EXHIBIT 10.50
TRUST AGREEMENT - COCA COLA OPA TRUST
This TRUST AGREEMENT - COCA COLA OPA TRUST, dated as of October 2, 2002 (this
"Trust Agreement"), is entered into by and among COCA COLQ DE PANAMA COMPANIA
EMBOTELLADORA, S.A., a corporation ("sociedad anonima") organized and existing
pursuant to the laws of the Republic of Panama (the "SETTLOR"), hereby
represented by Xxxxxxx Xxxxx Xxxxxxxxx Xxx, Panamanian, of legal age, with
personal identity card No. 0-000-000; 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; 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 the Settlor 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"); and CA BEVERAGES, INC., a corporation
("sociedad anonima") organized and existing pursuant to the laws of the Republic
of Panama ("CAB"), 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 CAB
dated September 30, 2002.
WHEREAS, on the date first written above Settlor and CAB have entered into a
Share Subscription Agreement (the "SHARE SUBSCRIPTION AGREEMENT") whereby
Settlor has agreed to issue and sell to CAB, 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 the Settlor (or such amount
corresponding to fifty percent (50%) plus one share of the total issued and
outstanding no par value common shares of the Settlor) (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 three million nine hundred thirty-four thousand two hundred forty-five
(3,934,245) issued and outstanding no par value common shares of the Settlor;
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, CAB and Representative hereby agree as
follows:
1. Constitution of the Trust. Settlor, the Trustee, CAB 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 and CAB 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 to the Accepting Shareholders that the Trust Assets (as
defined below) will be available for the payment for their shares on a per
share amount (the "NET COCA COLA AMOUNT") equal to the greater of the Net
Basic Coca Cola Purchase Price (as defined in the Share Subscription
Agreement) and the Net Adjusted Coca Cola Purchase Price (as defined in the
Share Subscription Agreement) and in the manner provided for in Section
7(d)(i) hereof;
(d) To pay the fees described in Section 5.3(g) of the Share Subscription
Agreement;
(e) To provide to Settlor and CAB that, upon consummation of the OPA, the
balance of the Trust Assets shall be distributed in accordance with
Sections 7(d)(ii), 7(d)(iii) and 7(d)(iv) hereof; and
(f) To provide for the return of the Trust Assets to CAB in return for the
Shares upon the occurrence of an event 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;
(b) Secondary Beneficiary: CAB, with respect to earnings accrued on the Trust
Amount in accordance with Section 7(c) or Section 8 hereof; and
(c) Tertiary Beneficiary: Settlor, with respect to the balance of the Trust
Assets.
4. The Trust Amount. The parties acknowledge that, on the date hereof pursuant
to the Share Subscription Agreement, CAB has made a capital contribution to the
Settlor in the aggregate amount of US$88,717,247.30, by delivery of
US$61,570,956.80 in cash
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and an irrevocable standby letter of credit issued by ING Bank, N.V., Curacao
Branch, in the amount of US$27,146,290.50, naming Settlor as beneficiary and
assignable at the option of Settlor to the Trustee (the "LETTER OF CREDIT"). The
Settlor shall transfer, assign or deliver to the Trustee in trust, with
irrevocable instructions as described in the form of instruction letter attached
hereto as Exhibit A: (i) the sum of US$56,967,890.15 in cash and the Letter of
Credit; (ii) the Net Subject Property Amount multiplied by 92.5%; (iii) upon
Settlor's receipt thereof, an amount equal to the funds received by Settlor as a
result of the Public Tender Offer for shares of Cervecerias Baru-Panama, S.A.;
and (iv) upon Settlor's receipt thereof, an amount equal to the dividend from
Settlor's subsidiary Crecimiento y Desarrollo, S.A. made in accordance with
Section 5.7 of the Share Subscription Agreement (all such amounts in clauses (i)
through (iv) above are collectively referred to herein as the "TRUST AMOUNT").
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 (except for the items
set forth in clauses (ii), (iii) and (iv) of Section 4) 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.
