================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
SCHEDULE 13D
(RULE 13D-101)
(AMENDMENT NO. )
BUENOS AIRES EMBOTELLADORA S.A.
(BUENOS AIRES BOTTLING COMPANY INC.)
- --------------------------------------------------------------------------------
(Name of Issuer)
CLASS B ORDINARY SHARES,
PS0.01 PAR VALUE P1910S 10 8
- --------------------------------------------------------------------------------
(Title of class of securities) (CUSIP number)
STEPHEN KAROTKIN, ESQ.
WEIL, GOTSHAL & MANGES LLP
767 FIFTH AVENUE
NEW YORK, NY 10153
(212) 310-8000
- --------------------------------------------------------------------------------
(Name, address and telephone number of person authorized
to receive notices and communications)
FEBRUARY 25, 1999
- --------------------------------------------------------------------------------
(Date of event which requires filing of this statement)
If the filing person has previously filed a statement on Schedule 13G to report
the acquisition which is the subject of this Schedule 13D, and is filing this
schedule because of Rule 13d-1(b)(3) or (4), check the following box [_].
Schedules filed in paper format shall include a signed original and five copies
of the Schedule, including all exhibits.
Note: See Rule 13d-7(b) for other parties to whom copies are to be sent.
(Continued on following pages)
(Page 1 of 19 Pages)
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NYFS10...:\86\35886\0396\347\SCH2259P.54E
<PAGE>
<TABLE>
<CAPTION>
- -------------------------------------------------------- --------------------------------------
CUSIP No. P1910S 10 8 13D Page 2 of 19 Pages
- -------------------------------------------------------- --------------------------------------
- ---------------------------------------------------------------------------------------------------------
<S> <C>
1 NAME OF REPORTING PERSON: CITIBANK, N.A.
I.R.S. IDENTIFICATION NO.
OF ABOVE PERSON (ENTITIES ONLY): 13-5266470
- ---------------------------------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP: (A) [_]
(B) [_]
- ---------------------------------------------------------------------------------------------------------
3 SEC USE ONLY
- ---------------------------------------------------------------------------------------------------------
4 SOURCE OF FUNDS: OO
- ---------------------------------------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED [_]
PURSUANT TO ITEM 2(d) OR 2(e):
- ---------------------------------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF DELAWARE
ORGANIZATION:
- ---------------------------------------------------------------------------------------------------------
NUMBER OF 7 SOLE VOTING POWER: 0
SHARES
----------------------------------------------------------------------------------
BENEFICIALLY 8 SHARED VOTING POWER: 594,550,484
OWNED BY
----------------------------------------------------------------------------------
EACH 9 SOLE DISPOSITIVE POWER: 0
REPORTING
----------------------------------------------------------------------------------
PERSON WITH 10 SHARED DISPOSITIVE POWER: 594,550,484
- ---------------------------------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY 594,550,484
REPORTING PERSON:
- ---------------------------------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN [_]
SHARES:
- ---------------------------------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11): 20.1%*
- ---------------------------------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON: BK
- ---------------------------------------------------------------------------------------------------------
*See Items 5(a) and (b).
<PAGE>
- -------------------------------------------------------- --------------------------------------
CUSIP No. P1910S 10 8 13D Page 3 of 19 Pages
- -------------------------------------------------------- --------------------------------------
- ---------------------------------------------------------------------------------------------------------
1 NAME OF REPORTING PERSON: CITICORP
S.S. OR I.R.S. IDENTIFICATION NO.
OF ABOVE PERSON: 06-1515595
- ---------------------------------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP: (A) [_]
(B) [_]
- ---------------------------------------------------------------------------------------------------------
3 SEC USE ONLY
- ---------------------------------------------------------------------------------------------------------
4 SOURCE OF FUNDS: N/A
- ---------------------------------------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED [_]
PURSUANT TO ITEM 2(d) OR 2(e):
- ---------------------------------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF DELAWARE
ORGANIZATION:
- ---------------------------------------------------------------------------------------------------------
NUMBER OF 7 SOLE VOTING POWER: 0
SHARES
----------------------------------------------------------------------------------
BENEFICIALLY 8 SHARED VOTING POWER: 594,550,484
OWNED BY
----------------------------------------------------------------------------------
EACH 9 SOLE DISPOSITIVE POWER: 0
REPORTING
----------------------------------------------------------------------------------
PERSON WITH 10 SHARED DISPOSITIVE POWER: 594,550,484
- ---------------------------------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY 594,550,484
REPORTING PERSON:
- ---------------------------------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN [_]
SHARES:
- ---------------------------------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11): 20.1%*
- ---------------------------------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON: HC
- ---------------------------------------------------------------------------------------------------------
*See Items 5(a) and (b).
<PAGE>
- -------------------------------------------------------- --------------------------------------
CUSIP No. P1910S 10 8 13D Page 4 of 19 Pages
- -------------------------------------------------------- --------------------------------------
- ---------------------------------------------------------------------------------------------------------
1 NAME OF REPORTING PERSON: CITIGROUP INC.
S.S. OR I.R.S. IDENTIFICATION NO.
OF ABOVE PERSON: 52-1568099
- ---------------------------------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP: (A) [_]
(B) [_]
- ---------------------------------------------------------------------------------------------------------
3 SEC USE ONLY
- ---------------------------------------------------------------------------------------------------------
4 SOURCE OF FUNDS: N/A
- ---------------------------------------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED [_]
PURSUANT TO ITEM 2(d) OR 2(e):
- ---------------------------------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF DELAWARE
ORGANIZATION:
- ---------------------------------------------------------------------------------------------------------
NUMBER OF 7 SOLE VOTING POWER: 0
SHARES
----------------------------------------------------------------------------------
BENEFICIALLY 8 SHARED VOTING POWER: 594,660,234
OWNED BY
----------------------------------------------------------------------------------
EACH 9 SOLE DISPOSITIVE POWER: 0
REPORTING
----------------------------------------------------------------------------------
PERSON WITH 10 SHARED DISPOSITIVE POWER: 594,660,234
- ---------------------------------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY 594,660,234
REPORTING PERSON:
- ---------------------------------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN [_]
SHARES:
- ---------------------------------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11): 20.1%*
- ---------------------------------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON: HC
- ---------------------------------------------------------------------------------------------------------
</TABLE>
*See Items 5(a) and (b).
<PAGE>
This Statement on Schedule 13D (the "Statement") is filed with the
Securities and Exchange Commission pursuant to Rule 13d-1 of the Securities
Exchange Act of 1934, as amended (the "Exchange Act").
Item 1. Security and Issuer.
This Statement relates to the Class B Ordinary Shares, Ps0.01 par
value (the "Class B Ordinary Shares"), of Buenos Aires Embotelladora S.A.
(Buenos Aires Bottling Company Inc.), an Argentine corporation ("Baesa"), and
American Depository Receipts for such Class B Ordinary Shares. The address of
the principal executive office of Baesa is Diogenes Taborda 1533, 1437 Buenos
Aires, Argentina.
Item 2. Identity and Background.
This Statement on Schedule 13D is being filed by Citibank, N.A.
("Citibank"), Citicorp and Citigroup Inc. ("Citigroup") (together, the
"Reporting Persons").
(a)-(c) Citibank is a national banking association. The address of
its principal business office is 399 Park Avenue, New York, New York 10043.
Citibank is principally engaged in the general banking business. Citibank is a
member of the Federal Reserve System and the Federal Deposit Insurance Corp.
Citicorp is a Delaware corporation and is the sole stockholder of
Citibank. Citicorp is a U.S. bank holding company. The address of its principal
business office is 399 Park Avenue, New York, New York 10043.
Citigroup is a Delaware corporation and is the sole stockholder of
Citicorp. The address of the principal business office of Citigroup is 153 East
53rd Street, New York, New York 10043. Citigroup subsidiary businesses provide a
broad range of financial services to consumer and corporate customers around the
world. Among these businesses are Citibank, Commercial Credit, Primerica
Financial Services, Salomon Smith Barney, SSB Citi Asset Management, Travelers
Life & Annuity and Travelers Property Casualty. A joint filing agreement of the
Reporting Persons is attached hereto as Exhibit 1.
The following information with respect to each executive officer and
director of Citibank and Citigroup is set forth in Schedules A and B hereto: (i)
name, (ii) business
Page 5 of 19
<PAGE>
address, (iii) citizenship, (iv) present principal occupation or employment and
(v) name of any corporation or other organization in which such employment is
conducted, together with the principal business and address of any such
corporation or organization other than the Reporting Persons for which such
information is set forth above.
As described in Item 4 of this Statement, Citibank has entered into
agreements with respect to the securities of Baesa.
(d)-(f) During the last five years, none of the Reporting Persons
nor, to the best knowledge of the Reporting Persons, any of the persons listed
on Schedules A, B and C hereto, has been convicted in a criminal proceeding
(excluding traffic violations or similar misdemeanors) or was a party to a civil
proceeding of a judicial or administrative body of competent jurisdiction as a
result of which such person was or is subject to a judgment, decree or final
order enjoining future violations of, or prohibiting or mandating activities
subject to, federal or state securities laws or finding any violation with
respect to such laws. The citizenship of each of the individuals identified
pursuant to Paragraphs (a) through (c) is identified on Schedules A and B
hereto.
Item 3. Source and Amount of Funds or Other Consideration.
The information contained in Item 4 of this Statement is
incorporated herein by reference.
Item 4. Purpose of the Transaction.
Citibank acquired the Class B Ordinary Shares it owns in exchange
for debt of Baesa as part of the financial restructuring of Baesa (the
"Restructuring"). Prior to the Restructuring, Citibank and its affiliates held
US$145,369,592 in aggregate principal amount of debt of Baesa. In connection
with the Restructuring, Citibank entered into the following agreements and
engaged in the following actions:
Pursuant to the Third Amended and Restated Restructuring and
Exchange Agreement, dated as of February 24, 1999, among Baesa, PepsiCo, Inc.
("PepsiCo"), Citibank and each of the other institutions listed on Schedule I
thereto (each such institution, including Citibank, but excluding PepsiCo, a
"Lender" and collectively, the "Lenders") (the "Restructuring Agreement"), a
copy of which is filed as Exhibit 2 hereto, on February 25, 1999, the Lenders
exchanged certain of their
Page 6 of 19
<PAGE>
existing debt of Baesa for new debt of Baesa, cash and Class B Ordinary Shares
of Baesa. Citibank received an aggregate of US$18,206 in principal amount at
maturity of new debt of Baesa, US$211,141.30 in cash and 594,550,484 Class B
Ordinary Shares.
Pursuant to a Shareholders' Agreement, dated as of February 23,
1999, among Baesa, PepsiCo, Citibank, BankBoston, N.A. ("BankBoston"),
Bayerische Hypo-und Vereinsbank AG ("Vereinsbank") (each such party, other than
Baesa, a "Shareholder") (the "Shareholders' Agreement"), a copy of which is
filed as Exhibit 3 hereto, each Shareholder has agreed that it will not, until
February 25, 2003, transfer or otherwise dispose of its Class A Ordinary Shares
or Class B Ordinary Shares (collectively, the "Ordinary Shares"), except (a) to
a wholly-owned direct or indirect subsidiary of such Shareholder, (b) to another
Shareholder (each, a "Permitted Transferee") or (c) to a bona fide third party
but only if the transferring Shareholder first offers to sell such Ordinary
Shares to the other Shareholders on the same terms as those being offered to the
transferring Shareholder by such bona fide third party.
Further, Citibank, BankBoston and Vereinsbank (sometimes referred to
individually as a "Bank" and collectively as the "Banks") have each agreed in
the Shareholders' Agreement that they will not become a party to any proposed
transaction pursuant to which any person or group shall become the beneficial
owner of more than 50% of the combined voting power of the then outstanding
securities of Baesa (with certain exceptions) unless two Banks are a party to
such transaction and the two selling Banks give the other Bank the opportunity
either to (a) agree to the sale of its Ordinary Shares in accordance with such
transaction or (b) purchase for cash all of the Ordinary Shares held by the
selling Banks upon substantially the same terms and conditions.
In addition, pursuant to the Shareholders' Agreement, until February
25, 2000, each Shareholder has agreed that it will vote its Ordinary Shares (a)
so that the Board of Directors of Baesa is comprised of seven directors and (b)
for the following persons to be members thereof: (i) two directors designated by
Citibank, one of which shall be the Chairman of the Board of Directors, (ii) one
director designated by PepsiCo, (iii) one director designated by BankBoston,
(iv) one director designated by Vereinsbank, (v) one director designated by a
majority of the Shareholders and (vi) one director designated jointly by TCW
Shared Opportunity Fund II, L.P. ("TCW") and Franklin Mutual Advisers, Inc.
("Franklin"), as long as such entities continue to
Page 7 of 19
<PAGE>
own collectively at least a specified percentage of the issued and outstanding
Ordinary Shares and, at such time as such entities cease to own collectively
such percentage, by a majority of the Shareholders. The Shareholders Agreement
provides that, in the event any Shareholder transfers all of its Ordinary Shares
to another person (other than to a Permitted Transferee), the right to designate
a director by the holder of such Ordinary Shares shall terminate, and such
director shall be selected by a majority of the remaining Shareholders.
Pursuant to an Agreement (the "Tag-Along Agreement"), dated as of
November 30, 1999, among Citibank, BankBoston, Vereinsbank, TCW and Franklin, a
copy of which is filed as Exhibit 4 hereto, any two Banks (the "Transferring
Banks") may not transfer to a third party, in one transaction or series of
related transactions, a number of Class B Ordinary Shares constituting in the
aggregate more than 50% of the total issued and outstanding equity
capitalization of Baesa, unless the purchaser of such shares offers to purchase
from each other Lender or any affiliates of such Lenders holding Class B
Ordinary Shares, for the same consideration, and on the same terms and
conditions as the Transferring Banks intend to transfer such Class B Ordinary
Shares, a number of Class B Ordinary Shares equal to the percentage of the
Transferring Banks' Class B Ordinary Shares being sold in the transaction
subject to the Tag-Along Agreement.
On February 25, 1999, Citibank, N.A., Buenos Aires Branch entered
into a Loan Agreement with Baesa to provide a secured working capital facility
for Baesa to consist of (a) a line of credit in an amount up to US$15,000,000,
secured by a first priority mortgage in the same amount over Baesa's Buenos
Aires plant, and (b) a line of credit in an amount up to 5,000,000 Argentine
Pesos, secured by a pledge of accounts receivable of Baesa. The facility expires
on February 25, 2000. Pepsi-Cola Argentina S.A.C.I., a subsidiary of PepsiCo,
BankBoston, N.A., Buenos Aires Branch, a subsidiary of BankBoston, and
Vereinsbank have guaranteed a portion of the facility.
Prior to and without any connection to the Restructuring, various
subsidiaries of Citigroup had acquired Class B Ordinary Shares of Baesa for
investment purposes, for third party accounts or for mutual funds managed by
such subsidiaries, as described in Item 5 below. The Citigroup subsidiaries
review their respective holdings of Baesa securities on a continuing basis.
Depending on such evaluations of Baesa's
Page 8 of 19
<PAGE>
business and prospects, and upon future developments (including, but not limited
to, market prices of the Class B Ordinary Shares and availability and
alternative uses of funds, as well as conditions in the securities markets and
general economic and industry conditions), each Citigroup subsidiary may acquire
other securities of Baesa or sell all or a portion of its Class B Ordinary
Shares or other securities of Baesa, now owned or hereafter acquired.
Except as set forth above, the Reporting Persons have no present
plans or intentions which would result in or relate to any of the transactions
described in subparagraphs (a) through (j) of Item 4 of Schedule 13D.
Item 5. Interest in Securities of the Issuer.
(a) and (b) By reason of their relationship as described in Item 2,
Citicorp and Citigroup may be deemed to share voting and dispositive power with
respect to the Class B Ordinary Shares of Baesa directly beneficially owned by
Citibank and may be deemed to have an indirect beneficial ownership in such
shares. As of February 25, 1999, Citibank (and Citicorp and Citigroup) may be
deemed to beneficially own 594,550,484 Class B Ordinary Shares, which represent
20.1% of the outstanding Class B Ordinary Shares. Class B Ordinary Shares
entitle the holders thereof to one vote per share on each matter submitted to a
vote of Baesa's shareholders. As of February 25, 1999 Baesa had 16,372,973
outstanding Class A Ordinary Shares which entitle the holder thereof to five
votes per share. The 594,550,484 Class B Ordinary Shares owned directly by
Citibank (and indirectly by Citicorp and Citigroup) therefore constitute 19.6%
of the aggregate voting power of Baesa.
