UNITED STATES OF AMERICA
BEFORE FEDERAL TRADE COMMISSION

In the Matter of

MONIER LIFETILE LLC, a corporation;
BORAL LTD., a corporation; and
LAFARGE S.A., a corporation.

DOCKET NO. 9290

AGREEMENT CONTAINING CONSENT ORDER

The agreement herein, by and between Monier Lifetile LLC ("Monier Lifetile"), Boral Ltd. ("Boral") and Lafarge S.A. ("Lafarge"), hereafter sometimes referred to as "Respondents," by their duly authorized officers and their attorneys, and counsel for the Federal Trade Commission ("Commission"), is entered into in accordance with the Commission's Rules governing consent order procedures. In accordance therewith, the parties hereby agree that:

1. Monier Lifetile is a limited liability company organized, existing and doing business under and by virtue of the laws of the State of Delaware, with its office and principal place of business located at One Park Plaza, Suite 900, Irvine, California 92614.

2. Boral Ltd. is a corporation organized, existing and doing business under and by virtue of the laws of Australia, with its office and principal place of business located at 50 Bridge Street, Sydney, NSW 2000, Australia.

3. Lafarge S.A. is a corporation organized, existing and doing business under and by virtue of the laws of France, with its office and principal place of business located at 61 rue des Belles Feuilles, Paris, France.

4. Respondents have been served with a copy of the complaint issued by the Federal Trade Commission charging them with violations of Section 5 of the Federal Trade Commission Act, as amended, 15 U.S.C.  45, and Section 7 of the Clayton Act, as amended, 15 U.S.C.  18, and have filed an answer to said complaint denying said charges.

5. Respondents waive:

a. any further procedural steps;
 
b. the requirement that the Commission's decision contain a statement of findings of fact and conclusions of law;
 
c. all rights to seek judicial review or otherwise to challenge or contest the validity of the Order entered pursuant to this agreement; and
 
d. any claim under the Equal Access to Justice Act.

6. Respondents shall submit within thirty (30) days of the date this Agreement is signed by Respondents, an initial report, pursuant to Section 2.33 of the Commission's Rules, signed by the Respondents setting forth in detail the manner in which the Respondents have complied and will comply with Paragraphs II. and III. of the Order when and if entered. Such report will not become part of the public record unless and until the accompanying Agreement and Order are accepted by the Commission for public comment.

7. This Agreement shall not become part of the public record of the proceeding unless and until it is accepted by the Commission. If this Agreement is accepted by the Commission, it will be placed on the public record for a period of sixty (60) days and information in respect thereto publicly released. The Commission thereafter may either withdraw its acceptance of this Agreement and so notify the Respondents, in which event it will return the affected portions of the matter to adjudication for further proceedings or take such action as it may consider appropriate, or issue and serve its decision containing the Order herein, in disposition of the proceeding.

8. This Agreement is for settlement purposes only and does not constitute an admission by Respondents that the law has been violated as alleged in the Commission's complaint, or that the facts as alleged in the Commission's complaint, other than jurisdictional facts, are true.

9. This Agreement contemplates that, if it is accepted by the Commission, and if such acceptance is not subsequently withdrawn by the Commission pursuant to the provisions of Section 3.25 of the Commission's Rules, the Commission may, without further notice to the Respondents, (1) issue its decision containing the following Order to divest in disposition of the proceeding and (2) make information public with respect thereto. When so entered, the Order shall have the same force and effect and may be altered, modified or set aside in the same manner and within the same time provided by statute for other orders. The Order shall become final upon service. Delivery by the United States Postal Service of the decision containing the agreed-to Order to Respondents' counsel as stated in this Agreement shall constitute service. Respondents waive any right they may have to any other manner of service. The complaint may be used in construing the terms of the Order, and no agreement, understanding, representation or interpretation not contained in the Order or the Agreement may be used to vary or contradict the terms of the Order.

10. By signing this Agreement, Respondents represent that they can accomplish the full relief contemplated by the Order.

11. Respondents have read the Order contemplated hereby. Respondents understand that once the Order has been issued, they will be required to file one or more compliance reports showing that Respondents have fully complied with the Order. Respondents agree to comply with the proposed Order from the date they sign this Agreement. Respondents further understand that they may be liable for civil penalties in the amount provided by law for each violation of the Order after it becomes final.

