Canada Gazette, Part I, Volume 159, Number 4: ORDERS IN COUNCIL
January 25, 2025
DEPARTMENT OF TRANSPORT
CANADA TRANSPORTATION ACT
Order approving the acquisition of Viterra Limited by Bunge Global SA
P.C. 2025-2 January 9, 2025
Whereas subsection 53.2(1) of the Canada Transportation Act (the Act) provides that no person is to complete a proposed transaction referred to in subsection 53.1(1) of the Act unless the transaction is approved by the Governor in Council;
Whereas Viterra Limited (Viterra) and Bunge Global SA (Bunge) (collectively known as the parties) gave notice on August 15, 2023 to the Minister of Transport (the Minister), in accordance with paragraph 53.1(1)(a) of the Act, of a proposed transaction in which Bunge — which holds a minority interest in G3 Global Holdings Limited Partnership and G3 Global Holdings GP Inc. (collectively known as G3 Global), which are the parent companies of the G3 group of companies — would acquire all of the issued and outstanding shares of Viterra;
Whereas a departmental report has been presented to the Minister on concerns regarding the proposed transaction with regard to the public interest as it relates to national transportation;
Whereas the Commissioner of Competition (Commissioner) reported to the Minister and the parties on April 22, 2024, in accordance with subsection 53.2(2) of the Act, on concerns regarding potential prevention or lessening of competition that may occur as a result of the transaction;
Whereas, following the review of these reports, the Minister, in accordance with subsection 53.2(4) of the Act, consulted with the Commissioner and requested that the parties address the concerns referred to in subparagraphs 53.2(4)(b)(i) and (ii) of the Act;
Whereas, in accordance with subsection 53.2(5) of the Act, the parties have informed the Minister of the measures that they are prepared to undertake to address the concerns referred to in subparagraph 53.2(4)(b)(i) of the Act, and have informed the Commissioner of the measures that they are prepared to undertake to address the concerns referred to in subparagraph 53.2(4)(b)(ii) of the Act;
Whereas the Minister has, in accordance with subsection 53.2(6) of the Act, obtained the Commissioner’s assessment of the adequacy of the undertakings proposed by the parties to address the concerns that the Commissioner has regarding potential prevention or lessening of competition that may occur as a result of the transaction;
And whereas, under subsection 53.2(7) of the Act, the Governor in Council is satisfied that it is in the public interest to approve the proposed transaction, taking into account the measures that the parties are prepared to undertake, including measures aimed at
- (a) ensuring that Bunge nominates only independent directors to the boards of directors of G3 Global and any other entities of the G3 group of companies in which it is a direct or indirect minority shareholder;
- (b) preventing Bunge from exercising unilateral rights to impede the operation and growth of G3 Global activities linked to grain origination, grain handling and port terminal businesses, as well as borrowing related to such activities;
- (c) addressing competition concerns with respect to canola seed origination in the vicinity of Altona, Manitoba, and Nipawin, Saskatchewan;
- (d) addressing competition concerns with respect to the supply of canola oil to certain customers who can receive oil only by truck in certain locations in Central and Atlantic Canada;
- (e) protecting G3 Global confidential information; and
- (f) ensuring compliance with the proposed measures and with reporting requirements;
Therefore, Her Excellency the Governor General in Council, on the recommendation of the Minister of Transport, under subsection 53.2(7) of the Canada Transportation Act, approves the proposed transaction in which Bunge Global SA would acquire all of the issued and outstanding shares of Viterra Limited, including its Canadian subsidiaries, subject to the terms and conditions set out in the schedule.
EXPLANATORY NOTE
(This note is not part of the Order.)
Proposal
By this Order, the Governor in Council (GIC), pursuant to subsection 53.2(7) of the Canada Transportation Act (the Act), on the recommendation of the Minister of Transport (the Minister), approves the proposed acquisition (the Acquisition) of Viterra Limited (Viterra) by Bunge Global SA (Bunge) (both together as the Parties) subject to the terms and conditions (T&Cs) set out in the annexed schedule.
Objective
The objective of this proposal is to approve the Acquisition with enforceable T&Cs that would secure public benefits for Canada, while addressing the public interest concerns raised by the Acquisition as they relate to national transportation, and mitigating the concerns regarding the potential prevention or lessening of competition that may occur as a result of the Acquisition. The T&Cs establish measures, which were proposed by the Parties in the form of undertakings, under subsection 53.2(5) of the Act.
Background
Mergers and acquisition review process under the Canada Transportation Act
Under sections 53.1 and 53.2 of the Act, when a merger or acquisition involving a transportation undertaking raises public interest issues regarding national transportation, that transaction becomes subject to approval by the GIC, upon the recommendation of the Minister. The Act requires the Commissioner of Competition (the Commissioner) to report to the Minister and the Parties on any concerns regarding the potential prevention or lessening of competition that may result from the transaction. The Commissioner is also required to assess the adequacy of the measures proposed by the Parties to address competition concerns. While the Minister must consider the Commissioner’s findings regarding the impacts on competition, the Minister, in making their recommendation to the GIC, is also required to consider the broader impacts of the Acquisition on the public interest.
The proposed acquisition
On June 13, 2023, Bunge, a major multinational oilseed processor, entered into an agreement for the purchase of all outstanding shares of Viterra, one of Canada’s largest grain companies. At a purchase price of approximately $8.2 billion, the Acquisition is one of the largest ever mergers in the agricultural sector, and if completed, would lead to the creation of one of the largest agricultural companies in the world. The Acquisition was subject to regulatory review in over 30 countries, and it will only close when all regulatory approvals are received.
Bunge and Viterra play key roles in the grain supply chain in Canada. In general, companies like Bunge and Viterra purchase grains, oilseeds, and pulses (referred to collectively as “grain”) for two purposes: they may process the grain into higher-value products in Canada, or they may transport and resell the raw grain to another buyer (often by means of export through port terminals).
In Canada, Bunge is a major processor of raw oilseeds (e.g. canola seed, soybeans) at its five processing facilities. While Bunge rarely purchases other grains and pulses (e.g. wheat, peas) in Canada, it owns a 25% stake in the main holding company of the G3 group of companies (G3), which is heavily involved in the export of raw grain. For its part, Viterra processes oilseeds at its two Canadian processing facilities, and it also exports raw grain through its network of port terminals. As a result, Viterra competes with Bunge in the purchase of oilseeds and the sale of oils, and Viterra competes with G3 in the purchase and export of raw grains and oilseeds.
On August 15, 2023, the Parties filed a formal merger notification with the Commissioner pursuant to subsection 114(1) of the Competition Act. Under subsection 53.1(1) of the Act, the Minister must be notified of all mergers and acquisitions that are notifiable under subsection 114(1) of the Competition Act and involve a “transportation undertaking.” The Acquisition involved a “transportation undertaking” due to the companies’ ownership stakes in port terminals. Consequently, on August 15, 2023, the Parties also filed a formal notification of the Acquisition with the Minister, pursuant to subsection 53.1(1) of the Act. This notification triggered a 42-day initial review period under the Act.
Following an evaluation of the Parties’ mandatory filings under the Act, the Minister was of the opinion that the Acquisition raised issues with respect to the public interest as it relates to national transportation. The Acquisition could lead to consolidation in the Canadian transportation sector, in part because Viterra and G3 each operate port terminals in Canada. This consolidation could potentially lead to lower sale prices for farmers because the availability of transportation services is a factor that contributes to the price they receive for their grain and oilseeds.
On September 26, 2023, Transport Canada (TC) initiated a 150-day formal public interest review, as required under subsection 53.1(5) of the Act. The Commissioner was also required to report to the Minister and the Parties within 150 days after the first notification of the Acquisition on any concerns regarding the potential prevention or lessening of competition. Given the complexity of the Acquisition, the Minister granted a 100-day extension to both the Commissioner and TC pursuant to subsection 53.2(2) of the Act.
The Commissioner’s report
On April 22, 2024, the Minister received the report of the Commissioner that set out the Commissioner’s concerns regarding the potential prevention or lessening of competition that may occur as a result of the Acquisition. On April 23, 2024, as per subsection 53.2(3) of the Act, the Commissioner’s report was made public.
The Commissioner’s report raised three major competition concerns with the Acquisition.
Influence over G3
The Commissioner found that G3 represents a disruptive presence and a competitive threat to other grain companies in Canada. As a particularly vigorous and effective competitor that offers aggressive pricing, G3 provides a competitive constraint on Viterra in markets across Canada. The Commissioner concluded that Bunge has significant material influence over G3. The Commissioner noted that Bunge holds veto rights over major G3 decisions and takes an active interest in competitive strategies that align with Bunge’s own business interests. The Commissioner also found that Bunge’s director nominees on G3’s board have rights to competitively sensitive non-public information, including financial, strategic, and competitive data. The Commissioner noted that if Bunge acquired Viterra, it could begin to use its influence over G3 to decrease G3’s competitiveness for grain origination across Canada, which could have negative implications on G3’s plans for entry, expansion, and innovation in Canada.
Lessening of competition in canola seed markets
According to the Commissioner, the Acquisition would likely result in a substantial lessening of competition for the purchase of canola seed in the regions surrounding two Bunge processing facilities in Western Canada: one facility near Altona, Manitoba, and another facility near Nipawin, Saskatchewan. The consolidation of these Bunge oilseed processing facilities and Viterra’s and G3’s grain elevators located near the facilities would lead farmers to have fewer options when selling their canola seed and be forced to accept lower sale prices. The Commissioner’s analysis suggested that the Acquisition could result in between $15–$19 million in annual lost farm revenues in these two regions.
Impact on canola oil sales
According to the Commissioner, the Acquisition would likely result in a substantial lessening of competition with respect to the sale of canola oil in Central and Atlantic Canada to customers who cannot receive oil by rail. Bunge and Viterra control two of the three oilseed processing facilities east of Manitoba. While consumers served by rail could affordably source canola oil from Western Canada, the Commissioner found that consumers who must receive oil by truck may not be able to source from more distant crush plants. Consequently, there would be a substantial lessening of competition in this market, which could lead to higher purchase prices for consumers.
The Commissioner also raised concerns about Bunge’s ability to influence downstream markets, such as margarine production, where Bunge is already active. After the acquisition, Bunge may have the incentive and ability to restrict the supply of canola oil to downstream competitors, further diminishing competition.
The Departmental Report
On May 30, 2024, the Minister received TC’s report of its assessment of public interest as it relates to national transportation (the Departmental Report) referred to in subsection 53.1(6) of the Act.
The Departmental Report found that Bunge would likely have the ability to influence G3’s decision-making in a way that is counter to the public interest as it relates to national transportation. Since its entrance into Canadian grain markets, G3 has been a major investor in the grain transportation sector and a vigorous competitor to Viterra and other grain companies. If the Acquisition proceeded without conditions, Bunge would have the means and the motive to reduce the competitive pressure offered by G3 in grain markets. Without the strong competitive force offered by G3, investment in the transportation network, including in inland elevators and in port terminals, would likely be lower than it would be in the absence of the Acquisition. Consequently, the efficiency, capacity, and fluidity of the transportation network would be reduced.
With regards to port capacity, the Departmental Report found that there is sufficient spare port terminal capacity on the west coast to ensure that Bunge would be unable to leverage its ownership stakes in terminals to reduce prices paid to Canadian farmers. However, Viterra and G3 own three of the four rail-enabled grain export terminals along the St. Lawrence River. If the Acquisition were to proceed without conditions, the resulting consolidation of truck-unload and rail-unload capacity in this transportation corridor could lead to negative impacts on farmers, including potentially lower incomes. Even so, these modes of transport only represent a small fraction (less than 10%) of the total export volumes; therefore, the Departmental Report concluded that the overall negative public interest impact of this consolidation is likely to be minor.
With regard to labour and employment, the Departmental Report noted the possibility that Bunge could take a different approach than Viterra to collective bargaining with unions at Canadian ports, which could increase the risk of labour disruptions. While servicing grain vessels is considered an essential service under the Canada Labour Code, the Departmental Report noted that any efforts to alter labour relations at ports could have significant public interest impacts.
