INDEX NO. 653652/2013 FILED: NEW YORK COUNTY CLERK 08/08/2014 03:10 PM NYSCEF DOC. NO. 128 RECEIVED NYSCEF: 08/08/2014 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK ZELOUF INTERNATIONAL CORPORATION, Petitioner, -against- Index No. 653652/2013 Shirley W. Kornreich, J. Part 54 NAHAL ZELOUF, Respondent. PETITIONER’S POST-TRIAL BRIEF Jason M. Koral, Esq. Emily Abrahams, Esq. Nicholas A. Flath, Esq. Of Counsel COOLEY LLP 1114 Avenue of the Americas New York, NY 10036 Tel: (212) 479-6000 Fax: (212) 479-6275 Counsel for Petitioner TABLE OF CONTENTS Page PRELIMINARY STATEMENT ................................................................................................... 1 STATEMENT OF FACTS ............................................................................................................ 2 I. II. THE VANNUCCI VALUATION ..................................................................................... 2 A. Vannucci estimated the value of a controlling ownership interest in Old ZIC ......................................................................................................................... 2 B. The SEAM, the DLOM and the Legacy Customer Revenue................................. 2 C. Inventory ................................................................................................................ 4 FACTS RELEVANT TO RESPONDENT’S FORMER DERIVATIVE CLAIMS.......... 4 A. Officer Responsibilities ......................................................................................... 4 B. Kathrin Zelouf and Automobile Expenses............................................................. 5 C. Shareholder Loans ................................................................................................. 5 D. Zelouf West ............................................................................................................ 5 ARGUMENT ................................................................................................................................. 6 I. LEGAL STANDARD ........................................................................................................ 6 II. VALUATION OF OLD ZIC PURSUANT TO BCL § 623(H)(4) .................................... 7 III. A. There is no basis to apply a “control premium” to the Vannucci valuation .......... 7 B. Both parties’ experts agreed that a SEAM is inapplicable .................................... 8 C. The Court should accept Vannucci’s 30% DLOM ................................................ 9 D. The Legacy Customer revenue should be removed from the valuation .............. 12 E. The value of Old ZIC did not increase materially in 2013 .................................. 12 DERIVATIVE CLAIMS ................................................................................................. 14 A. The relevant timeframe for the derivative claims is 2007-2010 .......................... 14 B. Respondent presented no evidence that Old ZIC’s legal expenses constituted waste .................................................................................................. 15 C. Old ZIC’s officer salaries were reasonable; Vannucci’s normalization of these expenses is not evidence of waste .............................................................. 15 D. The Shareholder Loans are irrelevant .................................................................. 18 E. Respondent did not prove that the Legacy Customers were a corporate opportunity of Old ZIC ........................................................................................ 18 F. Respondent’s misappropriation claim lacks a factual basis and is logically absurd ................................................................................................................... 19 G. The alleged understatement of inventory did not exist and is irrelevant ............. 22 CONCLUSION ............................................................................................................................ 25 -i- TABLE OF AUTHORITIES Page(s) Cases Adelstein v. Finest Food Distributing Co. N.Y. Inc., 2011 WL 6738941 (Sup. Ct. Queens County Nov. 3, 2011) ...................................................10 Alexander & Alexander of N.Y. v. Fritzen, 147 AD2d 241 (1st Dep’t 1989) ..............................................................................................18 Batsidis v. Batsidis, 9 A.D.3d 342 (2d Dep’t 2004) .................................................................................................20 Beckerman v. Beckerman, 126 AD2d 591 (2d Dep’t 1987) ...............................................................................................10 In re Carolina Gardens, Inc. v. Menowitz, 1995 WL 17961777 (Sup. Ct. N.Y. County March 23, 1995) ...................................................6 In re Carolina Gardens, Inc. v. Menowitz, 1996 WL 34573714 (Sup. Ct. N.Y. County Jan. 26, 1996), affirmed as modified by 347 A.D.2d 189 (1st Dep’t 1997) ...............................................................................................6, 10 Matter of Cohen (Four Way Features), 168 Misc.2d 91 (Sup. Ct. N.Y. County Dec. 29, 1995) .............................................................6 Matter of the Dissolution of Walt’s Submarine Sandwiches, Inc. v. Basile, 173 AD2d 980 (3rd Dep’t 1991)..............................................................................................10 Matter of Fleischer, 107 A.D.2d 97 (2d Dep’t 1985) .................................................................................................9 Friedman v. Beway Realty Corp., 87 N.Y.2d 161 (1995) ...................................................................................................... passim Giaimo v. Vitale, 101 A.D.3d 523 (1st Dep’t 2012) ......................................................................................10, 11 Hall v. King, 177 Misc.2d 126 (Sup. Ct. N.Y. County May 21, 1998) ...................................................10, 11 Howard v. Carr, 222 A.D.2d 843 (3d Dep’t 1995) .............................................................................................19 -ii- TABLE OF AUTHORITIES (continued) Page(s) IDT Corp. v. Morgan Stanley Dean Witter & Co., 12 N.Y.3d 132 (2009) ..............................................................................................................15 Kalisch v. Kalisch, 184 A.D.2d 751 (2d Dep’t 1992) ...............................................................................................9 Lehman v. Piontkowski, 203 A.D.2d 257 (2d Dep’t 1994) ...............................................................................................9 Marx v. Akers, 88 N.Y2d 189, 200-01 (1996) ...............................................................................16 Sandfield v. Goldstein, 33 A.D.2d 376 (3d Dep’t 1970) .........................................................................................16, 17 In re Seagroatt Floral Co. (Riccardi), 78 N.Y.2d 439 (1991) ..........................................................................................................9, 12 In re Vetco, Inc., 292 A.D.2d 391 (2d Dep’t 2002) ...............................................................................................9 Statutes BCL § 623 .............................................................................................................................. 