CONFIDLNTIAL 

MONITOR AGREI~MENT 

This Monitor Agreement (this "Agreement") entered into this June 2, 2016 by and among 

William Hill (the "Monitor"), ltalcemcnti SpA ("ltalccmcnti"), and l-IcidclbcrgCcment AG 

("Heidelberg" and, together with Jtalcementi, the "Respondents"), and provides as follows: 

WHEREAS, the United States Federal Trade Commission (the "Commission") has 

accepted or will shortly accept for public comment an Agreement Containing Consent Order, 

including a proposed Decision and Order and a proposed Order to Maintain Assets ("Asset 

Maintenance Order" and collectively, the "Orders"), which, among other things, requires the 

divestiture of certain plant and terminal assets, as defined in the Orders, and contemplates the 

appointment of a Monitor lo monitor Respondents' compliance with their obligations under the 

Orders; 

WHEREAS, the Commission has appointed William Hill as Monitor pursuant to the 

Orders, and William Hill has consent to such appointment; 

WHEREAS, the Orders further provide that Respondents shall execute an agreement, 

subject to the prior approval of the Commission, that confers all the rights and powers necessary 

to permit the Monitor to monitor Respondents' compliance with the terms of the Orders; and 

WHEREAS, the parties to this Agreement intend to be legally bound, subject only to the 

Commission's approval of this Agreement. 

NOW, THEREFORE, the Parties agree as follows: 

All capitalized terms used in this Agreement and not specifically defined herein shall 

have the respective definitions given to them in the Orders. 

ARTICLE I 

1.1 Monitor's Responsibilities. The Monitor shall be responsible for monitoring 

Respondents' compliance with their obligations as set forth in the Orders and the Divestiture 

Agreements, as defined in the Orders ("Monitor's Responsibilities"). 

1.2 Access to Relevant Information and Facilities. The Monitor shall have full and 

complete access to the personnel, facilities, books, and records of Respondents related to 

Respondents' obligations under the Orders and the Divestiture Agreements, as the Monitor may 

reasonably request. Respondents shall cooperate with any reasonable request of the Monitor. 

The Monitor shall give Respondents reasonable notice of any request for such access or such 

information and shall attempt to schedule any access or requests for information in such a 

manner as will not unreasonably interfere with Respondents' operations. At the request of the 

Monitor, Respondents shall promptly arrange meetings and discussions, including tours of 

relevant facilities, at reasonable times and locations between the Monitor and employees of 

Respondents who have knowledge relevant to the proper discharge of the Monitor's 

responsibilities under the Orders. 

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l.3 Compliance Reports. Respondents shall provide the Monitor with copies of all 

compliance reports filed with the Commission in a timely manner, but in any event no later than 

five (5) business days after the date on which Respondents file such a report with the 

Commission; 

1.4 	 Monitor's Obligations. The Monitor shall: 

a. 	 carry out the Monitor's Responsibilities, including submission of periodic 

reports, and such additional written reports as may he requested by the 

Commission staff; to the Commission staff regarding Respondents' 

compliance with the Orders; 

b. 	 maintain the confidentiality of all confidential information, including 

Confidential Business Information, and any other non-public confidential 

information provided to the Monitor by Respondents, the Acquirers of the 

Divested Businesses, any supplier or customer of Respondents, or the 

Commission, and shall use such confidential information only for the 

purpose of discharging the obligations pursuant to this Agreement and not 

for any other purpose, including, without limitation, any other business, 

scientific, technological, or personal purpose. The Monitor may disclose 

confidential information only to: 