The Departmental Report did not identify information that would suggest Bunge intends to close any of Bunge’s or Viterra’s inland elevators, processing facilities, port terminals, or offices in Canada. Even so, given the importance of Viterra’s head office in Regina to the local community, the Departmental Report indicated that even an unlikely closure of this office would have significant negative impacts on the public interest as it relates to national transportation.
Overall, after weighing the public interest benefits against the costs, the Departmental Report concluded that the impact of the Acquisition on the transportation network was likely to be limited in the short term. However, in the medium to long term, the Acquisition raises significant public interest concerns, as it relates to national transportation rooted in Bunge’s influence over the decision-making of G3 and its implications for private investment in transportation infrastructure.
Terms and conditions
Pursuant to subsection 53.2(4) of the Act, the Minister consulted with the Commissioner in summer 2024 regarding any overlapping concerns between the Departmental Report and the Commissioner’s Report. Beginning on June 27, 2024, TC officials met with the Parties to discuss public interest concerns raised in the Departmental Report. The Parties proposed T&Cs that they would undertake to address competition and public interest concerns, pursuant to subsection 53.2(5) of the Act.
The T&Cs, attached as a Schedule to the Order, represent a series of legally binding undertakings from the Parties to
- divest two elevators in the region around Bunge’s Nipawin facility and four elevators in the region around Bunge’s Altona facility to help preserve competition in these two regions;
- create a price protection program for purchasers of canola oil in Central and Atlantic Canada who could be at risk of potentially facing higher prices;
- implement strict controls on Bunge’s stake in G3 to negate Bunge’s influence over G3’s pricing, purchasing, and expansion decisions by
- mandating that all Directors appointed by Bunge to the boards of G3 be independent from Bunge (i.e. unaffiliated with Bunge and free from any business interest or other relationship that could reasonably be perceived to interfere materially with his or her ability to act in the best interest of G3),
- implementing protections for G3’s confidential information to ensure that Bunge only receives information that is necessary to fulfill its limited duties as a shareholder, and
- ensuring that Bunge cannot utilize unanimous shareholder approval rights (veto rights) to the detriment to G3’s competitive position;
- ensure that Viterra’s head office in Regina will remain open with at least 200 full-time employees for five years;
- guarantee that Bunge will comply with the terms of collective agreements with the labour unions representing personnel at Viterra’s port terminals and with federal labour law;
- invest at least $520 million over the next five years in grain handling infrastructure, regenerative agriculture programs, and community support initiatives in Canada; and
- maintain canola processing capacity, continue to purchase specialty crops in line with Viterra’s past practices, explore the feasibility of the construction of a new canola processing facility in Canada, study the feasibility of exporting canola meal through Canadian ports and of improving ship loading solutions for the Parties’ west coast ports, among other commitments.
To ensure compliance with several of the T&Cs, Bunge will appoint and remunerate an independent Monitor (as defined in the T&Cs) who will be approved by the Minister. The Minister will reserve the right to remove the Monitor if necessary, and the Monitor will be required to act for the sole benefit of the Minister. The Monitor will report any complaints of non-compliance with the T&Cs to the Minister and the Commissioner, with Bunge informing both parties of the outcomes of any related investigations. Moreover, Bunge will provide annual reports to the Minister and the Commissioner outlining Bunge’s adherence to these T&Cs. Statutory penalties are available in the event of non-compliance with the T&Cs (see the “Implementation” section below).
Upon approval by the GIC, the T&Cs would be enforceable under the Act and implemented and monitored pursuant to a Confidential Implementation and Monitoring Agreement (Agreement). The Agreement is legally binding and administrative in nature. It would provide guidance to the Parties in complying with the T&Cs and serve as a mechanism for the Minister to monitor compliance with the assistance of the Monitor. The T&Cs require that the Parties enter into the Agreement prior to the closing of the Acquisition.
Confidential Appendixes 3, 4, 5, and 9 of the T&Cs include commercially confidential information; therefore, they do not appear in the published Order.
More detail on the T&Cs follows.
Remedies to address competition concerns
The following T&Cs will partially address the Commissioner’s concerns regarding the lessening of competition that may result from the Acquisition.
1. Divestiture of grain elevators
Bunge will divest the following six grain elevators:
- Four elevators near Bunge’s Altona processing facility:
- Viterra’s Fannystelle elevator;
- Viterra’s Tucker elevator;
- Viterra’s Beausejour elevator; and
- Viterra’s Coulter (Winnipeg) elevator.
- Two elevators near Bunge’s Nipawin processing facility:
- Viterra’s Valparaiso elevator; and
- Bunge’s Dixon elevator.
The divestiture of these elevators to competitors to Bunge will provide farmers in Manitoba and Saskatchewan with greater competition for their canola seed and other grain, thereby reducing the likelihood of anti-competitive outcomes. This will also reduce the likelihood that prices paid to farmers for their canola seed will fall due to the Acquisition.
2. Price protection for at-risk customers
Bunge will offer location-based price protection to purchasers of truck-delivered canola oil in Central and Atlantic Canada, who could be at risk of facing higher prices for canola oil. These purchasers will be able to receive, for five years, truck-delivered canola oil in similar volumes and at similar prices as they received in 2023. To be eligible, the purchasers must have purchased less than $15 million of oil products in total from Bunge and Viterra combined in 2023, and they will receive price protection on truck-delivered canola oil received only at locations that meet the following criteria:
- The location does not have rail access;
- In 2023, the location received canola oil delivered only by truck from Bunge’s processing facility in Hamilton, Ontario, or Viterra’s processing facility in Bécancour, Quebec;
- In 2023, the location purchased at least twice as much canola oil delivered by truck as substitute oils (e.g. soy oil) from Bunge and Viterra combined; and
- In 2023, the location did not receive vegetable oils as part of an order that included deliveries outside of Canada from Bunge or Viterra.
Since the Commissioner’s concern about potential increases in canola oil prices in Central and Atlantic Canada only relates to a subset of the purchasers of canola oil, these criteria ensure that price protection is only offered to those purchasers who require it. These criteria effectively exclude
- large purchasers of vegetable oil who can utilize their purchasing power to prevent unjustified price increases;
- locations that have the ability to import canola oil from Western Canada by rail, either directly or through rail-to-truck transloading; and
- locations where substitute vegetable oils can be utilized instead of canola oil in production processes.
The at-risk customers and locations have been listed in the Confidential Appendix 9 of the T&Cs, and this list will be shared with the Monitor. The eligibility list must be kept confidential, as it was created using Bunge’s and Viterra’s internal customer data.
Within 30 days of the closing of the Acquisition, Bunge will inform these customers of their eligibility for price protection. At-risk customers will also be provided with the contact information of the Monitor in the event that any eligibility or compliance issues arise.
Remedies to address competition and public interest concerns
The following T&Cs will help ensure that G3 can continue to operate as an independent competitor to Bunge following its acquisition of Viterra, which will address TC’s concerns regarding the public interest as it relates to national transportation and the competition concerns regarding the lessening of competition that may result from the Acquisition. The T&Cs related to Bunge’s ownership in G3 will last as long as Bunge has a minority ownership stake in G3.
1. Access to G3’s confidential information
Bunge will waive and forgo many of its shareholder rights to G3’s confidential information. To govern the limited set of confidential information that Bunge will continue to receive, Bunge will implement a set of controls on information sharing that ensures that confidential information shared by G3 is limited in scope and accessible to only a small group of Bunge executives and employees who are not directly responsible for Bunge’s grain or oilseed origination or export activities in Canada.
In short, Bunge will no longer have access to most confidential information from G3. Bunge will continue to receive a limited set of information necessary for fulfilling its duties as a minority shareholder and as a publicly traded company. The scope of this information is defined to ensure that it does not provide Bunge with any competitive advantage over G3 or allow it to influence G3’s operations.
2. Independence of Bunge-nominated directors on G3’s boards
Within 120 days of the Acquisition closing, Bunge will replace its nominated directors serving on the boards of G3 with independent directors and only nominate independent directors afterwards. These independent directors must meet stringent criteria to ensure their impartiality and independence from Bunge, who will nominate them from a pool of candidates identified by a reputable executive search firm. All Bunge-nominated directors will be approved by the Monitor.
Each independent director will pledge in writing to not share any confidential information that they receive from G3 with Bunge, except for information Bunge is legally entitled to access under these T&Cs.
Bunge-nominated directors will serve for eight-year terms before being replaced by new independent directors. They will only be removed early if they fail to fulfill their duties under applicable laws, cease to meet the independence eligibility criteria, or are otherwise unable to serve. If any Bunge-nominated independent directors come up for re-election, Bunge will renominate the same independent directors, unless one of the disqualifying factors applies.
3. Unanimous Shareholder Approval Rights
Bunge will waive most of its shareholder approval rights (i.e. “veto” rights) over key matters of significant importance to G3’s competitive position in Canada’s grain sector. This waiver covers significant operational and strategic decisions, such as the operation, maintenance, expansion, and investment in port terminals, primary grain elevators, and related grain handling activities. This will allow G3 to act independently in these areas without significant influence from Bunge.
In addition, Bunge will not block the renewal or replacement of G3’s credit facilities. If Bunge currently provides a guarantee for such a facility, it will continue to provide that guarantee on substantially similar terms.
4. Compliance
Bunge will provide annual compliance training to all relevant personnel. This includes training for Bunge personnel who can access G3’s confidential information and Bunge Canada personnel involved in grain marketing, sales, purchasing, and management. This training will cover Bunge’s Code of Conduct, competition law compliance, the controls on information sharing, and the reporting procedures for breaches of these T&Cs.
Remedies to address public interest concerns and to increase the public interest benefits of the Acquisition
The following T&Cs will address TC’s additional concerns regarding the public interest as it relates to national transportation. In addition, they will increase the public interest benefits that the Acquisition would bring to Canada.
1. Regina Head Office
Bunge will maintain its Canadian head office (formerly Viterra’s Canadian head office) in Regina, Saskatchewan, for a period of five years following the closing of the Acquisition. This office will house personnel responsible for finance, legal affairs, industrial operations, human resources, information technology, new projects, and strategy. In addition, Bunge will ensure that the number of full-time employees based primarily in the Regina office is no fewer than 200 people.
2. Labour relations
Bunge will comply with all applicable Canadian labour and employment laws, as amended from time to time, in connection with its relationships with the labour unions representing personnel at Viterra port terminals in Canada. Bunge will also comply with the terms of its collective agreements with the labour unions representing personnel at Viterra port terminals.
These measures will help ensure that Bunge works cooperatively with existing labour unions at Canada’s ports to minimize the chance of disruptions within the supply chain.
3. Investments in Canada
Bunge will commit to making the following investments in Canada over the next five years:
- At least $500 million in capital expenditures on its Canadian port terminals, oilseed processing plants, grain elevators, and other operations;
- At least $15 million in community support programs including
- Scholarships for Indigenous candidates,
- Educational and career initiatives targeting Western Canadian youth, and
- Investment and participation in the development of new agriculture technology; and
- At least $5 million on regenerative agriculture programs (i.e. practices to help restore the soil, water and biodiversity of the land) in Canada.
These measures will help ensure that Bunge will make important investments in the Canadian agriculture sector, the grain handling system, and local communities. These investments will offer significant benefits to Canadian farmers and the supply chain.
