parmalat s.p.a. · exportação de laticinios ltda, with registered office at 2012 faria lima, in...
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Courtesy Translation
PARMALAT S.P.A.
INFORMATION MEMORANDUM
REGARDING
THE IMPLEMENTATION OF THE MECHANISM
TO ADJUST THE PURCHASE PRICE OF
LACTALIS AMERICAN GROUP, INC.
Prepared pursuant to Article 5 of the Regulations adopted by the Consob with Resolution No.
17221 of March 12, 2010, as amended by Resolution No. 17389 of June 23, 2010.
June 2013
This Information Memorandum has been made available to the public at the registered office of
Parmalat S.p.A. (4 Via delle Nazioni Unite, Collecchio, Parma) and on the website of Parmalat
S.p.A. (www.parmalat.com).
CONTENTS
DEFINITIONS ................................................................................................................................................................ 3
INTRODUCTION .......................................................................................................................................................... 9
1. DISCLAIMER .................................................................................................................................................. 14
1.1 RISKS RELATED TO POTENTIAL CONFLICTS OF INTEREST ARISING FROM THE RELATED‐PARTY TRANSACTION
14 1.2 PENDING PROCEEDINGS ..................................................................................................................................... 15
2. INFORMATION ABOUT THE TRANSACTION .................................................................................... 16
2.1 OVERVIEW OF THE TRANSACTION’S CHARACTERISTICS, MODALITIES, TERMS AND CONDITIONS ................... 16 2.2 DESCRIPTION OF THE RELATED PARTIES WITH WHOM THE TRANSACTION WAS EXECUTED, THE NATURE OF
THE RELATIONSHIP AND THE NATURE AND SCOPE OF THE INTEREST OF THE ABOVEMENTIONED PARTIES IN
THE TRANSACTION ............................................................................................................................................ 23 2.3 DESCRIPTION OF THE ECONOMIC MOTIVATIONS FOR THE TRANSACTION AND OF ITS BENEFITS FOR
PARMALAT ......................................................................................................................................................... 24 2.4 METHODS FOR DETERMINING THE CONSIDERATION AND ASSESSMENT OF ITS FAIRNESS COMPARED WITH
MARKET VALUES FOR SIMILAR TRANSACTIONS ............................................................................................... 25 2.5 EFFECTS OF THE TRANSACTION ON THE FINANCIAL POSITION, INCOME STATEMENT AND CASH FLOW ...... 30 2.6 IMPACT OF THE TRANSACTION ON THE COMPENSATION OF THE MEMBERS OF THE MANAGEMENT ENTITIES
OF THE COMPANY AND/OR ITS SUBSIDIARIES .................................................................................................... 31 2.7 LISTING OF ANY MEMBERS OF THE MANAGEMENT AND CONTROL ENTITIES, GENERAL MANAGERS AND
EXECUTIVES OF THE COMPANY INVOLVED IN THE TRANSACTION ................................................................... 31 2.8 TRANSACTION APPROVAL PROCESS .................................................................................................................... 34 2.9 IF, PURSUANT TO ARTICLE 5, SECTION 2, OF THE RELATED‐PARTY REGULATIONS, THE MATERIALITY OF THE
TRANSACTION DERIVES FROM THE AGGREGATION OF MULTIPLE TRANSACTIONS EXECUTED DURING THE
YEAR WITH THE SAME RELATED PARTY OR WITH PARTIES RELATED TO IT OR TO THE COMPANY, THE
INFORMATION PROVIDED IN THE PRECEDING SECTIONS OF THIS MEMORANDUM MUST BE PROVIDED FOR ALL
OF THE ABOVEMENTIONED TRANSACTIONS. ..................................................................................................... 36
3. ANNEXES ........................................................................................................................................................ 37
3.1 LIST OF DOCUMENTS RELATED TO THE LAG ACQUISITION PUBLISHED ON THE PARMALAT WEBSITE
(WWW.PARMALAT.COM): ................................................................................................................................... 37 3.2 OPINION OF THE COMMITTEE FOR RELATED‐PARTY TRANSACTIONS DATED MAY 30, 2013 .......................... 37
3
DEFINITIONS
A list of the main terms used in this Information Memorandum is provided below.
“Acquired Companies” LAG and its subsidiaries, as listed in the
Introduction to the Information Memorandum,
Lactalis Brazil and Lactalis Mexico.
“Acquisition” The purchase of the Equity Stakes by Parmalat
through LAG Holding, Parmalat Belgium and
Dalmata.
“BSA” B.S.A. S.A., with registered office at 33 avenue
du Maine – Tour Maine‐Montparnasse, (75015)
Paris (France), entered into the Paris (France)
Registre du Commerce et des Sociétés under
Identification No. 557 350 253 R.C.S. Paris.
“BSA International” B.S.A. International S.A., with registered office
at 5 Place du Champ de Mars – boite 20 (1050)
Brussels (Belgium), entered into the Brussels
(Belgium) Registre des Personnes Morales under
Identification No. 443.205.173 RPM Bruxelles.
“Buyer” or “LAG Holding” LAG Holding Inc., with registered office at 1209
Orange Street, Wilmington, Delaware (USA),
Employer Identification No. 45‐5524252, a
subsidiary wholly owned by Parmalat, through
Parmalat Belgium, which Parmalat designated
as the buyer of the LAG Shares pursuant to
Article 2.5 of the Share Purchase Agreement.
“Closing” The implementation of the Acquisition, through
the transfer of title to the Equity Stakes and
payment of the Provisional Price, subject to the
concurrent signing of the Commercial
Agreements.
“Closing Date” July 3, 2012.
“Commercial Agreements” The following agreements executed on the
Closing Date:
(a) Distribution agreement between LEA, a
newly established wholly owned
4
subsidiary of LAG, and BSA
(Distribution Agreement), by virtue of
which LEA acquired the right to
distribute, on an exclusive basis and
with the option to appoint
subdistributors, the Lactalis Group
products (excluding the Parmalat
Group) in the Western Hemisphere for a
period of 20 years, extendible for
additional periods of 5 years each.
(b) Licensing agreement between LAG and
Egidio Galbani (License Agreement), by
virtue of which LAG acquired the right
to use, on an exclusive basis and with a
sublicensing option, the “Galbani”
trademarks for the production and sale
of dairy products in the Western
Hemisphere for a period with a term of
20 years, extendible for additional
periods of 5 years each.
(c) Licensing agreement between LAG and
BSA (License Agreement), by virtue of
which LAG acquired the right to use, on
an exclusive basis and with a
sublicensing option, the “Président”
trademarks for the production and sale
of dairy products in the Western
Hemisphere for a period with a term of
20 years, extendible for additional
periods of 5 years each.
(d) Sub‐distribution agreement between
LEA and Lactalis Brazil (Sub‐
distribution Agreement), by virtue of
which LEA appointed Lactalis Brazil as
the exclusive distributor of the Lactalis
Group products (excluding the Parmalat
Group) in Brazil, based on terms and
conditions substantively equivalent to
those of the Distribution Agreement
referred to sub (a) above.
(e) Sub‐distribution agreement between
LEA and Lactalis Mexico (Sub‐
distribution Agreement), by virtue of
which LEA appointed Lactalis Mexico as
5
the exclusive distributor of the Lactalis
Group products (excluding the Parmalat
Group) in Mexico, based on terms and
conditions substantively equivalent to
those of the Distribution Agreement
referred to sub (a) above.
“Consob” The National Commission for Companies and
the Securities Markets, with registered office at
3 Via G.B. Martini, in Rome.
“Dalmata” Dalmata S.p.A. with registered office in Via
delle Nazioni Unite, Collecchio (PR) – VAT No.
0202341034 – Tax I.D. and Parma Company
Register No. 01967970235 (REA 204775), a
wholly owned subsidiary of Parmalat,
designated by Parmalat as the buyer of equity
stakes representing 0.01% of the share capital of
Lactalis Brazil and 0.02% of the share capital of
Lactalis Mexico, pursuant to Article 2.5 of the
Share Purchase Agreement.
“Distribution Agreement” The distribution agreement executed on the
closing date by LEA and BSA, described more
in detail sub (a) within the definition of the
Commercial Agreements.
“Equity Stakes” The LAG Shares and the equity stakes
corresponding, in the aggregate, to the entire
equity capital of Lactalis Brazil and Lactalis
Mexico.
“Final Price” The total consideration paid by LAG Holding to
buy the Equity Stakes based on the enterprise
value, determined, after the Price Adjustment,
as amounting to USD 774 million.
“Groupe Lactalis” Groupe Lactalis S.A., with registered office at 10
rue Adolphe Beck, (53000) Laval (France),
entered into the Laval (France) Registre du
Commerce et des Sociétés under Identification No.
331 142 554 R.C.S. Laval.
“Information Memorandum” This information memorandum.
“Issuer,” “Parmalat” or “Company” Parmalat S.p.A., with registered office at 4 Via
6
delle Nazioni Unite, in Collecchio (Parma), Tax
I.D. and Parma Company Register No.
04030970968.
“Issuers’ Regulations” The Regulations adopted by the Consob with
Resolution No. 11971 of May 14, 1999, as
amended.
“Lactalis Brazil” Lactalis do Brazil, ‐ Comercio, Importação e
Exportação de Laticinios Ltda, with registered
office at 2012 Faria Lima, in São Paulo (Brazil).
“Lactalis Group” The group of companies comprised of BSA and
its direct and indirect subsidiaries.
“Lactalis Mexico” Lactalis Alimentos Mexico Sociedad de
Responsabilitad Limitada, with registered office
at 104 Protasio Tagle, San Miguel Chapultepec
11850, México City (Mexico).
“LAG Group” The group of companies comprised of LAG and
it direct and indirect subsidiaries, as listed in
the Introduction to the Information
Memorandum.
“LAG Shares” The 10,000 common shares (Common Stock),
without par value, and the 1,400 Series A
Preferred Shares (Series A Preferred Stock), par
value USD 100,000 each, representing in the
aggregate LAG’s entire share capital.
