Tender-Offer Statement — Third-Party Tender Offer — Schedule TO
Filing Table of Contents
Document/Exhibit Description Pages Size
1: SC TO-T Tender Offer Statement 6 41K
2: EX-99.A.1 U.S. Offer to Purchase 88 455K
11: EX-99.A.10 Press Release 2 14K
12: EX-99.A.17 Summary of the Mexican Offer to Purchase 1 8K
3: EX-99.A.2 Form of Gds Letter of Transmittal 13 68K
4: EX-99.A.3 Form of Broker Dealer Letter 3 21K
5: EX-99.A.4 Form of Client Letter 4 19K
6: EX-99.A.5 Notice of Guaranteed Delivery 3 19K
7: EX-99.A.6 W-9 Guidelines 4± 18K
8: EX-99.A.7 Summary Advertisement 6 36K
9: EX-99.A.8 Audited Consolidated Financial Statements 53 296K
10: EX-99.A.9 Gemex 6-K 12 36K
13: EX-99.B.1 Senior Credit Agreement 75 277K
14: EX-99.C.1 Salomon Smith Barney Inc. Fairness Opinion 3 16K
15: EX-99.C.2 Presentation to the Board of Directors HTML 34K
16: EX-99.D.1 Agreement to Tender 21 70K
17: EX-99.D.2 Agreement to Tender 35 111K
18: EX-99.D.3 Escrow Agreement 9 36K
EXHIBIT (a)(2)
GDS LETTER OF TRANSMITTAL
TO TENDER FOR CASH GLOBAL DEPOSITARY SHARES
OF
PEPSI-GEMEX, S.A. DE C.V.
PURSUANT TO U.S. OFFER TO PURCHASE, DATED OCTOBER 7, 2002
BY
PBG GRUPO EMBOTELLADOR HISPANO-MEXICANO, S.L.
AN INDIRECT SUBSIDIARY OF
BOTTLING GROUP, LLC
THE PRINCIPAL OPERATING SUBSIDIARY OF
THE PEPSI BOTTLING GROUP, INC.
THE U.S. OFFER AND WITHDRAWAL RIGHTS WILL EXPIRE AT 5:00 P.M., NEW YORK CITY
TIME (4:00 P.M., MEXICO CITY TIME), ON NOVEMBER 5, 2002 UNLESS THE U.S. OFFER IS
EXTENDED.
Please deliver this properly completed and duly executed GDS Letter of
Transmittal and
accompanying documents to the U.S. Receiving Agent for the U.S. Offer:
THE BANK OF NEW YORK
(U.S. RECEIVING AGENT)
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By Mail: By Hand or Overnight Courier
The Bank of New York The Bank of New York
Tender & Exchange Department Tender & Exchange Department
P.O. Box 11248 101 Barclay Street
Church Street Station Receive and Deliver Window Street Level
New York, New York 10286-1248 New York, New York 10286
YOU SHOULD ONLY USE THIS GDS LETTER OF TRANSMITTAL TO TENDER YOUR GDSs IN THE
U.S. OFFER. IF YOU HOLD SHARES AND/OR CPOs THAT YOU WISH TO TENDER IN THE U.S.
OFFER OR THE MEXICAN OFFER YOU SHOULD PROMPTLY CONTACT THE NOMINEE HOLDING THE
SHARES AND/OR CPOs ON YOUR BEHALF.
DELIVERY OF THIS GDS LETTER OF TRANSMITTAL TO AN ADDRESS OTHER THAN THAT LISTED
ABOVE, OR TRANSMISSION BY FACSIMILE OTHER THAN AS SET FORTH ABOVE, WILL NOT
CONSTITUTE A VALID DELIVERY OF YOUR GDSs.
NOTE: SIGNATURES MUST BE PROVIDED BELOW.
PLEASE READ THE ACCOMPANYING INSTRUCTIONS CAREFULLY.
BOX BELOW TO BE COMPLETED BY ALL TENDERING HOLDERS OF THE GDSS.
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DESCRIPTION OF GDSS TENDERED
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1 2 3
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CERTIFICATE NUMBER OF GDSS
NAME AND ADDRESS OF REGISTERED HOLDER NUMBER(S)* TENDERED**
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TOTAL:
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* Need not be completed by holders who tender by book-entry transfer.
** Unless otherwise indicated in column 3, a holder will be deemed to have tendered ALL of the GDSs
represented by the certificate(s) listed in column 2. (See Instruction 4).
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By signing this GDS Letter of Transmittal, you hereby acknowledge that you
have received the U.S. Offer to Purchase, dated October 7, 2002 (the "U.S. Offer
to Purchase"), by PBG Grupo Embotellador Hispano-Mexicano, S.L. ("Embotellador
HM"), a Spanish indirect subsidiary of Bottling Group, LLC ("BG LLC"), the
principal operating subsidiary of The Pepsi Bottling Group, Inc., and this GDS
Letter of Transmittal. The U.S. Offer to Purchase together with this GDS Letter
of Transmittal constitutes Embotellador HM's U.S. Offer (the "U.S. Offer") to
purchase for cash (1) all outstanding Global Depositary Shares ("GDSs") of
Pepsi-Gemex, S.A. de C.V. ("Gemex"), a variable stock corporation organized
under the laws of Mexico, and (2) all outstanding Series B Common Shares of
Gemex (the "Shares") and all outstanding Ordinary Participation Certificates of
Gemex (the "CPOs," and collectively with the Shares and GDSs, the "Securities")
held by persons who are not Mexican residents. Each CPO represents one Series B
Common Share, one Series D Preferred Share and one Series L Limited Voting
Share. Each GDS represents six CPOs. Simultaneously with the U.S. Offer,
Embotellador HM is offering in Mexico (the "Mexican Offer", and collectively
with the U.S. Offer, the "Offers") to purchase all outstanding Shares and CPOs
of Gemex, including those held by U.S. residents, on substantially the same
terms as the U.S. Offer.
