EXHIBIT 10.52
TRUST AGREEMENT - CBP OPA TRUST
This TRUST AGREEMENT - CBP OPA TRUST, dated as of October 2, 2002 (this "Trust
Agreement"), is entered into by and among CA BEVERAGES, INC., a corporation
("sociedad anonima") organized and existing pursuant to the laws of the
Republic of Panama (the "SETTLOR"), hereby represented by Han de Goederen,
male, of legal age, citizen of the Netherlands, with passport No. X00000000,
duly authorized to execute this agreement pursuant to a resolution of the
Board of Directors of the Settlor dated September 30, 2002; BANCO GENERAL,
S.A., a corporation organized and existing pursuant to the laws of the
Republic of Panama (the "TRUSTEE"), hereby represented by Xxxx-Xxxxxx
Xxxxxxxxxx, Panamanian, of legal age, with personal identity card No.
0-000-000; and FUNDACION PRO ACCIONISTAS MINORITARIOS DE COCA COLA DE PANAMA Y
CERVECERIAS BARU-PANAMA, a private foundation organized and existing pursuant
to the laws of the Republic of Panama, as Representative ("REPRESENTATIVE"),
hereby jointly represented by Xxxxxx Xxxxx, Panamanian, of legal age, with
personal identity card No. 0-000-000, and Xxxxxxx Xxxxx Xxxxxxxxx Xxx,
Panamanian, of legal age, with personal identity card No. 0-000-000, as
Council Members acting jointly, duly authorized pursuant to Section 13 of its
Foundation Charter, representing and acting on behalf of the shareholders of
Cervecerias Baru-Panama, S.A. ("CBP") who, in accordance with the Tender Offer
Documents (as defined below) and in compliance with the laws of the Republic
of Panama, accept the OPA (as defined below), do not revoke such acceptance
and consummate such acceptance by tendering their common shares of Settlor
(the "ACCEPTING SHAREHOLDERS").
WHEREAS, on the date first written above Coca Cola de Panama Compania
Embotelladora, S.A. ("COCA COLA") and Settlor have entered into a Share
Subscription Agreement (the "SHARE SUBSCRIPTION AGREEMENT") whereby Coca Cola
has agreed to issue and sell to Settlor, who has agreed to purchase, three
million nine hundred thirty-four thousand two hundred forty-six (3,934,246)
newly issued no par value common shares of Coca Cola (or such amount
corresponding to fifty percent (50%) plus one share of the total issued and
outstanding no par value common shares of Coca Cola) (the "SHARES");
WHEREAS, pursuant to the Share Subscription Agreement, the Settlor has agreed
to launch a Public Tender Offer in the Republic of Panama (the "OPA") to
acquire up to one hundred percent (100%) of the issued and outstanding US$5.00
par value common shares of CBP at a price per share of US$14.60; and
WHEREAS, the execution and delivery of this Trust Agreement (including the
deposit of the Trust Amount (as defined below)) is a condition to the
consummation of the transactions contemplated by the Share Subscription
Agreement.
NOW, THEREFORE, Settlor, the Trustee and Representative hereby agree as
follows:
1. Constitution of the Trust. Settlor, the Trustee and Representative hereby
enter into an irrevocable trust agreement under the provisions of Law 1 of
January 5, 1984 of the Republic of Panama, which regulates trust agreements in
the Republic of Panama.
2. Objectives of the Trust. This Trust has the purpose of ensuring compliance
with the obligations of the Settlor under the Share Subscription Agreement
and, consequently, has as its objectives:
a) To permit the Trustee to pledge the Trust Assets to secure any guarantee
required by applicable securities legislation in connection with the OPA;
b) To make available to the Settlor the funds necessary to launch and
consummate the OPA, as intended under the Share Subscription Agreement;
c) To guarantee payment, with the Trust Assets (as defined below), of the
purchase price (less US$4,228,525.40 as a holdback (the "HOLDBACK") to
guarantee the compliance with certain representations, warranties and
covenants) for the sale of shares by the Accepting Shareholders;
d) To guarantee to Settlor that the Trust Assets shall be used for payment of
the purchase price per share (less the per share amount of the Holdback) for
the shares of the Accepting Shareholders and for payment of the fees described
in Section 5.3(g) of the Share Subscription Agreement; e) To guarantee to
Settlor that, upon consummation of the OPA, the balance of the Trust Assets
that has not been used to purchase shares of the Accepting Shareholders under
the OPA shall be returned by the Trustee to the Settlor; and
f) To provide for the return of the Trust Assets to Settlor upon the
occurrence of any of the events described in Section 10 hereof.
