UNITED STATES SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
SCHEDULE TO
(RULE 14D-100)
TENDER OFFER STATEMENT UNDER SECTION 14(D)(1) OR 13(E)(1)
OF THE SECURITIES EXCHANGE ACT OF 1934
PEPSI-GEMEX, S.A. DE C.V.
(Name of Subject Company (Issuer))
THE PEPSI BOTTLING GROUP, INC.
BOTTLING GROUP, LLC
PBG GRUPO EMBOTELLADOR HISPANO-MEXICANO, S.L.
(Name of Filing Persons (Offerors))
Global Depositary Shares
(Each representing six Ordinary Participation Certificates of the subject
Company)
Ordinary Participation Certificates
(Each representing one Series B Common Share, one Series D Preferred Share
and one Series L Limited Voting Share of the subject Company)
Series B Common Shares, without stated par value
Series D Preferred Shares, without stated par value*
Series L Limited Voting Shares, without stated par value*
(Title of Class of Securities)
713435105 (Global Depositary Shares)
(CUSIP Number of Class of Securities)
PAMELA C. MCGUIRE, ESQ.
SENIOR VICE PRESIDENT, GENERAL COUNSEL AND SECRETARY
THE PEPSI BOTTLING GROUP, INC.
ONE PEPSI WAY
SOMERS, NEW YORK 10589
(914) 767-6000
WITH A COPY TO:
CARLOS E. MARTINEZ, ESQ.
ALLAN R. WILLIAMS, ESQ.
PROSKAUER ROSE LLP
1585 BROADWAY
NEW YORK, NEW YORK 10036
(212) 969-3000
(Name, Address and Telephone Number of Person Authorized to
Receive Notices and Communications on Behalf of Filing Persons)
CALCULATION OF FILING FEE
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<Caption>
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TRANSACTION VALUATION* AMOUNT OF FILING FEE
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$885,071,094 $81,427
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* Represents the U.S. dollar equivalent of the aggregate cash consideration in
Mexican pesos to be paid by the filing person for all outstanding Series B
Common Shares, Series D Preferred Shares and Series L Limited Voting Shares of
the subject company, including those represented by CPOs and GDSs, calculated
using the noon buying exchange rate published by the Federal Reserve Bank of
New York on October 3, 2002 of Ps.10.131 to US$1.00.
* The Series D Preferred Shares and the Series L Limited Voting Shares are
separately registered under Section 12(b) of the Securities Exchange Act of
1934.
[ ] Check the box if any part of the fee is offset as provided by Rule
0-11(A)(2) and identify the filing with which the offsetting fee was
previously paid. Identify the previous filing by registration statement
number, or the form or schedule and the date of its filing.
Amount previously paid: ---------------
Filing party: -------------------------
Form or registration No.: -------------
Date filed: ---------------------------
[ ] Check the box if the filing relates solely to the preliminary
communications made before the commencement of a tender offer
Check the appropriate boxes below to designate any transactions to which the
statement relates:
[X] Third-party tender offer subject to Rule 14D-1.
[ ] Issuer tender offer subject to Rule 13E-4.
[X] Going-private transaction subject to Rule 13E-3.
[ ] Amendment to Schedule 13D under Rule 13D-2.
[ ] Check the box if the filing is a final amendment reporting the results of a
tender offer.
This Schedule TO is being filed in connection with a tender offer in the
United States (the "U.S. Offer") by The Pepsi Bottling Group, Inc., a Delaware
corporation ("PBG"), through PBG Grupo Embotellador Hispano-Mexicano, S.L.
("Embotellador HM"), a Spanish limited liability company and an indirect
subsidiary of Bottling Group, LLC ("BG LLC"), a Delaware limited liability
company and the principal operating subsidiary of PBG, to purchase for cash all
of the outstanding Global Depositary Shares (the "GDSs") of Pepsi-Gemex, S.A. de
C.V. ("Gemex"), a variable stock corporation organized under the laws of Mexico,
and all outstanding Series B Common Shares (the "Shares") and Ordinary
Participation Certificates (the "CPOs," and collectively with the Shares and the
GDSs, the "Securities") of Gemex held by persons who are not Mexican residents.
