EXHIBIT 10.49
SHARE SUBSCRIPTION AGREEMENT
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This SHARE SUBSCRIPTION AGREEMENT, dated as of October 2, 2002 (together
with its Schedules and Exhibits and as amended or supplemented from time to
time, the "Agreement") is entered into by and between Coca Cola de Panama Cia.
Embotelladora, S.A., a corporation organized and existing according to the
laws of the Republic of Panama ("Coca Cola" or the "Seller"), and CA
Beverages, Inc., a corporation organized and existing according to the laws of
the Republic of Panama (the "Buyer").
CONSIDERING
THAT, Seller owns and operates soft drink bottling and distribution facilities
in the Republic of Panama;
THAT, Seller also is the owner, directly or indirectly, among other
investments: (i) of approximately fifty one and one-half percent (51.5%) of
the issued and outstanding capital stock of Cervecerias Baru-Panama, S.A.
("CBP"), a corporation organized according to the laws of the Republic of
Panama that owns and operates beer bottling and distribution facilities in the
Republic of Panama (a "Company" and, jointly with the Seller, the
"Companies"); and (ii) a majority share interest in the issued and outstanding
capital stock of Crecimiento y Desarrollo, S.A. ("Credesa") and Ventas y
Mercadeo, S.A. ("Vemersa");
THAT, CBP is the owner, directly or indirectly, among other investments, of a
majority share interest in the issued and outstanding capital stock of
Cerveceria Panama, S.A. ("Cerveceria Panama"), Cerveceria del Baru, S.A.
("Baru"), Direccion y Administracion de Empresas, S.A. ("Daesa"), Panama Beer
Import S.A. ("Panama Beer"), Panama Brew Inc. ("Panama Brew"), and Grupo El
Hangar, S.A. ("Hangar");
THAT, with the advice and support of its financial advisor, the Seller
undertook a process to select a strategic partner in order to improve the
Seller's ability to face the challenges presented by globalization and by
changes in the local market;
THAT, as a result of that process, the Seller has selected Buyer as its
strategic partner;
THAT, the Buyer is wholly owned by and a joint venture of Heineken Finance
N.V. (a wholly-owned, indirect subsidiary of Heineken N.V.), Florida Ice and
Farm Co., and Inter-American Financial Corporation (a wholly owned subsidiary
of Panamerican Beverages Inc.) (jointly, the "Sponsors");
THAT, the Seller wishes to issue, and the Buyer wishes to buy, 3,934,246
shares (representing 50% of the issued and outstanding voting shares plus one
voting share) of newly issued and authorized common shares, no par value, of
Seller (the "Shares"), according to the terms and subject to the conditions
set out in this Agreement; and
THAT, after the issuance of the Shares and the change of control of the
Companies effected thereby, the Seller and the Buyer wish to give the
shareholders of both Companies (as
existed immediately prior to the issuance of the Shares) the opportunity to
decide to maintain or to sell their share interests therein.
THEREFORE, Seller and Buyer agree as follows:
ARTICLE I
SUBSCRIPTION FOR SHARES
1.1 Subscription. On the basis of the representations and warranties herein
contained, and subject to the terms, conditions and agreements herein set
forth, Seller hereby issues and sells to the Buyer an aggregate of 3,934,246
Shares and the Buyer hereby purchases the Shares by making a capital
contribution to the Seller in an amount equal to a price of US$22.55 per
share, for an aggregate purchase price and capital contribution of
US$88,717,247.30 (the "Purchase Price").
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF THE SELLER
2.1 The Seller represents and warrants to the Buyer as follows (for
purposes of this Section 2.1, the term "Coca Cola" shall mean Coca Cola and
all of its direct and indirect subsidiaries except for CBP and all of its
direct and indirect subsidiaries and the term "CBP" shall mean CBP and its
direct and indirect subsidiaries):
(a) Organization and Standing; Articles and Bylaws. Schedule 2.1(a) sets
forth the name of each entity which either Company controls (through its
ability to direct the management or operation of such entity or otherwise) or
has more than a 50% equity or participation interest ("Subsidiaries") and
provides for each Company and Subsidiary its jurisdiction of organization, its
capitalization and the percentage equity or other participation interest
(including options, etc.) owned by the Company, each Subsidiary and any other
natural person, legal entity or governmental or regulatory authority
("Person") with a percentage equity interest in excess of five percent. Each
of the Companies and the Subsidiaries is a corporation duly organized and in
good standing under the laws of its jurisdiction of organization. Each of the
Companies and the Subsidiaries is duly qualified to transact business and is
in good standing in each other jurisdiction in which the ownership or leasing
of its properties or assets or the conduct of its business requires such
qualification, except where the failure to so qualify has not had or would not
have a material adverse effect on or change in the assets, results of
operations, financial condition, business, or prospects of, either Coca Cola,
CBP or any Subsidiary (in either case, a "Material Adverse Effect"). Each of
the Companies and the Subsidiaries has all requisite corporate power to own or
lease and to operate and use its properties and assets and to carry on its
businesses as now conducted. Each of the Companies and the Subsidiaries has
delivered or made available to the Buyer complete and correct copies of its
articles of organization (or equivalent thereof) and, if any, bylaws (or
equivalent thereof), each as in effect on the date hereof.
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(b) Capital Structure. The authorized and outstanding capital stock of
each Company and each Subsidiary is set forth on Schedule 2.1(a). Schedule
2.1(a) includes an accurate and complete list of the stock options issued by
either of the Companies or the Subsidiaries setting forth the name of the
optionee, the exercise price and the number of shares of capital stock subject
to each outstanding option. Except as disclosed in Schedule 2.1(a), there are
no agreements, warrants, puts, calls, rights, preemptive rights, options or
other commitments of any character to which either Company or any Subsidiary
is a party or by which any of them are bound which obligates either Company or
any Subsidiary to issue, deliver, register or sell any additional shares of
capital stock or any securities or instruments convertible into or
exchangeable for additional shares of capital stock. The outstanding shares of
capital stock of each of the Companies and the Subsidiaries are duly and
validly issued and fully paid and nonassessable.
(c) Issuance of Shares. The Shares issued and sold by the Seller to the
Buyer have been duly authorized and, when delivered against payment thereof as
provided herein, will be duly and validly issued, fully paid and
non-assessable and not subject to the pre-emptive rights of any Person. Upon
the closing of this Agreement, the Buyer will own and have good and valid
title to, all of the Shares, free and clear of all Encumbrances (as defined
below), except for any created by the Buyer. Schedule 2.1(c) contains a true
and correct copy of the resolution of the Board of Directors of the Seller
authorizing the issuance of the Shares. The Shares represent at least fifty
percent plus one share of the Seller's outstanding capital stock on a fully
diluted basis (i.e., giving effect to the options and all other rights to
acquire capital stock of the Seller) and give the Buyer, subject to the rights
set forth in Section 5.10 hereof, voting control of the Seller.
