Call for shows of interest in the acquisition of a majority stake of a maximum of 70% of the share capital of NewCo

Transcription

1 This is an unofficial translation and it has been prepared for courtesy purposes only. No guarantee whatsoever is given with respect to the accuracy of this unofficial translation. By using this unofficial translation the reader acknowledges that in case of differences between this translation and the Italian version of the Invito a Manifestare Interesse, the latter shall prevail in all respect. Call for shows of interest in the acquisition of a majority stake of a maximum of 70% of the share capital of NewCo Introduction The Region of Piedmont (the Region ), the Municipality of Acqui, Cassa di Risparmio di Alessandria, Fondazione Cassa di Risparmio di Alessandria, and Finsystems S.r.l., as indicated below, hold a total of 1,366,883 shares of Terme di Acqui S.p.A. ( Terme di Acqui or the Company ) with a nominal value of 30,686,523.35, representing 100% of the Company s share capital. The following table shows a breakdown of the Company s shareholders. Shareholder No. of shares held Percent of share capital Region of Piedmont 1,092,179 [79.9%] Municipality of Acqui Terme 229,224 [16.8%] Fondazione CRAL 29,904 [2.2%] CRAL 14,417 [1.1%] Finsystems S.r.l. 1,159 [0.1%] Regional Council resolution of September 17, 2007 approved the text of a master agreement that was later signed by the shareholders of Terme di Acqui (with the exception of Finsystems S.r.l.) and the Company. The agreement calls for the transfer of a business division owned by Terme di Acqui S.p.A. operating in the hotels, thermal therapy, and thermal wellness sectors to a newly formed company (hereinafter NewCo ). The activities in which the NewCo is to engage are set forth in greater detail in section 1 below. Terme di Acqui intends to use a transparent and non-discriminating procedure (the Procedure ) to select a partner (the Partner ) that is interested in acquiring a majority stake in the share capital of NewCo of a maximum of 70% (the Subscription ). Terme di Acqui expressly reserves the right to suspend the Procedure at any time or to modify the structure of the transaction described in this document. Under the Procedure, the admission of potential Partners to the selection Procedure shall take place on the basis of the objective requirements set out in paragraph 2 below. The Partner shall be selected on the basis of the economic content of the bid and the relative business plan to develop tourism and hotel activities, as well as on an analysis of the business plans that parties interested in the Subscription must provide, in order to ensure compatibility with the goals of turning around and modernizing the Acqui Terme thermal facilities, specifically the lodging and thermal structures that Terme di Acqui transfers or entrusts for management to the NewCo, as explained in further below detail in the Procedure. Participants in the Procedure shall be informed of the methods of evaluation of the business plan and the scoring system after the admissions phase. At this stage, however, it should be noted that particular emphasis will be placed on the completeness of the business plan and the following specific issues: (i) increasing thermal wellness activity, including as pertains to thermal structures and the management of both wellness and therapeutic activity to high standards of quality; therapeutic activity is 1

2 (ii) (iii) (iv) provided in accordance with Italy s National Healthcare System ( SSN ) and other government agencies ( INPS and "INAIL ); improving, renovating and managing a real-estate complex that will either be owned or managed by NewCo; the complex is intended for hotels, tourism and thermal structures and is located in Acqui Terme - Zona Bagni; commercial development of the Terme di Acqui brand and the possible launch of production and marketing of cosmetic products; indication of any development projects in complementary sectors. Terme di Acqui would like to emphasize that it considers the commitment to ensure the quality of service offered (such as, for example, the rating of hotel structures) that the Partner must provide through its management of NewCo to be of paramount importance. In particular, the Acqui thermal facility must keep its SSN rating of 1 st class Super. Any further required commitments shall be disclosed to the participants admitted to a later stage of the Procedure. 1. Terme di Acqui and NewCo Terme di Acqui was formed on May 29, 1961 in the form of a società per azioni (Italian-law joint-stock company). The primary activity undertaken by Terme di Acqui is the provision of thermal services. Through various outsourcers, Terme di Acqui also undertakes hotel activity in the thermal accommodation sector. The company object of Terme di Acqui includes, inter alia: the exploitation and improvement of all hot springs and mineral waters, whether currently existing or subsequently discovered within the thermal complex of Acqui Terme, the management of facilities and activities in the sectors of therapy, recreation, and accommodation, and all accessory and complementary activities, such as the manufacturing and marketing, including retail distribution, of said articles and all products derived there from, including chemical, pharmacological and cosmetic products. The Company may undertake all required transactions that are directly or indirectly involved in the pursuit of the foregoing. The main concessions