SEC Company Response from MASTELLONE BROTHERS INC (CIK 0001067317) — Mar 28, 2005
MASTELLONE BROTHERS INC (CIK 0001067317)
Date: March 28, 2005 · CIK: 0001067317 · Accession: 0000950136-05-001646
AI Filing Summary & Sentiment
File numbers found in text: 333-122268
Referenced dates: February 25, 2005
Letter
SHEARMAN & STERLING LLP
FAX: 212 848-7179 599 LEXINGTON AVENUE Abu Dhabi TELEX: 667290 WUI NEW YORK, NY 10022-6069 Beijing www.shearman.com 212 848-4000 Brussels Dusseldorf Frankfurt Writer's Direct Number: Hong Kong (212) 848-7028 London Mannheim Menlo Park Munich Writer's Email Address: New York jmillard@shearman.com Paris Rome San Francisco March 28, 2005 Sao Paulo Singapore Tokyo Toronto Washington, D.C. Via EDGAR Transmission ----------------------
H. Roger Schwall U.S. Securities and Exchange Commission 450 Fifth Street, N.W. Judiciary Plaza Washington, D.C. 20549
Mastellone Hermanos S.A. Registration Statement on Form F-4 (File No. 333-122268) --------------------------------------------------------
Ladies and Gentlemen:
On behalf of our client, Mastellone Hermanos S.A. (the "Company"), set forth below are responses to the comments of the Staff of the United States Securities and Exchange Commission (the "Commission") received by letter dated February 25, 2005 on the registration statement on Form F-4 (as amended, the "F-4") relating to the proposed exchange offer (the "Exchange Offer") by the Company of its outstanding 8% Collateralized Senior Notes due 2012, Series A-1 and Series B-1 for its 8% Collateralized Senior Notes due 2012, Series A-2 and Series B-2, respectively.
The Company's responses to the Commission's comments are set forth below in paragraphs that correspond to the numbered paragraphs of the Commission's letter. Please note that the page references in the Commission's comments included below correspond to the page numbers of the original F-4 as filed on January 25, 2005 and page references in the responses of the Company correspond to the number of the amended F-4 that accompanies this letter. We enclose copies of the F-4 marked to show changes in the filing accompanying this letter from the original F-4, which was filed with the Commission on January 25, 2005. Unless otherwise
Shearman & Sterling LLP is a limited liability partnership organized in the United States under the laws of the State of Delaware, which laws limit the personal liability of partners.
March 28, 2005 Page 2
defined herein capitalized terms used below have the meanings provided in the prospectus (the "Prospectus") included in the F-4.
On behalf of the Company, we advise you as follows:
GENERAL -------
1. Where comments on a section also relate to disclosure in another section, please make parallel changes to all affected disclosure. This will eliminate the need for us to repeat similar comments.
Response to Comment No. 1: The Company has revised the F-4 to reflect the Commission's comments.
2. In your amendment to the registration statement, include the most current information available. Refer to General Instruction C (b) of Form 20-F: "[U]nless an item directs you to provide information as of a specific date or for a specific period, give the information in a registration statement as of a date reasonably close to the date of filing the registration statement..." For example, update the information pertaining to the exchange rate. See Item 3.A.3 (a) and (b) of Form 20-F. Also, provide more current inflationary information than you include in the second paragraph of the risk factor captioned "Substantially all our revenues are earned in Argentina" at page 18.
Response to Comment No. 2: The Company has updated all information in the F-4 to the most current date available. The F-4 includes the audited financial statements of the Company for the fiscal year ended December 31, 2005.
3. We note that you are registering the notes in reliance on the staff's position in Exxon-Capital Holdings Corporation (avail. April 13, 1989), Morgan Stanley & Co., Inc. (avail. June 5, 1991), regarding resales, and Shearman & Sterling (avail. July 2, 1993), with respect to the participation of broker dealers. With your next amendment, please provide a supplemental letter stating that you are registering the exchange offer in reliance on the staff's position in those letters, and including the statements and representations substantially in the form set forth in Morgan Stanley & Co. and Shearman & Sterling.
Response to Comment No. 3: The Company's letter containing the requested representations is supplied supplementally as Exhibit A, attached to this letter.
4. Unaudited interim financial information should be indicated as such in column headings. For example, in your selected consolidated financial and operating data included on page 42, `unaudited' column headings should be added for the nine-month periods ended September 30, 2004 and 2003. Any financial information in the F-4 that is unaudited has been noted, such as the Capitalization table.
March 28, 2005 Page 3
Response to Comment No. 4: The Company has removed the unaudited interim financial information from the F-4 and included its audited financial information for the year ended December 31, 2004.