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(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 an amount equal
to the Net Coca Cola Amount multiplied by the number of shares
tendered by the Accepting Shareholders. 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 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 $0.50 per
share (or such increased amount if an adjustment is made pursuant to
the third paragraph of Section 5.3 of the Share Subscription
Agreement) 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 shall notify CAB of
the amount and form of the remaining Trust Assets. During the thirty
(30) day period after CAB's receipt of such notice, CAB shall have the
right to exchange such number of its Shares as CAB shall determine for
all or a portion of the remaining Trust Amount, based on a per share
price of the greater of $22.55 or the Adjusted Coca Cola OPA Purchase
Price (as defined in the Share Subscription Agreement). In order to
exercise the exchange rights granted hereby, CAB shall deliver notice
to the Trustee together with a certificate representing the Shares and
an assignment or endorsement thereof with respect to the number of
Shares to be exchanged. Promptly thereafter, Trustee shall pay to CAB
an amount equal to the number of exchanged Shares times the greater of
$22.55 or the Adjusted Coca Cola OPA Purchase Price (as defined in the
Share Subscription Agreement), it being understood that such payment
may, at the option of CAB, be effected through the draw, assignment,
expiration or cancellation of the Letter of Credit.
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(iv) Promptly after payments are made in accordance with clause (ii) and
(iii) above, the Trustee shall pay to CAB, by wire transfer in
immediately available funds, the portion of the Trust Assets
attributable to earnings accrued on the Trust Amount.
(v) After payment by the Trustee to CAB in accordance with clauses (ii),
(iii) and (iv) above, the Trustee promptly shall return to Settlor any
remaining Trust Assets.
(e) Notwithstanding anything in this Trust Agreement to the contrary, the
Trustee shall have the right to draw upon the Letter of Credit only if:
(i) upon the closing of the OPA, the cash portion of the Trust Assets is
insufficient to pay the Certified Amount to the Paying Agent, provided
that the right to draw upon the Letter of Credit shall be limited to
the amount of such insufficiency;
(ii) within five (5) business days after the Trustee has received written
notice from Representative (with a copy to CAB and Settlor) stating
that, in Representative's opinion, CAB has willfully breached its
obligations under Section 5.3 of the Share Subscription Agreement and,
to the knowledge of Representative after due inquiry, no Proceeding
(as defined in the Share Subscription Agreement) exists with respect
to the Share Subscription Agreement or the OPA (the "REPRESENTATIVE
NOTICE"), the Trustee has not received written notice from CAB or
Settlor objecting to the statements made in the Representative Notice;
(iii) two (2) business days prior to the expiration of the Letter of Credit
unless prior to such time the Trustee has received an extension of the
expiration date of the Letter of Credit; or
(iv) the Trustee receives written instructions from CAB granting the
Trustee such right.
8. Investment of the Trust Assets; Taxes.
(a) As per written instructions of CAB 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 CAB 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");
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(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 CAB 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 CAB and the
Representative, such maturities not to extend beyond the Termination
Date; or
(iv) Such other investments as CAB and the Representative shall jointly
approve or direct in writing.
The written instructions for the investment shall be given by CAB and
the Representative to the Trustee. The Trustee shall notify CAB 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 CAB 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 and paid or reimbursed by 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
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objectives established in Section 2 of this Trust Agreement have been fulfilled
or (ii) the date on which CAB 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 CAB exercises its rights of rescission under Section
5.9(a) of the Share Subscription Agreement, then (a) CAB (if such exercise shall
occur during the Unconditional Period (as defined in the Share Subscription
Agreement)) or CAB 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) together with the delivery of such notice as described in clause (a)
above, CAB shall deliver to the Trustee the certificate representing the Shares,
duly endorsed in blank, (c) the Trustee shall deliver to CAB all of the Trust
Assets (net of Fees due to the Trustee and net of the Trust Assets described in
clause (ii) of Section 4 hereof, which Trust Assets shall be returned to
Settlor), by wire transfer in immediately available funds, (d) the Trustee shall
deliver the certificate representing the Shares to the Settlor for cancellation
and (e) 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 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 CAB's
prior written consent, such consent not to be unreasonably withheld) in the
event of any
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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 CAB 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.