for the exploitation of the hot springs have been granted on a permanent basis. NewCo, which is to be formed as part of the transaction in question, shall have as its company object, inter alia, the management of part of the real-estate assets of Terme di Acqui for tourism and hot springs uses, the management of hot springs wellness activity, the management of hot springs therapeutic activity (both under agreement with the SSN, INPS and INAIL and without any such agreements), the development of the foregoing wellness activity strictly related with the usage of the spring water, and the exploitation of the Terme di Acqui brand. Further details concerning the conditions of the transfer of assets currently owned by Terme di Acqui to Newco shall be provided to parties interested in participating in the Procedure as set out in this document. 2. The Procedure The Procedure is reserved for individual entities or temporary associations of companies or analogous forms of cooperation ( Consortia ), including the use of specially formed entities ( Vehicles ), the purposes of which must be consistent with the development of NewCo s activities. Only Italian or foreign entities considered legal persons under the legislation of their home countries may participate in the Procedure. Parties interested in participating in the Procedure must send Banca Akros SpA (hereinafter the Financial Consultant ) a show of interest drafted in written form and in the Italian language, in triplicate, along with two copies of the documents indicated below in the Italian language, or, if unavailable, in the English language, in an envelope labeled "Show of interest in acquiring a stake of a maximum of 70% in a newly formed company for the management of hot spring/tourism services (hereinafter the Show of Interest ), at the following address: Banca Akros S.p.A. Viale Eginardo, Milan (Italy) Attention: Ms. Stefania Isola 2

3 or Ms. Maria Grazia Garraffo no later than 13:00 on January 10, The Financial Consultant shall inform all parties admitted to the Procedure within 30 days of the expiry of this deadline. By the same deadline, the Financial Consultant shall also inform admitted parties of any requests for additional documentation related to this document, in which case notice of admission to the procedure shall be provided within 20 days of the expiry of the deadline set for said additional documentation. The Show of Interest may be delivered by hand to the Financial Consultant at the address indicated above, in which case the Financial Consultant shall provide a specific receipt indicating the time and date of delivery, or it may be sent by private courier or authorized courier services. Shows of Interest delivered by hand may be delivered on any business day except for Saturdays and December 7, 24 and 31, to the Financial Consultant s address, as indicated above, between 9:00 (Italian time) and 13:00 (Italian time), provided they arrive before the deadline. Shows of Interest delivered after the above deadline shall not be considered valid or opened, nor shall they be admitted to the Procedure. To this end, the date of shipping shall be considered irrelevant. Only the time and date of effective delivery of the Show of Interest to the Financial Consultant shall be considered relevant. The sender shall retain full liability for delivery. The Financial Consultant shall not be held liable if the Show of Interest is not delivered to the address indicated above before the deadline and at the established time of day, regardless of the cause thereof. Any members of Consortia participating in the Procedure are required to prepare a joint Show of Interest signed by the representatives of all Consortium members. Such a Show of Interest must appoint a common representative for the execution of the Procedure. Under conditions that are to be disclosed at a later stage of the Procedure, participants shall be allowed to make changes to the composition of Consortia, the shareholders of Special Purpose Vehicles or newly formed companies, including the participation of new parties and or the inclusion of individual parties that have already expressed their interest. In the latter circumstances, any newly added parties, parties included in previous Consortia, or new shareholders of specially formed companies shall be required to satisfy all requirements and submit all documents required under this document. Terme di Acqui reserves the right to assess compliance with the requirements set forth in this document and the maintenance thereof throughout all stages of the Procedure, as well as the compliance of letters of interest from new parties. No interested party may submit more than one Show of Interest, whether directly or indirectly, individually or jointly. Terme di Acqui reserves the right to determine the existence of other forms of relationship between participating parties that may limit the independence thereof to an extent incompatible with participation in the Procedure at any stage of the Procedure. Parties that submit a Show of Interest must satisfy the following requirements in order to be admitted to the next stage of the Procedure: 1. A minimum of three years of proven, qualified experience in: (i) hotel management, or similar tourist-related or hospitality structures; and at least one of the following activities: (ii) (iii) (iv) (v) management of hot springs, wellness, or similar facilities; tour operation; real estate development and management; and/or manufacturing and/or marketing of cosmetic products. Experience shall be deemed suitable if the interested party has achieved an average annual turnover of at least 3,000,000 in the sector indicated under (i) in the last three financial years and an average annual turnover of at least 3,000,000 in at least one of the sectors indicated in (ii), (iii), (iv) and (v). The foregoing requirements shall be referred to collectively as the Experience Requirements. 3

