EXHIBIT 10.51
TRUST AGREEMENT - COCA COLA HOLDBACK TRUST
This TRUST AGREEMENT - COCA COLA HOLDBACK TRUST, dated as of October 2,
2002 (this "Trust Agreement"), is entered into by and among COCA COLA 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 ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇, Panamanian, of legal age, with
personal identity card No. ▇-▇▇▇-▇▇▇; BANCO GENERAL, S.A., a corporation
organized and existing pursuant to the laws of the Republic of Panama (the
"TRUSTEE"), hereby represented by ▇▇▇▇-▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, Panamanian, of legal
age, with personal identity card No. ▇-▇▇▇-▇▇▇; 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
▇▇▇▇▇▇ ▇▇▇▇▇, Panamanian, of legal age, with personal identity card No.
▇-▇▇▇-▇▇▇, and ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇, Panamanian, of legal age, with
personal identity card No. ▇-▇▇▇-▇▇▇, 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. ▇▇▇▇▇▇▇▇▇, 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, in order to guarantee payment to the Settlor for any General Loss
(as defined below) or any Lawsuit 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) maintain in trust (i) $4,603,066.65, representing US$1.17 per share of
the total amount of shares that may be tendered in the OPA; and (ii) an
additional amount equal to 7.5% of the Net Subject Property Per Share
Amount (as defined in the Share Subscription Agreement) as contemplated by
the third paragraph of Section 5.3 of the Share Subscription Agreement
times 3,934,245 (all such amounts in clauses (i) and (ii) above are
collectively referred to herein as 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, (i) 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
(on behalf of the Settlor) to CAB through a partial repurchase of the
Shares from CAB, and (ii) all earnings accrued on the Trust Assets in
accordance with Section 8 hereof shall be returned by the Trustee to the
Settlor; and
(d) provide for the return of the Trust Assets to CAB upon the occurrence
of any of the events described in Section 10(b) hereof, through a
repurchase of the Shares.
3. Appointment of Beneficiaries. Subject to Section 10(b) hereof, the
Beneficiaries of this Trust and particularly of the Trust Assets shall be
CAB and the Accepting Shareholders as provided for herein.
4. The Trust Amount. The "Trust Amount" initially shall be the aggregate
amount set forth in Section 2(b)(i) hereof and which may be increased by
the amount set forth in Section 2(b)(ii) hereof, all of which is 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 (except for the item referred to in Section 2(b)(ii) hereof) 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.
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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.
7. Investment of the Trust Assets; Taxes.
(a) Unless and until the Trustee receives written instructions from CAB
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 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 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 ▇▇▇▇▇'▇ 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.
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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 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 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 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 (i) any of CAB, Settlor,
subsidiaries of Settlor (excluding Cervecerias Baru-Panama, S.A. and 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 "GENERAL LOSS")
or (ii) Settlor and its subsidiaries Ventas y Mercadeo, S.A. and Direccion
y Administracion de Empresas, S.A. resulting from the lawsuit filed by
Refrescos Nacionales, S.A. against the Settlor and its subsidiaries Ventas
y Mercadeo, S.A. and Direccion y Administracion de Empresas, S.A. for
alleged antitrust practices, to the extent such lawsuit is settled or is
the subject of a final, non-appealable judgment (the "LAWSUIT LOSS"). For
purposes hereof, any General Loss or Lawsuit Loss shall be referred to
herein as a "LOSS" and together as "LOSSES".
8.1 Claim for General Loss
(a) If at any time prior to the Final Termination Date (as defined below),
CAB determines that any of CAB, Settlor, subsidiaries of Settlor
(excluding
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Cervecerias Baru-Panama, S.A. and its subsidiaries) or any of their
respective officers, directors, employees, agents or representatives
has suffered a General Loss, or is reasonably likely to suffer a
General Loss, CAB shall deliver to Representative a notice summarizing
in reasonable detail the nature and amount of the General Loss. If the
amount of a General Loss is not yet certain on the date of such
notice, CAB shall provide a good faith estimate of the maximum General
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 CAB to the
Representative of a Loss pursuant to Section 8.1(a) above, CAB 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.