The Reporting Persons are of the view that they are not acting as a
"group" with the other Lenders and PepsiCo who received Class B Ordinary Shares
in exchange for existing debt of Baesa upon the consummation of the
Restructuring for purposes of Section 13(d) under the Exchange Act and that the
Reporting Persons are not otherwise required to attribute to themselves the
beneficial ownership of securities held by any of the Lenders or PepsiCo.
Citigroup may be deemed to share voting and dispositive power with
respect to 109,750 Class B Ordinary Shares (109,710 of which shares are held in
the form of 54,855 American Depository Receipts) acquired by its subsidiaries
for investment purposes as described in Item 4. Therefore, including the
594,550,484 shares
Page 9 of 19
<PAGE>
acquired by Citibank in connection with the Restructuring, Citigroup may be
deemed to share voting and dispositive power with respect to 594,660,234 shares,
constituting 20.1% of the outstanding Class B Ordinary Shares and 19.6% of the
aggregate voting power of Baesa.
The information contained in Item 4 of this Statement is
incorporated herein by reference.
(c) On February 25, 1999, in connection with the consummation of the
Restructuring, Citibank received 594,550,484 Class B Ordinary Shares in exchange
for certain of the debt of Baesa it previously held. Subsidiaries of Citigroup
acquired an aggregate of 40 Class B Ordinary Shares and 54,855 American
Depository Receipts convertible into 109,710 Class B Ordinary Shares prior to
the transactions described herein.
(d) Not applicable.
(e) Not applicable.
Item 6. Contracts, Arrangements, Understandings or
Relationships with Respect to Securities of
the Issuer.
The information contained in Item 4 of this Statement is
incorporated herein by reference.
There are no contracts, arrangements, understandings or
relationships with respect to any securities of the Company (i) among the
Reporting Persons and, to the best of their knowledge, any of the other persons
identified pursuant to Item 2 above and (ii) between (a) the Reporting Persons
and, to the best of their knowledge, any of the persons identified pursuant to
Item 2 above and (b) any other person, other than as described in Item 4 above.
Item 7. Material to be Filed as Exhibits.
1. Joint Filing Agreement, dated March 8, 1999, between Citigroup,
Citicorp and Citibank.
2. Third Amended and Restated Restructuring and Exchange Agreement,
dated as of February 24, 1999, among Baesa, PepsiCo, Inc., Citibank and each of
the other institutions listed on Schedule I thereto.
Page 10 of 19
<PAGE>
3. Shareholders' Agreement, dated as of February 23, 1999, among
Baesa, PepsiCo, Citibank, BankBoston and Vereinsbank.
4. Agreement, dated as of November 30, 1999, among Citibank,
BankBoston, Vereinsbank, TCW Shared Opportunity Fund II, L.P. and Franklin
Mutual Advisers, Inc.
Page 11 of 19
<PAGE>
SIGNATURE
After reasonable inquiry and to the best of my knowledge and belief,
I certify that the information set forth in this Statement is true, complete and
correct.
Dated: March 8, 1999
CITIBANK, N.A.
By: /s/ Glenn S. Gray
----------------------------------
Name: Glenn S. Gray
Title: Vice President and
Assistant Secretary
CITICORP
BY: /s/ Glenn S. Gray
----------------------------------
Name: Glenn S. Gray
Title: Assistant Secretary
CITIGROUP INC.
BY: /s/ Glenn S. Gray
----------------------------------
Name: Glenn S. Gray
Title: Assistant Secretary
Page 12 of 19
<PAGE>
SCHEDULE A
Executive Officers and Directors
of
Citibank, N.A.
The names of the Directors and the names and titles of the Executive
Officers of Citibank, N.A. and their business addresses and principal
occupations are set forth below. Unless otherwise indicated, each individual is
a United States citizen.
Principal Occupation
Name, Title and Citizenship and Business Address
- --------------------------- --------------------
Paul J. Collins Vice Chairman
Director Citigroup Inc.
153 East 53rd Street
New York, New York 10043
Robert I. Lipp Co-Chief Executive Officer of
Director Citigroup's Global
Consumer Business
153 East 53rd Street
New York, New York 10043
Victor J. Menezes Co-Chief Executive Officer of
Director & Executive Officer Citigroup's Global Corporate
(India) and Investment Bank
153 East 53rd Street
New York, New York 10043
John S. Reed Chairman & Co-Chief Executive
Director & Executive Officer Officer
Citigroup Inc.
153 East 53rd Street
New York, New York 10043
William R. Rhodes Vice Chairman
Director & Executive Officer Citicorp/Citibank, N.A.
153 East 53rd Street
New York, New York 10043
Page 13 of 19
<PAGE>
H. Onno Ruding Vice Chairman
Director & Executive Officer Citicorp/Citibank, N.A.
(Netherlands) 153 East 53rd Street
New York, New York 10043
William I. Campbell Co-Chief Executive Officer of
Executive Officer (USA/Canada) Citigroup's Global
Consumer Business
1 Court Square
Long Island City, N.Y. 11120
Edward D. Horowitz Corporate Executive
Executive Officer Vice President
Citicorp/Citibank, N.A.
153 East 53rd Street
New York, New York 10043
Dionisio R. Martin Corporate Executive
Executive Officer Vice President
(Argentina) Citicorp/Citibank, N.A.
399 Park Avenue
New York, New York 10043
Robert A. McCormack Corporate Executive
Executive Officer Vice President
Citicorp/Citibank, N.A.
399 Park Avenue
New York, New York 10043
Michael A. Ross Senior Vice President and
Executive Officer General Counsel
Citicorp/Citibank, N.A.
399 Park Avenue
New York, New York 10043
Mary Alice Taylor Corporate Executive
Executive Officer Vice President
Citicorp/Citibank, N.A.
1 Court Square
Long Island City, N. Y. 11120
Page 14 of 19
<PAGE>
SCHEDULE B
Executive Officers and Directors
of
Citigroup Inc.
The names of the Directors and the names and titles of the Executive
Officers of Citigroup and their business addresses and principal occupations are
set forth below. Unless otherwise indicated, each individual is a United States
citizen.
Name, Title and Citizenship Principal Occupation and Business Address
- --------------------------- -----------------------------------------
C. Michael Armstrong Chairman & Chief Executive Officer
Director AT&T Corp.
295 North Maple Avenue
Basking Ridge, New Jersey 07920
Alain J.P. Belda President & Chief Operations Officer
Director (Brazil) ALCOA Inc.
201 Isabella Street
Pittsburgh, Pennsylvania 15212-5858
Kenneth J. Bialkin Partner
Director Skadden, Arps, Slate, Meagher & Flom LLP
919 Third Avenue
New York, New York 10022
Kenneth T. Derr Chairman & Chief Executive Officer
Director Chevron Corporation
575 Market Street
San francisco, California 94105
John M. Deutch Institute Professor
Director Massachusetts Institute of Technology
77 Massachusetts Avenue, Room 6-208
Cambridge, Massachusetts 02139
Ann Dibble Jordan Consultant & Former Director of Social
Director Services,
The University of Chicago Medical Center
2904 Benton Place, NW
Washington, DC 20008
Reuben Mark Chairman & Chief Executive Officer
Director Colgate-Palmolive Company
300 Park Avenue
New York, New York 10022-7499
Michael T. Masin Vice Chairman, President-International
Director GTE Corporation
One Stamford Forum
Stamford, Connecticut 06904
Page 15 of 19
<PAGE>
Dudley C. Mecum Managing Director
Director Capricorn Holdings
30 East Elm Street
Greenwich, Connecticut 06830
Richard D. Parsons President
Director Time Warner, Inc.
75 Rockefeller Plaza, 29th Floor
New York, New York 10019
Andrall E. Pearson Chairman & Chief Executive Officer
Director Tricon Global Restaurants, Inc.
660 Steamboat Road
Greenwich, Connecticut 06830
John S. Reed Chairman & Co-Chief Executive Officer
Director & Executive Officer Citigroup Inc.
153 East 53rd Street
New York, New York 10043
Robert B. Shapiro Chairman & Chief Executive Officer
Director Monsanto Company
800 North Lindbergh Blvd.
Mail Zone D1S
St. Louis, Missouri 63167
Franklin A. Thomas Lawyer/Consultant & Former President,
Director The Ford Foundation
595 Madison Avenue, 33rd Floor
New York, New York 10022
Sanford I. Weill Chairman & Co-Chief Executive Officer
Director & Executive Officer Citigroup Inc.
153 East 53rd Street
New York, New York 10043
Edgar S. Woolard, Jr. Former Chairman & Chief Executive Officer
Director E.I. du Pont de Nemours & Company
1007 Market Street
Wilmington, Delaware 19898
Arthur Zankel General Partner
Director First Manhattan Company
437 Madison Avenue
New York, New York 10022
The Honorable Gerald R. Ford Former President of the United States
Honorary Director Post Office Box 927
Rancho Mirage, California 92270
William I. Campbell Co-Chief Executive Officer,
Executive Officer (USA/Canada) Global
Consumer Business
1 Court Square
Long Island City, New York 11120
Page 16 of 19
<PAGE>
Michael A. Carpenter Co-Chief Executive Officer,
Executive Officer Global Corporate and Investment Bank
of Citigroup Inc.
388 Greenwich Street
New York, New York 10043
Paul J. Collins Vice Chairman
Executive Officer Citigroup Inc.
153 East 53rd Street
New York, New York 10043
Edward D. Horowitz Corporate Executive Vice President
Executive Officer Citibank, N.A.
153 East 53rd Street
New York, New York 10043
Thomas W. Jones Co-Chairman and Chief Executive Officer,
Executive Officer SSB Citi Asset Management
388 Greenwich Street
New York, New York 10013
Robert I. Lipp Co-Chief Executive Officer,
Executive Officer of Citigroup's Global
Consumer Business
153 East 53rd Street
New York, New York 10043
Deryck C. Maughan Vice Chairman
Executive Officer Citigroup Inc.
(U.K.) 153 East 53rd Street
New York, New York 10043
Victor J. Menezes Co-Chief Executive Officer,
Executive Officer (India) Global Corporate and Investment Bank
of Citigroup Inc.
153 East 53rd Street
New York, New York 10043
Heidi G. Miller Chief Financial Officer
Executive Officer Citigroup Inc.
153 East 53rd Street
New York, New York 10043
Charles O. Prince, III Co-General Counsel &
Executive Officer Corporate Secretary
Citigroup Inc.
153 East 53rd Street
New York, New York 10043
Mary Alice Taylor Corporate Executive Vice President
Executive Officer Citicorp & Citibank, N.A.
1 Court Square
Long Island City, New York 11120
Page 17 of 19
<PAGE>
Todd S. Thomson Senior Vice President-
Executive Officer Corporate Development
Citigroup Inc.
153 East 53rd Street
New York, New York 10043
Marc P. Weill Executive Vice President
Executive Officer Citigroup Inc.
153 East 53rd Street
New York, New York 10043
Page 18 of 19
<PAGE>
EXHIBIT INDEX
-------------
Exhibit No. Document
----------- --------
1 Joint Filing Agreement, dated as of March 8, 1999, among
Citibank, Citicorp and Citigroup.
2 Third Amended and Restated Restructuring and Exchange
Agreement, dated as of February 24, 1999, among Baesa,
PepsiCo, Inc., Citibank and each of the other institutions
listed on Schedule I thereto.
3 Shareholders' Agreement, dated as of February 23, 1999, among
Baesa, PepsiCo, Citibank, BankBoston and Vereinsbank.
4 Agreement, dated as of November 30, 1999, among Citibank,
BankBoston, Vereinsbank, TCW Shared Opportunity Fund II, L.P.
and Franklin Mutual Advisers, Inc.
Page 19 of 19
EXHIBIT 1
JOINT FILING AGREEMENT
This will confirm the agreement by and between all of the
undersigned that the Schedule 13D filed on or about this date with respect to
the beneficial ownership by the undersigned of Class B Ordinary Shares of Buenos
Aires Embotelladora S.A. (Buenos Aires Bottling Company Inc.) is being, and any
and all amendments to such Schedule may be, filed on behalf of each of the
undersigned. This Agreement may be executed in two or more counterparts, each of
which will be deemed an original, but all of which together shall constitute one
and the same instrument.
Dated: March 8, 1999
CITIBANK, N.A.
By: /s/ Glenn S. Gray
----------------------------------
Name: Glenn S. Gray
Title: Vice President and
Assistant Secretary
CITICORP
BY: /s/ Glenn S. Gray
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Name: Glenn S. Gray
Title: Assistant Secretary
CITIGROUP INC.
BY: /s/ Glenn S. Gray
----------------------------------
Name: Glenn S. Gray
Title: Assistant Secretary
NYFS10...:\86\35886\0396\347\SCH2259P.54E
EXHIBIT 2
EXECUTION COPY
THIRD AMENDED AND RESTATED
RESTRUCTURING AND EXCHANGE AGREEMENT
THIRD AMENDED AND RESTATED RESTRUCTURING AND EXCHANGE AGREEMENT
dated as of February 24, 1999 among BUENOS AIRES EMBOTELLADORA S.A., an
Argentine corporation ("BAESA"), PEPSICO, INC., a North Carolina corporation
("PepsiCo"), and each of the institutions listed on Schedule I hereto that on
the date hereof or hereafter becomes a party hereto (each such institution,
other than PepsiCo, a "Lender" and collectively, the "Lenders").
PRELIMINARY STATEMENTS
1. As of the date hereof, BAESA is indebted to each of the Lenders
and PepsiCo pursuant to the loan agreements, credit agreements, notes or other
agreements or documents listed on Schedule I hereto (collectively, the "Existing
Facilities") for, inter alia, the principal amounts set forth thereon.
2. BAESA has defaulted in the repayment of the indebtedness owed to
the Lenders and PepsiCo, and has advised the Lenders and PepsiCo that it is
unable to repay such indebtedness in accordance with its terms.
3. In addition, BAESA has defaulted on its obligations under the
US$60,000,000 8.50% Negotiable Obligations due 2000 (collectively, the
"Eurobonds"), which were issued pursuant to the Fiscal Agency Agreement, dated
as of December 29, 1993 among BAESA, The Bank of New York, as Fiscal Agent,
Registrar and Principal Paying Agent, Banque Generale du Luxembourg, S.A., as
Paying Agent and Transfer Agent and Banque Bruxelles Lambert, as Paying Agent.
4. Pursuant to the terms and conditions of the Amended and Restated
Restructuring and Exchange Agreement, dated as of April 6, 1998, among BAESA,
PepsiCo and the Lenders (the "Amended Restructuring and Exchange Agreement"),
the Lenders and PepsiCo agreed with BAESA to exchange all of their obligations
under or evidenced by the Existing Facilities and the Migrating Debt (as defined
below) for (i) new notes of BAESA, (ii) Rights Offering Proceeds and (iii)
Unsubscribed Shares.
5. In satisfaction of one of the conditions to closing of the
Amended Restructuring and Exchange Agreement, in the Eurobond Exchange Offer (as
defined below), Eurobond Holders (as defined below) tendered in excess of the
required aggregate principal amount of Eurobonds necessary to allow BAESA to
consummate the exchange of Eurobonds
SS_DOCS03/449068.8
<PAGE>
2
for Class A Exchange Receipts (as defined below) and Class B Exchange Receipts
(as defined below) .
6. In satisfaction of one of the other conditions to closing of the
Amended Restructuring and Exchange Agreement, BAESA entered into the Class
Action Litigation Settlement Agreement (as defined below), which settlement was
consented to by the Steering Committee (as defined below) in the manner provided
for in the Amended Restructuring and Exchange Agreement and was approved by the
District Court (as defined below).