Each CPO represents one Share, one Series D Preferred Share and one Series L
Limited Voting Share. Each GDS represents six CPOs. Simultaneously with the U.S.
Offer, Embotellador HM is offering in Mexico (the "Mexican Offer") to purchase
all outstanding Shares and CPOs of Gemex, including those held by U.S.
residents, on substantially the same terms as the U.S. Offer.
ITEM 1. SUMMARY TERM SHEET
The information set forth in the U.S. Offer to Purchase, dated October 7,
2002, which is attached as Exhibit 12(a)(1) to this Schedule TO, under the
caption "Summary Term Sheet" is incorporated herein by reference.
ITEM 2. SUBJECT COMPANY INFORMATION
The information set forth in the U.S. Offer to Purchase under the caption
"Information Regarding Gemex" is incorporated herein by reference.
ITEM 3. IDENTITY AND BACKGROUND OF FILING PERSON
The information set forth in the U.S. Offer to Purchase under the caption
"Information Regarding PBG and Embotellador HM" is incorporated herein by
reference.
The information set forth in Annex I to the U.S. Offer to Purchase under
the caption "Information Concerning Directors and Executive Officers of
Embotellador HM, BG LLC, PBG and PepsiCo" is incorporated herein by reference.
Neither PBG, BG LLC, Embotellador HM or PepsiCo, Inc., a North Carolina
corporation, nor any of their respective directors and executive officers (i)
was convicted in a criminal proceeding during the past five years (excluding
traffic violations or similar misdemeanors), and (ii) was a party to any
judicial or administrative proceeding during the past five years (except for
matters that were dismissed without sanction or settlement) that resulted in a
judgment, decree or final order enjoining the person from future violations of,
or prohibiting activities subject to, federal or state securities laws, or a
finding of any violation of federal or state securities laws.
ITEM 4. TERMS OF THE TRANSACTION
The information set forth in the U.S. Offer to Purchase under the caption
"The U.S. Offer" is incorporated herein by reference.
(a)(1)(ix), (x) and (xi) Not applicable.
(a)(2) Not applicable.
(f) Not applicable
ITEM 5. PAST CONTACTS, TRANSACTIONS, NEGOTIATIONS AND AGREEMENTS
The information set forth in the U.S. Offer to Purchase under the caption
"Past Contacts, Transactions, Negotiations and Agreements" is incorporated
herein by reference.
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ITEM 6. PURPOSES OF THE TRANSACTION AND PLANS OR PROPOSALS
The information set forth in the U.S. Offer to Purchase under the captions
"Special Factors -- Background to the Offers" and "The U.S. Offer -- Our plans
for Gemex; transactions and operations following the U.S. Offer" is incorporated
herein by reference.
ITEM 7. SOURCE AND AMOUNT OF FUNDS OR OTHER CONSIDERATION
The information set forth in the U.S. Offer to Purchase under the captions
"The U.S. Offer -- Sources of funds" and "Information Agent, Receiving Agents,
U.S. Dealer Manager and other expenses" is incorporated herein by reference.
ITEM 8. INTEREST IN SECURITIES OF THE SUBJECT COMPANY
The information set forth in the U.S. Offer to Purchase under the captions
"Past Contacts, Transactions, Negotiations and Agreements," "Information
Regarding Gemex" and "Special Factors -- Background to the Offers" is
incorporated herein by reference.
ITEM 9. PERSON/ASSETS, RETAINED, EMPLOYED, COMPENSATED OR USED
The information set forth in the U.S. Offer to Purchase under the caption
"The U.S. Offer -- Information Agent, Receiving Agents, Dealer Manager and other
expenses" is incorporated herein by reference.