In the U.S. Offer, we are offering to purchase all the outstanding GDSs at
a price of Ps.106.38 per GDS, all outstanding Shares held by persons who are not
Mexican residents at a price of Ps.5.91 per Share, and all outstanding CPOs held
by persons who are not Mexican residents at a price of Ps.17.73 per CPO, in
cash, in each case less any withholding taxes and without interest thereon. The
purchase price for the Securities accepted for payment pursuant to the U.S.
Offer will be paid in U.S. dollars equivalent to the applicable Mexican peso
price in the U.S. Offer, based on the U.S. dollar to Mexican peso exchange rate
calculated using the average of the exchange rates reported on each of the five
consecutive business days ending two business days prior to the expiration date
of the U.S. Offer by Reuters and Bloomberg on their FXBENCH page as the New York
closing rate for the exchange of Mexican pesos and U.S. dollars (the "Applicable
Exchange Rate"). We will announce the Applicable Exchange Rate by a press
release not later than 9:00 a.m., New York City time, on the next business day
after the Applicable Exchange Rate is determined. The Mexican Offer is open to
all holders of Shares and CPOs, including those held by U.S. residents. The
purchase price for the Shares and CPOs tendered in the Mexican Offer will be
paid, at such holder's election, in Mexican pesos or in U.S. dollars equivalent
to the Mexican peso price in the Mexican Offer based on the Applicable Exchange
Rate. However, individuals tendering Shares and CPOs into the Mexican Offer will
be entitled to elect to receive the purchase price in U.S. dollars only if they
have an account in or outside Mexico into which they can receive payment in U.S.
dollars and the information regarding such account has been provided to the
custodian for their Shares and CPOs.
If you hold GDSs and would like to tender the underlying Shares and/or CPOs
instead of the GDSs you may do so. A holder of GDSs may contact The Bank of New
York, as depositary, to convert its GDSs into CPOs and tender such CPOs in the
Mexican Offer. However, you will have to pay a fee of $5.00 for each 100 GDSs
converted. If you choose to convert your GDSs into CPOs and tender into the
Mexican Offer and elect to receive payment in Mexican pesos you will bear the
risk of any fluctuation in the exchange rate after the consummation of the
Offers if you later wish to convert your Mexican pesos into U.S. dollars. If you
are not a Mexican resident, you can tender Shares and CPOs in either the U.S.
Offer or the Mexican Offer. Mexican residents can only tender Shares and CPOs
held by them in the Mexican Offer. The conditions to the Mexican Offer are
substantially similar to those in the U.S. Offer. In the event that the Mexican
Offer is amended to increase or decrease the price offered for the Securities,
we will make a corresponding amendment to increase or decrease the price offered
for the Securities in the U.S. Offer.
2
THIS GDS LETTER OF TRANSMITTAL IS TO BE USED ONLY FOR TENDERING GLOBAL
DEPOSITARY RECEIPTS ("GDRs"), OR GDSs HELD IN BOOK-ENTRY FORM, IN THE U.S.
OFFER. DO NOT USE THIS GDS LETTER OF TRANSMITTAL TO TENDER SHARES OR CPOs. IF
YOU HOLD SHARES AND/OR CPOs THAT YOU WISH TO TENDER IN THE U.S. OFFER, PLEASE
READ THE INFORMATION PROVIDED IN THE U.S. OFFER TO PURCHASE UNDER THE CAPTION
"THE U.S. OFFER -- PROCEDURE FOR TENDERING IN THE U.S. OFFER -- HOLDERS OF
SHARES AND CPOs" AND CONTACT THE NOMINEE FOR YOUR SHARES AND/OR CPOs AND
INSTRUCT YOUR NOMINEE TO TENDER ON YOUR BEHALF.
If you tender your GDSs, and we accept the GDSs, this will constitute a
binding agreement between us, subject to the terms and conditions set forth in
the U.S. Offer to Purchase and this GDS Letter of Transmittal. In order to
validly tender your GDSs in the U.S. Offer, you must, on or prior to the
expiration of the U.S. Offer, do one of the following:
- Tender the GDSs by sending a properly completed and duly executed GDS
Letter of Transmittal (or facsimile thereof) and all other documents
required by the GDS Letter of Transmittal, together with the GDRs
evidencing the GDSs in proper form for transfer, to the U.S. Receiving
Agent at one of its addresses set forth on the back cover of the U.S.
Offer; or
- If the GDSs are held in book-entry form, tender the GDSs by following the
procedures for book-entry transfer described in the U.S. Offer to
Purchase under the caption "The U.S. Offer -- Procedure for tendering in
the U.S. Offer -- Holders of GDSs" and by sending a properly completed
and duly executed GDS Letter of Transmittal, with any required signature
guarantees, or an Agent's Message (as defined below) instead of a GDS
Letter of Transmittal, to the U.S. Receiving Agent.
The term "Agent's Message" means a message, transmitted by The Depository
Trust Company ("DTC") to, and received by, the U.S. Receiving Agent and forming
a part of a book-entry confirmation which states that DTC has received an
express acknowledgment from the participant tendering the GDSs which are the
subject of such book-entry confirmation that such participant has received and
agrees to be bound by the terms of the GDS Letter of Transmittal and that we may
enforce such agreement against such participant.
If you are the registered holder of the GDSs and you wish to tender your
GDSs, but (1) the GDRs evidencing the GDSs are not immediately available, (2)
time will not permit the GDRs evidencing the GDSs or other required documents to
reach the U.S. Receiving Agent before the expiration of the U.S. Offer, or (3)
the procedure for book-entry transfer cannot be completed before the expiration
of the U.S. Offer, a tender of GDSs may be effected by following the guaranteed
delivery procedures described in the U.S. Offer to Purchase under the caption
"The U.S. Offer -- Procedure for tendering in the U.S. Offer -- Holders of
GDSs."