L 	 persons working with the Monitor under this Agreement (and only 

to the extent such persons have executed a confidentiality 

agreement consistent with the provisions of this Agreement); and 

11. 	 persons employed at the Commission working on this matter; 

c. 	 maintain a record and inform the Commission of all persons (other than 

the persons referenced in I .4 (b)(ii) above) to whom confidential 

information related to this Monitor Agreement has been disclosed; 

d. 	 require any consultants, accountant, attorneys, and any other 

representatives or assistants retained by the Monitor to assist in carrying 

out the Monitor's Responsibilities to execute a confidentiality agreement 

that requires such third parties to treat confidential information with the 

same standards of care and obligations of confidentiality to which the 

Monitor must adhere under this Agreement; 

e. 	 maintain the confidentiality, for a period often (10) years after the 

termination of this Agreement, of all other aspects of the performance of 

the Monitor's Responsibilities and not disclose any confidential 

information, including Confidential Business Information, relating there; 

and 

f. 	 upon termination of the Monitor's duties under this Agreement, consult 

with the Commission's staff regarding disposition of any written and 

electronic materials (including materials that Respondents provided to the 

NA!-150l06749lv2 2 
Monitor) in the possession or control of the Monitor that relate to the 

Monitor's duties, and the Monitor shall dispose of such materials, which 

may include sending such materials to the Commission's stafl: as directed 

by the staff. 

In response to a request by Respondents to return or destroy materials that 

Respondents provided to the Monitor, the Monitor shall inform the 

Commission's staff of such request and, if the Commission's staff do not 

object, shall comply with the Respondents' request. Notwithstanding the 

foregoing the Monitor shall not be required to return or destroy 

confidential information contained in an archived computer back-up 

system for his disaster recovery and/or security purposes. Nothing herein 

shall abrogate the Monitor's duty of confidentiality, which includes an 

obligation not to disclose any non-public information obtained while 

acting as a Monitor for ten (I 0) years atler termination of this Agreement. 

For the purpose of this Agreement, information shall not be considered 

confidential or proprietary to the extent that it is or becomes part of the 

public domain (other than as the result of any action by the Monitor or by 

any employee, agent, affiliate or consultant of the Monitor), or to the 

extent that the recipient of such information can demonstrate that such 

information was already known to the recipient at the time of receipt from 

a source other than the Monitor, the Respondents, or any director, officer, 

employee, agent, consultant or affiliate of the Monitor or the Respondents, 

when such source was not known to recipient after due inquiry to be 

restricted from making such disclosure to such recipient. 

In the event that confidential information must be disclosed by the 

Monitor or any person referenced in 1.4(b )(ii) herein under applicable law 

or pursuant to legal process, such party shall, to the extent not otherwise 

prohibited, give written notice to the Respondents that such disclosure is 

required so that the Respondents may, at their sole expense, seek an 

appropriate protective order or waive compliance with the terms hereof or 

both. If, absent the entry of a protective order or the receipt of a waiver of 

this Monitor Agreement, the Monitor or any person referenced in l .4(b )(ii) 

herein is compelled by law or legal process to disclose any confidential 

information, such party (x) may disclose such information solely to the 

extent required by law; (y) shall not disclose such information until such 

time as it is required by law; and (z) shall exercise commercially 

reasonable efforts to obtain reliable assurances that confidential treatment 

will be accorded to any confidential information so disclosed. 

Notwithstanding the foregoing, the Monitor or any person referenced in 

1.4(b )(ii) herein may disclose confidential information to any regulatory or 

self-regulatory agency having jurisdiction over such party in the course of 

routine reviews or audits when such disclosure is required by law, which 

confidential information may be disclosed without notice or restriction. 

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1.5 Monitor Payment. Respondents will pay the Monitor the hourly fee specified in 

the confidential fee schedule attached as Appendix A ("Hourly Fee") for all reasonable time 

spent in performance of the Monitor's duties under this Agreement. ln addition, Respondents 

will pay: (a) out-of-pocket expenses reasonably incurred by the Monitor in the performance of 

the Monitor's duties; and (b) fees and disbursements reasonably incurred by such consultants, 

accountants, attorneys, and other representatives and assistants as are reasonably necessary lo 

carry out the Monitor's duties and responsibilities hereunder; however, all such out-of-pocket 

expenses and fees and disbursements shall be pre-approved by Respondents, which shall not 

withhold approval unreasonably. The Monitor shall invoice Respondents on a monthly basis, 

within seven (7) days of the conclusion of the month, including details and an explanation of all 

matters for which the Monitor submits an invoice lo Respondents. Respondents shall pay such 

invoices within thirty (30) days of receipt. Any consultants, accountants, attorneys, and other 

representatives and assistants retained by the Monitor shall invoice their services to the Monitor 

who will review and approve such invoices and submit to Respondents for payments. At their 

own expense, Respondents may retain an independent auditor to verify such invoices. The 