6-8, 11 -iii- PRELIMINARY STATEMENT The parties in this appraisal case jointly retained a neutral valuator, who calculated a value for the former Zelouf International Corporation (“Old ZIC”) and certain former customers of Old ZIC, of $6,225,000. That value included a premium (the “SEAM” adjustment) for Old ZIC’s status as an S-Corporation and a discount for lack of marketability. The SEAM adjustment is unknown in the New York case law, and the experts for both parties agreed that it should not have been applied. The marketability discount, on the other hand, is mandatory under New York law for companies like Old ZIC. Removal of the SEAM results in a discounted value of $5,460,202, as set forth in Annex I. Respondent presented no basis to conclude that this value materially increased up until the merger date in September, 2013. Respondent also presented evidence on former derivative claims of Old ZIC. But the only evidence presented at trial that could support Respondent’s waste and misappropriation claims related to: (1) the receipt of salary payments by Kathrin Zelouf (the CEO’s mother), and (2) automobile lease expenses allegedly in excess of company needs. These claims amount to an expenditure of $363,000 over the period analyzed by Respondent’s expert. Respondent presented no evidence concerning officer salaries other than the amounts of those salaries, and unrebutted testimony and documentary evidence established that Old ZIC received reasonable value for those payments. No evidence was presented with respect to alleged improper legal expenses, nor did Respondent present any evidence on her corporate diversion claims. And Respondent’s outlandish claims of tens of millions of dollars of misappropriated funds were exposed as nonsense, as Respondent’s own expert admitted his own work and analysis refuted those claims. Petitioner presents below a fuller factual and legal explanation of both the fair value of Old ZIC and Respondent’s former derivative claims. Annex I displays the different components of fair value, and Annex II displays the components of the alleged damages flowing from Respondent’s derivative claims. STATEMENT OF FACTS1 I. The Vannucci valuation By stipulation, the valuation prepared by the neutral expert Kevin Vannucci represents a fair and reliable estimate of the value of Old ZIC. See R’s Pretrial Br. at 8. Vannucci’s fair value estimate is presented in his report dated August 6, 2013 (the “Vannucci Report”). See Ex. 186. The Vannucci valuation is the agreed starting point for the fair value analysis. A. Vannucci estimated the value of a controlling ownership interest in Old ZIC Vannucci valued Old ZIC as of December 31, 2012, using the capitalized economic income method, which assumes that Old ZIC would earn a “sustainable” $737,000 of “EBITDA” (free cash flow) annually, into perpetuity. Ex. 186 at 4-5; id. at Schedule 2.1. To reach this estimate, Vannucci analyzed past results and qualitative factors. See id. at 5-9. Vannucci estimated the entire value of Old ZIC assuming 100% ownership and control. See, e.g., Ex. 186 at 1; see also July 9 at 55:23-56:1 and 126:25-127:6 (Respondent’s expert identifying the Vannucci Report as an “enterprise” and “control” valuation). B. The SEAM, the DLOM and the Legacy Customer Revenue Vannucci applied three adjustments to the valuation at the request of counsel: (1) a passthrough entity adjustment of 18.4% (the “SEAM”); (2) a discount for lack of marketability of 1 “SOF ¶ __” refers to the Amended Stipulation of Undisputed Facts (NYSCEF Doc. No. 127). “Ex. __” refers to exhibits admitted into evidence. References to the trial transcript take the form “[date] at [page number].” For the Court’s convenience, the cited trial transcript pages have been compiled as Exhibit 1 to the accompanying affirmation of Nicholas A. Flath, Esq. 2 30% (the “DLOM”); and (3) revenue from four customers of Zelouf West who were formerly customers of Old ZIC (the “Legacy Customers”). The SEAM reflects possible value associated with Old ZIC’s status as an S-corporation as opposed to a C-Corporation. Ex. 186 at 9; see also Ex. 186, Appendix F at 31. The SEAM is not typically applied to control-basis valuations, and was included in the Vannucci Report “at the direction of Counsel” as a “hypothetical condition.” Id. at 9 n. 21. Vannucci calculated a 30% DLOM for Old ZIC. See Ex. 186 at 9 ¶ 39. As with the SEAM, Vannucci explained that in his experience a DLOM is not typically applied to controlbasis valuations. Id. at 9 n. 22. But Vannucci’s calculation of the DLOM was rigorous, occupying five pages and three supporting schedules of his report, incorporating numerous quantitative analyses and qualitative evaluations. Id. at 46-50; id. at Schedules D1-D3. The quantitative analyses include restricted stock studies, option pricing models, and protective put data, the latter of which Vannucci characterized as quantifying a “floor” DLOM. Id. at 50. The qualitative factors include the conclusion that “there are a very limited number of hypothetical buyers for ZIC,” which justified a DLOM “at the higher end of the range.” Id. Finally, the Vannucci Report included projected income from the Legacy Customers. Vannucci explained that this projection was requested by counsel, and that to attribute this income to Old ZIC involves an “extraordinary assumption.” Ex. 186 at 8. Vannucci identified two predicates for the “extraordinary assumption:” (1) that Old ZIC “has the capacity and ability to provide the required inventory and service level to satisfy customers that previously left;” and (2) that the Legacy Customers “are expected to remain with ZIC into perpetuity.” Id. at 9. Vannucci expressed no opinion whether these assumptions were true (or even reasonable). The 3 impact of the Legacy Customer revenue on the Vannucci valuation was roughly $350,000. See March 19 at 377:23 (Baliban). C. Inventory Respondent’s forensic expert, Elliot Lesser, argued that Old ZIC’s inventory was understated on Old ZIC’s financial statements. Lesser had previously presented this opinion to Vannucci. See June 11 at 17:21-23:21. Vannucci noted that he “considered” Lesser’s report, but he ultimately made no adjustment to the inventory. See Ex. 186 at 15; id. at Schedule A3. II. Facts relevant to Respondent’s former derivative claims. A. Officer Responsibilities Danny Zelouf (“Danny”) was Old ZIC’s CEO. Danny oversaw Old ZIC’s daily operations and its 50 employees and handled all purchasing. See March 17 at 60:21-22; 115:20116:9. Rony Zelouf (“Rony”) served as Old ZIC’s sales manager. See id. at 115:5-19. Vannucci noted that Danny personally accounted for roughly half of Old ZIC’s sales. See Ex. 186 at Schedule 3.4. But neither Danny nor Rony took sales commissions (as their employees do), thus saving the company hundreds of thousands of dollars each year. See March 17 at 116:15-117:2. Danny’s relationships with key customers and suppliers are so important that the bank required Old ZIC to maintain a “key man” life insurance policy for $2 million. Id. at 79:23-80:11. In addition, Danny successfully steered Old ZIC through a time of profound contraction in the industry. As Old ZIC’s domestic competitors died out, Danny responded by shifting Old ZIC’s business to focus on overseas shipments, which now account for 75% of annual sales. Id. at 66:12-67:12; id. at 61:7-10. As a consequence, Danny must spend 40-50 days every year traveling in Asia meeting with customers and suppliers. Id. 64:7-65:5. 