4 In the case of Consortia or Special Purpose Vehicles, the Experience Requirements are understood to refer to a party or parties that jointly represent the majority of the Special Purpose Vehicle s share capital or a party or parties that subscribe to the majority of NewCo s share capital as part of a Consortium. 2. Average annual turnover, including at the group level, of at least 10,000,000 during the last three financial years; If the party submitting the show of interest is an investment fund, total assets of at least 10,000,000. The foregoing requirement is referred to hereinafter as the Net Worth Requirement. For the purposes of evaluating the Net Worth Requirement, the term group shall be understood to refer to the following, in addition to the company that submits the show of interest: (i) all subsidiaries or affiliates (under article 2359 of the Civil Code) of the company that submits the show of interest under the Procedure and (ii) the parent company of the company that submits the show of interest under the Procedure and other subsidiaries or affiliates of the parent company. The Net Worth Requirement for Consortia shall be evaluated by considering the financial data about the participants in aggregate form. The Show of Interest, in the form of a letter signed by parties endowed with the power of representation, may not be rendered contingent on any conditions and must include the following documentation, each page of which must bear the initials of parties endowed with the power of representation: (i) (ii) (iii) (iv) (v) (vi) a copy of the articles of association and current by-laws and an a chamber of commerce extract specifying the non-mafia status of the interested party or parties, or equivalent documentation under the laws of the party s home country. If the participant is an investment fund, a copy of the fund s rules and procedures must be submitted in addition to the foregoing information concerning the management firm; a list of the members of the boards of the interested party or parties (board of directors, board of statutory auditors, or other relevant company bodies). If the participant is an undertaking for the collective investment in transferrable securities, the rules and procedures of the UCITS (for both the promoter and manager, if separate) must be submitted, in addition to the foregoing information concerning the management firm; statutory financial statements, and, if available, the consolidated financial statements of the interested party or parties for the last three financial years, and, if available, the statutory and consolidated financial statements of the parent company or companies for the last three financial years (all financial statements must be accompanied by the required reports by the board of statutory auditors and any auditing certification). Regardless of the circumstances, the financial statements of the company at the head of the ownership structure for the last three financial years must be submitted. If one of the participants is an investment fund, the management statements or other equivalent documents for the last three years must be submitted, in addition to the foregoing information concerning the management firm. Any participants that were formed less than three years prior may submit the foregoing documents to the extent that they are available; parties that were formed less than two years prior shall not be considered eligible; document or statement demonstrating the satisfaction of the minimum net worth requirements indicated above as of the date of the Show of Interest and a commitment to maintain said requirements through all stages of the Procedure; chart of the ownership structure of the party that submits the show of interest, including parent companies, reaching back to the head of the ownership structure, and a statement concerning the existence of shareholders agreements (or the non-existence thereof) regarding the parent company or controlling entity; a short profile (maximum of three pages) of the activities undertaken by the interested party or parties, and, if appropriate, the group to which the party or parties belong and/or the parent company, including the main earnings and financial position data, stating activities undertaken in one or more of the business sectors in which Terme di Acqui directly or indirectly operates. If the participant is an investment fund, the foregoing statement may refer to the companies in which the fund investments or any investors owning more than 30% of the fund; 4

