UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
SCHEDULE TO/A
(RULE 14D-100)
TENDER OFFER STATEMENT UNDER SECTION 14(D)(1) OR 13(E)(1)
OF THE SECURITIES EXCHANGE ACT OF 1934
(AMENDMENT NO. 1)
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
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
Transaction Valuation** AMOUNT OF FILING FEE
$885,071,094 $81,427
* 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.
** Represents the U.S. dollar equivalent of the aggregate cash consideration
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.
[X] 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: $81,427
Filing party: The Pepsi Bottling Group, Inc.
Bottling Group, LLC
PBG Grupo Embotellador Hispano-Mexicano, S.L.
Form or registration No.: 5-46036
Date filed: October 7, 2002
[ ] 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.
AMENDMENT NO. 1
This amendment No. 1 amends and supplements the statement on Schedule TO filed
by The Pepsi Bottling Group, Inc. ("PBG"), a Delaware corporation, Bottling
Group, LLC ("BG LLC"), a Delaware limited liability company and the principal
operating subsidiary of PBG and PBG Grupo Embotellador Hispano-Mexicano, S.L.
("Embotellador HM"), a Spanish limited liability company and an indirect
subsidiary of BG LLC, on October 7, 2002, in connection with a tender offer in
the United States (the "U.S. Offer") by PBG, through Embotellador HM, 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 provided in Items 4 and 13 below is hereby incorporated
herein by reference.
ITEM 4. TERMS OF TRANSACTION
Item 4 of Schedule TO is hereby amended as follows:
The phrase "prior to the expiration of the Offers" replaces "before the
acceptance of the Securities for payment" in clause (v) at the end of the first
paragraph under the caption "Certain Conditions to the U.S. offer" (immediately
preceding the conditions list) on page 24 of the U.S. Offer to Purchase.
ITEM 13. INFORMATION REQUIRED BY SCHEDULE 13E-3
Item 13 of Schedule TO is hereby amended as follows:
The following sentence is inserted under the caption "Background to the
Offers" on page 10 of the U.S. Offer to Purchase at the end of the fifth full
paragraph on that page (which begins with "In a number of meetings..."): "The
timing of the transaction was expected to permit it to be completed before Phase
II of the joint venture agreement began and operating control of Gemex would
shift from Mr. Molina to PepsiCo."
The following sentence is added on page 12 of the U.S. Offer to
Purchase in the first paragraph under the caption "Effect of the Offers,"
immediately prior to the sentence that begins with "Following the consummation
of the Mexican Offer": "The deregistration of the GDSs and the underlying CPOs,
Shares, D Shares and L Shares under Section 12(b) of the Exchange Act would make
the reporting provisions of Section 13 of the Exchange Act no longer applicable
to Gemex by reason of registration of its equity securities. However, Gemex may
continue to be subject to such reporting requirements pursuant to Section 15(d)
of the Exchange Act by reason of its outstanding 9-3/4% Guaranteed Series B
Senior Notes due 2004."
The first bullet point in the list of Bidders' considerations
supporting the fairness determination under the caption "Position of PBG, BG LLC
and Embotellador HM regarding the fairness of the Offers and the reverse stock
split - Fairness to the security holders of Gemex" on page 19 of the U.S. Offer
to Purchase, is hereby being amended and restated as follows: "The assumption
that, after considering, and based upon, factors deemed relevant by the Board of
Directors of Gemex, that Board of Directors would recommend to Gemex's security
holders (other than PepsiCo, Mr. Molina and their respective affiliates) that
they accept the Offers and tender their Securities in the Offers. Gemex's
Schedule 14D-9 filed with the SEC on October 7, 2002, reported that the Board of
Directors of Gemex by a unanimous vote of all directors and alternate directors
present at its October 3, 2002 meeting, which included a majority of the
directors of Gemex who are not Gemex employees, determined that the Offers are
fair to security holders of Gemex (other than PepsiCo, Mr. Molina and their
respective affiliates) and determined to recommend that the unaffiliated
security holders of Gemex accept the Offers and tender their Securities in the
Offers. The Bidders believe that this supports the determination of procedural
fairness of the Offers."
3
The second bullet point in the list of Bidders' considerations
supporting the fairness determination under the caption "Position of PBG, BG LLC
and Embotellador HM regarding the fairness of the Offers and the reverse stock
split - Fairness to the security holders of Gemex" on page 19 of the U.S. Offer
to Purchase, is hereby being amended and restated as follows: "The assumption
that the Board of Directors of Gemex would receive a written opinion from a
major United States investment bank that, as of the date of such opinion, the
cash consideration to be received by the security holders of Gemex in the Offers
was fair to the security holders of Gemex (other than PepsiCo, Mr. Molina and
their respective affiliates) from a financial point of view. Gemex's Schedule
14D-9 filed with the SEC on October 7, 2002, reported that the Board of
Directors of Gemex received such an opinion from Merrill Lynch, an unaffiliated
financial advisor to Gemex, to the effect that, as of October 3, 2002 and based
upon and subject to the factors and assumptions set forth in its opinion, the
consideration to be received pursuant to the Offers by the holders of the
Securities, other than PepsiCo, Mr. Molina and their respective affiliates, was
fair, from a financial point of view, to those holders. The Bidders believe that
the opinion supports the determination of the fairness of the prices offered to,
and the retention of an unaffiliated financial advisor by the Board of Directors
of Gemex supports the determination of procedural fairness for, unaffiliated
security holders of Gemex."
