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
| Page | (sequential) | | | | (alphabetic) | Top |
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- Alternative Formats (Word, et al.)
- Acceptance for payment
- Agreements and transactions between Gemex and PepsiCo and its affiliates
- Agreements and transactions between PBG and PepsiCo and its affiliates
- Agreements related to Gemex's Securities
- Annex Iii
- Annex I -- Information Concerning Directors and Executive Officers of Embotellador Hm, Bg Llc, Pbg and Pepsico
- Annex Ii -- Procedures for Tendering Into the Mexican Offer
- Background of the Offers
- Capital stock
- Certain conditions to the U.S. Offer
- Certain legal matters; regulatory approvals
- Certain tax considerations
- Dividends
- Effect of the Offers
- Exemptions Requested From the Securities and Exchange Commission
- Extension of tender period; amendment and termination
- Foreign Currency
- Forward Looking Statements
- General
- Information Agent, Receiving Agents, U.S. Dealer Manager and other expenses
- Information Regarding Gemex
- Information Regarding PBG, BG LLC and Embotellador HM
- Material Mexican income tax consequences
- Molina Agreement to Tender
- Our plans for Gemex; transactions and operations following the U.S. Offer
- Past Contacts, Transactions, Negotiations and Agreements
- PepsiCo Agreement to Tender
- Position of PBG, BG LLC and Embotellador HM regarding fairness of the Offers and the reverse stock split
- Price range of Securities
- Procedure for tendering in the U.S. Offer -- Holders of GDSs
- Procedure for tendering in the U.S. Offer -- Holders of Shares and CPOs
- Recommendation of the Gemex Board
- Representations and warranties of tendering security holders
- Selected financial data of Gemex
- Sources of funds
- Special Factors
- Summary Term Sheet
- Tax basis in shares of Gemex stock for Mexican tax purposes
- Terms of this U.S. Offer; Expiration Date
- The U.S. Offer
- U.S. Offer, The
- Withdrawal rights
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| 1 | 1st Page - Filing Submission
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| 6 | Summary Term Sheet
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| 14 | Special Factors
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| " | Background of the Offers
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| 17 | Effect of the Offers
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| 19 | Recommendation of the Gemex Board
|
| " | Position of PBG, BG LLC and Embotellador HM regarding fairness of the Offers and the reverse stock split
|
| 26 | Exemptions Requested From the Securities and Exchange Commission
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| " | Foreign Currency
|
| " | Forward Looking Statements
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| 27 | The U.S. Offer
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| " | Terms of this U.S. Offer; Expiration Date
|
| 28 | Certain conditions to the U.S. Offer
|
| 31 | Acceptance for payment
|
| 32 | Procedure for tendering in the U.S. Offer -- Holders of Shares and CPOs
|
| 33 | Procedure for tendering in the U.S. Offer -- Holders of GDSs
|
| 36 | Withdrawal rights
|
| " | Extension of tender period; amendment and termination
|
| 38 | Representations and warranties of tendering security holders
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| 39 | Sources of funds
|
| " | Certain tax considerations
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| 41 | Material Mexican income tax consequences
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| 43 | Tax basis in shares of Gemex stock for Mexican tax purposes
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| 45 | Information Agent, Receiving Agents, U.S. Dealer Manager and other expenses
|
| 46 | Certain legal matters; regulatory approvals
|
| " | Our plans for Gemex; transactions and operations following the U.S. Offer
|
| 48 | Information Regarding Gemex
|
| " | General
|
| " | Capital stock
|
| 49 | Price range of Securities
|
| 50 | Dividends
|
| 52 | Selected financial data of Gemex
|
| 57 | Information Regarding PBG, BG LLC and Embotellador HM
|
| " | Past Contacts, Transactions, Negotiations and Agreements
|
| " | Agreements related to Gemex's Securities
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| 59 | Molina Agreement to Tender
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| 61 | PepsiCo Agreement to Tender
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| 62 | Agreements and transactions between PBG and PepsiCo and its affiliates
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| 63 | Agreements and transactions between Gemex and PepsiCo and its affiliates
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| 65 | Annex I -- Information Concerning Directors and Executive Officers of Embotellador Hm, Bg Llc, Pbg and Pepsico
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| 75 | Annex Ii -- Procedures for Tendering Into the Mexican Offer
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| 76 | Annex Iii
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EXHIBIT (a)(1)
[THE PEPSI BOTTLING GROUP LOGO]
U.S. OFFER TO PURCHASE FOR CASH ALL OUTSTANDING
SERIES B COMMON SHARES, ORDINARY PARTICIPATION CERTIFICATES AND
GLOBAL DEPOSITARY SHARES
OF
PEPSI-GEMEX, S.A. DE C.V.
