United States v. Cemex, S.A.B. de C.V., Proposed Final Judgment and Competitive Impact Statement, 32314-32331 [07-2856]

Agencies

• Antitrust Division
• Department of Justice

[Federal Register Volume 72, Number 112 (Tuesday, June 12, 2007)]
[Notices]
[Pages 32314-32331]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 07-2856]


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DEPARTMENT OF JUSTICE

Antitrust Division


United States v. Cemex, S.A.B. de C.V., Proposed Final Judgment 
and Competitive Impact Statement

    Notice is hereby given pursuant to the Antitrust Procedures and 
Penalties Act, 15 U.S.C. 16(b)-(h), that a proposed Final Judgment, 
Hold Separate Stipulation and Order, and Competitive Impact Statement 
have been filed with the United States District Court for the District 
of Columbia in United States v. Cemex, S.A.B. de C.V., Civil Action No. 
1:07-cv-00640. On April 4, 2007, the United States filed a Complaint to 
enjoin Cemex, S.A.B. de C.V. from acquiring Rinker Group Limited. On 
May 2, 2007, the United States filed an Amended Complaint naming Rinker 
as a defendant in the suit. The Amended Complaint alleges that Cemex's 
acquisition of Rinker would substantially lessen competition in the 
production and distribution of ready mix concrete in certain 
metropolitan areas of Florida and Arizona, of concrete block in certain 
metropolitan areas of Florida, and of aggregate in the metropolitan 
area of Tucson, Arizona, in violation of Section 7 of the Clayton Act, 
as amended, 15 U.S.C. 18. The proposed Final Judgment requires Cemex, 
once it obtains control of Rinker, to divest (1) Ready mix concrete 
plants in the metropolitan areas of Fort Walton Beach/Panama City/
Pensacola, Jacksonville, Orlando, Tampa/St. Petersburg, and Fort Myers/
Naples, Florida and the metropolitan areas Flagstaff and Tucson, 
Arizona; (2) concrete block plants in metropolitan Tampa/St. Petersburg 
and Fort Myers/Naples, Florida; and (3) aggregate plants in 
metropolitan Tucson, Arizona.
    Copies of the Amended Complaint, proposed Final Judgment, and 
Competitive Impact Statement are available for inspection at the 
Department of Justice, Antitrust Division, Antitrust Documents Group, 
325 7th Street, NW., Room 215, Washington, DC 20530 (telephone: 202-
514-2481), on the Department of Justice's Web site at https://
www.usdoj.gov/atr, and at the Office of the Clerk of the United States 
District Court for the District of Columbia, Washington, DC. Copies of 
these materials may be obtained from the Antitrust Division upon 
request and payment of a copying fee set by Department of Justice 
regulations.
    Public comment is invited within 60 days of the date of this 
notice. Such comments, and responses thereto, will be published in the 
Federal Register and filed with the Court. Comments should be directed 
to Maribeth Petrizzi, Chief, Litigation II Section, Antitrust Division, 
U.S. Department of Justice, 1401 H Street, NW., Suite 3000, Washington, 
DC 20530 (telephone: 202-307-0924).

Patricia A. Brink,
Deputy Director of Operations.

United States District Court for the District of Columbia

    United States of America, Department of Justice, Antitrust 
Division, 1401 H Street, NW., Suite 3000, Washington, DC 20530, 
Plaintiff, v. Cemex, S.A.B. de C.V., Av. Ricardo Margain Zozaya 
#325, Colonia del Valle Campestre, Garza Garcia, Nuevo Leon, Mexico 
66265, and Rinker Group Limited, Level 8, Tower B, 799 Pacific 
Highway, Chatsworth, NSW 2067, Australia, Defendants.

Case No.: 1:07-cv-00640.
Judge: Hon. Royce C. Lamberth.
Deck Type: Antitrust.
Date Stamp: May 2, 2007.

Amended Complaint

    Plaintiff United States of America (``United States''), acting 
under the direction of the Attorney General of the United States, 
brings this civil antitrust action to obtain equitable and other relief 
against defendants, Cemex, S.A.B. de C.V. (``Cemex'') and Rinker Group 
Limited (``Rinker'') to prevent Cemex's proposed acquisition of Rinker. 
Plaintiff complains and alleges as follows:

I. Nature of the Action

    1. On October 27, 2006, Cemex Australia Pty Ltd., an entity 
controlled by Cemex, initiated a hostile cash tender offer to acquire 
all of the outstanding shares of Rinker. The total enterprise value of 
the transaction offer when made on October 27, 2007, including Rinker's 
debt, was approximately $12 billion. The offer was due to expire on 
March 30, 2007, but Cemex extended it until April 27, 2007.
    2. On April 9, 2007, Cemex announced that it had signed an 
agreement with Rinker, pursuant to which Cemex increased its offer to 
make the total enterprise value of the transaction, including Rinker's 
debt, approximately $15 billion. This offer expired on May 18, 2007, 
and it is subject to the acquisition of 90 percent of Rinker's shares. 
As part of the agreement, Rinker's Board of Directors unanimously 
agreed to recommend to its shareholders that they accept Cemex's 
increased offer at the higher price, in the absence of a superior 
proposal.
    3. Cemex and Rinker both produce and distribute building materials, 
including, among other things, ready mix concrete, aggregate, and 
concrete block, throughout the world.
    4. The combination of Cemex and Rinker would create one of the 
world's largest building materials companies. Cemex's proposed 
acquisition of Rinker would reduce the number of significant suppliers 
of ready mix concrete in various metropolitan areas in Florida and 
Arizona, of concrete block in several metropolitan areas in Florida, 
and of aggregate in Tucson, Arizona.
    5. The United States brings this action to prevent the proposed 
acquisition because it would substantially lessen competition in the 
production and distribution of ready mix concrete in the metropolitan 
areas of Fort Walton Beach/Panama City/Pensacola, Jacksonville, 
Orlando, Tampa/St. Petersburg, Fort Myers/Naples, Florida, and the 
metropolitan areas of Flagstaff and Tucson, Arizona. In addition, the 
acquisition would substantially lessen competition in the production 
and distribution of concrete block in metropolitan Tampa/St. Petersburg 
and Fort Myers/Naples, Florida. Finally, the acquisition would 
substantially lessen competition in the production and distribution of 
aggregate in metropolitan Tucson, Arizona.

II. Parties to the Proposed Transaction

    6. Defendant Cemex is organized under the laws of the United 
Mexican States with its principal place of business in Nuevo 
Le[oacute]n, Mexico. Cemex operates in the United States through its 
wholly owned subsidiary, Cemex, Inc., which has its principal place of 
business in Houston, Texas. In 2006,

[[Page 32315]]

Cemex reported total sales of approximately $24.6 billion.
    7. Cemex produces and distributes cement, ready mix concrete, 
aggregate, concrete block, concrete pipe, and related building 
materials to customers in more than 50 countries. Approximately 25 
percent of Cemex's revenues are earned in the United States. Cemex is 
the largest United States supplier of ready mix concrete and cement and 
the seventh largest United States supplier of aggregate.
    8. Defendant Rinker is organized under the laws of Australia with 
its principal place of business in Chatswood, Australia. Rinker 
operates in the United States through its subsidiary, Rinker Materials 
Corporation. Rinker Materials Corporation has its principal place of 
business in West Palm Beach, Florida. In 2006, Rinker reported total 
sales of approximately $4 billion.
    9. Rinker produces and distributes aggregate, ready mix concrete, 
cement, concrete block, asphalt, concrete pipe, and other construction 
materials through its operations in the United States and Australia. 
Approximately 80 percent of Rinker's revenues are earned in the United 
States. Rinker is the second largest United States supplier of ready 
mix concrete and the fifth largest United States supplier of aggregate.