Only registered holders of the GDSs are entitled to tender their GDSs in
the U.S. Offer. If you are a beneficial owner whose GDSs are registered in the
name of a broker, dealer, commercial bank, trust company or other nominee and
you wish to tender your GDSs in the U.S. Offer, you should promptly contact the
person in whose name the GDSs are registered and instruct that person to tender
on your behalf. If you wish to tender in the U.S. Offer on your own behalf,
prior to completing and executing this GDS Letter of Transmittal and delivering
the certificates for your GDSs, you must either make appropriate arrangements to
register ownership of the GDSs in your name or obtain a properly completed stock
power from the person in whose name the GDSs are registered.
In order to properly complete this GDS Letter of Transmittal, you must: (1)
complete the box entitled "Description of GDSs Tendered," (2) if appropriate,
check the boxes entitled "Special Payment/Issuance Instructions" and/or "Special
Delivery Instructions," (3) sign this GDS Letter of Transmittal by completing
the box entitled "Sign Here" and (4) complete and sign the box entitled
"Substitute Form W-9." By completing the box entitled "Description of GDSs
Tendered" and signing below, you will have tendered your GDSs for cash on the
terms and conditions described in the U.S. Offer to Purchase and this GDS Letter
of Transmittal. You should read the detailed instructions at the end of this
document before completing this GDS Letter of Transmittal.
All references to "U.S. dollars," "$" and "US$" are to the United States
dollar and all references to "Mexican pesos," "pesos," and "Ps." shall mean the
currency which is presently legal tender in Mexico.
3
BOXES BELOW TO BE CHECKED AS APPLICABLE
[ ] CHECK HERE IF GDRs REPRESENTING YOUR GDSs ARE BEING TENDERED WITH THIS GDS
LETTER OF TRANSMITTAL.
[ ] CHECK HERE IF THE GDRs REPRESENTING YOUR GDSs HAVE BEEN LOST, DESTROYED OR
STOLEN AND YOU REQUIRE ASSISTANCE IN OBTAINING NEW RECEIPTS.
Certificate Number(s)
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Number of GDSs Represented
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You must contact the U.S. Receiving Agent to obtain instructions for
replacing lost, destroyed or stolen GDRs representing GDSs. (See Instruction
12)
SPECIAL PAYMENT/ISSUANCE INSTRUCTIONS
(SEE INSTRUCTION 6)
TO BE COMPLETED ONLY IF CHECKS CONSTITUTING CASH PAYMENTS SHOULD BE ISSUED TO
SOMEONE OTHER THAN THE UNDERSIGNED OR GDSs NOT PURCHASED SHOULD BE ISSUED IN THE
NAME OF SOMEONE OTHER THAN THE UNDERSIGNED:
(PLEASE PRINT)
[ ] Check to:
[ ] GDSs to:
Name:
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Address:
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Telephone:
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Tax Identification or Social Security Number. (See Instruction 9).
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SPECIAL DELIVERY
INSTRUCTIONS
(SEE INSTRUCTION 6)
TO BE COMPLETED ONLY IF CHECKS CONSTITUTING CASH PAYMENTS OR CERTIFICATES
EVIDENCING GDSs NOT PURCHASED SHOULD BE MAILED TO SOMEONE OTHER THAN THE
UNDERSIGNED, OR TO THE UNDERSIGNED AT AN ADDRESS OTHER THAN THAT SHOWN ABOVE
UNDER "DESCRIPTION OF GDSs TENDERED":
(PLEASE PRINT)
[ ] Check to:
[ ] GDSs to:
Name:
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Address:
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Telephone:
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Tax Identification or Social Security Number. (See Instruction 9).
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4
[ ] CHECK HERE AND ENCLOSE A PHOTOCOPY OF THE NOTICE OF GUARANTEED DELIVERY IF
THE TENDERED GDSs ARE BEING DELIVERED UNDER A NOTICE OF GUARANTEED DELIVERY
PREVIOUSLY SENT TO THE U.S. RECEIVING AGENT AND COMPLETE THE FOLLOWING:
Name(s) of registered holder(s)
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Date of execution of Notice of Guaranteed Delivery
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Name of institution which guaranteed delivery
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BOXES BELOW TO BE CHECKED BY ELIGIBLE GUARANTOR INSTITUTIONS ONLY
[ ] CHECK HERE IF TENDERED GDSs ARE BEING DELIVERED BY BOOK-ENTRY TRANSFER INTO
THE U.S. RECEIVING AGENT'S ACCOUNT AT THE DEPOSITORY TRUST COMPANY AND
COMPLETE THE FOLLOWING:
Name of Tendering Institution
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Account (DTC Participant) Number
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Transaction Code Number
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[ ] CHECK HERE IF TENDERED GDSs NOT ACCEPTED FOR PAYMENT ARE TO BE RETURNED BY
CREDITING THE PARTICIPANT ACCOUNT NUMBER INDICATED ABOVE
5
Ladies and Gentlemen:
Upon the terms and subject to the conditions of the U.S. Offer, as
described in the U.S. Offer to Purchase and this GDS Letter of Transmittal, I
hereby tender to Embotellador HM the number of GDSs described above in the box
entitled "Description of GDSs Tendered" for Ps.106.38 in cash, less any
withholding taxes and without interest thereon, for each GDS tendered, payable
in U.S. dollars equivalent to the Mexican Peso price based on the Applicable
Exchange Rate, as described in the U.S. Offer to Purchase under the caption "The
U.S. Offer -- Terms of this U.S. Offer; Expiration Date."