4. Other measures that benefit the public interest
Bunge will commit to the following measures, which are expected to enhance the public benefits of the proposed acquisition:
- Within two years of closing, Bunge will complete feasibility studies on
- the construction of a new canola processing plant in Canada,
- the supply, demand, and infrastructure requirements for canola meal export capacity at Canadian ports,
- the identification of new canola meal destination markets, and
- improved ship-loading solutions for Bunge’s west coast port terminals;
- Bunge will continue to purchase specialty crops grown within Canada that Viterra currently purchases;
- Bunge will not reduce its total oilseed processing capacity from current levels for at least five years;
- Bunge will maintain Viterra’s Producer Advisory Council, a forum of leading Western Canadian farm organizations and communities that consider potential growth opportunities and farming community concerns;
- Bunge will maintain Viterra’s International Sustainability and Carbon Certification, a globally applicable sustainability certification system that covers all sustainable feedstocks, including agricultural biomass;
- Bunge will commit to developing and protecting Canada’s workforce, including by maintaining a training program for students, ensuring strong workplace health and safety standards, creating opportunities for Bunge Canada employees to obtain international experience, and providing Canadians with full and fair opportunities to apply and compete for employment positions in Canada; and
- Bunge will support the development of supply chain resiliency by engaging with the National Supply Chain Office on its work and by working with industry partners to address shipping bottlenecks and inefficiencies in Canada’s supply chain.
Implications
The Order will approve the Acquisition, which could lead to the completion of an $8.2 billion international transaction that would bring public benefits to Canada. Bunge will invest at least $500 million in Canada’s transportation and grain handling network, which will lead to a more resilient and reliable supply chain. Bunge will also invest at least $15 million to support Canadian communities and at least $5 million to improve the sustainability of Canadian agriculture. Other commitments, including the completion of feasibility studies on a new canola processing facility in Canada and solutions to other key challenges in the supply chain, could lead to meaningful benefits to the Canadian agriculture sector in the long term.
This Order will also demonstrate that Canada remains open to investment and willing to work with international companies to ensure that mergers and acquisitions be in the public interest. The approval of the Acquisition will show that Canada has a stable and predictable regulatory environment and that Canada can provide enhanced regulatory certainty to investors.
The T&Cs will address the concerns identified regarding the public interest as it relates to national transportation. Bunge will have minimal influence over G3’s investment decisions, so G3 is expected to continue to operate as a vigorous competitor in grain markets and as a major investor in Canada’s grain transportation system. In addition, Bunge will retain Viterra’s Canadian head office in Regina, which will protect hundreds of jobs, and it will continue to operate as a good corporate citizen with regard to labour relations, sustainability, and supply chain resiliency.
As required under the Act, the Commissioner provided the Minister with an assessment of the adequacy of the proposed measures put forward by the Parties to address the competition concerns. In a letter to the Minister dated November 27, 2024, the Commissioner advised that the T&Cs will not fully address the competition concerns about the Acquisition. Several of the conditions, such as the price protection program on canola oil and the controls on Bunge’s stake in G3, are classified as “behavioural measures”, which aim to restrict the actions of companies. The Commissioner indicated that behavioural measures tend to be difficult to design, monitor, and enforce; therefore, the Commissioner views “structural measures” (e.g. asset divestitures) as preferable for addressing competition concerns. The Commissioner concluded that the controls on Bunge’s stake on G3 and the price protection program are unlikely to be effective.
With regard to the elevator divestitures, which the Commissioner considers to be structural measures that could contribute to addressing competition concerns, the Commissioner concluded that the divestitures in the T&Cs may address the competition concern in Nipawin, depending on the ultimate purchaser of the assets. Nevertheless, the divestitures would not address the competition concern in Altona, in part because the four elevators that the Parties proposed to divest in the Altona region are older and less efficient than other facilities in the region.
However, behavioural remedies have proven to be effective tools to mitigate competitive concerns resulting from mergers and acquisition and are regularly used in reviews conducted under the Act. For example, the GIC implemented an effective price protection plan in the 2019 approval of the merger of First Air and Canadian North. Equally reassuring is that behavioural remedies have been shown to be effective in addressing concerns raised under the Investment Canada Act, such as for Glencore’s recent acquisition of Teck Resources’ metallurgical coal business. With regard to the Order, the appointment of an independent monitor who must be approved by the Minister will ensure that Bunge fully complies with the T&Cs, including all behavioural measures. Therefore, the Minister concluded that the proposed behavioural measures would contribute to addressing the competition concerns, and that they should be granted weight during consideration of the Acquisition.
In light of the consideration given to the behavioural measures, the GIC is of the view that the competition concerns would be addressed by the T&Cs. The strict controls on Bunge’s ownership stake in G3 will ensure that the companies are operated independently and cannot coordinate pricing decisions. When considered alongside the six divested elevators, the T&Cs ensure that the risk of anti-competitive outcomes is minimal in Altona and in Nipawin, where G3 is an active competitor. In addition, at-risk purchasers of canola oil in Central and Atlantic Canada would have protections to ensure Bunge cannot unfairly increase prices.
The Acquisition was announced in June 2023, and it has already received approval in most international jurisdictions, including in major markets such as the European Union. If the Acquisition were not approved, there would be significant negative effects on Canada’s reputation for regulatory predictability and for openness to foreign investment, with long-term negative implications for Canada’s economic growth.
Consultation
The Commissioner’s report was informed by interviews with various stakeholders in the relevant markets, including farmers, food product distributors, customers, port terminal owners/operators, and regulators, as well as by comments and submissions received from stakeholders in the relevant markets. The specifics of the Commissioner’s consultations are protected under the Competition Act.
In developing the Departmental Report between September 26, 2023, and May 30, 2024, TC undertook consultations with the general public, provincial governments, industry representatives, and other relevant stakeholders. The consultation process included the following channels for input:
- Verbal consultations: 12 meetings with stakeholders, including transportation companies, provincial governments, Canadian port authorities, and leading academics;
- Written submissions: 14 written submissions from stakeholders, including transportation companies, agricultural producer groups, unions, and provincial governments; and
- Online forum and submission portal: 17 comments from the approximately 480 site visits to the discussion forum and portal for submissions that was open between October 23 and December 22, 2023.
Most stakeholders who participated in the TC consultations offered neutral views on the Acquisition, and a small percentage indicated support for the transaction. There were, in addition, several submissions that expressed concerns that Bunge’s increased size could provide it with outsized pricing power in its negotiations with farmers and other actors in the transportation sector. This feedback informed the Minister’s review, and the proposed set of T&Cs address many of the stakeholder concerns that were substantiated by the Departmental Report and/or the Commissioner’s Report.
Outside of the formal consultation processes, the Acquisition has prompted public debate within the agricultural sector in Canada. As part of this debate, some stakeholders have published independent analyses of the impacts of the Acquisition on the Canadian agricultural sector and the transportation network. This work also informed the Minister’s review.
Implementation
The T&Cs will require the Parties to enter into the Implementation and Monitoring Agreement before closing. This Agreement would ensure that the merged entity is complying with the T&Cs and is allowing the Minister to oversee its compliance.
If there is a disagreement over the interpretation of any of these T&Cs that cannot be resolved via the dispute resolution mechanisms contained in the Implementation and Monitoring Agreement, subsection 53.6(2) of the Act could apply if any of the T&Cs of the Order are violated: “Every person who contravenes subsection 53.2(1) or (10) is guilty of an indictable offence and is liable to imprisonment for a term not exceeding five years or to a fine not exceeding $10,000,000, or to both.” In addition, under subsection 53.4(1) a superior court may, on application by the Minister, order the cessation of a contravention of the T&Cs, or any other order it deems appropriate, including the divestiture of assets. Similarly, subsection 53.4(2) allows the Commissioner to make an application to a superior court if there is a contravention with respect to a term or condition that relates to potential prevention or lessening of competition.
Conclusion
The Minister has made the final recommendation to the GIC, having considered the Commissioner’s views as well as the public interest as it relates to national transportation. The Minister weighed all potential benefits against all costs and determined whether, on balance, the Acquisition would be in the public interest. The Minister is of the opinion that the Acquisition should be approved, as it is in the public interest. The Order and the accompanying T&Cs would introduce significant public interest benefits to Canada, while fully addressing the Minister’s public interest concerns as they relate to national transportation, and would, in the Minister’s view, partially mitigate the Commissioner’s competition concerns. Having reviewed the information presented by the Commissioner and the Parties, the Minister is of the view that the T&Cs are reasonable and proportionate, and they correctly balance the interests of all stakeholders.
Further to the Minister’s recommendation, having taken into account all relevant factors, including the Commissioner’s assessment of competition issues, the public interest issues relating to national transportation, and the new measures proposed by the Parties to address any concerns raised as part of the process, the GIC has approved the Acquisition subject to the T&Cs.
Contact
For additional information, please contact
Director
Ports and Seaway Policy
Policy Group
Transport Canada
Place de Ville, Tower C
330 Sparks Street
Ottawa, Ontario
K1A 0N5
General inquiries:
Toll-free: 1‑866‑995‑9737
Telephone: 613‑990‑2309
TTY: 1‑888‑675‑6863
Facsimile: 613‑954‑4731
Email: questions@tc.gc.ca
SCHEDULE “A” — TERMS AND CONDITIONS
1. Definitions, Interpretation and Duration of these Terms and Conditions
- (a) Definitions: Capitalized terms used in these Terms and Conditions shall have the meanings given in Appendix 1 below.
- (b) Interpretation: These Terms and Conditions shall be interpreted in accordance with the provisions set out in Appendix 2 below.
- (c) Duration: These Terms and Conditions shall come into force upon and subject to Closing. Unless stated otherwise in a particular section:
- (i) the duration of the terms and conditions identified at sections 10-14 of these Terms and Conditions shall expire at such time when Bunge no longer has a direct or indirect minority ownership interest in G3 Global;
- (ii) the duration of the terms and conditions identified at sections 22-23 of these Terms and Conditions shall expire at the later of (1) five years following the date of Closing; and (2) at such time when Bunge no longer has a direct or indirect minority ownership interest in G3 Global; and
- (iii) the duration of the other terms and conditions outlined in these Terms and Conditions shall be five years following the date of Closing.
Public Interest Measures
2. Port Union Labour Relations
- (a) Bunge shall comply with all applicable Canadian labour and employment laws, as amended from time to time, in connection with its relationships with the labour unions representing personnel at the Viterra Port Terminals.
- (b) Bunge shall comply with the terms of its collective agreements with the labour unions representing personnel at Viterra Port Terminals.
3. Canadian Workforce
- (a) Bunge Canada shall maintain its head office in Regina, Saskatchewan.
- (b) Bunge shall ensure that the Regina head office will include personnel with responsibilities for finance, legal, industrial operations, human resources, information technology, new projects and strategy.
- (c) Bunge shall maintain the annual headcount of full-time employees primarily based out of the Regina office at no fewer than 200 individuals. For certainty, “primarily based out of the Regina office” shall include any Canadian employees choosing to work partly or full-time remotely who report into the Regina office.
- (d) Bunge Canada will maintain an internship or co-operative training program for students to help build a pipeline of Canadian agricultural professionals in a range of disciplines, which may include human resources, information technology, merchandising, transportation, logistics, engineering, automation, etc.
- (e) Subject to applicable Canadian employment and human rights legislation, Bunge will provide Canadians with a full and fair opportunity to apply and compete for employment opportunities that arise at Bunge Canada.
- (f) Bunge shall make all reasonable efforts to create opportunities for Bunge Canada employees to obtain international experience in Bunge’s global operations.
- (g) Bunge shall maintain internal procedures and controls aimed at ensuring compliance with existing health, safety and environmental standards of the Bunge Canada operations.
4. Capital Expenditures
- (a) Bunge will spend at least $500 million on capital expenditures (including sustaining capital expenditures) within five years following Closing on Bunge Canada’s port terminals, grain elevators and other operations.
5. Canola Growth Opportunities
- (a) Bunge shall maintain Bunge Canada’s and Viterra Canada’s existing oilseed processing capacity in Canada.
- (b) Within two years following Closing, Bunge will complete a feasibility study on adding canola processing capacity in Canada.
- (c) Within two years following Closing, Bunge shall complete a feasibility and engineering study evaluating the supply and demand, and infrastructure requirements for canola meal export capacity at Viterra Port Terminals.
- (d) Within two years following Closing, Bunge shall complete a market study into the identification of global canola meal destination markets.