(d) Authorization. The Seller has full power, and is properly authorized
and empowered (including corporate authorizations and others) to execute, to
deliver and to comply with this Agreement. This Agreement constitutes the
valid, legal and binding obligation of the Seller, enforceable against the
Seller according to its terms, except as enforcement may be limited by
bankruptcy, insolvency, reorganization, moratorium or similar laws now or
hereafter in effect affecting the enforcement of creditors' rights generally.
(e) No Conflicts or Consents.
(i) The execution, delivery and performance of this Agreement,
including the issuance and delivery of the Shares and the proper registration on
the share registry book of the Seller of the Shares in the name of the Buyer and
the execution, delivery and performance of any related agreements or
contemplated transactions by the Seller will not: (a) violate, contravene, or
constitute a breach or default (whether upon lapse of time or the occurrence
of any act or event or otherwise) under, the charter documents or by-laws (or
comparable governing documents) of either Company or any Subsidiary; (b)
violate any law, statute, regulation, judgment, order, writ, injunction, or
decree of any court, administrative agency, or governmental body applicable to
any Company or any Subsidiary or any of their respective properties, assets or
outstanding debt or equity securities; (c) contravene, conflict with or
constitute a breach or default (whether upon lapse of time and/or the
occurrence of any act or event or otherwise) under any contract to
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which either Company or any Subsidiary is a party, except (x) where any such
violation, breach or default would not have a material adverse effect on the
ability of either Company or any Subsidiary to perform their obligations under
this Agreement or limit or impair any right of Buyer under or with respect to
the Shares and (y) as set forth in Schedule 2.1(e)(i). (ii) No consent, notice
or approval by any governmental or regulatory entity or stock exchange or any
other Person is required in connection with the execution of this Agreement or
the consummation of the transactions provided for herein or contemplated
hereby, with the exception of the consents, notices and approvals set forth in
Schedule 2.1(e)(ii).
(f) Financial Statements; No Undisclosed Liabilities, Inventories and
Receivables.
(i) The Buyer has been furnished with copies of the financial
statements set forth on Schedule 2.1(f)(i) (collectively, the "Financial
Statements"). The Financial Statements: (A) are correct and complete in all
material respects and have been prepared in accordance with the books and
records of the Companies and the Subsidiaries; (B) have been prepared in
accordance with international accounting standards ("IAS") consistently applied
throughout the periods covered; (C) reflect and provide adequate reserves in
respect of all liabilities, including all contingent liabilities, as of their
respective dates; and (D) present fairly the consolidated financial condition
of each of Coca Cola and CBP at such dates and the results of its operations
for the fiscal periods then ended.
(ii) Each Company and the Subsidiaries keep books, records and
accounts that, in reasonable detail, accurately and fairly reflect (A) the
transactions and dispositions of their respective assets and (B) the value of
inventory calculated in accordance with IAS.
(iii) The inventories of the Companies and the Subsidiaries as of the
date hereof are good and merchantable, and the aggregate quantity of inventory
for each of Coca Cola and CBP is reasonable and consistent with past practice.
(iv) All accounts receivable reflected in the Financial Statements,
and all accounts receivable arising since the date of the most recent balance
sheet, represent bona fide claims against debtors for sales arising on or
before the dates thereof, and all the goods delivered and services performed
which give rise to such accounts will have been delivered or performed in
accordance with the applicable orders or customer requirements. The accounts
receivable reflected in the Financial Statements, and all accounts receivable
arising since the date of the most recent balance sheet, will be subject to no
defenses, counterclaims or rights of setoff and will be fully collectible in
the ordinary course of business consistent with past practice without costs
payable by the Buyer to third parties in collection efforts therefor, except
to the extent that reserves for uncollectible accounts receivable are included
in the Financial Statements.
(v) The Net Debt (as defined herein) of CBP and Coca Cola as of
September 25, 2002 was US$9,527,237 and US$11,683,408, respectively. Net Debt
shall
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mean interest-bearing liabilities less cash and cash equivalents determined in
accordance with IAS. Since September 25, 2002, neither the Net Debt of CBP nor
the Net Debt of Coca Cola has increased.
(vi) Since the date of the most recent balance sheet included in
Schedule 2.1(f)(i), the Companies and the Subsidiaries have operated their
businesses in the ordinary course consistent with past practice and no event
has occurred with respect to the Companies that has had or could reasonably be
expected to have a Material Adverse Effect, except as set forth on
Schedule 2.1(f)(vi).
(g) Taxes. Each Company and each Subsidiary has filed or caused to be
filed all material tax returns, tax information returns, reports, and
estimates ("Returns"), for all taxable or reporting periods ending on or
before the date hereof. All Taxes due have been paid in full when due and each
Company and each Subsidiary has established adequate reserves in accordance
with IAS on the books and records and on their respective financial statements
for all Taxes not yet due and payable. All Returns are complete and accurate
in all material respects; and there are no liens on any of the assets of the
Company or any Subsidiary that arose in connection with any failure (or
alleged failure) to pay any Tax. As used in this Agreement, "Taxes" or "Tax"
means all foreign, federal, state and local taxes of any kind, including,
without limitation, income, excise, capital gains, gross receipts, franchise,
employment, sales, use, license, property or withholding taxes and any
interest or penalties related thereto, validly imposed upon the Company and
the Subsidiaries with respect to such taxes.
(h) Material Agreements. Except as set forth in Part A of Schedule
2.1(h), neither of the Companies nor any of the Subsidiaries is a party to, or
is bound by: (i) any agreement, contract or other commitment outside of the
ordinary course of business involving payments by or to either Company or any
Subsidiary of more than US$250,000 in any 12-month period; (ii) any severance
agreement or contract for the employment of any officer or employee (other
than any contract which is terminable without liability upon notice of 90 days
or less), or any severance agreement or contract of employment with a former
officer, director or employee, pursuant to which, in any case, payments in
excess of US$50,000 in any 12-month period are required to be made by either
Company or any Subsidiary after the date hereof; (iii) any contract or
obligation relating to any outstanding indebtedness for borrowed money by the
Company or any Subsidiary, other than borrowings less than US$250,000 in the
aggregate; (iv) any guarantee or other contingent liability in respect of any
indebtedness or obligation; (v) any collective bargaining agreement; (vi) any
agreement which obligates either Company or any Subsidiary not to compete with
any business or which otherwise restrains or prevents the Company or any of
the Subsidiaries from carrying on any lawful business; or (vii) any sales,
marketing or distribution agreements generating revenues or expenditures in
excess of US$250,000.
Except as set forth in Part B of Schedule 2.1(h), complete and correct
copies of all contracts, agreements and other instruments referred to in Part
A of Schedule 2.1(h) have been made available to the Buyer. Except as
disclosed in Part B of Schedule 2.1(h), all contracts, agreements and other
instruments referred to in Part A of Schedule 2.1(h) are in full force and
effect and enforceable by the relevant Company or Subsidiary against the
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other parties thereto and neither of the Companies nor any Subsidiary, nor any
third party including any employee of either Company or the Subsidiaries, is
in breach of or default under any such contract, agreement or instrument.
(i) Compliance with Laws; Environmental Matters.
(i) Each of the Companies and the Subsidiaries has complied in the
conduct of its business with all applicable laws, except failures to comply
which have not had and would not have a Material Adverse Effect.
