0510007

UNITED STATES OF AMERICA

BEFORE FEDERAL TRADE COMMISSION

COMMISSIONERS: Deborah Platt Majoras, Chairman

Orson Swindle

Thomas B. Leary

Pamela Jones Harbour

Jon Leibowitz

________________________________________________

)

 In the Matter of )

)

CEMEX, S.A. de C.V., ) Docket No. C-4131

a corporation. ) 

)

________________________________________________) 

ORDER TO HOLD SEPARATE AND MAINTAIN ASSETS

The Federal Trade Commission (“Commission”), having initiated an investigation of the

proposed acquisition by Respondent Cemex, S.A. de C.V. (“Cemex”), hereinafter referred to as

“Respondent,” of RMC Group PLC (“RMC”), and Respondent having been furnished thereafter

with a copy of a draft of Complaint that the Bureau of Competition proposed to present to the

Commission for its consideration and which, if issued by the Commission, would charge

Respondent with violations of Section 7 of the Clayton Act, as amended, 15 U.S.C. § 18, and

Section 5 of the Federal Trade Commission Act, as amended, 15 U.S.C. § 45; and

Respondent, its attorneys, and counsel for the Commission having thereafter executed an

Agreement Containing Consent Orders (“Consent Agreement”), containing an admission by

Respondent of all the jurisdictional facts set forth in the aforesaid draft of Complaint, a statement

that the signing of said Consent Agreement is for settlement purposes only and does not

constitute an admission by Respondent that the law has been violated as alleged in such

Complaint, or that the facts as alleged in such Complaint, other than jurisdictional facts, are true,

and waivers and other provisions as required by the Commission’s Rules; and 

The Commission, having thereafter considered the matter and having determined that it

had reason to believe that Respondent has violated the said Acts, and that a Complaint should

issue stating its charges in that respect, and having determined to accept the executed Consent

Agreement and to place such Consent Agreement containing the Decision and Order on the

public record for a period of thirty (30) days for the receipt and consideration of public

comments, now in further conformity with the procedure described in Commission Rule 2.34, 

16 C.F.R. § 2.34, the Commission hereby issues its Complaint, makes the following
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jurisdictional findings, and issues this Order to Hold Separate and Maintain Assets (“Hold

Separate”):

1. Respondent Cemex is incorporated as a stock corporation with variable capital

organized under the laws of the United Mexican States with its office and principal place of

business located at Av. Ricardo Margáin Zozaya #325, Colonia del Valle Campestre, Garza

García, Nuevo León, Mexico 66265. Respondent Cemex operates all of its business in the

United States through its wholly owned subsidiary, Cemex Corp., which operates all of its

business through its wholly owned subsidiary, Cemex Inc. Cemex Inc. has its principal place of

business on 840 Gessner Road, Suite 1400, Houston, Texas 77024. 

2. The Federal Trade Commission has jurisdiction of the subject matter of this

proceeding and of the Respondent, and the proceeding is in the public interest.

ORDER

I.

IT IS ORDERED that, as used in this Hold Separate, the following definitions shall

apply:

A. “Cemex” or “Respondent” means Cemex, S.A. de C.V., its directors, officers, employees,

agents, representatives, successors, and assigns; its joint ventures, subsidiaries, divisions,

groups, and affiliates controlled by Cemex (including, but not limited to, Cemex Corp. and

Cemex Inc.), and the respective directors, officers, employees, agents, representatives,

successors, and assigns of each.

B. “RMC” means RMC Group PLC, a public limited company organized under the laws of

England and Wales with registered number 249776 whose registered principal office is

located at RMC House, Coldharbour Lane, Thorpe, Egham, Surrey TW20 8TD, United

Kingdom.

C. “Commission” means the Federal Trade Commission.

D. “Acquirer” means any Person that receives the prior approval of the Commission to acquire

the Ready Mix Concrete Divestiture Assets pursuant to Paragraph II. or Paragraph III. of the

Decision and Order.