III. Jurisdiction and Venue

    10. Plaintiff United States brings this action under Section 15 of 
the Clayton Act, as amended, 15 U.S.C. 25, to prevent and restrain 
defendants from violating Section 7 of the Clayton Act, 15 U.S.C. 18.
    11. Defendants produce and distribute ready mix concrete, concrete 
block, and aggregate in the flow of interstate commerce. Defendants' 
activities in producing and distributing these products substantially 
affect interstate commerce. This Court has subject matter jurisdiction 
over this action pursuant to Section 12 of the Clayton Act, 15 U.S.C. 
22, and 28 U.S.C. 1331, 1337(a), and 1345.
    12. Venue is proper in this District pursuant to 28 U.S.C. 1391(d). 
Further, defendants have consented to venue and personal jurisdiction 
in this judicial district.

IV. Trade and Commerce

A. The Relevant Product Markets
1. Ready Mix Concrete
    13. Ready mix concrete is a building material made up of a 
combination of cement, fine and coarse aggregate, small amounts of 
chemical additives, and water. The amount of cement added to a concrete 
mixture determines its strength, which is measured in pounds per square 
inch (``psi''). Concrete with higher psi ratings is typically used for 
large state department of transportation highway and bridge projects 
and high-rise buildings. Concrete with lower psi ratings is typically 
used for residential and curb-and-gutter construction projects.
    14. Ready mix concrete is made at production facilities called 
batch plants. A batch plant measures the precise amount of dry input 
products needed to manufacture a given type of concrete. The mixture is 
then dumped into a rotating drum mounted on a heavy duty truck. 
Immediately before the truck departs the plant, a measured amount of 
water is added. Once the water hits the dry mixture, an irreversible 
chemical reaction is triggered causing the product to begin to set into 
a rigid building substance. The concrete components are mixed by the 
rotating drum while the truck is being driven to the job site. At the 
job site, the concrete is poured directly from the truck onto the 
project.
    15. Ready mix concrete is unique because it is pliable when freshly 
mixed, can be molded into a variety of forms, and it is strong and 
permanent when hardened. For many building applications, customers will 
not substitute other building materials, such as steel, wood, or 
asphalt, for ready mix concrete. Steel is often not a substitute for 
ready mix concrete because it cannot be poured and formed into smooth, 
regular planes. Wood is often not a substitute because it does not have 
the structural strength to support heavy loads. Asphalt is often not a 
substitute because it cannot be used for the structural portions of 
bridges, cannot be used for buildings, and for certain applications 
cannot be used for highways.
    16. Ready mix concrete is sold pursuant to bids, which are based on 
extensive specifications from the customer regarding, among other 
things, the amount of concrete, the various strengths of concrete, and 
the size and timing of the concrete pours. The needs of the customer 
can differ significantly by each project.
    17. Not all suppliers of ready mix concrete can service every kind 
of project. For example, servicing certain types of ``large projects,'' 
such as large state department of transportation highway and bridge 
building projects and high-rise building projects, requires ready mix 
concrete suppliers to be able to provide: (a) A large number of cubic 
yards of concrete; (b) large daily pours of concrete, which require the 
concrete supplier to schedule trucks to arrive continuously at a 
project; (c) concrete having multiple psi specifications; and (d) 
testing to insure the concrete meets project engineering 
specifications.
    18. If the concrete does not meet the project specifications or the 
concrete is not poured continuously, the customer may suffer 
substantial direct and consequential losses as a result of defective 
concrete. Contractors building large projects carefully select 
suppliers to minimize the chances of problems with the concrete. .
    19. Purchasers of ready mix concrete for such large projects 
require that their suppliers have: (a) Multiple ready mix concrete 
plants in a geographic area; (b) the ability to produce large amounts 
of concrete with multiple specifications; (c) backup plants; (d) a 
large number of concrete trucks; (e) a sizeable and well-trained 
workforce; (f) the demonstrated ability to service such a large 
project; and (g) considerable financial backing to remedy any problems 
relating to defective concrete.
    20. Each large project is bid separately and ready mix concrete 
suppliers can identify the specific market conditions that apply to 
each large project, including the number of competitors that 
potentially could service the project's requirements. Ready mix 
concrete suppliers can and do charge different prices to customers 
based on the particular project's requirements and the market 
conditions.
    21. A small but significant post-acquisition increase in the price 
of ready mix concrete that meets the bid specifications would not cause 
the purchasers of ready mix concrete for large projects to substitute 
another building material in sufficient quantities, or to utilize a 
supplier of ready mix concrete without the characteristics described in 
paragraph 19 above with sufficient frequency so as to make such a price 
increase unprofitable.
    22. Accordingly, the production, distribution, and sale of ready 
mix concrete for use in large projects is a line of commerce and a 
relevant product market within the meaning of Section 7 of the Clayton 
Act.
2. Concrete Block
    23. Concrete block is a construction material used to build 
exterior and interior walls in residential and commercial structures. 
Concrete block comes in a variety of shapes and sizes. Standard 
concrete blocks measure 8 inches by 8 inches by 16 inches and are 
composed of two hollow squares joined to form a rectangle.
    24. Concrete block is produced by pouring concrete into molds and

[[Page 32316]]