(ii) (A) Neither of the Companies nor any Subsidiary is subject to
any order, consent, decree, notice, demand, enforcement proceeding or injunction
issued or initiated by any governmental authority relating to any
environmental law or regulation, (B) neither of the Companies nor any
Subsidiary has been notified in writing that it may be a responsible party or
potentially responsible party under or in violation of or noncompliance with
any environmental law or regulation and (C) there are no events or facts known
to either Company that indicate that either Company or any Subsidiary is or
will be such a responsible party or potentially responsible party or will be
in violation of or not in compliance with any environmental law or regulation.
(iii) Except as has not had and would not have a Material Adverse
Effect, there are no other circumstances or conditions involving either Company
or any Subsidiary that have resulted or are likely to result in any liability
on the part of either Company or any Subsidiary relating to or arising under any
environmental law or regulation.
(j) Litigation. Except as set forth in Schedule 2.1(j), there is no
action, suit, proceeding or investigation pending or, to either Company's
knowledge, threatened against either Company or any Subsidiary. Neither
Company nor any Subsidiary is in default in respect of any judgment, order,
writ, injunction or decree of any court or any governmental authority. Except
as set forth in Schedule 2.1(j), there is no action, suit, investigation or
proceeding pending, or to either Company's knowledge, threatened involving
either Company or any of the Subsidiaries which would be reasonably likely to
have a Material Adverse Effect or a material adverse effect on the ability of
either Company to perform its obligations hereunder, or which seeks to
rescind, void, enjoin or obtain damages in respect of the consummation of the
transactions contemplated hereby.
(k) Labor Matters. Except as set forth in Schedule 2.1(k), neither
Company nor any of the Subsidiaries is a party to any contract or collective
bargaining agreement with any labor organization. Each of the Companies and
each of the Subsidiaries are in compliance with all applicable labor laws and
collective bargaining agreements, except to the extent any non-compliance
would not reasonably be expected to have a Material Adverse Effect. Except as
set forth in Schedule 2.1(k), no strike, slowdown or work stoppage is
occurring or, to the knowledge of the Companies, is threatened to occur. There
is no pending social security or labor complaint involving either Company or
any of the Subsidiaries which would reasonably be expected to have a Material
Adverse Effect. The Companies and the Subsidiaries have established adequate
reserves in accordance with IAS on the books and records and on their
respective financial statements for all labor-related
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obligations. The recent collective bargaining agreement between the Seller and
Sitecovem is on terms and condition that are not materially less advantageous
to the Seller than the terms and conditions of the recently expired collective
bargaining agreement between the Seller and Sitecovem.
(l) Affiliated Transactions. Except as set forth in Schedule 2.1(l),
neither Company nor any Subsidiary is a party to or bound by any contract,
commitment or understanding with any of its respective shareholders, directors
or officers (except for the employment and related agreements listed in
Schedule 2.1(h)) or any of its affiliates or any member of their respective
families, and none of such shareholders, directors or officers or any of their
affiliates or members of their respective families owns or otherwise has any
right to or interest in any asset, tangible or intangible, which is used in
the business of either Company or any Subsidiary. For purposes of this
paragraph, a person will be considered part a "family" if he or she is related
to a shareholder, director or officer within the fourth degree of
consanguinity and second degree of affinity.
(m) Property.
(i) Ownership of Property. Except as set forth in Schedule 2.1(m)(i),
each Company and each Subsidiary has good (and, in the case of owned real
property, marketable) title (or leasehold interest with respect to leased real
property) to all assets which are necessary to the conduct of their respective
businesses, free and clear of any claim, collection, covenant, obligation,
tax, bail, mortgage, lien, preventive sequestration, attachment, option,
privileged credit or restriction ("Encumbrances"), except (A) for liens for
taxes not yet due and payable or being contested in good faith by appropriate
proceedings and for which appropriate reserves have been established on the
relevant Financial Statements or (B) for liens of carriers, warehousemen,
mechanics, materialmen and other similar liens incurred in the ordinary course
of business that do not individually or in the aggregate have a Material
Adverse Effect.
(ii) Personal Property. Each Company and each Subsidiary has good and
marketable title to each item of material personal property free and clear of
all Encumbrances. All material items of personal property are in reasonably
good condition and in a reasonable state of repair, reasonable wear and tear
excepted, and material maintenance on such items has not been deferred beyond
a reasonable time period.
(iii) Intellectual Property. Part A of Schedule 2.1(m)(iii) contains
a complete and correct list of each patent, patent application, registered
trademark, trademark application, registered service mark, service mark
application, trade name, trade secret or copyright owned by, used by, or
licensed for use by either Company or any Subsidiary (together with other
intellectual property rights owned by, used by or licensed for use by either
Company or any Subsidiary, the "Intellectual Property") and the owner of each
item of Intellectual Property. Either Coca Cola, CBP or a Subsidiary is the
owner of all right, title and interest in and to each item of Intellectual
Property. Except as set forth in Part B of Schedule 2.1(m)(iii), either Coca
Cola, CBP or a Subsidiary has the right and authority to use all such
Intellectual Property in connection with the conduct of its business in the
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manner presently conducted and such use does not conflict with, infringe upon
or violate any third parties' intellectual property rights.
(n) Licenses and Permits. Each Company and each Subsidiary owns, holds or
possesses all licenses, permits, privileges, immunities, approvals and other
authorizations which are necessary for the ownership, leasing, operation and
use of its respective assets and business or which is required for the conduct
of its respective business (the "Licenses and Permits"), except (i) where the
failure to own, hold or possess such Licenses and Permits has not had or would
not have a Material Adverse Effect or (ii) as set forth in Schedule 2.1(n).
Each License and Permit is valid and in full force and effect and, to the
knowledge of the Companies, no suspension or cancellation of any License or
Permit is threatened. Except as set forth in Schedule 2.1(n), immediately
after the date hereof, each License and Permit will be valid and in full force
and effect.
(o) Brokerage. Except as set forth on Schedule 2.1(o), none of the
Companies nor any of their Subsidiaries nor any employee, shareholder,
director or agent of the Companies nor any of their Subsidiaries has dealt
with any finder or broker in connection with any of the transactions
contemplated by this Agreement or the negotiations looking toward the
consummation of such transactions who may be entitled to a fee in connection
therewith. Any fees payable to any finder or broker set forth on Schedule
2.1(o) shall be fully paid as provided in Section 5.3(g) and in no
circumstance shall the Buyer or the Seller have any liability therefor.
2.2 Disclosure. To the knowledge of the Seller, the Seller's
representations and warranties in this Agreement do not contain any untrue
statement of a material fact, nor do such representations and warranties omit
statements necessary in order to make such representations and warranties not
misleading. Any disclosure or exception by Seller in this Agreement, in any
Schedule or Exhibit hereto, shall be deemed to be a disclosure or exception,
as the case may be, with respect to the same or any similar matter contained
elsewhere in this Agreement, in any Schedule or Exhibit hereto.