(c) If Representative objects to any claim of CAB reflected in a
Certificate of Instruction, Representative shall notify CAB, and CAB
and Representative shall promptly review the claim together and
attempt to address Representative's objections. If, within 15 days
following CAB's delivery of the Certificate of Instruction to the
Trustee (the "CONCILIATION PERIOD"), CAB and Representative agree that
CAB's claim as reflected in the Certificate of Instruction should be
modified, CAB 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 CAB and Representative, it shall promptly
pay over to CAB from the Trust Assets, by wire transfer of immediately
available funds to a bank account of CAB's designation, the Owed
Amount set forth in the Resolution Certificate. If Trustee does not
receive a Resolution Certificate signed by both CAB 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 CAB
from the Trust Assets, by wire transfer of immediately available funds
to a bank account of CAB'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
CAB in the notice to Representative given pursuant to Section 8.1(a)
or in the Certificate of Instruction, and CAB 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 CAB by the Trustee pursuant to
Section 8.1(d). The Representative's sole recourse shall be to
commence an arbitration action against CAB pursuant to Section 29
hereof to reclaim the amounts paid over to CAB by Trustee pursuant to
the Certificate of Instruction. If, following any disbursement from
the Trust Assets to CAB
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pursuant to this Section 8.1, the actual amount of an estimated Loss
is finally determined by CAB to be less than the Owed Amount specified
with respect to such Loss and paid to CAB, CAB 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 CAB 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 Claims for Lawsuit Loss
(a) If at any time prior to the Final Termination Date, the Settlor,
Ventas y Mercadeo, S.A. or Direccion y Administracion de Empresas,
S.A. has suffered any Lawsuit Loss, CAB shall deliver to
Representative a copy of the judgment (including any form of
settlement permitted under Panamanian law) issued by the corresponding
court of justice, with the amount of the Lawsuit Loss. The Lawsuit
Loss (including any interest thereon from the date incurred until the
date of payment and reasonable attorneys' fees and other expenses)
specified or estimated in such notice shall be referred to herein as
the "Lawsuit Owed Amount".
(b) Concurrently with the delivery of any notice by CAB to the
Representative of a Lawsuit Loss pursuant to Section 8.2(a) above, CAB
will deliver to the Trustee 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.
(c) Upon receipt of the Certificate of Instruction the Trustee shall
promptly pay over to CAB from the Trust Assets, by wire transfer of
immediately available funds to a bank account of CAB's designation,
the Lawsuit Owed Amount set forth in the Certificate of Instruction.
(d) Representative shall have no right to object to or prevent the
disbursement of funds to CAB by the Trustee pursuant to this Section
8.2. The Representative's sole recourse shall be to commence an
arbitration action against CAB pursuant to Section 29 hereof to
reclaim the amounts paid over to CAB by Trustee pursuant to this
Section 8.2.
8.3. Notwithstanding anything in this Section 8 to the contrary, (i) the
Trustee shall not be required to make any payments to CAB for any Loss
if all amounts in the Trust Assets have been released or otherwise
previously distributed and (ii) CAB 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.
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
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Trustee shall notify CAB of the amount of the Trust Assets not to be
retained on behalf of the Accepting Shareholders. 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).
(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
twenty-four (24) 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 the Settlor 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
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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.
(b) 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
D-1 or Exhibit D-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 a copy of the certificate delivered pursuant to
Section 10 of the Trust Agreement- Coca Cola OPA Trust, dated as of
the date hereof among the parties hereto, (c) the Trustee shall
deliver to CAB all of the Trust Assets (net of Fees due to the
Trustee) by wire transfer in immediately available funds, and (d) 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 dispute or question as to
the construction of any of the provisions of this Trust
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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 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, 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 $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".