at the U.S. Dollar Equivalent of
Mexican Pesos 5.91 Per Series B Common Share
of Gemex
and
Mexican Pesos 17.73 Per Ordinary Participation Certificate
of Gemex
(each CPO representing one Series B Common Share, one Series D Preferred Share
and one Series L Limited Voting Share)
and
Mexican Pesos 106.38 Per Global Depositary Share
of Gemex
(each GDS representing six CPOs)
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.
THIS 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 THIS U.S. OFFER
IS EXTENDED.
PBG Grupo Embotellador Hispano-Mexicano, S.L. ("Embotellador HM"), a
Spanish limited liability company and an indirect subsidiary of Bottling Group,
LLC ("BG LLC"), a Delaware limited liability company and the principal operating
subsidiary of The Pepsi Bottling Group, Inc., a Delaware corporation ("PBG"),
through simultaneous offers in the United States and in Mexico, is offering to
purchase for cash all of the outstanding Series B Common Shares (the "Shares"),
Ordinary Participation Certificates ("CPOs") and Global Depositary Shares
("GDSs", and collectively with the Shares and the CPOs, and, in each case, with
any coupon representing unpaid dividends as of the day hereof, the
"Securities"), of Pepsi-Gemex, S.A. de C.V. ("Gemex"), a variable stock
corporation organized under the laws of Mexico. Each CPO represents one Share,
one Series D Preferred Share ("D Share") and one Series L Limited Voting Share
("L Share"). Each GDS represents six CPOs.
In the United States (the "U.S. Offer" or the "U.S. Offer to Purchase"),
Embotellador HM is offering to purchase (1) all outstanding GDSs of Gemex and
(2) all outstanding Shares and CPOs of Gemex, in each case held by persons who
are not Mexican residents. In Mexico (the "Mexican Offer", and collectively with
the U.S. Offer, the "Offers"), Embotellador HM is offering to purchase all
outstanding Shares and CPOs. All holders of GDSs may tender their GDSs only in
the U.S. Offer unless they first convert their GDSs into CPOs. All holders,
other than those who are Mexican residents, may tender their Shares and CPOs in
either the U.S. Offer or the Mexican Offer. Mexican resident holders may tender
Shares and CPOs only in the Mexican Offer. The Mexican Offer will be made on
substantially the same terms and at the same prices as the U.S. Offer.
Payments for Shares and CPOs (but not GDSs) purchased in the Offers will be
subject in all cases to a 5% Mexican withholding tax on the gross proceeds of
the sale. See "The U.S. Offer -- Certain tax considerations -- Material Mexican
income tax consequences" for a discussion of this withholding tax and
instructions for a holder to obtain a refund under specified circumstances.
Notwithstanding any provision of this U.S. Offer, we will not be required
to accept Securities for payment, and we may terminate or amend the U.S. Offer
if (i) less than 90% of all outstanding shares of 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 of the U.S. Offer 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, Inc. ("PepsiCo") and its nominee identified in the Agreement to Tender,
dated as of October 4, 2002, by and among Embotellador HM, BG LLC and PepsiCo
(the "PepsiCo Agreement to Tender") 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 (the Chairman of the Board, Chief Executive Officer
and largest security holder of Gemex) and certain of his affiliates identified
in the Agreement to Tender, dated as of October 4, 2002 (the "Molina Agreement
to Tender"), by and among Embotellador HM, BG LLC 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) any of the other conditions set forth in this U.S. Offer
under the caption "Certain conditions to the U.S. Offer" is not satisfied or
waived at any time before the acceptance of the Securities for payment.