6. Regenerative Agriculture / Sustainability
- (a) Bunge will spend at least $5 million on regenerative agriculture programs in Canada over the next 5 years, which will be aimed at introducing or expanding on-farm agricultural practices to help Canadian farmers compete globally to offer lower carbon food, feed, and fuel products.
- (b) Bunge shall maintain Viterra’s International Sustainability & Carbon Certification (ISCC) Plus Certification, which is a certification program aimed at promoting environmentally responsible farming practices that meets European Union regulatory requirements.
7. Promoting Canadian Communities
- (a) Bunge will spend no less than $15 million in contributions over the next 5 years to charitable and/or not-for-profit causes in Canada aimed at supporting communities, education, hunger assistance, student education, university research, and other charities or programs important to the communities Bunge operates in and the agriculture industry in Canada, including:
- (i) Educational and vocational training scholarships for qualified Indigenous candidates.
- (ii) Educational and career initiatives targeting western Canadian youth to promote greater interest in careers in the agricultural sector.
- (iii) The development and support of new agriculture technology and related start-up firms.
8. Supporting Supply Chains
- (a) Bunge will support the Government of Canada’s supply chain improvement projects by continuing to engage with the National Supply Chain office on the work it is undertaking to further strengthen the resiliency of the agricultural supply chain.
- (b) Bunge will work with industry partners, including the major Canadian rail carriers, to address shipping bottlenecks and inefficiencies in Canada’s rail transportation network.
- (c) Within two years following Closing, Bunge shall complete a feasibility study to evaluate potential improvements for ship-loading at Viterra Canada’s western Canadian port terminals.
- (d) Bunge Canada will continue to purchase Specialty Crops in line with Viterra Canada’s recent historical practices.
9. Farmer Engagement
- (a) Bunge will maintain a Producers Advisory Council which is composed of members from leading Western Canadian farm organizations and communities that will meet at least once every six months to consider potential growth opportunities and to discuss ways to address farming community concerns.
Public Interest and Competition Measures
10. Independent G3 Directors
- (a) Within 120 days following Closing, Bunge’s current nominated directors on the boards of directors of G3 Entities shall resign or otherwise be removed in accordance with Bunge’s rights in the G3 Global SHA identified at Confidential Appendix 3.
- (b) In exercising the rights to nominate directors in the G3 Global SHA identified at Confidential Appendix 3, Bunge shall only nominate Independent Directors to the boards of directors of G3 Entities. Independent Directors shall be selected from a pool of candidates identified by a reputable executive search firm and shall be approved by the Monitor.
- (c) Bunge shall compensate the Bunge-nominated Independent Directors of the G3 Entities at a level commensurate with the general market practice for compensating independent directors of similarly-sized privately-held Canadian companies. Compensation shall be agreed between Bunge and each Independent Director after input from a reputable executive search firm prior to any such director’s appointment to one or more G3 Entity boards. Bunge shall notify the Monitor of such compensation arrangements in accordance with section 23(f).
- (d) Bunge shall instruct, and shall obtain a written undertaking from, each Independent Director that it nominates to not share any G3 Confidential Information obtained or received by the Independent Director from any G3 Entity with Bunge, other than information that the Designated Shareholder Representatives or other Bunge personnel are entitled to receive in accordance with these Terms and Conditions and information that the CEO of the G3 Entities has authorized in writing to be shared with the Designated Shareholder Representatives.
- (e) Bunge shall only exercise its rights identified at Confidential Appendix 3 to remove a Bunge-nominated director in the event that such Independent Director has failed to fulfill the duties required of a director under Applicable Laws, has ceased to meet the requirements to be an Independent Director, or has otherwise become unable to serve as a director of one or more of the G3 Entities. Bunge shall notify the Monitor of any such removal and its reasons in accordance with section 23(f). The process for replacing an Independent Director shall follow the procedures outlined in sections 10(b) and 10(c) above.
- (f) In the event that any of the Bunge-nominated Independent Directors come up for re-election, Bunge shall nominate the same Independent Directors unless an Independent Director:
- (i) has failed to fulfill the duties required of a director under Applicable Laws,
- (ii) has ceased to meet the requirements to be an Independent Director,
- (iii) has resigned or has otherwise become unable to serve as a director of one or more of the G3 Entities, or
- (iv) has served, or would as a result of the re-election serve, as an Independent Director for a term exceeding eight years.
- (g) Bunge shall notify the Monitor of any such nomination or re-nomination and the reasons therefor in accordance with section 23(f).
11. Designated Shareholder Representatives
- (a) Bunge’s rights and responsibilities as a shareholder of G3 Global shall be exercised by the Designated Shareholder Representatives set out in Confidential Appendix 3.
- (b) Bunge shall instruct, and shall obtain a written undertaking from, each Designated Shareholder Representative to not share any Confidential Information obtained or received from any G3 Entity or an Independent Director with other Bunge personnel, other than:
- (i) information that the CEO of the G3 Entities has authorized in writing to be shared with Bunge or with particular Bunge personnel; and
- (ii) disclosures that are permitted pursuant to the Minority Shareholder Confidentiality Protocol set out in Confidential Appendix 4.
12. Shareholder Approval Rights
- (a) On any matters requiring unanimous shareholder approvals by G3 Global’s shareholders referenced in Confidential Appendix 3 relating to the operation, maintenance, expansion or investment by one or more G3 Entities in port terminals for export from Canada, primary grain elevators in Canada or related grain handling activity between Canadian primary grain elevators to port terminals for export from Canada, or related borrowing by G3 Entities:
- (i) the Designated Shareholder Representatives shall defer to the other shareholder in G3 Global and shall grant or withhold Bunge’s approval, as applicable, consistent with the other shareholder’s position in relation to the applicable approval right; and
- (ii) where the other shareholder approves an additional capital contribution from the shareholders of G3 Global, Bunge will provide a pro rata contribution on substantially similar terms as the capital contribution provided by the other shareholder of G3 Global.
- (b) In the event G3 Global or any of its Subsidiaries seeks to renew any of its outstanding credit facilities described in Confidential Appendix 3, or to renew any replacement facility to such credit facility, on substantially similar terms:
- (i) the Designated Shareholder Representatives shall defer to the other shareholder, and shall grant or withhold Bunge’s approval, as applicable, consistent with the other shareholder’s position, in relation to the applicable approval; and
- (ii) where Bunge currently provides a guarantee for such a facility, it shall continue to provide a pro rata guarantee on substantially similar terms for any renewed or replacement credit facility, provided that the other shareholder of G3 Global provides its pro rata guarantee.
- (c) The Designated Shareholder Representatives shall defer to the other shareholder, and shall grant or withhold Bunge’s approval, as applicable, consistent with the other shareholder’s position, in relation to the approval right for certain export marketing activities of G3 referenced in Confidential Appendix 3.
13. Restriction of Disclosure of G3 Confidential Information
- (a) Bunge and its Designated Shareholder Representatives shall implement the Minority Shareholder Confidentiality Protocol, including the scope for arms-length commercial transactions between Bunge and the G3 Entities made in the ordinary course of business, set out in Confidential Appendix 4 to restrict the disclosure of Confidential Information of the G3 Entities to Bunge.
- (b) Bunge shall waive and not exercise the rights it has under the G3 Global SHA as a shareholder of G3 Global to receive the Confidential Information of the G3 Entities identified at Confidential Appendix 3.
- (c) Bunge shall only exercise the rights it has under the G3 Global SHA as a shareholder of G3 Global to examine records that are Confidential Information of the G3 Entities identified at Confidential Appendix 3 through an independent third party (i.e. accountant, engineer, lawyer and/or consultant), with such third party providing the Designated Shareholder Representatives with a report of its findings.
- (d) To the extent that there is any Confidential Information of the G3 Entities for which Bunge has waived its right to request under the G3 Global SHA pursuant to section 13(b) above, but that such information is reasonably needed by the Designated Shareholder Representatives to exercise Bunge’s responsibilities and rights that Bunge is retaining as a shareholder of G3 Global in accordance with these Terms and Conditions, such additional information shall only be disclosed by one or more G3 Entities to the Designated Shareholder Representatives if the CEO of the G3 Entities provides written authorization permitting such disclosure to be made.
14. Compliance Training
- (a) Every Designated Shareholder Representative shall, within 30 days after Closing and annually thereafter, receive training in respect of Bunge’s obligations under these Terms and Conditions, which shall include training related to Bunge’s Code of Conduct, competition law compliance, the Minority Shareholder Confidentiality Protocol, and the reporting of any breach of such requirements.
- (b) All Bunge Canada personnel with responsibilities related to Grain marketing, sales, purchasing or other competitive matters, and all Bunge personnel with direct management responsibility for Bunge Canada’s Grain business, shall, within 30 days after Closing and annually thereafter, receive training in respect of Bunge’s obligations under these Terms and Conditions, which shall include training related to Bunge’s Code of Conduct, competition law compliance, the Minority Shareholder Confidentiality Protocol, and the reporting of any breach of such requirements.
15. Altona Area and Nipawin Area Divestitures
- (a) Bunge shall use commercially reasonable efforts to complete the Divestitures.
- (b) During the Initial Sale Period, Bunge shall use commercially reasonable efforts to complete the Divestitures in accordance with the provisions of this section and Confidential Appendix 5 and subject to the Minister’s approval in accordance with section 17.
- (c) During the Initial Sale Period, Bunge shall provide a written report every 30 days to the Minister and the Monitor, describing the progress of its efforts to implement the Divestitures. The report shall include a description of contacts, negotiations, due diligence and offers regarding the Divestiture Assets, the name, address and phone number of all parties contacted and of prospective Purchasers who have come forward. Bunge shall, within 5 Business Days, respond to any request by the Minister for additional information regarding the status of Bunge’s efforts to complete the Divestitures. An officer or other duly authorized representative of Bunge shall certify that the information provided in any such response has been examined and is, to the best of that individual’s knowledge and belief, correct and complete in all material respects.
16. Divestiture Trustee Sale Process
- (a) In the event that Bunge fails to complete all or part of the Divestitures during the Initial Sale Period, the Minister shall appoint a Divestiture Trustee to complete the Divestitures. Such appointment may be made at any time prior to the expiry of the Initial Sale Period or on such later date as the Minister determines.
- (b) During the Divestiture Trustee Sale Period, the Divestiture Trustee shall complete the Divestitures in accordance with the provisions in Appendix 6 and subject to the Minister’s approval in accordance with section 17.
17. Approval of Divestitures
- (a) The Divestitures shall be made to one or multiple Purchasers and may proceed only with the prior approval of the Minister in accordance with this section and with Appendix 7. For greater certainty, if a Divestiture is a notifiable transaction, nothing in these Terms and Conditions affects the operation of Part IX of the Competition Act or the Canada Transportation Act.
- (b) In exercising discretion to determine whether to approve a proposed Divestiture, the Minister shall take into account the likely impact of the Divestiture on competition and may consider any factor related to the public interest that the Minister considers relevant. Prior to granting approval, the Minister must also be satisfied that:
- (i) the proposed Purchaser is fully independent of and operates at arm’s length from Bunge;
- (ii) Bunge will have no direct or indirect interest in the Divestiture Assets following the Divestiture;
- (iii) the proposed Purchaser is committed to continuing to operate the Divestiture Assets;
- (iv) the proposed Purchaser has the managerial, operational and financial capability to compete effectively in canola origination in the vicinity of Altona, Manitoba and/or Nipawin, Saskatchewan; and
- (v) the proposed Purchaser will
- (A) if the Minister grants approval during the Initial Sale Period, complete the Divestiture prior to the expiry of the Initial Sale Period or such additional period(s) as may be authorized by the Minister; or
- (B) if the Minister grants approval during the Divestiture Trustee Sale Period, complete the Divestiture during the Divestiture Trustee Sale Period.