7. Pursuant to the terms of the Second Amended and Restated
Restructuring and Exchange Agreement, dated as of November 30, 1998, among
BAESA, PepsiCo and the Lenders (the "Second Amended Restructuring and Exchange
Agreement"), BAESA, the Lenders and PepsiCo agreed to amend and restate the
Amended Restructuring and Exchange Agreement, in its entirety, on the terms and
conditions set forth therein, for the purposes of, inter alia, (i) reducing the
aggregate amount of New Negotiable Obligations (as defined below) to be issued
by BAESA to the Lenders and PepsiCo and (ii) providing for the distribution to
the plaintiffs in the Class Action Litigation of New Ordinary Shares (as defined
below) representing 2% of the total issued and outstanding equity capitalization
of BAESA after the Closing (as defined below), which the Financial Creditors (as
defined below) and PepsiCo were entitled to under the Amended Restructuring and
Exchange Agreement, but that they agreed to forego in order to allow for the
consummation of the settlement approved in the Class Action Litigation
Settlement Order (as defined below).
8. In order to facilitate BAESA's access to the new working capital
facility required by Section 9.01 of the Second Amended Restructuring and
Exchange Agreement, BAESA, PepsiCo and the Lenders have further agreed to amend
and restate the Second Amended Restructuring and Exchange Agreement, in its
entirety, on the terms and conditions set forth in this Agreement, to provide,
inter alia, for the forgiveness by the Lenders and PepsiCo, as provided in
Article III hereof, of all interest accrued and unpaid with respect to the
Existing Facilities and the Migrating Debt.
NOW, THEREFORE, in consideration of the foregoing, and for other
good and valuable consideration, the sufficiency and receipt of which are hereby
acknowledged, the parties hereto agree, subject to the terms and conditions
hereof, as follows:
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ARTICLE I
DEFINITIONS
"Alternative Eurobond Debt" means Eurobond Debt Subject to
Restructure in an aggregate amount of US$25,000,000, that was exchanged for
Class A Exchange Receipts in the Eurobond Exchange Offer.
"Bolsa" means the Bolsa de Comercio de Buenos Aires.
"Business Day" means any day that is not a Saturday, a Sunday or
other day on which banks are required or authorized to be closed in New York
City or Buenos Aires, Argentina.
"Class Action Litigation" means the litigation in the United States
District Court for the Southern District of New York captioned, In re BAESA
Securities Litigation, Master File No. 96 Civ. 7435 (JSR), which was settled
pursuant to the Class Action Litigation Settlement Agreement as approved by the
Class Action Litigation Settlement Order.
"Class Action Litigation Settlement Agreement" means the Stipulation
and Agreement of Settlement dated July 31, 1998 among BAESA, Charles Beach and
the plaintiffs in the Class Action Litigation.
"Class Action Litigation Settlement Order" means the order of the
District Court dated October 7, 1998, which approved the Class Action Litigation
Settlement Agreement.
"Class Action Litigation Settlement Shares" means New Ordinary
Shares, which, after the consummation of the transactions contemplated hereby,
will represent 2% of the total issued and outstanding equity capitalization of
BAESA.
"Class A Exchange Receipts" means the Class A Exchange Receipts, the
terms of which are more fully described in the Eurobond Exchange Offering
Memorandum, issued to certain former holders of Eurobonds in the Eurobond
Exchange Offer.
"Class B Exchange Receipts" means the Class B Exchange Receipts, the
terms of which are more fully described in the Eurobond Exchange Offering
Memorandum, issued to certain former holders of Eurobonds in the Eurobond
Exchange Offer.
"Closing" means the closing of the transactions contemplated by
Article II of this Agreement.
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"Closing Date" means the date, which shall be a Business Day
selected by BAESA and the Steering Committee not more than 10 Business Days
after the satisfaction of the conditions set forth in Section 9.01 of this
Agreement, or such later date as BAESA and the Steering Committee may agree, on
which the Closing occurs.
"CNV" means the Comision Nacional de Valores of Argentina.
"Current Shareholders" means the holders of Existing Shares as of
the Record Date.
"Distributable Unsubscribed Shares" means an amount of Unsubscribed
Shares equal to (i) the product of New Ordinary Shares multiplied by a fraction
the (a) numerator of which is the aggregate Lender Debt Subject to Restructure
plus the PepsiCo Debt Subject to Restructure minus the Lender Share minus the
PepsiCo Share and (b) the denominator of which is the aggregate Financial Debt
Subject to Restructure (Adjusted) plus the PepsiCo Debt Subject to Restructure
(Adjusted) minus the New Negotiable Obligations (ii) minus (a) the Class Action
Settlement Shares plus the shares for which Rights were exercised multiplied by
(b) 1 minus the Eurobond Equity Multiplier.
"District Court" means the United States District Court for the
Southern District of New York, in which the Class Action Litigation was pending.
"Eurobond Debt Multiplier" means a fraction, (i) the numerator of
which is the Eurobond Debt Subject to Restructure minus the Alternative Eurobond
Debt and (ii) the denominator of which is the aggregate amount of the Financial
Debt Subject to Restructure (Adjusted) and the PepsiCo Debt Subject to
Restructure (Adjusted).
"Eurobond Debt Subject to Restructure" means the Eurobonds plus
accrued and unpaid interest thereon at the non-default rate of 8.5% per annum
through but not including the Closing Date.
"Eurobond Equity Multiplier" means a fraction, (i) the numerator of
which is the Eurobond Debt Subject to Restructure minus the Alternative Eurobond
Debt minus the Eurobond Share and (ii) the denominator of which is the Financial
Debt Subject to Restructure (Adjusted) plus the PepsiCo Debt Subject to
Restructure (Adjusted) minus the aggregate amount of the New Negotiable
Obligations.
"Eurobond Exchange Offer" means the exchange offer made with
Eurobond Holders, whereby, pursuant to the terms of the Eurobond Exchange
Offering Memorandum, BAESA effected an exchange of Eurobonds for (i) Class A
Exchange Receipts, which will be converted on the Closing Date into certain new
negotiable obligations of BAESA and (ii) Class
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5
B Exchange Receipts, which will be converted on the Closing Date into a certain
amount of New Senior Negotiable Obligations, Rights Offering Proceeds and
Unsubscribed Shares, all as further described in the Eurobond Exchange Offering
Memorandum.
"Eurobond Exchange Offering Memorandum" means the Offering
Memorandum, dated April 6, 1998, and such other documents that were prepared in
connection therewith, pursuant to which the Eurobond Exchange Offer was
conducted.
"Eurobond Holders" means the holders of Eurobonds as of the date of
the commencement of the Eurobond Exchange Offer.
"Eurobonds" shall have the meaning ascribed thereto in the recitals
hereof.
"Eurobond Share" means with respect to the aggregate principal
amount of New Senior Negotiable Obligations, an amount equal to the product of
(i)(a) $200,000,000 minus (b) an amount equal to the product of (1) $200,000,000
and (2) a fraction, the numerator of which is the aggregate Alternative Eurobond
Debt and the denominator of which is the aggregate amount of Financial Debt
Subject to Restructure and the PepsiCo Debt Subject to Restructure (Adjusted)
and (ii) the Eurobond Debt Multiplier.
"Eurobond Unsubscribed Shares" means with respect to Unsubscribed
Shares to be delivered to Holders of Class B Exchange Receipts pursuant to the
terms of the Eurobond Exchange Offer, the aggregate Unsubscribed Shares
multiplied by the Eurobond Equity Multiplier.
"Existing Debt" means all of the indebtedness and obligations under
or evidenced by (i) the Existing Facilities, (ii) the Migrating Debt, (iii) the
Class A Exchange Receipts and (iv) the Class B Exchange Receipts.
"Existing Facilities" shall have the meaning ascribed thereto in the
recitals hereof.
"Existing Ordinary Class A Shares" means Ordinary Class A Shares of
BAESA issued and outstanding as of any date prior to the Closing Date.
"Existing Ordinary Class B Shares" means Ordinary Class B Shares of
BAESA issued and outstanding as of any date prior to the Closing Date.
"Existing Shares" means the Existing Ordinary Class A Shares and the
Existing Ordinary Class B Shares, collectively.
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6
"Financial Creditors" means the Lenders, the holders of Class B
Exchange Receipts, and their respective successors, transferees and assigns.
"Financial Debt Subject to Restructure" means the aggregate amount
of Lender Debt Subject to Restructure (Adjusted) plus the aggregate amount of
Eurobond Debt Subject to Restructure.
"Financial Debt Subject to Restructure (Adjusted)" means the
aggregate amount of Financial Debt Subject to Restructure minus the aggregate
amount of the Alternative Eurobond Debt.
"GAAP" means generally accepting accounting principles in the
applicable jurisdiction in which such principles are applied.
"Lender Debt" means the aggregate principal amount of the
indebtedness held by the Lenders as set forth on Schedule I hereto.
"Lender Debt Subject to Restructure" means Lender Debt plus the
Migrating Debt.
"Lender Debt Subject to Restructure (Adjusted)" means the (i) Lender
Debt plus accrued and unpaid interest on such amount at the rate of 9.479% per
annum from October 1, 1996 through but not including the Closing Date, plus (ii)
Migrating Debt plus accrued and unpaid interest on such amount at the rate of
9.479% per annum from October 22, 1997 through but not including the Closing
Date.
"Lender Share" means with respect to the aggregate principal amount
of New Senior Negotiable Obligations to be delivered to the Lenders, an amount
equal to the product of (i) the aggregate amount of the New Negotiable
Obligations minus the Eurobond Share and (ii) a fraction, the numerator of which
is the aggregate Lender Debt Subject to Restructure (Adjusted), and the
denominator of which is the sum of the aggregate amount of the Lender Debt
Subject to Restructure (Adjusted) plus the PepsiCo Debt Subject to Restructure
(Adjusted).
"Liens" means a lien, security interest, charge, encumbrance,
pledge, assignment for security, mortgage or preferential arrangement of any
kind or nature whatsoever.
"Migrating Debt" means (i) US$10,225,347.20 owed to BankBoston, N.A.
and (ii) US$13,824,574.45 owed to Citibank, N.A.
<PAGE>
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"New Negotiable Obligations" means the New Senior Negotiable
Obligations and the New Subordinated Negotiable Obligation, collectively, in an
aggregate amount equal to (i) US$100,000,000 minus (ii) an amount equal to the
product of (a) US$200,000,000 and (b) a fraction, the numerator of which is the
aggregate Alternative Eurobond Debt and the denominator of which is the
aggregate amount of Financial Debt Subject to Restructure and PepsiCo Debt
Subject to Restructure (Adjusted).
"New Ordinary Shares" means New Ordinary Class B Shares offered in
the Rights Offering, which, after issuance in connection with Rights exercised
and to Old Debtholders, holders of Class B Exchange Receipts and pursuant to the
Class Action Litigation Settlement Agreement, will represent 98% of the total
issued and outstanding equity capitalization of BAESA.
"New Senior Negotiable Obligation Indenture" means the indenture, in
form and substance satisfactory to BAESA and the Steering Committee, pursuant to
which the New Senior Negotiable Obligations will be issued.
"New Senior Negotiable Obligations" means the Senior Negotiable
Obligations in an aggregate principal amount equal to the Lender Share plus the
Eurobond Share to be issued by BAESA in accordance with Argentine Law 23,576, as
amended, to the Financial Creditors having the terms provided in the New Senior
Negotiable Obligation Indenture, including the principal terms set forth in
Exhibit A hereto.
"New Subordinated Negotiable Obligation" means the Subordinated
Negotiable Obligation in the principal amount equal to the PepsiCo Share to be
issued by BAESA in accordance with Argentine Law 23,576, as amended, to the
holder of the PepsiCo Debt Subject to Restructure (Adjusted) having the terms
provided in the New Subordinated Negotiable Obligation Indenture, including the
principal terms set forth in Exhibit B hereto.
"New Subordinated Negotiable Obligation Indenture" means the
indenture, in form and substance satisfactory to BAESA, the Steering Committee
and PepsiCo, pursuant to which the New Subordinated Negotiable Obligation will
be issued.
"Non-Eurobond Unsubscribed Shares" means the aggregate Unsubscribed
Shares minus the Eurobond Unsubscribed Shares.
"Old Debtholders" means the Lenders and PepsiCo, and their
respective successors, transferees and assigns.
"Other Funded Debt" means the claims listed on Schedule II hereof.
<PAGE>
8
"PepsiCo Debt Subject to Restructure" means the aggregate principal
amount of the indebtedness held by PepsiCo as evidenced by the PepsiCo Facility
in the aggregate principal amount set forth in Schedule I.
"PepsiCo Debt Subject to Restructure (Adjusted)" means the PepsiCo
Debt Subject to Restructure plus accrued and unpaid interest on such amount at
the rate of 9.479% per annum from October 1, 1996 through but not including the
Closing Date.
"PepsiCo Facility" means the Existing Facility provided by
Pepsi-Cola Argentina S.A.I.C.
"PepsiCo Share" means with respect to the principal amount of the
New Subordinated Negotiable Obligation to be received by PepsiCo, an amount
equal to the aggregate amount of the New Negotiable Obligations minus the
aggregate principal amount of New Senior Negotiable Obligations.
"Professional" means each lawyer, law firm, consultant, investment
bank, accounting firm or other third party retained by any member of the
Steering Committee or BAESA in connection herewith or with respect to defaults
under the Existing Facilities to which members of the Steering Committee are a
party.
"Professional Fees" means the fees and expenses accrued by each
Professional as of the Closing Date in connection with the matters contemplated
by this Agreement or in connection with the defaults under the Existing
Facilities, subject to any limitations agreed to by BAESA and any Professional.
"Proportionate Share" means with respect to the amount of
Distributable Unsubscribed Shares to be received by (i) any Lender pursuant
hereto, a fraction, the numerator of which is the amount of such Lender's Lender
Debt Subject to Restructure (Adjusted) and the denominator of which is the
aggregate Lender Debt Subject to Restructure (Adjusted) plus the PepsiCo Debt
Subject to Restructure (Adjusted) and (ii) PepsiCo pursuant hereto, a fraction,
the numerator of which is the amount of the PepsiCo Debt Subject to Restructure
(Adjusted) and the denominator of which is the aggregate Lender Debt Subject to
Restructure (Adjusted) plus the PepsiCo Debt Subject to Restructure (Adjusted).
"Pro Rata Share" means with respect to the amount of Rights Offering
Proceeds to be received by (i) any Lender pursuant hereto, a fraction, the
numerator of which is the amount of such Lender's Lender Debt Subject to
Restructure (Adjusted) and the denominator of which is the aggregate of all
Financial Debt Subject to Restructure (Adjusted) plus the PepsiCo Debt Subject
to Restructure (Adjusted) and (ii) PepsiCo pursuant hereto, a fraction, the
numerator of which is the amount of the PepsiCo Debt Subject to Restructure
(Adjusted)
<PAGE>
9
and the denominator of which is the aggregate of all Financial Debt Subject to
Restructure (Adjusted) plus the PepsiCo Debt Subject to Restructure (Adjusted).
"Ratable Share" means with respect to the amount of New Senior
Negotiable Obligations to be received by any Lender pursuant hereto, a fraction,
the numerator of which is the amount of such Lender's Lender Debt Subject to
Restructure (Adjusted) and the denominator of which is the aggregate of all
Lender Debt Subject to Restructure (Adjusted).
"Record Date" means the date to be specified in the Rights Offering
Documents, which is the date on which a holder of an Existing Share must be a
shareholder of record in order to be eligible to participate in the Rights
Offering.
"Released Party" means, for purposes of Article XI of this
Agreement, each party to this Agreement, in its individual capacity, and each
member of the Steering Committee, in its capacity as a member of the Steering
Committee.
"Releasees" shall have the meaning ascribed thereto in Section 11.01
of this Agreement.
"Releasors" shall have the meaning ascribed thereto in Section 11.01
of this Agreement.
"Requisite Majority" means, at any time, Old Debtholders holding
more than 65% of the outstanding principal amount of Lender Debt Subject to
Restructure and PepsiCo Debt Subject to Restructure.
"Right" means a registered detachable right, which will entitle the
holder thereof, in the exercise of Argentine statutory preemptive and accretion
rights, to subscribe to New Ordinary Shares in accordance with the terms of the
Rights Offering Documents.
"Rights Offering" means the offering made to Current Shareholders to
subscribe for New Ordinary Shares, through the exercise of Rights, pursuant to
the terms of the Rights Offering Documents.
"Rights Offering Documents" means the registration statement filed
with the SEC (including the prospectus filed therewith), and such other
documents filed with the SEC, the CNV and the Bolsa, pursuant to which the
Rights Offering was conducted.