“LAG” Lactalis American Group, Inc., with head office
at 2376 South Park Avenue, Buffalo, NY 14220
(USA), Employer Identification No. 39‐1429105.
“LEA” Lactalis Export Americas SAS, with registered
office at 16 Avenue Jean Jaurès – Immeuble Orix
(94600) Choisy Le Roi (France), entered into the
Creteil (France) Registre du Commerce et des
Sociétés under Identification No. 751 701 756
R.C.S. Creteil.
“Parmalat Belgium” Parmalat Belgium S.A., with registered office in
Brussels (Belgium), Bastion Tower, Place du
Champ de Mars 5 boîte 20, 1050, Numéro
dʹentreprise 0463.897.154, a wholly owned
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subsidiary of Parmalat, directly and through
Dalmata, designated by Parmalat as the buyer
of equity stakes representing 99.99% of the
share capital of Lactalis Brazil and 99.98% of the
share capital of Lactalis Mexico, pursuant to
Article 2.5 of the Share Purchase Agreement.
“Parmalat Group” Parmalat and its subsidiaries, in accordance
with Article 93 of the TUF.
“Price Adjustment” The procedure governed by Article 2.3 of the
Share Purchase Agreement or, depending on
the context, the amount of USD 130 million
owed by BSA to the Buyer as an adjustment to
the price of the Equity Stakes upon completion
of the abovementioned procedure.
“Provisional Price” The amount of USD 904 million paid by the
Buyer to the Sellers on the Closing Date.
“Related‐party Committee” or “Committee” Parmalat’s Committee for Related‐party
Transactions, comprised, as of April 11, 2013 of
the independent Directors Gabriella Chersicla
(Chairperson), Antonio Aristide Mastrangelo
and Riccardo Zingales; before that date the
function of this Committee was performed by
the Internal Control and Corporate Governance
Committee.
“Related‐party Procedure” or “Procedure” The Procedure Governing Transactions with
Related Parties approved by Parmalat’s Board
of Directors on November 11, 2010.
“Related‐party Regulations” The Regulations setting forth provisions
governing related‐party transactions adopted
by the Consob with Resolution No. 17221 of
March 12, 2010, as amended.
“Sellers” BSA, BSA International and Groupe Lactalis.
“Share Purchase Agreement” or “Agreement” The agreement for the sale of the Equity Stakes
(Share Purchase Agreement) executed on May
29, 2012 by Parmalat, as buyer, and BSA, BSA
International and Groupe Lactalis, as sellers.
8
“Transaction” The transaction described in this Information
Memorandum, the subject of which is the Price
Adjustment
“Uniform Financial Code” or “TUF”
(for its abbreviation in Italian)
Legislative Decree No. 58 of February 24, 1998,
as amended.
9
INTRODUCTION
This Information Memorandum (the “Information Memorandum”) was prepared by Parmalat
S.p.A. (the “Issuer,” “Parmalat” or the “Company”) pursuant to Article 5 of the Regulations
governing related‐party transactions, adopted by the Consob with Resolution No. 17221 of March
12, 2010, as amended (the “Related‐party Regulations”), and Article 9 of the Procedure Governing
Transactions with Related Parties approved by Parmalat’s Board of Directors on November 11,
2010 (the “Related‐party Procedure” or the “Procedure”).
This Information Memorandum was prepared to provide shareholders and the market with
exhaustive information about the outcome of the implementation of the price adjustment
procedure, in accordance with the provisions of the contract for the purchase of Equity Stakes (as
defined infra) executed on May 29, 2012 by Parmalat, in its capacity as buyer, and BSA S.A.
(“BSA”), BSA International S.A. (“BSA International”) and Groupe Lactalis S.A. (“Groupe
Lactalis”), in their capacity as sellers (the “Share Purchase Agreement” of the “Agreement”).
The abovementioned procedure (the “Transaction”) represents the fulfillment of the final
requirement for determining the final price of the acquisition (the “Acquisition”), by the Issuer
through its wholly owned subsidiaries identified infra, of the equity stakes (the “Equity Stakes”)
representing the entire share capital of Lactalis American Group, Inc. (“LAG”) and the equity
stakes representing the entire share capital of Lactalis do Brazil ‐ Comercio, Importação e
Exportação de Laticinios Ltda (“Lactalis Brazil”) and Lactalis Alimentos Mexico S. DE RL
(“Lactalis Mexico” and, collectively with LAG and Lactalis Brazil, the “Acquired Companies”).
Specifically, the Acquisition concerns:
(i) 10,000 common shares (Common Stock), without par value, and 1,400 Series A Preferred
Shares (Series A Preferred Stock), par value USD 100,000 each, representing in the
aggregate LAG’s entire share capital (the “LAG Shares”);
(ii) the equity stakes representing the entire share capital of Lactalis Brazil; and
(iii) the equity stakes representing the entire share capital of Lactalis Mexico.
In accordance with the provisions of the Share Purchase Agreement, the transfer of title to the
Equity Stakes and the payment of the Provisional Price (as defined infra), conditional on the
concurrent execution of the Commercial Agreements (the “Closing”), took place on July 3, 2012
(the “Closing Date”).
Prior to the Closing Date, availing itself of the option provided under Article 2.5 of the Share
Purchase Agreement, Parmalat designated its subsidiary LAG Holding, Inc. (“LAG Holding”) as
the buyer of the LAG Shares and the subsidiaries Parmalat Belgium S.A. (“Parmalat Belgium”)
and Dalmata S.r.l. (“Dalmata”) as the buyers of the equity stakes representing the entire share
capital of Lactalis Brazil and Lactalis Mexico.
10
A chart showing LAG’s chain of control and the structure of the group of companies headed by
LAG (the “LAG Group”) subsequent to the acquisition is provided below:
LAG is a holding company that heads a group of companies engaged in the production and
distribution of cheese and other dairy products. These companies, which have about 1,700
employees, are active mainly in the United States, selling to distributors, club stores, supermarket
chains and producers. In 2012, the Acquired Companies generated revenues of about USD 973
million.
The Acquisition was carried out to achieve two strategic objectives: broaden the presence of the
Parmalat Group to geographic regions where it does not currently operate, such as the United
States, Brazil and Mexico, and increase within its product portfolio the weight of items with a
higher value added. The Transaction provides Parmalat with access to the most important dairy
market at the international level, that of the United State, through an operators such as LAG,
which, over the past ten years, has shown an ability to generate strong growth in revenues and
profitability and has already launched an interesting strategy to speed up its growth rate.
Insofar as increasing the weight of products with a greater value added is concerned, please note
that LAG operates in the lucrative soft cheese and fresh cheese segments, products that are
currently largely absent from Parmalat’s portfolio. The Acquisition will enable the Parmalat Group
to provide other Group companies, the Parmalat Canada, Inc. subsidiary in particular, with
important manufacturing, sales and distribution knowhow.
11
The Acquisition will also improve the Group’s position in Latin America, expanding its presence
to new markets, such as Mexico and Brazil, and opening the Venezuelan and Colombian markets,
where Parmalat is already present, to LAG’s products. Moreover, the distribution agreement
signed on the Closing Date by LEA and BSA (the “Distribution Agreement”) will significantly
broaden the Group’s presence in the countries of Central and South America, where the cheese
market is projected to enjoy high growth rates.
Pursuant to the Share Purchase Agreement, the total consideration owed for the Equity Stakes was
agreed to for an amount equal to the algebraic sum of (i) the Enterprise Value of the Acquired
Companies at the close of the 2012 reporting year and (ii) their net financial position (cash and cash
equivalents) at the end‐of‐month date closest to the Closing Date (hence, June 30, 2012).
The Enterprise Value of the Acquired Companies was estimated on a preliminary basis at USD 904
million, which corresponds to the amount provisionally paid by the Buyer on the Closing Date (the
“Provisional Price”), based on the assumption that the EBITDA1 of the Acquired Companies for
the 2012 reporting year would amount to USD 95.2 million. Therefore, the Provisional Price
reflected an EBITDA multiple of 9.5.
The Share Purchase Agreement provides a price adjustment a mechanism in order to allow a
determination of the Final Price of the Equity Stakes based on the results actually reported by the
Acquired Companies at the close of the 2012 reporting year, with the price amount ranging
between a cap of USD 960 million and a floor of 760 million.
The Agreement also requires that the Final Price of the Equity Stakes be determined based on data
presented in audited financial statements and further to negotiations between the parties, and that,
should no agreement be reached upon the conclusion of the negotiations, the price determination
would be left to an independent auditing firm, serving as Arbitrator, pursuant to and for the
purposes of Articles 1349 and 1473 of the Italian Civil Code, all of the above in accordance with the
procedure described in greater detail in Section 2.1 of this Information Memorandum.
For the purposes of the clauses governing the determination of the final price of the Equity Stakes,
Article 2.2.5 of the Share Purchase Agreement stipulated that marketing expenses (which are a
component of the EBITDA computation that, by its very nature, is highly discretionary) would be
carried out in accordance with the business plan of the Acquired Companies or, in any case, “in
the ordinary course of business” and “in accordance with best management practices.” As a result,
any variance in these expenses compared with the business plan that could not be justified in
accordance with the abovementioned criteria of ordinary business and consistency with best
management practices would authorize Parmalat to obtain a price reduction.
In accordance with the provisions of the Share Purchase Agreement, in order to secure the
payment of any amount that may be due to the Buyer as a Price Adjustment, on the Closing Date,
BSA Finances gave to Société Générale, in its capacity as paying agent, an irrevocable mandate to
use for that purpose the Revolving Loan Facility provided to BSA Finances on April 25, 2011 by a
pool of banks headed by Société Générale (the “Irrevocable Mandate”).
1 Pursuant to the Share Purchase Agreement, the EBITDA of the Acquired Companies for the 2012 reporting year was
defined as the sum of the following line items in the Price Revision Financial Statements (as defined infra):
EBIT
+ Depreciation, amortization and writedowns of non‐current assets,
– Non‐recurring and extraordinary income (expense).
