2001/432/EC: Commission Decision of 12 July 2000 declaring a concentration to be compatible with the common market and the functioning of the EEA Agreement (Case COMP/M. 1813 — Industri Kapital (Nordkem/Dyno) (Text with EEA relevance) (notified under document number C(2000) 1988)
Data as of 2026-07-04 · Compiled from an official source version. Later amendments or repeals may not be reflected; the official text prevails. · Read the official text ↗
The concentration notified by Industri Kapital on 24 January 2000, whereby Industri Kapital acquires all the shares in Dyno ASA, is hereby declared compatible with the common market and the functioning of the EEA Agreement, subject to the condition of full compliance with the undertakings given by Industri Kapital to the Commission and set out in the Annex.
This Decision is addressed to: Industri Kapital Birger Jarlsgatan 2 S - 114 34 Stockholm. Done at Brussels, 12 July 2000. For the Commission Mario Monti Member of the Commission (1) OJ L 395, 30.12.1989, p. 1; corrected version OJ L 257, 21.9.1990, p. 13. (2) OJ L 180, 9.7.1997, p. 1. (3) OJ C 166, 9.6.2001. (4) Parts of this text have been edited to ensure that confidential information is not disclosed; those parts are enclosed in square brackets and marked with an asterisk. (5) See also Commission Decision of 31 March 1993, Case IV/M.331 - Fletcher Challenge/Methanex. (6) Decision of 31 March 1993, Case No IV/M.331 - Fletcher Challenge/Methanex. (7) Decision of 8 March 1999, Case IV/M. 1349 - CVC Capital Partners/Dynoplast.
UNDERTAKINGS Industri Kapital NV, on its own behalf and on behalf of the group of companies ultimately controlled by it (hereinafter jointly referred to as Industri Kapital), hereby makes the following commitment (the Commitment) to the European Commission in order to obtain the Commission's clearance of Industri Kapital's (through Nordkem AS) notified public bid for the shares in Dyno ASA (the Concentration). Commitment to sell the formaldehyde and resins plant in Kitee or Hamina 1. Industri Kapital shall cause Dyno ASA (Dyno) to divest either the formaldehyde and resins plant in Kitee (the Kitee Business) or Neste Chemicals Oy to divest the formaldehyde and resins plant in Hamina (the Hamina Business) as an ongoing concern to a Suitable Purchaser as defined under point 4. 2. Industri Kapital will first seek to sell the Kitee Business during the period of time set out in point 9 (the Kitee Period) and will, failing such sale, sell the Hamina Business during an additional period of time set out in point 10 (the Hamina Period). 3. The Kitee Business or the Hamina Business will include personnel and existing assets (including non-exclusive licences and R & D facilities) necessary to continue the production and sale of formaldehyde as well as wood panel resins and impregnation resins in Kitee or Hamina, as the case may be. In the case of a divestiture of the Kitee Business, Industri Kapital shall cause Neste to offer, subject to third-party rights, the new owner of the Kitee Business a non-exclusive licence to use Neste recipes for the production of impregnation resins in Kitee. Such licence shall be granted on reasonable commercial terms which in case of disagreement shall be decided in arbitration between Neste and the new owner of the Kitee Business. 4. A Suitable Purchaser shall be a viable existing or prospective competitor independent of and unconnected with the merged entity with the ability to maintain and develop the Kitee Business or the Hamina Business as an active competitive force in the markets concerned. 5. The Suitable Purchaser shall be approved by the Commission prior to the signing of a final agreement of sale. 6. Within one week from the date of the Commission's decision to clear the Concentration, Industri Kapital shall appoint an independent trustee who shall be an investment bank or a similar institution (the Trustee). The Trustee shall be subject to approval by the Commission. 7. Immediately upon appointment of the Trustee, Industri Kapital shall give the Trustee a mandate whose terms shall have been previously agreed with the Commission and which will include the following functions: (i) monitoring the operation and management of the Kitee Business during the Kitee Period and the Hamina Business during the Hamina Period in order to report on its continued viability and marketability; (ii) monitoring the satisfactory discharge by Industri Kapital of its obligation to divest first the Kitee Business and the Hamina Business, as the case may be; (iii) execution of the sale of the Hamina Business in case such mandate is given to the Trustee pursuant to point 10 below; (iv) providing written reports every second month to the Commission, with copies to Industri Kapital, on the management and efforts to sell the Kitee Business and the Hamina Business; and (v) providing evidence to the Commission that the sale of the Kitee Business or the Hamina Business, as the case may be, has been finally completed. 8. Prior to and until completion of the sale of the Kitee Business and the Hamina Business, as the case may be, Industri Kapital undertakes to ensure that, during the Kitee Period the Kitee Business, and during the Hamina Period the Hamina Business, is held separate and managed as a distinct and saleable entity with its own management accounts. Industri Kapital further undertakes to ensure that the Kitee Business and the Hamina Business, as the case may be, has its own management, separate and distinct from that of the merged entity and supervised by the Trustee. The management, under the guidance and control of the Trustee, shall be under instruction to manage the Kitee Business and the Hamina Business, as the case may be, on an independent basis in order to ensure its continued viability, market value and independence. In addition, Industri Kapital undertakes to ensure that no structural changes shall be made to the Kitee Business during the Kitee Period or the Hamina Business during both the Kitee Period and the Hamina Period without the prior approval of the Commission. 