PROSPECTUS COVER PAGE
5. Separately list the two series of notes, old and new, in the caption at the top of the page.
Response to Comment No. 5: The Company has revised the cover page of the F-4 in response to the Commission's comment.
6. You refer to "contingent increases in the interest rate applicable to the old notes" on this page and at page 4. Revise to clarify whether you are referring to penalty interest provisions. Discuss the applicable provisions in necessary detail later in the document. We may have additional comments based upon your response.
Response to Comment No. 6: The Company has revised the cover page and page 3 F-4 in response to the Commission's comment. The intended reference was to the penalty interest.
7. As currently represented, the offer could be open for less than the full 20 business days due to the 5:00 p.m. expiration time instead of an expiration time of midnight on what ultimately may be the twentieth business day following commencement. See Question and Answer Eight in Exchange Act Release No. 16623 (March 5, 1980). Please confirm that the offer will be open at least through midnight on the twentieth business day. See Rule 14d-1(g)(3).
Response to Comment No. 7: The Company confirms that the offer will be open at least through midnight on the twentieth business day. It is currently the Company's intention for the exchange offer to expire at 5:00 p.m. on the 21st business day.
DISCLAIMER, PAGE I
8. Revise to move any non-required disclosure that appears after the table of contents so that it does not appear prior to the Risk Factors section. Also, the caption "disclaimer" is inappropriate.
Response to Comment No. 8: The Forward-Looking Statements and Associated Risks, Enforcement of Civil Liabilities and Presentation of Financial Information have been moved to after the Risk Factors section. Please see pages 25-26.
9. You state that the reader "should rely only on the information contained" in the prospectus. In the next paragraph, though, you indicate that the prospectus incorporates additional information and that the reader "should read it together
March 28, 2005 Page 4
with the documents filed as exhibits to the registration statement or otherwise filed with the SEC." You further suggest that your disclosure "may not necessarily be complete." If you are not incorporating information by reference, do not suggest otherwise. Also, you may provide summaries, but you must provide materially complete disclosure. Revise throughout your document as necessary.
Response to Comment No. 9: The Company has revised the language after the Table of Contents in the F-4 in response to the Commission's comment. The Company is only incorporating by reference the exhibits to the registration statement. The Company has included in the F-4 materially complete disclosure regarding the material contracts of the Company.
10. Explain in necessary detail in the disclosure that you have moved from the top of page ii in response to comment 7 of this letter the benefits and requirements to which you refer.
Response to Comment No. 10: The Company has revised the F-4 in response to the Commission's comment. The explanation is included in the F-4 in the "Description of the Notes" on page 85.
FORWARD-LOOKING STATEMENTS, PAGE III
11. We note your disclosure here and at page 57 regarding forward-looking statements. The safe harbor provided in the Private Securities Litigation Reform Act of 1995 ("PLSRA") does not apply to statements made in connection with a tender offer. See Section 27A(b)(2) of the Securities Act of 1933 and Section 21E(b)(2)(C) of the Securities Exchange Act of 1934. Revise to eliminate any suggestion to the contrary.
Response to Comment No. 11: The Company has revised the relevant section, now located on page 25, in the F-4 in response to the Commission's comment.
PROSPECTUS SUMMARY, PAGE 1
Overview of our Business, page 1
12. Provide us with objective support for subjective/comparative statements, and assertions regarding your market share or position, that appear throughout your document. Refer to Item 4.B.7 of Form 20-F. For example, provide support for the statements that appear at pages 63, 67, 70 and 72, as well as the following:
Response to Comment No. 12: In response to the Commission's comment the Company is supplementally providing a basis for the following statements in the Prospectus.
March 28, 2005 Page 5
o you are the leading processor and distributor of fresh dairy products in Argentina;
The Company has revised this language on pages 1 and 66 to read as follows: "We are the leading processor and distributor of fresh dairy products in Argentina, ranking first in market share in fluid milk, cream and butter, according to market surveys made by CCR Market Knowledge, an Argentine market research company."
Attached hereto as Annex A is the January 2005 report from of CCR Market Research. The Company ranked first in terms of sales and volume in fluid milk, fresh milk, cream, butter and dulce de leche. Please see the following pages of Annex A for the following market shares: fluid milk (pages 2 and 9), cream (pages 5 and 12), butter (pages 6 and 13).
o "According to several independent marketing surveys conducted over the last few years, our La Serenisima brand has consistently ranked among the leaders in brand image among all consumer brands in Argentina, ranking first in 2004, according to surveys made by Clarin, an Argentine newspaper."