ORDER

I.

IT IS ORDERED that, as used in this Order, the following definitions shall apply:

A. "Monier Lifetile" means Monier Lifetile LLC, its directors, officers, employees, agents, representatives, predecessors, successors and assigns; its joint ventures, subsidiaries, divisions, groups and affiliates controlled by Monier Lifetile, and the respective directors, officers, employees, agents, representatives, successors, and assigns of each.

B. "Boral" means Boral Ltd., its directors, officers, employees, agents, representatives, predecessors, successors and assigns; its joint ventures, subsidiaries, divisions, groups and affiliates controlled by Boral, and the respective directors, officers, employees, agents, representatives, successors, and assigns of each.

C. "Lafarge" means Lafarge S.A., its directors, officers, employees, agents, representatives, predecessors, successors and assigns; its joint ventures, subsidiaries, divisions, groups and affiliates controlled by Lafarge, and the respective directors, officers, employees, agents, representatives, successors, and assigns of each.

D. "Respondents" means Monier Lifetile, Boral and Lafarge, individually and collectively.

E. "CRH" means CRH PLC, a corporation organized, existing and doing business under and by virtue of the laws of Ireland, with its office and principal place of business located at Belgard Castle, Clondalkin, Dublin 22, Ireland; and its subsidiaries, divisions, groups and affiliates controlled by CRH, including Oldcastle, Inc.

F. "Commission" means the Federal Trade Commission.

G. "Joint Venture" means the formation of the limited liability company, Monier Lifetile, on or about August 15, 1997, through the issuance of membership interest and contribution of assets of the respective United States concrete roofing tile operations of Boral and Redland PLC, now a wholly-owned subsidiary of Lafarge.

H. "Acquirer" means CRH or the entity/entities to whom Respondents divest the Tile Manufacturing Assets To Be Divested.

I. "Concrete Roofing Tile" means concrete tile designed primarily to cover the roofs of residential and commercial structures.

J. "Field Tile" means Concrete Roofing Tile that is used to cover the face of a roof.

K. "Field Tile Line" means a delivered, assembled, installed, and functioning production line that produces Field Tile.

L. "Trim Tile" means Concrete Roofing Tile that is used to cover the crest and soffit of a roof.

M. "Trim Line" means a delivered, assembled, installed, and functioning production line that has the capacity to produce Trim Tile at a level of at least ten (10) per cent of the overall Field Tile production capacity of the tile manufacturing facility in which the Trim Line is located.

N. "Divestiture Agreement" means the Acquisition Agreement between Monier Lifetile and Oldcastle, Inc., dated January 21, 1999, and all exhibits thereof, incorporated by reference into this Order and made a part hereof as a Confidential Appendix, regardless of whether the purchase and sale of assets contemplated by such agreement is consummated.

O. "Tile Manufacturing Assets To Be Divested" means the following:

1. The Corona tile manufacturing facility, located at 1745 Sampson Avenue, Corona, California, including: two (2) Field Tile Lines and one (1) Trim Line, with a minimum annual production capacity of 600,000 squares of Concrete Roofing Tile; and all assets related to the production of Concrete Roofing Tile at the Corona tile manufacturing facility included in the Divestiture Agreement.
 
2. The Casa Grande tile manufacturing facility, located at 1742 South Rooftile Road, Casa Grande, Arizona, including: two (2) Field Tile Lines and one (1) Trim Line, with a minimum annual production capacity of 700,000 squares of Concrete Roofing Tile; and all assets related to the production of Concrete Roofing Tile at the Casa Grande tile manufacturing facility included in the Divestiture Agreement.
 
3. The Ft. Lauderdale tile manufacturing facility, located at 1900 N.W. 21st Avenue, Ft. Lauderdale, Florida, as a functioning facility producing Concrete Roofing Tile, including: one (1) Field Tile Line and one Trim Line, with a minimum annual production capacity of 300,000 squares of Concrete Roofing Tile; and all assets related to the production of Concrete Roofing Tile at the Ft. Lauderdale tile manufacturing facility included in the Divestiture Agreement.
 