Subject to and effective upon the acceptance for payment of all or any
portion of the GDSs tendered by this GDS Letter of Transmittal in accordance
with the terms and conditions of the U.S. Offer -- including, if the U.S. Offer
is extended or amended, the terms and conditions of any extension or
amendment -- I hereby sell, assign and transfer to, or upon the order of,
Embotellador HM all right, title and interest in and to the GDSs tendered by
this GDS Letter of Transmittal. I hereby irrevocably constitute and appoint the
U.S. Receiving Agent as my agent and attorney-in-fact with respect to the
tendered GDSs, with full knowledge that the U.S. Receiving Agent is also acting
as the agent of Embotellador HM in connection with the U.S. Offer, with full
power of substitution, such power of attorney being deemed to be an irrevocable
power coupled with an interest, subject only to the limited right of withdrawal
as set forth in the U.S. Offer to Purchase, to (1) deliver GDRs evidencing the
tendered GDSs to Embotellador HM together with all accompanying evidences of
transfer and authenticity to, or upon the order of, Embotellador HM, upon
receipt by the U.S. Receiving Agent, as my agent, of the cash to be paid for the
tendered GDSs, (2) request a transfer of the tendered GDSs on the books of
Gemex, and (3) receive for the account of Embotellador HM all benefits and
otherwise exercise all rights of ownership of the tendered GDSs, all in
accordance with the terms and conditions of the U.S. Offer.
I hereby represent and warrant that I have full power and authority to
tender, sell, assign and transfer the GDSs tendered by this GDS Letter of
Transmittal and that, when the tendered GDSs are accepted for payment,
Embotellador HM will acquire good, marketable and unencumbered title to the
tendered GDSs, free and clear of all liens, restrictions, charges and
encumbrances, and that the tendered GDSs are not subject to any adverse claims
or proxies. I will, upon request, execute and deliver any additional documents
deemed by Embotellador HM or the U.S. Receiving Agent to be necessary or
desirable to complete the sale, assignment and transfer of the GDSs tendered by
this GDS Letter of Transmittal and take any and all steps necessary to remove
any liens, restrictions, charges and encumbrances upon the tendered GDSs. I have
received a copy of, and I agree to all of the terms of, the U.S. Offer.
The name(s) and address(es) of the registered holder(s) are printed above
as they appear on the GDRs representing the GDSs. The certificate number(s) and
the number of GDSs that I wish to tender are indicated in the appropriate boxes
above or, in the event that I left such information blank, I wish to tender all
my GDSs.
Unless I have otherwise indicated by completing the box entitled "Special
Payment/Issuance Instructions" above, I hereby direct that cash be paid to the
undersigned or, in the case of a book-entry delivery of GDSs, that the cash be
credited to the account indicated above maintained with The Depository Trust
Company. Similarly, unless I have otherwise indicated by completing the box
entitled "Special Delivery Instructions," I hereby direct that the cash payment
be delivered to the address shown below my signature.
If I have (1) tendered any GDSs that are not accepted for payment in the
U.S. Offer for any reason or (2) submitted GDRs for more GDSs than I wish to
tender, unless I have otherwise indicated by completing the boxes entitled
"Special Payment/Issuance Instructions" or "Special Delivery Instructions," I
hereby direct that receipts for any GDSs that are not tendered or not accepted
for payment should be issued in the name of the undersigned, if applicable, and
delivered to the address shown below my signature, or, in the case of a
book-entry transfer of GDSs, that GDSs that are not tendered or accepted for
payment be credited to the account indicated above maintained with The
Depository Trust Company, in each case at Embotellador HM's expense, promptly
following the expiration or termination of the U.S. Offer.
I understand that if I decide to tender GDSs, and Embotellador HM accepts
the GDSs for payment, this will constitute a binding agreement between me and
Embotellador HM, subject to the terms and conditions set forth in the U.S. Offer
to Purchase and this GDS Letter of Transmittal.
6
I also recognize that, under certain circumstances described in the U.S.
Offer to Purchase under the caption "The U.S. Offer -- Certain conditions to the
U.S. Offer" Embotellador HM may not be required to accept for payment any GDSs
tendered by this GDS Letter of Transmittal.
All authority conferred in or agreed to be conferred in this GDS Letter of
Transmittal will survive my death or incapacity, and any obligation of mine
under this GDS Letter of Transmittal will be binding upon my heirs, executors,
administrators, personal representatives, trustees in bankruptcy, legal
representatives, successors and assigns. Except as stated in the U.S. Offer to
Purchase and Instruction 4 herein, this tender is irrevocable.
PLEASE COMPLETE AND SIGN THIS SIGNATURE PAGE AND SUBSTITUTE FORM W-9 BELOW
(SEE INSTRUCTIONS 1, 2, 5 AND 6)
SIGNATURE(S) MUST BE GUARANTEED IF REQUIRED BY INSTRUCTION 2
This GDS Letter of Transmittal must be signed by (1) the registered
holder(s) exactly as the name(s) of the registered holder(s) appear(s) on the
GDRs for the GDSs tendered or on the register of holders maintained by The Bank
of New York, as depositary, or (2) by any person(s) authorized to become the
registered holder(s) by endorsements and documents transmitted with this GDS
Letter of Transmittal -- including any opinions of counsel, certifications and
other information as may be necessary for the GDSs to comply with the
restrictions on transfer, if any, applicable to the GDSs. If the signature below
is by a trustee, executor, administrator, guardian, attorney-in-fact, officer of
a corporation or another acting in a similar fiduciary or representative
capacity, please set forth the signer's full title. (See Instruction 5).
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SIGNATURE(S) OF HOLDER(S) OF GDSS
(EACH HOLDER MUST EXECUTE AND SIGN THIS SIGNATURE PAGE IF GDSS ARE HELD JOINTLY)
DATED ------------------------------------------------------------ , 2002
NAME(S)
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(PLEASE PRINT)
CAPACITY
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ADDRESS
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(ZIP CODE)
TAX IDENTIFICATION OR SOCIAL SECURITY NO.
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(SEE INSTRUCTION 9)
AREA CODE AND TELEPHONE NO.
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SIGNATURE(S) GUARANTEED
(SEE INSTRUCTION 2, IF REQUIRED)
ELIGIBLE GUARANTOR INSTITUTION
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OFFICIAL SIGNATURE
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DATED: ------------------------------------------------------------ , 2002
7
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PAYOR'S NAME: THE BANK OF NEW YORK, AS U.S. RECEIVING AGENT.