18. Hold Separate
- (a) Prior to or at Closing, the Minister shall appoint a Hold Separate Manager, responsible for managing and operating the Divestiture Assets independently of Bunge during the Hold Separate Period in accordance with Appendix 8.
- (b) During the Hold Separate Period, Bunge shall:
- (i) hold the Divestiture Assets separate, apart and independent of Bunge and its affiliates and shall confer on the Hold Separate Manager all rights and powers necessary to conduct the business of the Divestiture Assets;
- (ii) not exercise direction or control over, or influence directly or indirectly, the Divestiture Assets or the Hold Separate Manager; and
- (iii) take no action that interferes with or impedes, directly or indirectly, the Hold Separate Manager’s duties and responsibilities.
19. Transitional Support
- (a) Bunge, or the Divestiture Trustee on behalf of Bunge, shall enter into such agreements to supply such transitional services requested by a Purchaser and approved by the Minister as are reasonably necessary to ensure the effectiveness of Divestiture Assets for up to one year following the completion of the Divestiture.
20. Employees that Operate the Divestiture Assets
- (a) Bunge (during the Initial Sale Period), the Divestiture Trustee (during the Divestiture Trustee Sale Period) and the Hold Separate Manager (for the Hold Separate Employees) shall provide to any prospective Purchaser, the Monitor and the Minister information relating to the employees whose responsibilities involve the operation of the Divestiture Assets, to enable such Purchaser to make decisions regarding offers of employment to such employees. A Purchaser shall have the option of offering employment to or retaining any of the employees whose responsibilities involve the operation of any of the Divestiture Assets. The Monitor shall review the information provided to ensure that it is sufficient to enable a Purchaser to make such decisions.
- (b) Bunge shall:
- (i) not interfere, directly or indirectly, with any negotiations by a Purchaser to employ any employees whose responsibilities involve the operation of the Divestiture Assets;
- (ii) not offer any incentive to such employees to decline employment with a Purchaser or to accept other employment with Bunge;
- (iii) remove any impediment that may deter such employees from accepting employment with a Purchaser;
- (iv) waive any non-compete or confidentiality provisions of employment or other contracts that could impair the ability of such employees to be employed by a Purchaser; and
- (v) pay or transfer to the employees subsequently employed by a Purchaser all current and accrued bonuses, pensions and other current and accrued benefits to which such employees were entitled to for the period of time they were employed by Bunge or Viterra.
- (c) For a period of one year following completion of the Divestiture, Bunge shall not, without the prior written consent of the Minister, directly or indirectly solicit or employ any Persons employed in connection with the Divestiture Assets who has accepted an offer of employment with a Purchaser unless such Person’s employment has been terminated by the Purchaser. Nothing in these Terms and Conditions shall restrict the solicitation or employment by Bunge of any Person who is solicited by advertising placed in a newspaper, trade journal, through a web site or via other media of general circulation which is not directed at or focused on Persons employed in connection with the Divestiture Assets.
21. Truck-Dependent Canola Oil Customers
- (a) Bunge will supply bulk canola oil to each Qualified Customer at its Qualified Location(s) from any of Bunge’s or Viterra’s facilities in response to orders to purchase in accordance with Bunge’s or Viterra’s standard sales contract terms, up to its 2023 purchase volume (in MT) annually during the 2025–2029 calendar years, at a price no higher than:
- (i) the price for soybean oil futures (product code ZL), converted to Canadian Dollars, for the Qualified Customer’s requested month of delivery as traded on the Chicago Board of Trade, plus
- (ii) the Qualified Customer’s average Basis at the Qualified Location during 2023 (inclusive of any fees and adjustments, exclusive of freight cost), multiplied by the Consumer Price Index for the month of June of the year prior to the purchase year (e.g. 2024, for purchases in 2025) divided by the Consumer Price Index for June 2023, in accordance with Confidential Appendix 9.
- (b) The Qualified Customer may obtain delivery from Bunge to the Qualified Location at standard truck freight rates or may arrange for its own delivery.
- (c) For greater certainty, Bunge and the Qualified Customer will continue to have their rights and obligations under the applicable standard sales contract terms, including Bunge’s rights and remedies upon non-payment or non-performance by the Qualified Customer.
General Terms
22. Monitor
- (a) Bunge shall appoint a Monitor who is acceptable to the Minster and shall enter into an Implementation and Monitoring Agreement that is acceptable to the Minister.
- (b) Closing shall not occur until the Minister and Bunge have entered into the Implementation and Monitoring Agreement. The Implementation and Monitoring Agreement shall come into force at and subject to Closing.
- (c) Bunge shall comply with the provisions of the Implementation and Monitoring Agreement.
- (d) The Implementation and Monitoring Agreement shall be subject to any agreement between the Minister and Bunge to vary, amend, or supplement any provisions of the Implementation and Monitoring Agreement.
23. Reporting and Compliance
- (a) Bunge shall provide the Minister, the Commissioner and the Monitor with a written report, annually within 90 days after the anniversary of the Closing, outlining Bunge’s adherence to these Terms and Conditions during the previous year, together with such additional information as may be reasonably requested by the Minister, the Commissioner or the Monitor, to enable them to determine the manner and extent that Bunge has implemented these Terms and Conditions. Such written reports shall be certified as being complete and accurate in all material respects by an officer of Bunge Global SA to the best of such officer’s knowledge and belief.
- (b) Bunge’s annual report to the Minister, the Commissioner and the Monitor shall provide information about any changes in Bunge’s direct or indirect ownership interest in the G3 Entities. For greater certainty, if a change in ownership interest in the G3 Entities meets the threshold for a notifiable transaction under the Competition Act, nothing in these Terms and Conditions affects the operation of Part IX of the Competition Act or the Canada Transportation Act.
- (c) Within 30 days following Closing, and following any new appointment, Bunge shall provide all directors of G3 Global, as well as all Designated Shareholder Representatives, Bunge Canada management and Bunge personnel with direct management oversight of Bunge Canada, with a copy of these Terms and Conditions and information about the process for reporting compliance issues to Bunge’s Global Ethics and Compliance team (including through Bunge’s Helpline online reporting tool) and the Monitor.
- (d) Bunge’s Global Ethics and Compliance team will commence an investigation within 5 Business Days of receiving any complaints regarding compliance with these Terms and Conditions including the Minority Shareholder Confidentiality Protocol.
- (e) Bunge shall notify the Monitor within 5 Business Days of receipt of any complaint regarding compliance with these Terms and Conditions including the Minority Shareholder Confidentiality Protocol, as well as the outcome of its investigation of the complaint, including actions taken or planned to be taken by Bunge to address any breach that is determined to have occurred.
- (f) Bunge shall notify the Monitor within 5 Business Days regarding any changes to the Bunge-nominated Independent Directors appointed to the G3 Entities. For clarity, this shall include notification of (i) compensation arrangements; (ii) any nomination or re-nomination of any Bunge-nominated directors for one or more of the G3 Entities; (iii) any replacement of a Bunge-nominated director or election of a new Bunge-nominated director; and (iv) any resignation by a Bunge-nominated director. In the event that Bunge acts to remove or otherwise replace an Independent Director, Bunge shall advise the Monitor regarding the manner in which the Independent Director has failed to fulfill the duties required of a director under Applicable Laws, has ceased to meet the requirements to be an Independent Director, has elected to resign, or has otherwise become unable to serve as a director of one or more of the G3 Entities as contemplated by section 10(f) above.
- (g) Bunge shall notify the Monitor of the manner in which the Designated Shareholder Representatives have exercised Bunge’s shareholder approval rights in relation to any matters requiring unanimous approval by G3 Global’s shareholders and provide copies of all G3 Confidential Information received in relation to such decisions within 5 Business Days of the exercise of such rights.
- (h) Bunge shall notify the Minister and the Commissioner in writing, at least five days before the implementation of any decision that would reasonably be expected to have a material adverse impact on Bunge’s ability to fulfill these Terms and Conditions.
- (i) Bunge shall not, for a period of 10 years after the date when the Divestitures are completed, directly or indirectly acquire any interest in the Divestiture Assets, without prior written approval of the Minister.
- (j) For a period of two years after the date when the Divestitures are completed, Bunge shall not, without providing advance written notification to the Commissioner in the manner described in this section, directly or indirectly:
- (A) acquire any canola seed origination assets or shares of, or any other interest in, any canola seed origination business at a Canadian location less than 250 kilometres straight-line distance from Bunge’s canola processing facility at Altona, Manitoba or Nipawin, Saskatchewan; or
- (B) consummate any merger or other combination relating to a canola seed origination business at a Canadian location less than 250 kilometres straight-line distance from Bunge’s canola processing facility at Altona, Manitoba, or Nipawin, Saskatchewan.
If a transaction described in (A) or (B) is one for which notice is not required under section 114 of the Competition Act, Bunge shall supply to the Commissioner the information described in section 16 of the Notifiable Transactions Regulations at least 30 days before completing such transaction. Bunge shall certify such information in the same manner as would be required if section 118 of the Competition Act applied. The Commissioner may accept a competitive impact brief from Bunge instead of such information. The Commissioner may, within 30 days after receiving the information described in this section, request that Bunge supply additional information that is relevant to the Commissioner’s assessment of the transaction. In the event that the Commissioner issues such a request for additional information, Bunge shall supply information to the Commissioner in the form specified by the Commissioner and shall not complete such transaction until at least 30 days after Bunge has supplied all such requested information in the form specified by the Commissioner.
24. Delegation to the Commissioner
- (a) The Minister may delegate his or her rights, powers and duties set out in any of the following provisions of these Terms and Conditions to the Commissioner:
- (i) Receipt of written reports describing the progress of Bunge’s effort to implement the Divestitures and requests for additional information, as set out in section 15(c);
- (ii) Appointment of the Divestiture Trustee, as set out in section 16(a), and the powers of the Minister in relation to the Divestiture Trustee Sales process set out in Confidential Appendix 5 and Appendix 6;
- (iii) Approvals for an extension of the Initial Sale Period as set out in Confidential Appendix 5;
- (iv) Approvals of Divestitures, Purchasers and extensions, as set out in section 17, and the powers of the Minister in relation to the approval process set out in Confidential Appendix 5 and Appendix 7;
- (v) Appointment of the Hold Separate Manager, as set out in section 18(a), and the powers of the Minister throughout the hold separate process set out in Appendix 8;
- (vi) Approval of agreements for the supply of transitional services to Purchasers by Bunge as set out in section 19;
- (vii) Receipt of information relating to the employees whose responsibilities involve the operation of any of the Divestiture Assets set out in section 20(a);
- (viii) Consent to solicitation or employment by Bunge of any Persons employed in connection with the Divestiture Assets who have accepted an offer of employment with a Purchaser as set out in section 20(c); and
- (ix) Approval of a direct or indirect acquisition of any interest in the Divestiture Assets by Bunge within 10 years of completion of the Divestitures as set out in section 23(i).
(b) The Minister shall give Bunge and the Commissioner, as well as the Monitor and if applicable the Divestiture Trustee and the Hold Separate Manager, 10 business days’ written notice before delegating any of her rights, powers and duties to the Commissioner pursuant to section 24(a) and such notice shall specify the rights, powers and duties to be delegated.
- (c) The Commissioner shall advise Bunge and the Minister, as well as the Monitor and if applicable the Divestiture Trustee and the Hold Separate Manager, in writing whether he accepts and will exercise the delegated rights, powers and duties in accordance with the Terms and Conditions within 5 business days after receipt of the notice referenced in section 24(b).
- (d) Where the Minister delegates any of her rights, powers and duties to the Commissioner pursuant to section 24(a), the Minister may:
- (i) withdraw such delegation of rights, powers and duties by giving written notice to Bunge and the Commissioner, as well as the Monitor and if applicable the Divestiture Trustee and the Hold Separate Manager; and
- (ii) upon receipt of a written request from Bunge, reconsider any decision of the Commissioner made pursuant to a right, power or duty delegated to him by the Minister and the Minister may in writing confirm, vary or rescind the decision.