E. “Acquisition” means the proposed acquisition of RMC by Cemex pursuant to the September

27, 2004 Implementation Agreement between Cemex and RMC.

F. “Acquisition Date” means the date the Acquisition is consummated.
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G. “Aggregate(s)” means crushed stone and gravel produced at quarries, mines, or gravel pits

used to manufacture Ready Mix Concrete and Asphalt Concrete.

H. “Asphalt Concrete” means a paving material produced by combining and heating asphalt

cement (also referred to in the industry as “liquid asphalt” or “asphalt oil”) with Aggregate.

I. “Decision and Order” means:

1. until the issuance and service of a final Decision and Order by the Commission, the

proposed Decision and Order contained in the Consent Agreement in this matter; and

2. following the issuance and service of a final Decision and Order by the Commission, the

final Decision and Order issued by the Commission.

J. “Divestiture Agreement” means any agreement that receives the prior approval of the

Commission between Respondent and an Acquirer (or between a Divestiture Trustee

appointed pursuant to Paragraph III. of the Decision and Order and an Acquirer) related to

the Ready Mix Concrete Divestiture Assets required to be divested pursuant to Paragraph II.

(or Paragraph III.) of the Decision and Order.

K. “Divestiture Trustee” means the Divestiture Trustee appointed pursuant to Paragraph III. of

the Decision and Order.

L. “Effective Date of Divestiture” means the date on which Respondent (or a Divestiture

Trustee) divests to an Acquirer the Ready Mix Concrete Divestiture Assets completely and

as required by Paragraph II. (or by Paragraph III.) of the Decision and Order.

M. “Held Separate Business” means the Ready Mix Concrete Divestiture Assets and all fulltime, part-time, or contract employees of the RMC Ready Mix Concrete Businesses (“Held

Separate Business employees”).

N. “Hold Separate Monitor" means the Person appointed pursuant to Paragraph II. of this Hold

Separate.

O. “Hold Separate Period” means the time period during which the Hold Separate is in effect,

which shall begin on the Acquisition Date and terminate pursuant to Paragraph V. hereof.

P. “Material Confidential Information” means competitively sensitive, proprietary, and all

other information that is not in the public domain owned by or pertaining to a Person or a

Person’s business, and includes, but is not limited to, all customer lists, price lists, cost

information, marketing methods, patents, technologies, processes, or other trade secrets. The

Ready Mix Concrete Divestiture Assets shall be considered a Person separate from

Respondent (as defined in the Decision and Order and the Hold Separate) and RMC for this

purpose.
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Q. “Person” means any individual, partnership, association, firm, company, corporation, or

other business entity.

R. "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 cementing

material (commonly, but not limited to, Portland cement) and Aggregate with sufficient

water to cause the cement to set and bind.

S. “Ready Mix Concrete Divestiture Assets” means all of RMC’s rights, titles, and interests in

and to all assets, properties, business and goodwill, tangible or intangible, and any

improvements or additions thereto, used to operate the RMC Ready Mix Concrete

Divestiture Businesses in the ordinary course and in accordance with past practice,

including, but not limited to:

1. the Ready Mix Concrete facilities, Aggregate facilities, Asphalt Concrete facilities, 

quarries, mines, gravel pits, aggregate reserves, plants, and other buildings located at the

sites identified on Appendix A to the Decision and Order (attached hereto);

2. all real property (together with appurtenances, licenses, and permits), including all

leasehold and renewal rights, owned, leased, or otherwise held by RMC and used to

operate the RMC Ready Mix Concrete Businesses located at the sites identified on

Appendix A to the Decision and Order (attached hereto);

3. all capital equipment, stone crushing equipment, power supply equipment, scales,

machinery, fixtures, tools, trucks and other vehicles, transportation and storage facilities,

furniture and supplies held by RMC and used to operate the RMC Ready Mix Concrete

Businesses;

4. all personal property owned, leased, or otherwise held by RMC and used to operate the