3. Appointment of Beneficiaries. Subject to Section 10 hereof, Settlor hereby
appoints the following as Beneficiaries of the Trust (also known under the law
of the Republic of Panama as "Fideicomisarios"), and consequently, as
Beneficiaries of the Trust Assets:
a) Primary Beneficiaries: The Accepting Shareholders; and
b) Secondary Beneficiary: Settlor, with respect to the balance of the Trust
Assets.
4. The Trust Amount. The Settlor shall transfer to the Trustee in trust, with
irrevocable instructions as described in the form of instruction letter
attached hereto as Exhibit A, the sum of US$51,895,539.00 in cash,
corresponding to the aggregate purchase price of up to one hundred percent
(100%) of the issued and outstanding US$5.00 par value common shares of CBP to
be acquired from the Accepting Shareholders (less the Holdback) (the "TRUST
AMOUNT").
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5. Appointment of the Trustee; Deposit of Trust Amount. Settlor hereby
constitutes and appoints the Trustee as, and the Trustee hereby agrees to
assume and perform the duties of, trustee under and pursuant to this Trust
Agreement. The Trustee acknowledges receipt of an executed copy of the Share
Subscription Agreement and, as of the date hereof, of the Trust Amount from
Settlor as provided in the Share Subscription Agreement. Settlor shall deliver
to the Trustee, immediately upon launching the OPA, a copy of the prospectus
(as may be amended from time to time) and the exhibits and schedules attached
thereto that are delivered to shareholders in respect of the OPA
(collectively, the "TENDER OFFER DOCUMENTS"). Trustee hereby accepts such
appointment and agrees to hold, invest and disburse the Trust Assets in
accordance with this Trust Agreement.
6. The Trust Assets. The Trust Amount, all earnings accrued thereon in
accordance with Section 7(c) or Section 8 hereof and any shares or other
assets placed in trust in accordance with the terms of this Trust Agreement
(the "TRUST ASSETS") shall be held by the Trustee, to be used as specifically
provided in this Trust Agreement. Except as expressly provided in Section 13
hereof, the Trustee does not have any interest in the Trust Amount deposited
hereunder or the Trust Assets but is serving as Trustee only and having only
possession thereof in that capacity.
7. Use and Release of Trust Assets by the Trustee.
(a) The Trustee may only use the Trust Assets in the manner provided by this
Trust Agreement.
(b) The Trustee may pledge the Trust Assets to secure any guarantee required
by applicable securities legislation in connection with the OPA.
(c) Unless and until the Trustee receives joint written instructions from CAB
and the Representative pursuant to Section 8 hereof, the Trustee shall
maintain the Trust Assets in an interest-bearing overnight account at Banco
General, S.A.
(d) After the expiration of the relevant acceptance period of the OPA as set
forth in the Tender Offer Documents (the "ACCEPTANCE TERMINATION DATE"), the
Trustee shall proceed as follows:
(i) The Trustee will deliver to Banco General, S.A. or another
qualified financial institution appointed by Settlor to serve as
the paying agent of the OPA (and performing the duties of a
paying agent in connection with the OPA as required by the laws
of the Republic of Panama) (the "PAYING AGENT") out of the Trust
Assets a per share amount equal to the CBP Net Purchase Price (as
defined in the Share Subscription Agreement). For that purpose,
the Paying Agent shall certify (the "PAYING AGENT CERTIFICATION")
to the Trustee the number of shares that each such Accepting
Shareholder has tendered and sold and the aggregate amount to be
paid to each such Accepting Shareholder (the "CERTIFIED AMOUNT")
pursuant to the Tender Offer Documents. Promptly after the
Acceptance
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Termination Date and receipt of the Paying Agent Certification,
the Trustee shall deliver the Certified Amount to the Paying
Agent.
(ii) Representative shall notify Trustee of the name, address and
related information about the persons to receive the fees
described in Section 5.3(g) of the Share Subscription Agreement
and promptly after the Acceptance Termination Date and delivery
of the Certified Amount to the Paying Agent, the Trustee shall
pay an amount equal to $0.76 per share properly tendered by the
Accepting Shareholders.
(iii) Promptly after the Acceptance Termination Date and delivery of
the payments under Section 7(d)(i) hereof, the Trustee will
release and pay to Settlor by wire transfer in immediately
available funds (or through such alternative method as Settlor
may instruct the Trustee), the balance of the Trust Assets that
has not been used.