pressing the molded blocks onto a conveyor belt for transport to a kiln 
for curing. Concrete blocks are then delivered to storage yards for 
final hardening and storage.
    25. In Florida, from Orlando south, the walls of residential 
structures are built almost exclusively with concrete block. Wood is 
not a viable substitute because of its susceptibility to termite and 
hurricane damage. Poured concrete walls (``tilt up'' walls) are at 
least 10 percent more expensive than concrete block, except where a 
large number of identical structures with regular shapes are built on 
contiguous lots using a single mold. In addition, block made of 
polyurethane is not an economically viable substitute because it is 
difficult to install and does not withstand hurricane winds as well as 
concrete block.
    26. For nearly all residential construction applications in 
Florida, from Orlando south, a small but significant post-acquisition 
increase in the price of concrete block would not cause the purchasers 
of concrete block to substitute another product in sufficient 
quantities so as to make such a price increase unprofitable.
    27. Accordingly, within the state of Florida, from Orlando south, 
the production and distribution of concrete block is a line of commerce 
and a relevant product market within the meaning of Section 7 of the 
Clayton Act.
3. Aggregate
    28. Aggregate is rock mined from either quarries or pits. Aggregate 
is crushed, washed, and mixed with sand, cement, and water to produce 
ready mix concrete. It is also used to make asphalt concrete for use in 
building roads. Different sizes of rock are needed to meet different 
ready mix concrete and asphalt specifications.
    29. There are no substitutes for aggregate because aggregate 
differs from other types of stone products in its physical composition, 
functional characteristics, customary uses, and pricing. It must meet 
the state departments of transportation or American Society of Testing 
Materials' specifications for the specific type of asphalt or ready mix 
concrete being produced.
    30. A small but significant post-acquisition increase in the price 
of aggregate that meets state departments of transportation and 
American Society of Testing Materials' specifications for use in ready 
mix concrete and asphalt projects would not cause the purchasers of 
such aggregate to substitute another product in sufficient quantities 
so as to make such a price increase unprofitable.
    31. Accordingly, the production and distribution of aggregate that 
meets state departments of transportation and American Society of 
Testing materials' specifications for use in ready mix concrete and 
asphalt projects is a line of commerce and a relevant product market 
within the meaning of Section 7 of the Clayton Act.
B. The Relevant Geographic Markets
1. Ready Mix Concrete
    32. The ready mix concrete needed for large projects, such as 
highways, bridges, and high-rise buildings, is bid on a project-by-
project basis. Ready mix concrete suppliers can identify the specific 
market conditions that apply to each project, including the number of 
competitors that potentially could service the location of the project. 
Ready mix concrete suppliers charge different prices to customers based 
on the particular location of a project.
    33. The suppliers with the ability to bid on large projects are 
those with plants located within the metropolitan area in which the 
project is located. The cost of transporting ready mix concrete is high 
compared to the value of the product. As concrete is hauled greater 
distances, the transportation costs begin to diminish the profitability 
of a load of concrete. Therefore, suppliers attempt to stay close to 
their batch plants to minimize the cost of hauling concrete.
    34. Further, because concrete begins to set while being driven to 
the job site, it is highly perishable. Therefore, contractors and state 
departments of transportation typically limit the time concrete can 
spend in a truck to 90 minutes or less. This time may be even shorter 
in hot weather conditions. This time period is measured from the moment 
the water hits the dry concrete inputs in the truck until the concrete 
is poured out of the truck. Because of this 90-minute window, 
contractors and state departments of transportation typically allow 
only a portion--often only 30 minutes--to be consumed by driving time. 
If the concrete is driven for a longer period of time, there may be 
insufficient time for the concrete to be completely poured onto the 
project within the 90-minute window.
    35. Due to its perishability and the cost of hauling concrete, 
depending on the size of the city and the associated traffic, the 
distance concrete can reasonably be transported for large projects, 
such as highways, bridges, and high-rise buildings in a metropolitan 
area is limited to the metropolitan area and, in many cases, to only 
portions of that area.
    36. The relevant geographic markets, within the meaning of Section 
7 of the Clayton Act, consist of the locations within the metropolitan 
areas of Fort Walton Beach/Panama City/Pensacola, Jacksonville, 
Orlando, Tampa/St. Petersburg, Fort Myers/Naples, Florida, and the 
metropolitan areas of Flagstaff and Tucson, Arizona, to which Cemex and 
Rinker are among a small number of firms that compete to supply ready 
mix concrete for large projects.
2. Concrete Block
    37. The cost of transporting concrete block is high compared to the 
value of the product. Manufacturers or third-party haulers deliver 
concrete block to customer job sites by truck. As delivery distance 
increases, the ratio of transportation costs to the price of concrete 
block increases. In urban areas, this most often confines the transport 
of concrete block to the metropolitan area.
    38. A small but significant post-acquisition increase in the price 
of concrete block in metropolitan Tampa/St. Petersburg would not cause 
customers of concrete block to procure concrete block from outside this 
area in sufficient quantities so as to make such a price increase 
unprofitable.
    39. Accordingly, metropolitan Tampa/St. Petersburg is a relevant 
geographic market within the meaning of Section 7 of the Clayton Act.
    40. Similarly, a small but significant post-acquisition increase in 
the price of concrete block in metropolitan Fort Myers/Naples would not 
cause customers of concrete block to procure concrete block from 
outside this area so as to make such a price increase unprofitable.
    41. Accordingly, metropolitan Fort Myers/Naples is a relevant 
geographic market within the meaning of Section 7 of the Clayton Act.
3. Aggregate
    42. Aggregate is a bulky, heavy, and relatively low-cost product. 
The cost of transporting aggregate is high compared to the value of the 
product.
    43. Suppliers cannot economically transport aggregate to the Tucson 
area from locations outside of metropolitan Tucson. First, 
transportation costs limit the distance aggregate can be economically 
transported from an aggregate pit to a ready mix concrete plant (for 
aggregate pits that are not co-located with ready mix concrete plants) 
or from an aggregate pit to the job site. Second, the location of other 
aggregate suppliers limits the distance that aggregate can economically 
travel. Finally, in metropolitan Tucson, the ready mix concrete plants 
are typically

[[Page 32317]]