4 B. Kathrin Zelouf and Automobile Expenses Kathrin Zelouf (Danny Zelouf’s mother) never worked for Old ZIC, but Danny explained that she receives a salary because of the emotional support she provided to Joseph Zelouf. See March 17 at 113:9-22. Old ZIC leases multiple automobiles for use by its officers. Vannucci reviewed this line item and concluded that two automobiles would be a “reasonable cost required for operating the business” at “$750/month each.” Ex. 186 at Schedule A10. C. Shareholder Loans Old ZIC’s officers periodically borrowed funds from the corporation between 2007 and 2013. See SOF ¶¶ 50-53. The loan balances fluctuated up and down, from zero to over $2 million at times. March 18 at 264:19-265:3. Interest was paid on the loans, usually in cash (March 17 at 104:17-105:19; April 11 at 23:7-22), but sometimes in the form of an increase in the loan balance. Id. at 30:22-32:18. In a blatant attempt to mislead the Court, Respondent implied (through Elliot Lesser) that the officers owed over $5.4 million in June, 2013. See id. at 33:2-22. Respondent knew this to be false: Lesser admitted on cross that he knew this number was “very odd” and not likely to be accurate. June 11 at 33:25-34:16. He also admitted receiving a parallel schedule that he testified was more likely to be accurate, proving that the loan amounts in 2013 never exceeded $1.6 million. Id. at 41:7-44:5. D. Zelouf West Danny founded Zelouf West in 2008. SOF ¶¶ 45-49. Zelouf West primarily sells junior sportswear; Old ZIC primarily sells dressy fabrics. March 17 at 105:24-106:7. Four customers of Old ZIC – Bee Darlin, City Triangles, Swat Fame, and UpFront/Misyd – began purchasing fabric from Zelouf West in 2008. SOF ¶ 49; Ex. 186 at Schedule 2.4. Danny explained that the 5 Legacy Customers only had a limited desire to purchase “dressy fabrics,” and that the “lion’s share” of their purchases from Zelouf West were of “junior sportswear." March 17 at 107:1-9. To the extent that Zelouf West customers purchased Old ZIC products, Old ZIC was compensated at a 20% markup. Id. at 111:8-112:24. Respondent presented no testimony or cross-examination on Zelouf West, other than to establish that Zelouf West uses the same business management software as Old ZIC. See March 17 at 152:4-11. ARGUMENT I. Legal Standard BCL § 623(h)(4) does not specify which party in an appraisal proceeding has the burden of proving fair value. Because the statute “defies a burden-of-proof approach,” New York courts often rely on neutral valuation experts. Matter of Cohen (Four Way Features), 168 Misc.2d 91, 95 (Sup. Ct. N.Y. County Dec. 29, 1995) (court must set fair value even if neither party’s valuation expert is persuasive); see also id. at 98-99 (adopting neutral expert’s valuation, including 25% DLOM). The “no-burden” framework for fair value does not apply to any parallel civil claims that are incorporated into the proceeding, such as Respondent’s former derivative claims. Such allegations must be proved through evidence like any other civil claim. See In re Carolina Gardens, Inc. v. Menowitz, 1995 WL 17961777 (Sup. Ct. N.Y. County March 23, 1995) (“The actual relevance” of the derivative claims should be left “to the discretion of the finder of fact in the appraisal proceeding.”); In re Carolina Gardens, Inc. v. Menowitz, 1996 WL 34573714 (Sup. Ct. N.Y. County Jan. 26, 1996) (Respondents ultimately “failed to demonstrate” that certain expenditures “were not warranted or were otherwise imprudent.”), affirmed as modified by 347 A.D.2d 189 (1st Dep’t 1997). The Court’s prior orders presumed that ordinary proof 6 requirements apply to these claims. See Dec. and Order dated Aug. 30, 2013 at 3, NY County Index No. 603746-2009, NYSCEF Doc. No. 278 (referring to “the alleged diminution in value . . . caused by defendants’ alleged corporate waste and self-dealing.”) (emphasis added); id. at 6 (“The appraisal . . . shall include the lost value, if any, resulting from defendants’ alleged bad acts . . .”) (emphasis added). II. Valuation of Old ZIC pursuant to BCL § 623(h)(4) “Fair value” under BCL § 623(h)(4) means “the minority shareholder’s proportionate interest in the going concern value of the corporation as a whole, that is, what a willing purchaser, in an arm’s length transaction, would offer for the corporation as an operating business.” Friedman v. Beway Realty Corp., 87 N.Y.2d 161, 168 (1995) (quotation marks and citation removed) (emphasis added and in original). “Fair value” thus entails determining a control-basis value of the company (i.e. the value of 100% ownership) and then calculating Respondent’s pro rata 25% share of that value. The parties agreed prior to the hearing that either side could raise arguments about three specific valuation issues: (1) the “SEAM;” (2) the DLOM, and (3) the Legacy Customers. Thereafter, Respondent presented an expert report that proposed adding a “control premium.” Finally, after the submission of the Petitioner’s case-in-chief, Respondent argued for the first time that the valuation should be altered based on Old ZIC’s financial performance during the first six months of 2013. A. There is no basis to apply a “control premium” to the Vannucci valuation Respondent’s valuation experts, James Ashe and Anthony Saunders, presented fundamentally contradictory testimony on whether to apply a “control premium.” Saunders advocated a “control premium” of 24%. March 21 at 629:6-26. According to Saunders, 7 Vannucci failed to account properly for the power of control. Id. at 659:13-19. Every other expert in this case, however, agreed that Vannucci properly applied a control level of value. Ex. 186 at 6; see also July 9 at 126:25-127:19. Indeed, Ashe explicitly based his own opinions on the DLOM and the SEAM on his understanding that Vannucci determined a proper control level of value. See id. at 42:4-43:7; id. at 47:21-48:19. By contrast, Saunders’ view involves rejecting the fundamental premise of this case: that the Vannucci Report reflects a reasonable estimate of fair value. In any event, Saunders’ view that a redundant control premium could be “compensation for minority shareholder being squeezed out in a merger,” is precluded by New York law. See Friedman, 87 N.Y.2d at 168 (“[O]ppressive majority conduct” is not relevant to the “fair value” determination.). Indeed, we are aware of no New York case applying a control premium on top of a control basis valuation. B. Both parties’ experts agreed that a SEAM is inapplicable Although he applied a SEAM at the “direction of counsel,” Vannucci noted that the SEAM was intended only for use with respect to valuations of a minority interest. Id. at 9 n. 21. Ashe corroborated this view, noting that “pretty much the whole valuation community agrees that [the SEAM] does not apply in a controlling interest, it only applies in a noncontrolling interest situation.” July 9 at 124:9-16; see also id. at 42:4-43:7. Thus, a SEAM is not appropriate in a BCL § 623 appraisal assuming a controlling-basis level of value. Indeed, Ashe could not recall a single