2.3 Knowledge. For purposes of this Article II, "knowledge of the Seller"
or "best knowledge of the Seller" as used in connection with any
representation or warranty made by the Seller means that the representation
and warranty so qualified shall be deemed to be made by the Seller solely on
the basis of the actual knowledge of any of the directors or officers of any
of the Companies. It is expressly agreed by the Buyer that the Buyer shall
have no claim or remedy against Seller for any breach or untruth of any
representation or warranty that is qualified by the phrase "knowledge of
Seller", "Seller's knowledge", "best knowledge of Seller" or "Seller's best
knowledge" except upon a showing by the Buyer that such breach or untruth was
known to any of the already mentioned natural persons.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF THE BUYER
The Buyer represents and warrants to the Seller that:
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3.1 Organization and Related Matters. The Buyer is a corporation duly
organized and in good standing under the laws of Panama. The Buyer has full
power, and is properly authorized and empowered (including corporate
authorizations and others) to execute, to sign, to deliver and to comply with
this Agreement.
3.2 Authorization; Absence of Conflicts. The signing, delivery and
compliance of this Agreement on the part of the Buyer has been properly and
validly authorized by all the necessary acts (corporate and others) on the
part of the Buyer. This Agreement constitutes the valid, legal and binding
obligation of the Buyer, enforceable against the Buyer according to its terms,
except as enforcement may be limited by bankruptcy, insolvency,
reorganization, moratorium or similar laws now or hereafter in effect
affecting the enforcement of creditors' rights generally.
3.3 Legal Proceedings. At the signing of this Agreement, the Buyer has
not been notified of any claim nor has any known threat of claim against the
Buyer (or that which may affect it), that can have a material adverse effect
upon the capability of the Buyer of complying with its obligations under this
Agreement.
3.4 Brokerage. Except as set forth on Schedule 3.4, neither the Buyer nor
any shareholder, employee or agent of the Buyer has dealt with any finder or
broker in connection with any of the transactions contemplated by this
Agreement or the negotiations looking toward the consummation of such
transactions who may be entitled to a fee in connection therewith. Any fees
payable to any finder or broker set forth on Schedule 3.4 shall be the sole
responsibility of the Buyer or its shareholders and in no circumstance shall
the Seller have any liability therefor.
3.5 Experience. The Sponsors have substantial experience: (i) in the
production, distribution and marketing of soft drinks and beer; and (ii)
operating and doing business in emerging markets such as Panama.
3.6 Support of Sponsors. Buyer has the financial ability to perform its
obligations under this Agreement and the financial support of the Sponsors.
ARTICLE IV
DELIVERIES
4.1 Deliveries by the Seller. Contemporaneous with the execution of this
Agreement, Seller shall deliver or cause to be delivered to Buyer:
(a) a stock certificate representing the Shares, together with a
certificate of the secretary of the Seller (or such other evidence reasonably
acceptable to Buyer) certifying that the Shares have been duly registered on
Coca Cola's share registry;
(b) copies of the resignation letters of each of the directors of each of
the Companies and the Subsidiaries, except for the persons set forth in
Schedule 4.1;
(c) copies of the Officers' Letters referred to in Section 5.11 hereof;
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(d) the Coca Cola OPA Trust (as defined below), executed by the Seller,
the Trustee (as defined therein) and the Representative (as defined therein);
(e) the CBP OPA Trust (as defined below), executed by the Trustee (as
defined therein) and the Representative (as defined therein);
(f) the Coca Cola Holdback Trust (as defined below), executed by the
Seller, the Trustee (as defined therein) and the Representative (as defined
therein);
(g) the CBP Holdback Trust (as defined below), executed by Trustee (as
defined therein) and the Representative (as defined therein);
(h) true and correct originals of the duly authorized and executed
notices with respect to the issuance of the shares and the changes of the
Seller's officers and directors to the Comision Nacional de Valores and the
stock exchange in Panama as disclosed in Schedule 2.1(e)(ii);
(i) the legal opinion of Arias, Fabrega and Fabrega in the form of
Exhibit A hereto; and
(j) a true and correct copy of the Seller's board resolution referred to
in Section 5.1 hereof (as well as the resolutions authorizing issuance of the
Shares) and attached hereto as Exhibit B.
4.2 Deliveries by the Buyer. Contemporaneous with the execution of this
Agreement, Buyer shall deliver or cause to be delivered to the Seller:
(a) US$61,570,956.80 of the Purchase Price in immediately available funds
and the remaining US$27,146,290.50 in the form of a letter of credit in the
form attached as Exhibit G hereto;
(b) evidence, in form and substance reasonably satisfactory to the
Seller, of the Buyer's board resolution(s) authorizing this Agreement and the
transactions contemplated hereby;
(c) the Coca Cola OPA Trust (as defined below), executed by the Buyer and
immediately funded by the Buyer as provided for therein;
(d) the CBP OPA Trust (as defined below), executed by the Buyer and
immediately funded by the Buyer as provided for therein;
(e) the Coca Cola Holdback Trust (as defined below), executed by the
Buyer and immediately funded by the Buyer as provided for therein;
(f) the CBP Holdback Trust (as defined below), executed by the Buyer and
immediately funded by the Buyer as provided for therein; and
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(g) the legal opinion of Tapia, Linares and Alfaro in the form of Exhibit
H hereto.
4.3 Other Documents; Efforts to Close. The parties to this Agreement
shall in good faith execute such other and further instruments, assignments or
documents as may be necessary or advisable to carry out the transactions
contemplated by this Agreement. Each of the parties hereto shall use such
party's best efforts to consummate the transactions contemplated by this
Agreement, including, without limitation, (a) requiring the Seller to issue
additional shares to the Buyer (in addition to the Shares) to ensure that,
after the date hereof and prior to the closing of the OPA, the Buyer will at
all times own one share more than 50% of the fully-diluted shares of voting
common stock of the Seller and (b) providing executed copies of this Agreement
to the Trustee. Each party shall promptly notify the other (as well as the
Representative(s) under the trust agreements (the "Trust Agreements") listed
in Section 4.1) of any action, suit, claim or proceeding (collectively
referred to herein as a "Proceeding") that shall be instituted or threatened
against such party to rescind, void, restrain, prohibit, otherwise challenge
the legality of or delay the transactions contemplated by this Agreement.
ARTICLE V
COVENANTS
5.1 Boards of Directors. Contemporaneously with the execution of this
Agreement, the current board of directors of each of the Companies and their
respective Subsidiaries shall resign (with the exception of persons listed in
Schedule 4.1) and be replaced by the persons designated by Buyer. Exhibit B
contains the resolutions of the board of directors of the Companies and their
respective Subsidiaries in which all members (except for the persons listed in
Schedule 4.1) thereof resign and appoint, effective as of the date hereof, the
persons designated by Buyer.
5.2 Shareholders Meetings. As soon as practicable but no later than 20
days after the execution of this Agreement, the Seller will cause each of the
Companies to hold a shareholders' meeting in order to provide information
regarding the transaction contemplated hereby. Schedule 2.1(c) contains copies
of the resolutions of the Board of Directors of Coca Cola and CBP calling
meetings of shareholders thereof to be held on the dates indicated therein for
all shareholders of record as of the date immediately prior to the date of
issuance of the Shares.