co-located with the aggregate pits to minimize transportation costs.
    44. A small but. significant post-acquisition increase in the price 
of aggregate in metropolitan Tucson would not cause customers of 
aggregate to procure aggregate in sufficient quantities from outside 
this area so as to make such a price increase unprofitable.
    45. Accordingly, metropolitan Tucson is a relevant geographic 
market within the meaning of Section 7 of the Clayton Act.
C. Anticompetitive Effects
1. The Proposed Transaction Will Harm Competition in the Markets for 
Ready Mix Concrete, Concrete Block, and Aggregate in the Specified 
Geographic Markets.
a. Ready Mix Concrete
    46. Vigorous price competition between Cemex and Rinker in the 
production and sale of ready mix concrete has benefitted customers.
    47. The competitors that could constrain Cemex and Rinker from 
raising prices for ready mix concrete to be used on large projects, 
such as highways, bridges, and high-rise buildings, are limited to 
those that meet the requirements imposed by purchasers for large ready 
mix concrete projects.
    48. The proposed acquisition will eliminate the competition between 
Cemex and Rinker and reduce the number of suppliers of ready mix 
concrete that might bid on certain types of large projects, such as 
highways, bridges, and high-rise buildings, from three to two in 
metropolitan Tampa/St. Petersburg and metropolitan Fort Walton Beach/
Panama City/Pensacola, Florida, and in metropolitan Tucson, Arizona. 
The proposed acquisition will eliminate the competition between Cemex 
and Rinker and reduce the number of suppliers of ready mix concrete 
that might bid on certain types of large projects, such as highways, 
bridges and high-rise buildings, from four to three generally, and in 
some areas or for some projects from three to two, in metropolitan 
Orlando, metropolitan Fort Myers/Naples, and metropolitan Jacksonville, 
Florida. Further, the proposed acquisition will substantially increase 
the likelihood that Cemex will unilaterally increase the price of ready 
mix concrete to a significant number of customers in these areas.
    49. In metropolitan Flagstaff, Arizona, the proposed acquisition 
will eliminate the competition between Cemex and Rinker and reduce the 
number of suppliers of ready mix concrete that might bid on certain 
types of large projects, such as highways, bridges, and high-rise 
buildings, from two to one.
    50. The response of other ready mix concrete producers in the 
relevant areas would not be sufficient to constrain a unilateral 
exercise of market power by Cemex after the acquisition.
    51. In addition, a combined Cemex and Rinker would have the ability 
to increase prices for ready mix concrete to certain customers. Ready 
mix concrete producers know the locations of their competitors' batch 
plants and the distance from their own plants and their competitors' 
plants to a customer's job site. Generally, because of transportation 
costs, the farther a supplier's closest competitor is from a job site, 
the less price competition that supplier faces for that project. Post-
acquisition, in instances where Cemex and Rinker plants were the 11 
closest plants to a customer's project, the combined firm, using the 
knowledge of its competitors' plant locations, would be able to charge 
such customers higher prices in instances in which the next closest 
ready mix concrete supplier's plant is farther from the customer's 
project than were the Cemex and Rinker plants.
    52. Without the competitive constraint of competition between Cemex 
and Rinker, post-acquisition Cemex will have a greater ability to 
exercise market power by raising prices to customers for whom Rinker 
and Cemex were their closest and second-closest sources of ready mix 
concrete.
    53. Further, Cemex's elimination of Rinker as an independent 
competitor in the production and distribution of ready mix concrete is 
likely to facilitate anticompetitive coordination among the remaining 
producers that can bid on large projects in each relevant geographic 
market. Mixes of the same strength of concrete are relatively standard 
and homogeneous, and producers have access to information about 
competitors' output, capacity, and costs. Moreover, participants in 
ready mix concrete markets have successfully engaged in anticompetitive 
coordination in the past. Given these market conditions, eliminating 
one of the few ready mix concrete suppliers that can bid on large 
projects is likely to further increase the ability of the remaining 
competitors to successfully coordinate.
    54. The transaction will therefore substantially lessen competition 
in the market for ready mix concrete in the affected areas, which is 
likely to lead to higher prices for the ultimate consumers of such 
products, in violation of Section 7 of the Clayton Act.
b. Concrete Block
    55. Vigorous price competition between Cemex and Rinker in the 
production and sale of concrete block has benefitted customers.
    56. In metropolitan Tampa/St. Petersburg, Florida, the proposed 
acquisition will eliminate the competition between Cemex and Rinker. 
The acquisition will give Cemex control of approximately 60 percent of 
the concrete block capacity in metropolitan Tampa/St. Petersburg. The 
proposed acquisition will substantially increase the likelihood that 
Cemex will unilaterally increase the price of concrete block to a 
significant number of customers in metropolitan Tampa/St. Petersburg.
    57. In metropolitan Fort Myers/Naples, Florida, the proposed 
acquisition will eliminate the competition between Cemex and Rinker. 
The acquisition will give Cemex control of approximately 69 percent of 
the concrete block capacity in metropolitan Fort Myers/Naples. The 
proposed acquisition will substantially increase the likelihood that 
Cemex will unilaterally increase the price of concrete block to a 
significant number of customers in metropolitan Fort Myers/Naples.
    58. In addition, in each of these markets, a combined Cemex and 
Rinker would have the ability to increase prices for concrete block to 
certain customers. As with ready mix concrete, concrete block 
manufacturers know the locations of their competitors' plants and the 
distance from their own plants and their competitors' plants to a 
customer's job site. Generally, because of transportation costs, the 
farther a supplier's closest competitor is from the job site, the less 
price competition that supplier faces for that project. Post-
acquisition, in instances where Cemex and Rinker plants were the 
closest plants to a customer's project, the combined firm, using the 
knowledge of its competitors' plant locations, would be able to charge 
such customers higher prices in instances in which the next closest 
concrete block supplier's plant is farther from the customer's project 
than were the Cemex and Rinker plants.
    59. Without the constraint of competition between Cemex and Rinker, 
post-acquisition Cemex will have a greater ability to exercise market 
power by raising prices to customers for whom Rinker and Cemex were 
their closest and second-closest sources of concrete block supply.
    60. Further, Cemex's elimination of Rinker as an independent 
competitor in the production and distribution of

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concrete block is likely to facilitate anti-competitive coordination 
among the remaining concrete block producers in each relevant 
geographic market. Concrete block is a homogeneous commodity and 
producers have access to information about competitors' output, 
capacity, and costs. Given these market conditions, eliminating one of 
the few concrete block competitors is likely to further increase the 
ability of the remaining competitors to successfully coordinate.
    61. The response of other concrete block producers in the relevant 
areas would not be sufficient to constrain a unilateral exercise of 
market power by Cemex after the acquisition.
    62. The transaction will therefore substantially lessen competition 
in the market for concrete block, which is likely to lead to higher 
prices for the ultimate consumers of such products, in violation of 
Section 7 of the Clayton Act.
c. Aggregate
    63. Vigorous price competition between Cemex and Rinker in the 
production and sale of aggregate in metropolitan Tucson, Arizona has 
benefitted customers.
    64. In metropolitan Tucson, the proposed acquisition will eliminate 
the competition between Cemex and Rinker. The proposed acquisition will 
also reduce the number of significant suppliers of aggregate from five 
to four in the Tucson market generally and, depending on the location 
of the aggregate pit and the transportation costs, the number of 
suppliers could be reduced to as few as three or two. Further, the 
proposed acquisition will substantially increase the likelihood that 
Cemex will unilaterally increase the price of aggregate to a 
significant number of customers.
    65. Further, Cemex's elimination of Rinker as an independent 
competitor in the production and distribution of aggregate is likely to 
facilitate anti-competitive coordination among the remaining aggregate 
producers in Tucson. Aggregate is a homogeneous commodity and producers 
have access to information about competitors' output, capacity, and 
costs. Given these market conditions, eliminating one of the few 
aggregate competitors is likely to further increase the ability of the 
remaining competitors to successfully coordinate.
    66. The transaction will therefore substantially lessen competition 
in the market for aggregate, which is likely to lead to higher prices 
for the ultimate consumers of such products, in violation of Section 7 
of the Clayton Act.
2. Entry Is Not Likely To Deter the Exercise of Market Power
a. Ready Mix Concrete
    67. Successful entry or expansion into the production and 
distribution of ready mix concrete for large projects is difficult, 
time-consuming, and costly. In order to be able to bid on large 
projects, such as highways, bridges, and high-rise buildings, it is not 
sufficient simply to be able to produce ready mix concrete. In order to 
bid on these large projects, a new entrant or an existing producer must 
have multiple ready mix concrete plants in a geographic area, the 
ability to produce large amounts of concrete with multiple 
specifications, backup plants, a large number of concrete trucks, a 
sizeable and well-trained workforce, the demonstrated ability and 
reputation to be able to service such a large project and considerable 
financial backing to remedy any problems relating to defective 
concrete.
    68. In addition, opening a ready mix concrete batch plant in a 
metropolitan area is difficult because of the need to acquire the land 
for the site of such a batch plant. The location of a batch plant is 
very important because of the perishability of the ready mix concrete. 
In Florida, batch plants typically require approximately three to five 
acres of land to comply with environmental and land use regulations. 
Finding the appropriate site for such a plant close enough to the large 
projects is difficult, because in metropolitan areas such land is 
already utilized or does not have the appropriate zoning. Obtaining the 
land use permits or zoning variances is difficult, costly, and time-
consuming, as well. Furthermore, in addition to building the new batch 
plant, an entrant would also have to secure sources of cement and 
aggregate, which are inputs into ready mix concrete.
    69. Therefore, entry or expansion by any other firm so that it is 
able to bid on large ready mix concrete projects will not be timely, 
likely, or sufficient to defeat an anti-competitive price Increase.
b. Concrete Block
    70. In metropolitan Tampa/St. Petersburg and metropolitan Fort 
Myers/Naples, successful entry or expansion into the production and 
distribution of concrete block is difficult, time consuming, and 
costly. Properly zoned parcels of land of the necessary size (at least 
eight acres) are scarce. Locating or securing proper zoning, 
development, building, air quality, and environmental permits and 
building a concrete block plant can take more than two years. Building 
a new concrete block plant costs approximately $8 to $12 million.
    71. Therefore, entry or expansion by any other firm into the 
concrete block markets in metropolitan Tampa/St. Petersburg and 
metropolitan Fort Myers/Naples will not be timely, likely, or 
sufficient to defeat an anti-competitive price increase.
c. Aggregate
    72. Successful entry or expansion into the production and 
distribution of aggregate is difficult, time-consuming, and costly. 
Successful entry or expansion into the production and distribution of 
aggregate in metropolitan Tucson, Arizona is difficult because there 
are very few new sites on which to locate aggregate pits. First, for 
aggregate used on transportation projects, the aggregate pits must be 
located in a river bed or wash. Second, aggregate is a finite resource 
in metropolitan Tucson, and several aggregate pits have been depleted 
in the past several years. Third, requests to open new aggregate pits 
often face fierce public opposition.
    73. In addition, Arizona state and federal zoning, air quality, and 
other permitting process requirements must be met. Obtaining the 
necessary environmental and land-use permits for aggregate pits is 
difficult in Tucson.
    74. Further, the Arizona Aggregate Mine Reclamation Act requires 
financial assurances and other requirements for companies seeking to 
open a new aggregate pit, continuing to operating an existing aggregate 
pit, or expanding an existing aggregate pit.
    75. Therefore, entry or expansion by any other firm into the 
aggregate market in metropolitan Tucson would not be timely, likely, or 
sufficient to defeat an anti-competitive price Increase.