"Rights Offering Proceeds" means the cash proceeds from the exercise
of Rights for the purchase of New Ordinary Shares in accordance with the terms
of the Rights Offering Documents.
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10
"Rights Offering Subscription Period" means the period of time fixed
in the Rights Offering Documents during which Rights may be timely exercised, as
such period may be extended from time to time.
"SEC" means the United States Securities and Exchange Commission.
"Senior Trustee" shall have the meaning ascribed thereto in Section
2.05 of this Agreement.
"Steering Committee" means BankBoston, N.A., Citibank, N.A.,
Franklin Mutual Advisers, Inc., the High Yield Group of Trust Company of the
West and Bayerische Vereinsbank, and does not include their respective
successors and assigns.
"Undistributed Unsubscribed Shares" means the Non-Eurobond
Unsubscribed Shares minus the Distributable Unsubscribed Shares.
"Unsubscribed Shares" means that number of New Ordinary Shares equal
to the number of New Ordinary Shares for which Rights were not exercised prior
to the close of the Rights Offering Subscription Period minus the number of
Class Action Litigation Settlement Shares.
ARTICLE II
EXCHANGE BY OLD DEBTHOLDERS OF THEIR EXISTING DEBT FOR NEW
NEGOTIABLE OBLIGATIONS, RIGHTS OFFERING PROCEEDS AND UNSUBSCRIBED SHARES
Section 2.01. Lenders Exchange of Existing Debt. At the Closing,
each Lender shall exchange the Lender Debt Subject to Restructure held by such
Lender for its (i) Ratable Share of the Lender Share of the New Senior
Negotiable Obligations, (ii) Pro Rata Share of the Rights Offering Proceeds and
(iii) Proportionate Share of the Distributable Unsubscribed Shares.
Section 2.02. PepsiCo Exchange of Existing Debt. At the Closing,
PepsiCo shall exchange the PepsiCo Debt Subject to Restructure for (i) the New
Subordinated Negotiable Obligation, (ii) its Pro Rata Share of the Rights
Offering Proceeds and (iii) its Proportionate Share of the Distributable
Unsubscribed Shares.
Section 2.03. The Closing. The Closing shall occur at the offices of
Shearman & Sterling, 599 Lexington Avenue, New York, New York or at such other
location as BAESA and the Steering Committee shall agree.
<PAGE>
11
Section 2.04. Deliveries By Old Debtholders at Closing. At the
Closing, each Old Debtholder shall deliver to BAESA (i) each promissory note or
other instrument evidencing its Existing Debt marked "canceled" or similarly
annotated, or a customary lost note indemnity letter and (ii) such other
documents in respect of the Existing Debt held by such Old Debtholder, as may be
required under applicable law to evidence the cancellation or extinguishment of
such Existing Debt.
Section 2.05. Deliveries By BAESA at Closing. At the Closing, BAESA
shall deliver:
(a) (i) to the trustee under the New Senior Negotiable Obligation
Indenture (the "Senior Trustee") on behalf of the Lenders, a global
certificate evidencing the New Senior Negotiable Obligations executed,
authenticated and delivered as provided in the New Senior Negotiable
Obligation Indenture and (ii) to each of the Lenders, (A) such Lender's
Pro Rata Share of the Rights Offering Proceeds and Unsubscribed Shares,
which Unsubscribed Shares such Lender may elect, not less than 10 Business
Days prior to the Closing, to receive as American Depositary Shares and
(B) the Senior Trustee's confirmation that such Lender's Ratable Share of
the Lender Share of the New Senior Negotiable Obligations is evidenced by
the global certificate delivered to the Senior Trustee; and
(b) (i) to the trustee under the New Subordinated Negotiable
Obligation Indenture on behalf of PepsiCo, a global certificate evidencing
the New Subordinated Negotiable Obligation executed, authenticated and
delivered as provided in the New Subordinated Negotiable Obligation
Indenture and (ii) to PepsiCo its Pro Rata Share of the Rights Offering
Proceeds and Unsubscribed Shares, which Unsubscribed Shares PepsiCo may
elect, not less than 10 Business Days prior to the Closing, to receive as
American Depositary Shares.
Section 2.06. Delivery of Class Action Litigation Settlement Shares.
Contemporaneously with or after the Closing, in lieu of delivery of the Class
Action Litigation Settlement Shares to the Financial Creditors and PepsiCo, the
Class Action Litigation Shares will be delivered in accordance with the terms of
the Class Action Litigation Settlement Agreement.
<PAGE>
12
ARTICLE III
INTEREST FORGIVENESS
Section 3.01. Forgiveness of Interest. Immediately upon the
occurrence of the Closing, the Lenders and PepsiCo agree to forgive any and all
accrued and unpaid interest with respect to the Existing Facilities and the
Migrating Debt.
Section 3.02Cancellation of Undistributed Unsubscribed Shares. As
soon as practical after the closing, the Undistributed Unsubscribed Shares shall
be canceled by BAESA.
ARTICLE IV
THE RIGHTS OFFERING
Section 4.01. Rights Offering. The Rights Offering shall not be
consummated and the transfer of New Ordinary Shares to any person or entity that
exercises Rights shall not occur unless and until the occurrence of the Closing
Date. If the Closing Date does not occur and this Agreement is terminated, the
Rights Offering shall be null and void and the Rights Offering Documents shall
so provide.
ARTICLE V
[INTENTIONALLY OMITTED]
ARTICLE VI
PAYMENT OF PROFESSIONAL FEES
Section 6.01. Payment of Fees. Subject to the provisions of Section
6.02, at Closing, BAESA shall pay each Professional the Professional Fees due
such Professional on and as of the Closing Date. At Closing, BAESA shall also
pay all out-of-pocket expenses incurred as of the Closing Date by members of the
Steering Committee in connection with the matters contemplated by this Agreement
or in connection with the defaults under the Existing Facilities.
Section 6.02. Delivery of Final Invoice. Any Professional entitled
to be paid Professional Fees at Closing, as a condition to receiving payment,
shall deliver to BAESA
<PAGE>
13
reasonably detailed invoices at least four Business Days prior to the Closing
(with reasonable estimates of fees and expenses through the Closing).
ARTICLE VII
COVENANTS
Section 7.01. Affirmative Covenants of BAESA. BAESA hereby agrees
and covenants that it shall from the date of this Agreement until the Closing,
unless it shall have received the written consent of the Requisite Majority:
(a) Compliance with Law, Etc. Comply in all material respects with
all applicable laws, rules, regulations and orders, such compliance to
include, without limitation, paying all taxes, assessments and
governmental charges imposed upon it or upon any of its property before
the same become delinquent, except to the extent contested in good faith
by appropriate proceedings and for which reserves in conformity with GAAP
have been established;
(b) Maintenance of Existence. Preserve and maintain its corporate
existence, rights, franchises and privileges in the jurisdictions of its
incorporation and such other jurisdictions as are necessary for conducting
its businesses as presently conducted and as proposed to be conducted;
(c) Maintenance of Insurance. Keep in force insurance with
responsible and reputable insurance companies or associations with respect
to its businesses in such a manner and to such an extent as would a
prudent operator in BAESA's industries for facilities of substantially
comparable type and scale in the jurisdictions in which BAESA is engaging
in business, including, at a minimum, but not limited to, policies
covering property losses wherein settlement is on a replacement value
basis, and policies covering general liability;
(d) Truth and Accuracy of Certificates. Assure that all statements
contained in any certificate delivered pursuant to this Agreement shall be
true, complete and correct in all material respects; and assure that all
written information furnished after the date hereof by BAESA to the other
parties hereto in connection with this Agreement and the transactions
contemplated hereby will be true, complete and accurate in every material
respect and will not omit to state any information that would be required
to make such written information true, complete and accurate on the date
as of which such information is stated or certified;
<PAGE>
14
(e) Reporting Requirements. Deliver to the Lenders those financial
reports that BAESA has been delivering to the Steering Committee on a
regular basis as of the date of this Agreement;
(f) Conduct of Business Prior to the Closing. Except as specifically
contemplated by this Agreement, operate its business in the ordinary
course and use its best efforts to comply with the business plan prepared
by BAESA and delivered to the Steering Committee and PepsiCo;
(g) Corporate Actions To Issue New Negotiable Obligations. Take all
required corporate action necessary for the issuance of the New Negotiable
Obligations;
(h) Corporate Actions To Effectuate the Rights Offering. Take all
required corporate action necessary to enable it to effectuate the Rights
Offering and to issue, upon consummation of the Rights Offering, the New
Ordinary Shares to the Old Debtholders, as contemplated by this Agreement;
(i) Listing. Use its best efforts to list the New Ordinary Shares on
the Bolsa;
(j) Closing Conditions. Use its best efforts to ensure the
satisfaction of conditions in Article IX of this Agreement; and
(k) Securities Act Compliance; Qualification of Indenture. (i) File
one or more registration statements under the Securities Act of 1933, as
amended (the "Securities Act"), covering the resales of all securities
received by the Old Debtholders who request their new securities be
included therein, (ii) use its best efforts to have each such registration
statement declared effective on the Closing Date or such later date as the
Steering Committee may approve, (iii) use its best efforts to keep each
such registration statement continuously effective and current, subject to
such terms and conditions as the Steering Committee shall approve, to
enable sales to be made pursuant thereto until all securities covered by
such registration statement have been sold, or, in the case of
non-affiliates, until the securities covered by such registration
statement are no longer restricted securities (as defined in Rule 144 of
the Securities Act), and (iv) qualify the New Senior Negotiable Obligation
Indenture and the New Subordinated Negotiable Obligation Indenture under
the Trust Indenture Act of 1939, as amended. Notwithstanding anything to
the contrary contained herein, the obligations contained in paragraphs
(i), (ii) and (iii) of this section 7.01(k) shall survive the Closing.
<PAGE>
15
Section 7.02. Negative Covenants of BAESA. BAESA hereby agrees and
covenants that it shall not from the date of this Agreement until the Closing,
unless it shall have received the written consent of the Requisite Majority:
(a) Sale of Assets. Sell, lease, transfer or otherwise dispose of,
any assets, or grant any option or other right to purchase, lease or
otherwise dispose of, any assets, other than: (i) sales of inventory,
receivables, post-dated checks and obsolete bottles and shells in the
ordinary course of businesses for cash and without recourse and (ii) sales
of other assets, the net proceeds of which do not exceed US$500,000 (or
its equivalent in another currency) in the aggregate;
(b) Payment of Existing Debt. Pay any obligation in respect of
Existing Debt, the Eurobonds or any Other Funded Debt (other than Other
Funded Debt set forth on Exhibit D hereof) or prepay any other material
obligation;
(c) Additional Indebtedness, No Guarantees. Create, incur or assume
any indebtedness for borrowed money, or guarantee or otherwise assure any
person or entity against loss with respect to any indebtedness for
borrowed money;
(d) Liens, Etc. Create any Lien, other than:
(1) Liens imposed by operation of law securing an obligation
that either is not delinquent or the validity of which is being
contested in good faith and for which adequate reserves in
conformity with GAAP have been established;
(2) deposits or pledges to secure the payment of worker's
compensation, unemployment insurance or other social security
benefits or obligations to the extent required by law, or to secure
the performance of bids, tenders, trade contracts, leases, public or
statutory obligations, surety or appeal bonds or other obligations
of like nature to the extent required by law, in each case incurred
in the ordinary course of business;
(3) easements, rights of way, servitudes or zoning or building
restrictions and other minor encumbrances on real property and
irregularities in the title to such property that do not in the
aggregate materially impair the use or value of such property or
risk the loss or forfeiture of title thereto;
(4) Liens in respect of any purchase money obligation for
tangible property acquired after April 6, 1998 and to be used in the
ordinary course of business by BAESA not exceeding in the aggregate
US$100,000 (or its
<PAGE>
16
equivalent in another currency), provided, however, that any such
Liens shall not extend to property or assets of BAESA not financed
by such purchase money obligation;
(5) Liens resulting from judgments not exceeding in the
aggregate US$1,000,000 (or its equivalent in another currency),
provided, however, that the execution or other enforcement of such
Liens is effectively stayed and that the claims secured thereby are
being actively contested in good faith and by appropriate
proceedings and for which adequate reserves in conformity with GAAP
in the applicable jurisdiction have been established by BAESA;
(6) Liens incurred in connection with obtaining the working
capital facility contemplated by Section 9.01(l) hereof; and
(7) Liens on BAESA's interest in ECUSA to secure trade
accounts payable due from BAESA to Cervecerias Chilenas Unidas S.A.
(e) Mergers, Etc. Merge, consolidate or otherwise combine with or
into, or convey, transfer, lease or otherwise dispose of (whether in one
transaction or in a series of transactions) all or any material portion of
its assets (whether now owned or hereafter acquired) to any entity, or
acquire all or any material portion of the assets of any entity that is
not a subsidiary of BAESA;
(f) Non-Related Activities. Engage, directly or indirectly, in any
activity, unless such activity is, directly or indirectly, related to the
operation of the business of BAESA as conducted on the date hereof;
(g) Distributions or Dividends. Directly or indirectly, declare or
pay any dividend or make any distribution on or with respect to Existing
Shares or Existing Class C Shares, or purchase, redeem or otherwise
acquire any Existing Shares or Existing Class C Shares;
(h) Loans, Advances and Investments. Except as otherwise expressly
permitted by this subsection, at any time, make or suffer to remain
outstanding any loan or advance to, or purchase, acquire or own any stock,
bonds, notes or securities of, or any partnership interest (whether
general or limited) in, or any other interest in, or make any capital
contribution to, any other person or entity other than:
(1) advances to employees to meet expenses incurred by such
employees or with respect to salary advances and other similar
advances, in each case to the extent made in the ordinary course of
business;
<PAGE>
17
(2) any capital stock, bonds, notes, securities, partnership
or joint venture interests that are owned by BAESA on the date
hereof and any similar items received as a distribution or dividend
in respect thereof or in exchange therefor; and
(3) investments of cash in the ordinary course of business in
the types of instruments and for similar maturities as existed prior
to the date hereof consistent with past business practices;
(i) Maintenance of Business. Except as contemplated by this
Agreement, make or suffer any changes in any of its business objectives,
purposes or operations that might in any way have a material adverse
effect on BAESA;
(j) Transactions with Affiliates. Enter into or be a party to any
transaction with any affiliate, except in the ordinary course of BAESA's
business and upon fair and reasonable terms that are no less favorable to
BAESA than would be obtained in a comparable arm's length transaction with
a person not an affiliate; and
(k) New Shares; Options. Issue any new shares of stock or stock
options, provided, however, that BAESA is permitted to issue such Ordinary
Class B Shares as are necessary to provide for the conversion of Existing
Ordinary Class A Shares into Ordinary Class B Shares, if a request to
convert is made by the holder of Existing Ordinary Class A Shares.
Section 7.03. Affirmative Covenant of PepsiCo. PepsiCo hereby agrees
and covenants that it shall, and shall require its subsidiaries to, vote the
Existing Shares held by PepsiCo or its subsidiaries on the date of this
Agreement in favor of this Agreement and the transactions contemplated hereby,
at any duly convened shareholders' meeting of BAESA at which a vote is taken on
this Agreement or any of the other transactions, documents, agreements or other
actions contemplated hereby.
Section 7.04. Negative Covenants of PepsiCo. PepsiCo hereby agrees
and covenants that it shall not, and shall not permit any of its subsidiaries,
from the date of this Agreement until the Closing, unless it shall have received
the written consent of the holders of more than 60% of the Lender Debt Subject
to Restructure (Adjusted):
(a) Exclusive Bottling Appointments. Voluntarily terminate or
transfer (i) the Master Franchise Commitment Letter dated November 1,
1993, as amended from time to time ("Master Franchise Letter"), (ii) any
Exclusive Bottling Appointment issued by PepsiCo or any of its
subsidiaries to BAESA or any of its affiliates or any of their respective
predecessor companies, in connection with the Master Franchise Letter
<PAGE>
18
(collectively, the "Exclusive Bottling Appointments") or (iii) any
agreement, understanding or arrangement between PepsiCo and BAESA or any
of their respective affiliates related to the Master Franchise Letter or
the Exclusive Bottling Appointments (together with the Master Franchise
Letter, and the Exclusive Bottling Appointments, the "EBA Documents");
(b) Amendments to EBA Documents. Amend any of the EBA Documents in
any manner that would be materially adverse to BAESA or any of its
affiliates; and
(c) Maintenance of Shareholdings in BAESA. Sell, transfer or dispose
of, or cause the sale, transfer or disposition of, shares of BAESA or
equity interests in any subsidiary or affiliate of PepsiCo that owns any
shares of BAESA other than sales or transfers to a wholly owned subsidiary
of PepsiCo.