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SUBSTITUTE PART 1: TAXPAYER IDENTIFICATION NUMBER ("TIN") -- PLEASE TIN: -----------------------------
FORM W-9 PROVIDE YOUR TIN IN THE SPACE AT RIGHT. IF YOU HAVE NOT (SOCIAL SECURITY NUMBER OR EM-
YET RECEIVED YOUR TIN, PLEASE INDICATE BY CHECKING THE BOX PLOYER IDENTIFICATION NUMBER)
AT RIGHT AND COMPLETING THE CERTIFICATE BELOW. AWAITING TIN [ ]
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Department of the Treasury PART 2: BACKUP WITHHOLDING -- CHECK THE BOX IF (X) YOU ARE A U.S. PERSON (INCLUDING A U.S.
Internal Revenue Service RESIDENT ALIEN), AND (Y) YOU ARE NOT SUBJECT TO BACKUP WITHHOLDING UNDER THE PROVISIONS OF SEC-
PAYOR'S REQUEST FOR TAXPAYER TION 340(A)(1)(C) OF THE INTERNAL REVENUE CODE BECAUSE EITHER (1) YOU ARE EXEMPT FROM BACKUP
IDENTIFICATION NUMBER WITHHOLDING, (2) YOU HAVE NOT BEEN NOTIFIED THAT YOU ARE SUBJECT TO BACKUP WITHHOLDING AS A
RESULT OF FAILURE TO REPORT ALL INTEREST OR DIVIDENDS OR (3) THE INTERNAL REVENUE SERVICE HAS
NOTIFIED YOU THAT YOU ARE NO LONGER SUBJECT TO BACKUP WITHHOLDING [ ]
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PART 3: CERTIFICATION -- UNDER THE PENALTIES OF PERJURY, I CERTIFY THAT THE INFORMATION
PROVIDED ON THIS FORM IS TRUE, CORRECT AND COMPLETE
SIGNATURE ------------------------- DATE ------------, 2002
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CERTIFICATE OF AWAITING TAXPAYER IDENTIFICATION NUMBER
I certify under penalties of perjury that a taxpayer identification number has
not been issued to me, and either (1) I have mailed or delivered an application
to receive a taxpayer identification number to the appropriate Internal Revenue
Service Center or Social Security Administration Office or (2) I intend to mail
or deliver an application in the near future. I understand that if I do not
provide a taxpayer identification number by the time of the payment, 30% of the
payments made to me may be withheld.
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Signature Date
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FORM INSTRUCTIONS: You must not check the box in Part 2 above if you have been
notified by the IRS that you are subject to backup withholding because of
underreporting interest or dividends on your tax return. However, if after being
notified by the IRS that you were subject to backup withholding you received
another notification from the IRS that you are no longer subject to backup
withholding, then you may check the box in Part 2 above.
FAILURE TO COMPLETE AND RETURN THIS FORM MAY RESULT IN BACKUP WITHHOLDING OF 30%
OF ANY CASH PAYMENTS. THE IRS DOES NOT REQUIRE YOUR CONSENT TO ANY PROVISION OF
THIS DOCUMENT OTHER THAN THE CERTIFICATION REQUIRED TO AVOID BACKUP WITHHOLDING.
PLEASE REVIEW ENCLOSED GUIDELINES FOR CERTIFICATION OF TAXPAYER IDENTIFICATION
NUMBER ON SUBSTITUTE FORM W-9 FOR ADDITIONAL DETAILS.
8
INSTRUCTIONS FORMING PART OF THE TERMS AND CONDITIONS OF THE U.S. OFFER
1. DELIVERY OF GDS LETTER OF TRANSMITTAL AND CERTIFICATES. You must
complete this GDS Letter of Transmittal if you are a registered holder of GDSs
and either (1) you wish to tender the GDRs evidencing your GDSs to the U.S.
Receiving Agent together with this GDS Letter of Transmittal or (2) you wish to
tender your GDSs by book-entry transfer to the U.S. Receiving Agent account at
The Depository Trust Company and you elect to submit this GDS Letter of
Transmittal to the U.S. Receiving Agent instead of an Agent's Message. In order
to constitute a valid tender of your GDSs, unless you comply with the procedures
for guaranteed delivery described below, the U.S. Receiving Agent must receive
the following documents at the address listed above on or prior to the
expiration of the U.S. Offer: (1) GDRs evidencing the GDSs, in proper form for
transfer, or book-entry confirmation of transfer into the U.S. Receiving Agent's
account with The Depository Trust Company, (2) a properly completed and duly
executed GDS Letter of Transmittal, with any required signature guarantees, or,
in the case of a book-entry transfer, an Agent's Message instead of this GDS
Letter of Transmittal, and (3) all other documents required by this GDS Letter
of Transmittal.
If you are a holder of the GDSs and wish to tender your GDSs, but (1) your
GDRs evidencing the GDSs are not immediately available, (2) time will not permit
such receipts for the GDSs or other required documents to reach the U.S.
Receiving Agent before the expiration of the U.S. Offer, or (3) the procedure
for book-entry transfer cannot be completed prior to the expiration of the U.S.
Offer, you may effect a tender if: (1) the tender is made through an Eligible
Guarantor Institution (as defined below); (2) prior to the expiration of the
U.S. Offer, the U.S. Receiving Agent receives from an Eligible Guarantor
Institution a properly completed and duly executed Notice of Guaranteed
Delivery, substantially in the form we have provided, setting forth your name
and address and the amount of GDSs you are tendering and stating that the tender
is being made by Notice of Guaranteed Delivery; and (3) the U.S. Receiving Agent
receives within three New York Stock Exchange trading days after the date of
execution of the Notice of Guaranteed Delivery: (a) the GDRs for all physically
tendered GDSs, in proper form for transfer, or a book-entry confirmation of
transfer of the GDSs into the U.S. Receiving Agent's account at The Depository
Trust Company, as the case may be, (b) a properly completed and duly executed
GDS Letter of Transmittal, with any required signature guarantees, or, in the
case of a book-entry confirmation, an Agent's Message instead of the GDS Letter
of Transmittal, and (c) all other documents required by the GDS Letter of
Transmittal. The Notice of Guaranteed Delivery may be sent by overnight courier,
hand delivery, registered or certified mail or facsimile transmission and must
include a guarantee by an Eligible Guarantor Institution in the form set forth
in the Notice.