RMC Ready Mix Concrete Businesses;

5. all intangible assets and all intellectual property owned by or licensed to RMC used in

the RMC Ready Mix Concrete Businesses, including, but not limited to, aggregate

reserve testing information, technical information, leases, know-how, safety procedures,

quality assurance and control procedures, dispatch software, systems and equipment,

trademarks, patents, mask works, copyrights, trade secrets, research materials, technical

information, management information systems, software, inventions, test data, licenses,

registrations, submissions, approvals, technology, specifications, designs, drawings,

processes, recipes, mix designs, protocols, and formulas;

6. all rights of RMC relating to the RMC Ready Mix Concrete Businesses under any

contract entered into with customers (together with associated bid and performance

bonds), suppliers, sales representatives, distributors, agents, personal property lessors,

personal property lessees, licensors, licensees, consignors and consignees, and joint
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venture partners;

7. all governmental approvals, consents, licenses, permits, waivers, or other authorizations

held by RMC and used to operate the RMC Ready Mix Concrete Businesses;

8. all rights of RMC relating to the RMC Ready Mix Concrete Businesses under any

warranty and guarantee, express or implied;

9. all books, records, and files held by RMC relating to the RMC Ready Mix Concrete

Businesses;

10. all rights in and to inventories of products, raw materials, supplies and parts, including

work-in-process and finished goods held by RMC and used in the RMC Ready Mix

Concrete Businesses;

11. all customer and vendor lists, catalogs, sales promotion literature, and advertising

materials held by RMC and used in the RMC Ready Mix Concrete Businesses; and

12. all items of prepaid expense held by RMC and used in the RMC Ready Mix Concrete

Businesses;

provided, however, that the Ready Mix Concrete Divestiture Assets do not include the Excluded

Assets identified in Appendix B to the Decision and Order.

T. “RMC Ready Mix Concrete Businesses” means the research, development, manufacture,

distribution, or sale of Ready Mix Concrete, and the related research, development,

production, manufacture, distribution, or sale of Aggregates and/or Asphalt Concrete, at or

by the facilities, quarries, mines, gravel pits, aggregate reserves, plants, and other buildings

listed in Appendix A to the Decision and Order.

II.

IT IS FURTHER ORDERED that:

A. During the Hold Separate Period, Respondent shall hold the Held Separate Business

separate, apart, and independent as required by this Hold Separate and shall vest the Held

Separate Business with all rights, powers, and authority necessary to conduct its business;

Respondent shall not exercise direction or control over, or influence directly or indirectly,

the Held Separate Business or any of its operations, or the Hold Separate Monitor, except to

the extent that Respondent must exercise direction and control over the Held Separate

Business as is necessary to assure compliance with this Hold Separate, the Consent

Agreement, the Decision and Order, and all applicable laws.
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B. Until the Effective Date of Divestiture, Respondent shall take such actions as are necessary

to maintain the viability and marketability of the Held Separate Business and to prevent the

destruction, removal, wasting, deterioration, or impairment of any of the assets, except for

ordinary wear and tear.

C. The purpose of this Hold Separate is to: (1) preserve the Held Separate Business as a viable,

competitive, and ongoing business independent of Respondent until the divestiture required

by the Decision and Order is achieved; (2) assure that no Material Confidential Information

is exchanged between Respondent and the Held Separate Business, except in accordance

with the provisions of this Hold Separate; and (3) prevent interim harm to competition

pending the relevant divestiture and other relief. 