Appendix 1 — Definitions
The following definitions shall apply to these Terms and Conditions.
- “Act”
- means the Canada Transportation Act (Canada).
- “Affiliate”
- means, in respect of a Person, any other Person controlling, controlled by or under common control with such first Person, whether directly or indirectly and “control” means directly or indirectly holding securities or other interests:
- (i) in a Person that is a corporation to which are attached more than 50% of the votes that may be cast to elect directors of the corporation, or
- (ii) in a Person that is not a corporation entitling the holder to receive more than 50% of the profits of the Person or more than 50% of the Person’s assets on dissolution.
- “Altona Area Elevators”
- means Viterra Canada’s primary grain elevators located in Fannystelle, Tucker, Beausejour, and Winnipeg (“Coulter”), Manitoba.
- “Applicable Law”
- means any applicable federal, tribal, state, local, foreign or multinational statute, code, rule, regulation, requirement, order, decree or ordinance or other pronouncement of any domestic or foreign governmental authority having the effect of law, including common law.
- “Basis”
- means the difference between the cash price in Canadian Dollars for canola oil paid by a customer (inclusive of any fees and adjustments, exclusive of freight cost) and the price for soybean oil futures (product code ZL), converted to Canadian Dollars, for the month of delivery as traded on the Chicago Board of Trade.
- “Bunge”
- means Bunge Global SA and its Affiliates.
- “Bunge Canada”
- means Bunge’s business operations in Canada and, following Closing, shall include the business operations of Viterra Canada. For the avoidance of doubt, references to Bunge Canada do not include the purchases, sale or export of Grains or products derived from Grains by Bunge’s non-Canadian affiliates.
- “Business Day”
- means any day other than a Saturday, a Sunday, a statutory holiday in the Provinces of Saskatchewan, Ontario, Quebec, British Columbia or Alberta or any day on which banks are not open for business in the City of Regina, Saskatchewan, the City of Vancouver, British Columbia or the City of Toronto, Ontario.
- “Closing”
- means the closing of the Transaction.
- “Commissioner”
- means the Commissioner of Competition, appointed under section 7 of the Competition Act.
- “Confidential Information”
- means competitively sensitive, proprietary and all other information that is not in the public domain, and that is owned by or pertains to a Person or a Person’s business, and includes, but is not limited to, manufacturing, operations and financial information, customer lists, price lists, contracts, cost and revenue information, marketing methods, patents, technologies, processes, or other trade secrets.
- “Designated Shareholder Representatives”
- has the meaning set out in Confidential Appendix 3.
- “Divestitures”
- means the sale, conveyance, transfer, assignment or other disposal of the Divestiture Assets to one or more Purchasers pursuant to these Terms and Conditions and with the prior approval of the Minister, such that Bunge will have no direct or indirect interest in the Divestiture Assets.
- “Divestiture Agreement”
- means one or more binding and definitive agreements between Bunge and one or more Purchasers to implement the Divestitures pursuant to these Terms and Conditions and subject to the prior approval of the Minister.
- “Divestiture Assets”
- means (i) the Altona Area Elevators and (ii) the Nipawin Area Elevators and, in respect of any particular Altona Area Elevator or Nipawin Area Elevator, includes all rights, titles and interests in and to all assets and properties, used to operate that elevator in the ordinary course of business as a grain handling facility in accordance with past practice including: (a) all real property owned, leased or otherwise held by Viterra or Bunge, as the case may be, and used to operate that elevator; (b) all personal property, including supplies and parts, owned, leased or otherwise held by Viterra or Bunge, as the case may be, and used to operate that elevator; (c) all rights of Viterra or Bunge, as the case may be, relating to that elevator under any contract entered into with customers, suppliers, sales representatives, distributors, agents, personal property lessors, personal property lessees, licensors, licensees, consignors and consignees, and joint venture partners; (d) any transferable governmental approvals, consents, licenses, permits, waivers, or other transferable authorizations held by Viterra or Bunge, as the case may be, and used to operate that specific elevator; (e) any transferable rights of Viterra or Bunge, as the case may be, relating to that specific elevator under any warranty and guarantee, express or implied; (f) all books, records, and files held by Viterra or Bunge, as the case may be, relating only to that elevator reasonably necessary to operate that elevator on a going forward basis; and (g) all existing customer and vendor lists held by Viterra or Bunge, as the case may be, and used in the operation of that elevator.
- “Divestiture Process Agreement”
- means the agreement described in Appendix 6 of these Terms and Conditions.
- “Divestiture Trustee”
- means the Person appointed pursuant to section 16 of these Terms and Conditions (or any substitute appointed thereto) and any employees, agents or other Persons acting for or on behalf of the Divestiture Trustee.
- “Divestiture Trustee Sale”
- means the Divestitures to be conducted by the Divestiture Trustee pursuant to section 16 and Appendix 7 of these Terms and Conditions.
- “Divestiture Trustee Sale Period”
- means the period that commences at the expiry of the Initial Sale Period and ends at the time set out in Confidential Appendix 5 to these Terms and Conditions.
- “G3 Canada”
- means G3 Canada Limited.
- “G3 Entities”
- means G3 Global and its Subsidiaries, including G3 Canada and G3TV.
- “G3 Global”
- means G3 Global Holdings Limited Partnership and G3 Global Holdings GP Inc., the general partner of G3 Global Holdings Limited Partnership.
- “G3 Global SHA”
- has the meaning set out in Confidential Appendix 3.
- “G3TV” and “G3 Terminal Vancouver”
- means G3 Terminal Vancouver Limited Partnership and G3 Terminal Vancouver GP Inc., the general partner of G3 Terminal Vancouver Limited Partnership.
- “Grains”
- means grains handled by grain elevators, including unprocessed canola and other oilseeds, and pulses. It does not include products transformed in processing facilities.
- “His Majesty”
- means His Majesty in Right of Canada as represented by the Minister.
- “Hold Separate Employees”
- means those employees of Bunge and Viterra who are employed primarily in connection with the Divestiture Assets.
- “Hold Separate Manager”
- means the Person appointed pursuant to section 18 of these Terms and Conditions (or any substitute appointed thereto) to manage the operation of the Divestiture Assets, and any employees, agents or other Persons acting for or on behalf of the Hold Separate Manager.
- “Hold Separate Period”
- means the period that commences at Closing and ends upon the completion of the Divestitures.
- “Implementation and Monitoring Agreement”
- means the implementation and monitoring agreement between the Minister and Bunge, providing for the implementation and monitoring of these Terms and Conditions to be entered into prior to the Closing, as amended from time to time.
- “Independent Director”
- means a director who:
- (i) is not employed by Bunge;
- (ii) is free from any business interest or other relationship that could reasonably be perceived to interfere materially with his or her ability to act in the best interest of the G3 Entities;
- (iii) is not a beneficial holder, directly or indirectly, collectively of 1% or more of the votes of all issued and outstanding securities of Bunge;
- (iv) has not been employed by Bunge and has not acted as an agent for Bunge in the most recent five years prior to such director’s nomination by Bunge to serve as an “Independent Director”; and
- (v) does not have an immediate family member (that is, a spouse, sibling, parent or child) who is employed by Bunge or who has been employed by Bunge in the most recent five years prior to such director’s nomination by Bunge to serve as an “Independent Director”.
- “Initial Sale Period”
- means the period that commences at Closing and ends at the time set out in Confidential Appendix 5 of these Terms and Conditions.
- “Management Agreement”
- means the agreement described in Appendix 8 of these Terms and Conditions.
- “Minister”
- means the Minister of Transport.
- “Minority Shareholder Confidentiality Protocol”
- has the meaning described at Confidential Appendix 4 of these Terms and Conditions.
- “Monitor”
- means the Person appointed by Bunge pursuant to the provisions of the Implementation and Monitoring Agreement (or any substitute appointed thereto), and any employees, agents or other Persons acting for or on behalf of the Monitor, to oversee and monitor Bunge’s compliance with these Terms and Conditions and the Implementation and Monitoring Agreement.
- “Nipawin Area Elevators”
- means (i) Viterra Canada’s primary grain elevator located in Valparaiso, Saskatchewan, and (ii) Bunge Canada’s primary grain elevator located in Dixon, Saskatchewan.
- “Person”
- means any individual, corporation, limited liability company, partnership, joint venture, association, joint-stock company, trust, unincorporated organization or government or any agency or political subdivision thereof.
- “Purchaser”
- means one or more Persons that acquire Divestiture Assets pursuant to these Terms and Conditions and to one or more Divestiture Agreements.
- “Qualified Customers”
- are the customers, including any affiliates, who (i) purchased bulk canola oil from Bunge or Viterra in 2023 and (ii) purchased less than C$15 million of products from Bunge and Viterra in 2023.
- “Qualified Locations”
- are those locations in Canada of Qualified Customers that received delivery only by truck directly from the Bunge refinery in Hamilton, Ontario or the Viterra refinery in Becancour, Quebec during 2023, as set out in Confidential Appendix 9:
- (a) that did not have rail access in 2023;
- (b) at which the total volume of bulk canola oil purchases from Bunge’s Hamilton refinery and Viterra’s Becancour refinery in 2023 was more than twice the volume of its total purchases of soy or other vegetable oils from any Bunge or Viterra facility at that location in 2023;
- (c) that were not included in a process to procure vegetable oil products from Bunge or Viterra for 2023 that included any of the Qualified Customer’s locations outside of Canada.
- “Records”
- means “records” within the meaning of subsection 2(1) of the Competition Act.
- “Sellers”
- means Danelo Limited, CPPIB Monroe Canada, Inc., Venus Investment Limited Partnership, Ocorian Limited and the Viterra Employee Benefit Trust.
- “Specialty Crops”
- means mustard, canary seed, flax, peas, lentils, oats, rye, and beans.
- “Subsidiary”
- means in respect of a Person, any other Person controlled by such first Person, whether directly or indirectly, and includes a Subsidiary of that Subsidiary, where control has the meaning ascribed thereto in the definition of “Affiliate” herein.
- “Terms and Conditions”
- means the terms and conditions, as specified by the Governor in Council in approving the Transaction, in accordance with section 53.2(7) of the Act, as amended from time to time, pursuant to section 53.2(8) of the Act.
- “Third Parties”
- means any Person other than the Minister, Commissioner, Monitor, Hold Separate Manager, Divestiture Trustee, Bunge or a Purchaser.
- “Transaction”
- means the proposed acquisition by Bunge of Viterra pursuant to a Business Combination Agreement dated June 13, 2023, between Bunge Limited, Viterra Limited and the Sellers.
- “Viterra”
- means Viterra Limited and its Affiliates.
- “Viterra Canada”
- means Viterra’s business operations in Canada.
- “Viterra Port Terminals”
- means, collectively, Viterra’s interests in the Cascadia Terminal in Vancouver, the Pacific Terminal in Vancouver, the Prince Rupert Grain Terminal in Prince Rupert, two port terminal facilities in Thunder Bay, and one port terminal facility in Montréal.