8. Investment of the Trust Assets; Taxes.
(a) As per written instructions of Settlor and the Representative
delivered to the Trustee, the Trustee shall directly invest and
reinvest the Trust Assets, in any of the following kinds of
investments, or in any combination thereof:
(i) Bonds or other obligations of, or guaranteed by, the government of the
United States of America or any State thereof or the District of
Columbia, or agencies of any of the foregoing, having maturities as
agreed upon by Settlor and the Representative, such maturities not to
extend beyond the date on which this Trust Agreement terminates in
accordance with Section 9 or Section 10 hereof (the "TERMINATION
DATE");
(ii) Commercial paper of United States issuers rated, at the time of the
Trustee's investment therein or contractual commitment providing for
such investment, at least P-1 by Xxxxx'x Investors Service, Inc.
("MOODY'S") and A-1 by Standard & Poor's Corporation ("S&P") and
having maturities as agreed upon by Settlor and the Representative,
such maturities not to extend beyond the Termination Date;
(iii) Demand or time deposits in, certificates of deposit of or bankers'
acceptances issued by (A) Banco General, S.A. or a depository
institution or trust company incorporated under the laws of Panama or
the laws of the United States of America, any State thereof or the
District of Columbia having a combined capital and surplus of US$10
billion, or (B) a Panamanian or United States branch office or agency
of a foreign depository institution or trust company if, in any such
case, the depository institution, trust company or office or agency is
rated at least P-l by Moody's and A-1 by S&P (any such institution
described in clause (A) or (B) being herein called a "PERMITTED
BANK"), and having maturities as agreed upon by Settlor and the
Representative, such maturities not to extend beyond the Termination
Date; or
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(iv) Such other investments as Settlor and the Representative shall jointly
approve or direct in writing.
The written instructions for the investment shall be given by Settlor
and the Representative to the Trustee. The Trustee shall notify
Settlor and the Representative of the amount of funds available to
invest, in accordance with this Section 8(a).
(b) Each of the foregoing investments shall be made in the name of the
Trustee in accordance with this Trust Agreement. Notwithstanding
anything to the contrary contained herein, the Trustee may, without
notice to Settlor or the Representative, sell or liquidate any of the
foregoing investments at any time if the proceeds thereof are required
for release of any portion of the Trust Assets permitted or required
hereunder, and Trustee shall not be liable or responsible for any
loss, cost or penalty resulting from any such sale or liquidation.
(c) The Trustee shall have no responsibility for any investment losses
resulting from the investment, reinvestment or liquidation of the
Trust Assets.
(d) Any interest or other income received on such investment and
reinvestment of the Trust Assets shall become part of the Trust
Assets.
(e) All taxes (except for income taxes of the Trustee arising from the
Fees (as defined below)), if any, in respect of the Trust Assets shall
be allocable among the parties as set forth in Section 13 hereof.
9. General Termination. Subject to Section 10, this Trust Agreement and all
obligations of the Trustee hereunder shall terminate on the earlier of: (i)
the date that the objectives established in Section 2 of this Trust Agreement
have been fulfilled or (ii) the date on which Settlor and Representative
jointly notify the Trustee in writing of their agreement to terminate the
Trust Agreement, subject to the Trustee's consent (such consent not to be
unreasonably withheld). In connection with termination of this Trust Agreement
pursuant to this Section 9, upon payment of all Fees due to the Trustee, the
Trust Assets then held hereunder shall be distributed in accordance with
Section 7(d).
10. Early Termination. If Settlor exercises its rights of rescission under
Section 5.9(a) of the Share Subscription Agreement, then (a) Settlor (if such
exercise shall occur during the Unconditional Period (as defined in the Share
Subscription Agreement)) or Settlor and Representative jointly (if such
exercise shall not occur during the Unconditional Period) shall send notice of
such exercise to the Trustee in the form attached as Exhibit B-1 or Exhibit
B-2 hereto, as the case may be, (b) the Trustee shall deliver to Settlor all
of the Trust Assets (net of Fees due to the Trustee) by wire transfer in
immediately available funds and (c) this Trust Agreement and all obligations
of the Trustee hereunder shall terminate.