4. All covenants; undertakings; representations; warranties; guarantees; indemnifications; marketing information; product development information; research materials; technical information; inventions; trade secrets; technology; know-how; intellectual property rights; patents; patent applications; formulas; copyrights; licenses; trademarks; trade names; and rights, expressed or implied, included in the Divestiture Agreement.

P. "Cost" means direct cash cost of labor.

Q. "Non-Public Acquirer Information" means any information not in the public domain obtained by Respondents directly or indirectly from the Acquirer prior to the effective date, or during the term, of the provision of assistance to the Acquirer as required by Paragraph II.C. of this Order. Non-Public Acquirer Information shall not include information that subsequently falls within the public domain through no violation of this Order by Respondents.

R. "Southern California" means all of the state of California south of, and including, Bakersfield.

II.

IT IS FURTHER ORDERED that:

A. Respondents shall divest absolutely and in good faith the Tile Manufacturing Assets To Be Divested to CRH in accordance with the Divestiture Agreement within five (5) days of the date the Commission serves its final decision containing the Order herein on Respondents' counsel, in disposition of this matter.

B. The purpose of the divestiture of the Tile Manufacturing Assets To Be Divested is to ensure that the Tile Manufacturing Assets To Be Divested are used to produce and sell Concrete Roofing Tile of commercial quality similar to that currently produced by Monier Lifetile and to remedy the lessening of competition resulting from the Joint Venture as alleged in the Commission's complaint.

C. Respondents shall commit to provide at Cost upon reasonable notice and request by the Acquirer, for a period not to exceed six (6) months from the date each divestiture is completed: (a) such assistance, personnel and training as are reasonably necessary to enable the Acquirer to manufacture Concrete Roofing Tile in substantially the same manner and quality employed or achieved by Monier Lifetile; and (b) such assistance, personnel and training as are reasonably necessary to enable the Acquirer to obtain any necessary governmental approvals to manufacture Concrete Roofing Tile at the current location of the tile manufacturing facility acquired by the Acquirer and to sell Concrete Roofing Tile in each of the counties in which Monier Lifetile currently sells Concrete Roofing Tile in the state where the tile manufacturing facility acquired by the Acquirer is located.

D. Respondents shall not provide, disclose or otherwise make available to any of their employees not involved in providing assistance any Non-Public Acquirer Information, nor shall Respondents use any Non-Public Acquirer Information obtained or derived by Respondents in their capacity as providers of assistance pursuant to Paragraph II.C., except for the sole purpose of providing assistance pursuant to Paragraph II.C.

E. Pending divestiture of the Tile Manufacturing Assets To Be Divested, Respondents shall take such actions as are necessary to maintain the viability, marketability and competitiveness of the Tile Manufacturing Assets To Be Divested, and to prevent the destruction, removal, wasting, deterioration or impairment of any of the Tile Manufacturing Assets To Be Divested except for ordinary wear and tear.

F. Respondents shall comply with the terms of the Divestiture Agreement and such agreement is incorporated by reference into this Order and made a part hereof as a Confidential Appendix. Any failure by Respondents to comply with the terms of the Divestiture Agreement shall constitute a failure to comply with this Order.

G. Respondents shall take all steps necessary to restore the Ft. Lauderdale tile manufacturing facility, located at 1900 N.W. 21st Avenue, Ft. Lauderdale, Florida, as a functioning facility, capable of producing at least 300,000 squares annually of Concrete Roofing Tile of commercial quality similar to that currently produced by Monier Lifetile, and Respondents shall complete all restoration work, including addition of the Trim Line, by April 30, 1999, or within two (2) months of the date Respondents signed the Agreement Containing Consent Order in this matter, whichever is later.

III.

IT IS FURTHER ORDERED that:

A. If Respondents fail to divest absolutely and in good faith all of the Tile Manufacturing Assets To Be Divested pursuant to Paragraph II.A. of this Order, the Commission may appoint a trustee to divest the Tile Manufacturing Assets To Be Divested. In the event that the Commission or the Attorney General brings an action pursuant to 5(l) of the Federal Trade Commission Act, 15 U.S.C. 45(l), or any other statute enforced by the Commission, Respondents shall consent to the appointment of a trustee in such action. Neither the appointment of a trustee nor a decision not to appoint a trustee under this Paragraph shall preclude the Commission or the Attorney General from seeking civil penalties or any other relief available to it, including a court-appointed trustee pursuant to 5(l) of the Federal Trade Commission Act, or any other statute enforced by the Commission, for any failure by Respondents to comply with this Order.