For assistance in connection with the U.S. Offer, please contact Morrow &
Co., Inc. (the "Information Agent"), The Bank of New York (the "U.S. Receiving
Agent") or Salomon Smith Barney Inc. (the "U.S. Dealer Manager") at their
respective addresses and telephone numbers set forth on the back cover of this
U.S. Offer to Purchase. Additional copies of this U.S. Offer to Purchase, the
GDS Letter of Transmittal and the Notice of Guaranteed Delivery may be obtained
from the Information Agent, the U.S. Dealer Manager, or brokers, dealers,
commercial banks or trust companies acting as your nominees.
NO DEALER, SALESMAN OR OTHER PERSON HAS BEEN AUTHORIZED TO GIVE ANY
INFORMATION OR TO MAKE ANY REPRESENTATIONS WITH RESPECT TO THE MATTERS DESCRIBED
IN THIS OFFERING, OTHER THAN THOSE CONTAINED IN THIS U.S. OFFER TO PURCHASE
(INCLUDING THE DOCUMENTS INCORPORATED HEREIN BY REFERENCE). IF GIVEN OR MADE,
SUCH INFORMATION OR REPRESENTATION MAY NOT BE RELIED UPON AS HAVING BEEN
AUTHORIZED BY US.
THIS U.S. OFFER DOES NOT CONSTITUTE AN OFFER TO BUY OR A SOLICITATION OF AN
OFFER TO SELL ANY OF THE SECURITIES OF GEMEX TO ANY PERSON IN ANY JURISDICTION
WHERE IT IS UNLAWFUL TO MAKE SUCH AN OFFER OR SOLICITATION.
THE U.S. OFFER HAS NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION, COMMONLY KNOWN AS THE "SEC," OR ANY SECURITIES COMMISSION
OF ANY STATE OF THE UNITED STATES OR THE COMISION
ii
NACIONAL BANCARIA Y DE VALORES OF MEXICO, COMMONLY KNOWN AS THE "CNBV", OR THE
SECURITIES REGULATORY AUTHORITIES OF ANY OTHER JURISDICTION, NOR HAS THE SEC OR
ANY STATE SECURITIES COMMISSION, THE CNBV, OR THE SECURITIES REGULATORY
AUTHORITIES OF ANY OTHER JURISDICTION PASSED UPON THE FAIRNESS OR MERITS OF THIS
U.S. OFFER NOR UPON THE ACCURACY OR ADEQUACY OF THE INFORMATION CONTAINED IN
THIS DOCUMENT. ANY REPRESENTATION TO THE CONTRARY IS UNLAWFUL.
The date of this U.S. Offer is October 7, 2002.
IMPORTANT INFORMATION
Tenders by Holders of Shares and/or CPOs. If you hold Shares or CPOs and
you desire to tender all or any portion of your Shares and CPOs in the U.S.
Offer, you must do so by book-entry transfer as described in this U.S. Offer to
Purchase. If you hold Shares in certificated form you should promptly contact a
broker, dealer, bank, trust company, financial institution or other nominee who
is a participant in the book-entry transfer system of S.D. Indeval, S.A. de
C.V., Institucion para el Deposito de Valores, commonly known as "Indeval," a
privately-owned central securities depositary that acts as clearing house,
depositary, custodian, settlement, transfer and registration institution for the
Mexican Stock Exchange, and arrange for the holding by such nominee of the
Shares on your behalf in book-entry form. In order for a book-entry transfer to
constitute a valid tender of your Shares and CPOs in the U.S. Offer, the Shares
and CPOs must be tendered by your nominee who is an Indeval participant into the
account maintained by Acciones y Valores de Mexico, S.A. de C.V., or Accival
(the "Mexican Receiving Agent" or the "Mexican Dealer Manager"), with Indeval,
and the Mexican Receiving Agent must receive a properly completed and duly
executed letter from the Indeval participant who tendered your Shares and CPOs
into its account accepting the U.S. Offer (an "Acceptance Letter") prior to the
expiration date of the U.S. Offer. For more information see "The U.S.