Monitor and Respondents shall submit any disputes about invoices to the Commission for 

assistance in resolving such disputes. 

1.6 Monitor's Indemnification. Respondents indemnify the Monitor and 

Respondents shall hold Monitor harmless (regardless of any action, whether in contract, statutory 

law, tort or otherwise) against any losses, claims, damages, liabilities, or expenses arising out of, 

or in connection with, the performance of the Monitor's duties and obligations hereunder, 

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 gross negligence, 

willful misconduct, or bad faith by the Monitor. The Monitor's maximum liability to the 

Respondents relating to services rendered pursuant to this Monitor Agreement (regardless of the 

form of the action, whether in contract, statutory law, tort, or otherwise) shall be limited to the 

total sum of the fees paid to the Monitor by Respondents, except to the extent resulting from the 

gross negligence, willful misconduct or bad faith by the Monitor, in which case the liability is 

not so limited. 

1.7 Disputes. ln the event of a disagreement or dispute between Respondents and the 

Monitor concerning Respondents' obligations under one or both of the Orders, and, in the event 

that such disagreement or dispute cannot be resolved by the Parties, any Party may seek the 

assistance of the individual in charge of the Commission's Compliance Division. 

1.8 Conflicts oflnterest. If the Monitor becomes aware during the term of this 

Agreement that he has or may have a conflict of interest that may affect or could have the 

appearance of affecting performance by the Monitor of any of the Monitor's Responsibilities, the 

Monitor shall immediately inform Respondents and the Commission of any such conflict. 

ARTICLE II 

2.1 Termination. This Agreement shall terminate upon the earlier of: (a) the 

expiration or termination of the Orders; (b) the expiration or termination of the last to expire of 

the Divestiture Agreements; ( c) Respondents' receipt of written notice from the Commission that 

NAl-150!067491v2 4 
the Commission has determined that William Hill has ceased to act or failed to act diligently, or 

is unwilling or unable to continue to serve as Monitor; and (d) with at least thirty (30) days 

advance notice to be provided by the Monitor to Respondents and to the Commission, upon 

resignation of the Monitor. If this Agreement is terminated for any reason, the confidentiality 

obligations set forth in Section I .3 above will remain in force. 

2.2 Governing Law. This Agreement and the rights and obligations of the parties 

hereunder shall in all respects by governed by the substantive laws of the state of New York, 

including all matters of construction, validity and performance. The Orders shall govern this 

Agreement and any provisions herein which conflict or are inconsistent with them may be 

declared null and voice by the Commission and any provision not in conflict shall survive and 

remain a part of this Agreement. 

2.3 Disclosure of Information. Nothing in this Agreement shall require 

Respondents to disclose any material information that is subject to a legally recognized privilege 

or that Respondents are prohibited from disclosing by reason of law or an agreement with a third 

party. 

2.4 Assignment. This Agreement may not be assigned or otherwise transferred by 

Respondents or the Monitor without the consent of Respondents and the Monitor and the 

approval of the Commission. Any such assignment or transfer shall be consistent with the terms 

of the Orders. 

2.5 Modification. No amendment, modification, termination, or waiver of any 

provision of this Agreement shall be effective unless made in writing, signed by all parties, and 

approved by the Commission. Any such amendment, modification, termination, or waiver shall 

be consistent with the terms of the Orders. 

2.6 Approval by the Commission. This Agreement shall have no force or effect 

with respect to the Orders until approved by the Commission. 