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(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, 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 after consummation of the
OPA (including payment of the Certified Amount to the Paying Agent) or
termination of the OPA, 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
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 the right of the Trustee to offset any such unpaid amounts
against payments otherwise due to CAB pursuant to this Trust
Agreement. The obligations of CAB under this Section 13 shall survive
any termination of this Trust Agreement and the resignation or removal
of Trustee.
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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 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 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 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 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:
COCA COLA DE PANAMA CIA. EMBOTELLADORA, S.A.
Apartado 4411, Zona 5
11
Urbanizacion Industrial, Via ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Panama, Republic of Panama
Attn: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ ▇▇.
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
with copies (which shall not constitute notice) to:
▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇
Apartado 8799, Zona 5
▇▇▇▇▇ ▇▇ ▇ ▇▇▇▇▇ ▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇ Interfinanzas, Piso ▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ of Panama
Attn: ▇▇▇▇▇▇ ▇▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
and
▇▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇
Apartado 6307, Zona 5
▇▇▇▇▇ ▇▇ ▇ ▇▇▇▇▇ ▇▇, ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇ 2000, Piso ▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ of Panama
Attn: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ G.
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
If to the Trustee, to:
BANCO GENERAL, S.A.
APDO. 4592 Panama 5, Republic of Panama
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ de la Guardia y Avenida 5ta B Sur
Torre Banco General
Attn: ▇▇▇▇ ▇▇▇▇▇▇ Leignadier
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
If to the Representative, to:
FUNDACION PRO ACCIONISTAS MINORITARIOS DE COCA COLA DE PANAMA Y
CERVECERIAS BARU-PANAMA
▇/▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇ 5
▇▇▇▇▇ ▇▇ ▇ ▇▇▇▇▇ ▇▇, ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇ 2000, Piso ▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ of Panama
Attn: ▇▇▇▇▇▇ ▇▇▇▇▇ and ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ C., c/o ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ G.
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
with a copy (which shall not constitute notice) to:
12
▇▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇
Apartado 6307, Zona 5
▇▇▇▇▇ ▇▇ ▇ ▇▇▇▇▇ ▇▇, ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇ 2000, Piso ▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ of Panama
Attn: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ G.
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
If to CAB, addressed to:
CA BEVERAGES, INC.
▇/▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇
▇.▇. ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇ Plaza 2000, 4th Floor
Avenida Gral. ▇▇▇▇▇▇▇ ▇. ▇▇ ▇▇▇▇▇▇▇ (▇▇▇▇▇ ▇▇)
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ of Panama
Attn: ▇▇▇▇ ▇▇▇▇▇▇ / ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
with copies (which shall not constitute notice) to:
HEINEKEN INTERNATIONAL B.V.
Tweede ▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇
▇.▇. ▇▇▇ ▇▇, ▇▇▇▇ ▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇
Attn: ▇▇▇▇ ▇▇▇▇▇ Graafland
Facsimile: ▇▇▇-▇▇-▇▇▇-▇▇▇▇
PANAMCO L.L.C.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: General Counsel
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
FABREGA BARSALLO MOLINO & MULINO
Omega Bldg., M Floor
▇▇▇▇▇▇ ▇▇▇▇▇ Ave. & 53rd St.
P.O. Box 4493, Panama 5, Rep. of Panama
Attn: ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇/▇▇▇▇ ▇▇▇▇ Mulino
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
and
▇▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇
▇.▇. ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇ 2000, 4th Floor
13
Avenida Gral. ▇▇▇▇▇▇▇ ▇. ▇▇ ▇▇▇▇▇▇▇ (▇▇▇▇▇ ▇▇)
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ of Panama
Attn: ▇▇▇▇ ▇▇▇▇▇▇ / ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
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 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.
14
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.
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 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 ▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, with address at
▇.▇. ▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ 2000, 4th Floor, Avenida Gral. ▇▇▇▇▇▇▇ ▇. ▇▇
▇▇▇▇▇▇▇ (▇▇▇▇▇ ▇▇), ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ 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
15
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 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.