12
Moreover, the Share Purchase Agreement provides ample representations and warranties in favor
of the Buyer, supported by compensation obligations with no restriction as to their amount. More
specifically, in addition to the warranties that are customary for transactions of this type, the Seller
provided express warranties for the historical and projected data supplied to Parmalat within the
framework of the due diligence process. By virtue of said warranties, should the information
obtained as part of the due diligence process prove to be untrue, incorrect or incomplete or if the
projected data supplied by the Sellers should prove not to have been based on reasonable
assumptions and/or not developed consistent with the underlying assumptions, the Buyer shall be
entitled to compensation without any limitation, for the full amount of the damage it may have
incurred. These warranties shall expire within five years from the Closing Date.
On September 25, 2012, Parmalat’s Board of Directors met to review the certified semiannual
results of the acquired companies for the first half of 2012. More specifically, it was informed that
the net financial position amounting to USD 53.2 million at June 30, 2012 was identified as an
addition to the Provisional Price of USD 904 million paid pursuant to the Share Purchase
Agreement. The amount of the net financial position was paid on October 19, 2012, within the
deadline required under the Share Purchase Agreement.
The amount paid by the Buyer, before Price Adjustment, thus totaled USD 957.2 million, equal to
750.3 million euros.
Parmalat’s Committee for Related‐party Transactions (the “Related‐party Committee” or the
“Committee”) and its Board of Directors, seeking to comply with the deadlines of the Share
Purchase Agreement and considering that the first formal compliance obligation of the Sellers
under the Agreement was the delivery of the Price Adjustment Certificate by March 1, 2013, began
in November 2012 the preparatory activities required for Price Adjustment purposes.
These activities included retaining the services of independent third parties, as described more in
detail infra, which enabled the Committee and Parmalat’s Board of Directors to adopt the
necessary resolutions, comforted by and based on the analyses performed and the opinions
rendered by (i) the Transactional Services Group of PricewaterhouseCoopers following an audit of
the EBITDA of the Acquired Companies at December 30, 2012, performed for normalization
purposes and/or to identify any nonrecurring, not applicable or non‐operating items with an
impact on the profitability of the Acquired Companies, and the analyses of marketing expenses
and any variances compared with the business plan of the Acquired Companies; (ii) the Panel of
Experts, whose members (Mario Cattaneo, Paolo Andrei and Marco Ziliotti), relying on the
contribution of Luca Pellegrini for marketing issues, considered whether or not the negative
variance in marketing expenses compared with the business plan of the Acquired Company could
be viewed as having occurred in the “ordinary course of business” and “in accordance with best
management practices;” and (iii) Guido Rossi and Giorgio De Nova (the latter retained by the
Board of Statutory Auditors) with regard to the interpretation of the clause set forth in Article 2.25
of the Share Purchase Agreement and its effectiveness in protecting the Company’s interest.
Additional information about the Acquisition is available in the information memorandum for the
13
acquisition of LAG and the corresponding Addendum published by the Issuer on May 29, 2012
and June 27, 2012, respectively, both available on Parmalat’s website (www.parmalat.com).
14
1. DISCLAIMER
A description of the main risks and uncertainties inherent in the Transaction is provided
below, with special emphasis on those related to its status as a related‐party transaction
and those that could have a material impact on the Issuer’s activities.
The content of this Disclaimer should be read in conjunction with the other information
provided in this Information Memorandum.
1.1 Risks related to potential conflicts of interest arising from the Related‐party Transaction
The Transaction qualifies as a related‐party transaction executed through a subsidiary
because:
1. Parmalat is controlled by BSA, which, pursuant to the Share Purchase Agreement,
sold the LAG Shares and is required to pay the amount owed as Price Adjustment;
2. LAG Holding, which, pursuant to the Share Purchase Agreement, was designated
by Parmalat as the buyer of the LAG Shares and is the party entitled to receive the
amount owed as Price Adjustment, is indirectly controlled by Parmalat through
Parmalat Belgium. More specifically:
(i) the Issuer owns the entire share capital of Parmalat Belgium (99% directly and
the remaining 1% indirectly through Dalmata, a wholly owned subsidiary); and
(ii) Parmalat Belgium owns the entire share capital of LAG Holding.
The Transaction’s risk profiles arising from the presence of potential conflicts of interest
have to do with the possibility that the Transaction may entail terms different from those
that would have been applies in an arm’s length transaction.
In this regard, it is worth mentioning that the Related‐party Committee—which constitutes
the committee of independent Directors who are not related parties qualified to render a
reasoned opinion on the Company’s interest in executing the Transaction and the benefits
and substantive fairness of the Transaction’s terms, in accordance with the Procedure
Governing Transactions with Related Parties approved by Parmalat’s Board of Directors on
November 11, 2010 (the “Related‐party Procedure” or the “Procedure”)—was promptly
informed, pursuant to Article 5 of the abovementioned Procedure, of the Transaction’s
terms and conditions and was actively involved in the preparatory phase and negotiation
phase through the delivery of a complete and timely flow of information and its
participation in the negotiations. The Related‐party Committee then agreed by majority
vote to render a favorable reasoned opinion, with Director Mastrangelo voting against the
resolution for the reasons stated below in Section 2.3 of this Information Memorandum.
The abovementioned opinion is appended to this Information Memorandum as Annex
“3.2.”
Pursuant to Article 6.1.2 of the Related‐party Procedure, the Committee relied on the
support of a panel of three independent experts, namely Mario Cattaneo, Paolo Andrei and
Marco Ziliotti (the “Panel of Experts”), tasked with performing verifications concerning
the variances that occurred between marketing expenses actually incurred in 2012 and
15
those defined in the business plan of the Acquired Companies, in accordance with the
provisions of the Share Purchase Agreement.
Please note that the Director Daniel Jaouen is an officer of Lactalis Group companies.
Consequently, at the meeting held by Parmalat’s Board of Directors on May 10, 2013, when
it approved the Notice of Disagreement as defined infra, and on May 30, 2013, when it
approved the mutually agreeable determination of the Price Adjustment, he disclosed any
interest that he may have in the Transaction, directly or on behalf of third parties, by virtue
of the abovementioned posts he held, specifying the type, terms, origin and scope of said
interest, thereby providing the disclosures required pursuant to Article 2391 of the Italian
Civil Code.
Lastly, please note that the Parmalat Director Antonio Sala, who is an officer of Lactalis
Group companies, did not attend the Board meetings of May 10 and May 30, 2013, in
compliance with the order issued by the Court of Parma on March 28, 2013.
1.2 Pending proceedings
On October 8, 2012, Parmalat received a copy a notice that the Court of Parma, granting a
motion by the Public Prosecutor at the same court, activated proceedings pursuant to
Article 2409 of the Italian Civil Code, targeting the Issuer further to a complaint filed by
Amber Capital L.P., a Parmalat shareholder, concerning alleged management irregularities,
specifically with regard to the LAG acquisition. Additional information about this issue is
provided below in Section 2.7 of this Information Memorandum
In addition, the Public Prosecutor of the Court of Parma launched an investigation in
connection with the LAG acquisition. On December 11, 2012, the Chairman, the Chief
Executive Officer, the Chief Operating Officer and the some Directors were served notice
that they were the target of an investigation regarding the crime of aggravated
embezzlement. On the same day, the Parma and Bologna Tax Enforcement Units of the
Revenue Police executed, at the request of the Public Prosecutor of the Court of Parma,
search warrants at the Company’s offices aimed at securing documents concerning the
LAG acquisition.
On November 5, 2012, the Consob informed the members of Parmalat’s Board of Statutory
Auditors in office at that time that it had activated administrative proceedings charging
them with violating their oversight obligation pursuant to Article 149, Section 1, Letter a),
of the TUF, with regard to the correct implementation, within the context of the
Acquisition, of the rules governing related‐party transactions set forth in Article 2391‐bis of
the Italian Civil Code and the Related‐Party Regulations. As of the date of this Information
Memorandum, no action has been taken against Parmalat’s Statutory Auditors and the
Company is waiting for new developments by the Consob in connection with the
abovementioned administrative proceedings.
16
2. INFORMATION ABOUT THE TRANSACTION
2.1 Overview of the Transaction’s characteristics, modalities, terms and conditions
Provisional Price
As stated in the Introduction, pursuant to the Share Purchase Agreement, the total
consideration owed for the Equity Stakes was agreed to for an amount equal to the
algebraic sum of (i) the Enterprise Value of the Acquired Companies at the close of the 2012
reporting year and (ii) their net financial position (cash and cash equivalents) at the end‐of‐
month date closest to the Closing Date (hence, June 30, 2012).
The Enterprise Value of the Acquired Companies was estimated on a preliminary basis as
amounting to USD 904 million, which corresponds to the Provisional Price, based on the
assumption that the EBITDA of the Acquired Companies for the 2012 reporting year would
amount to USD 95.2 million.2
Therefore, the Provisional Price reflected an EBITDA multiple of 9.5.
Pursuant to the Share Purchase Agreement, the net financial position of the Acquired
Companies was computed based on the data shown in the combined financial statements
of the Acquired Companies at June 30, 2012, prepared in accordance with U.S. generally
accepted accounting principles (US GAAP), certified by Ernst & Young, in its capacity as
independent auditor of LAG.
On September 25, 2012, Parmalat’s Board of Directors met to review the abovementioned
certified semiannual results of the Acquired Companies. Specifically, it was informed of the
net financial position, amounting to USD 53.2 million at June 30, 2012, identified as an
addition to the provisional price of USD 904 million, in accordance with the Share Purchase
Agreement. The net financial position amount was paid on October 19, 2012, in accordance
with the deadline stipulated in the Share Purchase Agreement.
The amount paid for the Acquired Companies, before Price Adjustment, thus totaled USD
957.2 million, equal to 750.3 million euros. The Acquisition was financed entirely with
internal funds of the Parmalat Group.
Price Adjustment Mechanism
The Share Purchase Agreement provides a price adjustment a mechanism in order to allow
a determination of the Final Price of the Equity Stakes based on the results actually
reported by the Acquired Companies at the close of the 2012 reporting year, with the price
amount ranging between a cap of USD 960 million and a floor of 760 million.