V. Violations Alleged

    76. The proposed acquisition of Rinker by Cemex would substantially 
lessen competition and tend to create a monopoly in interstate trade 
and commerce in violation of Section 7 of the Clayton Act, 15 U.S.C. 
18.
    77. Unless restrained, the transaction will have the following 
anti- competitive effects, among others:
    a. Actual and potential competition between Cemex and Rinker in the 
production and distribution of ready mix concrete, concrete block, and 
aggregate in the relevant geographic markets will be eliminated;
    b. competition generally in the production and distribution of 
ready

[[Page 32319]]

mix concrete, concrete block, and aggregate in the relevant geographic 
markets. will be substantially lessened; and
    c. Prices for ready mix concrete, concrete block, and aggregate in 
the relevant geographic markets will likely increase.

VI. Request for Relief

    78. Plaintiff requests that:
    a. Cemex's proposed acquisition of Rinker be adjudged and decreed 
to be unlawful and in violation of Section 7 of the Clayton Act, 15 
U.S.C. Sec.  18;
    b. Defendants and all persons acting on their behalf permanently 
enjoined and restrained from consummating the proposed acquisition or 
from entering into or carrying out any contract, agreement, plan, or 
understanding, the effect of which would be to combine Cemex with the 
operations of Rinker;
    c. Plaintiff be awarded its costs for this action; and
    d. Plaintiff receive such other and further relief as the Court 
deems just and proper.

     Respectfully submitted,

For Plaintiff United States of America:

/s/--------------------------------------------------------------------
Thomas O. Barnett,

Assistant Attorney General, D.C. Bar #426840.

/s/--------------------------------------------------------------------
David L. Meyer,

Deputy Assistant Attorney General, D.C. Bar #414420.

/s/--------------------------------------------------------------------
Patricia A. Brink,

Deputy Director of Operations.

/s/--------------------------------------------------------------------
Maribeth Petrizzi,

Chief, Litigation II Section, D.C. Bar #435204.

/s/--------------------------------------------------------------------
Dorothy B. Fountain,

Assistant Chief, Litigation II Section, D.C. Bar #439469.

/s/--------------------------------------------------------------------
Frederick H. Parmenter,
Christine A. Hill (D. C. Bar 461 048/inactive)
Leslie Peritz,
John Lynch,
James S. Yoon (D.C. Bar 491309),
Nicole Mark,
Helena Joly,

Attorneys, U.S. Department of Justice, Antitrust Division, 
Litigation II Section, 1401 H Street, N.W., Suite 3000, Washington, 
D.C. 20530, Tel: (202) 307-0924.

    Dated: May 2, 2007.

United States District Court for the District of Columbia

    United States of America, Plaintiff, v. Cemex, S.A.B. de C.Y. 
and Rinker Group Limited, Defendants.

Case No.: 1:07-cv-00640.
Judge: Hon. Royce C. Lamberth.
    Deck Type: Antitrust.
    Date Stamped: May 2, 2007.

Final Judgment

    Whereas, plaintiff, United States of America, filed its Amended 
Complaint on May 2, 2007, and plaintiff and defendants, Cemex, S.A.R de 
C.V. (``Cemex'') and Rinker Group Limited (''Rinker''), by their 
respective attorneys, have consented to the entry of this Final 
Judgment without trial or adjudication of any issue of fact or law, and 
without this Final Judgment constituting any evidence against or 
admission by any party regarding any issue of fact or law;
    And whereas, Cemex agrees to be bound by the provisions of this 
Final Judgment pending its approval by the Court;
    And whereas, the essence of this Final Judgment is the prompt and 
certain divestiture of certain rights or assets by Cemex to assure that 
competition is not substantially lessened;
    And whereas, plaintiff requires Cemex to make certain divestitures 
for the purpose of remedying the loss of competition alleged in the 
Amended Complaint;
    And whereas, Cemex has represented to the United States that the 
divestitures required below can and will be made and that Cemex will 
later raise no claim of hardship or difficulty as grounds for asking 
the Court to modify any of the divestiture provisions contained below;
    Now therefore, before any testimony is taken, without trial or 
adjudication of any issue of fact or law, and upon consent of the 
parties, it is Ordered, adjudged and decreed:

I. Jurisdiction

    This Court has jurisdiction over the subject matter of and each of 
the parties to this action. The Amended Complaint states a claim upon 
which relief may be granted against defendants under Section 7 of the 
Clayton Act, as amended, 15 U.S.C. 18.