D. Respondent shall hold the Held Separate Business separate, apart, and independent on the

following terms and conditions:

1. Mr. Stephen J. Roebuck shall serve as Hold Separate Monitor, pursuant to the agreement

executed by the Hold Separate Monitor and Respondent and attached as Confidential

Appendix B (“Monitor Agreement”).

a. Respondent shall, no later than one (1) day after the Acquisition Date, transfer to

the Hold Separate Monitor all rights, powers, and authorities necessary to permit the

Hold Separate Monitor to perform his duties and responsibilities, pursuant to this

Hold Separate and consistent with the purposes of the Decision and Order, and shall

include in the Monitor Agreement all provisions necessary to effectuate this

requirement.

b. The Hold Separate Monitor shall have the responsibility, consistent with the terms

of this Hold Separate and the Decision and Order, for monitoring the organization

of the Held Separate Business; for managing the Held Separate Business through

the Manager; for maintaining the independence of the Held Separate Business; and

for monitoring Respondent’s compliance with its obligations pursuant to this Hold

Separate and the Decision and Order. 

c. Subject to all applicable laws and regulations, the Hold Separate Monitor shall have

full and complete access to all personnel, books, records, documents, and facilities

of the Held Separate Business or to any other relevant information as the Hold

Separate Monitor may reasonably request including, but not limited to, all

documents and records kept by Respondent in the ordinary course of business that

relate to the Held Separate Business. Respondent shall develop such financial or

other information as the Hold Separate Monitor may reasonably request and shall

cooperate with the Hold Separate Monitor. Respondent shall take no action to

interfere with or impede the Hold Separate Monitor’s ability to monitor

Respondent’s compliance with this Hold Separate, the Consent Agreement, the

Decision and Order, or otherwise to perform his duties and responsibilities
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consistent with the terms of this Hold Separate.

d. The Hold Separate Monitor shall have the authority to employ, at the cost and

expense of Respondent, such consultants, accountants, attorneys, and other

representatives and assistants as are reasonably necessary to carry out the Hold

Separate Monitor’s duties and responsibilities.

e. The Commission may require the Hold Separate Monitor to sign an appropriate

confidentiality agreement relating to materials and information received from the

Commission in connection with performance of the Hold Separate Monitor’s duties.

f. Respondent may require the Hold Separate Monitor to sign an appropriate

confidentiality agreement prohibiting the disclosure of any Material Confidential

Information gained as a result of his role as Hold Separate Monitor to anyone other

than the Commission.

g. Thirty (30) days after the Hold Separate becomes final, and every thirty (30) days

thereafter until the Hold Separate terminates, the Hold Separate Monitor shall report

in writing to the Commission concerning the efforts to accomplish the purposes of

this Hold Separate. Included within that report shall be the Hold Separate

Monitor’s assessment of the extent to which the businesses comprising the Held

Separate Business are meeting (or exceeding) their projected goals as are reflected

in operating plans, budgets, projections or any other regularly prepared financial

statements.

h. If the Hold Separate Monitor ceases to act or fails to act diligently and consistent

with the purposes of this Hold Separate, the Commission may appoint a substitute

Hold Separate Monitor consistent with the terms of this paragraph, subject to the

consent of Respondent, which consent shall not be unreasonably withheld. If

Respondent has not opposed, in writing, including the reasons for opposing, the

selection of the substitute Hold Separate Monitor within five (5) days after notice

by the staff of the Commission to Respondent of the identity of any substitute Hold

Separate Monitor, Respondent shall be deemed to have consented to the selection of

the proposed substitute Hold Separate Monitor. Respondent and the substitute Hold

Separate Monitor shall execute a Monitor Agreement, subject to the approval of the

Commission, consistent with this paragraph.

2. No later than one (1) day after the Acquisition Date, Respondent shall enter into a

management agreement with, and transfer all rights, powers, and authorities necessary to

manage and maintain the Held Separate Business to, Mr. Michael Smith, the current

Vice President of Operations and General Manager of Tucson Ready-Mix, Inc.