ITEM 10. FINANCIAL STATEMENTS
The information set forth in the U.S. Offer to Purchase under the caption
"Information Regarding Gemex -- Selected financial data of Gemex" is
incorporated herein by reference. In addition, the Audited Consolidated
Financial Statements of Gemex at December 31, 2000 and 2001, and for each of the
three years in the period ended December 31, 2001, attached hereto as Exhibit
12(a)(8), are incorporated herein by reference. Finally, Gemex's report on Form
6-K filed with the SEC on July 26, 2002, attached hereto as Exhibit 12(a)(9),
which includes financial information and a press release regarding financial
results of Gemex during the period ended June 30, 2002, is incorporated herein
by reference.
ITEM 11. ADDITIONAL INFORMATION
The information set forth in the U.S. Offer to Purchase under the captions
"The U.S. Offer -- Certain legal matters; regulatory approvals," The U.S.
Offer -- Certain conditions to the U.S. Offer," "Past Contacts, Transactions,
Negotiations and Agreements" and "Exemptions Requested From the Securities and
Exchange Commission" is incorporated herein by reference.
(a)(1) and (3) through (5) and (b) None
ITEM 12. EXHIBITS
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(a)(1) U.S. Offer to Purchase, dated October 7, 2002
(a)(2) Form of GDS Letter of Transmittal
(a)(3) Form of Letter to Brokers, Dealers, Commercial Banks, Trust
Companies and other Nominees
(a)(4) Form of Letter to Clients
(a)(5) Notice of Guaranteed Delivery
(a)(6) Guidelines for certification of Taxpayer Identification
Number on substitute Form W-9
(a)(7) Summary Advertisement, dated October 7, 2002, published in
The Wall Street Journal
(a)(8) Audited Consolidated Financial Statements of Gemex at
December 31, 2000 and 2001, and for each of the three years
in the period ended December 31, 2001
(a)(9) Gemex's Report on Form 6-K filed with the SEC on July 26,
2002
</Table>
3
<Table>
(a)(10) Press release, dated October 7, 2002, announcing the
commencement of the offers
(a)(11) Press release, dated May 7, 2002 (incorporated by reference
to PBG's Schedule TO-C filed with the SEC on May 7, 2002)
(a)(12) Notice to employees, dated May 7, 2002 (incorporated by
reference to PBG's Schedule TO-C filed with the SEC on May
7, 2002)
(a)(13) Non-binding Term Sheet (incorporated by reference to PBG's
Schedule TO-C filed with the SEC on May 7, 2002)
(a)(14) Press release, dated August 13, 2002 (incorporated by
reference to PBG's Schedule TO-C filed with the SEC on
August 14, 2002)
(a)(15) Third quarter conference call script (incorporated by
reference to PBG's Schedule TO-C filed with the SEC on
October 1, 2002)
(a)(16) Third quarter conference call script, with Q&A session
(incorporated by reference to PBG's Schedule TO-C filed with
the SEC on October 3, 2002)
(a)(17) Summary of the Mexican Offer to Purchase
(b)(1) U.S. $1,200,000,000 Senior Credit Agreement by and among
PBG, as the borrower, certain lenders specified therein,
Salomon Smith Barney Inc., Credit Suisse First Boston
Corporation and Deutsche Bank Securities Inc., as joint lead
arrangers, Citibank, N.A., Credit Suisse First Boston,
Cayman Islands Branch and Deutsche Bank AG New York Branch,
as joint syndication agents, and BG LLC, as guarantor
(c)(1) Salomon Smith Barney Inc. fairness opinion
(c)(2) Salomon Smith Barney Inc. presentation to the Board of
Directors of PBG
(d)(1) Agreement to Tender, dated October 4, 2002, by and among BG
LLC, Embotellador HM and PepsiCo, Inc.
(d)(2) Agreement to Tender, dated October 4, 2002, by and among BG
LLC, Embotellador HM and Mr. Enrique C. Molina Sobrino
(d)(3) Escrow Agreement, dated October 4, 2002, by and among PBG,
Embotellador HM, Mr. Enrique C. Molina Sobrino and The Bank
of New York
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ITEM 13. INFORMATION REQUIRED BY SCHEDULE 13E-3.
The information required by Schedule 13E-3 is included in the responses to
the other Items of this Schedule TO. In addition, the information set forth in
the U.S. Offer to Purchase under the caption "Special Factors" is incorporated
herein by reference.