2.7 Entire Agreement. This Agreement, and those portions of the Orders 

incorporated herein by reference, constitute the entire agreement of the parties and superseded 

any and all prior agreements and understandings between the Monitor and Respondents, written 

or oral, with respect to the subject matter hereof. 

2.8 Duplicate Originals. This Agreement may be executed in several counterparts, 

each of which shall be deemed an original, but all of which together shall constitute one and the 

same document. 

2.9 Section Headings. Any heading of a section is for convenience only and is to be 

assigned no significance whatsoever as to its interpretation and intent. 

ARTICLE III 

3.1 In the performance of his functions and duties under this Agreement, the Monitor 

shall exercise the standard of care and diligence that would be expected of a reasonable person in 

the conduct of its own business affairs. 

N/\!-l50J06749lv2 5 
3.2 It is understood that the Monitor will be serving under this Agreement as an 

independent conlraclor and that the relationship of employer and employee shall not exist 

between the Monitor and Respondents. 

3.3 This Agreement is for the sole benefit of the Parties hereto and their permitted 

assigns and the Commission, and nothing herein express or implied shall give, or be construed lo 

give, any other person any legal or equitable rights hereunder. 

3.4 In the event thal the Monitor wishes to terminate this Agreement, the Monitor 

shall provide written notice to the Respondents and the Commission. Respondents and the 

Monitor shall work in good faith with the Commission lo identify and proposed to the 

Commission a successor Monitor. Mr. Hill shall continue to serve as the Monitor under the 

terms oflhis Agreement until such time as the Commission approves a successor Monitor, and 

Monitor termination of this Agreement shall be effective only upon the approval by the 

Commission of a successor Monitor. 

ARTICLE IV 

4.1 The Monitor should have all of the powers and responsibilities and protections 

conferred upon the Monitor by the Asset Maintenance Order, including but not limited to: 

a. 	 monitoring the organization and operations of the Marlins burg Cement 

Business; 

b. 	 supervising the management of the Divested Business through the 

Managers; 

c. 	 maintaining the independence of the Martinsburg Cement Business; 

d. 	 monitoring Respondents' compliance with their obligations as required by 

the Orders; and 

e. 	 reviewing Replacement Contracts and Allocated Shared Contracts and 

determining, in consultation with Commission staff, whether these 

contracts comply with the Asset Maintenance Order. 

4.2 By the date of the Asset Maintenance Order, Respondents shall transfer to and 

confer upon the Monitor all rights, powers and authority necessary to permit the Monitor to 

perform his duties and responsibilities pursuant to and consistent with the purposes of the Asset 

Maintenance Order. 

4.3 Subject to applicable laws and regulations, the Monitor shall have full and 

complete access to the personnel, books, records, documents, and facilities of the Martinsburg 

Cement Business, and to any other relevant information as the Monitor may reasonably request, 

including but not limited to all documents kept by the Respondents in the ordinary course of 

business that relate to the Martinsburg Cement Business. Respondents shall develop such 

financial and other information as the Monitor may reasonably request and shall cooperate with 

the Monitor. The Monitor shall give Respondents reasonable notice of any request for such 

NAJ-150106749lv2 6 
access or information. The Monitor shall allcmpt to schedule any access or requests for 

information in such a manner as will not unreasonably interfere with Respondents' operations. 

[The rest of the page has been intentionally left blank.] 

NJ\J.J;OJ067491v2 7 
IN WITNESS WHEREOF. the parties hereto have executed this Agreement as ofthe 

date first above written. 

MONITOR RESPONDENTS 

William Hill HeidelbergCement AG 

By: 

Titl · Dr. Ingo Scheffemak 

Procurilt uid General Counsel 

ftalcementi SpA 

TALCEMENTI GROUP 


Legal and Tax Olfector 


A;oatlno Nuuolo 

NAl·UU106i l\lllvl 8 
CONFlDENTIAL APPENDIX A 


FEE SCHEDULE 


N/\1·150106749lv2 9