(“Manager”).

a. In the event that Mr. Smith declines an offer to act as the Manager, or if Mr. Smith
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accepts the position of Manager and, subsequently, ceases to act as Manager, then

Respondent shall select a substitute Manager, subject to the approval of the

Commission, and transfer to the substitute Manager all rights, powers and

authorities necessary to permit the substitute Manager to perform his/her duties and

responsibilities, pursuant to this Hold Separate.

b. The Manager shall report directly and exclusively to the Hold Separate Monitor and

shall manage the Held Separate Business independently of the management of

Respondent. The Manager shall not be involved, in any way, in the operations of

the other businesses of Respondent during the term of this Hold Separate.

c. The Manager shall have no financial interests affected by Respondent’s revenues,

profits or profit margins, except that the Manager’s compensation for managing the

Held Separate Business may include economic incentives dependent on the

financial performance of the Held Separate Business if there are also sufficient

incentives for the Manager to operate the Held Separate Business at no less than

current rates of operation (including, but not limited to, current rates of production

and sales) and to achieve the objectives of this Hold Separate. 

d. The Manager shall make no material changes in the present operation of the Held

Separate Business except with the approval of the Hold Separate Monitor, in

consultation with the Commission staff. 

e. The Manager shall have the authority, with the approval of the Hold Separate

Monitor, to remove Held Separate Business employees and replace them with

others of similar experience or skills. If any person ceases to act or fails to act

diligently and consistent with the purposes of this Hold Separate, the Manager, in

consultation with the Hold Separate Monitor, may request Respondent to, and

Respondent shall, appoint a substitute person, which person the Manager shall have

the right to approve.

f. In addition to employees within the Held Separate Business, the Manager may

employ such Persons as are reasonably necessary to assist the Manager in managing

the Held Separate Business.

g. The Hold Separate Monitor shall be permitted, in consultation with the Commission

staff, to remove the Manager for cause. Within fifteen (15) days after such removal

of the Manager, Respondent shall appoint a replacement Manager, subject to the

approval of the Commission, on the same terms and conditions as provided in

Paragraph II.D.2 of this Hold Separate.

3. The Held Separate Business shall be staffed with sufficient employees to maintain the

viability and competitiveness of the Held Separate Business. To the extent that such

employees leave or have left the Held Separate Business prior to the Effective Date of
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Divestiture, the Manager, with the approval of the Hold Separate Monitor, may replace

departing or departed employees with persons who have similar experience and

expertise or determine not to replace such departing or departed employees.

4. In connection with support services or products not included within the Held Separate

Business, Respondent and RMC shall continue to provide, or offer to provide, the same

support services to the Held Separate Business as are being provided to such business

interests by Respondent and RMC as of the date the Consent Agreement is signed by

Respondent. For any services or products that Respondent and RMC may provide to the

Held Separate Business, Respondent may charge no more than the same price they

charge others for the same services or products. Respondent’s or RMC’s personnel

providing such services or products must retain and maintain all Material Confidential

Information of the Held Separate Business on a confidential basis, and, except as is

permitted by this Hold Separate, such persons shall be prohibited from providing,

discussing, exchanging, circulating, or otherwise furnishing any such information to or

with any person whose employment involves any of Respondent’s or RMC’s businesses,

other than the Held Separate Business. Such personnel shall also execute confidentiality

agreements prohibiting the disclosure of any Material Confidential Information of the

Held Separate Business.

a. Respondent and RMC shall offer to the Held Separate Business any services and

products that Respondent or RMC provided to their other businesses directly or

through third party contracts, or that they have provided directly or through third

party contracts to the businesses constituting the Held Separate Business at any time

since January 1, 2004. The Held Separate Business may, at the option of the

Manager with the approval of the Hold Separate Monitor, obtain such services and

products from Respondent or RMC. The services and products that Respondent or

RMC shall offer the Held Separate Business shall include, but shall not be limited

to, the following:

(1) human resources and administrative services, including but not limited to

payroll processing, labor relations support, pension administration, and

procurement and administration of employee benefits, including health

benefits;

(2) environmental health and safety services, which are used to develop corporate

policies and insure compliance with federal and state regulations and corporate

policies;

(3) financial accounting services;

(4) preparation of tax returns;

(5) audit services;
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(6) information technology support services;

(7) processing of accounts payable and accounts receivable;

(8) technical support;

(9) procurement of supplies;

(10) procurement of goods and services utilized in the ordinary course of business

by the Held Separate Business; and

(11) legal services.

b. the Held Separate Business shall have, at the option of the Manager with the

approval of the Hold Separate Monitor, the ability to acquire services and products

from third parties unaffiliated with Respondent or RMC.