9. Industri Kapital shall have signed a binding agreement of sale of the Kitee Business (subject to due diligence as well as regulatory and other approvals) with a Suitable Purchaser within [...] months from the date of the Commission's decision to clear the Concentration. This period of time is referred to as the Kitee Period. 10. If Industri Kapital is not able to fulfil its undertaking to divest the Kitee Business by the end of the time period set out in point 9, it shall give the Trustee an irrevocable power of attorney to sell the Hamina Business to a Suitable Purchaser [...] within an additional period of [...] months (i.e. within [...] months from the date of the Commission's decision to clear the Concentration). The period of time running from the end of the Kitee Period until the end of the additional period set out herein is referred to as the Hamina Period. Commitment to sell the shares in Polimoon Group Ltd 11. Industri Kapital undertakes to cause Dyno to sell its shares (the Shares) in Polimoon Group Ltd (Polimoon) to a purchaser independent of Industri Kapital (the Share Purchaser). 12. The Share Purchaser shall be approved by the Commission prior to the signing of a final agreement of sale. 13. Within one week from the date of the Commission's decision to clear the Concentration, Industri Kapital shall propose an investment bank or a similar institution (the Share Trustee) with whom the share certificates in respect of the Shares shall be deposited pending divestiture of the Shares. The Share Trustee shall be subject to approval by the Commission. 14. The share certificates in respect of the Shares shall be deposited with the Share Trustee within one week from the Commission's approval of the Share Trustee, with an irrevocable instruction: (i) not to consult with or seek or take any instructions from Industri Kapital in relation to the exercise of any right pertaining to the Shares; (ii) not to provide any privileged information to Industri Kapital which the Share Trustee has obtained by virtue of the Shares; (iii) to appoint, on behalf of Dyno but at its sole discretion, a director of the board of Polimoon which director shall not be an owner or in the employ of Industri Kapital or part of its management; (iv) to deliver the share certificates in respect of the Shares to the Share Purchaser when advised by Industri Kapital that the Shares have been sold. 15. Industri Kapital shall, within one week from the date of the Commission's decision to clear the Concentration, cause Dyno's nominated director to resign from his current board directorship in Polimoon. Industri Kapital shall thereafter refrain from giving any instructions to any member of the board of directors or the management of Polimoon or otherwise exercising any right by virtue of the Shares or the shareholders agreement pertaining to the Shares. 16. Industri Kapital shall have signed a binding agreement for the sale of all the Shares to the Share Purchaser within [...] from the date of the Commission's decision to clear the Concentration. 17. The Share Trustee shall be instructed by Industri Kapital to immediately confirm in writing to the Commission that the share certificates in respect of the Shares have been deposited with it and shall thereby provide the Commission with a copy of the instructions by Industri Kapital pursuant to point 15 above. The Share Trustee shall report in writing to the Commission when the Shares have been finally divested. 18. Industri Kapital shall be released from this commitment in relation to the Shares in case Industri Kapital divests its complete holding in Arca Systems AB to a buyer independent of Industri Kapital. Such release shall be subject to the prior approval of the Commission. Miscellaneous 19. The Trustee and the Share Trustee may be the same institution subject to the Commission's approval. 20. Industri Kapital shall pay reasonable remuneration to the Trustee and the Share Trustee for their services. 21. Industri Kapital shall ensure that the Trustee and the Share Trustee are given all information and assistance they may reasonably require in order to carry out their mandates. 22. Industri Kapital, or alternatively the Trustee and/or the Share Trustee, shall provide the Commission with a fully documented and reasoned proposal pursuant to points 5, 12 and/or 18 enabling the Commission to assess: (i) whether the prospective purchaser satisfies the relevant purchase criteria; (ii) the envisaged time of completion of the divestiture; and (iii) whether the purchaser has, or reasonably can be expected to obtain, all necessary approvals from the competent regulatory bodies. Prior to approval, the Commission may request to meet the prospective purchaser and, if deemed necessary, ask for the submission of a business plan for the Kitee Business or the Hamina Business, as the case may be. 23. If the Commission has not within two weeks following receipt of a fully documented proposal for a prospective purchaser expressed in writing its disagreement, negotiations with such a party as a valid purchaser shall be free to proceed. In the case that the Commission has to request additional information, the receipt of such information shall constitute the starting point for the two weeks referred to.
Source: EUR-Lex (Publications Office of the EU), © European Union, reuse permitted under Commission Decision 2011/833/EU.