instance where he had ever applied a SEAM to calculate the fair value of a dissenting shareholder’s stock in a freeze-out merger. Id. at 128:6-10. Ashe speculated that Vannucci might have applied the SEAM to reflect the circumstances of the merger. July 9 at 128:25-129:23. But that is a temporal impossibility: Vannucci finalized the valuation report on August 6, 2013 and the merger was not announced 8 until two weeks later. See SOF ¶ 4. And Vannucci’s motivation is not a mystery: the SEAM was merely a “hypothetical condition” made at the request of counsel. Ex. 186 at 9 n. 21. Because the experts are in agreement, the Court can set aside this “hypothetical condition” and remove the SEAM.2 See Annex 1 (calculating impact of removing SEAM). C. The Court should accept Vannucci’s 30% DLOM The relative absence of marketability of a closely-held company must be considered in a “fair value” analysis. In re Seagroatt Floral Co. (Riccardi), 78 N.Y.2d 439, 445-46 (1991) (analysis must reflect “any risk associated with illiquidity of the shares.”); Friedman v. Beway Realty Corp., 87 N.Y.2d 161, 165 (1995) (requiring courts to consider risk that “a potential investor would pay less for shares in a close corporation because they could not readily be liquidated for cash.”). The DLOM reflects that interests (including 100% share interests) in a closely-held private company are generally more difficult to dispose of than equivalent share interests in a public company, and is distinct from a discount applied due to minority status. See Friedman, 87 N.Y.2d at 169. New York courts typically apply a percentage DLOM, the size of which depends on the circumstances. By far the most commonly-applied DLOM is 25%. See, e.g., In re Vetco, Inc., 292 A.D.2d 391, 392 (2d Dep’t 2002) (merchant of health aids); Kalisch v. Kalisch, 184 A.D.2d 751 (2d Dep’t 1992) (two-year college); Lehman v. Piontkowski, 203 A.D.2d 257, 259 (2d Dep’t 1994) (medical practice); Matter of Fleischer, 107 A.D.2d 97 (2d Dep’t 1985) (childcare product 2 Ashe opined in the alternative that the SEAM should be 37.8% (rather than the 18.4% calculated by Vannucci) to account for Respondent’s idiosyncratic tax circumstances in 20082010. July 9 at 135:6-8. But Ashe acknowledged that Vannucci’s calculation of the SEAM was “one way professionals do approach it.” July 10 at 26:19-21. And since New York law provides that value is based on what a “willing purchaser” would pay, the particular tax circumstances of a specific seller are not relevant. See March 19 at 389:3-390:12. Thus, if a SEAM were to apply, Vannucci’s judgment regarding the values in the formula ought to control. 9 distribution company); Hall v. King, 177 Misc.2d 126 (Sup. Ct. N.Y. County May 21, 1998) (antique dealer). A DLOM of 30% is also not unprecedented. See Friedman, 87 N.Y.2d at 171 (remanding for trial court’s evaluation of a 30% DLOM for a real-estate holding company); Beckerman v. Beckerman, 126 AD2d 591, 592 (2d Dep’t 1987) (30% DLOM). Lower DLOMs are only occasionally applied and typically involve peculiar circumstances. In some cases, the evidence demonstrated substantial market interest in the specific company being valued, in the form of multiple recent offers. See Matter of the Dissolution of Walt’s Submarine Sandwiches, Inc. v. Basile, 173 AD2d 980, 980-81 (3rd Dep’t 1991) (120 responses to classifieds proposing sale of company); Adelstein v. Finest Food Distributing Co. N.Y. Inc., 2011 WL 6738941, (Sup. Ct. Queens County Nov. 3, 2011) (minority shareholder had offered to buy the company on three separate occasions). Other cases involve real-estate holding companies (“REHCs”), whose only assets are highly marketable real estate, such that the DLOM reflects only the additional loss of liquidity inherent in corporate ownership. See Giaimo v. Vitale, 101 A.D.3d 523, 524 (1st Dep’t 2012); Menowitz, 1996 WL 34573714 (Sup. Ct. N.Y. County Jan. 26, 1996). Here, by contrast, the 30% DLOM reflects Vannnucci’s considered judgment that the pool of potential buyers for Old ZIC was limited, suggesting that the 16% applied to the REHC in Giaimo should be read as an absolute floor. Ex. 186, Appendix I at 50. Respondent raises three arguments relating to the DLOM. First, Ashe contended that a separate DLOM is not appropriate for a valuation of a controlling interest (a proposition also apparently accepted by Vannucci). See July 9 at 143:16-19. But he acknowledged that this question is not fully settled, with valuation theorists on “both sides of the fence.” Id. at 144:1121. Indeed, Saunders admitted such a discount could be appropriate if there was “a willing seller 10 and a willing buyer and there was no market or liquid market for private equity of textile and apparel firms.” March 21 at 641:9-18. Whatever the contours of the academic dispute, New York law clearly provides that DLOMs are to be applied to “fair value” determinations under BCL § 623, which by definition are control-basis valuations. Friedman, 87 N.Y.2d at 167-170. New York courts, most recently the First Department, have repeatedly considered and rejected Ashe’s argument. See, e.g., Giaimo, 101 A.D.3d at 524. Second, Ashe suggested that in his “experience” a typical DLOM might be zero to fifteen percent. July 9 at 143:6-10. He is mistaken: case law plainly shows that DLOMs in the midtwenty percent range are the norm. See, e.g., Hall, 177 Misc.2d at 132 (collecting cases). Ashe himself did no work to calculate a DLOM for Old ZIC, instead conceding that Vannucci had good reason to conclude “that the potential scope of hypothetical buyers for [Old ZIC] was limited” (July 9 at 163:10-23), warranting a higher DLOM. See Ex. 186, Appendix I at 50. Finally, the methods employed by Vannucci, although criticized obliquely by Ashe, have in fact been specifically endorsed by the Court of Appeals. Friedman, 87 N.Y.2d at 170-71 (endorsing use of restricted stock studies to calculate percentage DLOM); Ex. 186 at Schedule D1. At trial, Ashe speculated that marketability was already taken into account by the “Strengths, Weaknesses, Opportunities, and Threats” or “SWOT” analysis which Vannucci performed to determine a “capitalization” rate. See July 9 at 49:15-50:11. This speculation was not disclosed in Ashe’s report. It is also misguided: the factors in the SWOT are distinct from those reflected in the DLOM. Compare Ex. 186, Appendix I and Schedules D1-D3 with id. Schedule 3.4. Appendix I references the lack of potential buyers as the key factor justifying a 30% DLOM. The SWOT in Schedule 3.4, by contrast, is driven by Old ZIC’s “key person risk” and “lack of industry diversification,” factors of no relevance to the DLOM. As Baliban 11 explained, the SWOT affects the capitalization rate, which reflects “the riskiness of the forecast,” whereas the DLOM “is something entirely different,” as it reflects the “inability[y] to quickly convert the business to cash.” July 10 at 84:7-85:15. If Vannucci believed that his capitalization rate already incorporated in full an appropriate DLOM, he would never have gone through the elaborate exercise of calculating a second, redundant DLOM. At the very least, the supposed redundancy would have been noted in the Report. Cf. Matter of Seagroatt Floral Co. v. Riccardi, 78 N.Y.2d 439, 447 (1991) (expert stated explicitly that the capitalization