5. Respondent shall cause the Hold Separate Monitor, the Manager, and each employee

having access to Material Confidential Information to submit to the Commission a

signed statement that the individual will maintain the confidentiality required by the

terms and conditions of this Hold Separate. These individuals must retain and maintain

all Material Confidential Information relating to the Held Separate Business on a

confidential basis and, except as is permitted by this Hold Separate, such persons shall

be prohibited from providing, discussing, exchanging, circulating, or otherwise

furnishing any such information to or with any other person whose employment involves

any of Respondent’s businesses other than the Held Separate Business. These persons

shall not be involved in any way in the management, production, distribution, sale,

marketing, or financial operations of the competing businesses of Respondent.

6. No later than five (5) days after the Acquisition Date, Respondent shall establish written

procedures, subject to the approval of the Hold Separate Monitor, covering the

management, maintenance, and independence of the Held Separate Business consistent

with the provisions of this Hold Separate.

7. No later than five (5) days after the date this Hold Separate becomes final, Respondent

shall circulate to employees of the Held Separate Business, and to persons who are

employed in Respondent’s businesses that compete with the Held Separate Business, a

notice of this Hold Separate and the Consent Agreement, in the form attached hereto as

Appendix C.

8. The Hold Separate Monitor and the Manager shall serve, without bond or other security,

at the cost and expense of Respondent, on reasonable and customary terms

commensurate with each person’s experience and responsibilities.
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9. Respondent shall indemnify the Hold Separate Monitor and Manager and hold each

harmless against any losses, claims, damages, liabilities, or expenses arising out of, or in

connection with, the performance of the Hold Separate Monitor’s or the Manager’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 Hold Separate Monitor or the Manager.

10. Respondent shall provide the Held Separate Business with sufficient financial resources:

a. as are appropriate in the judgment of the Hold Separate Monitor to operate the Held

Separate Business as it is currently operated;

b. to perform all maintenance to, and replacements of, the assets of the Held Separate

Business;

c. to carry on existing and planned capital projects and business plans; and

d. to maintain the viability, competitive vigor, and marketability of the Held Separate

Business.

Such financial resources to be provided to the Held Separate Business shall include, but

shall not be limited to, (i) general funds, (ii) capital, (iii) working capital, and (iv)

reimbursement for any operating losses, capital losses, or other losses; provided,

however, that, consistent with the purposes of the Decision and Order, the Manager may

reduce in scale or pace any capital or research and development project, or substitute any

capital or research and development project for another of the same cost.

11. Respondent shall not, during the Hold Separate Period, directly or indirectly, solicit,

induce, or attempt to solicit or induce any employee of the Held Separate Business for

positions with Respondent. The Acquirer shall have the option of offering employment

to any Held Separate Business employee. Respondent shall not interfere with the

employment by the Acquirer of such employees; shall not offer any incentive to such

employees to decline employment with the Acquirer or to accept other employment with

the Respondent; and shall remove any impediments that may deter such employees from

accepting employment with the Acquirer including, but not limited to, any non-compete

or confidentiality provisions of employment or other contracts that would affect the

ability of such employees to be employed by the Acquirer, and the payment, or the

transfer for the account of the employee, of all current and accrued bonuses, pensions

and other current and accrued benefits to which such employees would otherwise have

been entitled had they remained in the employment of the Respondent.