5.3 OPAs. Subject to Section 5.9 hereof, within 30 days following the
date of this Agreement, (i) the Buyer shall launch a revocable tender offer
(an "OPA") to acquire up to 100% of the issued and outstanding capital stock
of CBP for US$14.60 per share (the "CBP Purchase Price"); and (ii) Buyer shall
cause Seller to launch a revocable OPA to acquire up to 3,934,245 of the
issued and outstanding shares of capital stock of the Seller for the sum of
US$22.55 per share (the "Basic Coca Cola Purchase Price"). In the event that
there is a sale of the Subject Property under Section 5.8 hereof, the per
share price for Coca Cola will be equal to the sum of $22.55 and the Net
Subject Property Per Share Amount (as defined herein) (the "Adjusted Coca Cola
OPA Purchase Price").
11
Subject to the terms and conditions of the Trust Agreements with respect
to certain indemnification obligations, it is understood by the parties that
(i) on the closing date of the OPA for CBP, the Accepting Shareholders in the
OPA for CBP will receive net proceeds of $12.74 per share (the "CBP Net
Purchase Price"), which has been determined by subtracting the following
amounts from the CBP Purchase Price: (A) $1.10 per share for the CBP Holdback
Trust as provided in Section 5.3(d); and (B) $0.76 per share for the fees
referred to in Section 5.3(g) with respect to CBP; and (ii) subject to the
following paragraph on the closing date of the OPA for Coca Cola, the
Accepting Shareholders in the OPA for Coca Cola will receive net proceeds of
$20.00 per share ("Net Basic Coca Cola Purchase Price") if there is no sale of
the Subject Property under Section 5.8, which $20.00 per share has been
determined by subtracting the following amounts from the Basic Coca Cola
Purchase Price: (A) $1.17 per share for the Coca Cola Holdback Trust as
provided in Section 5.3(e) below; (B) $0.50 per share for the fees referred to
in Section 5.3(g) with respect to Coca Cola; (C) $0.52 per share related to
Coca Cola's and Credesa's proportional share of the CBP Holdback Trust; and
(D) of $0.36 per share related to Coca Cola's and Credesa's portion of the
fees set forth in clause (i)(B) of this paragraph.
In the event that there is a sale of the Subject Property under Section
5.8 prior to the Subject Property Termination Date, then the net proceeds
("Net Adjusted Coca Cola Purchase Price") to be received by Accepting
Shareholders will be determined by subtracting the following amounts from the
Adjusted Coca Cola OPA Purchase Price: (i) $1.17 per share for the Coca Cola
Holdback Trust as provided in Section 5.3(e) below, increased by an amount per
share equal to 7.5% of the Net Subject Property Per Share Amount; (ii) $0.50
per share for the fees referred to in Section 5.3(g) with respect to Coca
Cola, increased by a per share amount equal to the product of (x) the Net
Subject Property Per Share Amount multiplied by (y) 0.0335; (iii) $0.52 per
share related to Coca Cola's and Credesa's proportional share of the CBP
Holdback Trust; and (iv) a total of $0.36 per share related to Coca Cola's and
Credesa's portion of the fees set forth in clause (i)(B) of the immediately
preceding paragraph.
In connection with such OPAs, the Buyer will publish the notices and
notify the National Securities Commission of Panama about each OPA, according
to the laws of the Republic of Panama. The OPAs shall be made in accordance
with the terms and conditions of this Agreement, the tender offer documents
and the following:
(a) each shareholder that properly accepts, tenders and does not
subsequently revoke shares in either OPA (an "Accepting Shareholder" and
collectively, the "Accepting Shareholders") shall, on an individual basis and
without limitation on liability, make customary and appropriate
representations and warranties regarding organization and related matters,
title of its shares, governmental and regulatory authorizations, conflicts,
legal proceedings and brokerage as reasonably determined by Buyer (the
"Individual Shareholder Representations");
(b) each Accepting Shareholder in the OPA for CBP will (in addition to
the Individual Shareholder Representations), by accepting, tendering and not
revoking, its shares in the OPA be deemed to confirm the representations and
warranties set forth in Article II hereof with respect to CBP and its
Subsidiaries, provided that the liability of such
12
Accepting Shareholder shall be on a several, pro rata basis and shall be
limited to and governed by the CBP Holdback Trust;
(c) each Accepting Shareholder in the OPA for Coca Cola will (in addition
to the Individual Shareholder Representations), by accepting, tendering and
not revoking, its shares in the OPA be deemed to confirm the representations
and warranties set forth in Article II hereof with respect to Coca Cola and
its Subsidiaries (other than CBP and its Subsidiaries), provided that the
liability of such Accepting Shareholder shall be on a several, pro rata basis
and shall be limited to and governed by the Coca Cola Holdback Trust;
(d) the OPA for CBP shall provide that US$1.10 per share of the CBP
Purchase Price shall be paid and held in a trust (the "CBP Holdback Trust")
substantially in the form of Exhibit C hereto to compensate Buyer for breaches
of the representations, warranties, covenants and other matters provided for
in the CBP Holdback Trusts and to be released, subject to Section 5.9 hereof,
to the Accepting Shareholders in the OPA for CBP as provided therein in case
such compensation is not required;
(e) the OPA for Coca Cola shall provide that US$1.17 per share of the
Purchase Price shall be paid and held in a trust (the "Coca Cola Holdback
Trust") substantially in the form of Exhibit D hereto to compensate Buyer for
breaches of the representations, warranties, covenants and other matters
provided for in the Coca Cola Holdback Trust and to be released, subject to
Section 5.9 hereof, as provided in the OPA for Coca Cola in case such
compensation is not required;
(f) it is intended that the two OPAs shall be launched simultaneously,
with the OPA for CBP to close 30 days thereafter (or such longer period as
required by applicable law) and with the OPA for Coca Cola to close as soon as
practicable thereafter (but in no event more than 10 business days thereafter)
in order to allow Coca Cola and Credesa to tender their shares of CBP in the
CBP OPA, receive the proceeds therefrom and, in the case of Credesa, to
distribute the proceeds to its shareholders as provided in Section 5.7 hereof;
(g) the reasonable fees, commissions and/or expenses of the legal and
investment advisors specified in Schedule 5.3(g) hereof shall be deducted from
the proceeds payable to the Accepting Shareholders (after deducting the
amounts held in the Holdback Trusts) and shall be paid directly to such
advisors by the relevant Trustee;
(h) each OPA shall provide for equality of terms and conditions among the
shareholders of each Company;
(i) the Buyer agrees not to tender the Shares in the OPA for Coca Cola
described in this Section 5.3 in order to ensure that all of the shareholders
(other than the Buyer) can fully participate in the Coca Cola OPA Purchase
Price and receive the Coca Cola OPA Purchase Price; and
(j) the Buyer may include such other terms and conditions in either OPA
as, based on the advice of counsel, are necessary or advisable under Panama
law, provided that
13
such terms and conditions may not be contrary to this Section 5.3 or any
provision of this Agreement or adversely affect the terms and conditions of
this Section 5.3 or the Agreement.