rate took into account “lack of marketability.”). D. The Legacy Customer revenue should be removed from the valuation Respondent presented no proof that the Legacy Customers were a corporate opportunity of Old ZIC (see infra III.E), nor any proof that Vannucci’s conditions for inclusion of that revenue were satisfied. See supra Statement of Facts I.B. The evidence showed declining revenues from these customers. See March 17 at 107:22-24; Ex. 186 at Schedule 2.4. Thus, the Legacy Customer revenue calculated by Vannucci should be removed from the “fair value” analysis. See Annex 1. E. The value of Old ZIC did not increase materially in 2013 At a pre-hearing conference, the Court asked whether the Vannucci Report would need to be updated to reflect Old ZIC’s 2013 financials. Respondent’s counsel, having received the relevant data the previous week, replied that “the numbers hardly change at all. They are, frankly, immaterial changes. . . . It’s within probably a percent or two of what the numbers were at the end of December 2012. Simply wasn’t much change, based upon the data we received from the [Petitioner’s] firm.” Feb. 4 at 27:24-28:9 (NYSCEF Doc. No. 80). 12 No evidence was presented at trial to contradict this representation, certainly nothing that would suggest a $2.1 million increase in value. But in a belated attempt to inflate the valuation after the close of Petitioner’s case-in-chief, Respondent disclosed a report from Ashe, who performed an update “calculation” incorporating data from Old ZIC’s 2013 six-month financial statement. The “calculation” performed by Ashe resulted in a number $2.1 million higher than the Vannucci valuation on a control, marketable basis – in other words, a hypothetical 23% increase in value. July 10 at 8:6-8; July 9 at 117:15-118:3. But Ashe did not actually offer the opinion that Old ZIC’s value had increased during the year 2013. On cross, he repeatedly stated that he had only performed a calculation, not a valuation. Id. at 173:4-6 and 177:8-19. Critically, Ashe did not perform an update to any of the qualitative analyses performed by Vannucci to analyze whether Old ZIC’s business had become fundamentally stronger in the intervening months. Id. at 178:4-179:16. As Baliban testified, without such a finding, there is no basis to believe that the new data from 2013 signal a “sustainable increase in value.” July 10 at 61:9-26. Indeed, Ashe admitted the truth of Respondent’s counsel’s earlier representation to the Court that the 2013 numbers involved “immaterial changes.” He agreed that Vannucci’s projection of a 4.3% normalized EBITDA margin was intended to project profitability “[o]n a smoothed-out basis,” meaning that “there’s going to be years where it’s higher, there’s going to be years in where it’s going to be lower, and it will all smooth out somewhere.” July 9 at 187:20-188:4. He further agreed that his calculation of a 5.1% normalized EBITDA margin for the first six months of 2013 was “perfectly consistent … with Vannucci’s conclusion that the sustainable future EBITDA rate should be 4.3 percent,” July 9 at 189:1-11. Thus, the mere fact that the normalized EBITDA margin increased in the first six months of 2013 does not justify an 13 upward departure from Vannucci’s valuation conclusion. See July 10 at 104:26-105:5 (“No buyer would write a higher check based solely on June 30th financial statements . . . because they would say, you have to show me that this change in the six month period represents a sustainable, long-term change into perpetuity that as – that I as a buyer will benefit from.”). In addition, the results of Ashe’s calculation are drawn almost entirely from a deviation from Vannucci’s weighting methodology for determining a normalized EBITDA margin. See Id. at 9:19-12:4. Vannucci chose a three-year lookback in which the most recent year was weighted double. But Ashe chose a four-year lookback with a straight average. July 10 at 11:5-19. Of course, a change in weighting has nothing to do with the existence of new data. When Vannucci’s weighting is applied to the 2013 data – which Ashe presented as an “alternative” calculation – the result differs by only $354,000 from the Vannucci valuation. Id. at 6:5-21; 9:19-10:20. In other words, simply by changing the weighting scheme, Ashe artificially boosted his calculated increase from $354,000 (a 4% premium) to $2.1 million (a 23% premium). See July 9 at 117:15-118:3. III. Derivative Claims A. The relevant timeframe for the derivative claims is 2007-2010 On Respondent’s motion in limine, the Court ruled that “the parties agree not to use the 2011 and 2012 financials at trial,” thereby setting December 31, 2010 as the end of the relevant time period for derivative damages. Dec. and Order dated April 25, 2013, NY County Index No. 603746-2009, NYSCEF Doc. No. 214; April 25, 2013 Transcript at 50:6-26, NY County Index No. 603746-2009, NYSCEF Doc. No. 219 A second in limine ruling from the Court sets May 2004 (the date of Joseph’s Zelouf death) as the beginning of the relevant time period. See id. at 91:26-92:4 and 94:13-17; March 17 at 73:3-6. Accordingly, Respondent’s counsel stated in his 14 opening that proof on derivative claims would be limited to the period 2004-2010. Id. at 50:914. Of course, the three-year statute of limitations bars monetary recovery for years prior to 2007. See IDT Corp. v. Morgan Stanley Dean Witter & Co., 12 N.Y.3d 132, 139 (2009). At trial, Lesser’s testimony regarding Respondent’s contentions of waste was limited to 2009 and 2010. See April 11 at 63:9-14; id. at 71:21-73:6; id. at 76:4-14. The exclusion of prior years was deliberate. Respondent’s purported waste claims are simply transpositions of “normalizing adjustments” made by Vannucci beginning in 2007, the most significant of which relate to Old ZIC’s officer salaries. See id. at 97:24-99:21. But in 2007 and 2008 the officers were paid less than an industry average, so the adjustments are actually negative. Ex. 186 at Schedule A10. We have summarized Respondent’s derivative damages calculations as presented at trial in Annex 2, omitting only the facially preposterous misappropriation claims, discussed infra in Parts III.F and III.G. As set forth below, Respondent failed to make out even a prima facie case on her claims that Old ZIC’s officer salaries were wasteful and that the Legacy Customers were a corporate opportunity of Old ZIC. Thus these line items should be removed from Annex 2, leaving only the claims based on the salary paid to Kathrin Zelouf and the excess automobile expenses. For the relevant years – 2009 and 2010 – these expenses totaled $363,000. B. Respondent presented no evidence that Old ZIC’s legal expenses constituted waste Before the hearing, Respondent had she might raise a claim of waste based on legal expenses paid by Old ZIC in connection with the derivative lawsuit. See R’s Pretrial Br. at 13. This claim was not raised at trial and Respondent has never asserted (much less proven) that these payments were improper or were made without consideration. 