THE METHOD OF DELIVERY OF GDRs, GDS LETTERS OF TRANSMITTAL, NOTICES OF
GUARANTEED DELIVERY AND ALL OTHER REQUIRED DOCUMENTS IS AT YOUR ELECTION. IF YOU
DELIVER YOUR GDRs BY MAIL, WE RECOMMEND REGISTERED MAIL, PROPERLY INSURED, WITH
RETURN RECEIPT REQUESTED. IN ALL CASES, YOU SHOULD ALLOW SUFFICIENT TIME TO
ASSURE TIMELY DELIVERY. PLEASE SEND GDRs, GDS LETTERS OF TRANSMITTAL, NOTICE OF
GUARANTEED DELIVERY OR OTHER REQUIRED DOCUMENTS TO THE U.S. RECEIVING AGENT AT
THE ADDRESS LISTED ABOVE. PLEASE DO NOT SEND THESE DOCUMENTS TO EMBOTELLADOR HM.
Embotellador HM will not accept any alternative, conditional or contingent
tenders. Each tendering holder, by execution of this GDS Letter of Transmittal
or delivery of an Agent's Message instead of the GDS Letter of Transmittal,
waives any right to receive any notice of the acceptance of such tender.
2. GUARANTEE OF SIGNATURES. No signature guarantee on this GDS Letter of
Transmittal is required if:
(a) this GDS Letter of Transmittal is signed by the registered holder
of GDSs tendered with this GDS Letter of Transmittal, unless such holder(s)
has completed either the box entitled "Special Payment/Issuance
Instructions" or the box entitled "Special Delivery Instructions" above, or
(b) the GDSs are tendered for the account of a firm that is an
Eligible Guarantor Institution.
In all other cases, an Eligible Guarantor Institution must guarantee the
signature(s) on this GDS Letter of Transmittal. (See Instruction 5). An
"Eligible Guarantor Institution" means a financial institution that is a
participant in the Security Transfer Agents Medallion Program, the Stock
Exchange Medallion Program or The New York Stock Exchange, Inc. Medallion
Signature Program.
9
3. INADEQUATE SPACE. If the space provided in the box captioned
"Description of GDSs Tendered" is inadequate, the serial number(s) and/or the
number of GDSs tendered and any other required information should be listed on a
separate signed schedule which is attached to this GDS Letter of Transmittal.
4. PARTIAL TENDERS AND WITHDRAWAL RIGHTS. If you are tendering less than
all of your GDSs, please fill in the number of GDSs which are to be tendered in
column 3 ("Principal Amount of GDSs Tendered") of the box entitled "Description
of GDSs Tendered." In that case, unless you have otherwise indicated by
completing the boxes entitled "Special Payment/Issuance Instructions" or
"Special Delivery Instructions," new GDR(s) for the remainder of the GDSs that
were evidenced by your old receipts(s) will be sent to the registered holder of
the GDSs, or in the case of a book-entry delivery of GDSs, the account of the
U.S. Receiving Agent with The Depository Trust Company will be credited with the
number of untendered GDSs, promptly after the expiration of the U.S. Offer. All
GDSs delivered to the U.S. Receiving Agent will be deemed to have been tendered
unless otherwise indicated.
Tenders of GDSs made pursuant to the U.S. Offer may be withdrawn at any
time prior to the expiration date, as it may be extended at any time and from
time to time prior to the expiration date, subject to applicable law.
Thereafter, such tenders are irrevocable, except that they may be withdrawn
after December 6, 2002, unless theretofor accepted for payment by us as provided
in the U.S. Offer to Purchase. If we extend the period of time during which the
U.S. Offer is open, are delayed in accepting for payment or paying for GDSs, or
are unable to accept for payment or pay for GDSs pursuant to the U.S. Offer for
any reason, then, without prejudice to our rights under the U.S. Offer, the U.S.
Receiving Agent may, on our behalf, retain all the GDSs tendered and such GDSs
may not be withdrawn except to the extent that tendering security holders are
entitled to withdrawal rights as set forth in this Instruction 4. Any such delay
will be an extension of the U.S. Offer to the extent required by law.
For a withdrawal to be effective, a written, telegraphic, telex or
facsimile transmission notice of withdrawal must be timely received by the U.S.
Receiving Agent at the address set forth above and must specify the name of the
person who tendered the GDSs to be withdrawn, the number of GDSs to be withdrawn
and the name of the registered holder of the GDSs, if different from that of the
person who tendered such GDSs. If the GDSs to be withdrawn have been delivered
to the U.S. Receiving Agent, a signed notice of withdrawal with (except in the
case of GDSs tendered by an Eligible Guarantor Institution) signatures
guaranteed by an Eligible Guarantor Institution must be submitted prior to the
acceptance of such GDSs for payment by us. In addition, such notice must
specify, in the case of GDSs tendered by delivery of GDRs, the name of the
registered holder (if different from that of the tendering security holder) and
the serial numbers shown on the particular GDRs evidencing the GDSs to be
withdrawn or, in the case of GDSs tendered by book-entry transfer, the name and
account or participant number at The Depository Trust Company to be credited
with the withdrawn GDSs. Withdrawals may not be rescinded, and GDSs withdrawn
will thereafter be deemed not validly tendered for purposes of the U.S. Offer.
However, withdrawn GDSs may be re-tendered by again following one of the
procedures described in this Offer to Purchase, as applicable, at any time prior
to the expiration date.