ARTICLE VIII
REPRESENTATIONS AND WARRANTIES
Section 8.01. Representations and Warranties of BAESA. BAESA
represents and warrants to each Lender that as of the date hereof:
(a) BAESA is a corporation duly organized, validly existing and in
good standing under the laws of the Republic of Argentina and it has the
power and authority to own its property, to conduct its business as
currently conducted and as proposed to be conducted and to consummate the
transactions contemplated by this Agreement.
(b) The execution, delivery and performance by BAESA of this
Agreement are within its corporate powers, have been, subject to any
requisite approval of the holders of Existing Shares, duly authorized by
all necessary action and do not contravene the charter or by-laws of BAESA
or any law or contractual restriction binding or affecting BAESA.
(c) Except as otherwise provided in this Agreement, no
authorization, approval or other action by, and no notice to or filing
with, any governmental authority or regulatory body is required for the
due execution, delivery and performance of this Agreement by BAESA.
(d) BAESA has obtained all authorizations, approvals (including
exchange control approvals) and consents of, and has made all filings and
registrations with, each
<PAGE>
19
and every governmental authority and any third party necessary for the
operation and maintenance of its business as currently conducted and as
proposed to be conducted.
(e) This Agreement has been duly executed and delivered by BAESA and
constitutes the legal, valid and binding obligation of BAESA, enforceable
against BAESA in accordance with its terms.
(f) The authorized capital stock of BAESA consists, on the date
hereof, of 16,372,973 Existing Ordinary Class A Shares and 56,127,114
Existing Ordinary Class B Shares, each of which has a par value of $0.01
per share, and all of which are duly and validly issued and outstanding,
fully paid and nonassessable.
(g) There are no options to purchase equity interests in BAESA
existing as of the date hereof.
(h) The information, reports, financial statements and schedules
furnished in writing by or on behalf of BAESA in connection with the
negotiation, preparation or delivery of this Agreement or included herein
or delivered pursuant hereto, when taken individually or as a whole, do
not contain any untrue statement of any material fact or omit to state any
material fact necessary to make such information, reports, financial
statements and schedules, in light of the circumstances under which they
were made, not misleading.
(i) BAESA has not received any claim or notice of potential claim
regarding obligations of any of its former subsidiaries, except as set
forth in Schedule III hereof.
(j) As of the Closing Date, BAESA will have no obligations to
PepsiCo, other than normal commercial obligations relating to the EBA
Documents and obligations with respect to the PepsiCo Facility.
(k) Any New Ordinary Shares to be delivered pursuant to this
Agreement shall, when issued and delivered, be duly and validly issued,
fully paid and nonassessable.
(l) The New Senior Negotiable Obligation Indenture and the New
Subordinated Negotiable Obligation Indenture and the transactions
contemplated thereunder, will as of the Closing Date, be duly authorized
by all necessary corporate action, and each such indenture, when executed
and delivered by BAESA and each such indenture trustee, will constitute
the legal, valid and binding obligation of BAESA, enforceable in
accordance with its terms.
<PAGE>
20
(m) The New Senior Negotiable Obligations, will as of the Closing
Date, be duly authorized by BAESA and, when duly executed, authenticated,
issued and delivered in the manner provided for in the New Senior
Negotiable Obligation Indenture, and when approved by the CNV will be
obligaciones negociables in accordance with Argentine Law 23,576, as
amended by Law 23,962, eligible to enjoy the tax benefits provided
therein, and will constitute legal, valid and binding obligations of
BAESA, enforceable against BAESA in accordance with their terms, subject
to the law of bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium and other similar laws affecting enforcement of creditors'
rights generally and to general principles of equity (regardless of
whether enforcement is considered in a proceeding in equity or at law).
(n) The New Subordinated Negotiable Obligation, will as of the
Closing Date, be duly authorized by BAESA and, when duly executed,
authenticated, issued and delivered in the manner provided for in the New
Subordinated Negotiable Obligation Indenture, and when approved by the CNV
will be obligaciones negociables in accordance with Argentine Law 23,576,
as amended by Law 23,962, eligible to enjoy the tax benefits provided
therein, and will constitute a legal, valid and binding obligation of
BAESA, enforceable against BAESA in accordance with its terms, subject to
the law of bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium and other similar laws affecting enforcement of creditors'
rights generally and to general principles of equity (regardless of
whether enforcement is considered in a proceeding in equity or at law).
(o) The Rights Offering Documents and the resale registration
statement (including any prospectus prepared in connection therewith) will
not contain any untrue statement of a material fact or omit to state any
material fact necessary to make the statements made, in light of the
circumstances under which they were made, not misleading.
(p) As of the date hereof and as of the Closing Date, BAESA has no
indebtedness for borrowed money other than Existing Debt, the Eurobonds
and Other Funded Debt.
(q) BAESA has complied with the obligations on its part to be
performed set forth in Section 7.01 and Section 7.02 of the Amended
Restructuring and Exchange Agreement.
(r) The recapitalization contemplated by this Agreement was approved
at a shareholders meeting duly convened and conducted under Argentine law.
<PAGE>
21
ARTICLE IX
CONDITIONS TO CLOSING
Section 9.01. Conditions to Closing. The occurrence of the Closing
Date shall be subject to each of the following conditions:
(a) No Order. No court of competent jurisdiction or governmental
agency or authority shall have issued, or entered any injunction or other
order (whether temporary, preliminary or permanent) that is in effect and
has the effect of restraining or prohibiting consummation of the
transactions contemplated by this Agreement.
(b) CNV Approval of New Senior Negotiable Obligations and New
Subordinated Negotiable Obligation. BAESA shall have received all
requisite approvals for the issuance of the New Senior Negotiable
Obligations and the New Subordinated Negotiable Obligation from the CNV.
(c) Definitive Documentation. The New Senior Negotiable Obligation
Indenture and the New Subordinated Negotiable Obligation Indenture shall
have been executed and delivered by BAESA and the trustees parties thereto
and the New Senior Negotiable Obligations and the New Subordinated
Negotiable Obligation shall have been duly authenticated and issued
thereunder.
(d) [Intentionally Omitted]
(e) Execution by all Old Debtholders. Each institution listed on
Schedule I hereof shall have executed and delivered to BAESA a counterpart
of this Agreement.
(f) Rights Offering Approvals. The Rights Offering Documents shall
be satisfactory to BAESA and the Steering Committee and BAESA shall have
received all requisite approvals from the SEC and CNV for the commencement
of the Rights Offering and for the issuance of the New Ordinary Shares and
the Rights.
(g) Expiration of Rights Offering Period. The Rights Offering
Subscription Period shall have expired.
(h) Existence of Exclusive Bottling Appointment. The EBA Documents
shall be in full force and effect, except as such EBA Documents shall have
been amended to reflect any modifications agreed upon by PepsiCo, BAESA
and the Steering Committee.
<PAGE>
22
(i) Resale Registration. Unless waived by the Steering Committee,
the resale registration statement shall have been filed confidentially
with the SEC, provided, however, that the waiver of the condition in this
Section 9.01(i) shall not release BAESA of its obligations under Section
7.01(k) of this Agreement.
(j) Board Composition. The Board of Directors of BAESA initially
shall consist of one member selected by Franklin Mutual Advisers, Inc. and
the High Yield Group of Trust Company of the West and such other members
as are selected by PepsiCo and the Steering Committee.
(k) Opinions of Counsel. The Lenders shall have received opinions of
counsel satisfactory to the Steering Committee regarding (i) the
enforceability of, and BAESA's authority to enter into, this Agreement,
(ii) the enforceability of the New Senior Negotiable Obligations, the New
Subordinated Negotiable Obligation and the due issuance of the New
Ordinary Shares, and (iii) such other opinions as reasonably requested by
the Steering Committee and that are customary in transactions of the
nature contemplated by the Eurobond Exchange Offer and the Rights
Offering.
(l) Working Capital Facility. A working capital facility, on terms
approved by the Requisite Majority and sufficient to meet BAESA's ongoing
working capital requirements, shall be in place and all funding conditions
contained therein shall have been satisfied.
(m) Simultaneous Closings. The exchange of Class A Exchange Receipts
and Class B Exchange Receipts for, as the case may be, New Senior
Negotiable Obligations, Rights Offering Proceeds, Unsubscribed Shares or
other consideration, and the consummation of the Rights Offering shall
occur simultaneously with the occurrence of the Closing Date.
(n) Noncontravention. The issuance of the New Senior Negotiable
Obligations, the New Subordinated Negotiable Obligation and the New
Ordinary Shares, and compliance by BAESA with the provisions of this
Agreement and the consummation of the transactions contemplated herein,
shall not conflict with any law, order or charter instrument or agreement
to which BAESA is a party or by which any material amount of its property
is bound.
(o) Compliance; Certificate. The representations and warranties of
BAESA herein shall be true and correct in all material respects when made
and on the Closing Date. BAESA shall have performed in all material
respects all obligations required to be performed by BAESA from the date
hereof to the Closing and the Steering Committee shall have received a
certificate from an executive officer of BAESA to
<PAGE>
23
such effect and to the effect that the conditions set forth above, other
than clause (f), have been satisfied.
ARTICLE X
TERMINATION BY THE REQUISITE MAJORITY OR BAESA
Section 10.01. Termination. This Agreement may be terminated:
(i) by the Requisite Majority or BAESA, upon written notice to each
of the other parties to this Agreement, if the Closing Date shall not have
occurred by May 15, 1999;
(ii) by the Requisite Majority if there shall have been a material
adverse change in the condition, financial or otherwise, of BAESA or its
subsidiaries from the financial projections delivered to the Lenders on
October 28, 1998;
(iii) by the Requisite Majority, upon written notice to each of the
other parties to this Agreement, if BAESA or PepsiCo is not in compliance
in any material way with any of the covenants contained in Article VII of
this Agreement; and
(iv) automatically, without further notice, upon (1) the entry of an
order for relief under the United States Bankruptcy Code, (2) the filing
of a Concurso Preventivo by BAESA, or (3) the filing of a Quiebra or any
other insolvency proceeding by BAESA under the Argentine Bankruptcy Act
(Law 24,522).
ARTICLE XI
RELEASES
Section 11.01. Releases. Upon the occurrence of the Closing, each
party hereto, for itself, its successors, assigns, affiliates, directors, (other
than those directors of BAESA that are not directors of BAESA on the Business
Day prior to the Closing Date) sindicos, officers, employees, agents, attorneys,
consultants and advisors (collectively, the "Releasors") will acquit, waive,
release and discharge each Released Party and each of their respective
successors, assigns, affiliates, directors (other than those directors of BAESA
that are not directors of BAESA on the Business Day prior to the Closing Date),
sindicos, officers, employees, agents, attorneys, consultants and advisors of
(collectively, the "Releasees"), of and from any and all claims (including,
without limitation, any liabilities, damages, demands and causes of action to
the extent arising therefrom) whatsoever, in law or in equity, whether
<PAGE>
24
known or unknown, which the Releasors ever had, now have, or hereinafter can,
shall or may have against any Releasee by reason or any matter arising out of
the Existing Debt and any and all other actions or omissions relating in any way
thereto; provided, however, that BAESA reserves the right to assert any claim so
released as an affirmative defense or offset to any indemnification claim by a
Released Party made or on account of matters arising prior to the Closing Date.
Notwithstanding the foregoing, in no event shall BAESA be released from any of
its obligations in this Agreement, including, without limitation, its
obligations with respect to the New Negotiable Obligations.
ARTICLE XII
PEPSICO OBLIGATIONS
Section 12.01. Payment of Certain Employee Obligations. PepsiCo
shall pay all costs, liabilities and expenses in connection with the termination
of the employment of, and any employment or other arrangements with, Messrs.
Suarez and Banos, including any and all severance amounts payable to such
individuals.
ARTICLE XIII
GENERAL PROVISIONS
Section 13.01. Amendments. No amendment, consent or waiver of
compliance with any provision of or condition set forth in this Agreement, shall
be effective unless the same shall be in writing and signed by BAESA and the
Requisite Majority (or the Steering Committee, where this Agreement so
provides), at the time such amendment, consent or waiver is given or made, and
then such amendment, consent or waiver shall be effective only in the specific
instance and for the specific purpose for which given, provided, however, that
no amendment to (i) the definition of Pro Rata Share, (ii) the definition of
Ratable Share, (iii) the interest rate, maturity or principal amount of the New
Negotiable Obligations, (iv) the subordination provisions of the New
Subordinated Negotiable Obligation or (v) this Section 13.01, shall be effective
unless such amendment shall be in writing and be signed by each Old Debtholder
intended to be bound thereby, provided further, however, that no amendment to
Exhibits A or B hereto shall be effective unless such amendment shall be in
writing and signed by Old Debtholders holding not less than 75% of the sum of
the principal amounts of Lender Debt Subject to Restructure (Adjusted) and
PepsiCo Debt Subject to Restructure (Adjusted).
Section 13.02. Notices. (a) All notices and other communications
provided for hereunder shall, unless otherwise stated herein, be in writing
(including telecopier) and mailed, telecopied or hand delivered,
<PAGE>
25
(i) as to each Lender, at its address set forth under its name on
the signature pages hereof or at such other address as shall be designated
in writing to BAESA and the other parties hereto; and
(ii) as to BAESA, at Roque Saenz Pena 306, 7th Floor, 1636 San
Isidro, Argentina, Facsimile Number 54-1-747-6216, Attention: Osvaldo
Banos, with a copy to (1) Shearman & Sterling, 599 Lexington Avenue, New
York, New York 10022, Telecopier Number 212-848-7179, Attention: Ronald
DeKoven, Esq. and (2) Allende & Brea, Maipu 1300, 1006 Buenos Aires,
Argentina, Telecopier Number 54-1-318- 9999, Attention: Dr. Enrique
Garrido; and
(iii) as to PepsiCo, at 700 Anderson Hill Road, Purchase, New York
10577- 1444, Telecopier Number 914-253-3123, Attention: Lawrence F.
Dickie, Esq.
(b) All notices hereunder shall, when mailed, hand delivered or
telecopied, be effective when delivered to the receiving party, if by mail or
hand delivery and when telecopied, if by telecopier.
(c) Failure to deliver copies in accordance with paragraph (a) of
this Section 13.02 shall not constitute a default under this Agreement.
Section 13.03. Execution in Counterparts. This Agreement may be
executed in any number of counterparts and by different parties hereto in
separate counterparts, each of which when so executed and delivered shall be
deemed to be an original and all of which taken together shall constitute one
and the same agreement. Delivery of an executed counterpart of a signature page
of this Agreement by telecopier shall be effective as delivery of a manually
executed counterpart hereof.
Section 13.04. Governing Law. This Agreement shall be governed by,
and construed in accordance with, the laws of the State of New York, United
States, without giving effect to the principles of conflicts of law of such
jurisdiction.
Section 13.05. Jurisdiction; Waiver of Process Agent: Immunity. (a)
Each party hereto irrevocably (i) submits to the jurisdiction of any New York
State or Federal court sitting in the City of New York, State of New York,
United States, in any action or proceeding arising out of or relating to this
Agreement and (ii) agrees that all claims in respect of such action or
proceeding shall be heard in such New York State court or such Federal court.
Each party hereto hereby irrevocably waives, to the fullest extent it may
effectively do so, the defense of an inconvenient forum to the maintenance of
such action or proceeding. Each party hereto agrees that a final judgment in any
such action or proceeding shall be
<PAGE>
26
conclusive and may be enforced in other jurisdictions by suit on the judgment or
by any other matter provided by law.
(b) BAESA hereby irrevocably appoints CT Corporation System (the
"Process Agent"), with an office on the date hereof at 1633 Broadway, New York,
New York, U.S.A., as its agent to receive service of copies of the summons and
complaint and any other process which may be served in an action or proceeding
brought with respect to this Agreement. Such service may be made by mailing or
delivering a copy of such process to BAESA in care of the Process Agent at the
Process Agent's address, and BAESA hereby irrevocably authorizes and directs the
Process Agent to accept such service on its behalf, or service may be made on
the Process Agent and BAESA, or as otherwise provided by law.