II. Definitions

    As used in this Final Judgment:
    A. ``Acquirer'' or ``Acquirers'' means the entity or entities to 
whom Cemex divests some or all of the Divestiture Assets.
    B. ``Aggregate'' means crushed stone and gravel produced at 
quarries, mines, or gravel pits used for, among other things, the 
production of ready mix concrete and concrete block. c.
    C. ``Cemex'' means defendant Cemex, S.A.B. de C.V., a Mexican 
corporation with its headquarters in Nuevo Leon, Mexico, its successors 
and assigns, and its subsidiaries, divisions, groups, affiliates, 
partnerships and joint ventures, and their directors, officers, 
managers, agents, and employees.
    D. ``Concrete block'' means a building material used in the 
construction of residential and commercial structures that is produced 
at a plant by mixing cementitious material, aggregate, chemical 
additives, and water, and placing that mixture in molds of various 
sizes.
    E. Divestiture Assets'' means:
    1. the following Ready Mix Concrete plants:
a. Fort Walton Beach/Panama City/Pensacola, Florida Area
    i. Rinker's Crestview plant, located at 5420 Fairchild Road, 
Crestview, FL 32539;
    ii. Rinker's Fort Walton plant, located at 1787 FIM Boulevard, Fort 
Walton Beach, FL 32547;
    iii. Rinker's Milton plant, located at 6250 Da Lisa Road, Milton, 
FL 32583;
    iv. Rinker's Panama City plant, located at 1901-B East 15th Street, 
Panama City, FL 32405;
    v. Rinker's Panama City Beach plant, located at 17750 Hutchinson 
Road, Panama City Beach, FL 32407;
    vi. Rinker's Pensacola plant, located at 415 Hyatt Street, 
Pensacola, FL 32503;
    vii. Rinker's Port St. Joe plant, located at 1145 Industrial Road, 
Port St. Joe, FL 32456;
    viii. Rinker's Point Washington plant, located at the intersection 
of East Highway 98 and Old Ferry Road, Santa Rosa Beach, FL 32459;
b. Jacksonville, Florida Area
    i. Cemex's Main Street plant, located at 9214 North Main Street, 
Jacksonville, FL 32218;
    ii. Cemex's Southside Florida Mining Boulevard plant, located at 
9715 East Florida Mining Boulevard, Jacksonville, FL 32223;
c. Orlando, Florida Area
    i. Cemex's East Orlando plant, located at 7400 Narcoossee Road, 
Orlando, FL 32822;
    ii. Cemex's Goldenrod plant, located at 4000 Forsyth Road, Winter 
Park, FL 32792;
    iii. Cemex's Winter Garden plant, located at 201 Hennis Road, 
Winter Garden, FL 34787;
    iv. Rinker's Kennedy plant, located at 1406 Atlanta Avenue, 
Orlando, FL 32806;
d. Tampa/St. Petersburg, Florida Area
    i. Rinker's Clearwater plant, located at 3757 118th Avenue North, 
Clearwater, FL 33762;

[[Page 32320]]

    ii. Rinker's Odessa plant, located at 12025 State Road 54, Odessa, 
FL 33556;
    iii. Rinker's Odessa Keys plant, located at 11913 State Road 54, 
Odessa, FL 33556;
    iv. Rinker's Riverview plant, located at 6723 South 78th Street, 
Riverview, FL 33569;
    v. Rinker's Tampa plant, located at 6106 East Hanna Avenue, Tampa, 
FL 33610;
    vi. Rinker's Tampa Keys plant, located at 1811 North 57th Street, 
Tampa, FL 33619;
e. Fort Myers/Naples, Florida Area
    i. Rinker's Ave Maria plant, located at 4811 Ave Maria Boulevard, 
Immokalee, FL 34142;
    ii. Rinker's Bonita Springs plant, located at 25061 Old U.S. 
Highway 41 South, Bonita Springs, FL 34135;
    iii. Rinker's Canal Street plant, located at 4262 Canal Street, 
Fort Myers, FL 33916;
    iv. Rinker's Cape Coral (Pine Island) plant, located at 2401 SW 
Pine Island Road, Cape Coral, FL 33991;
    v. Rinker's Naples plant, located at 9210 Collier Boulevard, 
Naples, FL 34114;
    vi. Rinker's South Fort Myers plant, located at 7270 Alico Road, 
Fort Myers, FL 33912;
f. Flagstaff, Arizona Area
    Cemex's Brannen plant, located at 633 East Brannen Avenue, 
Flagstaff, AZ 86001;
g. Tucson, Arizona Area
    i. Cemex's Ina plant, located at 5400 West Massingale Road, Tucson, 
AZ 85743;
    ii. Rinker's Green Valley plant, located at 18701 South Old Nogales 
Highway, Sahuarita, AZ 85629;
    iii. Rinker's Poorman Road plant, located at 6500 South Old Spanish 
Trail, Tucson, AZ 85747;
    iv. Rinker's Valencia plant, located at 1011 West Valencia Road, 
Tucson, AZ 85706;
    The following concrete block plants:
a. Tampa/St. Petersburg, Florida
    i. Rinker's Odessa plant, located at 12025 State Road 54, Odessa, 
FL 33556;
    ii. Rinker's Palmetto plant, located at 600 9th Street West, 
Palmetto, FL 34221;
    iii. Rinker's Tampa plant, located at 6302 North 56th Street, 
Tampa, FL 33610;
b. Fort Myers/Naples, Florida Area
    i. Rinker's Bonita Springs plant, located at 25091 Old U.S. Highway 
41 South, Bonita Springs, FL 34135;
    ii. Rinker's Coral Rock plant, located at 41451 Cook Brown Road, 
Punta Gorda, FL 33982;
    iii. Rinker's South Fort Myers plant, located at 7270 Alico Road, 
Fort Myers, FL 33912;
    3. The following Tucson, Arizona area aggregate plants:
    a. Cemex's Ina plant, located at 5400 West Massingale Road, Tucson, 
AZ 85743;
    b. Rinker's Green Valley plant, located at 18701 South Old Nogales 
Highway, Sahuarita, AZ 85629;
    4. All tangible assets used in the plants listed in paragraphs 
II(E)(1 )-(3), including all research and development activities, 
manufacturing equipment, tooling and fixed assets, real property 
(leased or owned), mining equipment, personal property, inventory, 
aggregate reserves, office furniture, materials, supplies, on- or off-
site warehouses or storage facilities relating to the plants; all 
licenses, permits and authorizations issued by any governmental 
organization relating to the plants; all contracts, agreements, leases 
(including renewal rights), commitments, and understandings relating to 
the plants, including supply agreements; all customer lists, contracts, 
accounts, and credit records relating to the plants; all other records 
relating to the plants; and at the option of the Acquirer or Acquirers, 
a number of trucks and other vehicles usable at the plants listed in 
paragraphs II(E)(1)-(3) equal to, for each separate type of truck or 
other vehicle, the average number of trucks and other vehicles of that 
type used at each such plant per month during the months of operation 
of the plant between January 1, 2006 and December 31, 2006 (calculated 
by averaging the number of trucks and other vehicles of each type that 
were used at each plant at any time during each month that the plant 
was in operation), but such trucks and vehicles need not include any 
equipment related to Cemex's ``ReadySlump'' process, so long as the 
trucks and other vehicles are fully operable without such equipment; 
and
    5. All intangible assets used in the development, production, 
servicing, and distribution of products by the facilities listed in 
paragraphs II(E)(1)-(3), including but not limited to all contractual 
rights, patents, licenses and sublicenses, intellectual property, 
technical information, computer software (including dispatch software 
and management information systems) and related documentation, know-
how, trade secrets, drawings, blueprints, designs, design protocols, 
specifications for materials, specifications for parts and devices, 
safety procedures for the handling of materials and substances, quality 
assurance and control procedures, design tools and simulation 
capability, all manuals and technical information provided to the 
employees, customers, suppliers, agents or licensees, and all research 
data (including aggregate reserve testing information) concerning 
historic and current research and development efforts relating to the 
plants listed in paragraphs II(E)(1)-(3), including, but not limited to 
designs of experiments, and the results of successful and unsuccessful 
designs and experiments.
    F. ``Ready mix concrete'' means a building material used in the 
construction of buildings, highways, bridges, tunnels, and other 
projects that is produced by mixing a cementitious material and 
aggregate with sufficient water to cause the cement to set and bind.
    G. ``Rinker'' means defendant Rinker Group Limited, an Australian 
corporation with its headquarters in Chatswood, Australia, its 
successors and assigns, and its subsidiaries, divisions, groups, 
affiliates, partnerships and joint ventures, and their directors, 
officers, managers, agents, and employees.
    H. ``Divestiture Trigger'' means the day on which Cemex elects a 
majority of the Board of Directors of Rinker or forty-five (45) days 
after Cemex obtains a number of shares of Rinker stock in excess of 50 
percent of the outstanding shares of Rinker, whichever is sooner.