5.4 OPA Trusts.
(a) To ensure Buyer's obligation to cause Coca Cola to launch the
self-OPA for Coca Cola, Coca Cola shall, immediately upon receipt of the
Purchase Price, place US$84,114,180.65 in trust pursuant to the terms and
conditions of the trust agreement ("Coca Cola OPA Trust") attached hereto as
Exhibit E.
(b) To ensure Buyer's obligation to launch the OPA for CBP, Buyer, shall,
contemporaneously with the execution of this Agreement, place US$51,895,539.00
in trust pursuant to the terms and conditions of the trust agreement ("CBP OPA
Trust") attached hereto as Exhibit F.
5.5 Holdback Trusts.
(a) the Buyer shall, contemporaneous with the execution of this
Agreement, place US$4,228,525.40 in trust pursuant to the terms and conditions
of the CBP Holdback Trust; and
(b) the Seller shall, contemporaneous with the execution of this
Agreement, place US$4,603,066.65 in trust pursuant to the terms and conditions
of the Coca Cola Holdback Trust.
5.6 Approval of Tender. As soon as practicable, but no later than 20 days
after the OPA for CBP is launched, the Buyer shall cause Coca Cola and Credesa
to call and hold meetings of shareholders to consider the tender of their
respective shares in CBP pursuant to the OPA for the purchase of the CBP
shares.
5.7 Credesa Dividend. As soon as practicable, but not later than 15 days
after the OPA for CBP is consummated, Buyer shall cause Coca Cola to cause
Credesa to distribute a dividend to its shareholders in an amount equal to the
proceeds (if any) received by Credesa for the sale of its shares in Coca Cola
and CBP.
5.8 Subject Property.
(a) Coca Cola shall use commercially reasonable efforts to sell the
Subject Property (as defined below) prior to the Subject Property Termination
Date. If, prior to the Subject Property Termination Date, Coca Cola sells the
Subject Property, then the Buyer shall calculate the Net Subject Property Per
Share Amount, and Coca Cola shall promptly deposit 92.5% of the Net Subject
Property Amount in the Coca Cola OPA Trust and 7.5% of the Net Subject
Property Amount in the Coca Cola Holdback Trust.
(b) For purposes of this Agreement, the following terms shall have the
meanings set forth below:
14
"Net Subject Property Per Share Amount" means the Net Subject Property
Amount divided by 3,934,245 (or such number that represents 50% (minus one
share) of the issued and outstanding shares of Coca Cola common stock
immediately after the execution of this Agreement).
"Net Subject Property Amount" means (X) the difference between (1) the
purchase price for the Subject Property actually received by Coca Cola in cash
or cash equivalents (as such term is defined by IAS) in respect of the sale of
the Subject Property prior to the Subject Property Termination Date; less (2)
$78,362.00; less (3) the book value of the Subject Property as reflected in
the consolidated balance sheet (contained as part of the Financial Statements)
of the Seller as of August 31, 2002; less (4) all costs and expenses
(including, without limitation, all Taxes, as reasonably determined by the
Buyer) incurred or accrued in connection with such sale. For the avoidance of
doubt, all funds received by Coca Cola in respect of the sale of the Subject
Property after the Subject Property Termination Date shall be excluded from
the Net Subject Property Amount.
"Subject Property" means the following properties belonging to Orinvest,
Inc. to wit: (a) Real Estate property No. 50946, registered in volume 1198,
page 340 of the Panama Province Property Section of the Public Registry of the
Republic of Panama, with an area of approximately 5,109.83 square meters, and
(b) Real Estate property No. 50956, registered in volume 1198, page 346 of the
Panama Province Property Section of the Public Registry of the Republic of
Panama, with an area of approximately 4,208.90 square meters. Both properties
are adjacent and are located across the street from the physical plant
installations of Cerveceria Panama, S.A.
"Subject Property Termination Date" means the earlier of: (a) 21 days
from the date of this Agreement and (b) the first date that either OPA
described in Section 5.3 hereof is launched.
5.9 Certain Buyer's Rights.
(a) Notwithstanding anything contained herein to the contrary, if any
Proceeding is brought by any Person, against any of the Buyer, a Sponsor, the
Seller or CBP: (i) that enjoins, rescinds or voids the sale of the Shares (or
any portion thereof) or has the effect of materially and adversely
restricting, limiting or delaying the ability of the Buyer to gain or maintain
ownership and control of a majority of the issued and outstanding shares of
capital stock of the Seller or CBP (directly or indirectly) or exercise any of
the rights or any of the economic benefits of ownership of the Shares (or any
portion thereof), including without limitation the ability of the Buyer to
elect the majority of the directors of the Seller or CBP or operate the
business of either the Seller or CBP in such manner as the Buyer directs
(subject to the rights set forth in Section 5.10); or (ii) that, in the
opinion of Dr. Eloy Alfaro (or a partner of Tapia, Linares and Alfaro if Dr.
Alfaro is unavailable), such Proceeding, based upon the facts presented and
applicable law, is reasonably likely to enjoin, rescind or void the sale of
the Shares (or any portion thereof) or is reasonably likely to materially and
adversely restrict, limit or delay the ability of the Buyer to gain or
maintain ownership and control of a majority of the shares of the issued and
outstanding capital stock of the Seller or CBP (directly or indirectly) or
exercise any of the rights or any
15
of the economic benefits of ownership of the Shares (or any portion thereof),
including without limitation, the ability of the Buyer to elect the majority
of the directors of the Seller or CBP or operate the business of either the
Seller or CBP in such manner as the Buyer directs (subject to the rights set
forth in Section 5.10); then the Buyer shall, subject to Section 5.9(b), have
the right (such right to be in addition to any other rights that the Buyer may
have) but not the obligation, to rescind the sale of the Shares, this
Agreement and all of the transactions contemplated hereby and to return the
Buyer and the Seller to its respective position as it existed immediately
prior to execution of this Agreement, including without limitation, the return
to the Buyer of all funds paid pursuant to this Agreement and the agreements
contemplated hereby in exchange for the return of the Shares to Seller.
(b) The right of the Buyer described in Section 5.9(a) shall be the sole
and exclusive decision of the Buyer for a period (the "Unconditional Period")
that shall expire 15 days after the latest of: Buyer's receipt of written
notice of (i) a Proceeding that qualifies as a Proceeding under Section
5.9(a)(i); (ii) the date that any Proceeding ripens into a Proceeding that
meets the qualifications of Section 5.9(a)(i) and (iii) the date that the
opinion described in Section 5.9(a)(i) of Dr. Eloy Alfaro (or a partner of
Tapia, Linares and Alfaro if Dr. Alfaro is unavailable) is rendered. Upon the
expiration of the Unconditional Period, Buyer may only exercise the right of
Buyer described in Section 5.9(a) with the approval of Representative(s) under
the trust agreements referred to in Section 4.1 and the unanimous approval of
all of the members of the Board of Directors of the Seller. The foregoing
notwithstanding, the right of Buyer described in Section 5.9(a) shall in all
cases expire on the earlier of the consummation of the Coca Cola OPA or
January 31, 2003.