2 Pursuant to the Share Purchase Agreement, the EBITDA of the Acquired Companies for the 2012 reporting year was
defined as the sum of the following line items in the Price Revision Financial Statements (as defined infra):
EBIT
+ Depreciation, amortization and writedowns of non‐current assets,
– Non‐recurring and extraordinary income (expense).
17
Specifically, it was stipulated that, should the Enterprise Value of the Acquired Companies
at December 30, 2012 (closing date of LAG’s reporting year) be equal to an amount
different from USD 904 million, due to EBITDA of an amount different from USD 95.2
million, the Price would be adjusted, upwards or downwards, to reflect the actual amount
of the Enterprise Value, it being understood that Enterprise Value amounts greater than
USD 960 million or smaller than USD 760 million would not be taken into account for price
adjustment purposes. More specifically:
‐ if the actual Enterprise Value was lower than USD 904 million, BSA would be
required to pay the difference to the Buyer, it being understood that the amount
thus owed by BSA could not be greater than USD 144 million;
‐ if the actual Enterprise Value was higher than USD 904 million, the Buyer would be
required to pay the difference to BSA, it being understood that the amount thus
owed could not be greater than USD 56 million.
Therefore, it was agreed that the Enterprise Value of the Acquired Companies and, if owed,
the related adjustment to the price of the Equity Stakes at the close of the 2012 reporting
year would be computed based on the data shown in the combined financial statements of
the Acquired Companies at December 30, 2012 (closing date of LAG’s reporting year),
prepared in accordance with U.S. generally accepted accounting principles (US GAAP),
certified by Ernst & Young, in its capacity as independent auditor of LAG (the “Price
Adjustment Financial Statements”) and verified through negotiations between the Buyer
and the Sellers.
To that effect, within 60 days from the close of the 2012 reporting year (i.e., by March 1,
2013), LAG was required to deliver to the Buyer and the Sellers the Price Adjustment
Financial Statements, accompanied by the certification report issued by Ernst & Young and
by a certificate, signed by LAG’s Chief Executive Officer and Chief Financial Officer,
containing a computation of the EBITDA and Enterprise Value of the Acquired Company,
as well as, if applicable, the amount owed as a price adjustment (the “Price Adjustment
Certificate”).
The Buyer was required to communicate any disagreement with the data contained in the
Price Adjustment Financial Statements and/or the Price Adjustment Certificate by means of
a special notice (the “Notice of Disagreement”), sent to the Seller within 20 business days
from the date of receipt of the abovementioned documents (i.e., not later than March 29,
2013). Absent such notice, the determinations set forth in the Price Adjustment Certificate
would become final and binding on the parties.
On the other hand, in the event of a disagreement, the Buyer and the Sellers were to
attempt reaching an agreement within 10 business days from the date when the Notice of
Disagreement was received by the Sellers (i.e., not later than April 15, 2013).
If the disagreement could not be resolved, the price adjustment would be submitted to the
determination of a firm of independent auditors, acting in the capacity as arbitrator
pursuant to Articles 1349 and 1473 of the Italian Civil Code.
18
In order to secure the payment of any amount that may be due to the Buyer as a Price
Adjustment, by a contract executed on the Closing Date, BSA Finances gave to Société
Générale an irrevocable mandate.
For the purposes of the clauses governing the determination of the final price of the Equity
Stakes, the parties agreed that marketing expenses (which are a component of the EBITDA
computation that, by its very nature, is highly discretionary) shall be carried out in
accordance with the business plan of the acquired companies or, in any case, “in the ordinary
course of business” and “in accordance with best management practices.” As a result, any
variance in these expenses compared with the business plan that could not be justifies in
accordance with the abovementioned criteria of ordinary business and consistency with best
management practices would authorize Parmalat to obtain a price reduction.
Implementation of the price adjustment process
On March 1, 2013, as required by the Share Purchase Agreement, LAG forwarded to
Parmalat the Price Adjustment Financial Statements and a Price Adjustment Certificate.
The Certificate showed pro forma EBITDA at December 30, 2012 of the Acquired
Companies amounting to USD 96,051,903, which corresponds to an enterprise value of
USD 912,493,077, based on a contractually stipulated EBITDA multiple of 9.5. This amount
is about USD 0.9 million higher than the USD 95.2 million estimated in the business plan of
the Acquired Companies, which served as the basis for determining the provisional price.
These documents were reviewed by the Related‐party Committee at a meeting held on
March 6, 2013.
Consistent with the contractual price adjustment mechanism, this provisional result was
analyzed by the Committee and the Board of Directors, which were supported in their
work by the Transaction Services Group of PricewaterhouseCoopers (“PwC‐TS”), pursuant
to an assignment awarded at the end of November 2012 and amended at the end of
December 2012, and by the Panel of Experts, whose services were retained at the end of
January 2013. The outcome of the work performed in connection with these assignments is
reviewed below.
Pursuant to the Share Purchase Agreement, the Buyer was required to send the Notice of
Disagreement by March 29, 2013. Because the Company found that this deadline was
incompatible with the time technically necessary to perform the reviews subject of the
assignments entrusted to PwC‐TS and the Panel of Experts, the Sellers forwarded to the
Buyer a proposed amendment to the Share Purchase Agreement, extending the
abovementioned deadline to May 10, 2013. This proposal was approved by the Board on
March 14, 2013. Consequently, the deadline by which, if a written challenge was sent by the
Buyer, the parties were required to reach an agreement was extended to May 31, 2013
(instead of April 15, 2013).
Findings from the work performed by PwC‐TS
PwC‐TS completed its assignment and delivered to Parmalat its final report on April 15,
2013. The assignment entrusted to PWC‐TS entailed performing an analysis of the
19
components of the revision of the price of the Acquired Companies, as stated in the Price
Adjustment Certificate, and pointing out any elements that could require downward (or
upward) adjustments to the acquisition price.
The report prepared by PWC‐TS identified a series of restatements of the EBITDA used in
the Price Adjustment Certificate for a total negative amount of USD 3.0 million, reducing
EBITDA from USD 96.1 million to USD 93.1 million.
The adjustments identified by PWC‐TS regard revenues and expenses deemed to be
nonrecurring that resulted in reductions/increases of the EBITDA amount, in accordance
with a specific contract clause, and, to that effect, fall into the following categories:
(i) reversals into the income statement of provisions recognized in previous years
totaling USD 1.9 million;
(ii) elimination of a pro forma adjustment not contractually identified and listed in the
ʺPrice Adjustment Calculation Certificate” amounting to USD 0.6 million;
(iii) other nonrecurring revenues and expenses totaling USD 0.4 million.
As for the marketing expenses, PWC‐TS prepared a comparison between the marketing
expenses projected in the business plan of the Acquired Companies and those, lower,
incurred in 2012, quantifying the difference at USD 13.3 million.
Findings from the work performed by the Panel of Experts
The document prepared by PwC‐TS was made available to the Panel of Experts, whose
specific assignment was to determine whether any negative variance of marketing
expenses compared with the business plan of the Acquired Companies, as shown in the
actual 2012 data of the Acquired Companies, occurred within the “ordinary course of
business” and was consistent with “best management practices” and, consequently, also
with respect to future years, was justified and consistent with the stipulations of the Share
Purchase Agreement, or whether it gave Parmalat the right and standing to demand from
the seller the payment of a price adjustment amount, in accordance with the criteria of the
contract’s provisions.
The Panel of Experts completed its assignment and delivered its final report to Parmalat on
April 30, 2013.
The Panel of Experts reviewed the reasons for the adjustments to the 2012 EBITDA
recommended by PwC‐TS and, further to its own assessments, indicated that it concurred
with the proposed adjustments for a total negative amount of USD 3.0 million. The Panel of
Experts also analyzed the other items identified by PwC‐TS but not used as part of the
EBITDA normalization process, defined as “other items for consideration.” Because the
amounts of most of these items were uncertain, the Panel of Experts thought it reasonable to
follow the practice of accepting a figure equal to 50% of the total amount of USD 0.9 million.
Lastly, the Panel of Experts analyzed the negative variance in marketing expenses
compared with the business plan of the Acquired Companies, concluding that a
preponderant portion of this variance, quantified at USD 11.3 million, did qualify as
20
necessary for correctly determining the price difference pursuant to the Share Purchase
Agreement. This amount does not include USD 2 million for efficiencies in packaging and
purchasing of advertising space. The Panel of Experts believed that these efficiencies could
be construed as being consistent with “best management practices” if properly
documented.
The Panel of Experts thus concluded that a price adjustment in favor of Parmalat of about
USD 134 million appears to be a “reliable and robust reference basis for Parmalat in the
upcoming price adjustment procedure with the vendor.”
LAG price adjustment letter to the Sellers (Notice of Disagreement)
The price adjustment request qualifies as a highly material, related‐party transaction
requiring a favorable opinion by the Committee.
The Committee made the necessary adjustments to the EBITDA computed by LAG, making
adjustments of USD 2.34 million for nonrecurring costs and items and USD 13.3 million for
the difference between the marketing expenses projected in the business plan of the
Acquired Companies and those recognized in 2012.
However, the Committee, similarly to the Panel of Experts, found a certain degree of
subjectivity in the redetermination of EBITDA, due to the presence of certain uncertainty
factors that could not be eliminated.
Consequently, the Board of Directors, in light of the opinion rendered by the Committee,
unanimously agreed to authorize the LAG Holding subsidiary to send to the seller B.S.A.
S.A., which, through Sofil S.a.s., holds an 82.2% interest in Parmalat S.p.A., a letter
requesting a price adjustment of USD 144 million, which is the maximum adjustment
permissible under the Agreement.