15 C. Old ZIC’s officer salaries were reasonable; Vannucci’s normalization of these expenses is not evidence of waste The business judgment rule applies to Respondent’s claims of corporate waste. See Dec. and Order dated Jan. 3, 2013, NY County Index No. 603746-2009, NYSCEF Doc. No. 160 (“Ultimately, for plaintiff to prevail on these derivative claims, she will have to overcome the presumption that the challenged transactions are subject to the business judgment rule.”) (citing Marx v. Akers, 88 N.Y2d 189, 200-01 (1996)). Officer salaries are “properly a matter for the business judgment of the board of directors,” even when the recipient of the salary is himself a director. Sandfield v. Goldstein, 33 A.D.2d 376, 380 (3d Dep’t 1970); see also Marx, 88 N.Y.2d at 203-04 (allegation that “the compensation set lacked a relationship to duties performed” did not state claim for waste, even though majority of board was interested). Respondent presented no factual evidence to substantiate her allegation that Old ZIC’s officer salaries were “grossly excessive and unwarranted.” R’s Pretrial Br. at 5. Instead, the unrebutted evidence at trial established that Old ZIC received value for the salaries paid. See supra Statement of Facts II.A. Critically, Vannucci found in his SWOT analysis that Danny is vital to Old ZIC, producing “approximately half” the company’s sales. See Ex. 186 at Schedule 3.4. Respondent’s own expert James Ashe singled out this SWOT analysis as demonstrating “thoroughness.” July 9 at 47:1-10; 49:15-50:4. Moreover, on cross-examination, Ashe conceded the value provided by Danny and Rony, agreeing that any prospective acquirer would have to pay them additional compensation to access their personal relationships with customers and to prevent them for competing. Id. at 166:3-167:10. There is no basis on which the Court could conclude that the salaries paid to Danny and Rony “lacked a relationship to duties performed.” Marx, 88 N.Y.2d at 204. Respondent’s sole effort at proof to the contrary was the testimony of Lesser. But Lesser rendered no opinion on 16 the reasonability of Old ZIC’s officer salaries. See April 11 at 63:18-64:13 (discussing closecompany officer salaries in general); id. at 96:24-97:26 (admitting that at his deposition he had disclosed no opinion about the reasonableness of Old ZIC’s officer salaries). Rather, all he did was copy over verbatim “normalizing adjustments” from the Vannucci Report. See id. at 58:1721 (describing scope of assignment as simply to “quantify these amounts that Mr. Vannucci had identified in his report”); id. at 98:10-99:21. These normalizing adjustments simply reflect the degree by which Old ZIC’s officer salaries exceed the median of salaries paid by an unknown sample of companies drawn from a very broad industry group (the “RMA Data”). See Ex. 186 at Schedule A10, n. 1. Vannucci explained that normalizing adjustments are not judgments on past conduct but were applied to historical data “to reflect the best possible estimate of future economic earnings from a thirdparty, controlling perspective.” Ex. 186 at 6 (emphasis added). They are merely a “prospective assessment of what salaries could be in the future.” March 20 at 539:11-540:15 (Baliban). Vannucci disclaimed any view as to whether there had been a “breach of any obligation or other wrongful conduct.” Ex. 186 at 1; see also id. at 51; April 11 at 94:18-95:19. The fact that close company officers pay themselves higher salaries than a median or midpoint value does not establish waste. See Sandfield, 33 A.D.2d at 380 (error to award damages to minority shareholder based solely on finding that defendant’s salary exceeded the “average value of [his] services.”) (emphasis added). Were it otherwise, half of the companies in New York would be the victims of actionable corporate waste. Moreover, the RMA Data, though used in appraisals, is not suitable evidence to prove a civil claim. Because RMA keeps reporting companies confidential, Respondent has no way to authenticate the RMA Data and Petitioner cannot verify its accuracy and validity. June 11 at 17 104:11-105:7. Lesser admitted that the sample sizes used by RMA are too small to draw statistically reliable conclusions. Id. at 137:9-138:18; id. at 139:3-15; Ex. BBBB. And the industry code from which these companies were drawn was so broad – encompassing disparate industries like hair accessories and jute piece goods – that there is no reason to think the sampled companies are comparable to Old ZIC. Id. at 113:12-114:25. For all these reasons, the Risk Management Association itself instructs that the RMA Data is not to be used for the very purpose employed by Respondent here, as an absolute benchmark to establish damages. Id. at 124:9-126:15. D. The Shareholder Loans are irrelevant Although Respondent devoted substantial trial time to Old ZIC’s shareholder loans, she never claimed that the loans were not properly authorized. Nor has she ever asserted any derivative damages relating to them. Vannucci was aware of the shareholder loans and treated them as assets of Old ZIC. See Ex. 186 at Schedules 1.1 and A3. Because the Vannucci Report is a control-basis valuation, whatever benefit the controlling shareholders did or could derive from the company by taking loans is fully accounted for, and thus Respondent already stands to reap her pro rata share of that benefit. E. Respondent did not prove that the Legacy Customers were a corporate opportunity of Old ZIC To prevail on her claim that the four Legacy Customers represented a corporate opportunity of Old ZIC, Respondent would have had to prove that Old ZIC had an “interest or tangible expectancy” in the four Legacy Customers; in other words, that these customers were “necessary for or essential to” the business of Old ZIC. Alexander & Alexander of N.Y. v. Fritzen, 147 AD2d 241, 248 (1st Dep’t 1989). 18 But at trial, Respondent did not establish that Old ZIC had an interest or tangible expectancy in the Legacy Customers. Zelouf West markets an entirely different product line than Old ZIC, and to the extent that any Zelouf West customers purchase Old ZIC styles from Zelouf West, Old ZIC is compensated at a set 20% markup. See supra Statement of Facts II.D; Ex. U. The mere fact that Zelouf West’s business is “similar” to that of Old ZIC is not sufficient to show that the Legacy Customers were a corporate opportunity. Cf. Howard v. Carr, 222 A.D.2d 843, 845 (3d Dep’t 1995) (claim only actionable when defendant’s conduct “cripple[d] or injure[d]” the company). F. Respondent’s misappropriation claim lacks a factual basis and is logically absurd Respondent contends that Petitioner misappropriated $13,400,000 from ZIC in the years 2004-2009. Per Respondent’s calculation, in 2006-2008 alone, Petitioner’s principals made off with $11 million in profits. June 11 at 62:21-63:15. Since Vannucci concluded that the sustainable yearly cash flow of Old ZIC was only $737,000 on a normalized basis, Respondent’s allegations are a mathematical impossibility. See Ex. 186 at Schedule 2.1. Given such extraordinary claims, one would expect extraordinary proof. But Respondent presented no evidence showing even a single dollar of misappropriated sales. On the contrary, Lesser admitted that both Old ZIC’s accounting systems and the vast array of sales data recorded in MOD2 were consistent with the reported financial statements. See June 11 at 60:7-66:10. The basis of Respondent’s fantastic misappropriation claim is a single half-page back-ofthe-envelope calculation. Lesser performed essentially the same calculation five years ago. June 11 at 60:7-23. It involves determining the degree by which Old ZIC’s gross profit margins fell below 25% in certain years and then simply assuming that the difference resulted from misappropriated sales. Id. at 52:24-53:12. 