EXHIBIT 10.53
TRUST AGREEMENT - CBP HOLDBACK TRUST
This TRUST AGREEMENT - CBP HOLDBACK 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, in order to guarantee
payment to the Settlor for any Loss (as defined below).
2. Objectives of the Trust. The objectives of this Trust are to:
(a) permit the Trustee to pledge the Trust Assets to secure any guarantee
required by applicable securities legislation in connection with the OPA;
(b) transfer to the Trustee a portion retained from the purchase price of
the shares subject to the OPA in the amount of US$4,228,525.40 (the
"HOLDBACK FUND"), as set out in the Share Subscription Agreement and in
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"), in order for the
Trustee to use the Holdback Fund according to the terms and conditions of
this Trust Agreement;
(c) guarantee to Settlor that, upon consummation of the OPA, the balance
of the Trust Assets that is not retained with respect to shares of the
Accepting Shareholders under the OPA shall be returned by the Trustee to
the Settlor; and
(d) provide for the return of the Trust Assets to Settlor upon the
occurrence of any of the events described in Section 10(b) hereof.
3. Appointment of Beneficiaries. Subject to Section 10(b) hereof, the
Beneficiaries of this Trust and particularly of the Trust Assets shall
be Settlor and the Accepting Shareholders as provided for herein.
4. The Trust Amount. The "Trust Amount" initially shall be the aggregate
amount of US$4,228,525.40, which represents the Holdback Fund retained
from the purchase price of the shares subject to the OPA and given in
trust, with irrevocable instructions as described in the form of
instruction letter attached hereto as Exhibit A, to the Trustee by the
Settlor.
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, the 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. Trustee hereby accepts such appointment and agrees to hold,
invest and disburse the Trust Amount in accordance with this Trust
Agreement.
6. The Trust Assets. The Trust Amount, all earnings accrued thereon in
accordance with Section 7 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.
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7. Investment of the Trust Assets; Taxes.
(a) Unless and until the Trustee receives written instructions from
Settlor and the Representative as set forth below, the Trustee
shall maintain the Trust Assets in an overnight account at Banco
General, S.A., available for immediate use. 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 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
(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 the amount of funds
available to invest in accordance with this Section 7(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,
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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. 8. Claims Against the Trust Assets. The Trust
Assets shall be used solely for payment of any action, cost,
damage, disbursement, expense, fine, fee, liability, loss,
deficiency, obligation, penalty or settlement of any nature,
including but not limited to, interest or other carrying costs,
penalties, legal, accounting and other professional fees and
expenses incurred in the investigation, collection, prosecution
and defense of claims, whether in litigation or other proceedings
or with respect to any action, and amounts paid in settlement
that may be imposed on or otherwise incurred or suffered,
directly or indirectly, by any of Settlor, its subsidiaries or
any of their respective officers, directors, employees, agents or
representatives and that arise in connection with any breach of,
or inaccuracy in, any of the representations, warranties or
covenants made by Settlor, or made or confirmed by the Accepting
Shareholders, in the Share Subscription Agreement or Tender Offer
Documents (a "LOSS").
8.1 Claim for Loss
(a) If at any time prior to the Final Termination Date (as
defined below), Settlor determines that any of Settlor, its
subsidiaries or any of their respective officers, directors,
employees, agents or representatives has suffered a Loss, or
is reasonably likely to suffer a Loss, Settlor shall deliver
to Representative a notice summarizing in reasonable detail
the nature and amount of the Loss. If the amount of a Loss
is not yet certain on the date of such notice, Settlor shall
provide a good faith estimate of the maximum Loss likely to
be incurred. The Loss specified or estimated in such notice
shall be referred to herein as the "Owed Amount".
(b) Concurrently with the delivery of any notice by Settlor to
the Representative of a Loss pursuant to Section 8.1(a)
above, Settlor will deliver to the Trustee a certificate in
substantially the form of Exhibit B attached hereto (a
"CERTIFICATE OF INSTRUCTION"). The Trustee shall give
written notice to the Representative of its receipt of a
Certificate of Instruction not later than two business days
following receipt thereof, together with a copy of such
Certificate of Instruction.
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(c) If Representative objects to any claim of Settlor reflected
in a Certificate of Instruction, Representative shall notify
Settlor, and Settlor and Representative shall promptly
review the claim together and attempt to address
Representative's objections. If, within 15 days following
Settlor's delivery of the Certificate of Instruction to the
Trustee (the "CONCILIATION PERIOD"), Settlor and
Representative agree that Settlor's claim as reflected in
the Certificate of Instruction should be modified, Settlor
and Representative shall execute jointly and deliver to the
Trustee a Resolution Certificate in substantially the form
attached as Exhibit C.