The price adjustment request does not originate from a different strategic value of the
Acquired Companies but from the implementation of contract clauses; the request was
destined to be the subject of negotiations with the Sellers as part of the final phase of a
contractually defined process and, consequently, its amount was subject to change
Response by the Sellers
On May 24, 2013, the Sellers sent to LAG Holding and Parmalat a letter in response to the
Notice of Disagreement, which set forth the Price Adjustment request, contesting some of
the EBITDA adjustment it contained. Specifically, the Sellers asked that the adjusted
EBITDA be increased by adding back the total amount of USD 1.5 million, broken down as
follows: (i) USD 0.6 million for the margin that LEA was entitled to receive for the first half
of 2012 pursuant to the Distribution Agreement; (ii) USD 0.65 million for the reversal of a
provision for slotting expenses, which should be treated as a recurring item and,
consequently, as a positive EBITDA component; and (iii) USD 0.3 million for the reversal of
a workers’ compensation provision recognized in 2012, The Sellers also took a different
position with regard to an adjustment totaling USD 13.3 million for the reduction in
marketing expenses compared with the business plan of the Acquired Companies, on the
one hand, contesting that this reduction was not made “in the ordinary course of business”
21
and “in accordance with best management practices” and, on the other hand, pointing out
the existence of marketing efficiencies realized in 2012 amounting to USD 2 million. The
Sellers proposed a price adjustment in an amount ranging between USD 67 million and
USD 76 million and asked Parmalat and LAG Holding to set up a meeting in order to
achieve a mutually agreeable solution as to the amount of the Price Adjustment.
Meeting between the parties
The parties met on May 28, 2013; this meeting was attended, for the Sellers, by the top
management of the Lactalis Group, supported by representatives of Ernst&Young; for the
Buyer, by Parmalat’s management, supported by all Committee members; for the Panel of
Experts by Paolo Andrei and Marco Ziliotti, supported by Luca Pellegrini; and by a
representative of PwC‐TS. Angelo Manaresi, Commissioned ad acta appointed by the Court
of Parma within the framework of the proceedings activated pursuant to Article 2409 of the
Italian Civil Code was also present.
In the course of the meeting, the Sellers initially reaffirmed their positions, as presented in
their letter of May 24, 2013; in turn, Parmalat’s management confirmed the statements
made in the Notice of Disagreement. Subsequently, both parties mutually agreed to
concessions about marketing expenses, including efficiencies, as no supporting documents
were provided either by the Sellers, to justify these efficiencies, or by the Buyer, for the
EBITDA restatements.
At the end of the meeting, the parties were still in disagreement with regard to the
recognition, requested by the Sellers, of a reduction in marketing expenses attributable to
LEA/LINT amounting to USD 0.7 million.
Sellers’ proposal received on May 30, 2013
Subsequent to the meeting, in the course of which the parties were unable to reach a
possible agreement, contacts between the parties continued and, on May 30, 2013, the
Sellers submitted to Parmalat a proposal by which, while not agreeing on the merit with
the arguments put forth by Parmalat and LAG Holding, for the sole purpose of reaching a
mutually acceptable determination of the Final Price and thus avoid remitting this
determination to an arbitrator, they indicated their willingness to pay to LAG Holding the
sum of USD 130 million as a Price Adjustment; this proposals was valid until midnight on
May 30, 2013.
Acceptance of the proposal by Parmalat and LAG Holding
Parmalat’s Board of Directors met on May 30, 2013 and, having received the Opinion
rendered by the Committee, which met on the same date, resolved to authorize the Buyer
to accept the Sellers’ proposal, thereby agreeing to a mutually agreeable determination of
the Price Adjustment in the amount of USD 130 million. Specifically, the Board of Directors
concurred with the remarks of the Committee, which, without changing the adjustment for
the full difference in marketing expenses, agreed to the positive accounting adjustment to
EBITDA, finding that the adjustment for the margin attributable to LEA/LINT for the first
half of 2012 was “was reasonable, based on a substantive interpretation of the intent of the parties”
and that the workers’ compensation adjustment was “acceptable,” and allowing the
22
adjustment for slotting expenses (as explained un Section 2.4) based on the adoption of
fairness criteria. In this manner, Parmalat was able to quickly achieve a resolution of the
dispute, while avoiding the uncertainties that always characterize arbitration proceedings
in accordance with Article 1349 of the Italian Civil Code, in which the arbitrator is required
to “rule in equity,” taking into account the fact that, as noted by the Panel of Experts, there
also were certain items benefiting the Sellers, albeit not supported by sufficient evidence,
for which no amount was recognized.
The agreed Price Adjustment amount, plus contractually stipulated accrued interest, will be
paid to LAG Holding within 15 days from the conclusion of the agreement between the
parties, i.e., by June 14, 2013.
In implementation of a specific clause of the Share Purchase Agreement, in order to secure
the payment of the abovementioned amount, on the Closing Date, an irrevocable mandate
was given to Société Générale, in its capacity as paying agent, calling for the payment of up
to USD 144 million, plus accrued interest, drawn from a revolving credit line available to
the Lactalis Group. While this mandate was in effect, Parmalat and LAG Holding received
every two months information certifying the availability of said amount drawn from the
abovementioned credit line.
Additional safeguards for Parmalat
In addition to the warranties that are customary for transactions of this type, the Share
Purchase Agreement provided express warranties for the historical and projected data
supplied to Parmalat within the framework of the due diligence process. By virtue of said
warranties, should the information obtained as part of the due diligence process prove to
be untrue, incorrect or incomplete or if the projected data supplied by the Sellers should
prove not to have been based on reasonable assumptions and/or not developed consistent
with the underlying assumptions, the Buyer shall be entitled to compensation without any
limitation, for the full amount of the damage it may have incurred. These warranties shall
expire within five years from the Closing Date.
As noted in a press release published by Parmalat on April 5, 2013, the assignments
entrusted to the Commissioner ad acta include that of verifying “that the Board of Directors of
Parmalat S.p.A. is taking full and timely action to detect any indications that the historical data
supplied may not be truthful and/or that the projected data used in the so‐called vendor due diligence
prepared by Ernst & Young pursuant to Clauses 5.24.3 and 5.24.4 of the Share Purchase Agreement
may be unreasonable, also based on the documentation of L.A.G., Lactalis Brazil and Lactalis
Mexico, indicating any corrective action, if needed.”
To that effect, on April 23, 2013, the Committee retained the services of PwC‐TS for the
purpose of assisting the Board of Directors in the process of detecting any indications that
the historical data supplied may not be truthful.
Meeting on May 30, 2013, the Board of Directors, having been informed of the Committee’s
opinion, agreed that, based on the verifications performed and the concluding document
with the findings of PwC‐TS dated May 16, 2013, no indications that the historical data
supplied may not be truthful were detected.
23
On May 3, 2013, the Committee also retained the services of Deloitte Financial Advisory for
the purpose of assisting the Board of Directors in the process of detecting any indications
that the that the projected data used in the so‐called Vendor Due Diligence may be
unreasonable. Deloitte Financial Advisory is expected to prepare a final report with his
findings by the end of June.
2.2 Description of the related parties with whom the Transaction was executed, the nature of
the relationship and the nature and scope of the interest of the abovementioned parties
in the Transaction
The Transaction qualifies as a related‐party transaction executed through a subsidiary
because:
a) Parmalat is controlled by BSA, which, pursuant to the Share Purchase Agreement, sold
the LAG Shares and is required to pay the amount owed as Price Adjustment;
b) LAG Holding, which, pursuant to the Share Purchase Agreement, was designated by
Parmalat as the buyer of the LAG Shares and is the party entitled to receive the amount
owed as Price Adjustment, is indirectly controlled by Parmalat through Parmalat
Belgium. More specifically:
i. the Issuer owns the entire share capital of Parmalat Belgium (99% directly and the
remaining 1% indirectly through Dalmata, a wholly owned subsidiary); and
ii. Parmalat Belgium owns the entire share capital of LAG Holding.
The Transaction’s risk profiles arising from the presence of potential conflicts of interest
have to do with the possibility that the Transaction may entail terms different from those
that would have been applies in an arm’s length transaction.
In this regard, it is worth mentioning that the Committee for Related‐party Transactions—
which constitutes the committee of independent Directors who are not related parties
qualified to render a reasoned opinion on the Company’s interest in executing the
Transaction and the benefits and substantive fairness of the Transaction’s terms, in
accordance with the Procedure Governing Transactions with Related Parties—was
promptly informed, pursuant to Article 5 of the abovementioned Procedure, of the
Transaction’s terms and conditions and was actively involved in the preparatory phase and
negotiation phase through the delivery of a complete and timely flow of information and
its participation in the negotiations. The Related‐party Committee then agreed by majority
vote to render a favorable reasoned opinion, with Director Mastrangelo voting against the
resolution for the reasons stated below in Section 2.3 of this Information Memorandum.
The abovementioned opinion is appended to this Information Memorandum as Annex
“3.2.”
Pursuant to Article 6.1.2 of the Related‐party Procedure, the Committee relied on the
support of a panel of three independent experts, namely Mario Cattaneo, Paolo Andrei and
Marco Ziliotti, tasked with performing verifications concerning the variances that occurred
between marketing expenses actually incurred in 2012 by LAG and LINT and those defined
24
in the business plan upon which the Acquisition was based, in accordance with the
provisions of the Share Purchase Agreement.
Please note that the Director Daniel Jaouen is an officer of Lactalis Group companies.
Consequently, at the meeting held by Parmalat’s Board of Directors on May 10, 2013, when it
approved the Notice of Disagreement, and on May 30, 2013, when it approved the mutually
agreeable determination of the Price Adjustment, he disclosed any interest that he may have
in the Transaction, directly or on behalf of third parties, by virtue of the abovementioned
posts he held, specifying the type, terms, origin and scope of said interest, thereby providing
the disclosures required pursuant to Article 2391 of the Italian Civil Code.
Lastly, please note that the Parmalat Director Antonio Sala, who is an officer of Lactalis
Group companies, did not attend the Board meetings of May 10 and May 30, 2013, in
compliance with the order issued by the Court of Parma on March 28, 2013.
As of the date of this Information Memorandum, BSA, which is at the apex of the corporate
pyramid of the Lactalis Group, exercises guidance and coordination over Parmalat.