The fifth bullet point in the list of Bidders' considerations
supporting the fairness determination under the caption "Position of PBG, BG LLC
and Embotellador HM regarding the fairness of the Offers and the reverse stock
split - Fairness to the security holders of Gemex" on page 19 of the U.S. Offer
to Purchase, is hereby being amended and restated as follows: "The Offers, the
Mexican Stock Exchange de-listing offer and the reverse stock split provide the
Gemex security holders substantially greater opportunity to sell their holdings
in Gemex at a premium than has been available in the public market, where
historically low volumes of trading have greatly limited liquidity, without the
usual transaction costs associated with open market sales. The offering prices
per CPO and per GDS exceed the market prices per CPO and per GDS, respectively,
for a period of 30 months prior to May 7, 2002, the date the Bidders announced
the Offers."
The following phrase is added at the end of the seventh bullet point in
the list of Bidders' considerations supporting the fairness determination under
the caption "Position of PBG, BG LLC and Embotellador HM regarding the fairness
of the Offers and the reverse stock split - Fairness to the security holders of
Gemex" on page 19 of the U.S. Offer to Purchase: "......... and supports the
determination of procedural fairness."
The eighth bullet point in the list of Bidders' considerations
supporting the fairness determination under the caption "Position of PBG, BG LLC
and Embotellador HM regarding the fairness of the Offers and the reverse stock
split - Fairness to the security holders of Gemex" on page 19 of the U.S. Offer
to Purchase, is hereby being amended and restated as follows: "Mr. Molina, the
Chairman of the Board of Directors and Chief Executive Officer of Gemex, in his
capacity as the largest security holder of Gemex, has agreed to tender his
securities, and to cause his affiliates identified in the Molina Agreement to
Tender to tender their Securities in the Offers for the same consideration
offered to other security holders of Gemex. The Bidders believe that this fact
provides meaningful protection and supports their determination of procedural
fairness to the unaffiliated security holders of Gemex."
The following bullet point is added at the end of the list of Bidders'
considerations supporting the fairness determination under the caption "Position
of PBG, BG LLC and Embotellador HM regarding the fairness of the Offers and the
reverse stock split - Fairness to the security holders of Gemex" on page 20 of
the U.S. Offer to Purchase:" The Bidders valued Gemex on a going concern basis,
which they believe results in a higher valuation than a valuation based on the
liquidation value of Gemex. In addition, the Bidders believe that valuation on a
going concern basis is a better indication of the value of Gemex than a
valuation based on net book value."
The paragraph immediately following the list of Bidders' considerations
supporting the fairness determination under the caption "Position of PBG, BG LLC
and Embotellador HM regarding the fairness of the Offers and the reverse stock
split - Fairness to the security holders of Gemex" on page 20 of the U.S. Offer
to Purchase, is hereby being amended and restated as follows: "The Bidders
believe that each of the foregoing factors is relevant to all Gemex security
holders who are not affiliated with the Bidders, PepsiCo or Mr. Molina. The
Bidders also believe that the potentially negative factors do not, individually
or in the aggregate, outweigh the overall fairness of the Offers and the reverse
stock split to Gemex's security holders other than Mr. Molina, PepsiCo and their
respective affiliates. The Bidders were able to reach the determination of
procedural fairness to the unaffiliated security holders of Gemex in the absence
of the retention of an unaffiliated representative to act solely on behalf of
such unaffiliated security holders because of the overall impact of those
factors noted above that support the determination of procedural fairness."
4
SIGNATURES
After due inquiry and to the best of my knowledge and belief, I certify that
the information set forth in this statement is true, complete and correct.
PBG Grupo Embotellador Hispano-Mexicano,
S.L.
October 25, 2002 By: /s/ Inigo Madariaga
----------------------------------------
Name: Inigo Madariaga
Title: Managing Director
After due inquiry and to the best of my knowledge and belief, I certify that
the information set forth in this statement is true, complete and correct.
The Pepsi Bottling Group, Inc.
October 25, 2002 By: /s/ Alfred H. Drewes
----------------------------------------
Name: Alfred H. Drewes
Title: Senior Vice President &
Chief Financial Officer
After due inquiry and to the best of my knowledge and belief, I certify that
the information set forth in this statement is true, complete and correct.
Bottling Group, LLC
October 25, 2002 By: /s/ Alfred H. Drewes
----------------------------------------
Name: Alfred H. Drewes
Title: Principal Financial Officer
5