19 The use of such an analysis as proof of misappropriation is unheard of in American law. See e.g., Batsidis v. Batsidis, 9 A.D.3d 342, 342 (2d Dep’t 2004) (requiring proof of taking of “tangible personal property or specific money” of corporation) (emphasis in original). It is also not accepted as valid proof of misappropriation in the forensic accounting field. See July 9 at 18:5-18:23 (Ammirati testified that an RMA comparison should be used only as an “analytical tool” or a “sensitivity analysis” rather than as an “absolute” measure of damage); June 11 at 67:19-23 (Lesser acknowledged that after doing a such a calculation “one needs to then look at additional information and see whether or not it corroborates.”). Lesser’s back-of-the-envelope calculation is at best a departure point for a proper investigation. And that is how Lesser treated it in 2009. Id. at 66:11-67:23. To test his hypothesis of missing sales, Lesser first sought access to Old ZIC’s general ledgers and journals. Id. at 60:24-61:9. But these records were consistent with the financial statements. Id. at 61:1062:5. Lesser then sought to review Old ZIC’s MOD2 system, to review actual purchase and sales records. June 11 at 62:6-13. Lesser conducted over a dozen sales-related queries of the MOD2 system, culminating in a comprehensive custom query of his own design. See Ex. 3; June 10 at 5:19-6:21. Each spreadsheet returned by MOD2 in response to this query contains tens of thousands of rows, each representing a sale. See Ex. 4-A (2007); 4-B (2008); 4-C (2009) and 4-D (2010). After “a detailed, meticulous exhaustive forensic accounting review” of this data (March 17 at 50:9-14), Lesser concluded that it did not show evidence of $13 million in missing sales. June 11 at 65:16-66:10. Respondent’s failure of proof should not surprise. Lesser’s half-page calculation is based entirely on the assumption of a 25 percent gross profit “benchmark;” a benchmark even a few percent lower would eliminate any material difference. Id. at 57:6-18. 20 Respondent’s invocation of Vannucci’s use of a similar benchmark in fact only reinforces the deficiency of her case. As noted earlier with respect to the officer salary claim, derivation of an absolute benchmark from RMA Data is inherently unreliable and improper, and Vannucci’s use of RMA Data was limited to projecting what Old ZIC might be capable of in the future. His normalizing adjustments were explicitly not intended to be a forensic judgment on misappropriation. See supra III.C. Indeed, as such normalizing adjustments are routine in valuations, Respondent’s theory would suggest misappropriation liability for any business subject to a valuation report. The law does not support such a theory. In the absence of any actual evidence of misappropriated sales, Respondent raised three supposedly corroborating pieces of evidence at trial. In fact, these points further undermine the claim. First, Lesser found a total of $420,000 of cash sales recorded in MOD2 in 2004-2010. June 11 at 59:13-21; 44:6-25. But Lesser acknowledged that there is nothing improper about a business receiving cash for goods (id. at 45:16-19), that the amounts at issue were immaterial (id. at 46:8-11), and that he had not reviewed Old ZIC’s general ledger to verify his suspicion that these cash receipts were not recorded on the Company’s books and records. Id. at 47:17-48:26. Needless to say, evidence of a mere $420,000 of cash sales rather conclusively refutes the hypothesis of over $13 million of misappropriated funds. Second, Lesser testified that he had found “some anomalies” in the sales information recorded in MOD2, notably the fact that gross margins on foreign sales were typically less than those on domestic sales. April 11 at 40:3-18. But there is no mystery here. As Lesser admitted on cross, since overseas sales are “drop shipments,” without overhead costs for warehousing, insurance and duty, such sales can be made at lower gross margins, while still yielding higher net margins. See June 11 at 131:26-133:3. 21 Finally, Lesser noted an increase in Old ZIC’s profits between 2008 and 2009, which Respondent not very subtly suggested was prompted by her threat of litigation in early 2009 (nothwithstanding the fact that Respondent had made statutory records demands years before). June 11 at 74:11-75:16. But the MOD2 sales data and the general ledgers were consistent with Old ZIC’s financial statements throughout the entire 2004-2010 time period, not just beginning in 2009. And on cross, the supposed difference in 2008-2009 financial performance was revealed to be a mirage. Lesser acknowledged that the 2008 inventory write-down “could explain” the 2009 increase in gross profits. Id. at 75:17-77:17. He admitted that unit costs for Old ZIC’s purchases declined significantly in 2009, thus contributing to higher gross profits on paper. Id. at 82:9-85:17. And the cash flow statements in the Old ZIC 2009 financial statement show that higher paper gross profits did not translate into actual cash receipts for those sales. Id. at 95:20-96:16. G. The alleged understatement of inventory did not exist and is irrelevant Lacking any evidence of misappropriation, Respondent expended enormous effort analyzing the reporting of inventory on the Old ZIC’s financial statements. That effort was pointless. Whether Old ZIC accurately stated inventory costs in its financial statements is irrelevant to either the valuation of Old ZIC or to the former derivative claims. Indeed, on the motion in limine, Respondent (then plaintiff) conceded that Lesser’s inventory analysis was not being offered as proof of any misappropriation or breach of duty, but rather to show a supposed cover-up of cash sales (that were never proven). See Pl.’s Mem. of Law in Opp. Dated April 18, 2013 at 3, NY County Index No. 603746-2009; NYSCEF Doc. No. 211. Whatever finding the Court might make with respect to the inventory allegations could thus have zero impact on the amounts awardable to Petitioner on the derivative claims. 