Attached hereto as Annex B is an article from Clarin published on January 23, 2005 that ranks "La Serenisima" first. See pages 1 and 5 of Annex B.
o "[w]e believe our products are recognized throughout Argentina for their consistently superior quality...,";
The Company has revised this language on page 67 to read as follows: "We believe that our products are recognized throughout Argentina for their consistently superior quality, as recognized by different market surveys, such as one made in 2005 by CEOP, an Argentine research firm and Apertura, an Argentine magazine."
Attached hereto as Annex C an article from the March 2005 edition of the magazine Apertura in which it ranks La Serenisima, the Company's brand, as number 6 and listed it number 3 in 2004. See page 22 of Annex C.
o "[w]e believe we have created the most extensive and efficient distribution network for dairy products in Argentina...,";
The Company has revised this language on page 67 to read as follows:
"We believe that we have created an extensive and efficient distribution network for dairy products in Argentina."
March 28, 2005 Page 6
o "[w]e believe that our General Rodriguez complex...is the most advanced large-scale milk processing facility in Latin America"; and
The Company has deleted this statement.
o you enjoyed, as of the fiscal year ended December 31, 2003 and the nine-month period ended 2004, market shares of approximately 56.6% and 57.8%, respectively, of the Argentine fluid milk market in terms of physical volume.
The Company has revised the 2004 market share to be 56.6%. These numbers are based on the January 2005 report from of CCR Market Research attached hereto as Annex A. Please see page 9 for the market share of fluid milk.
PAYMENT DEFAULT AND RESTRUCTURING, PAGE 1
13. Clearly and concisely identify the more material facts relating to your restructuring and the resulting consequences. Rather than describe in detail the various rounds of negotiations with creditors, clarify the results of the restructuring by identifying the types of debt issued in the restructuring. Also provide a more detailed explanation of the restructuring transactions in a separate section later in the prospectus. See Item 4.A.4 of Form 20-F.
Response to Comment No. 13: The Company has revised the disclosure in the sub-section "Payment Default and Restructuring" on page 1 in response to the Commission's comment.
CHANGE IN INDEPENDENT REGISTERED ACCOUNTANT, PAGE 3
14. On page 3, you indicate that Deloitte is not currently ind
Show Raw Text
CORRESP
1
filename1.htm
SHEARMAN & STERLING LLP
FAX: 212 848-7179 599 LEXINGTON AVENUE Abu Dhabi
TELEX: 667290 WUI NEW YORK, NY 10022-6069 Beijing
www.shearman.com 212 848-4000 Brussels
Dusseldorf
Frankfurt
Writer's Direct Number: Hong Kong
(212) 848-7028 London
Mannheim
Menlo Park
Munich
Writer's Email Address: New York
jmillard@shearman.com Paris
Rome
San Francisco
March 28, 2005 Sao Paulo
Singapore
Tokyo
Toronto
Washington, D.C.
Via EDGAR Transmission
----------------------
H. Roger Schwall
U.S. Securities and Exchange Commission
450 Fifth Street, N.W.
Judiciary Plaza
Washington, D.C. 20549
Mastellone Hermanos S.A.
Registration Statement on Form F-4 (File No. 333-122268)
--------------------------------------------------------
Ladies and Gentlemen:
On behalf of our client, Mastellone Hermanos S.A. (the "Company"), set
forth below are responses to the comments of the Staff of the United States
Securities and Exchange Commission (the "Commission") received by letter dated
February 25, 2005 on the registration statement on Form F-4 (as amended, the
"F-4") relating to the proposed exchange offer (the "Exchange Offer") by the
Company of its outstanding 8% Collateralized Senior Notes due 2012, Series A-1
and Series B-1 for its 8% Collateralized Senior Notes due 2012, Series A-2 and
Series B-2, respectively.
The Company's responses to the Commission's comments are set forth below in
paragraphs that correspond to the numbered paragraphs of the Commission's
letter. Please note that the page references in the Commission's comments
included below correspond to the page numbers of the original F-4 as filed on
January 25, 2005 and page references in the responses of the Company correspond
to the number of the amended F-4 that accompanies this letter. We enclose copies
of the F-4 marked to show changes in the filing accompanying this letter from
the original F-4, which was filed with the Commission on January 25, 2005.
Unless otherwise
Shearman & Sterling LLP is a limited liability partnership organized
in the United States under the laws of the State of Delaware,
which laws limit the personal liability of partners.
March 28, 2005
Page 2
defined herein capitalized terms used below have the meanings provided in the
prospectus (the "Prospectus") included in the F-4.