(c) To the extent that any party hereto may be entitled, in any
jurisdiction in which judicial proceedings may at any time be commenced with
respect to this Agreement, to claim for itself or its revenues, assets or
properties immunity (whether by reason of sovereignty or otherwise) from suit,
from the jurisdiction of any court (including, but not limited to, any court of
the United States of America or the State of New York), from attachment prior to
judgment, from set-off, from execution of a judgment or from any other legal
process, and to the extent that in any such jurisdiction there may be attributed
such immunity (whether or not claimed), each party hereto irrevocably agrees not
to claim and irrevocably waives such immunity.
Section 13.06. Public Announcements. No party hereto shall make, or
cause to be made, any press release or public announcements in respect of this
Agreement or the transactions contemplated herein without the prior consent of
BAESA and, except as to press releases to the extent required by applicable law,
the Steering Committee.
Section 13.07. Headings. The descriptive headings contained in this
Agreement are for convenience of reference only and shall not affect in any way
the meaning or interpretation of this Agreement.
Section 13.08. Successors and Assigns. This Agreement shall be
binding upon and inure to the benefit of the parties hereto and their respective
successors, transferees and assigns. Notwithstanding anything herein to the
contrary, each Old Debtholder that has become a party hereto may transfer any or
all of the Existing Debt held by it, provided that the transferee agrees to be
bound by the terms of this Agreement by signing a counterpart hereof and
delivering same to BAESA and the Steering Committee. If any transfer represents
all of the Existing Debt held by an Old Debtholder, such Old Debtholder shall be
released from its obligations hereunder.
<PAGE>
27
Section 13.09. Steering Committee Action. Action taken by the
Steering Committee may be taken if approved by members thereof holding at least
85% of the principal amount of Existing Debt held by all members of the Steering
Committee at such time.
Section 13.10. No Third-Party Beneficiaries. This Agreement is for
the sole benefit of the parties hereto and their permitted assigns and nothing
herein expressed or implied shall give or be construed to give to any person or
entity, other than the parties hereto and such assigns, any legal or equitable
rights hereunder.
Section 13.11. Satisfaction of Obligations. This Agreement shall not
constitute a novation; however, each of the Old Debtholders agrees that the
timely performance by BAESA of all of its obligations and liabilities hereunder
in accordance with the terms hereof and consummation of the Closing in
accordance with the terms hereof shall constitute a full, complete and final
satisfaction of the obligations and liabilities of BAESA under and pursuant to
each of the Existing Facilities to which it is a party and shall constitute
satisfaction in full of all Existing Debt under the Existing Facilities to which
the Old Debtholders are parties.
<PAGE>
28
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed by their respective officers thereunto duly authorized, as of the
date first above written.
BUENOS AIRES EMBOTELLADORA S.A.
By /s/ [illegible]
--------------------------------------
<PAGE>
29
PEPSICO, INC.
By /s/ Robert K. Biggart
-------------------------------------
Name: Robert K. Biggart
Title: Assistant Secretary
<PAGE>
30
CITIBANK, N.A.
By /s/ Dimity Giles
-------------------------------------
Name: Dimity Giles
Title: Vice President
<PAGE>
31
BANKBOSTON, N.A.
By /s/ David F. Eusden
-------------------------------------
Name: David F. Eusden
Title: Director
<PAGE>
32
BAYERISCHE VEREINSBANK AG
By /s/ N.B. Coates
-------------------------------------
Name: N.B. Coates
Title: Representative
<PAGE>
33
BANCO SUPERVIELLE SOCIETE GENERALE
By /s/ Juan Carlos Abizzati
-------------------------------------
Name: Juan Carlos Abizzati
Title: Manager, Risk Area
By /s/ German Puente [illegible]
-------------------------------------
Name: German Puente [illegible]
Title: Manager
<PAGE>
34
BEAR, STEARNS & CO. INC.
By /s/ Gregory A. Hanley
-------------------------------------
Name: Gregory A. Hanley
Title: Senior Managing Director
<PAGE>
35
CONTINENTAL CASUALTY CO.
By /s/ Richard W. Dubberke
-------------------------------------
Name: Richard W. Dubberke
Title: Vice President
<PAGE>
36
DLJ CAPITAL FUNDING, INC.
By /s/ Don Pollard
-------------------------------------
Name: Don Pollard
Title: Managing Director
<PAGE>
37
FRANKLIN MUTUAL ADVISERS, INC., as advisers
to Mutual Discovery Fund and Mutual
Discovery Securities Fund
By /s/ Peter A. Langerman
-------------------------------------
Name: Peter A. Langerman
Title: President
<PAGE>
38
INTERMARKET MANAGEMENT CORP.
On behalf of:
Fernwood Associates L.P.
Fernwood Restructuring Ltd.
Fernwood Total Return Holdings Ltd.
By /s/ Thomas P. Burger
-------------------------------------
Name: Thomas P. Burger
Title: Managing Director
<PAGE>
39
LAZARD FRERES & CO. LLC
By /s/ David L. Tashjian
-------------------------------------
Name: David L. Tashjian
Title: Managing Director
<PAGE>
40
THE MAINSTAY FUNDS,
on behalf of its High Yield Corporate
Bond Fund Series
BY: MACKAY SHIELDS FINANCIAL CORPORATION
By /s/ J. Carney Hawks
-------------------------------------
Name: J. Carney Hawks
Title: Analyst
<PAGE>
41
MAINSTAY VP SERIES FUND, INC.
on behalf of its High Yield Corporate
Bond Portfolio
BY: MACKAY SHIELDS FINANCIAL CORPORATION
By /s/ J. Carney Hawks
-------------------------------------
Name: J. Carney Hawks
Title: Analyst
<PAGE>
42
TCW SHARED OPPORTUNITY FUND II, L.P.
By TCW Investment Management Company,
as General Partner
By /s/ Darryl L. Schall
-------------------------------------
Name: Darryl L. Schall
Title: Senior Vice President
By
-------------------------------------
Name:
Title:
<PAGE>
43
TCW LEVERAGED INCOME TRUST, L.P.
By TCW Investment Management Company,
its Investment Manager
By /s/ Darryl L. Schall
-------------------------------------
Name: Darryl L. Schall
Title: Senior Vice President
By /s/ Nicholas W. Tell, Jr.
-------------------------------------
Name: Nicholas W. Tell, Jr.
Title: Managing Director
TCW Advisers (Bermuda), Ltd.,
As General Partner
By /s/ Robert D. Beyer
-------------------------------------
Name: Robert D. Beyer
Title: Managing Director
<PAGE>
44
WHIPPOORWILL ASSOCIATES, INCORPORATED,
as agent for the following entities:
President and Fellows of Harvard College
The Rockefeller Foundation
Vega Partners III, L.P.
Vega Partners IV, L.P.
Vega Offshore Fund Trust
By /s/ Shelby S. Werner
-------------------------------------
Name: Shelby S. Werner
Title: Managing Director
VEGA PARTNERS, L.P.
BY: WHIPPOORWILL ASSOCIATES, INCORPORATED,
as general partner
By /s/ Shelby S. Werner
-------------------------------------
Name: Shelby S. Werner
Title: Managing Director
VEGA PARTNERS II, L.P.
BY: WHIPPOORWILL ASSOCIATES, INCORPORATED,
as general partner
By /s/ Shelby S. Werner
-------------------------------------
Name: Shelby S. Werner
Title: Managing Director
<PAGE>
45
POLICE OFFICERS PENSION SYSTEM
OF THE CITY OF HOUSTON
BY: MACKAY SHIELDS FINANCIAL CORPORATION
By /s/ J. Carney Hawks
-------------------------------------
Name: J. Carney Hawks
Title: Analyst
<PAGE>
46
HIGHBRIDGE CAPITAL CORPORATION
BY: MACKAY SHIELDS FINANCIAL CORPORATION
By /s/ J. Carney Hawks
-------------------------------------
Name: J. Carney Hawks
Title: Analyst
<PAGE>
47
BROWN AND WILLIAMSON MASTER
RETIREMENT TRUST
BY: MACKAY SHIELDS FINANCIAL CORPORATION
By /s/ J. Carney Hawks
-------------------------------------
Name: J. Carney Hawks
Title: Analyst
<PAGE>
48
CONDOR PARTNERS
By /s/ Neil Subin
-------------------------------------
Name: Neil Subin
Title: President
<PAGE>
Exhibit A
Summary of Terms - New Senior Negotiable Obligations
----------------------------------------------------
Interest Rate: A fixed rate of interest per annum equal to
the lower of (i) 12% and (ii) 250 basis points
above the rate of interest for Argentine sovereign
debt of a similar maturity.
Original Issue Date: Closing Date
Ranking: The New Senior Negotiable Obligations will rank
pari passu with all other senior unsecured debt of
BAESA and shall be senior to the New Subordinated
Negotiable Obligation.
Initial Offering: The New Senior Negotiable Obligations will
initially be offered (i) to the Lenders pursuant
to the exemption from registration provided
byss.4(2) of the U.S. Securities Act of 1933, as
amended (the "1933 Act") and (ii) to holders of
Eurobonds pursuant to an exchange offer exempted
from registration pursuant toss.3(a)(9) of the
1933 Act.
Resale of Securities: BAESA will file with the SEC a resale registration
statement with respect to the New Senior
Negotiable Obligations and shall use its best
efforts to ensure that such resale registration
statement shall become effective on the Closing
Date.
Form of Securities: Global Note registered in the name of a nominee
of DTC.
Covenants: The Indenture under which the New Senior
Negotiable Obligations will be issued will
include, among others, the following negative
covenants:
1. Sale of assets - the net cash proceeds of asset
sales in an amount greater than US$10,000,000
in any year shall be used to tender for the New
Senior Negotiable Obligations and the New
Subordinated Negotiable Obligation ratably at
par together with accrued interest;
2. Negative Pledge - subject to liens for the
working capital lenders and other customary
permitted liens;
<PAGE>
A-2
3. Additional Indebtedness - no additional
indebtedness above US$50,000,000 in the
aggregate at any time (including the working
capital facility); and
4. No Dividends or Redemption of Capital Stock.
Change of Control: Upon the occurrence of a change of control, during
the first year after issuance of the New Senior
Negotiable Obligations, BAESA will be required to
call the New Senior Negotiable Obligations at par
together with accrued interest.
After the first year, and through repayment in
full, upon the occurrence of a change of control
the holders shall be entitled to put the New
Senior Negotiable Obligations to BAESA at 101% of
the principal amount thereof together with accrued
interest.
Call Protection: Except in the event of a change of control during
the first year after issuance of the New Senior
Negotiable Obligations, BAESA shall not have any
right to call the New Senior Negotiable
Obligations through the fourth anniversary of
issuance. Thereafter, BAESA shall be entitled to
call for any reason the New Senior Negotiable
Obligations at a redemption price equal to (i)
100% of the principal amount thereof plus (ii) 50%
of the Interest Rate thereon, together with
accrued interest. The redemption price shall be
reduced evenly on each anniversary of issuance so
that in the seventh year after issuance the New
Senior Negotiable Obligations may be redeemed at
par together with accrued interest.
Events of Default: Market
[Listing: NYSE (if accepted)]
<PAGE>
Exhibit B
Summary of Terms - New Subordinated Negotiable Obligation
---------------------------------------------------------
Interest Rate: A fixed rate of interest per annum equal to
the lower of (i) 12% and (ii) 250 basis points
above the rate of interest for Argentine sovereign
debt of a similar maturity.
Original Issue Date: Closing Date
Ranking: The New Subordinated Negotiable Obligation will
rank pari passu with all other senior unsecured
debt of BAESA, but shall be subordinated only to
the New Senior Negotiable Obligations.
Initial Offering: The New Subordinated Negotiable Obligation will
initially be offered to PepsiCo pursuant to the
exemption from registration provided by ss. 4(2)
of the U.S. Securities Act of 1933, as amended
(the "1933 Act").
Resale of Securities: BAESA will file with the SEC a resale registration
statement with respect to the New Subordinated
Negotiable Obligation and shall use its best
efforts to ensure that such resale registration
statement shall become effective on the Closing
Date.
Form of Securities: Global Note registered in the name of a nominee
of DTC.
Covenants: The Indenture under which the New Subordinated
Negotiable Obligation will include, among others,
the following negative covenants:
1. Sale of assets - the net cash proceeds of asset
sales in an amount greater than US$10,000,000
in any year shall be used to tender for the New
Senior Negotiable Obligations and the New
Subordinated Negotiable Obligation ratably at
par together with accrued interest;
2. Negative Pledge - subject to liens for the
working capital lenders and other customary
permitted liens;
<PAGE>
B-2
3. Additional Indebtedness - no additional
indebtedness above US$50,000,000 in the
aggregate at any time (including the working
capital facility); and
4. No Dividends or Redemption of Capital Stock.
Change of Control: Upon the occurrence of a change of control, during
the first year after issuance of the New Senior
Negotiable Obligations, BAESA will be required to
call the New Subordinated Negotiable Obligation at
par together with accrued interest.
After the first year, and through repayment in
full, upon the occurrence of a change in control
the holder shall be entitled to put the New
Subordinated Negotiable Obligation to BAESA at
101% of the principal amount thereof together with
accrued interest.
Call Protection: Except in the event of a change of control during
the first year after issuance of the New
Subordinated Negotiable Obligation, BAESA shall
not have any right to call the New Subordinated
Negotiable Obligation through the fourth
anniversary of issuance. Thereafter, BAESA shall
be entitled to call for any reason the New
Subordinated Negotiable Obligation at a redemption
price equal to (i) 100% of the principal amount
thereof plus (ii) 50% of the Interest Rate
thereon, together with accrued interest. The
redemption price shall be reduced evenly on each
anniversary of issuance so that in the seventh
year after issuance the New Subordinated
Negotiable Obligation may be redeemed at par
together with accrued interest.
Events of Default: Market
[Listing: NYSE (if accepted)]
<PAGE>
Exhibit C
[Intentionally Omitted]
<PAGE>
Exhibit D
Other Funded Debt
Lender Outstanding Debt Facility
- ------ ---------------- --------
Cervecerias Chilenas
Unidas S.A. $26.589MM ECUSA Shares
CATANEO $2.109MM MDP (Unsecured)
Heller Sud/Others $10MM Account Receivables Factoring
Agreement/Post Dated Checks
EXHIBIT 3
Execution Copy
SHAREHOLDERS' AGREEMENT
SHAREHOLDERS' AGREEMENT dated as of February 23, 1999 among
Buenos Aires Embotelladora S.A., a corporation organized under the laws of the
Republic of Argentina (the "Company"), PepsiCo, Inc., a North Carolina
corporation ("PepsiCo"), Citibank, N.A. ("Citibank"), BankBoston, N.A.
("BankBoston"), Bayerische Hypo-und Vereinsbank AG ("HypoVereinsbank"), and each
other Shareholder party hereto from time to time.
RECITALS
A. The Company and the Shareholders (as hereinafter defined)
are parties to a Third Amended and Restated Restructuring and Exchange Agreement
dated as of February 24, 1998 (the "Restructuring Agreement") pursuant to which,
among other things, the Shareholders will receive an aggregate of 1,846,344,828
Class B Ordinary Shares, par value P0.01 per share ("Class B Shares"), of the
Company.
B. PepsiCo currently owns 16,372,973 Class A Ordinary Shares,
par value P0.01 per share ("Class A Shares"), of the Company and 843,243 Class B
Shares.
C. Upon consummation of the transactions contemplated by the
Restructuring Agreement, the Shareholders will own together an aggregate of
60.66% of the voting power of the Company.
NOW, THEREFORE, in consideration of the premises and the
mutual covenants contained herein, the parties agree as follows:
Article I
DEFINITIONS
1.1 Defined Terms. The following terms are defined as follows:
(a) "Business Day" means any day (other than a day which is a
Saturday, Sunday or legal holiday in the State of New York) on which commercial
banks are open for business in New York and Buenos Aires.
(b) "Class A Shares" has the meaning set forth in the Recitals
hereto.
(c) "Class B Shares" has the meaning set forth in the Recitals
hereto.