5. SIGNATURES ON GDS LETTER OF TRANSMITTAL, ASSIGNMENTS AND ENDORSEMENTS.
If this GDS Letter of Transmittal is signed by the registered holder(s) of the
GDSs tendered hereby, the signature(s) must correspond exactly with the name(s)
as written on the face of the GDRs or on the register of holders maintained by
The Bank of New York, as Depositary. If any of the GDSs tendered hereby are
registered in the name of two or more joint owners, all such owners must sign
this GDS Letter of Transmittal. If any tendered GDSs are registered in different
name(s) on several receipt(s), it will be necessary to complete, sign and submit
as many separate GDS Letters of Transmittal as there are different registered
holders.
When this GDS Letter of Transmittal is signed by the registered holder(s)
of the GDSs listed and transmitted by this GDS Letter of Transmittal, no
endorsement(s) of GDRs or separate stock power(s) are required unless checks
constituting cash payments are to be paid to a person other than the registered
holder(s). Signature(s) on the receipts or stock power(s) must be guaranteed by
an Eligible Guarantor Institution.
If a person or persons other than the registered holder(s) of GDSs signs
the GDS Letter of Transmittal, GDRs for the GDSs must be endorsed or accompanied
by appropriate stock powers, signed exactly as the name or names of the
registered holder(s) that appears on the GDRs for the GDSs and also must be
accompanied by any opinions of counsel, certifications and other information as
Embotellador HM may require in accordance with the restrictions on transfer, if
any, applicable to the GDSs. Signatures on GDRs or stock powers must be
guaranteed by an Eligible Guarantor Institution.
10
If you are a trustee, executor, administrator, guardian, attorney-in-fact,
officer of a corporation, or act in a similar fiduciary or representative
capacity, and wish to sign this GDS Letter of Transmittal or any GDRs for GDSs
or stock powers, you must indicate your status when signing. If you are acting
in any of these capacities, you must submit proper evidence satisfactory to us
of your authority to so act unless we waive this requirement.
6. SPECIAL ISSUANCE AND DELIVERY INSTRUCTIONS. If checks constituting
cash payments are to be paid or delivered to a person other than the signer of
this GDS Letter of Transmittal, or to an address other than that shown above,
the boxes entitled "Special Payment/Issuance Instructions" and/or "Special
Delivery Instructions" on this GDS Letter of Transmittal should be completed.
GDRs for GDSs not accepted for payment will be returned by mail (See Instruction
4), or in the case of a book-entry transfer, be credited to the account
indicated above maintained with The Depository Trust Company.
7. IRREGULARITIES. All questions as to the validity, form,
eligibility -- including time of receipt -- and acceptance of GDSs tendered for
payment will be determined by Embotellador HM in its sole discretion. Our
determination will be final and binding. We reserve the absolute right to reject
any and all tenders of GDSs improperly tendered or to not accept any GDSs; this
right is not limited to situations where the acceptance of tender might be
unlawful as determined by us or our counsel. We also reserve the absolute right
to waive any defects or irregularities or conditions of the U.S. Offer as to any
GDSs either before or after the expiration of the U.S. Offer -- including the
right to waive the ineligibility of any holder who seeks to tender GDSs in the
U.S. Offer. Our interpretation of the terms and conditions of the U.S. Offer as
to any particular GDSs either before or after the expiration of the U.S.
Offer -- including the terms and conditions of the GDS Letter of Transmittal and
the accompanying instructions -- will be final and binding. Unless waived, any
defects or irregularities in connection with tenders of GDSs for payment must be
cured within a reasonable period of time, as determined by us. Neither we, the
U.S. Receiving Agent nor any other person has any duty to give notification of
any defect or irregularity with respect to any tender of GDSs for payment, nor
will we have any liability for failure to give such notification.
8. QUESTIONS, REQUESTS FOR ASSISTANCE AND ADDITIONAL COPIES. Questions in
respect of the transactions contemplated in the U.S. Offer, the procedures for
tendering in the U.S. Offer and for additional copies of the U.S. Offer to
Purchase, this GDS Letter of Transmittal or the Notice of Guaranteed Delivery
should be directed to the U.S. Receiving Agent at one of the addresses set forth
above.
9. 30% BACKUP WITHHOLDING; SUBSTITUTE FORM W-9. Under U.S. Federal income
tax law, a holder whose tendered GDSs are accepted for payment is required to
provide the U.S. Receiving Agent with the holder's correct taxpayer
identification number (e.g., social security number or employer identification
number) (the "TIN") on Substitute Form W-9 above. If the U.S. Receiving Agent is
not provided with the correct TIN, cash payments to such holders or other payees
with respect to GDSs purchased in the U.S. Offer may be subject to 30% backup
withholding. In addition, the Internal Revenue Service may subject the holder or
other payee to a $50 penalty.
The box "Awaiting TIN" in Part 1 of the Substitute Form W-9 may be checked
if the tendering holder has not been issued a TIN and has applied for a TIN or
intends to apply for a TIN in the near future. If the box "Awaiting TIN" in Part
1 is checked, the holder or other payee must also complete the Certificate of
Awaiting Taxpayer Identification Number above in order to avoid backup
withholding. Notwithstanding that the box "Awaiting TIN" in Part 1 is checked
and the Certificate of Awaiting Taxpayer Identification Number is completed, the
U.S. Receiving Agent may withhold 30% of all payments made prior to the time a
properly certified TIN is provided to the U.S. Receiving Agent. The U.S.
Receiving Agent will retain all amounts withheld during the 60-day period
following the date of the Substitute Form W-9. If the holder furnishes the U.S.
Receiving Agent with its TIN within 60 days after the date of the Substitute
Form W-9, the amounts retained during the 60-day period will be remitted to the
holder and no further amounts will be retained or withheld from payments made to
the holder thereafter. If, however, the holder has not provided the U.S.
Receiving Agent with its TIN within the 60-day period, amounts withheld will be
remitted to the IRS as backup withholding. In addition, 30% of all payments, if
any, made thereafter will be withheld and remitted to the IRS until a correct
TIN is provided.
The holder is required to give the U.S. Receiving Agent the TIN of the
registered holder of the GDSs or of the last transferee appearing on the
transfers attached to, or endorsed on, the GDSs. If the GDSs are registered in
more than one name or are not in the name of the actual holder, consult the
enclosed "Guidelines for Certification of Taxpayer Identification Number on
Substitute Form W-9" for additional guidance on which number to report.