2.3 Description of the economic motivations for the Transaction and its benefits for
Parmalat
The Board of Directors, in assessing the Transaction’s benefits for Parmalat, concurred with
the remarks of the Related‐party Committee, which, without changing the adjustment for
the full difference in marketing expenses, agreed to the positive accounting adjustment to
EBITDA, finding that the adjustment for the margin attributable to LEA/LINT for the first
half of 2012 was “was reasonable, based on a substantive interpretation of the intent of the parties”
and that the workers’ compensation adjustment was “acceptable,” and allowing the
adjustment for slotting expenses based on the adoption of fairness criteria. In this manner,
Parmalat was able to quickly achieve a resolution of the dispute, while avoiding the
uncertainties that always characterize arbitration proceedings in accordance with Article
1349 of the Italian Civil Code, in which the arbitrator is required to “rule in equity,” taking
into account the fact that, as noted by the Panel of Experts, there were also certain items
benefiting the Sellers, albeit not supported by sufficient evidence, for which no amount was
recognized.
In assessing the benefits of the Transaction for Parmalat, the Committee note, inter alia,
that:
i) The proposed Price Adjustment amount differs from the amount requested in the
Notice of Disagreement by not more than 10%;
ii) The Price Adjustment proposal is close to the maximum contractually permissible
amount of USD 144 million;
iii) The conclusions reached by the Committee in the final analysis are substantially in
line with guidance provided by the Panel of Experts, which, in its report of April 30,
2013, concluded that an “Enterprise Value amount of about $770 million appears to be (…)
a reliable and robust reference basis for Parmalat in the upcoming price adjustment procedure
with the Vendor.” Upon conclusion of the negotiation phase, the defined Price
25
Adjustment amount differs by not more than 3% from the one recommended by the
Panel of Experts, for an implied multiple of 2012 reported EBITDA of about 8.1.
Parmalat’s Board of Directors met on May 30, 2013 and, having received the Committee’s
opinion, agree by a majority vote, with the Directors Mastrangelo and Mosetti voting
against the resolution, to authorize the acceptance of the Sellers’ proposal, thereby
achieving a mutually acceptable determination of the Price Adjustment in the amount of
USD 130 million.
Director Mastrangelo voted against the resolution not because he disagreed that reaching
an agreement with the Sellers was beneficial, but objected to the amount offered, finding it
inappropriate to stray from the amount of USD 134 million recommended by the Panel of
Experts.
Director Mosetti explained his negative vote by stating, inter alia, that he could not support
an agreement entailing a price adjustment of an amount lower than the one recommended
by the Panel of Experts, which earlier the Company’s Board of Directors deemed
appropriate, and that the timing and method by which the Company agreed to accept the
proposal it received from the Sellers could have been handled differently, specifically by
immediately beginning negotiations and requesting the support of experts only at the end
of the negotiations.
The Board of Directors, being cognizant of the positions stated by the Directors
Mastrangelo and Mosetti, concluded that (i) the difference of USD 4 million from the
amount recommended by the Panel of Experts, when compared with the total amount of
the transaction, is relatively minor and, consequently, entirely reasonable within the
framework of complex negotiations; and (ii) the modalities by which the Company agreed
to accept the proposal received from the Sellers were fully consistent with contractual
stipulations and, thus, protective of Parmalat’s interest. Moreover, had the Company failed
to abide by said stipulations and moved forward the phases of the procedure, it would
have lost the option of enforcing its rights with the effectives that it later achieved.
2.4 Methods for determining the consideration and assessment of its fairness compared with
market values for similar transactions
As described in detail in Section 2.1, the Share Purchase Agreement provides a price
adjustment a mechanism in order to allow a determination of the Final Price of the Equity
Stakes based on the results actually reported by the Acquired Companies at the close of the
2012 reporting year, with the price amount ranging between a cap of USD 960 million and a
floor of 760 million.
The Agreement also requires that the determination of the Final Price be carried out based
on data presented in audited financial statements and through negotiations between the
parties and that if disagreements could not be resolved through negotiations, the price
adjustment would be submitted to the determination of a firm of independent auditors,
acting in the capacity as arbitrator pursuant to Articles 1349 and 1473 of the Italian Civil
Code.
26
The main arguments put forth by the parties in support of their position in the course of the
negotiations and which resulted in the determination of the Final Price are summarized
below.
The Price Adjustment Certificate, the Notice of Disagreement and the Sellers’ reply show
the significant distance that existed between the positions of the parties. In the course of the
subsequent meeting with the Sellers, further to intense negotiations, the parties reached a
basis for the achievement of an agreement on the amount of the price adjustment in favor
of the Buyer.
More specifically, with regard to marketing expenses, the Sellers claimed that a significant
portion of the variance between the expenses incurred in 2012 and those listed in the
business plan of the Acquired Companies, amounting to USD 13.3 million should be
viewed as having occurred “in the ordinary course of business” and consistent with “best
management practices” and, consequently, was in compliance with the provisions of the
Agreement and, specifically, with Article 2.2.5 of the Share Purchase Agreement.
In this regard, please note that, pursuant to the abovementioned clause of the Agreement,
marketing expenses (which are a component of the EBITDA computation that, by its very
nature, is highly discretionary) were to be carried out in accordance with the business plan
of the Acquired Companies or, in any case, “in the ordinary course of business” and “in
accordance with best management practices.” As a result, any variance in these expenses
compared with the business plan that could not be justifies in accordance with the
abovementioned criteria of ordinary business and consistency with best management
practices would empower Parmalat to obtain a price reduction.
In support of their position, the Sellers asserted compliance with the “ordinary course of
business” requirement based on the following circumstances: (i) in 2012, the marketing
expenses of the Acquired Companies increased by about 20.2% compared with the
previous year; (ii) a Parmalat subsidiary that operates in a neighboring country, i.e.,
Canada, cut its marketing expenses by 16% compared with its budget in 2012 (13% for the
Parmalat Group as a whole); (iii) already in 2011, LAG reduced marketing expenses by
about 23.6% compared with projections in the 2011 budget.
As for “best management practices,” the Sellers put forth mainly arguments concerning
“marketing efficiencies.” More specifically, making reference to the analysis carried out by
PwC‐TS in its report of April 15, 2012, they pointed out that about USD 2 million were
attributable to efficiencies in the purchasing of advertising space (for USD 1.1. million) and
in packaging and other marketing costs (for USD 0.9 million), also specifying that the
Vizeum space purchasing agency succeeded in negotiating a lower CPM (cost per thousand
of impression), generating a savings of about 20% compared with the amount budgeted in
the business plan.
Consequently, in accordance with the position presented by the Sellers, it would have been
fair to exclude from the proposed adjustment to 2012 EBITDA the aggregate amount of
USD 5.9 million because these items were consistent with the “ordinary course of business”
and/or in line with “best management practices.”
27
With regard to requests concerning marketing expenses, Parmalat rejected all changes for
which additional supporting documents beyond those already available could not be
produced. The same conclusion was later confirmed with regard to a compromise proposal
put forth by the Sellers regarding lower marketing expenses incurred by LEA (USD 0.7
million), also because of lack of additional documents supporting the alleged savings.
In addition, the Sellers, in line with the provisions of Clauses 2.2 and 2.3 of the Share
Purchase Agreement, provided their remarks about the following adjustments to EBITDA:
a) “Distribution Agreement Q1‐Q2 commissions.” This item, which is a positive component
of 2012 EBITDA, was adjusted downward reducing EBITDA by USD 0.60 million,
further to the analyses performed by PwC‐TS, based on the pro forma nature of an
adjustment not provided for in the Share Purchase Agreement. With regard to this item,
the Sellers noted that the intent of the parties was to include in the EBITDA for the 2012
reporting year the distribution margins as from January 1, 2012, even though the
agreements were executed in July 2012. Consequently, they asked that the amount of
USD 0.6 million accrued in the first half of 2012 be treated as a positive adjustment to
the reported EBITDA of the Acquired Companies for the 2012 reporting year. Parmalat,
taking into account the input of the Panel of Experts, who classified this item as one of
those characterized by uncertainty, agreed that the allocation to LEA of the margins
earned in the first half of 2012 was consistent with the expressed intent of the parties to
the Distribution Agreement.
b) “Workers’ compensation.” This item, which is a positive component of 2012 EBITDA, was
deducted from EBITDA, further to the analyses performed by PwC‐TS, because it
represent a partial reversal of a provision recognized in previous years, i.e., a
nonrecurring income component. The Sellers pointed out that in 2013 the amount set
aside in 2012 (totaling USD 0.30 million) became a partial reversal of a provision
recognized the previous year. Consequently, they requested a restatement of 2012
EBITDA in the amount of USD 0.3 million. Parmalat, having verified that LAG
recognized the abovementioned reversal in the first quarter, agreed to make this
adjustment.
28
c) “Slotting expenses.” This item, which is a positive component of 2012 EBITDA, was
deducted, reducing EBITDA by USD 0.65 million, further to the analyses performed by
PwC‐TS. Because it represent a partial reversal of a provision recognized in previous
years, it is a nonrecurring income component. However, the Sellers specified that a
review of the trend of reversals in previous years shows that this item was not of a
nonrecurring nature. Parmalat disagreed with this approach but agreed to the inclusion
of this amount among the EBITDA adjustments only for the purpose of ending further
disputes.
29
The table below shows the determination of the Final Price (with rounded figures) further
to the negotiations carried out by the parties:
in millions of USD
Adjusted EBITDA – PwC 93.06
Net distribution commissions Q1 and Q2 2012 0.60
Slotting Expenses 0.65
Workers’ Compensation 0.30
Variance in marketing expenses of LAG and LINT (13.30)
Adjusted EBITDA 81.31
EV (Adjusted EBITDA X 9.5) 772.44
The final Enterprise Value was thus equal to USD 772.44 million, later rounded to USD 774,
for an implied multiple of 2012 EBITDA (as shown in the financial statements of the
acquired companies) of about 8.1.