22 Respondent did not identify a single penny of derivative damages associated with Lesser’s inventory analysis, either in Lesser’s report or in his testimony. Lesser did not opine that any inventory was missing -- his analysis actually assumes that Old ZIC’s inventory quantities were accurately reported. April 8 at 54:21-55:9. In fact, Lesser gave no opinion at all concerning the value of Old ZIC’s inventory. He very carefully qualified that his opinion was limited to the inventory’s historical cost, as opposed to its value. April 8 at 60:9-16; id. at 63:4-7; April 11 at 156:24-157:5; June 10 at 89:15-19 (“Q: So, I’ll ask you directly: You’re not rendering any expert opinion in this case as to the value of Zelouf International inventory as of any date, correct? A: That’s correct, I’m not.”); see also June 11 at 13:24-26. This qualification of Lesser’s analysis renders it worthless. Lesser acknowledged that under Generally Accepted Accounting Principles, inventory is not stated at historical cost, but at the lower of cost or market. June 10 at 93:17-96:4. At trial, Respondent made much of the fact that the Old ZIC financial statement notes do not explicitly mention the lower of cost or market principle, as best practices would counsel. See id. at 98:17-99:10. But Lesser admitted that since lower of cost or market is a default principle of accounting, the proper implication to be drawn from silence would be to assume that inventories are indeed marked down to market. Id. at 99:2-10; see also March 20 at 510:7-15. Even more significantly, Lesser admitted that he was aware from the very beginning of this case that Old ZIC had substantially written down the value of its inventory. The very earliest discovery taken in the case by Respondent included a trove of e-mails describing an inventory write-down in excess of $2 million in 2008 alone. See Ex. BO, BM, BD; see also March 17 at 97:24-102:13 and March 18 at 239:12-18 (Danny testimony regarding Old ZIC’s 23 inventory write-downs); March 19 at 296:19-299:12 (Joel Helman testimony regarding the 2008 write-down). Lesser admitted that was aware of the write-down back in 2010, over a year prior to commencing his inventory analysis, based on these emails and on a conversation his assistant had with Joel Helman, Old ZIC’s outside accountant. See June 10 at 84:24-85:5; id. at 88:1989:8. Incredibly, the very MOD2 spreadsheet that Lesser used to construct his inventory rollforward plainly disclosed marked-down values for Old ZIC inventory on an item-by-item basis. See Ex. 4-E column BS; June 10 at 70:11-82:18. Lesser simply made a deliberate choice to ignore the marked-down values and pretend the inventory write-down never happened. Respondent, desperate to explain away this deliberate obfuscation by its star expert witness, repeatedly accused of Petitioner of hiding information on these write-downs. But the only relevant inventory documents not produced by Old ZIC in discovery – Excel spreadsheets of Old ZIC inventory – were in fact obtained separately by Lesser back in 2010 from Helman. See Ex. LLL; April 8 at 39:23-6. Lesser elected to ignore them. June 10 at 84:24-85:5; id. at 88:19-89:8. Respondent’s counsel’s demands to see “inventory write-down documents” were a red herring; as Helman explained at trial, such documents do not exist, nor would he expect them to. See March 19 at 304:6-21. But the very MOD2 spreadsheet used by Lesser did permit him to see write-downs on a per unit basis. See Ex. 4-E column BS. Lesser’s inexplicable decision to ignore write-downs in excess of $2 million was by no means his only error. He treated over 1.6 million yards fabric as if they had been purchased by Old ZIC with zero cost, thereby grossly underestimating cost of goods sold. July 9 at 8:6-9:16; id. at 14:10-15:12. He ignored obvious data entry errors in the MOD2 system which he admitted accounted for at least $316,000 of phantom cost data in 2010 alone. June 10 at 68:19-70:10; June 11 at 170:8-171:21. And although Old ZIC distributed hundreds of thousands of yards of 24 fabric every year as samples to customers, Lesser failed to exclude samples from his analysis, despite recognizing that under GAAP such items are not part of a company’s reportable inventory as they are not held “for sale.” See June 10 at 92:21-93:12; Ex. 4-A (137,215 yards in 2007 for which “Sales Order Model” – Column P – is designated as “Sample”); Ex. 4-B (136,256 yards in 2008); Ex. 4-C (125,423 yards in 2009); Ex. 4-D (132,521 yards in 2010). Finally, Respondent’s attempt to corroborate Lesser’s 2004-2010 inventory analysis by pointing to a so-called MOD2 “costed inventory report” for the years 2011 and 2012 was blatant opportunism. Lesser had earlier unequivocally stated that the MOD2 costed inventory reports were “unreliable.” June 10 at 27:7-28:6; id. at 46:5-25. Corroborating this, Danny testified that he does not use the report in question and that it is just one of “thousands” of possible reports that the system can generate. March 18 at 221:16-222:8. CONCLUSION For these reasons, Petitioner respectfully requests that the Court fix the value of Respondent’s shares of Old ZIC at $1,303,801, deny Respondent any adjustments to this value, and order any other relief that it deems just and proper. Dated: New York, New York August 8, 2014 Respectfully submitted, COOLEY LLP By /s/ Jason Koral Jason Koral 1114 Avenue of the Americas New York, NY 10036 Tel: (212) 479-6000 Fax: (212) 479-6275 [email protected] Counsel for Petitioner 25 ANNEX 1: Impact on Valuation of Legacy Customer Revenue and SEAM Line Item (Headings taken from Ex. 186 at Schedule 1.2; new or modified rows indicated by italics) Indicated value, operating equity value (control, marketable) Vannucci (unadjusted) Vannucci without SEAM Vannucci without SEAM or Legacy Customer Revenue $5,930,000 $5,930,000 $5,930,000 Less: Incidental value due to $2.08 million of Legacy Customer Revenue - $350,000* Old ZIC Operating Equity Value $5,580,000 Times: SEAM Fair value, operating equity (control, marketable) 18.40% $7,022,980 $5,930,000 $5,580,000 Cash and cash equivalents Excess working capital Non-operating assets (liabilities) Fair value, equity (control, marketable) $282,539 $692,902 + $894,848 $282,539 $692,902 + $894,848 $282,539 $692,902 + $894,848 $8,893,269 $7,800,289 $7,450,289 30% 30% 30% $6,225,000 $5,460,202 $5,215,202 Respondent’s 25% interest based on DLOM of 30% $1,556,250† $1,365,051 $1,303,801 Respondent’s 25% interest based on DLOM range (30% - 16%) ‡ $1,556,250 - $1,867,586 $1,365,051 - $1,638,061 $1,303,801 - $1,564,561 Less: DLOM of 30% Fair value, equity (control, non marketable) (rounded) * Baliban testified that he had calculated the valuation impact of the Legacy Customer revenue as roughly $350,000. March 19 at 377:23. † Calculations in this column are taken verbatim from the Vannucci Report. The resulting figure was the basis for Petitioner’s offer for Respondent’s shares pursuant to BCL § 623(g). SOF ¶ 9. ‡ Range based on 16% floor from Giaimo (for REHCs) and Vannucci’s unrebutted finding that 30% would be appropriate for Old ZIC. ANNEX 2: Respondent’s Waste and Corporate Opportunity Allegations 2009-2010 (as presented by Lesser) 2009 2010 Total $1,153,857 - $959,000 $194,857 $1,591,243 - $1,188,000 $403,243 $598,100 Kathrin Zelouf Salary $113,200 $110,800 $224,000 Automobile Expenses Actual Expenses Vannucci Benchmark "Excess" $93,000 - $18,000 $75,000 $82,000 - $18,000 $64,000 + $139,000 $92,000 $229,000 + $321,000 Officer Salaries Total Salaries Vannucci Benchmark "Excess" Legacy Customers Estimated Profit Grand Total Respondent's Interest $1,282,100 $240,275 2007-2010 (Lesser calculations with 2007 and 2008 data from Vannucci Report) 2007 2008 2009 2010 Total $653,665 - $1,071,000 ($417,335) $727,620 - $1,228,000 ($500,380) $1,153,857 - $959,000 $194,857 $1,591,243 - $1,188,000 $403,243 ($319,615) Kathrin Zelouf Salary $124,800 $124,800 $113,200 $110,800 $473,600 Automobile Expenses Actual Expenses Vannucci Benchmark "Excess" $109,000 - $18,000 $91,000 $117,000 - $18,000 $99,000 $93,000 - $18,000 $75,000 $82,000 - $18,000 $64,000 $329,000 $47,000 $92,000 $229,000 + $368,000 Officer Salaries Total Salaries Vannucci Benchmark "Excess" Legacy Customers Estimated Profit Grand Total Respondent's Interest $850,985 $212,746
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