11. Duties and Obligations of the Trustee. The duties and obligations of the
Trustee shall be limited to and determined solely by the provisions of this
Trust Agreement and the certificates delivered in accordance herewith, and the
Trustee is not charged with
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knowledge of or any duties or responsibilities in respect of any other
agreement or document. In furtherance and not in limitation of the foregoing:
(a) The Trustee shall not be liable for any loss of interest or earnings
sustained as a result of investments made hereunder in accordance with
the terms hereof, including any liquidation of any investment of the
Trust Assets prior to its maturity effected in order to make a payment
required by the terms of this Trust Agreement;
(b) The Trustee shall be fully protected in relying in good faith upon any
written certification, instruction, notice, direction, request,
waiver, consent, receipt or other document that the Trustee reasonably
believes to be genuine and duly authorized, executed and delivered;
(c) The Trustee shall not be liable for any error of judgment, or for any
act done or omitted by it, or for any mistake in fact or law, or for
anything that it may do or refrain from doing in connection herewith;
provided, however, that notwithstanding any other provision in this
Trust Agreement, the Trustee shall be liable for its willful
misconduct or gross negligence;
(d) The Trustee may seek the advice of legal counsel selected with
reasonable care (provided that the selection of such legal counsel
shall require Settlor's prior written consent, such consent not to be
unreasonably withheld) in the event of any dispute or question as to
the construction of any of the provisions of this Trust Agreement or
its duties hereunder, and it shall incur no liability and shall be
fully protected in respect of any action taken, omitted or suffered by
it in good faith in accordance with the opinion of such counsel;
(e) In the event that the Trustee shall in any instance, after seeking the
advice of legal counsel pursuant to the immediately preceding clause,
in good faith be uncertain as to its duties or rights hereunder, it
shall be entitled to refrain from taking any action in that instance
and its sole obligation, in addition to those of its duties hereunder
as to which there is no such uncertainty, shall be to keep the
property affected by such uncertainty safely held in trust until it
shall be directed otherwise in writing by Settlor and Representative;
provided, however, in the event that the Trustee has not received such
written direction within thirty (30) days after requesting the same,
it shall have the right to submit the issue to arbitration in
accordance with Section 29 hereof; and
(f) The Trustee may execute any of its powers or responsibilities
hereunder and exercise any rights hereunder either directly or by or
through agents or attorneys selected with reasonable care. Nothing in
this Trust Agreement shall be deemed to impose upon the Trustee any
duty to qualify to do business or to act as fiduciary or otherwise in
any jurisdiction other than the Republic of Panama and the Trustee
shall not be responsible for and shall not be under a duty to examine
into or pass upon the validity, binding effect, execution or
sufficiency of this Trust Agreement or of any agreement amendatory or
supplemental hereto.
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(g) The Trustee shall issue, or shall cause a financial institution
(including Banco General, S.A.) to issue, a letter or a bank guarantee
confirming the availability of sufficient funds to settle the
obligations derived from the OPA, as required by applicable securities
legislation of the Republic of Panama.
12. Cooperation. Settlor and Representative shall provide to the Trustee all
instruments and documents within their respective powers to provide that are
necessary for the Trustee to perform its duties and responsibilities
hereunder.
13. Fees and Expenses; Indemnity.
(a) Notwithstanding anything in this Section 13 to the contrary, the
Trustee is authorized to deduct from earnings on the Trust Amount an
acceptance fee of $10,000, and an annual fee of $25,000, both payable
upon execution of this Trust Agreement. The annual fee will be payable
thereafter on each anniversary of the execution of this Trust
Agreement. The Trustee also shall be entitled to receive reasonable
and customary out-of-pocket expenses incurred in connection with the
performance of its duties hereunder. The fees, costs and expenses
described in this Section 13(a) shall be referred to herein as "FEES".
(b) The Trustee is authorized to, and may disburse to itself from the
earnings on the Trust Amount, from time to time, the amount of any
Fees due and payable to it hereunder. If for any reason such earnings
are insufficient to cover such Fees, Settlor shall pay within the
following thirty (30) days such amounts to make up such shortfall to
Trustee upon the presentation of an itemized invoice. The Trustee
shall notify Settlor and Representative of any disbursement from the
Trust Assets to itself in respect of any Fees under any provision of
this Trust Agreement and shall furnish to Settlor and Representative
copies of all related invoices and other statements.