(d) If, within the Conciliation Period, the Trustee receives a
Resolution Certificate signed by both Settlor and
Representative, it shall promptly pay over to Settlor from
the Trust Assets, by wire transfer of immediately available
funds to a bank account of Settlor's designation, the Owed
Amount set forth in the Resolution Certificate. If Trustee
does not receive a Resolution Certificate signed by both
Settlor and Representative before expiration of the
Conciliation Period, the Trustee shall, notwithstanding any
objection by Representative or any other party, promptly
upon expiration of the Conciliation Period pay over to
Settlor from the Trust Assets, by wire transfer of
immediately available funds to a bank account of Settlor's
designation, the Owed Amount set forth in the Certificate of
Instruction from the Trust Assets. Such obligation of the
Trustee shall be absolute and unconditional.
(e) If the Representative should dispute or object to the Loss
claimed by Settlor in the notice to Representative given
pursuant to Section 8.1(a) or in the Certificate of
Instruction, and Settlor has not agreed during the
Conciliation Period to modify its claim by executing a
Resolution Certificate, Representative shall have no right
to object to or prevent the disbursement of funds to Settlor
by the Trustee pursuant to Section 8.1(d). The
Representative's sole recourse shall be to commence an
arbitration action against Settlor pursuant to Section 29
hereof to reclaim the amounts paid over to Settlor by
Trustee pursuant to the Certificate of Instruction. If,
following any disbursement from the Trust Assets to Settlor
pursuant to this Section 8.1, the actual amount of an
estimated Loss is finally determined by Settlor to be less
than the Owed Amount specified with respect to such Loss and
paid to Settlor, Settlor shall within ten (10) business days
remit to Representative the amount by which the Owed Amount
exceeded such actual Loss plus interest at a rate equal to
the annual rate of return of the Trust Assets for the period
of time during which Settlor held the excess funds or, for
any period of time after the Trust Assets have been fully
disbursed, a rate of five percent (5%) per annum.
8.2 Notwithstanding anything in this Section 8 to the contrary,
(i) the Trustee shall not be required to make any payments
to Settlor for any Loss if all amounts in the Trust Assets
have been released or otherwise previously distributed and
(ii) Settlor shall have no right to claim a Loss hereunder
prior to the earlier of (A) the date of the closing of the
OPA and (B) December 31, 2002.
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9. Release of Trust Assets.
(a) Promptly 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 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 not to be retained on
behalf of the Accepting Shareholders.
(b) Fifty-three and one-third percent (53.33%) of the Trust Assets
will be held by the Trustee for the recovery of Losses until the
date which is thirty-six (36) months after the earlier of (A) the
date of the closing of the OPA and (B) December 31, 2002 and (ii)
forty-six and two-thirds percent (46.67%) of the Trust Assets
will be held by the Trustee for the recovery of Losses until the
date on which the lawsuit filed by Refrescos Nacionales, S.A.
against Coca Cola and its subsidiaries Ventas y Mercadeo, S.A.
and Direccion y Administracion de Empresas, S.A. for alleged
antitrust practices is settled or is the subject of a final,
non-appealable judgment (the earlier of the dates described in
clauses (i) and (ii) shall be referred to herein as the "INITIAL
TERMINATION DATE" and the later of such dates, the "FINAL
TERMINATION DATE"); provided, however, that such lawsuit shall
not be settled without the consent of the Representative, such
consent not to be unreasonably withheld, and any dispute relating
to the granting or withholding of such consent shall be governed
by Section 29 hereof; provided further, if any claims for Losses
are pending as of the Initial Termination Date or the Final
Termination Date, as the case may be, then such date shall be
extended to such time as all such claims have been fully
satisfied or otherwise disposed.