III. Applicability

    A. This Final Judgment applies to Cemex, as defined above, and all 
other persons in active concert or participation with Cemex who receive 
actual notice of this Final Judgment by personal service or otherwise.
    B. Cemex shall require, as a condition of the sale or other 
disposition of all or substantially all of its assets or of lesser 
business units that include the Divestiture Assets, that the purchaser 
agrees to be bound by the provisions of this Final Judgment.

IV. Divestitures

    A. Cemex is ordered and directed, within one hundred twenty (120) 
calendar days after the Divestiture Trigger, or five (5) days after 
notice of the entry of this Final Judgment by the Court, whichever is 
later, to divest the Divestiture Assets in a manner consistent with 
this Final Judgment to an Acquirer or Acquirers acceptable to the 
United States in its sole discretion. The United States, in its sole 
discretion, may agree to one or more extensions of this time period, 
not to exceed in total sixty (60) calendar days, and shall notify

[[Page 32321]]

the Court in each such circumstance. Cemex agrees to use its best 
efforts to divest the Divestiture Assets as expeditiously as possible.
    B. In accomplishing the divestitures ordered by the Final Judgment, 
Cemex promptly shall make known, by usual and customary means, the 
availability of the Divestiture Assets. Cemex shall inform any person 
making inquiry regarding a possible purchase of the Divestiture Assets 
that they are being divested pursuant to this Final Judgment and 
provide that person with a copy of this Final Judgment. Unless the 
United States otherwise consents in writing, Cemex shall offer to 
furnish to all prospective Acquirers, subject to customary 
confidentiality assurances, all information and documents relating to 
the Divestiture Assets that customarily are provided in a due diligence 
process except such information or documents subject to the attorney-
client or work-product privilege. Cemex shall make available such 
information to the United States at the same time that such information 
is made available to any other person.
    C. Unless the United States otherwise consents in writing, Cemex 
shall provide the Acquirer or Acquirers and the United States 
information relating to personnel involved in production, operations, 
and sales at the Divestiture Assets to enable the Acquirer or Acquirers 
to make offers of employment. Cemex will not interfere with any 
negotiations by the Acquirer or Acquirers to employ any employee of the 
Divestiture Assets whose primary responsibility is production, 
operations, or sales at the Divestiture Assets.
    D. Unless the United States otherwise consents in writing, Cemex 
shall permit prospective Acquirers of the Divestiture Assets to have 
reasonable access to personnel and to make inspections of the physical 
facilities of the Divestiture Assets; access to any and all 
environmental, zoning, and other permit documents and information; and 
access to any and all financial, operational, and other documents and 
information customarily provided as part of a due diligence process.
    E. Cemex shall warrant to the Acquirer or Acquirers that those 
Divestiture Assets owned by Cemex prior to an acquisition of Rinker 
will be operational on the date of the divestiture. In addition, with 
respect to those Divestiture Assets owned by Rinker prior to an 
acquisition by Cemex, Cemex shall warrant to the Acquirer or Acquirers 
that those Divestiture Assets will be operational on the date of the 
divestiture, if they were operational on the date Cemex acquires a 
number of shares of Rinker stock in excess of 50 percent of the 
outstanding shares of Rinker.
    F. Cemex shall not take any action that will impede in any way the 
permitting, operation, or divestiture of the Divestiture Assets.
    G. Cemex shall warrant to the Acquirer or Acquirers that there are 
no material defects in the environmental, zoning, or other permits 
pertaining to the operation of those Divestiture Assets owned by Cemex 
prior to an acquisition of Rinker. In addition, with respect to those 
Divestiture Assets owned by Rinker prior to an acquisition by Cemex, 
Cemex shall warrant to the Acquirer or Acquirers that there are no 
material defects in the environmental, zoning, or other permits 
pertaining to the operation of those Divestiture Assets, if there are 
no material defects in the environmental, zoning, or other permits 
pertaining to the operation of those Divestiture Assets on the date 
Cemex acquires a number of shares of Rinker stock in excess of 50 
percent of the outstanding shares of Rinker. Cemex shall not undertake, 
directly or indirectly, any challenges to the environmental, zoning, or 
other permits relating to the operation of the Divestiture Assets.
    H. If for any reason Cemex is unable within the time period 
required by paragraph IV(A) to divest any of the Divestiture Assets or 
make any of the Divestiture Assets available for sale by the trustee 
appointed pursuant to Section V, or if for any reason Cemex does not 
make the warranties in paragraphs IV(E) and (G) with respect to the 
assets owned by Rinker prior to an acquisition by Cemex, for each such 
asset, the United States, in its sole discretion, may select one or 
more alternative assets owned by Cemex that are located or used in the 
same geographic area (as identified in boldface type in section II(E)) 
to be divested in lieu of the Divestiture Asset that could not be 
divested. Unless the United States consents otherwise in writing, 
divestiture of an alternative Cemex asset shall include all tangible 
and intangible assets associated with that asset, as defined in 
paragraph II(E).
    I. Unless the United States otherwise consents in writing, any 
divestiture pursuant to Section IV, or by trustee appointed pursuant to 
Section V, of this Final Judgment, shall include the entire Divestiture 
Assets, and shall be accomplished in such a way as to satisfy the 
United States, in its sole discretion, that the Divestiture Assets can 
and will be used by the Acquirer or Acquirers as viable, ongoing 
businesses engaged in producing and distributing ready mix concrete, 
concrete block, and/or aggregate, that the Divestiture Assets will 
remain viable, and that the divestiture of such assets will remedy the 
competitive harm alleged in the Amended Complaint. The sale of the 
Divestiture Assets may be made to one or more Acquirers, so long as: 
(1) All of the ready mix concrete plants in a geographic area (as 
identified in boldface type in section II(E)) are divested to a single 
Acquirer; (2) all of the concrete block plants in a geographic area are 
divested to a single Acquirer; (3) both aggregate plants listed in 
paragraph II(E)(3) are divested to the same Acquirer that acquires the 
ready mix concrete plants listed in paragraphs II(E)(l)(g)(i)-(iii); 
and (4) in each instance it is demonstrated in a manner acceptable to 
the United States in its sole discretion that the Divestiture Assets 
will remain viable and the divestiture of such Divestiture assets will 
remedy the competitive harm alleged in the Amended Complaint. The 
divestitures, whether pursuant to Section IV or Section V of this Final 
Judgment,
    1. Shall be made to an Acquirer or Acquirers that, in the United 
States's sole judgment, has the intent and capability (including the 
necessary managerial, operational, technical and financial capability) 
to compete effectively in the production and distribution of ready mix 
concrete, concrete block, and/or aggregate; and
    2. Shall be accomplished so as to satisfy the United States, in its 
sole discretion, that none of the terms of any agreement between an 
Acquirer or Acquirers and Cemex gives Cemex the ability to unreasonably 
raise the Acquirer's costs, to lower the Acquirer's efficiency, or 
otherwise to interfere in the ability of the Acquirer to compete 
effectively in the production and distribution of ready mix concrete, 
concrete block, and/or aggregate.
    J. If Cemex does not acquire a number of shares of Rinker stock in 
excess of 50 percent of the outstanding shares of Rinker, Cemex shall 
divest all its interest in Rinker within six months from the date this 
Final Judgment is signed by the Court. Pending such divestiture, Cemex 
shall not, directly or indirectly: (1) Exercise dominion or control 
over, or otherwise seek to influence, the management, direction, or 
supervision of the business of Rinker; (2) seek or obtain 
representation on the Board of Directors of Rinker; (3) exercise any 
voting rights attached to the shares; (4) seek or obtain access to any 
confidential or proprietary information of Rinker; or (5) take any 
action or omit to take any action that would have an

