. East Kolkata IN4329 Patna 14. North Delhi IN4235 Faridabad 15. North Delhi IN4336 Gurgaon 16. North Delhi IN4234 Noida 17. North Delhi IN4233 Sonepat 18. North Delhi IN4232 Rudrapur 19. North Punjab IN4264 Panchkula 20. North Punjab IN4260 Ludhiana 21. North Punjab IN4263 Amritsar 22. North Punjab IN4259 Baddi 23. North Punjab IN4262 Mohali 24. South Bengaluru IN4219 Anjanapura 25. South Bengaluru IN4212 Whitefield 26. South Bengaluru IN4217 Hubli

COMPETITION COMMISSION OF INDIA For Greater Good

Sl No. Zone Area Plant Plant Name/Location 27. South Bengaluru IN4213 Sarjapura Road 28. South Bengaluru IN4220 Mysore 29. South Bengaluru IN4211 Hegdenagar 30. South Bengaluru IN4353 Hoskote 31. South Bengaluru IN4221 Hosur Road 32. South Chennai IN4227 Siruseri 33. South Chennai IN4231 Perungudi 34. South Chennai IN4222 Poonamalle 35. South Chennai IN4352 Oragadam II 36. South Chennai IN4223 Tuticorin 37. South Chennai IN4230 Coimbatore 38. West Ahmedabad IN4205 Udhna-Bestan 39. West Ahmedabad IN4201 Surat 40. West Ahmedabad IN4303 Jaipur II 41. West Ahmedabad IN4207 Harini 42. West Ahmedabad IN4204 Jaipur 43. West Ahmedabad IN4209 Sanathal 44. West Ahmedabad IN4203 Vadodara 45. West Ahmedabad IN4210 Naroda 46. West Ahmedabad IN4206 Haripar 47. West Ahmedabad IN4324 Madhapar 48. West Mumbai IN4342 Pune 49. West Mumbai IN4269 & Pune I and III 4293 50. West Mumbai IN4252 Thane 51. West Mumbai IN4290 Andheri 52. West Mumbai IN4314 Jogeshwari 53. West Mumbai IN4214 Pilerne – Goa 54. West Mumbai IN4258 Kurla

COMPETITION COMMISSION OF INDIA For Greater Good

Sl No. Zone Area Plant Plant Name/Location 55. West Mumbai IN4218 Vasco 56. West Mumbai IN4257 Navi Mumbai

B. Projects

Sl No. Zone Area Plant Plant Name/Location 1. North Delhi IN4362, 63, CEC DMRC 64 2. North Delhi IN4345, 46 DMRC Dwarka 3. West Ahmedabad IN4349 JMRC Jaipur 4. West Ahmedabad IN4350 JMRC Project II, Jaipur 5. West Mumbai IN4331, 41 Lodha Phase II Mumbai 6. West Mumbai IN4327 Samsung, Mumbai 7. West Mumbai IN4304 Lower Parel, Mumbai

COMPETITION COMMISSION OF INDIA For Greater Good

Appendix II to Schedule I of the Supplementary Order: List of Key Personnel […]

COMPETITION COMMISSION OF INDIA For Greater Good

Appendix III to Schedule I of the Supplementary Order: List of excluded brands A. Category I excluded brands SL. PROPRIETOR MARK TYPE CLASS NO. 1. Lafarge India Lafarge Fair Floor Label 17 2. Lafarge India Lafarge Concreto Label 19 3. Lafarge India Fair Floor Lafarge Label 19 4. Lafarge India Fair Floor Lafarge Label 19 5. Lafarge India Lafarge Dura Guard Label 19 6. Lafarge India Lafarge Home Building Label 16 Centre 7. Lafarge India Lafarge Concreto Roofing Label 16 & Foundation Cement 8. Lafarge India Lafarge Concreto Roofing Label 19 & Foundation Cement 9. Lafarge India Lafarge Fair Floor Label 16 10. Lafarge India Lafarge Fair Floor Label 19 11. Lafarge India Lafarge Sampark Label 37 12. Lafarge India Lafarge Sampark Label 35 13. Lafarge India Lafarge Sampark Label 16 14. Lafarge India Lafarge Building Circle Label 35,37,41,42 15. Lafarge India Lafarge Home Building Label 35,37,41,42 Centre 16. Lafarge India Lafarge Concreto Nothing Label 16 Builds Better 17. Lafarge India Lafarge Concreto Nothing Label 19 Builds Better 18. Lafarge India Lafarge Sampark Label 41 19. Lafarge India Lafarge Building Circle Label 16 20. Lafarge India Lafarge Building Circle Label 19 21. Lafarge India Lafarge Concreto (Colour) Label 4 22. Lafarge India Lafarge Concreto (Colour) Label 16 23. Lafarge India Lafarge Concreto (Colour) Label 19 24. Lafarge India Lafarge Concreto Label 4 25. Lafarge India Lafarge Concreto Label 16 26. Lafarge India Lafarge Concreto Label 19

COMPETITION COMMISSION OF INDIA For Greater Good

B. Category II excluded brands SL. PROPRIETOR MARK TYPE CLASS NO. 1. Lafarge SA L-Lafarge Logo 37 and 42 2. Lafarge SA L-Lafarge Logo 19 3. Lafarge SA L-Lafarge Logo 2 4. Lafarge SA L-Lafarge Logo 17 5. Lafarge SA L-Lafarge Logo 6 6. Lafarge SA Lafarge PSC Label 1 7. Lafarge SA Lafarge PSC Label 4 8. Lafarge SA Lafarge PSC Label 16 9. Lafarge SA Lafarge PSC Label 19 10. Lafarge SA Lafarge PSC Label 22 11. Lafarge SA Lafarge PSC Label 37 12. Lafarge SA Lafarge Cement Label 19 13. Lafarge SA CHRONOLIA 19 14. Lafarge SA ARTEVIA 19 & 37 15. Lafarge SA AGILIA 19 & 37 16. Lafarge SA MEGA 19 & 37 17. Lafarge SA MEGA SERIES 19 & 37 18. Lafarge SA Hydromedia 19