5.10 Certain Obligations of Buyer.
(a) Buyer shall, from the date hereof until the closing of the OPA for
Coca Cola, vote its shares in favor of the election of the four current
directors of Coca Cola listed in Schedule 4.1 and shall not permit Coca Cola
to take any of the following actions ("Major Corporate Actions") without the
prior consent of a majority of such four directors: (i) amend the articles of
incorporation or bylaws in a manner that is adverse to the rights of minority
shareholders; (ii) sell all or substantially all of the assets of the company;
(iii) dissolve or liquidate the Company; (iv) cancel registration of the
Company with the Comision Nacional de Valores or the stock exchange in Panama;
(v) issue new shares of the capital stock of the Company without first
granting all shareholders preemptive rights to participate in such issuance;
(vi) make or declare a dividend or distribution to shareholders; (vii) enter
into transactions with affiliates that are not either (x) on an arms-length
basis or (y) with a direct or indirect subsidiary of Coca Cola; or (viii)
change the Company's principal line of business.
(b) Buyer shall, if the OPA for Coca Cola has not been closed for any
reason by January 31, 2003, promptly amend the articles of incorporation of
Coca Cola to provide that until the closing of the OPA for Coca Cola: (i) the
Major Corporate Actions (with the exception of clause (vi) of Section 5.10(a)
that will continue to require the consent of the directors listed in Schedule
4.1) shall require the approval of 75% of the issued and outstanding shares of
capital stock of Coca Cola; and (ii) the shareholders of Coca Cola
16
other than the Buyer shall have the ability to elect four of the nine members
of the board of directors of Coca Cola through cumulative voting rights.
(c) Buyer shall, from the date hereof until the close of the OPA for CBP,
vote its shares in favor of the election of the four current directors of CBP
listed in Schedule 4.1 and shall not permit CBP to take any Major Corporate
Action with respect to CBP without the prior consent of a majority of such
three directors.
(d) Buyer shall, if the OPA for CBP has not been closed for any reason by
January 31, 2003, promptly amend the articles of incorporation of CBP to
provide that until the closing of the OPA for CBP: (i) the Major Corporate
Actions (with the exception of clause (vi) of Section 5.10(a) that will
continue to require the consent of the directors listed in Schedule 4.1) shall
require the approval of 75% of the issued and outstanding shares of capital
stock of CBP; and (ii) the shareholders of CBP other than the Seller shall
have the ability to elect three of the eight members of the board of directors
of CBP through cumulative voting rights.
(e) Notwithstanding anything herein to the contrary, all actions required
or contemplated by this Agreement shall be deemed approved by all parties
hereto and the minority rights provided by this Section 5.10 shall not apply
to any such action, including without limitation, the right of any Company or
Subsidiary to tender shares pursuant to the OPAs.
5.11 Officers of the Companies and Subsidiaries. All officers of each
Company and each Subsidiary shall resign from all officer's positions (e.g.,
President, Vice-President, Secretary and Treasurer) with respect to the Board,
but to the extent such officer is also an employee of the Company or any
Subsidiary, such resignation shall not affect such officer's status as an
employee. The Companies shall, contemporaneous with the execution of this
Agreement, cause each officer to provide the Buyer with a letter of
resignation (the "Officers' Letters") to such effect in form and substance
reasonably acceptable to Buyer.
5.12 Distribution of Funds from CBP Holdback.
(a) Upon receipt of any funds from the CBP Holdback Trust, Coca Cola
shall allocate such funds, on a pro rata basis, to the shareholders of record
of Coca Cola as of the date immediately prior to the date of issuance of the
Shares, provided that the funds related to any shareholders of Coca Cola as of
such date that do not become Accepting Shareholders shall be retained by Coca
Cola.
(b) Upon receipt of any funds from the CBP Holdback Trust, Credesa shall
dividend such funds to its shareholders of record as of the date immediately
prior to the date of issuance of the Shares, including Coca Cola. Upon receipt
of such funds from Credesa, Coca Cola shall distribute the funds in the manner
set forth in Section 5.12(a).
5.13 Good Faith. The parties will act in good faith to perform their
respective obligations under this Agreement.
17
ARTICLE VI
GENERAL
6.1 Amendments; Waivers. This Agreement and any related document or
agreement may only be amended by written agreement between the Buyer and the
Seller with the consent of Representative. No waiver of any provision or
consent to any exception from the terms of this Agreement will be in force
unless done in writing and signed by the obliged parties, and will only be in
force for the specific purpose, matter and case provided.
6.2 Applicable Law. This Agreement will be governed by and will be
interpreted according to the laws of the Republic of Panama.
6.3 Arbitration. Any controversy, dispute or claim between the parties
arising out of or related to this Agreement, or the breach hereof, shall be
finally settled under the Rules of Arbitration of the International Chamber of
Commerce("ICC"). The dispute shall be referred to arbitration before a panel
of three arbitrators, one of whom shall be selected by the Buyer, one of whom
shall be selected by the Seller and the remaining arbitrator to be mutually
selected by the other two arbitrators, provided that if the amount in
controversy is less than US$250,000, there shall be one arbitrator appointed
as provided in the rules of the ICC. Each arbitrator shall be fully bi-lingual
in English and Spanish and is qualified to practice law in a civil law
jurisdiction. Any such arbitration shall be conducted in Panama City, Republic
of Panama. The award rendered by the arbitrator(s) shall be at law (and not in
equity), shall be subject to the limitations on liability provided in this
Agreement and shall be final, and judgment may be entered upon it in
accordance with law in any court having jurisdiction thereof. The parties
waive, to the fullest extent permitted by applicable law, and agree not to
invoke or exercise, any rights to appeal, review or impugn such decision or
award by any court or tribunal. Any party shall be entitled to seek interim
measures of protection in the form of pre-award attachment of assets or
injunctive relief. It is understood and agreed that money damages would not be
a sufficient remedy for any breach of this Agreement and that, except as
provided in Section 5.9, the parties hereto shall be entitled to specific
performance and injunctive or other equitable relief as a remedy for any such
breach and the parties further agree to waive any requirement for the security
or posting of any bond in connection with such remedy. Such remedy shall not
be deemed to be the exclusive remedy for breach of this Agreement but shall be
in addition to all other remedies available at law or equity to the Companies.
At any hearing of oral evidence, each party shall have the right to present
and examine its witnesses and to cross-examine the witnesses of the other
party and each party shall have the right to conduct reasonable discovery of
the other party.
6.4 No Assignment. Neither this Agreement or any right or obligation
under this Agreement may be assigned by any of its parties.
6.5 Confidentiality. The parties agree that they will not divulge to any
other Person information related to this Agreement and the negotiations that
have been conducted for the signing of the same, and that they will take the
measures necessary so that their advisors, representatives and employees
comply with this obligation and, to the extent practicable, will avoid that
any information related to this Agreement be published or
18
known, except by the publications or communications that the parties should
carry out according to the legislation that is applicable in their respective
countries, in case that such disclosure is required by judicial or
administrative order from competent authority or by legal provision or by
mutual agreement among the parties. To the extent that it may be required by
the law or that is necessary for the launching of each OPA, the duty of
confidentiality of the parties set out in this section will terminate and will
expire automatically at the moment in which the Buyer launches such OPA with
respect to the information that the law or such OPA requires its disclosure.