[[Page 32322]]

effect different than if Cemex's interest in Rinker were that of a 
purely passive investor.

V. Appointment of Trustee to Effect Divestitures

    A. If Cemex has not divested the Divestiture Assets within the time 
period specified in paragraph IV(A), Cemex shall notify the United 
States of that fact in writing. Upon application of the United States, 
the Court shall appoint a trustee selected by the United States and 
approved by the Court to effect the divestiture of the Divestiture 
Assets.
    B. After the appointment of a trustee becomes effective, only the 
trustee shall have the right to sell the Divestiture Assets. The 
trustee shall have the power and authority to accomplish the 
divestiture to an Acquirer acceptable to the United States at such 
price and on such terms as are then obtainable upon reasonable effort 
by the trustee, subject to the provisions of Sections IV, V, and VI of 
this Final Judgment, and shall have such other powers as this Court 
deems appropriate. Subject to paragraph V(D) of this Final Judgment, 
the trustee may hire at the cost and expense of Cemex any investment 
bankers, attorneys, or other agents, who shall be solely accountable to 
the trustee, reasonably necessary in the trustee's judgment to assist 
in the divestiture.
    C. Cemex shall not object to a sale by the trustee on any ground 
other than the trustee's malfeasance. Any such objection by Cemex must 
be conveyed in writing to the United States and the trustee within ten 
(10) calendar days after the trustee has provided the notice required 
under Section VI.
    D. The trustee shall serve at the cost and expense of Cemex, on 
such terms and conditions as plaintiff approves, and shall account for 
all monies derived from the sale of the assets sold by the trustee and 
all costs and expenses so incurred. After approval by the Court of the 
trustee's accounting, including fees for its services and those of any 
professionals and agents retained by the trustee, all remaining money 
shall be paid to Cemex and the trust shall then be terminated. The 
compensation of the trustee and any professionals and agents retained 
by the trustee shall be reasonable in light of the value of the 
Divestiture Assets and based on a fee arrangement providing the trustee 
with an incentive based on the price and terms of the divestiture and 
the speed with which it is accomplished, but timeliness is paramount.
    E. Cemex shall use its best efforts to assist the trustee in 
accomplishing the required divestiture. The trustee and any 
consultants, accountants, attorneys, and other persons retained by the 
trustee shall have full and complete access to the personnel, books, 
records, and facilities of the business to be divested, and Cemex shall 
develop financial and other information relevant to such business as 
the trustee may reasonably request, subject to reasonable protection 
for trade secrets or other confidential research, development, or 
commercial information. Cemex shall take no action to interfere with or 
to impede the trustee's accomplishment of the divestiture.
    F. After its appointment, the trustee shall file monthly reports 
with the United States and the Court setting forth the trustee's 
efforts to accomplish the divestiture ordered under this Final 
Judgment. To the extent such reports contain information that the 
trustee deems confidential, such reports shall not be filed in the 
public docket of the Court. Such reports shall include the name, 
address, and telephone number of each person who, during the preceding 
month, made an offer to acquire, expressed an interest in acquiring, 
entered into negotiations to acquire, or was contacted or made an 
inquiry about acquiring the Divestiture Assets, and shall describe in 
detail each contact with any such person. The trustee shall maintain 
full records of all efforts made to divest the Divestiture Assets.
    G. If the trustee has not accomplished such divestiture within six 
months after its appointment, the trustee shall promptly file with the 
Court a report setting forth: (1) The trustee's efforts to accomplish 
the required divestiture; (2) the reasons, in the trustee's judgment, 
why the required divestiture has not been accomplished; and (3) the 
trustee's recommendations. To the extent such report contains 
information that the trustee deems confidential, such report shall not 
be filed in the public docket of the Court. The trustee shall at the 
same time furnish such report to the plaintiff, who shall have the 
right to make additional recommendations consistent with the purpose of 
the trust. The Court thereafter shall enter such orders as it shall 
deem appropriate to carry out the purpose of the Final Judgment, which 
may, if necessary, include extending the trust and the term of the 
trustee's appointment by a period requested by the United States.

VI. Notice of Proposed Divestiture

    A. Within two (2) business days following execution of a definitive 
divestiture agreement, Cemex or the trustee, whichever is then 
responsible for effecting the divestiture required herein, shall notify 
the United States of any proposed divestiture required by Section IV or 
V ofthis Final Judgment. If the trustee is responsible, it shall 
similarly notify Cemex. The notice shall set forth the details of the 
proposed divestiture and list the name, address, and telephone number 
of each person not previously identified who offered or expressed an 
interest in or desire to acquire any ownership interest in the 
Divestiture Assets, together with full details of the same.
    B. Within fifteen (15) calendar days of receipt by the United 
States of such notice, the United States may request from Cemex, the 
proposed Acquirer or Acquirers, any other third party, or the trustee, 
if applicable, additional information concerning the proposed 
divestiture, the proposed Acquirer or Acquirers, and any other 
potential Acquirer. Cemex and the trustee shall furnish any additional 
information requested within fifteen (15) calendar days of the receipt 
of the request, unless the parties shall otherwise agree.
    c. Within thirty (30) calendar days after receipt of the notice, or 
within twenty (20) calendar days after the United States has been 
provided the additional information requested from Cemex, the proposed 
Acquirer or Acquirers, any third party, or the trustee, whichever is 
later, the United States shall provide written notice to Cemex and the 
trustee, if there is one, stating whether or not it objects to the 
proposed divestiture. If the United States provides written notice that 
it does not object, the divestiture may be consummated, subject only to 
Cemex's limited right to object to the sale under paragraph V(C) of 
this Final Judgment. Absent written notice that the United States does 
not object to the proposed Acquirer or upon objection by the United 
States, a divestiture proposed under Section IV or Section V shall not 
be consummated. Upon objection by Cemex under paragraph V(C), a 
divestiture proposed under Section V shall not be consummated unless 
approved by the Court.

VII. Financing

    Cemex shall not finance all or any part of any purchase by an 
Acquirer of any Divestiture Asset pursuant to Section IV or V of this 
Final Judgment.

VIII. Hold Separate

    Until the divestiture required by this Final Judgment has been 
accomplished, Cemex shall take all steps necessary to comply with the 
Amended Hold Separate Stip