10. Termination.
(a) Subject to Section 10(b), this Trust Agreement, and all
obligations of the Trustee hereunder shall terminate on the
earliest of: (i) the Final Termination Date, (ii) such earlier
date on which all of the Trust Assets shall have been disbursed
in accordance with the terms of this Trust Agreement, or (iii)
the date on which CAB and Representative jointly notify the
Trustee in writing of their intent 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 in accordance with this Section 10(a), upon
payment of all Fees due to the Trustee, the Trust Assets then
held hereunder shall be distributed pro rata for the benefit of
the Accepting Shareholders, based upon the amount of shares
tendered by each such Accepting Shareholder in the acceptance of
the OPA. For that purpose, Banco General, S.A. or another
qualified financial institution appointed by Settlor to serve as
the paying agent of the OPA (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
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the Acceptance Termination Date and receipt of the Paying Agent
Certification, the Trustee shall deliver the Certified Amount to
the Paying Agent.
(b) 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 D-1 or Exhibit D-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 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
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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 the 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 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 $15,000, 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 will charge a fee of $4 per
check for payments to the Beneficiaries (as set forth in Section
3 hereof) and Settlor upon liquidation of the Trust. 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
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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-half (1/2) of any indemnifiable claims, losses, actions,
liabilities, costs, damages or expenses described above against
the Trust Assets.
(d) After consummation or termination of the OPA, 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 and the Trustee will have no
right to offset any amount thereof against the Trust Assets.
(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 the right of the Trustee
to offset any such unpaid amounts against payments otherwise due
to Settlor pursuant to this Trust Agreement. 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
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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 Assets, the Trustee shall
be fully released and relieved of all duties, responsibilities
and obligations under this Trust Agreement, subject to the
provision contained in 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:
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HEINEKEN INTERNATIONAL B.V.
Tweede Weteringplantsoen 21
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
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 0000, Piso 16
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 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 the 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
12
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.
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 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
13
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 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.
14
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:
/s/ Xxxx Xxxxx Xxxxxxx
----------------------------------
Name: Xxxx Xxxxx Xxxxxxx
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 Holdback 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
CERTIFICATE OF INSTRUCTION
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 8.1(b) of the Trust Agreement - CBP Holdback Trust, dated as of
October 2, 2002, among 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 (i) Settlor has sent to the Representative a
notice of Loss under Section 8.1(a) of the Trust Agreement, a
copy of which is attached hereto, and (ii) the amount of
$________________________ (the "Owed Amount") is payable to
Settlor by reason of the matter described in such notice to
Representative; and
(b) instructs you to pay to Settlor from the Trust Assets in
accordance with the terms of Section 8.1(d) of the Trust
Agreement the Owed Amount, by wire transfer of immediately
available funds to Settlor's account at ________________________,
________________________, ______________, ______________ (Account
No.________________________).
CA BEVERAGES, INC.
By:_________________________________
Name:_______________________________
Title:______________________________
Dated: __________, _____
EXHIBIT C
RESOLUTION CERTIFICATE
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 8.1(c) of the
Trust Agreement - CBP Holdback Trust, dated as of October 2, 2002, among
Settlor, the Representative and you (terms defined in said Trust Agreement
have the same meanings when used herein), hereby:
(a) certify that Settlor and Representative have, after further
discussion of the matter described in the Certificate of
Instruction dated ____________________ agreed upon an Owed Amount
different from the amount specified in the Certificate of
Instruction. Accordingly, the final Owed Amount with respect to
the matter described in such Certificate is $______________;
(b) instruct you to pay to Settlor from the Trust Assets the final
Owed Amount referred to in paragraph (a) above, by wire transfer
of immediately available funds to Settlor's account at
_______________, _______________, (Account No.: _____), within
two business days of your receipt of this Certificate; and
(c) agree that the Owed Amount designated in such Certificate of
Instruction, to the extent, if any, it exceeds the final Owed
Amount referred to in paragraph (a) above, shall be deemed not
payable to Settlor and such Certificate of Instruction is hereby
cancelled.
CA BEVERAGES, INC.
By:_________________________________
Name:_______________________________
[Please Print]
FUNDACION PRO ACCIONISTAS
MINORITARIOS DE COCA COLA DE
PANAMA Y CERVECERIAS BARU-PANAMA
By:_________________________________
Name:_______________________________
[Please Print]
EXHIBIT D-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 Holdback 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 (the
"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 a copy of (i) the Notice of Early Termination delivered
pursuant to Section 10 of the Trust Agreement - CBP OPA Trust, dated as
of October 2, 2002 among the Settlor, the Representative and you and (ii)
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 D-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 Holdback 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) encloses a copy of (i) the Notice of Early Termination delivered
pursuant to Section 10 of the Trust Agreement - CBP OPA Trust,
dated as of October 2, 2002 among the Settlor, the Representative
and you and (ii) 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]