(c) Prior to the consummation or termination of the OPA, Settlor shall be
liable for and shall reimburse and indemnify Trustee (and any
predecessor Trustee) and hold Trustee harmless from and against
one-half (1/2) of any and all claims, losses, actions, liabilities,
costs, damages or expenses (including reasonable attorneys' fees and
expenses) arising from or in connection with Trustee's administration
of, or performance of duties and obligations pursuant to, this Trust
Agreement; provided, however, that notwithstanding the foregoing,
Settlor shall not be required to indemnify the Trustee for any such
claims, losses, actions, liabilities, costs, damages or expenses
caused by its own gross negligence or own willful misconduct. In
addition, when the Trustee acts on any information, instructions or
communications (including, but not limited to, communications with
respect to the delivery of securities or the wire transfer of funds)
sent by telephone, telex or facsimile, the Trustee, absent gross
negligence or willful misconduct, shall not be responsible or liable
in the event such communication is not an authorized or authentic
communication or is not in the form Settlor sent or intended to send
(whether due to fraud, distortion or otherwise). The Trustee shall
have the right to offset an amount equal to one-
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half (1/2) of any indemnifiable claims, losses, actions, liabilities, costs,
damages or expenses described above against the Trust Assets.
(d) Settlor shall be liable for one hundred percent (100%) of all
indemnifiable claims, losses, actions, liabilities, costs, damages or
expenses described in Section 13(c) above that arise after
consummation of the OPA (including payment of the Certified Amount to
the Paying Agent) or termination of the OPA.
(e) Notwithstanding anything in this Section 13 to the contrary, all of
Settlor's compensation, reimbursement and indemnification obligations
set forth in this Section 13 shall be payable by Settlor upon demand
by the Trustee, and the failure of Settlor to fund such obligations
shall give rise to an additional claim by the Trustee with respect to
the earnings on the Trust Amount. The obligations of Settlor under
this Section 13 shall survive any termination of this Trust Agreement
and the resignation or removal of Trustee.
14. Resignation and Removal of the Trustee.
(a) The Trustee may resign as such thirty (30) calendar days following the
giving of written notice thereof to Settlor and Representative. In
addition, the Trustee may be removed and replaced on a date designated
in a written instrument signed by Settlor and Representative and
delivered to the Trustee. In the case of either such resignation or
removal, Settlor and the Representative jointly shall appoint a branch
or affiliate located in the Republic of Panama of one of HSBC, BNP
Paribas or Citibank, N.A. as the successor Trustee. Notwithstanding
the foregoing, no such resignation or removal shall be effective until
a successor Trustee has acknowledged its appointment as such as
provided in Section 14(c). In either event, upon the effective date of
such resignation or removal, the Trustee shall deliver the property
comprising the Trust Assets (net of any Fees due to the Trustee) to
such successor Trustee, together with such records maintained by the
Trustee in connection with its duties hereunder and other information
with respect to the Trust Assets as such successor may reasonably
request.
(b) If a successor Trustee shall not have acknowledged its appointment as
such as provided in Section 14(c), in the case of a resignation, prior
to the expiration of thirty (30) calendar days following the date of a
notice of resignation or, in the case of a removal, on the date
designated for the Trustee's removal, as the case may be, because
Settlor and Representative are unable to agree on a successor Trustee,
or for any other reason, the successor Trustee shall be appointed from
the first of HSBC, BNP Paribas and Citibank, N.A. (in such order) to
acknowledge its appointment as such, and such appointment shall be
binding upon all of the parties to this Trust Agreement.
(c) Upon written acknowledgment by a successor Trustee appointed in
accordance with the foregoing provisions of this Section 14 of its
agreement to serve as Trustee hereunder and the receipt of the
property then comprising the Trust
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Assets, the Trustee shall be fully released and relieved of all
duties, responsibilities and obligations under this Trust Agreement,
subject to the provision contained Section 11(c) and such successor
Trustee shall for all purposes hereof be the Trustee.
15. Notices.
Any notices or another communication under this Trust Agreement, must be given
in writing and be (a) delivered to the address indicated hereinafter; (b)
transmitted by facsimile, 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 Settlor, addressed to:
CA BEVERAGES, INC.
x/x XXXXX, XXXXXXX & XXXXXX
X.X. Xxx 0000 Xxxxxxxx Plaza 2000, 4th Floor
Avenida Gral. Xxxxxxx X. xx Xxxxxxx (Xxxxx 00)
Xxxxxx, Xxxxxxxx of Panama
Attn: Xxxx Xxxxxx / Xxxxx X. Xxxxxx
Facsimile: (000) 000-0000
with copies (which shall not constitute notice) to:
HEINEKEN INTERNATIONAL B.V.