16
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/ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇
Title: Vice President and Director
"TRUSTEE"
BANCO GENERAL, S.A.
By:
/s/ ▇▇▇▇-▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇-▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Title: Attorney-in-Fact
"REPRESENTATIVE"
FUNDACION PRO ACCIONISTAS MINORITARIOS
DE COCA COLA DE PANAMA Y CERVECERIAS
BARU-PANAMA
By:
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇
---------------------------------
By:
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇
---------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇
Title: Authorized Representatives
"CAB"
CA BEVERAGES, INC.
By:
/s/ Han de Goederen
--------------------------------------
Name: Han de Goederen
Title: President
▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇,
as Resident Agent of the Trust Agreement
By:
/s/ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇
--------------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇
EXHIBIT A
FORM OF INSTRUCTION LETTER
To
BANCO GENERAL, S.A.
APDO. 4592 Panama 5, Republic of Panama
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ de la Guardia y Avenida 5ta B Sur
Torre Banco General
Attn: ▇▇▇▇ ▇▇▇▇▇▇ Leignadier
as Trustee
The undersigned Coca Cola de Panama Compania Embotelladora, S.A.
("Settlor"), pursuant to the Trust Agreement - Coca Cola Holdback 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
CERTIFICATE OF INSTRUCTION
To
BANCO GENERAL, S.A.
APDO. 4592 Panama 5, Republic of Panama
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ de la Guardia y Avenida 5ta B Sur
Torre Banco General
Attn: ▇▇▇▇ ▇▇▇▇▇▇ Leignadier
as Trustee
The undersigned, CA Beverages, Inc. ("CAB"), pursuant to Section
[8.1(b)][8.2(b)] of the Trust Agreement - Coca Cola Holdback Trust, dated as of
October 2, 2002, among CAB, Coca Cola de Panama Compania Embotelladora, S.A.,
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) CAB has sent to the Representative a notice of Loss
under Section [8.1(a)][8.2(a)] of the Trust Agreement, a copy of which
is attached hereto, and (ii) the amount of $________________________
(the "[Lawsuit] Owed Amount") is payable to CAB by reason of the
matter described in such notice to Representative; and
(b) instructs you to pay to CAB from the Trust Assets in accordance with
the terms of Section [8.1(d)][8.2(c)] of the Trust Agreement the
[Lawsuit] Owed Amount, by wire transfer of immediately available funds
to CAB'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
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ de la Guardia y Avenida 5ta B Sur
Torre Banco General
Attn: ▇▇▇▇ ▇▇▇▇▇▇ 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 8.1(c) of the Trust Agreement - Coca
Cola Holdback Trust, dated as of October 2, 2002, among CAB, Coca Cola de Panama
Compania Embotelladora de Panama, S.A., the Representative, and you (terms
defined in said Trust Agreement have the same meanings when used herein),
hereby:
(a) certify that CAB 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 CAB from the Trust Assets the final Owed Amount
referred to in paragraph (a) above, by wire transfer of immediately
available funds to CAB'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 CAB
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
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ de la Guardia y Avenida 5ta B Sur
Torre Banco General
Attn: ▇▇▇▇ ▇▇▇▇▇▇ Leignadier
as Trustee
The undersigned, CA BEVERAGES, INC. ("CAB"), pursuant to Section 10 of the
Trust Agreement - Coca Cola Holdback 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 a copy of (i) the Notice of Early Termination delivered
pursuant to Section 10 of the Trust Agreement - Coca Cola OPA Trust,
dated as of October 2, 2002 among CAB, 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
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ de la Guardia y Avenida 5ta B Sur
Torre Banco General
Attn: ▇▇▇▇ ▇▇▇▇▇▇ 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 Holdback 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) encloses a copy of (i) the Notice of Early Termination delivered
pursuant to Section 10 of the Trust Agreement - Coca Cola OPA Trust,
dated as of October 2, 2002 among CAB, 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:_________________________________________
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