(d) "Effective Date" means the day on which the Closing (as
such term is defined in the Restructuring Agreement) occurs under the
Restructuring Agreement.
NY2:\223727\02\4SMN02!.DOC\35886.0396
<PAGE>
(e) "Exchange Act" means the United States Securities Exchange
Act of 1934, as amended, and the rules and regulations of the SEC thereunder,
all as the same shall be in effect at the relevant time.
(f) "Joinder Agreement" has the meaning set forth in Section
3.2 hereof.
(g) "Lien" means any lien, pledge, mortgage, deed of trust,
security interest, claim, lease, charge, option, right of first refusal,
easement, servitude, transfer restriction under any shareholder or similar
agreement, encumbrance or any other restriction or limitation whatsoever.
(h) "Majority Holders" means, as of any date, a majority of
the Shareholders subject to this Agreement as of such date.
(i) "Ordinary Shares" means any shares of capital stock of the
Company, including the Class A Shares and the Class B Shares, now or hereafter
issued.
(j) "Permitted Transferee" has the meaning set forth in
Section 3.2 hereof.
(k) "Person" means any individual, corporation, limited
liability company, part nership, firm, joint venture, association, joint-stock
company, trust, unincorporated organization, governmental body or other entity.
(l) "Pro Rata Share" means the percentage of Transfer Shares
(as defined in Section 3.3) being offered by a Transferring Shareholder (as
defined in Section 3.3) that each Shareholder Offeree (as defined in Section
3.3) shall be entitled to purchase, if any. Such percentage shall be determined
by dividing the number of Ordinary Shares of such Shareholder Offeree by the
aggregate number of all Ordinary Shares of all Shareholders entitled to
participate in the purchase of such Transfer Shares.
(m) "SEC" means the United States Securities and Exchange
Commission or any other federal agency at the time administering the Securities
Act.
(n) "Securities Act" means the United States Securities Act of
1933, as amended, and the rules and regulations of the Commission thereunder,
all as the same shall be in effect at the relevant time.
(o) "Shareholders" shall mean, collectively, PepsiCo,
Citibank, BankBoston, HypoVereinsbank and any other Person who, after the date
hereof, acquires any Ordinary Shares and executes a Joinder Agreement, in
accordance with and subject to the terms and conditions of this Agreement. A
Person shall cease to be a Shareholder when such Person no longer holds any
Ordinary Shares as a result of a Transfer permitted under this Agreement.
2
<PAGE>
Article II
VOTING; BOARD MATTERS
2.1 Nomination and Election of Directors.
(a) Selection of Nominees. At the annual meeting of
shareholders of the Company or any special meeting called for the purpose of
electing directors of the Company (or by consent of shareholders in lieu of any
such meeting) or at such other time or times as the Shareholders may agree,
until the first anniversary of the Effective Date, each Shareholder will vote
its Ordinary Shares (i) so that the Board of Directors of the Company is
comprised of seven directors and (ii) for the following persons to be members
thereof:
1. Two (2) directors designated by Citibank, with one of
such directors being the Chairman of the Board of
Directors.
2. One (1) director designated by PepsiCo.
3. One (1) director designated by BankBoston.
4. One (1) director designated by HypoVereinsbank.
5. One (1) director designated by the Majority Holders.
6. One (1) director designated jointly by Franklin Mutual
Advisors, Inc. and TCW Shared Opportunity Fund II,
L.P., as long as such entities continue to own
collectively at least *% of the issued and outstanding
Ordinary Shares, and at such time as such entities
cease to own collectively such percentage of the issued
and outstanding Ordinary Shares, such director shall be
selected by the Majority Holders.
In the event any Shareholder transfers all of its Shares to another Person
(other than a Permitted Transferee), the right to designate a director by the
holder of such Ordinary Shares shall terminate, and such director shall be
selected by the Majority Holders.
(b) Election of Nominees. The Shareholders shall vote all of
their respective Ordinary Shares entitled to vote in favor of the election of
all of the nominees specified in Section 2.1(a) and no other Person.
- -------------------------
* To be specified.
3
<PAGE>
2.2 Removal of Directors. No Shareholder shall vote any
Ordinary Shares in favor of the removal of a director selected in accordance
with Section 2.1(a) hereof; provided, however, that upon the request of any
Shareholder to remove a director previously designated for nomination by such
Shareholder, the Shareholders shall vote all of their Ordinary Shares in favor
of (i) the removal of such director and (ii) the election of any replacement
director as may be designated by such Shareholder, subject to the provisions of
Section 2.1(a).
2.3 Vacancies. If any vacancy occurs on the Board because of
death, incapacity, resignation, retirement or removal of a director in
accordance with this Agreement, the Shareholder entitled to designate such
director in accordance with Section 2.1(a) shall designate a successor, and all
Shareholders shall vote their Shares in favor of the election of such successor
to the Board of Directors, subject to the provisions of Section 2.1(a).
Notwithstanding the foregoing, in the event of any vacancy on the Board of
Directors following the termination of the right of any such Shareholder to
nominate one or more directors to the Board of Directors, such vacancy shall be
filled by a candidate approved by a majority vote of the remaining directors.
2.4 Proxies. Any Person given a proxy or power of attorney by
the Company or any Shareholder shall be deemed to be subject to and shall
exercise such proxy or power of attorney in conformity with the provisions of
this Agreement.
Article III
TRANSFER OF ORDINARY SHARES
3.1 Restrictions on Transfer. As long as this Agreement is in
effect, no Shareholder shall effect any transfer, sale, assignment, mortgage,
pledge, hypothecation, gift, placement in trust (voting or otherwise) or
transfer by operation of law (other than by way of a merger or consolidation of
the Company or by way of a merger or consolidation or sale of all or
substantially all of the assets of such Shareholder) of, creation of a security
interest in or Lien on, or any other encumbering or disposal (directly or
indirectly and whether or not voluntary) of, any Ordinary Shares (any of which
being a "Transfer," and the recipient thereof being a "Transferee"), except as
provided in this Agreement. No Transfer in violation of this Agreement shall be
made or recorded on the books of the Company and any such Transfer shall be void
and of no force or effect. Subject to the terms of this Agreement, the
Shareholders shall be entitled to exercise all rights of ownership of their
Ordinary Shares.
3.2 Certain Permitted Transfers. None of the restrictions
contained in this Agreement with respect to Transfers of Ordinary Shares (other
than those set forth in this Section 3.2) shall apply to any Transfer (each a
"Permitted Transfer" and collectively the "Permitted Transfers") by any
Shareholder (a) to a wholly-owned direct or indirect subsidiary of such
Shareholder or (b) to another Shareholder (each a "Permitted Transferee");
provided, however, that in the case of any Transfer described in clause (a)
above, each Permitted Transferee shall have executed and delivered to each
Shareholder, as a condition precedent to any Transfer of Ordinary Shares, an
4
<PAGE>
executed consent to be bound by the provisions of, and to become a party to,
this Agreement, in the form of Exhibit A hereto (a "Joinder Agreement"), and
shall have submitted to the Company such evidence as the Company may reasonably
request to demonstrate that such Transferee is a Permitted Transferee. For
purposes of determining any matter hereunder which is subject to the vote of
Shareholders, all Shareholders under common control shall be deemed to
constitute one Shareholder.
3.3 Rights of First Refusal.
(a) Each Shareholder agrees that, subject to the restrictions
on Transfers contained in Section 3.4 hereof, if any Shareholder (for purposes
of this Section 3.3, a "Transferring Shareholder") wishes to Transfer any or all
of the Ordinary Shares then owned by such Transferring Shareholder, other than
as provided in Section 3.2, then such Transferring Shareholder shall first give
a written notice (the "Transfer Notice") to each other Shareholder (the
"Shareholder Offerees") specifying the number of Ordinary Shares such
Transferring Shareholder wishes to Transfer (the "Transfer Shares"), and
containing an irrevocable offer (open to acceptance for a period of twenty (20)
Business Days after the date such Transfer Notice is received) to sell the
Transfer Shares to the Shareholder Offerees at the price per share stated in the
Transfer Notice (the "Transfer Price"), which price shall be equal to the price
offered to such Transferring Shareholder by a bona fide third party offeror or
in a letter of intent and which notice shall identify the offeror. No Transfer
to which this Section 3.3 is applicable shall be permitted unless the third
party offer is for cash.
(b) A Shareholder Offeree who wishes to purchase any Transfer
Shares shall deliver to the Transferring Shareholder with a written notice (a
"Notice of Acceptance") specifying the number of Transfer Shares (up to such
Shareholder Offeree's Pro Rata Share) which such Shareholder Offeree desires to
accept within twenty (20) Business Days of the delivery of the Transfer Notice
by the Transferring Shareholder and may, at the Shareholder Offeree's option,
indicate the maximum number of Remaining Transfer Shares (as defined below) such
Shareholder Offeree irrevocably commits to purchase in excess of such
Shareholder Offeree's Pro Rata Share (the "Excess Amount"). If one or more
Shareholder Offerees declines to participate in such purchase or elects to
purchase less than such Shareholder Offeree's Pro Rata Share, then the number of
Transfer Shares such Shareholder Offerees have elected not to purchase (the
"Remaining Transfer Shares") shall automatically be deemed to be accepted by
Shareholder Offerees who specified an Excess Amount in their Notice of
Acceptance, allocated among such Shareholder Offerees (with rounding to avoid
fractional shares) in proportion to their respective Pro Rata Shares but in no
event shall an amount greater than a Shareholder Offeree's Excess Amount be
allocated to such Shareholder Offeree. Any excess Remaining Transfer Shares
shall be allocated among the remaining Shareholder Offerees whose specified
Excess Amount has not been satisfied (with rounding to avoid fractional shares)
in proportion to their respective Pro Rata Shares, and such procedure shall be
employed until the entire Excess Amount of each Shareholder Offeree has been
satisfied or all Remaining Transfer Shares have been allocated.
5
<PAGE>
(c) If, at the end of the twentieth (20th) Business Day after
the Transfer Notice is received, an effective Notice of Acceptance of the offer
contained in such Transfer Notice has not been delivered, or if a Notice of
Acceptance has been delivered covering less than all of the Transfer Shares,
then the Transferring Shareholder shall have twenty (20) Business Days in which
to Transfer all of the Transfer Shares at a price not lower than the Transfer
Price and on terms no more favorable to the transferee than those contained in
the Transfer Notice, provided that such Transfer shall be made to the third
party offeror (or its wholly-owned subsidiary) referred to in Section 3.3(a)
hereof; provided, however, that no Transfer may be made unless and until the
transferee delivers to the Company an executed Joinder Agreement. Promptly after
any Transfer pursuant to this Section 3.3, the Transferring Shareholder shall
notify the Company of the consummation thereof and shall furnish such evidence
of the completion and time of completion of such Transfer and of the terms
thereof as the Company may request. If, at the end of such twenty-Business Day
period, the Transferring Shareholder has not completed the Transfer of all of
the Transfer Shares, the Transferring Shareholder shall no longer be permitted
to Transfer such Securities pursuant to this Section 3.3(c) without again
complying with this Section 3.3 in its entirety. If the Transferring Shareholder
determines at any time within such twenty-Business Day period that the Transfer
of all or any part of such Transfer Shares at a price not lower than the
Transfer Price and on terms no more favorable to the transferee than those
contained in the Transfer Notice is impractical, such Transferring Shareholder
may terminate all attempts to Transfer such Transfer Shares and recommence the
procedures of this Section 3.3 in their entirety without waiting for the
expiration of such twenty-Business Day period by delivering written notice of
such decision to the Company.
3.4 Sale of Controlling Interest. Neither Citibank, BankBoston
nor HypoVereinsbank (each a "Bank" and collectively, the "Banks") shall become a
party to any proposed transaction (a "Sale Transaction") pursuant to which any
Person or group shall become the "beneficial owner" (as defined in the Exchange
Act) directly or indirectly of more than fifty percent (50%) of the combined
voting power of the then outstanding securities of the Company (excluding any
reincorporation, reorganization or recapitalization transaction in which the
shareholders of the Company continue to possess at least eighty percent (80%) of
the outstanding voting securities of the successor or surviving entity in the
same relative proportions), unless two Banks shall be a party to such
transaction. If, subject to the foregoing, a Sale Transaction is entered into,
the Banks party to the Sale Transaction (the "Selling Banks") shall give notice
(the "Sale Notice") to the other Bank. The Sale Notice shall specify the
purchaser, the consideration and the proposed closing date and will give such
other Bank the opportunity either to (i) agree to the sale of its Ordinary
Shares in accordance with the terms of the Sale Transaction, or (ii) purchase
for cash all, but not less than all, of the Ordinary Shares held by the Selling
Banks upon substantially the same terms (including as to price and closing date)
as contained in the Sale Notice.
6
<PAGE>
Article IV
TERMINATION
4.1 The provisions hereof (other than the provisions of
Article II, which shall terminate on the first anniversary of the Effective
Date) shall terminate automatically upon the fourth anniversary of the Effective
Date, unless the Shareholders shall mutually agree otherwise.
Article V
MISCELLANEOUS
5.1 Negotiable Form. Whenever any Ordinary Shares are to be
delivered or sold pursuant to this Agreement, the Person selling such Ordinary
Shares shall deliver such certificates or other instruments duly endorsed or
accompanied by appropriate stock powers or assignments separate from the
instrument.
5.2 Enforcement. No Ordinary Shares shall be transferred on
the books of the Company and no sale, assignment, transfer, pledge or other
disposition thereof shall be effective unless and until the terms and provisions
of this Agreement are complied with, and in cases of violation of this Agreement
by the attempted transfer of the Ordinary Shares without compliance with the
terms and provisions thereof, such sale, assignment, transfer, pledge or other
disposition shall be invalid and of no effect, and the Company and/or any of the
Shareholders who are not attempting to transfer the Ordinary Shares shall have
the right to compel the Shareholder who is attempting to transfer the Ordinary
Shares, and/or the purported transferee, to transfer and deliver the same in
accordance with the applicable provisions of this Agreement.
5.3 Specific Performance. The parties hereto recognize that it
is to the benefit of the Company and the Shareholders that this Agreement be
carried out; and for those and other reasons, the parties hereto would be
irreparably damaged if this Agreement is not specifically enforced in the event
of a breach hereof. If any controversy concerning the rights or obligations to
purchase or sell any Ordinary Shares arises, or if this Agreement is breached,
the parties hereto hereby agree that remedies at law might be inadequate and
that, therefore, such rights and obligations, and this Agreement, shall be
enforceable by specific performance. The remedy of specific performance shall
not be an exclusive remedy, but shall be cumulative of all other rights and
remedies of the parties hereto at law, in equity or under this Agreement.
5.4 Transferees and Future Shareholders. The Company and the
Shareholders shall cause any transferee of any Ordinary Shares that is not
already a party to this Agreement to execute a Joinder Agreement and upon
execution thereof, provided such transfer shall not have been made in
contravention of this Agreement, such Shareholder shall, except as provided in
Section 2.1(a) hereof, be entitled to the rights of an owner of the Ordinary
Shares held by such Shareholder hereunder.
7
<PAGE>
5.5 Notices. Any notices or other communications required or
permitted hereunder shall be sufficiently given if in writing and delivered in
person, transmitted by telecopier or sent by registered or certified mail
(return receipt requested) or recognized overnight delivery service, postage
pre-paid, addressed as follows, or to such other address as any such party may
notify to the other parties in writing:
(a) if to the Company:
Roque Saenz Pena 306
7th Floor
1636 San Isidro
Argentina
Attention: Ricardo Moreno
Facsimile No.: 011-54-1-747-6216
(b) if to Citibank:
Citibank, N.A.
599 Lexington Avenue
New York, New York 10022
Attention: Dimity Giles
Facsimile No.: (212) 793-0642
(c) if to BankBoston:
BankBoston, N.A.
100 Federal Street
Mail Stop 10-19-04
Boston, Massachusetts 02110
Attention: Matthew Berk, Esq.
Facsimile No.: (617) 434-7980
(d) if to Hypo-und Vereinsbank:
Bayerische Hypo-und Vereinsbank AG
San Martin 140 p.18
1004 Buenos Aires, Argentina
Attention: N. Bruce Coates
Facsimile No.: 011-54-1-331-3711
(e) if to PepsiCo:
700 Anderson Hill Road
Purchase, New York 10577
Attention: Lawrence F. Dickie, Esq.