5 (vii) document or statement certifying the non-existence of winding-up or bankruptcy proceedings, or a statement certifying the non-existence of temporary or permanent insolvency. If the participant is an investment fund, the foregoing indication must refer to the management firm; (viii) statement of the non-existence of the situations set forth under article 38, subsection 1, paragraphs b), c), d), e), g), h), i), l) and m) of legislative decree no. 163/2006 involving the directors and or proxies; (ix) declaration of the truthfulness and validity of the documents indicated above; (x) (xi) name, telephone number and address of the contact person for the interest party or parties and the common representative for Consortia; a non-binding indication of the percent of NewCo s share capital that the participant is interested in acquiring through the Subscription. This indication shall not be evaluated for admission to the subsequent stages of the Procedure; (xii) an indication of the address, including both postal and address, to which to send all correspondence, communications and requests that may be addressed to the participant during the Procedure. Any changes to this address shall only be deemed valid if notified in advance; (xiii) a declaration of any conflicts of interest of which the party submitting the show of interest may be aware in relation to participation in the Procedure. The foregoing documentation is also referred to collectively hereinafter as the Documentation. If any deeds or documents are missing, or the Documentation is incomplete or non-compliant, Terme di Acqui reserves the right to ask all interested parties to complete, add to, or correct the documents produced within a maximum of 10 day from the date of the request. Terme di Acqui shall inform all other parties of the possibility of adding documents by the same deadline. Parties that fail to complete the Documentation in accordance with the foregoing and as requested by Terme di Acqui by the above deadline shall be excluded from the Procedure. All required declarations in the Documentation shall be rendered in accordance with the provisions of the decree no. 445 of the President of the Republic dated December 28, 2000, indicating any convictions for which the benefit of non-mention has been granted. Any amendments of situations and reports submitted must be provided without delay and within the deadlines set out above. Terme di Acqui reserves the right to conduct official inquiries to assess the truthfulness and completeness of the Documentation at any stage of the Procedure. During the Procedure, interested parties are required to observed standards of conduct inspired by the principles of propriety and good faith. Terme di Acqui reserves the right to excluded parties from the Procedure for serious breach of these principles. If interest is expressed jointly by several parties through a Consortium or a Special Purpose Vehicle, the Documentation shall be provided for all parties involved in the Consortium or Special Purpose Vehicle, except for the documents set out under (x), (xi), (xii) and (xiii), for which the sole declaration of the common representative on behalf of all represented shall suffice. The submission of certificates, documents and declarations originally drafted in a language other than Italian shall be accompanied by a sworn translation thereof into Italian. In addition to the foregoing, if interest is expressed through a Consortium, a copy of the agreements governing relations between the parties forming the Consortium (including the agreement under which one of the parties to the Consortium is appointed or designated representative to act on behalf of said Consortium) must also be included and the stake of NewCo s share capital to which each of the participants wishes to subscribe must be specified. If interest is expressed through a Special Purpose Vehicle, the ownership structure of said Vehicle and relations between the owners of said Vehicle must also be disclosed. Terme di Acqui, with the assistance of the Financial Consultant and legal counsel, having obtained any additional information required, shall assess compliance with the foregoing requirements by the interested parties and the compliance of the letters of interest with the requirements set out in this document for the purposes of admission to the next stage of the Procedure. Once this assessment is complete, the Financial Consultant, acting on the behalf of Terme di Acqui, shall inform those selected from among the potential Partners of their admission to the subsequent stage of the Procedure and send said parties a non-disclosure agreement that must be signed and returned to the address indicated. For Consortia, this notice shall only 5

6 be provided to the representative who signs the non-disclosure agreement on the behalf of all Consortium members. After the non-disclosure agreement signed by all admitted parties has been received, the Financial Consultant, acting on the Company s behalf, shall admit said parties to the subsequent stages of the process as specified and indicated in the continuation of the Procedure. The following documents are currently available by request, including by fax, from the Financial Consultant Banca Akros S.p.A., Viale Eginardo 29, Milan (Italy) - tel / 42 25, fax : by-laws of Terme di Acqui last three approved financial statements As stated above, participants in the Procedure shall be informed of the methods of evaluation of the business plan and the scoring system after the admissions phase. At this stage, however, it should be noted that particular emphasis shall be placed on the completeness of the business plan as indicated in the introduction and the account of experience relevant to the execution thereof. 