APPENDIX 2 – INTERPRETATION
The Terms and Conditions shall be interpreted according to the following provisions, unless the context requires a different meaning:
- (a) obligations of Bunge provided for in the Terms and Conditions shall be deemed to include the obligation to cause Bunge’s Subsidiaries to perform the obligations, as applicable;
- (b) all headings and references used in the Terms and Conditions are for convenience of reference only, shall not constitute a part of the Terms and Conditions, and shall not be taken into consideration in the interpretation of, or affect the meaning of, the Terms and Conditions;
- (c) references to any Applicable Law, including any statutes or other Applicable Law specifically referred to herein, whether or not amendments or successors to such Applicable Law are referred to herein, are to be construed as references to that Applicable Law as from time to time amended or to any Applicable Law covering the same or similar subject matter from time to time replacing, extending, consolidating or amending the same;
- (d) references to a statute shall include all regulations, by-laws, ordinances and orders made under or pursuant to the statute;
- (e) references to Persons shall include their successors and assigns. References to a public organization shall include their successors and assigns, and if a public organization ceases to exist or ceases to perform its functions without a successor or assign, references to such public organization shall be deemed to include a reference to any public organization or any organization or entity which has taken over either or both the functions and responsibilities of such public organization;
- (f) references containing terms such as:
- (i) “hereof”, “herein”, “hereto”, “hereinafter”, and other terms of like import are not limited in applicability to the specific provision within which such references are set forth but instead refer to the Terms and Conditions taken as a whole; and
- (ii) “includes” and “including”, whether or not used with the words “without limitation” or “but not limited to”, shall not be deemed limited by the specific enumeration of items but shall, in all cases, be deemed to be without limitation and construed and interpreted to mean “includes without limitation” and “including without limitation”;
- (g) where the Terms and Conditions states that an obligation shall be performed “no later than” or “within” or “by” a stipulated date or event which is a prescribed number of days after a stipulated date or event, the latest time for performance shall be 5:00 p.m. E.T. on the last day for performance of the obligation concerned, or, if that day is not a Business Day, 5:00 p.m. E.T. on the next Business Day;
- (h) where the Terms and Conditions states that an obligation shall be performed “on” a stipulated date, the latest time for performance shall be 5:00 p.m. E.T. on that day, or, if that day is not a Business Day, 5:00 p.m. E.T. on the next Business Day;
- (i) any reference to time of day or date means the local time or date in Ontario;
- (j) unless otherwise indicated, time periods will be strictly construed;
- (k) whenever the terms “will” or “shall” are used in the Terms and Conditions in relation to Bunge they shall be construed and interpreted as synonymous and to read “Bunge shall”; and
- (l) unless otherwise stated, any time a party’s approval, consent, authorization or other exercise of discretion is required, such approval, consent, authorization or discretion shall be exercised reasonably and communicated in a timely manner.
APPENDIX 6 – DIVESTITURE TRUSTEE SALES PROCESS
- Within 5 Business Days after the appointment of the Divestiture Trustee, Bunge shall submit to the Minister for approval the terms of a proposed Divestiture Process Agreement with the Divestiture Trustee and the Minister that confers on the Divestiture Trustee all rights and powers necessary to permit the Divestiture Trustee to implement the Divestitures.
- Within 5 Business Days after receipt of the proposed Divestiture Process Agreement referred to in paragraph 1 of this Appendix 6, the Minister shall advise Bunge whether or not the Minister approves the terms of the proposed Divestiture Process Agreement. If the Minister does not approve the terms of the proposed Divestiture Process Agreement, the Minister shall prescribe alternative terms that Bunge shall incorporate into a final Divestiture Process Agreement with the Divestiture Trustee and the Minister.
- Without limiting the Minister’s discretion to require additional terms, Bunge consents to the following terms and conditions regarding the Divestiture Trustee’s rights, powers and duties, and shall include such terms in the Divestiture Process Agreement:
- (a) The Divestiture Trustee shall complete the Divestitures as expeditiously as possible, and in any event prior to expiry of the Divestiture Trustee Sale Period.
- (b) The Divestiture Trustee shall use reasonable efforts to negotiate terms and conditions for the Divestitures that are as favourable to Bunge as are reasonably available at that time; however, the Divestitures shall not be subject to any minimum price. The Divestiture Trustee’s opinion of what constitutes favourable terms and conditions and what constitutes reasonably available terms and conditions is subject to review and approval by the Minister.
- (c) Subject to oversight and approval by the Minister, the Divestiture Trustee shall have full and exclusive authority during the Divestiture Trustee Sale Period:
- (i) to complete the Divestitures in accordance with the provisions of section 16 of the Terms and Conditions and this Appendix 6;
- (ii) to solicit interest in possible Divestitures by whatever process or procedure the Divestiture Trustee believes is suitable to allow a fair opportunity for one or more prospective good faith Purchasers to offer to acquire the Divestiture Assets, and for greater certainty, in determining whether to pursue negotiations with a prospective Purchaser, may have regard to the approval criteria in section 17 of the Terms and Conditions;
- (iii) to enter into one or more Divestiture Agreements with one or more Purchasers that will be legally binding on Bunge;
- (iv) to negotiate reasonable commercial covenants, representations, warranties and indemnities to be included in a Divestiture Agreement; and
- (v) to employ, at the expense of Bunge, such consultants, accountants, legal counsel, investment bankers, business brokers, appraisers, and other representatives and assistants as the Divestiture Trustee believes are necessary to carry out the Divestiture Trustee’s duties and responsibilities.
- (vi) Where any Person makes a good faith inquiry respecting a possible purchase of Divestiture Assets, the Divestiture Trustee shall notify such Person that the Divestiture is being made and shall provide to such Person a copy of these Terms and Conditions, with the exception of the provisions hereof that are confidential under these Terms and Conditions.
- (vii) Where, in the opinion of the Divestiture Trustee, a Person has a good faith interest in purchasing Divestiture Assets and has executed a confidentiality agreement, in a form satisfactory to the Minister, with the Divestiture Trustee protecting any Confidential Information that such Person may receive in the course of its due diligence review of the Divestiture Assets, the Divestiture Trustee shall:
- (A) promptly provide to such Person all information respecting the Divestiture Assets that is determined by the Divestiture Trustee to be relevant and appropriate;
- (B) permit such Person to make reasonable inspection of the Divestiture Assets and of all financial, operational or other non-privileged Records and information, including Confidential Information, that may be relevant to the Divestiture; and
- (C) give such Person as full and complete access as is reasonable in the circumstances to the personnel involved in managing the Divestiture Assets.
- (viii) The Divestiture Trustee shall have no obligation or authority to operate or maintain the Divestiture Assets.
- (ix) The Divestiture Trustee shall provide to the Minister and to the Monitor, within 14 days after the later of the Divestiture Trustee’s appointment and the commencement of the Divestiture Trustee Sale Period and thereafter every 30 days, a written report describing the progress of the Divestiture Trustee’s efforts to complete the Divestitures. The report shall include a description of contacts, negotiations, due diligence and offers regarding the Divestiture Assets, the name, address and phone number of all parties contacted and of prospective Purchasers who have come forward. The Divestiture Trustee shall, within 3 Business Days, respond to any request by the Minister for additional information regarding the status of the Divestiture Trustee’s efforts to complete the Divestiture. The Divestiture Trustee shall notify Bunge and the Minister immediately upon the signing of any letter of intent or agreement in principle relating to the Divestiture Assets and shall provide to Bunge a copy of any executed Divestiture Agreement upon receipt of the Minister’s approval of the Divestiture contemplated in such Divestiture Agreement.
- (d) Bunge shall not be involved in the Divestitures process during the Divestiture Trustee Sale Period or in any negotiations with prospective Purchasers undertaken by the Divestiture Trustee, nor will Bunge have contact with prospective Purchasers during the Divestiture Trustee Sale Period.
- (e) Subject to any legally recognized privilege, Bunge and the Hold Separate Manager shall provide to the Divestiture Trustee full and complete access to all personnel, Records, information (including Confidential Information) and facilities relating to the Divestiture Assets, to enable the Divestiture Trustee to conduct its own investigation of the Divestiture Assets and to provide access and information to prospective Purchasers.
- (f) Bunge shall take no action that interferes with or impedes, directly or indirectly, the Divestiture Trustee’s efforts to complete the Divestitures.
- (g) Bunge and the Hold Separate Manager shall fully and promptly respond to all requests from the Divestiture Trustee and shall provide all information the Divestiture Trustee may request. Bunge shall identify an individual who shall have primary responsibility for fully and promptly responding to such requests from the Divestiture Trustee on behalf of Bunge.
- (h) Bunge will do all such acts and execute all such documents, and will cause the doing of all such acts and the execution of all such documents as are within its power to cause the doing or execution of, as may be reasonably necessary to ensure that the Divestiture Assets are divested in the Divestiture Trustee Sale Period and that agreements entered into by the Divestiture Trustee are binding upon and enforceable against Bunge.
- (i) Bunge shall be responsible for all reasonable fees and expenses properly charged or incurred by the Divestiture Trustee in the course of carrying out the Divestiture Trustee’s duties and responsibilities under these Terms and Conditions. The Divestiture Trustee shall serve without bond or security and shall account for all fees and expenses incurred. Bunge shall pay all reasonable invoices submitted by the Divestiture Trustee within 30 days after receipt and, without limiting this obligation, Bunge shall comply with any agreement it reaches with the Divestiture Trustee regarding interest on late payments. In the event of any dispute:
- (i) such invoice shall be subject to the approval of the Minister; and
- (ii) Bunge shall promptly pay any invoice approved by the Minister. Any outstanding monies owed to the Divestiture Trustee by Bunge shall be paid out of the proceeds of the Divestitures.
- (j) Bunge shall indemnify the Divestiture Trustee and the Minister , and hold the Divestiture Trustee and the Minister harmless, against any losses, claims, damages, liabilities or expenses arising out of, or in connection with, the performance of the Divestiture Trustee’s duties, including all reasonable fees of counsel and other expenses incurred in connection with the preparation or defence of any claim, whether or not resulting in any liability, except to the extent that such losses, claims, damages, liabilities, or expenses result from malfeasance, gross negligence or bad faith by the Divestiture Trustee.
- (k) If the Minister determines that the Divestiture Trustee has ceased to act or has failed to act diligently, the Minister may remove the Divestiture Trustee and appoint a substitute Divestiture Trustee. The provisions of these Terms and Conditions respecting the Divestiture Trustee shall apply in the same manner to any substitute Divestiture Trustee.
- (l) Bunge may require the Divestiture Trustee and each of the Divestiture Trustee’s consultants, accountants, legal counsel, investment bankers, business brokers, appraisers, and other representatives and assistants to sign an appropriate confidentiality agreement in a form satisfactory to the Minister; provided, however, that such agreement shall not restrict the Divestiture Trustee from providing any information to the Minister.
- (m) The Minister may require the Divestiture Trustee and each of the Divestiture Trustee’s consultants, accountants, legal counsel, investment bankers, business brokers, appraisers, and other representatives and assistants to sign an appropriate confidentiality agreement relating to materials and information the Divestiture Trustee may receive from the Minister in connection with the performance of the Divestiture Trustee’s duties.
- (n) Notwithstanding any term of these Terms and Conditions, the rights, powers and duties of the Divestiture Trustee under these Terms and Conditions shall not expire until the Divestitures are completed.
APPENDIX 7 – APPROVAL OF DIVESTITURES
- Bunge, during the Initial Sale Period, or the Divestiture Trustee, during the Divestiture Trustee Sale Period, (the “Divestiture Applicant”) shall comply with the process in this Appendix 7 for seeking and obtaining a decision of the Minister regarding approval of a proposed Divestiture.
- (a) The Divestiture Applicant shall promptly:
- (i) inform the Minister of any negotiations with a prospective Purchaser that may lead to a Divestiture; and
- (ii) forward to the Minister copies of any agreement that is signed with a prospective Purchaser, including non-binding expressions of interest.
- (b) The Divestiture Applicant shall immediately notify the Minister that it intends to enter a Divestiture Agreement with a prospective Purchaser, or has entered into an agreement that, if approved by the Minister, will be a Divestiture Agreement within the meaning of these Terms and Conditions. If the Divestiture Applicant has entered into or intends to enter into more than one agreement in respect of the Divestiture Assets, the Divestiture Applicant shall identify the agreement in respect of which it seeks the Minister’s approval and the remainder of this Part shall apply only to that agreement unless the Divestiture Applicant designates a substitute agreement.
- (c) The notice described in paragraph 1(b) of this Appendix 7 shall be in writing and shall include: the identity of the proposed Purchaser; the details of the proposed Divestiture Agreement and any related agreements; and information concerning whether and how the proposed Purchaser would, in the view of the Divestiture Applicant, likely satisfy the approval terms contained in this Appendix 7 of these Terms and Conditions.