Facsimile No.: (914) 253-3123
8
<PAGE>
(f) if to any other Shareholder:
such address specified in the
Joinder Agreement to be executed in the
form of Exhibit A hereto
A notice or communication that is addressed as provided in this Section 5.5 will
be deemed received (i) if delivered in person or by overnight courier, on the
Business Day it is delivered, (ii) if transmitted by telecopier, on the Business
Day of actual confirmed receipt by the addressee thereof, and (iii) if sent by
registered or certified mail, three Business Days after it is deposited in a
regular depository of the United States or Argentine mail.
5.6 Binding Effect; Assignment. This Agreement, including the
rights and conditions contained herein in connection with disposition of
Ordinary Shares, shall, subject to the provisions of Section 5.4 hereof, be
binding upon the parties hereto, together with their respective executors,
administrators, successors, personal representatives, heirs and assigns
permitted under this Agreement.
5.7 Governing Law; Jurisdiction and Venue. The Agreement shall
be governed by, and construed in accordance with, the law of the State of New
York. Any legal action or proceeding with respect this Agreement shall be
brought in the courts of the United States for the Southern District of New
York, and, by execution and delivery of this Agreement, each party hereby
irrevocably accepts for itself and in respect of its property, generally and
unconditionally, the exclusive jurisdiction of such courts. Each party
irrevocably waives any objection which it may now or hereafter have to the
laying of venue of the aforesaid actions or proceedings arising out of or in
connection with this Agreement in the courts referred to in this paragraph and
hereby further irrevocably waives and agrees not to plead or claim in any such
court that any such action or proceeding brought in any such court has been
brought in an inconvenient forum.
5.8 Severability. If any provision of this Agreement is held
to be illegal, invalid or unenforceable under present or future laws effective
during the term hereof, such provisions shall be fully severable and this
Agreement shall be construed and enforced as if such illegal, invalid or
unenforceable provision never comprised a part hereof; and the remaining
provisions hereof shall remain in full force and effect and shall not be
affected by the illegal, invalid or unenforceable provision or by its severance
herefrom. Furthermore, in lieu of such illegal, invalid or unenforceable
provision, there shall be added automatically as part of this Agreement, a
provision as similar in its terms to such illegal, invalid or unenforceable
provision as may be possible and be legal, valid and enforceable.
5.9 Entire Agreement. This Agreement embodies the entire
agreement and understanding between the parties hereto with respect to the
subject matter hereof and supersedes all prior agreements and understandings
relating to the subject matter hereof.
9
<PAGE>
5.10 Counterparts. This Agreement may be executed in
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one instrument.
5.11 Amendments. This Agreement may be amended, modified or
supplemented only with the consent of the Majority Shareholders and by a written
instrument executed by the Company in advance; provided, however, that the
rights of a Shareholder under any provision of this Agreement shall not be
modified in any material adverse respect to such party without its prior written
consent.
5.12 Captions. The captions of this Agreement are for
convenience of reference only and shall not limit or otherwise affect any of the
terms or provisions hereof.
5.13 Pronouns. Any masculine personal pronoun shall be
considered to mean the corresponding feminine or neuter personal pronoun, and
vice versa, as the context requires.
10
<PAGE>
SHAREHOLDERS' AGREEMENT SIGNATURE PAGE
IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement as of the date first above written.
BUENOS AIRES EMBOTELLADORA S.A.
By:
-------------------------------------
Name:
Title:
PEPSICO, INC.
By: /s/ Robert K. Biggart
-------------------------------------
Name: Robert K. Biggart
Title: Assistant Secretary
CITIBANK, N.A.
By: /s/ Dimity Giles
-------------------------------------
Name: Dimity Giles
Title: Vice President
BANKBOSTON, N.A.
By: /s/ David F. Eusden
-------------------------------------
Name: David F. Eusden
Title: Director
BAYERISCHE HYPO-UND VEREINSBANK AG
By: /s/ N.B. Coates
-------------------------------------
Name: N.B. Coates
Title: Representative
11
<PAGE>
EXHIBIT A
FORM OF JOINDER AGREEMENT
The undersigned, having purchased Ordinary Shares of Buenos
Aires Embotelladora S.A., hereby agrees to be bound by the terms and conditions
of, and to become a party to, the Shareholders' Agreement of the Company as a
"Shareholder" thereunder, a copy of which is attached hereto, as if the
undersigned had been a party to such agreement as of the date thereof.
Name: ________________________________________________
Signature: ___________________________________________
Address: _____________________________________________
Telecopy No.: ________________________________________
No. of Shares: _______________________________________
12
EXHIBIT 4
AGREEMENT
AGREEMENT, dated as of November 30, 1998, among CITIBANK, N.A.
("Citibank"), BANKBOSTON, N.A. ("BankBoston"), BAYERISCHE VEREINSBANK ("BV")
(Citibank, BankBoston and BV being sometimes hereinafter referred to
individually as a "Bank" and collectively as the "Banks"), TCW SHARED
OPPORTUNITY FUND II, L.P. ("TCW") and FRANKLIN MUTUAL ADVISERS, INC.
("FRANKLIN").
RECITALS:
1. Citibank, BankBoston, BV, TCW and Franklin are parties to that
certain Second Amended and Restated Restructuring and Exchange Agreement, dated
as of November 30, 1998 (the "Restructuring Agreement"), among Buenos Aires
Embotelladora S.A. ("BAESA"), PEPSICO, INC. ("Pepsico"), the parties to this
Agreement and the other institutions listed on Schedule I of the Restructuring
Agreement. All capitalized terms utilized herein unless otherwise defined herein
shall have the meanings ascribed to such terms in the Restructuring Agreement.
2. Pursuant to the Restructuring Agreement and subject to the terms and
conditions thereof, each of the parties hereto, the other Lenders and Pepsico
have agreed to exchange all of their obligations under or evidenced by the
Existing Facilities and the Migrating Debt for new notes of BAESA, Rights
Offering Proceeds and Unsubscribed Shares.
3. In connection with and as a condition to entering into the
Restructuring Agreement, the parties hereto wish to set forth certain rights and
obligations with respect to certain dispositions of the New Ordinary Shares to
be received by certain entities under the Restructuring Agreement.
NOW, THEREFORE, in consideration of the agreements, premises and mutual
covenants contained herein, the parties hereto, intending to be legally bound,
hereby agree as follows:
ARTICLE 1
DEFINITIONS
"Affiliate" means, with respect to any Person, any other person which,
directly or indirectly, controls, is controlled by or is under common control
with such person. For purposes of the preceding sentence, "control" shall
include the power to vote or direct the voting of more than fifty percent (50%)
of the voting shares, general partnership interests of a Person.
NY2:\182853\03\3X3903!.DOC\66228.0230
<PAGE>
"Business Day" means any day except a Saturday, Sunday or other day on
which commercial banks in the City of New York are authorized by law to close.
"Person" means any individual, corporation, partnership, limited
liability company, trust, unincorporated organization or government or political
department or agency thereof or any other entity.
"Stockholder" means any Lender which is a party to the Restructuring
Agreement as at the date of this Agreement which receives New Ordinary Shares
under the Restructuring Agreement and any Affiliate of such Lender which is a
transferee of New Ordinary Shares of such Lender.
"Third Party" means a prospective purchaser of New Ordinary Shares in
an arm's-length transaction from a Bank where such purchaser is not an Affiliate
of any Bank, provided that for purposes of Article II of this Agreement, BAESA
shall not be deemed to be an Affiliate of any Bank.
"Transfer" means directly or indirectly sell, transfer, assign or
otherwise dispose of, but does not include any transfer, assignment or other
disposition for the purpose of creating a mortgage, pledge, security interest,
hypothecation, lien or similar interest.
ARTICLE 2
TAG-ALONG PARTICIPATION
SECTION 2.1 Tag-Along Rights. (a) Any two or more Banks (collectively, the
"Selling Banks") may not Transfer to any Third Party (the "Tag-Along
Purchaser"), in one transaction or a series of related transactions with such
Third Party, a number of New Ordinary Shares constituting in the aggregate more
than 50% of the total issued and outstanding equity capitalization of BAESA,
unless the Tag-Along Purchaser offers to purchase from each other Stockholder,
for the same consideration, and on the same terms and conditions as the Selling
Banks intend to Transfer such New Ordinary Shares, a number of New Ordinary
Shares then owned by such Stockholder determined in accordance with Section
2.1(b) (the "Tag-Along Shares").
(b) Each such other Stockholder shall have the right, pursuant to Section
2.1(a), to sell pursuant to the offer by the Tag-Along Purchaser, a number of
New Ordinary Shares equal to the product of (A) the number of New Ordinary
Shares owned by such Stockholder, and (B) a fraction, the numerator of which
shall be the total number of New Ordinary Shares Transferred by the Selling
Banks in such transaction or series of related transactions and the denominator
of which shall be the total number of New Ordinary Shares owned by the Selling
Banks.
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<PAGE>
SECTION 2.2 Notice; Deliveries. Not less than 15 Business Days prior to any
proposed Transfer pursuant to Section 2.1, the Selling Banks shall deliver to
each other Stockholder written notice of the proposed Transfer (the "Tag-Along
Notice"), which notice shall set forth the consideration to be paid by the
Tag-along Purchaser and the other terms and conditions of such transaction. Any
Stockholder electing to Transfer some or all of the Tag-Along Shares pursuant to
Section 2.1, shall so notify the Selling Banks within 10 Business Days after the
date of the Tag-Along Notice and, at the Selling Banks request not less than two
Business Days prior to the proposed Transfer, such Stockholder shall deliver to
the Selling Banks the certificates representing such Tag-Along Shares, duly
endorsed, in proper form for Transfer, together with a limited power-of-attorney
authorizing the Selling Banks to transfer the Tag-Along Shares to the Tag-Along
Purchaser for the consideration and upon the terms and conditions specified in
the Tag-Along Notice, including authorization to execute all documents required
to be executed by a transferor of New Ordinary Shares in connection with such
transaction. Failure of any such other Stockholder to comply fully with the
provisions of this Section 2.2 shall constitute the election of such other
Stockholder to not participate in the Transfer which is the subject of the
Tag-Along Notice.
SECTION 2.3 Transfer. (a) If, within 120 Business Days after delivery by a
Stockholder to the Selling Banks of the certificates and related documents
described in Section 2.2, no Transfer of the New Ordinary Shares to be sold by
the Selling Banks and of the Tag-Along Shares in accordance with the provisions
of this Article II shall have been completed, then the Selling Banks shall
promptly return to such Stockholder, in proper form, all certificates
representing the Tag-Along Shares and the limited power-of-attorney previously
delivered by such Stockholder to the Selling Banks.
(b) Promptly after the consummation of the transfer of the New Ordinary Shares
sold by the Selling Banks and the Tag-Along Shares pursuant to Section 2.1, the
Selling Banks shall remit or cause to be remitted to each Stockholder the
consideration with respect to the Tag-Along Shares so transferred and shall
furnish such other evidence of the completion of such transfer and the terms and
conditions (if any) thereof as may reasonably be requested by such Stockholder.
(c) The provisions of this Article II shall remain in effect, notwithstanding
any return to any Stockholder of Tag-Along Shares as provided in Section 2.3(a).
3
<PAGE>
ARTICLE 3
MISCELLANEOUS
SECTION 3.1 Notices. Any and all notices or any other communication provided for
herein shall be made in writing by hand-delivery, first-class mail (registered
or certified, with return receipt requested), telecopier (with confirmation of
receipt), or overnight air courier guaranteeing next day delivery, to the
address of the party appearing under its name below (or to such other address as
may be designated in writing by such party):
If to Citibank:
Citibank, N.A.
599 Lexington Avenue
New York, New York 10022
Attn: Dimity Giles
with a copy to:
Weil, Gotshal & Manges LLP
767 Fifth Avenue
New York, New York 10153
Telecopier: (212) 310-8007
Attn: Stephen Karotkin, Esq.
If to BankBoston:
BankBoston, N.A.
100 Federal Street
Mail Stop 01-19-04
Boston, MA 02110
Attn. David Eusden and
Matthew Berk, Esq.
If to BV:
Bayerische Vereinsbank AG
San Martin 140 p.18
1004 Buenos Aires, Argentina
Attn: Norman Bruce Coates
4
<PAGE>
If to a Stockholder:
To the address set forth next to the
Stockholder's name on the
signature pages to the
Restructuring Agreement
SECTION 3.2 Amendment. Any provision of this Agreement may be amended or waived
if, but only if, such amendment or waiver is in writing and is signed by all of
the parties hereto.
SECTION 3.3 Termination. (a) All rights, and the performance of all obligations,
under this Agreement, are conditioned upon the occurrence of the Closing under
the Restructuring Agreement, and this Agreement shall be automatically
terminated in its entirety, without further action on the part of any person, if
the Restructuring Agreement by its terms or otherwise, is terminated.
(b) This Agreement may be terminated at any time by an instrument in writing
signed by the parties hereto. Notwithstanding the previous sentence, this
Agreement shall terminate on the second anniversary of the date of this
Agreement.
SECTION 3.4 Waiver. No failure or delay on the part of any or all of the parties
hereto in exercising any right, power, or privilege hereunder, and no course of
dealing between the parties, shall operate as a waiver thereof nor shall any
single or partial exercise of any right, power, or privilege hereunder preclude
the simultaneous or later exercise of any other right, power, or privilege. The
rights and remedies herein expressly provided are cumulative and not exclusive
of any rights and remedies which any or all of the parties would otherwise have.
SECTION 3.5 Counterparts. This Agreement may be executed in counterparts, each
of which shall be deemed to be an original, but all of which together shall
constitute one and the same instrument.
SECTION 3.6 Governing Law. This Agreement and the rights and obligations of the
parties hereunder shall be governed and construed in accordance with the law of
the State of New York without giving effect to the conflict of laws provisions
thereof, other than ss. 5-1401 of the General Obligations Law of the State of
New York.
SECTION 3.7 Benefit and Binding Effect. This Agreement shall be binding upon and
shall inure to the benefit of each of the parties hereto. Each Bank agrees, as a
5
<PAGE>
condition of any Transfer of all or substantially all of its New Ordinary Shares
to a Third Party that such Third Party agree to be bound by the terms of this
Agreement applicable to a Bank if such Transfer does not give rise to Tag-Along
Rights pursuant to Section 2.1 hereof. This Agreement shall not be binding upon
any other purchaser of any New Ordinary Shares from a Bank. This Agreement shall
not inure to the benefit of any entity other than the actual Stockholders.
Nothing in this Agreement shall create or be deemed to create any third party
beneficiary rights in any person or entity who is not a party to this Agreement
or a Stockholder. Specifically, and without limitation, no transferee or
assignee of any Stockholder shall have any rights hereunder.
IN WITNESS WHEREOF, the parties hereto have signed and delivered this
Agreement as of the date first above written.
CITIBANK, N.A.
By: /s/ Dimity Giles
----------------------------------
Name: Dimity Giles
Title: Vice President
BANKBOSTON, N.A.
By: /s/ David F. Eusdan
----------------------------------
Name: David F. Eusdan
Title: Director
BAYERISCHE VEREINSBANK AG
By: /s/ N.B. Coates
----------------------------------
Name: N.B. Coates
Title: Representative
TCW SHARED OPPORTUNITY FUND II, L.P.
By TCW Investment Management Company,
as General Partner
By: /s/ Darryl L. Schall
----------------------------------
Name: Darryl L. Schall
Title:
By: /s/ Nicholas W. Tell, Jr.
----------------------------------
Name: Nicholas W. Tell, Jr.
Title: Managing Director
6
<PAGE>
TCW LEVERAGED INCOME TRUST, L.P.
By TCW Investment Management Company,
its Investment Manager
By: /s/ Darryl L. Schall
----------------------------------
Name: Darryl L. Schall
Title:
By: /s/ Nicholas W. Tell, Jr.
----------------------------------
Name: Nicholas W. Tell, Jr.
Title: Managing Director
TCW Advisers (Bermuda), Ltd.,
As General Partner
By: /s/ Robert D. Beyer
----------------------------------
Name: Robert D. Beyer
Title: Managing Director
FRANKLIN MUTUAL ADVISERS, INC.
As advisers to Franklin Mutual
Discovery Fund
By:
----------------------------------
Name:
Title:
7