3. Miscellaneous information The publication of this document and the receipt of Shows of Interest do not imply an obligation or undertaking by Terme di Acqui vis-à-vis the parties interested in Subscription, nor does it imply that said parties may make any claims on Terme di Acqui (including brokerage or consulting fees). Terme di Acqui reserves the right to withdraw from negotiations at any time, regardless of the stage of advancement thereof, to suspend, interrupt or amend the terms and conditions of the Procedure, or enter into undertakings with other parties, without entitling the interested parties to advance any claims for compensation or indemnification. This document is solely a call to submit shows of interest and not a call for bids or a public offering as defined by article 1336 of the Civil Code, or a solicitation of public investment as defined by article 94 et seq. of legislative decree no. 58 of February 24, It does not represent an offer to sell financial instruments or a solicitation of investment in the United States of America or any other country. The following section provides companies interested in participating in the tender procedure with the notice required by article 13 of legislative decree no. 196 of June 30, 2003, the consolidated personal information processing protection act (known as the Privacy Code). The information and data provided by the parties participating in tender procedures or otherwise obtained as part of the management of participation applications and the subsequent stages of tender procedures shall be processed in compliance with the provisions of the Privacy Code and principles of propriety, legality, transparency and protection of the privacy of interested parties. The processing of personal information a) is aimed at: permitting the assessment of the suitability of companies to participate in the tender procedures; permitting the management of all subsequent stages and the execution of the Procedure; b) shall be carried out using electronic or automatic instruments and in print form; c) implies the possibility of disclosure to Banca Akros and other parties on which Terme di Acqui may rely for the execution of the Procedure, and the disclosure or divulgation to other parties, even without the interested party s advance consent, limited to cases in which disclosure or divulgation are required to fulfill obligations under applicable Italian or EU legislation or regulations. The information may be disclosed to fulfill obligations arising from an agreement to which the interested party is a party or to fulfill specific requests from the interested party. Furthermore, the information may be disclosed or divulged to other parties, even without the interested party s advance consent, if said information was obtained from public registries, lists, deeds or documents available to the public, or the information concerns the undertaking of economic activities, within the limits of applicable legislation governing business secrets. Provision of information is optional, but failure to provide the information may render the interested company s participation in the Procedure impossible. Furthermore, pursuant to article 24, subsection 1, paragraphs (a), (b), (d) and (g) and article 26, subsection 4, paragraph (d) of the Privacy Code, the Data 6

7 Supervisor is not required to obtain the interested party s prior consent for data processing, without prejudice to the obligation to provide notice. The processing of sensible or legal information during the Procedure or the management of participation applications shall take place in full compliance with the provisions of articles 24, 26 and 27 of the Privacy Code and the applicable General Authorizations issued by the Personal Information Protection Authority. The identification information for the data supervisor for information provided, which is charged with managing the Procedure in a fully autonomous manner, is as follows: Terme di Acqui S.p.A, Piazza Italia n acqui Terme (AL) fax Once the Procedure has been concluded, the information shall be kept at the Data Processor s office for the time required by applicable legislation. This information shall be collected, processed and stored in full compliance with the provisions of articles 31 et seq. of the Privacy Code and the Technical Regulations- Annex B to the Code concerning security measures. Interested parties may contact the Data Supervisor at any time, without observing any formalities, in order to enforce their rights as set out in article 7 of the Privacy Code. This document and the Procedure are governed by the laws of Italy and the Court of Acqui Terme shall have exclusive jurisdiction over all civil disputes pertaining thereto. The text of this document has been published in the Official Gazette of the European Union and the Official Gazette of the Republic of Italy. Furthermore, notice of the publication hereof shall be published in La Stampa, La Repubblica (Turin edition), Il Sole 24 Ore, il Secolo XIX, and Il Piccolo (Friday edition). The official Italian text of this document shall also be published on the websites of the Region of Piedmont ( the Municipality of Acqui ( and Terme di Acqui ( By sending a Show of Interest, interested parties expressly accept the conditions set forth herein. Interested parties may request clarification concerning the Procedure solely by contacting the persons indicated below by no later than 13:00 on : Banca Akros S.p.A. Viale Eginardo, Milan (Italy) Maria Grazia Garraffo Tel Fax mariolina.garraffo@bancaakros.it Stefania Isola Tel Fax stefania.isola@bancaakros.it Terme di Acqui reserves the right to publish questions and answers of common interest on a special page of its website, 7