(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, CAB 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
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hereunder. If for any reason such earnings are insufficient to cover such
Fees, CAB 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 CAB 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 CAB and
Representative copies of all related invoices and other statements.
(c) Prior to the consummation or termination of the OPA, CAB 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, CAB 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 CAB 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-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 CAB's
compensation, reimbursement and indemnification obligations set forth in
this Section 13 shall be payable by CAB upon demand by the Trustee, and the
failure of CAB 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 CAB 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 CAB and Representative. In addition,
the Trustee may be removed and replaced on a date designated in a written
instrument signed by
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CAB and Representative and delivered to the Trustee. In the case of either
such resignation or removal, CAB 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 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 CAB 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 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:
COCA COLA DE PANAMA CIA. EMBOTELLADORA, S.A.
Apartado 4411, Zona 5
Urbanizacion Industrial, Via Xxxxxxx X. Xxxxxx
Panama, Republic of Panama
Attn: Xxxxxxx X. Xxxxxxxxx Xx.
Facsimile: 000-000-0000
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with copies (which shall not constitute notice) to:
XXXXX, XXXXXX & XXXX
Apartado 8799, Zona 5
Xxxxx 00 x Xxxxx 00, Xxx Xxxxxxxxx
Xxxxxxxx XX Interfinanzas, Piso 00
Xxxxxx, Xxxxxxxx of Panama
Attn: Xxxxxx Xxxxx
Facsimile: 000-000-0000
and
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
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
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Attn: Xxxxxxxxx Xxxxx G.
Facsimile: 000-000-0000
If to CAB, 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
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
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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 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. CAB, 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 CAB, Settlor and Representative do not and will not violate
any applicable law or regulation.
13
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 CAB to any of
the Sponsors (as defined in the Share Subscription Agreement) or any direct or
indirect subsidiary of the Sponsors.
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 Xxxxx Xxxxxxx & Xxxxxx, with address at X.X. Xxx
0000, Xxxxxxxx Xxxxx 2000, 4th Floor, Avenida Gral. Xxxxxxx X. xx Xxxxxxx (Xxxxx
00), Xxxxxx, Xxxxxxxx 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 CAB, 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
14
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
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 CAB. 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.
15
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"
COCA COLA DE PANAMA COMPANIA
EMBOTELLADORA, S.A.,
By:
/s/ Xxxxxxx Xxxxx Xxxxxxxxx Xxx
-----------------------------------
Name: Xxxxxxx Xxxxx Xxxxxxxxx Xxx
Title: Vice President and Director
"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
"CAB"
CA BEVERAGES, INC.
By:_____________________________________
Name:___________________________________
Title:__________________________________
XXXXX XXXXXXX & XXXXXX,
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 Coca Cola de Panama Compania Embotelladora, S.A.
("Settlor"), pursuant to the Trust Agreement - Coca Cola OPA Trust, dated as of
October 2, 2002, among Settlor, CA Beverages, Inc., 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 from our account number
03-01-01-012584-0 to the trust in accordance with the terms of said Trust
Agreement.
COCA COLA DE PANAMA COMPANIA
EMBOTELLADORA, S.A.,
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. ("CAB"), pursuant to Section 10 of the
Trust Agreement - Coca Cola OPA Trust, dated as of October 2, 2002, among CAB,
Coca Cola de Panama Compania Embotelladora de Panama, S.A. (the "Settlor"),
Fundacion Pro Accionistas Minoritarios de Coca Cola de Panama y Cervecerias
Baru-Panama, as Representative (the "Representative"), and you (terms defined in
said Trust Agreement have the same meanings when used herein), hereby:
(a) certifies that CAB 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 CAB the full amount of the Trust
Assets on behalf of the Settlor 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 CAB'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. ("CAB") 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 - Coca
Cola OPA Trust, dated as of October 2, 2002, CAB, Coca Cola de Panama Compania
Embotelladora de Panama, S.A. (the "Settlor"), Representative, and you (terms
defined in said Trust Agreement have the same meanings when used herein),
hereby:
(a) certify that CAB, with the unanimous approval of all of the members of
Board of Directors of Settlor 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 CAB the full amount of the Trust
Assets on behalf of the Settlor 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 CAB'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]