On behalf of the Company, we advise you as follows:
GENERAL
-------
1. Where comments on a section also relate to disclosure in another
section, please make parallel changes to all affected disclosure. This
will eliminate the need for us to repeat similar comments.
Response to Comment No. 1: The Company has revised the F-4 to reflect
the Commission's comments.
2. In your amendment to the registration statement, include the most
current information available. Refer to General Instruction C (b) of
Form 20-F: "[U]nless an item directs you to provide information as of
a specific date or for a specific period, give the information in a
registration statement as of a date reasonably close to the date of
filing the registration statement..." For example, update the
information pertaining to the exchange rate. See Item 3.A.3 (a) and
(b) of Form 20-F. Also, provide more current inflationary information
than you include in the second paragraph of the risk factor captioned
"Substantially all our revenues are earned in Argentina" at page 18.
Response to Comment No. 2: The Company has updated all information in
the F-4 to the most current date available. The F-4 includes the audited
financial statements of the Company for the fiscal year ended December 31,
2005.
3. We note that you are registering the notes in reliance on the staff's
position in Exxon-Capital Holdings Corporation (avail. April 13,
1989), Morgan Stanley & Co., Inc. (avail. June 5, 1991), regarding
resales, and Shearman & Sterling (avail. July 2, 1993), with respect
to the participation of broker dealers. With your next amendment,
please provide a supplemental letter stating that you are registering
the exchange offer in reliance on the staff's position in those
letters, and including the statements and representations
substantially in the form set forth in Morgan Stanley & Co. and
Shearman & Sterling.
Response to Comment No. 3: The Company's letter containing the
requested representations is supplied supplementally as Exhibit A, attached
to this letter.
4. Unaudited interim financial information should be indicated as such in
column headings. For example, in your selected consolidated financial
and operating data included on page 42, `unaudited' column headings
should be added for the nine-month periods ended September 30, 2004
and 2003. Any financial information in the F-4 that is unaudited has
been noted, such as the Capitalization table.
March 28, 2005
Page 3
Response to Comment No. 4: The Company has removed the unaudited
interim financial information from the F-4 and included its audited
financial information for the year ended December 31, 2004.
PROSPECTUS COVER PAGE
5. Separately list the two series of notes, old and new, in the caption
at the top of the page.
Response to Comment No. 5: The Company has revised the cover page of
the F-4 in response to the Commission's comment.
6. You refer to "contingent increases in the interest rate applicable to
the old notes" on this page and at page 4. Revise to clarify whether
you are referring to penalty interest provisions. Discuss the
applicable provisions in necessary detail later in the document. We
may have additional comments based upon your response.
Response to Comment No. 6: The Company has revised the cover page and
page 3 F-4 in response to the Commission's comment. The intended reference
was to the penalty interest.
7. As currently represented, the offer could be open for less than the
full 20 business days due to the 5:00 p.m. expiration time instead of
an expiration time of midnight on what ultimately may be the twentieth
business day following commencement. See Question and Answer Eight in
Exchange Act Release No. 16623 (March 5, 1980). Please confirm that
the offer will be open at least through midnight on the twentieth
business day. See Rule 14d-1(g)(3).
Response to Comment No. 7: The Company confirms that the offer will be
open at least through midnight on the twentieth business day. It is
currently the Company's intention for the exchange offer to expire at 5:00
p.m. on the 21st business day.
DISCLAIMER, PAGE I
8. Revise to move any non-required disclosure that appears after the
table of contents so that it does not appear prior to the Risk Factors
section. Also, the caption "disclaimer" is inappropriate.
Response to Comment No. 8: The Forward-Looking Statements and
Associated Risks, Enforcement of Civil Liabilities and Presentation of
Financial Information have been moved to after the Risk Factors section.
Please see pages 25-26.
9. You state that the reader "should rely only on the information
contained" in the prospectus. In the next paragraph, though, you
indicate that the prospectus incorporates additional information and
that the reader "should read it together
March 28, 2005
Page 4
with the documents filed as exhibits to the registration statement or
otherwise filed with the SEC." You further suggest that your
disclosure "may not necessarily be complete." If you are not
incorporating information by reference, do not suggest otherwise.
Also, you may provide summaries, but you must provide materially
complete disclosure. Revise throughout your document as necessary.
Response to Comment No. 9: The Company has revised the language after
the Table of Contents in the F-4 in response to the Commission's comment.
The Company is only incorporating by reference the exhibits to the
registration statement. The Company has included in the F-4 materially
complete disclosure regarding the material contracts of the Company.