The amount of the Price Adjustment (computed as the difference between the Provisional
Price of USD 904 million and the Enterprise Value computed above of USD 774 million) is
thus defined at USD 130 million.
With regard to the fairness of the Final Price (amounting to USD 774 million), please see the
information provided in Section 2.1.3 of the Addendum to the Information Memorandum
published by Parmalat on June 27, 2012. In addition, for the sake of complete information
and for comparison purposes, please note that, at the end of 2012, the Saputo Group of
Canada completed the acquisition of Morningstar, an operator active in the United States
market in the bread and cheese categories without having any major brands, based on an
EBITDA multiple (before tax effect) of 9.5.
Lastly, as part of its assessment of the Transaction, the Committee took into consideration
the contractually provided option of having the final price of the Equity Stakes determined
by a firm of independent auditors acting in the capacity as an arbitrator and the potential
consequences of such a solution.
In addition to the considerations about the timing , presumably long, of such a solution, the
Committee carefully assessed the risk that the determination of the arbitrator could be
penalizing for Parmalat compared with the determination reached jointly by the parties.
Specifically, the uncertainty related to the total exclusion of efficiencies from marketing
costs, quantifiable at about USD 2 million and the high probability that two of the three
EBITDA adjustments requested by the sellers be allowed further caused the Committee to
favor a mutually agreed determination of the Price Adjustment over one by the Arbitrator.
30
The Committee, in rendering a reasoned opinion about the Company’s interest in executing
the Transaction and the fairness of its economic terms, reviewed and took into account the
findings of the engagements entrusted to PwC‐TS and the Panel of Experts, as mentioned
earlier in this Memorandum.
The members of the Panel of Experts also provided attestations that they met the
independence requirements and had no economic, investment or financial relationship
with the Issuer, parties controlling it, its subsidiaries and joint ventures and Directors of
said parties.
Pursuant to Article 5 of the Related‐party Regulations, a copy of the Opinion of the
Committee for Related‐party Transactions is annexed to this Information memorandum.
The abovementioned document is also available on the Company website
(www.parmalat.com).
2.5 Effects of the Transaction on the financial position, income statement and cash flow
The Company prepared this Information Memorandum in accordance with Article 9 of the
Procedure, which requires the publication of an information memorandum whenever a
highly material transaction is executed.
The Acquisition qualified as a transaction under common control, i.e., as a business
combination in which the companies that are parties to the business combination (Parmalat
and LAG, in this case) are controlled by the same entity (BSA) both before and after the
business combination and the control is not temporary.
As a result, the criterion applied was that of the continuity of values for the net transferred
assets, which were recognized at the values at which they were carried before the
transaction in the accounting records of the companies that are parties to the business
combination.
Consequently, the difference between the Provisional Price and the net carrying amount of
the acquired assets and liabilities, equal in this case to 476.0 million euros, was recognized,
upon closing, as an adjustments to the reserves of the shareholders’ equity attributable to
the Parmalat Group, thereby creating a negative reserve of equal amount.
The Price Adjustment of USD 130 million (equal to 101.8 million euros) will generate, by
June 14, 2013, the collection of proceeds of equal amount, plus accrued interest, and, in the
Issuer’s consolidated financial statements, a reduction of 374.2 million euros in the negative
equity reserved originally recognized for the amount of 476.0 million euros.
The impact of the Price Adjustment described above, would bring the shareholders’ equity
of the Parmalat Group to 3,145.7 million euros at December 31, 2012 (3,043.9 million euros
in the draft statutory financial statements for the year ended December 31, 2012) and to
3,115.4 million euros at March 31, 2013 (3,013.6 million euros in the interim report on
operations at March 31, 2013).
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The entries recognized in the separate financial statements of LAG Holding will reflect the
collection of proceeds totaling USD 130 million, plus accrued interest, and a concurrent
reduction of equal amount in the carrying value of the investment in LAG
The price adjustment will have no impact on the separate financial statements of Parmalat
and Parmalat Belgium.
The Company is currently defining the modalities for the utilization of the liquidity
generated by the Price Adjustment.
2.6 Impact of the Transaction on the compensation of the members of the management
entities of the Company and/or its subsidiaries
The Transaction will have no impact compensation of the members of the management
entities of the Company and/or its subsidiaries.
2.7 Listing of any members of the management and control entities, general managers and
executives of the Company involved in the Transaction
Except as specified below, no members of the Board of Directors and Board of Statutory
Auditors and executives of the Issuer or any of the Issuer’s subsidiaries is involved in the
Transaction as a related party.
Please note that the Director Daniel Jaouen is an officer of Lactalis Group companies.
Consequently, at the meeting held by Parmalat’s Board of Directors on May 10, 2013, when it
approved the Notice of Disagreement, and on May 30, 2013, when it approved the mutually
agreeable determination of the Price Adjustment, he disclosed any interest that he may have
in the Transaction, directly or on behalf of third parties, by virtue of the abovementioned
posts he held, specifying the type, terms, origin and scope of said interest, thereby providing
the disclosures required pursuant to Article 2391 of the Italian Civil Code.
Lastly, please note that the Parmalat Director Antonio Sala, who is an officer of Lactalis
Group companies, did not attend the Board meetings of May 10 and May 30, 2013, in
compliance with the order issued by the Court of Parma on March 28, 2013.
As of the date of this Information Memorandum, none of the abovementioned Directors of
Parmalat declared that he/she owned any Parmalat common shares.
For additional information about incentive plans based on financial instruments reserved
for the abovementioned Directors of Parmalat, please consult the information
memorandum about the “2013‐2015 Three‐year Cash Incentive Plan Based Also on Financial
Instruments of the Parmalat Group” prepared in accordance with Article 84‐bis of the Issuers’
Regulations approved by the Issuer’s Shareholders’ Meeting on April 22, 2013 and
available on the Parmalat website. (www.parmalat.com).
Pending proceedings
On October 8, 2012, Parmalat received a copy of a notice that the Court of Parma, granting
a motion by the Public Prosecutor at the same Court, activated proceedings pursuant to
32
Article 2409 of the Italian Civil Code, targeting the Issuer further to a complaint filed by
Amber Capital L.P., a Parmalat shareholder, concerning alleged management irregularities,
specifically with regard to the LAG acquisition.
The first hearing was held in chambers, on October 26, 2012, before a panel of judges
comprised of Mr. Piscopo, Chief Judge of the Court of Parma, and the judges Mr. Agostini
(Reporting Judge) and Mr. Vittoria (Supporting Judge). On that occasion, all parties joined
the proceedings, filing briefs and documents, including Parmalat represented by Alberto
Guiotto, as Special Administrator appointed by the Court of Parma pursuant to article 78 of
the Italian Code of Civil Procedure.
At subsequent hearings held on November 27, 2012, November 29, 2012, December 17, 2012
and January 28, 2013, the Court heard all Parmalat Directors and Statutory Auditors, and
three former Directors (Nigel W. Cooper, Ferdinando Grimaldi Quartieri and Gaetano
Mele).
Closing arguments in these proceedings took place at two hearings held: on February 28,
2013, when the Public Prosecutor and counsel for the Company, in the person of the Special
Administrator, for the Directors Mosetti and Mastragelo and for the Statutory Auditors was
heard; and on March 1, 2013, when counsel for the remaining Directors was heard.
By a decree issued in March 2013, the full text of which was published by Parmalat in a
press release dated April 5, 2013, the Court of Parma ordered, inter alia, that the Board of
Directors of Parmalat “take full and timely action to detect any indications that the historical data
supplied may not be truthful and/or that the projected data used in the so‐called vendor due diligence
prepared by Ernst & Young pursuant to Clauses 5.24.3 and 5.24.4 of the Share Purchase Agreement
may be unreasonable, also based on the documentation of L.A.G., Lactalis Brazil and Lactalis
Mexico, up to the conclusion of the negotiations concerning the activation and implementation of the
price adjustment mechanism provided under the abovementioned Agreement, and report to the
Commissioner appointed for this purpose.” In addition, the Court appointed Commissioner ad
acta Angelo Manaresi, who, with regard to the Acquisition:
‐ “shall verify the independence of Messrs. Mario Cattaneo, Marco Ziliotti and Paolo Andrei
with respect to both parties to the negotiations for the adjustment of the consideration for the
acquisition of L.A.G., Lactalis Brazil and Lactalis Mexico;
‐ shall work in concert with the abovementioned gentlemen and PricewaterhouseCoopers in
discharging the assignment entrusted to them by the Board of Directors and the Committee
for Related‐Party Transactions of Parmalat S.p.A.;
‐ shall review the documents provided by L.A.G., Lactalis Brazil and Lactalis Mexico to the
panel of experts appointed by Parmalat S.p.A. on January 25, 2013 and to
PricewaterhouseCoopers and shall verify whether they are complete, consistent and suitable,
indicating any corrective action, if needed;
‐ shall review any reports by the panel of experts and PricewaterhouseCoopers on this issue
and verify whether they are complete, consistent and suitable, indicating any corrective
action, if needed, specifically with regard to marketing expenses, inventory valuations and
33
any other disputable items in the determination of the 2012 EBITDA of the companies
subject of the acquisition;
‐ shall verify that the Board of Directors of Parmalat S.p.A. is taking full and timely action to
detect any indications that the historical data supplied may not be truthful and/or that the
projected data used in the so‐called vendor due diligence prepared by Ernst & Young
pursuant to Clauses 5.24.3 and 5.24.4 of the Share Purchase Agreement may be
unreasonable, also based on the documentation of L.A.G., Lactalis Brazil and Lactalis
Mexico, indicating any corrective action, if needed;
‐ shall verify that, in the event of adjustments to the consideration for the acquisition of
L.A.G., Lactalis Brazil and Lactalis Mexico favorable to the Company, the Board of Directors
of Parmalat S.p.A. makes every effort to obtain a refund of the amount owed within a
reasonable deadline and with the best guarantees, indicating any corrective action, if
needed.”