Tweede Xxxxxxxxxxxxxxxxx 00
X.X. Xxx 00, 0000 XX
Xxxxxxxxx, Xxxxxxxxxxx
Attn: Xxxx Xxxxx Graafland
Facsimile: x00-00-000-0000
PANAMCO L.L.C.
000 Xxxxxxxxx Xxx
Xxxxx 000
Xxxxx, XX 00000
Attn: General Counsel
Facsimile: (000) 000-0000
FABREGA BARSALLO MOLINO & MULINO
Omega Bldg., M Floor
Xxxxxx Xxxxx Ave. & 53rd St.
P.O. Box 4493, Panama 5, Rep. of Panama
Attn: Xxxx Xxxxx Xxxxxxx/Xxxx Xxxx Mulino
Facsimile: (000) 000-0000
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and
XXXXX, XXXXXXX & XXXXXX
X.X. Xxx 0000
Xxxxxxxx Xxxxx 2000, 4th Floor
Avenida Gral. Xxxxxxx X. xx Xxxxxxx (Xxxxx 00)
Xxxxxx, Xxxxxxxx of Panama
Attn: Xxxx Xxxxxx / Xxxxx X. Xxxxxx
Facsimile: (000) 000-0000
If to the Trustee, to:
BANCO GENERAL, S.A.
APDO. 4592 Panama 5, Republic of Panama
Xxxxx Xxxxxxxx de la Guardia y Avenida 5ta B Sur
Torre Banco General
Attn: Xxxx Xxxxxx Leignadier
Facsimile: 000-000-0000
If to the Representative, to:
FUNDACION PRO ACCIONISTAS MINORITARIOS DE COCA COLA DE
PANAMA Y CERVECERIAS BARU-PANAMA
x/x Xxxxx, Xxxxxxx & Xxxxxxx
Xxxxxxxx 0000, Xxxx 5
Xxxxx 00 x Xxxxx 00, Xxxxxxxx
Xxxxxxxx XX 2000, Piso 00
Xxxxxx, Xxxxxxxx of Panama
Attn: Xxxxxx Xxxxx and Xxxxxxx X. Xxxxxxxxx C., c/o Xxxxxxxxx Xxxxx G.
Facsimile: 000-000-0000
with a copy (which shall not constitute notice) to:
XXXXX, XXXXXXX & XXXXXXX
Apartado 6307, Zona 5
Xxxxx 00 x Xxxxx 00, Xxxxxxxx
Xxxxxxxx XX 2000, Piso 00
Xxxxxx, Xxxxxxxx of Panama
Attn: Xxxxxxxxx Xxxxx G.
Facsimile: 000-000-0000
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 facsimile, when
transmitted to the corresponding number specified in (or according to) this
Section 15 and the sender device confirms sending and receipt; (ii) if sent by
48 hour delivery mail, two (2) working days and, if sent by certified or
registered mail, seven (7) working days after placed in the mail with first
class postage
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paid, addressed as previously explained; or (iii) if issued by
any other means, when actually received at the address mentioned.
16. Bankruptcy of Settlor. In the event that there shall be filed by or
against Settlor in any court pursuant to the bankruptcy laws of Panama or any
other similar foreign, federal or state law providing for bankruptcy,
insolvency, receivership or protection from creditors (collectively, the
"BANKRUPTCY LAWS"), a petition in bankruptcy or insolvency or for
reorganization or for the appointment of a receiver or trustee of all or a
portion of the assets of Settlor, Settlor will be deemed to have waived, and
therefore will not assert, any and all rights, remedies and recourses under
the Bankruptcy Laws with respect to the Trust Assets, and the Trust Assets
shall continue to be administered pursuant to the terms of this Trust
Agreement, irrespective of such filing.
17. Severability. To the extent any provision of this Trust Agreement is
prohibited by or invalid under applicable law, such provision shall be
ineffective to the extent of such prohibition or invalidity, without
invalidating the remainder of such provision or the remaining provisions of
this Trust Agreement.
18. Amendments, etc. This Trust Agreement may be amended or modified, and any
of the terms hereof may be waived, only by a written instrument duly executed
by or on behalf of all of the parties hereto. No waiver by any party of any
term or condition contained in this Trust Agreement, in any one or more
instances, shall be deemed to be or construed as a waiver of the same or any
other term or condition of this Trust Agreement on any future occasion.