B. If a trustee is appointed by the Commission or a court pursuant to Paragraph III.A. of this Order, Respondents shall consent to the following terms and conditions regarding the trustee's powers, duties, authority and responsibilities:

1. The Commission shall select the trustee, subject to the consent of Respondents, which consent shall not be unreasonably withheld. The trustee shall be a person with experience and expertise in acquisitions and divestitures. If Monier Lifetile has not opposed, in writing, including the reasons for opposing, the selection of any proposed trustee within ten (10) days after notice by the staff of the Commission to Monier Lifetile of the identity of any proposed trustee, Respondents shall be deemed to have consented to the selection of the proposed trustee.
 
2. Subject to the prior approval of the Commission, the trustee shall have the exclusive power and authority to accomplish the divestitures described in Paragraph III.A. of the Order.
 
3. Within ten (10) days after appointment of the trustee, Respondents shall execute a trust agreement that, subject to the prior approval of the Commission, and in the case of a court-appointed trustee, of the court, transfers to the trustee all rights and powers necessary to permit the trustee to effect the divestitures required by this Order.
 
4. The trustee shall have twelve (12) months from the date the Commission approves the trust agreement described in Paragraph III.B.3. to accomplish the divestitures, which shall be subject to the prior approval of the Commission. If, however, at the end of the twelve (12) month period, the trustee has submitted a plan for the divestitures required by this Order or believes that the divestitures required by this Order can be achieved within a reasonable time, then the divestiture period may be extended by the Commission, or, in the case of a court-appointed trustee, by the court; provided, however, the Commission may extend the period for the divestitures only two (2) times.
 
5. The trustee shall have full and complete access to the personnel, books, records and facilities related to the Tile Manufacturing Assets To Be Divested or to any other relevant information, as the trustee may request. Respondents shall develop such financial or other information as the trustee may request and shall cooperate with the trustee. Respondents shall take no action to interfere with or impede the trustee's accomplishment of the divestitures. Any delays in any divestiture caused by Respondents shall extend the time for that divestiture under this Paragraph in an amount equal to the delay, as determined by the Commission or, for a court-appointed trustee, by the court.
 
6. The trustee shall use his or her best efforts to negotiate the most favorable price and terms available in each contract that is submitted to the Commission, subject to Respondents' absolute and unconditional obligation to divest expeditiously at no minimum price. The divestitures shall be made in a manner consistent with the terms of this Order; provided, however, if the trustee receives bona fide offers for a Tile Manufacturing Facility from more than one acquiring entity, and if the Commission determines to approve more than one such acquiring entity, the trustee shall divest to the acquiring entity or entities selected by Respondents from among those approved by the Commission; provided further, however, that Respondents shall select such entity within five (5) days of receiving notification of the Commission's approval.
 
7. The trustee shall serve, without bond or other security, at the cost and expense of Respondents, on such reasonable and customary terms and conditions as the Commission or a court may set. The trustee shall have the authority to employ, at the cost and expense of Respondents, and at reasonable fees, such consultants, accountants, attorneys, investment bankers, business brokers, appraisers and other representatives and assistants as are necessary to carry out the trustee's duties and responsibilities. The trustee shall account for all monies derived from the divestitures and all expenses incurred. After approval by the Commission and, in the case of a court-appointed trustee, by the court, of the account of the trustee, including fees for his or her services, all remaining monies shall be paid at the direction of the Respondents, and the trustee's power shall be terminated. The trustee's compensation shall be based at least in significant part on a commission arrangement contingent on the trustee's accomplishing the divestitures required by Paragraph III.A. of this Order.
 
8. Respondents shall indemnify the trustee and hold the trustee harmless against any losses, claims, damages, liabilities or expenses arising out of, or in connection with, the performance of the trustee's duties, including all reasonable fees of counsel and other expenses incurred in connection with the preparation for, or defense of, any claim whether or not resulting in any liability, except to the extent that such liabilities, losses, damages, claims or expenses result from misfeasance, gross negligence, willful or wanton acts or bad faith by the trustee.
 