11
Certain holders -- including, among others, corporations and financial
institutions -- may not be subject to these backup withholding and reporting
requirements. These holders should nevertheless complete the Substitute Form W-9
above, and check the box in Part 2 of the Substitute Form W-9, to avoid possible
erroneous backup withholding. A foreign person may qualify for an exemption from
backup withholding by submitting a properly completed IRS Form W-8BEN,
Certificate of Foreign Status of Beneficial Owner for United States Tax
Withholding, or other applicable Form W-8, signed under penalties of perjury,
attesting to the holder's foreign status. Please consult the enclosed
"Guidelines for Certification of Taxpayer Identification Number on Substitute
Form W-9" for additional guidance on which holders are exempt from backup
withholding.
Backup withholding is not an additional U.S. Federal income tax. Rather,
the U.S. Federal income tax liability of a person subject to backup withholding
will be reduced by the amount of tax withheld. If withholding results in an
overpayment of taxes, a refund may be obtained.
10. CONDITIONS FOR COMPLETION OF U.S. OFFER. We will not be required to
accept GDSs for payment if (i) less than 90% of all of the outstanding capital
stock of Gemex (including shares represented by CPOs and GDSs) on the expiration
date, is tendered in the Offers on or prior to the expiration date and not
withdrawn, (ii) less than all of the Securities of Gemex owned, directly or
indirectly, or which may be acquired on or before the expiration date, by
PepsiCo and its nominee identified in the Agreement to Tender, dated October 4,
2002, by and among BG LLC, Embotellador HM and PepsiCo, are tendered in the
Offers and not withdrawn, (iii) less than all of the Securities of Gemex owned,
directly or indirectly, or which may be acquired on or before the expiration
date, by Mr. Enrique C. Molina Sobrino and his affiliates identified in the
Agreement to Tender, dated October 4, 2002, by and among BG LLC, Embotellador HM
and Mr. Molina, are tendered in the Offers and not withdrawn, (iv) the
conditions to the Mexican Offer have not been satisfied or waived on or before
the expiration date of the Mexican Offer or the Mexican Offer has been
terminated without the purchase of any Securities, or (v) the other conditions
set forth in the U.S. Offer to Purchase under the caption "The U.S.
Offer -- Certain conditions to the U.S. Offer" are not satisfied or waived at
any time on or prior to the expiration date of the U.S. Offer.
11. NO CONDITIONAL TENDERS. No alternative, conditional or contingent
tenders will be accepted. All tendering holders of GDSs, by execution of this
GDS Letter of Transmittal, waive any right to receive notice of the acceptance
of GDSs for payment.
12. LOST, DESTROYED OR STOLEN CERTIFICATES. If any GDRs representing GDSs
have been lost, destroyed or stolen, the holder should check the box above
regarding lost, destroyed or stolen receipts and promptly notify the U.S.
Receiving Agent. The holder will then be instructed as to the steps that must be
taken in order to replace the receipts. This GDS Letter of Transmittal and
related documents cannot be processed until the procedures for replacing lost,
destroyed or stolen receipts have been followed.
13. TRANSFER TAXES. You will not be obligated to pay any transfer taxes
in connection with the tender of GDSs in the U.S. Offer unless you instruct us
to make payment to, or request that GDSs not tendered or not accepted in the
U.S. Offer be registered in the name of, a person other than the registered
tendering holder. In those cases, you will be responsible for the payment of any
applicable transfer tax. If satisfactory evidence of payment of these taxes or
an exemption from payment is not submitted with this GDS Letter of Transmittal,
no payment will be made and no certificates for GDSs will be issued until such
evidence is received by the U.S. Receiving Agent.
IMPORTANT: UNLESS YOU COMPLY WITH THE GUARANTEED DELIVERY PROCEDURES DESCRIBED
ABOVE, A PROPERLY COMPLETED AND DULY EXECUTED (TOGETHER WITH ANY REQUIRED
SIGNATURE GUARANTEES) GDS LETTER OF TRANSMITTAL (OR A FACSIMILE OF THIS GDS
LETTER OF TRANSMITTAL), OR AN AGENT'S MESSAGE IN THE CASE OF BOOK-ENTRY
DELIVERY, TOGETHER WITH GDRs OR CONFIRMATION OF BOOK-ENTRY TRANSFER AND ALL
OTHER REQUIRED DOCUMENTS MUST BE RECEIVED BY THE U.S. RECEIVING AGENT ON OR
PRIOR TO THE EXPIRATION OF THE U.S. OFFER.
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Questions or requests for assistance or additional copies of the U.S. Offer
to Purchase, the GDS Letter of Transmittal and any other documents may be
directed to the Information Agent at its address and telephone numbers set forth
below. A holder of Securities also may contact his or her broker, dealer,
commercial bank, trust company or other nominee for assistance concerning the
U.S. Offer.
The Information Agent for the U.S. Offer is:
[MORROW & CO. LOGO]
445 Park Avenue, 5th Floor
New York, New York 10022
(212) 754-8000
U.S. SECURITY HOLDERS CALL TOLL FREE: (800) 607-0088
SECURITY HOLDERS OUTSIDE THE U.S. PLEASE CALL COLLECT
EMAIL: TENDER.INFO@MORROWCO.COM
The U.S. Dealer Manager for the U.S. Offer is:
[SALOMON SMITH BARNEY LOGO]
388 Greenwich Street
New York, New York 10013
Dates Referenced Herein
| Referenced-On Page |
|---|
| This ‘SC TO-T’ Filing | | Date | | First | | Last | | | Other Filings |
|---|
| |  |
| | 12/6/02 | | 10 | | | | | None on these Dates |
| | 11/5/02 | | 1 |
| Filed on: | | 10/7/02 | | 1 | | 2 |
| | 10/4/02 | | 12 |
| List all Filings |
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