19. Entire Agreement. This Trust Agreement constitutes the entire agreement
between the parties relating to the holding, investment and disbursement of
the Trust Assets and administration of the Trust Assets and sets forth in
their entirety the obligations and duties of Trustee with respect to the Trust
Assets; provided that any capitalized terms used but not defined herein shall
have the meaning assigned to such terms in the Share Subscription Agreement.
20. Binding Effect. All of the terms of this Trust Agreement, as amended from
time to time, shall be binding upon, inure to the benefit of and be
enforceable by the parties hereto, and their respective heirs, executors,
administrators, successors and assigns.
21. Representations and Warranties. Settlor and Representative each hereby
represent and warrant (a) that this Trust Agreement has been duly authorized,
executed and delivered on its behalf and constitutes its legal, valid and
binding obligation and (b) that the execution, delivery and performance of
this Trust Agreement by Settlor and Representative do not and will not violate
any applicable law or regulation.
22. Assignments. No party may assign any of its rights or obligations under
this Trust Agreement without the prior written consent of the other parties,
provided that no such consent shall be required for any such assignment by
Settlor to any of the Sponsors (as defined in the Share Subscription
Agreement) or any direct or indirect subsidiary of the Sponsors.
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23. Execution in Counterparts; Facsimile Signatures. This Trust Agreement may
be executed in two or more counterparts, which when so executed shall
constitute one and the same agreement or direction. Facsimile signatures shall
be treated as originals.
24. Governing Law. This Trust Agreement, the legal relations between the
parties and any action, whether contractual or non-contractual, instituted by
any party with respect to matters arising under or growing out of or in
connection with or in respect of this Trust Agreement shall be governed and
construed in accordance with the laws of the Republic of Panama, particularly
Law 1 of 1984, without regard to conflicts of law or private international law
rules.
25. Domicile. The parties choose as domicile for the Trust the City of Panama,
Republic of Panama.
26. Business Day. For all purposes of this Trust Agreement, the term "business
day" shall mean a day other than Saturday, Sunday or any day on which banks
located in the Republic of Panama are authorized or obligated to close.
27. Headings. The headings used in this Trust Agreement have been inserted for
convenience of reference only and do not define or limit the provisions
hereof.
28. Resident Agent of the Trust. In compliance with Section 9 of article 9, of
Law No. 1 of 1984, the law firm Fabrega Barsallo Molino & Mulino, Omega Bldg.,
M Floor, Xxxxxx Xxxxx Ave. & 53rd St., P.O. Box 4493, Panama 5, Rep. of
Panama, is hereby appointed as the Resident Agent for this Trust.
29. Arbitration. Any controversy, dispute or claim between the parties arising
out of or related to this Trust 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 Settlor, one of whom
shall be selected by Representative 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 arbitrators shall have the power to decide on its own subject
matter jurisdiction. 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 Trust 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 Trust Agreement and
that 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
12
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 Trust Agreement but shall be in addition to all other remedies
available at law or equity to Settlor. 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.
30. Language. This Trust Agreement has been negotiated and executed in
English. 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 Spanish translation by initialing the same. The
parties agree that, in case of conflict between the English and Spanish
translations of this Trust Agreement, the English version shall govern.
31. No Third Party Beneficiaries. Notwithstanding anything herein to the
contrary, this Trust Agreement is not intended to confer upon any person other
than the parties hereto any rights or remedies hereunder.
13
IN WITNESS WHEREOF, the parties hereto have caused this Trust Agreement
to be executed in New York, New York, USA, as of the date first above written.
"SETTLOR"
CA BEVERAGES, INC.
By:
/s/ Han de Goederen
-----------------------------------
Name: Han de Goederen
Title: President
"TRUSTEE"
BANCO GENERAL, S.A.
By:
/s/ Xxxx-Xxxxxx Xxxxxxxxxx
-----------------------------------
Name: Xxxx-Xxxxxx Xxxxxxxxxx
Title: Attorney-in-Fact
"REPRESENTATIVE"
FUNDACION PRO ACCIONISTAS MINORITARIOS
DE COCA COLA DE PANAMA Y CERVECERIAS
BARU-PANAMA
By: /s/ Xxxxxx Xxxxx
-----------------------------------
Name: Xxxxxx Xxxxx
Title: Authorized Representative
By:
/s/ Xxxxxxx Xxxxx Xxxxxxxxx Xxx
-----------------------------------
Name: Xxxxxxx Xxxxx Xxxxxxxxx Xxx
Title: Authorized Representative
FABREGA BARSALLO MOLINO & MULINO,
as Resident Agent of the Trust
Agreement
By:___________________________________
Name:_________________________________
Title:________________________________
EXHIBIT A
FORM OF INSTRUCTION LETTER
To
BANCO GENERAL, S.A.