6.6 Notices. Any notices or another communication under this Agreement,
must be given in writing and be (a) delivered to the address indicated
hereinafter; (b) transmitted by telefax or by a telecommunication mechanism,
provided that any notice given in this form must also be sent by mail as
provided in clause (c); or (c) sent by mail with 48 hour delivery (courier),
or by certified or registered mail, postage paid and receipt confirmation
requested as follows:
If to the Buyer, addressed to:
CA BEVERAGES, INC.
c/o TAPIA, LINARES & ALFARO
P.O. Box 7412
Edificio Plaza 2000, 4th Floor
Avenida Gral. Nicanor A. de Obarrio (Calle 50)
Panama, Republic of Panama
with copies to:
FABREGA BARSALLO MOLINO & MULINO
Omega Bldg., M Floor
Samuel Lewis Ave. & 53rd St.
P.O. Box 4493, Panama 5, Rep. of Panama
Attention: Juan Pablo Fabrega/Jose Raul Mulino
Fax: (507) 263-6983
and
TAPIA, LINARES & ALFARO
P.O. Box 7412
Edificio Plaza 2000, 4th Floor
Avenida Gral. Nicanor A. de Obarrio (Calle 50)
Panama, Republic of Panama
Attention: Eloy Alfaro / Mario E. Correa
Fax: (507) 263-5305
and
PANAMCO L.L.C.
19
701 Waterford Way
Suite 800
Miami, FL 33126
Attention: General Counsel
Fax: (786) 388-8191
If to the Seller, addressed to:
COCA COLA DE PANAMA CIA. EMBOTELLADORA, S.A.
Apartado 4411, Zona 5
Urbanizacion Industrial, Via Ricardo J. Alfaro
Panama, Republic of Panama
Attention: Joaquin J. Vallarino Jr.
Fax: 507-236-5727
with copies to:
ARIAS, ALEMAN & MORA Apartado 8799, Zona 5 Calle 50
y Calle 74, San Francisco Edificio PH
Interfinanzas, Piso 16 Panama, Republic of Panama
Attention: Alvaro Arias Fax: 507-270-0174
and
ARIAS, FABREGA & FABREGA
Apartado 6307, Zona 5
Calle 50 y Calle 53, Marbella
Edificio PH 2000, Piso 16
Panama, Republic of Panama
Attention: Francisco Arias G.
Fax: 507-205-7001
or to any other address or to any other person that any party has appointed in
last instance through a notice to the other party. Each one of the referred
notices or communications will be effective (i) if given by telefax or with a
telecommunications mechanism, when transmitted to the corresponding number
specified in (or according to) this Section 6.6 and the sender device confirms
sending and receipt; (ii) if sent by 48 hour delivery mail, two (2) working
day and, if sent by certified or registered mail, seven (7) working days after
placed in the mail with first class postage paid, addressed as previously
explained; or (iii) if issued by any other means, when actually received at
the address mentioned. Any notices required to be delivered to the
Representative hereunder shall be sent to the address(es) set forth in the
applicable Trust Agreement.
20
6.7 Expenses. Subject to Section 5.3(g) with respect to, the tender
documents for the OPAs and as otherwise provided or contemplated hereby, the
Seller and the Buyer will assume their own expenses in relation to the
negotiation, preparation and compliance of this Agreement and the issuance of
the Shares provided herein, including but not limited, to the fees, expenses
and disbursements of their respective investment bankers, accountants and
legal counsel.
6.8 Severability. If any provision of this Agreement is considered
invalid, illegal or inapplicable by any governmental entity, the other
provisions of this Agreement will remain in full force and effect.
6.9 Limitation of Liability and Survival of Representations and
Warranties.
(a) The Seller assumes the responsibility for the accuracy and
truthfulness of the representations and warranties made in Article II of this
Agreement. Such representations and warranties shall be in force for the
respective periods set forth in the Coca Cola Holdback Trust and the CBP
Holdback Trust.
(b) The Buyer assumes responsibility for the accuracy and truthfulness of
the representations and warranties made in Article III of this Agreement. Said
representations and warranties will be in force for a period of 36 months from
the date hereof.
(c) The liability of each Accepting Shareholder shall be unlimited with
respect to Individual Shareholder Representations made in the OPA and shall be
limited on a several, pro rata basis to the amount in the Coca Cola Holdback
Trust and CBP Holdback Trust with respect to the representations of the
Accepting Shareholders referred in Section 5.3(b) and (c). Such
representations shall be in force for the period provided in the Coca Cola
Holdback Trust and CBP Holdback Trust.
6.10 Sole Agreement. This Agreement and its Exhibits and Schedules (which
form integral parts of the Agreement) contain all the agreements,
understandings, commitments and obligations of the parties related to the
rights and obligations of the parties set out in this Agreement and,
therefore, subrogates, replaces and leaves without effect any prior agreement,
covenant or understanding among the parties, whether verbal or written,
relating to the subject matter hereof.
6.11 Execution in Counterparts. This Agreement may be executed in two or
more counterparts, each of which shall be considered an original instrument,
but all of which shall be considered one and the same agreement.
6.12 Language. This Agreement has been negotiated and executed in the
English Language. The parties acknowledge that a translation into Spanish may
be required for purposes of filings with governmental authorities; in such
case the parties shall agree on the Spanish translation by initialing the
same. The parties agree that, in case of conflict between the English and
Spanish translations of this Agreement, the English version shall govern.
21
[THE SIGNATURES APPEAR IN THE FOLLOWING PAGES]
22
[SIGNATURE PAGE OF THE SHARE SUBSCRIPTION AGREEMENT]
IN WITNESS WHEREOF, each one of the parties signs this Agreement as of the
date first above written.
"BUYER"
CA BEVERAGES, INC.
By:
/s/ Han de Goederen
-------------------------------
Name: Han de Goederen
Title: President
"SELLER"
COCA COLA DE PANAMA CIA.
EMBOTELLADORA, S.A.
By:
/s/ Roberto Ramon Vallarino Cox
---------------------------------
Name: Roberto Ramon Vallarino Cox
Title: Vice President and Director
23
EXHIBIT A - LEGAL OPINION OF ARIAS, FABREGA AND FABREGA
EXHIBIT B - RESOLUTIONS OF BOARD OF DIRECTORS WITH RESIGNATIONS
AND APPOINTMENT OF NEW MEMBERS IN COMPANIES
EXHIBIT C - THE CBP HOLDBACK TRUST
EXHIBIT D - THE COCA COLA HOLDBACK TRUST
EXHIBIT E - THE COCA COLA OPA TRUST
EXHIBIT F - THE CBP OPA TRUST
EXHIBIT G - FORM OF L/C
EXHIBIT H - OPINION OF TAPIA, LINARES AND ALFARO