9. If the trustee ceases to act or fails to act diligently, a substitute trustee shall be appointed in the same manner as provided in this Paragraph.
 
10. The Commission or, in the case of a court-appointed trustee, the court, may on its own initiative or at the request of the trustee issue such additional orders or directions as may be reasonably necessary or appropriate to accomplish the divestitures required by this Order.
 
11. The trustee may divest such additional ancillary assets related to the Tile Manufacturing Assets To Be Divested and effect such ancillary arrangements as are necessary to satisfy the requirements or purposes of this Order.
 
12. The trustee shall have no obligation or authority to operate or maintain the Tile Manufacturing Assets To Be Divested.
 
13. The trustee shall report in writing to Respondents and the Commission every sixty (60) days concerning the trustee's efforts to accomplish the divestitures required by this Order.

IV.

IT IS FURTHER ORDERED that within thirty (30) days after the date this Order becomes final, and every sixty (60) days thereafter until Respondents have fully complied with the provisions of Paragraphs II. and III. of this Order, Respondents shall submit to the Commission verified written reports setting forth in detail the manner and form in which they intend to comply, are complying, and have complied with the requirements of this Order. Respondents shall include in their compliance reports, among other things that are required from time to time, a full description of the efforts being made to comply with Paragraphs II. and III. of the Order. Respondents shall include in their compliance reports copies of all written communications to and from any Acquirer, all internal documents (except privileged documents), and all reports and recommendations, concerning the divestitures.

V.

IT IS FURTHER ORDERED that, for a period of ten (10) years from the date this Order becomes final, Respondents shall not, without providing advance written notification to the Commission, directly or indirectly, through subsidiaries, partnerships, joint ventures, or otherwise:

A. Acquire any stock, share capital, equity, partnership, membership or other interest in, any concern, corporate or non-corporate, engaged in, at the time of such acquisition or within the year preceding such acquisition, the manufacture of Concrete Roofing Tile in Southern California, Arizona, Nevada or Florida; or
 
B. Acquire any assets used at the time of such acquisition or within the year preceding such acquisition in the manufacture of Concrete Roofing Tile in Southern California, Arizona, Nevada or Florida.

Said notification shall be given on the Notification and Report Form set forth in the Appendix to Part 803 of Title 16 of the Code of Federal Regulations as amended (hereinafter referred to as "the Notification"), and shall be prepared and transmitted in accordance with the requirements of that part, except that no filing fee will be required for any such notification. The Notification shall be filed with the Secretary of the Commission, notification need not be made to the United States Department of Justice, and notification is required only of Respondents and not of any other party to the transaction. Respondents shall provide the Notification to the Commission at least thirty (30) days prior to consummating the transaction (hereinafter referred to as the "first waiting period"). If, within the first waiting period, representatives of the Commission make a written request for additional information or documentary material (within the meaning of 16 C.F.R.  803.20), Respondents shall not consummate the transaction until twenty (20) days after submitting such additional information or documentary material. Early termination of the waiting periods in this Paragraph may be requested and, where appropriate, granted by letter from the Bureau of Competition. Provided, however, that prior notification shall not be required by this Paragraph for a transaction for which notification is required to be made, and has been made, pursuant to Section 7A of the Clayton Act, 15 U.S.C.  18a.

VI.

IT IS FURTHER ORDERED that Respondents shall notify the Commission at least thirty (30) days prior to any proposed change in the corporate Respondents such as dissolution, assignment, sale resulting in the emergence of successor corporations, or the creation or dissolution of subsidiaries or any other change in the corporations or Joint Venture that may affect compliance obligations arising out of the Order.

VII.

IT IS FURTHER ORDERED that, for the purpose of determining or securing compliance with this Order, Respondents shall permit any duly authorized representative of the Commission:

A. Access, during office hours and in the presence of counsel, to all facilities and access to inspect and copy all books, ledgers, accounts, correspondence, memoranda and other records and documents in the possession or under the control of Respondents relating to any matters contained in this Order; and
 
B. Upon five (5) days' notice to Respondents and without restraint or interference from Respondents, to interview officers, directors or employees of Respondents, who may have counsel present, regarding such matters.