10. Explain in necessary detail in the disclosure that you have moved from
the top of page ii in response to comment 7 of this letter the
benefits and requirements to which you refer.
Response to Comment No. 10: The Company has revised the F-4 in
response to the Commission's comment. The explanation is included in the
F-4 in the "Description of the Notes" on page 85.
FORWARD-LOOKING STATEMENTS, PAGE III
11. We note your disclosure here and at page 57 regarding forward-looking
statements. The safe harbor provided in the Private Securities
Litigation Reform Act of 1995 ("PLSRA") does not apply to statements
made in connection with a tender offer. See Section 27A(b)(2) of the
Securities Act of 1933 and Section 21E(b)(2)(C) of the Securities
Exchange Act of 1934. Revise to eliminate any suggestion to the
contrary.
Response to Comment No. 11: The Company has revised the relevant
section, now located on page 25, in the F-4 in response to the Commission's
comment.
PROSPECTUS SUMMARY, PAGE 1
Overview of our Business, page 1
12. Provide us with objective support for subjective/comparative
statements, and assertions regarding your market share or position,
that appear throughout your document. Refer to Item 4.B.7 of Form
20-F. For example, provide support for the statements that appear at
pages 63, 67, 70 and 72, as well as the following:
Response to Comment No. 12: In response to the Commission's comment
the Company is supplementally providing a basis for the following
statements in the Prospectus.
March 28, 2005
Page 5
o you are the leading processor and distributor of fresh dairy
products in Argentina;
The Company has revised this language on pages 1 and 66 to read
as follows: "We are the leading processor and distributor of
fresh dairy products in Argentina, ranking first in market share
in fluid milk, cream and butter, according to market surveys made
by CCR Market Knowledge, an Argentine market research company."
Attached hereto as Annex A is the January 2005 report from of CCR
Market Research. The Company ranked first in terms of sales and
volume in fluid milk, fresh milk, cream, butter and dulce de
leche. Please see the following pages of Annex A for the
following market shares: fluid milk (pages 2 and 9), cream (pages
5 and 12), butter (pages 6 and 13).
o "According to several independent marketing surveys conducted
over the last few years, our La Serenisima brand has consistently
ranked among the leaders in brand image among all consumer brands
in Argentina, ranking first in 2004, according to surveys made by
Clarin, an Argentine newspaper."
Attached hereto as Annex B is an article from Clarin published on
January 23, 2005 that ranks "La Serenisima" first. See pages 1
and 5 of Annex B.
o "[w]e believe our products are recognized throughout Argentina
for their consistently superior quality...,";
The Company has revised this language on page 67 to read as
follows: "We believe that our products are recognized throughout
Argentina for their consistently superior quality, as recognized
by different market surveys, such as one made in 2005 by CEOP, an
Argentine research firm and Apertura, an Argentine magazine."
Attached hereto as Annex C an article from the March 2005 edition
of the magazine Apertura in which it ranks La Serenisima, the
Company's brand, as number 6 and listed it number 3 in 2004. See
page 22 of Annex C.
o "[w]e believe we have created the most extensive and efficient
distribution network for dairy products in Argentina...,";
The Company has revised this language on page 67 to read as
follows:
"We believe that we have created an extensive and efficient
distribution network for dairy products in Argentina."
March 28, 2005
Page 6
o "[w]e believe that our General Rodriguez complex...is the most
advanced large-scale milk processing facility in Latin America";
and
The Company has deleted this statement.
o you enjoyed, as of the fiscal year ended December 31, 2003 and
the nine-month period ended 2004, market shares of approximately
56.6% and 57.8%, respectively, of the Argentine fluid milk market
in terms of physical volume.
The Company has revised the 2004 market share to be 56.6%. These
numbers are based on the January 2005 report from of CCR Market
Research attached hereto as Annex A. Please see page 9 for the
market share of fluid milk.
PAYMENT DEFAULT AND RESTRUCTURING, PAGE 1
13. Clearly and concisely identify the more material facts relating to
your restructuring and the resulting consequences. Rather than
describe in detail the various rounds of negotiations with creditors,
clarify the results of the restructuring by identifying the types of
debt issued in the restructuring. Also provide a more detailed
explanation of the restructuring transactions in a separate section
later in the prospectus. See Item 4.A.4 of Form 20-F.
Response to Comment No. 13: The Company has revised the disclosure in
the sub-section "Payment Default and Restructuring" on page 1 in response
to the Commission's comment.
CHANGE IN INDEPENDENT REGISTERED ACCOUNTANT, PAGE 3
14. On page 3, you indicate that Deloitte is not currently ind