12. For a period of one (1) year commencing on the Effective Date of Divestiture,
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Respondent shall not, directly or indirectly, solicit, induce or attempt to solicit or induce

any Held Separate Business employees who are employed by the Acquirer to terminate

their employment relationship with the Acquirer if such employees have had access to

Material Confidential Information of the Acquirer or of the Held Separate Business;

provided, however, a violation of this provision will not occur if: (1) the individual’s

employment has been terminated by the Acquirer; (2) Respondent advertises for

employees in newspapers, trade publications, or other media not targeted specifically at

the employees; or (3) Respondent hires employees who apply for employment with

Respondent, so long as such employees were not solicited by Respondent in violation of

this paragraph.

13. Except for the Manager, Held Separate Business employees, and support services

employees involved in providing services to the Held Separate Business pursuant to

Paragraph II.D.4., and except to the extent provided in Paragraph II.A., Respondent shall

not permit any other of its employees, officers, or directors to be involved in the

operations of the Held Separate Business.

14. Respondent shall assure that Held Separate Business employees receive, during the Hold

Separate Period, their salaries, all current and accrued bonuses, pensions and other

current and accrued benefits to which those employees otherwise would have been

entitled.

15. Respondent’s employees (excluding the Manager, Held Separate Business employees

and employees involved in providing support services to the Held Separate Business

pursuant to Paragraph II.D.4.) shall not receive, or have access to, or use or continue to

use any Material Confidential Information of the Held Separate Business not in the

public domain except:

a. as required by law; and

b. to the extent that necessary information is exchanged:

(1) in the course of consummating the Acquisition;

(2) in negotiating agreements to divest assets pursuant to the Consent Agreement

and engaging in related due diligence;

(3) in complying with this Hold Separate or the Consent Agreement;

(4) in overseeing compliance with policies and standards concerning the safety,

health, and environmental aspects of the operations of the Held Separate

Business and the integrity of the financial controls of the Held Separate

Business; 
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(5) in defending legal claims, investigations or enforcement actions threatened or

brought against or related to the Held Separate Business; or

(6) in obtaining legal advice.

Nor shall the Manager or Held Separate Business employees receive or have access to, or

use or continue to use, any Material Confidential Information not in the public domain

about Respondent and relating to Respondent’s businesses, except such information as is

necessary to maintain and operate the Held Separate Business. Respondent may receive

aggregate financial and operational information relating to the Held Separate Business

only to the extent necessary to allow Respondent to comply with the requirements and

obligations of the laws of the United States and other countries, and to prepare

consolidated financial reports, tax returns, reports required by securities laws, and

personnel reports. Any such information that is obtained pursuant to this subparagraph

shall be used only for the purposes set forth in this subparagraph.

16. Respondent and the Held Separate Business shall jointly implement, and at all times

during the Hold Separate Period maintain in operation, a system, as approved by the

Hold Separate Monitor, of access and data controls to prevent unauthorized access to or

dissemination of Material Confidential Information of the Held Separate Business,

including, but not limited to, the opportunity by the Hold Separate Monitor, on terms

and conditions agreed to with Respondent, to audit Respondent’s networks and systems

to verify compliance with this Hold Separate.

III.

IT IS FURTHER ORDERED that Respondent shall notify the Commission at least

thirty (30) days prior to any proposed (1) dissolution of Respondent, (2) acquisition, merger or

consolidation of Respondent, or (3) any other change in Respondent that may affect compliance

obligations arising out of this Hold Separate, including but not limited to assignment, the

creation or dissolution of subsidiaries, or any other change in Respondent.

IV.

IT IS FURTHER ORDERED that, for the purpose of determining or securing

compliance with this Hold Separate, and subject to any legally recognized privilege, and upon

written request with reasonable notice to Respondent made to their principal United States

offices, Respondent shall permit any duly authorized representative of the Commission: 

A. Access, during office hours of Respondent and in the presence of counsel, to all

facilities, and access to inspect and copy all books, ledgers, accounts,

correspondence, memoranda, and all other records and documents in the

possession or under the control of Respondent relating to any matters contained in

this Hold Separate; and
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B. Upon five (5) days’ notice to Respondent and without restraint or interference

from Respondent, to interview officers, directors, or employees of Respondent,

who may have counsel present, regarding any such matters.