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SIGNATURES
After due inquiry and to the best of my knowledge and belief, I certify
that the information set forth in this Schedule TO is true, complete and
correct.
PBG GRUPO EMBOTELLADOR HISPANO-MEXICANO,
S.L.
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October 7, 2002 By: /s/ INIGO MADARIAGA
--------------------------------------------------
Name: Inigo Madariaga
Title: Managing Director
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After due inquiry and to the best of my knowledge and belief, I certify
that the information set forth in this Schedule TO is true, complete and
correct.
THE PEPSI BOTTLING GROUP, INC.
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October 7, 2002 By: /s/ ALFRED H. DREWES
--------------------------------------------------
Name: Alfred H. Drewes
Title: Senior Vice President & Chief Financial
Officer
</Table>
After due inquiry and to the best of my knowledge and belief, I certify
that the information set forth in this Schedule TO is true, complete and
correct.
BOTTLING GROUP, LLC
<Table>
October 7, 2002 By: /s/ ALFRED H. DREWES
--------------------------------------------------
Name: Alfred H. Drewes
Title: Principal Financial Officer
</Table>
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EXHIBIT INDEX
<Table>
(a)(1) U.S. Offer to Purchase, dated October 7, 2002
(a)(2) Form of GDS Letter of Transmittal
(a)(3) Form of Letter to Brokers, Dealers, Commercial Banks, Trust
Companies and other Nominees
(a)(4) Form of Letter to Clients
(a)(5) Notice of Guaranteed Delivery
(a)(6) Guidelines for certification of Taxpayer Identification
Number on substitute Form W-9
(a)(7) Summary Advertisement, dated October 7, 2002, published in
The Wall Street Journal
(a)(8) Audited Consolidated Financial Statements of Gemex at
December 31, 2000 and 2001, and for each of the three years
in the period ended December 31, 2001
(a)(9) Gemex's Report on Form 6-K filed with the SEC on July 26,
2002
(a)(10) Press release, dated October 7, 2002, announcing the
commencement of the Offers
(a)(11) Press release, dated May 7, 2002 (incorporated by reference
to PBG's Schedule TO-C filed with the SEC on May 7, 2002)
(a)(12) Notice to employees, dated May 7, 2002 (incorporated by
reference to PBG's Schedule TO-C filed with the SEC on May
7, 2002)
(a)(13) Non-binding Term Sheet (incorporated by reference to PBG's
Schedule TO-C filed with the SEC on May 7, 2002)
(a)(14) Press release, dated August 13, 2002 (incorporated by
reference to PBG's Schedule TO-C filed with the SEC on
August 14, 2002)
(a)(15) Third quarter conference call script (incorporated by
reference to PBG's Schedule TO-C filed with the SEC on
October 1, 2002)
(a)(16) Third quarter conference call script, with Q&A session
(incorporated by reference to PBG's Schedule TO-C filed with
the SEC on October 3, 2002)
(a)(17) Summary of the Mexican Offer to Purchase
(b)(1) U.S. $1,200,000,000 Senior Credit Agreement by and among
PBG, as the borrower, certain lenders specified therein,
Salomon Smith Barney Inc., Credit Suisse First Boston
Corporation and Deutsche Bank Securities Inc., as joint lead
arrangers, Citibank, N.A., Credit Suisse First Boston,
Cayman Islands Branch and Deutsche Bank AG New York Branch,
as joint syndication agents, and BG LLC, as guarantor
(c)(1) Salomon Smith Barney Inc. fairness opinion
(c)(2) Salomon Smith Barney Inc. presentation to the Board of
Directors of PBG
(d)(1) Agreement to Tender, dated October 4, 2002, by and among BG
LLC, Embotellador HM and PepsiCo, Inc.
(d)(2) Agreement to Tender, dated October 4, 2002, by and among BG
LLC, Embotellador HM and Mr. Enrique C. Molina Sobrino
(d)(3) Escrow Agreement, dated October 4, 2002, by and among PBG,
Embotellador HM, Mr. Enrique C. Molina Sobrino and The Bank
of New York
</Table>