The Court of Parma set May 15, 2013 as the deadline by which the Commissioner must file
an initial report about the assignment outlined above and June 15, 2013 as the deadline for
the final report, scheduling a hearing for June 19, 2013 for the continuation of the
proceedings.
Mr. Manaresi, having accepted the assignment at a hearing held on April 3, 2013, filed his
initial report by the required deadline of May 15, 2013.
The Company challenged the Court’s decree in an appeal filed with the Bologna Court of
Appeals, asking that it be amended in its entirety and the enforceability of some provisions
(not affecting the assignment of the Commissioner ad acta and the verifications entrusted to
him) be stayed. By a decision handed down on June 5, 2013, the Bologna Court of Appeals
denied the motion to stay.
The Public Prosecutor of the Court of Parma launched an investigation in connection with
the Acquisition. On December 11, 2012, the Chairman, the Chief Executive Officer, the
Chief Operating Officer and the some Directors were served notice that they were the
target of an investigation regarding the crime of aggravated embezzlement. On the same
day, the Parma and Bologna Tax Enforcement Units of the Revenue Police executed, at the
request of the Public Prosecutor of the Court of Parma, search warrants at the Company’s
offices aimed at securing documents concerning the LAG acquisition.
On November 5, 2012, the Consob informed the members of Parmalat’s Board of Statutory
Auditors that it had activated administrative proceedings charging them with violation of
their oversight obligation pursuant to Article 149, Section 1, Letter a), of the TUF, with
regard to the correct implementation, within the context of the Acquisition, of the rules
governing related‐party transactions set forth in Article 2391‐bis of the Italian Civil Code
and the Related‐Party Regulations. As of the date of this Information Memorandum, no
action has been taken against Parmalat’s Statutory Auditors and the Company is waiting
for new developments by the Consob in connection with the abovementioned
administrative proceedings.
34
2.8 Transaction approval process
Even though the amount of the Price Adjustment could not be determined in advance, the
Transaction was nevertheless qualified as a highly material transaction with related parties
and, consequently, Parmalat adopted all of the measures and safeguards required by the
procedure from the inception of the Transaction’s preliminary phase (November 2012).
The Committee was involved both in the preparatory phase and in the negotiations by
attending meetings and receiving complete and timely information and through the
exchange of documents prepared for Transaction related purposes. The Committee
requested clarifications from and made recommendations to the Company departments
responsible for handling the negotiations and the preparatory phase.
During the Transaction’s preparatory phase, the Committee met on November 20, 2012,
January 24, 2013 and March 6, 2013. One or more members of Parmalat’s Statutory
Auditors attended these meetings to verify that the Committee’s actions were in
compliance with the principles set forth in the Related‐party Regulations.
In the implementation of the preparatory activities, the Committee relied on the support of
PwC‐TS, in the capacity as expert, entrusting to this expert the task of performing specific
verification procedures aimed at analyzing the components of the revision of the
acquisition price of the LAG Group and the companies Lactalis Brazil and Lactalis Mexico.
At a meeting held on January 24, 2013, the Committee resolved by a majority vote, with
Director Mastrangelo voting against the resolution, to avail itself of the support of a Panel
of Experts tasked with performing verifications concerning the variances that developed
between the marketing expenses incurred in 2012 and those projected in the business plan
of the Acquired Companies, in accordance with the provisions of the Share Purchasing
Agreement. Within the framework of this assignment, the Panel of Experts collaborated
with Luca Pellegrini for issues related to marketing.
PwC‐TS issued its report on April 15, 2013.
The Panel of Experts, based on the verifications it performed and a report by Luca
Pellegrini dated April 24, 2013, issued its report on April 30, 2013.
The Committee, continuing its review of the Transaction, held additional meetings on
March 15, April 23, May 3 and May 7, 2013, during which it reviewed the findings of the
engagements entrusted to PwC‐TS and the Panel of Experts.
At a meeting held on May 10, 2013, the Committee resolved by a majority vote, with
Director Mastrangelo voting against the resolution, to render a favorable opinion enabling
Parmalat’s Board of Directors to authorize the Buyer to send to the Sellers, in accordance
with the provisions of the Share Purchase Agreement, a Notice of Disagreement setting
forth a request for a Price Adjustment in the amount of USD 140 million. Director
Mastrangelo voted against this resolution because he believes that the price adjustment
request should have been for maximum contractually allowable amount.
35
Subsequently, also on May 10, 2013, Parmalat’s Board of Directors, in light of the
Committee’s opinion and remarks, unanimously resolved to authorize the LAG Holding
subsidiary to send to the Sellers a Notice of Disagreement setting forth a request for a Price
Adjustment in the amount of USD 144 million, corresponding to the maximum Price
Adjustment amount allowed under the Share Purchase Agreement.
On May 24, 2013, the Sellers sent to LAG Holding and Parmalat a letter in response to the
Notice of Disagreement, contesting some of the adjustment to the 2012 EBITDA it
contained, proposing a price adjustment in an amount ranging between USD 67 million
and USD 76 million and asking Parmalat and LAG Holding to set up a meeting in order to
achieve a mutually agreeable solution as to the amount of the Price Adjustment.
Accordingly, on May 28, 2013, representative of the Company, supported by the members
of the Committee, with the presence of two members of the Panel of Experts, Luca
Pellegrini, a representative of PwC‐TS and the Commissioner ad acta Angelo Manaresi, in
his capacity as observer appointed by the Court of Parma within the framework of the
proceedings activated pursuant to Article 2409 of the Italian Civil Code, met with
representatives of the Sellers with the aim of finding a possible solution for the Price
Adjustment (as explained in greater detail in Section 2.1).
Subsequent to the meeting, on May 30, 2013, the Sellers submitted to Parmalat a proposal
by which, while not agreeing on the merit with the arguments put forth by Parmalat and
LAG Holding, for the sole purpose of reaching a mutually acceptable resolution of the
different positions regarding the Price Adjustment, they indicated their willingness to pay
to LAG Holding the sum of USD 130 million as a Price Adjustment; this proposals was
valid until midnight on May 30, 2013.
At a meeting held on May 30, 2013, the Committee resolved by a majority vote, with
Director Mastrangelo voting against the resolution, to render a favorable opinion for the
implementation of the Transaction. Director Mastrangelo voted against the resolution not
because he disagreed that reaching an agreement with the Sellers was beneficial, but
objected to the amount offered, finding it inappropriate to stray from the amount of USD
134 million recommended by the Panel of Experts.
At a meeting held on May 30, 2013, Parmalat’s Board of Directors, having received the
opinion rendered by the Committee, resolved by a majority vote, with Directors
Mastrangelo and Mosetti voting against the resolution, to authorize acceptance of the
Sellers’ proposal, thereby reaching a mutually agreeable determination of the Price
Adjustment in the amount of USD 130 million. Director Mastrangelo voted against the
resolution for the reasons explained above. Director Mosetti explained his negative vote by
stating, inter alia, that he could not support an agreement entailing a price adjustment of an
amount lower than the one recommended by the Panel of Experts, which earlier the
Company’s Board of Directors deemed appropriate, and that the timing and method by
which the Company agreed to accept the proposal it received from the Sellers could have
been handled differently, given the nature of the counterparty.
The Board of Directors, being cognizant of the positions stated by the Directors
Mastrangelo and Mosetti, concluded that (i) the difference of USD 4 million from the
amount recommended by the Panel of Experts, when compared with the total amount of
36
the transaction, is relatively minor and, consequently, entirely reasonable within the
framework of complex negotiations; and (ii) the modalities by which the Company agreed
to accept the proposal received from the Sellers were fully consistent with contractual
stipulations and, thus, protective of Parmalat’s interest. Moreover, had the Company failed
to abide by said stipulations and moved forward the phases of the procedure, it would
have lost the option of enforcing its rights with the effectives that it later achieved.
The agreed Price Adjustment amount, plus contractually stipulated accrued interest, will be
paid to LAG Holding within 15 days from the conclusion of the agreement between the
parties, i.e., by June 14, 2013.
Pursuant to Article 5 of the Related‐party Regulations, a copy of the Opinion on the
Transaction rendered by the Committee for Related‐party Transactions is annexed to this
Information memorandum. The abovementioned document is also available on the
Company website (www.parmalat.com).
2.9 If, pursuant to Article 5, Section 2, of the Related‐party Regulations, the materiality of
the Transaction derives from the aggregation of multiple transactions executed during
the year with the same related party or with parties related to said related party or the
Company, the information provided in the preceding sections of this Memorandum
shall be provided for all of the abovementioned transactions.
The situation described above does not apply to the Transaction.
37
3. ANNEXES
3.1 List of documents related to the LAG Acquisition published on the Parmalat website
(www.parmalat.com):
Information Memorandum for the Acquisition of Lactalis American Group Inc.
Addendum to the Information Memorandum for the Acquisition of Lactalis American
Group Inc.
Report of the Board of Statutory Auditors on the Acquisition of Lactalis American
Group Inc. Pursuant to Article 114 of the TUF
Report of the Panel of Independent Experts
Report of Mr. Pellegrini
PwC Project Paloma III ‐ Price adjustment Report
LAG Audited Financial Statements (at 12/30/12)
Price Adjustment Certificate for LAG, LEA, LDB, LAM (at 12/30/12)
Pro Veritate Opinion – Giorgio De Nova
Pro Veritate Opinion – Guido Rossi
Opinion rendered by the Committee for Related‐party Transactions on May 10, 2013
Clarifications requested by the Consob on May 16, 2013, pursuant to Article 114,
Section 5, and Article 115 of Legislative Decree No. 58/1998
3.2 Opinion of the Committee for Related‐party Transactions dated May 30, 2013
*** *** ***
DECLARATION BY THE CORPORATE ACCOUNTING DOCUMENTS OFFICER
As required by Article 154 bis, Section 2, of the TUF, Pierluigi Bonavita, in his capacity as
Corporate Accounting Documents Officer of Parmalat S.p.A., declares that the accounting
information provided in this Information Memorandum is consistent with the information in the
supporting documents and in the Company’s books of accounts and other accounting records.
*** *** ***