APDO. 4592 Panama 5, Republic of Panama
Xxxxx Xxxxxxxx de la Guardia y Avenida 5ta B Sur
Torre Banco General
Attn: Xxxx Xxxxxx Leignadier
as Trustee
The undersigned CA Beverages, Inc. (the "Settlor"), pursuant to the Trust
Agreement - CBP OPA Trust, dated as of October 2, 2002, among Settlor,
Fundacion Pro Accionistas Minoritarios de Coca Cola de Panama y Cervecerias
Baru-Panama, as Representative, and you (terms defined in said Trust Agreement
have the same meanings when used herein), hereby irrevocably instructs you to
credit the funds in the sum of US$________________, transferred to you via
wire transfer to the account of Banco General, S.A. at Citibank, N.A. in New
York, New York, USA, account number 00000000, with value today, to the trust
in accordance with the terms of said Trust Agreement.
CA BEVERAGES, INC.
By:___________________________________
Name:_________________________________
Title:________________________________
EXHIBIT B-1
NOTICE OF EARLY TERMINATION
To
BANCO GENERAL, S.A.
APDO. 4592 Panama 5, Republic of Panama
Xxxxx Xxxxxxxx de la Guardia y Avenida 5ta B Sur
Torre Banco General
Attn: Xxxx Xxxxxx Leignadier
as Trustee
The undersigned, CA BEVERAGES, INC. (the "Settlor"), pursuant to Section
10 of the Trust Agreement - CBP OPA Trust, dated as of October 2, 2002, among
the Settlor, Fundacion Pro Accionistas Minoritarios de Coca Cola de Panama y
Cervecerias Baru-Panama, as Representative, and you (terms defined in said
Trust Agreement have the same meanings when used herein), hereby:
(a) certifies that Settlor has exercised its option under Section 5.9
of the Share Subscription Agreement during the Unconditional
Period (as defined therein) to rescind the sale of the Shares;
(b) irrevocably instructs you to pay to Settlor the full amount of the
Trust Assets as full consideration for the repurchase of the
Shares in accordance with the terms of Section 5.9 of the Share
Subscription Agreement, by wire transfer of immediately available
funds to Settlor's account at ________________________,
________________________, ______________, ______________ (Account
No.________________________); and
(c) encloses the certificate representing the Shares duly endorsed by
us in blank.
CA BEVERAGES, INC.
By:___________________________________
Name:_________________________________
Title:________________________________
Dated: __________, _____
[a copy of this notice is to be remitted to Representative]
EXHIBIT B-2
NOTICE OF EARLY TERMINATION
To
BANCO GENERAL, S.A.
APDO. 4592 Panama 5, Republic of Panama
Xxxxx Xxxxxxxx de la Guardia y Avenida 5ta B Sur
Torre Banco General
Attn: Xxxx Xxxxxx Leignadier
as Trustee
The undersigned, CA BEVERAGES, INC. (the "Settlor") and Fundacion Pro
Accionistas Minoritarios de Coca Cola de Panama y Cervecerias Baru-Panama, as
Representative (the "Representative"), pursuant to Section 10 of the Trust
Agreement - CBP OPA Trust, dated as of October 2, 2002, among the Settlor,
Representative and you (terms defined in said Trust Agreement have the same
meanings when used herein), hereby:
(a) certify that Settlor, with the unanimous approval of all of the
members of the Board of Directors of Coca Cola de Panama Compania
Embotelladora, S.A. and the approval of Representative, has
exercised its option under Section 5.9 of the Share Subscription
Agreement outside of the Unconditional Period to rescind the sale
of the Shares;
(b) irrevocably instruct you to pay to Settlor the full amount of the
Trust Assets as full consideration for the repurchase of the
Shares in accordance with the terms of Section 5.9 of the Share
Subscription Agreement, by wire transfer of immediately available
funds to Settlor's account at ________________________,
________________________, ______________, ______________ (Account
No.________________________); and
(c) enclose the certificate representing the Shares duly endorsed by
us in blank.
CA BEVERAGES, INC.
By:___________________________________
Name:_________________________________
[Please Print]
FUNDACION PRO ACCIONISTAS MINORITARIOS
DE COCA COLA DE PANAMA Y CERVECERIAS
BARU-PANAMA
By:___________________________________
Name:_________________________________
[Please Print]
