S.I. No. 93/1990 - Proposed Merger Or Take-Over Conditional Order, 1990.

S.I. No. 93 of 1990.

PROPOSED MERGER OR TAKE-OVER CONDITIONAL ORDER, 1990.

I, DESMOND O'MALLEY, Minister for Industry and Commerce, having considered the report of the Fair Trade Commission under section 8 (1) of the Mergers Take-overs and Monopolies (Control) Act, 1978 (No. 17 of 1978), as amended by the Restrictive Practices (Amendment) Act, 1987 (No. 31 of 1987), of its investigations of the proposed merger or take-over involving the following enterprises, that is to say, Anglo Irish Beef Processors Limited, now known as Anglo Irish Beef Processors, and the undertaking (including all plant, machinery and equipment) of Master Meat Packers (Bandon) Limited, being the proposed merger or take-over of which I was notified under section 5 of the first-mentioned Act on the 11th day of April, 1989, having complied with subsection (3) of section 9 of the said first-mentioned Act and thinking that the exigencies of the common good so warrant, hereby, in exercise of the powers conferred on me by the said section 9, as adapted by the Industry, Trade, Commerce and Tourism (Alteration of Name of Department and Title of Minister) Order, 1986 ( S.I. No. 41 of 1986 ), make the following Order:

1. This Order may be cited as the Proposed Merger or Take-over Conditional Order, 1990.

2. (1) In this Order, except where the context otherwise requires—

"AIBP" means Anglo Irish Beef Processors, formerly known as Anglo Irish Beef Processors Limited, and references to AIBP include references to—

( a ) any holding company of AIBP,

( b ) any subsidiary of any such holding company,

( c ) any subsidiary of AIBP,

( d ) any enterprise or person which or who is under common control with Anglo Irish Beef Processors or with a person specified in paragraph (a), (b) or (c) of this definition, and

( e ) any individual who owns shares in Anglo Irish Beef Processors or in a company mentioned in paragraph (a), (b), (c) or (d) of this definition;

"former assets", in relation to the Master Meat Packers Group, means the assets owned, controlled or made use of by the Master Meat Packers Group immediately before title to the shares in or assets of Master Meat Packers (Bandon) Limited passed under the take-over;

"holding company" and "subsidiary" have the meanings respectively assigned to them by the Companies Act, 1963 (No. 33 of 1963), and references to a holding company include references to a holding company of which the first-mentioned company is a subsidiary;

"the Master Meat Packers Group" means the following companies:

Mastertrade (Exports) Limited,

Mastertrade Limited,

Mastercut Meats Limited,

Master Meat Packers (Kilkenny) Limited,

Master Meat Packers (Longford) Limited

Master Meat Packers (Investments) Limited,

Master Meat Packers (Exports) Limited,

Master Meat Packers (Omagh) Limited,

Master Meat Packers (Clonmel) Limited,

Master Meat Cold Store Limited,

Mastercut Meat Packers Limited,

Master Meat Packers (UK) Limited;

and references to the Master Meat Packers Group include references to—

( a ) any holding company of the Master Meat Packers Group,

( b ) any subsidiary of any such holding company,

( c ) any subsidiary of the Master Meat Packers Group,

( d ) any enterprise or person which or who is under common control with a person specified in paragraph (a), (b) or (c) of this definition, and

( e ) any individual who owns shares in the Master Meat Packers Group or in any company specified in paragraph (a), (b), (c) or (d) of this definition;

"the take-over" means the proposed merger or take-over involving the following enterprises, that is to say, Anglo Irish Beef Processors Limited, now known as Anglo Irish Beef Processors, and the undertaking (including all plant, machinery and equipment) of Master Meat Packers (Bandon) Limited, of which the Minister was notified under section 5 of the Mergers, Take-overs and Monopolies (Control) Act, 1978 , (No. 17 of 1978), on the 11th day of April, 1989.

(2) ( a ) In this Order references to enterprises (whether named or not) being under common control include, in the case of companies, references to cases in which the same person owns shares in each company or is entitled, in the case of each company, to nominate a person for appointment as a director of the company.

( b ) In this Order references to the purchase of cattle are references to the purchase of cattle for slaughter for the purposes of the exportation of meat and meat products from the State.

( c ) Shares registered by the company concerned in the name of a person or in which a person has any beneficial interest or in relation to which he exercises or is entitled to exercise any control, or gives or is entitled to give any direction, respecting any voting rights attached to the shares shall be deemed for the purposes of this Order to be owned by the person.

3. The take-over is hereby prohibited except on the conditions specified in Article 5 of this Order.

4. The reasons for making the Order are that the Minister considers that—

( a ) if the take-over is effected without being subject to the conditions specified in Article 5 of this Order, competition in the purchase of cattle in the State could be so restricted as to operate against the common good,

( b ) if the take-over is effected subject to the said conditions it will not operate against the common good, and

( c ) it is necessary, having regard to the exigencies of the common good, to ensure that—

(i) effective competition in the purchase of cattle throughout the State is maintained,

(ii) the transactions referred to in Article 5 (b) of this Order are prohibited, and

(iii) the Master Meat Packers Group is not under common control with AIBP and that AIBP does not own, control or make use of any of the assets or former assets of the Master Meat Packers Group.

5. (1) The conditions referred to in Article 3 of this Order are that:

( a ) title to the shares in or assets of Master Meat Packers (Bandon) Limited shall not pass under the take-over until—

(i) the Master Meat Packers Group is disposed of as a going concern in such manner that it thereby ceases to be under common control with AIBP, and

(ii) AIBP does not own, control or make use of any the assets or former assets of the Master Meat Packers Group,

( b ) no agreement, arrangement or understanding that would prevent, restrict or distort competition in the purchase of cattle in the State shall be entered into either directly or indirectly between AIBP and any one or more of the following, that is to say, the Master Meat Packers Group, any enterprise that is under common control with the Master Meat Packers Group or a person who owns, controls or makes use of any of the assets or former assets of the Master Meat Packers Group,

( c ) after the passing of title to the shares in or the assets of Master Meat Packers (Bandon) Limited under the take-over, the Master Meat Packers Group shall not come under common control with AIBP and AIBP shall not acquire any of the shares or assets or former assets of the Master Meat Packers Group or own, control or make use of any of the assets or former assets of the Master Meat Packers Group, and

( d ) the take-over shall be effected within 12 months of the making of this Order.

(2) Paragraph (1) (b) of this Article does not apply in relation to the purchase or non-purchase of cattle by a person ( other than the Master Meat Packers Group or an enterprise that is under common control with the Master Meat Packers Group) who owns, controls or makes use of any of the assets or former assets of the Master Meat Packers Group if the cattle are not intended to be or (if the cattle were purchased) would not have been killed and any meat or meat products derived from them are not intended to be or (if the cattle were purchased) would not have been processed, prepared, frozen, marketed or distributed in or from any facilities that form part of those assets.

GIVEN under my Official Seal, this 11th day of April, 1990.

DESMOND O'MALLEY,

Minister for Industry and Commerce.

EXPLANATORY NOTE.

The effect of this Order is to prohibit the proposed merger or take-over involving Anglo-Irish Beef Processors and the undertaking of Master Meat Packers (Bandon) Ltd. except on certain conditions.

The Order is effective from the date of its signature but may be annulled by a Resolution of either House of the Oireachtas passed within 21 sitting days after it is laid before it