- (d) Within 14 days following receipt of the notice described in paragraph 1(b) of this Appendix 7, the Minister may request additional information concerning the proposed Divestiture from any or all of Bunge, the Monitor, the Hold Separate Manager, the prospective Purchaser and, in the Divestiture Trustee Sale Period, the Divestiture Trustee. These Persons shall each provide any additional information requested from them. When they have provided a complete response to the Minister’s request, these Persons shall comply with the following procedures:
- (i) the Divestiture Trustee shall provide written confirmation to the Minister that the Divestiture Trustee has provided to the Minister all additional information requested from the Divestiture Trustee;
- (ii) the Monitor shall provide written confirmation to the Minister that the Monitor has provided to the Minister all additional information requested from the Monitor;
- (iii) an officer or other duly authorized representative of Bunge shall certify that the additional information provided by Bunge in response to the Minister’s request has been examined and is, to the best of that individual’s knowledge and belief, correct and complete in all material respects;
- (iv) an officer or other duly authorized representative of the Hold Separate Manager shall certify that the additional information provided by the Hold Separate Manager in response to the Minister’s request has been examined and is, to the best of that individual’s knowledge and belief, correct and complete in all material respects; and
- (v) an officer or other duly authorized representative of the prospective Purchaser shall certify that the additional information provided by the prospective Purchaser in response to the Minister’s request has been examined and is, to the best of that individual’s knowledge and belief, correct and complete in all material respects.
- (e) The date on which the last of the Divestiture Trustee, the Monitor, Bunge, the Hold Separate Manager and the prospective Purchaser provides to the Minister a confirmation or certification required under this section is the “First Reference Date”.
- (f) Within 7 days after the First Reference Date, the Minister may request further additional information concerning a proposed Divestiture from any or all of the Persons identified in paragraph 1(b) of this Appendix 7. These Persons shall each provide any further additional information requested from them. When they have provided a complete response to the Minister’s request, if any, these Persons shall comply with the procedures outlined in paragraph 1(d) of this Appendix 7, in regard to the further additional information provided. The date on which the last of the Divestiture Trustee, Bunge, the Monitor, the Hold Separate Manager and the prospective Purchaser provides to the Minister a confirmation or certification required under this section is the “Second Reference Date”.
- (g) The Minister shall notify the Divestiture Applicant of the approval of, or the objection to, the proposed Divestiture as soon as possible, and in any event within 14 days after
- (i) the date on which the Minister receives the notice described in paragraph 1(b) of this Appendix 7;
- (ii) if the Minister requests any additional information under paragraph 1(d) of this Appendix 7, within 14 days after the First Reference Date; or
- (iii) if the Minister requests further additional information under paragraph 1(f) of this Appendix 7, within 14 days after the Second Reference Date.
- (h) The Minister’s determination as to whether to approve a proposed Divestiture shall be in writing.
- (a) The Divestiture Applicant shall promptly:
- It shall be a condition in any Divestiture Agreement (whether negotiated by Bunge or by the Divestiture Trustee) that Bunge shall, as a condition of closing, obtain any consents and waivers from Third Parties that are necessary to permit the assignment to, and assumption by, a Purchaser of all material contracts, approvals and authorizations relating to the Divestiture Assets; provided, however, that Bunge may satisfy this requirement by certifying that the Purchaser has executed agreements directly with one or more Third Parties which make such assignment and assumption unnecessary.
APPENDIX 8 – HOLD SEPARATE MANAGER
- Within 5 Business Days after the appointment of the Hold Separate Manager, Bunge shall submit to the Minister for approval the terms of a proposed Management Agreement with the Hold Separate Manager and the Minister that confers on the Hold Separate Manager all rights and powers necessary to permit the Hold Separate Manager to manage and operate the Divestiture Assets independently of Bunge during the Hold Separate Period in accordance with these Terms and Conditions.
- Within 5 Business Days after receipt of the proposed Management Agreement referred to in paragraph 1 of this Appendix 8, the Minister shall advise Bunge whether or not the Minister approves the terms of the proposed Management Agreement. If the Minister does not approve the terms of the proposed Management Agreement, the Minister shall prescribe alternative terms for the Management Agreement that Bunge shall incorporate into a final Management Agreement with the Hold Separate Manager and the Minister.
- Without limiting the Minister’s discretion to require additional terms, Bunge consents to the following terms and conditions regarding the Hold Separate Manager’s rights, powers and duties, and shall include such terms in the Management Agreement:
- (a) The Hold Separate Manager shall report solely and exclusively to the Monitor.
- (b) The Hold Separate Manager shall not have any involvement with, or receive any Confidential Information respecting, the businesses or assets of Bunge other than in respect of the Divestiture Assets.
- (c) Subject to the oversight of the Monitor, the Hold Separate Manager shall manage and maintain the operation of the Divestiture Assets independently and separately from Bunge, in the regular and ordinary course of business and in accordance with past practice and shall use commercially reasonable efforts to ensure the ongoing economic viability, marketability and competitiveness of the Divestiture Assets.
- (d) Without limiting the generality of paragraph 3(c) of this Appendix 8, the Hold Separate Manager shall:
- (i) maintain and hold the Divestiture Assets in good condition and repair, normal wear and tear excepted, and to standards at least equal to those that existed prior to the date of these Terms and Conditions;
- (ii) take all commercially reasonable steps to honour all customer and purchaser contracts and to maintain quality and service standards for customers of and suppliers to the Divestiture Assets at least equal to those that existed prior to the date of these Terms and Conditions;
- (iii) not knowingly take or allow to be taken any action that adversely affects the competitiveness, operations, financial status or value of the Divestiture Assets;
- (iv) not alter or cause to be altered, to any material extent, the management of the Divestiture Assets as it existed prior to the date of these Terms and Conditions, except with the prior approval of the Monitor;
- (v) not terminate or alter any employment, salary or benefit agreements, as they existed at the date of these Terms and Conditions, for Persons employed in connection with the Divestiture Assets, except with the prior approval of the Monitor;
- (vi) ensure that the Divestiture Assets are staffed with sufficient employees to ensure their viability and competitiveness, including by replacing any departing employees with other qualified employees subject to the prior approval of the Monitor; and
- (vii) maintain inventory levels and payment terms consistent with the practices of Viterra Canada that existed with respect to the Divestiture Assets prior to the date of these Terms and Conditions.
- (e) Bunge shall provide sufficient financial resources, including general funds, capital funds, working capital and reimbursement for any operating, capital or other losses, to permit the Hold Separate Manager to comply with its obligations under this Appendix 8. The Hold Separate Manager, subject to the prior approval of the Monitor, may request funds at any time, and Bunge shall comply with any such request. If the Monitor believes that Bunge has not provided, is not providing or will not provide sufficient financial and other resources under this section, the Monitor shall forthwith refer the matter to the Minister, who shall make a final determination respecting the financial and other resources that Bunge must provide. Bunge shall comply with any determination made by the Minister on this issue.
- (f) The Hold Separate Manager shall have no financial interests affected by Bunge’s revenues, profits or profit margins, except that Bunge shall provide to the Hold Separate Manager reasonable incentives to undertake this position. The Monitor shall determine the type and value of such incentives, which shall include continuation of all employee benefits, and such additional incentives as the Monitor determines may be necessary to assure the continuation and prevent any diminution of the viability, marketability and competitiveness of the Divestiture Assets.
- (g) In addition to those Persons employed in connection with the Divestiture Assets on the Closing Date, the Hold Separate Manager may employ such other Persons as the Monitor believes are necessary to assist the Hold Separate Manager in managing and operating the Divestiture Assets.
- (h) Subject to any legally recognized privilege, the Hold Separate Manager shall provide to the Monitor full and complete access to all personnel, Records, information (including Confidential Information) and facilities relevant to monitoring Bunge’s compliance with these Terms and Conditions.
- (i) The Hold Separate Manager shall fully and promptly respond to all requests from the Monitor and, subject to any legally recognized privilege, shall provide all information the Monitor may request.
- Bunge shall be responsible for all reasonable fees and expenses properly charged or incurred by the Hold Separate Manager in the course of carrying out the Hold Separate Manager’s duties under these Terms and Conditions. The Hold Separate Manager shall serve without bond or security and shall account for all fees and expenses incurred. Bunge shall pay all reasonable invoices submitted by the Hold Separate Manager within 30 days after receipt and, without limiting this obligation, Bunge shall comply with any agreement it reaches with the Hold Separate Manager regarding interest on late payments. In the event of any dispute:
- (a) such invoice shall be subject to the approval of the Minister; and
- (b) Bunge shall promptly pay any invoice approved by the Minister.
- Bunge shall indemnify the Hold Separate Manager and hold the Hold Separate Manager harmless against any losses, claims, damages, liabilities or expenses arising out of, or in connection with, the performance of the Hold Separate Manager’s duties, including all reasonable fees of counsel and other expenses incurred in connection with the preparation or defence of any claim, whether or not resulting in any liability, except to the extent that such losses, claims, damages, liabilities, or expenses result from malfeasance, gross negligence or bad faith by the Hold Separate Manager.
- If the Minister determines that the Hold Separate Manager has ceased to act or has failed to act diligently, the Minister may remove the Hold Separate Manager and appoint a substitute Hold Separate Manager. The provisions of the Terms and Conditions respecting the Hold Separate Manager shall apply in the same manner to any substitute Hold Separate Manager.
- Bunge and the Hold Separate Manager shall jointly implement, and at all times during the Hold Separate Period maintain in operation, a system, as approved by the Monitor in consultation with the Minister, of access and data controls to prevent unauthorized access to or dissemination of Confidential Information. The system shall include the following protocols:
- (a) The Monitor shall approve all proposed communications between the Hold Separate Manager and Bunge before such communications occur.
- (b) Those employees of Bunge who are not employed in connection with the operation of the Divestiture Assets (“Bunge Continuing Employees”) shall not receive, have access to or use any Confidential Information respecting the Divestiture Assets. If any Bunge Continuing Employee possesses Confidential Information respecting the Divestiture Assets as of the date of these Terms and Conditions, such Person shall, within 5 Business Days following appointment of the Hold Separate Manager,
- (i) deliver any Records containing such Confidential Information to the Hold Separate Manager (or, at the Hold Separate Manager’s option, destroy such Records) along with a signed statement confirming that the Person is no longer in possession of any Records containing Confidential Information respecting the Divestiture Assets; and
- (ii) submit to the Monitor a signed statement confirming that the Person undertakes not to share any Confidential Information respecting the Divestiture Assets with any of Bunge’s Continuing Employees.
- (c) Notwithstanding paragraph 7(b) of this Appendix 8, the Designated Shareholder Representatives may receive aggregate financial and operational information relating to the Divestiture Assets only to the extent necessary to comply with securities laws, prepare financial and regulatory reports, tax returns, administer employee benefits, defend litigation and comply with these Terms and Conditions. Any such information shall be:
- (i) reviewed by the Monitor prior to its receipt by any Designated Shareholder Representatives;
- (ii) maintained in a separate confidential file that is accessible only to the Designated Shareholder Representatives; and
- (iii) used only for the purposes set forth in this Appendix 8.
- (d) In relation to aggregate financial and operational information relating to the Divestiture Assets that the Designated Shareholder Representatives have obtained in accordance with paragraph 7(c) of this Appendix 8, a Designated Shareholder Representative may share such information with other members of Bunge who are not Designated Shareholder Representatives and who are not employees of Bunge Canada engaged in Grain origination or Grain marketing activities, only to the extent necessary for Bunge to comply with securities laws, prepare financial and regulatory reports, tax returns, administer employee benefits, defend litigation and comply with these Terms and Conditions, and such Bunge personnel who are not Designated Shareholder Representatives and who are not employees of Bunge Canada engaged in Grain origination or Grain marketing activities shall be permitted to receive and use such information for these identified purposes.
- (e) Neither the Hold Separate Manager nor any Hold Separate Employee shall receive, have access to or use any Confidential Information relating to the businesses or assets of Bunge other than the Divestiture Assets.