V.

IT IS FURTHER ORDERED that this Hold Separate shall terminate at the earlier of:

A. Three (3) business days after the Commission withdraws its acceptance of the

Consent Agreement pursuant to the provisions of Commission Rule 2.34, 16

C.F.R. § 2.34; or

B. The day after the Effective Date of Divestiture (the date the divestiture required

by the Decision and Order is completed).

By the Commission, Chairman Majoras recused.

Donald S. Clark

Secretary

SEAL

ISSUED: February 11, 2005
 Appendix A

to the Decision and Order

RMC Ready Mix Concrete facilities to be divested pursuant to this Order:

• 10200 W. Tangerine Road, Marena, Arizona 85653

• 6601 N. Casa Grande Highway, Tucson, Arizona 85743

• 9301 S. Swan Road, Tucson, Arizona 85706

• 11800 E. Valencia Road, Tucson, Arizona 85747

• 409 Camino Ramanote, Rio Rico, Arizona 85648

RMC Aggregate facilities to be divested pursuant to this Order:

• 6601 N. Casa Grande Highway, Tucson, Arizona 85743

• 11800 E. Valencia Road, Tucson, Arizona 85747

• 409 Camino Ramanote, Rio Rico, Arizona 85648

RMC Asphalt Concrete facility to be divested pursuant to this Order:

• 6601 N. Casa Grande Highway, Tucson, Arizona 85743
Confidential Appendix B

HOLD SEPARATE MONITOR AGREEMENT
Appendix C

NOTICE OF DIVESTITURE AND REQUIREMENT FOR CONFIDENTIALITY

Cemex, S.A. de C.V. (“Cemex”), hereinafter referred to as “Respondent,” has entered

into an Agreement Containing Consent Orders (“Consent Agreement”) with the Federal Trade

Commission relating to the divestiture of certain assets and other relief.

As used herein, the term “Held Separate Business” means RMC’s ready mix concrete,

aggregate and asphalt facilities located in Tucson, Arizona and Rio Rico, Arizona, and all fulltime, part-time or contract employees whose duties relate primarily to the Held Separate

Business. Under the terms of the Decision and Order contained in the Consent Agreement,

Cemex must divest the Held Separate Business within six months after the Acquisition Date.

During the Hold Separate Period (which begins on the date that Cemex acquires RMC

and ends after Cemex has completed the required divestiture of the Held Separate Business), the

Held Separate Business shall be held separate, apart, and independent from Cemex’s other

businesses. The Held Separate Business must be maintained as a separate, ongoing business,

independent of all other businesses of Cemex, until Cemex has completed the required

divestiture. All competitive information relating to the Held Separate Business must be retained

and maintained by the persons involved in the operation of the Held Separate Business on a

confidential basis, and such persons are prohibited from providing, discussing, exchanging,

circulating, or otherwise furnishing any such information to or with any other person employed

by Cemex or whose employment relates to any of Cemex’s businesses other than the Held

Separate Business. These individuals shall not be involved in any way in the management,

production, distribution, sales, marketing, or financial operations of the competing products or

services of Cemex. Similarly, persons involved in similar activities in Respondent Cemex’s

businesses are prohibited from providing, discussing, exchanging, circulating, or otherwise

furnishing any similar information to or with any other person whose employment involves the

Held Separate Business, except as otherwise provided in the Hold Separate Order.

Until the Held Separate Business is divested, Respondent must take such actions as are

necessary to maintain the viability, marketability, and competitiveness of the Held Separate

Business, and to prevent the destruction, removal, wasting, deterioration, sale, disposition,

transfer, or impairment of the Held Separate Business or any assets related thereto, except for

ordinary wear and tear.

Any violation of the Consent Agreement may subject Respondent to civil penalties and

other relief as provided by law.