Offer -- Procedure for tendering in the U.S. Offer -- Holders of Shares and
CPOs."
Tenders by Holders of GDSs. If you hold GDSs and you desire to tender all
or any portion of the GDSs, you should either (a) complete and sign the GDS
Letter of Transmittal or a copy thereof in accordance with the instructions
contained in the GDS Letter of Transmittal and mail or deliver the GDS Letter of
Transmittal, with original signatures, together with the Global Depositary
Receipts (the "GDRs") evidencing tendered GDSs and all other required documents
to the U.S. Receiving Agent in the U.S. Offer or tender such GDSs pursuant to
the procedure for book-entry transfer set forth under the caption "The U.S.
Offer -- Procedure for tendering in the U.S. Offer -- Holders of GDSs," or (b)
request your broker, dealer, commercial bank, trust company or other nominee to
effect the transaction for you. If you have GDSs registered in the name of a
broker, dealer, commercial bank, trust company or other nominee you must contact
such person if you desire to tender such GDSs. If you desire to tender GDSs, the
GDRs evidencing such GDSs are not immediately available and you cannot deliver
such GDRs and all other required documents to the U.S. Receiving Agent by the
expiration of the U.S. Offer or you cannot comply with the procedures for
book-entry transfer on a timely basis, you may tender such GDSs pursuant to the
guaranteed delivery procedure set forth under the caption "The U.S.
Offer -- Procedure for tendering in the U.S. Offer -- Holders of GDSs."
Settlement of U.S. Offer Price. The purchase prices for the Shares, CPOs
and GDSs accepted for payment pursuant to the U.S. Offer will be paid in U.S.
dollars equivalent to the applicable Mexican peso price 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 U.S. business days ending two U.S.
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 (as so calculated, 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 U.S. business day after
the Applicable Exchange Rate is
iii
determined. You will bear exchange rate risks and costs if you wish to convert
the currency received into another currency. If you hold Shares and CPOs and
wish to receive Mexican pesos for your Shares and CPOs instead of U.S. dollars,
you should tender your Shares and CPOs in the Mexican Offer and indicate your
election to receive the purchase prices in Mexican pesos. See Annex II to this
U.S. Offer to Purchase for a description of the procedures for participating in
the Mexican Offer.
The term "U.S. business day" as used in this U.S. Offer to Purchase means
any day other than Saturday, Sunday or a U.S. federal holiday consisting of the
time period from 12:01 a.m. through 12:00 midnight, New York City time.
The term "business day" means any day other than Saturday, Sunday or a U.S.
federal holiday and that is not a legal holiday in Mexico, consisting of the
time period from 12:01 a.m. through 12:00 midnight, New York City time.
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.
iv
TABLE OF CONTENTS
[Download Table]
SUMMARY TERM SHEET.......................................... 1
SPECIAL FACTORS............................................. 9
Background of the Offers.................................. 9
Effect of the Offers...................................... 12
Recommendation of the Gemex Board......................... 14
Position of PBG, BG LLC and Embotellador HM regarding
fairness of the Offers and the reverse stock split..... 14
EXEMPTIONS REQUESTED FROM THE SECURITIES AND EXCHANGE
COMMISSION................................................ 21
FOREIGN CURRENCY............................................ 21
FORWARD LOOKING STATEMENTS.................................. 21
THE U.S. OFFER.............................................. 22
Terms of this U.S. Offer; Expiration Date................. 22
Certain conditions to the U.S. Offer...................... 23
Acceptance for payment.................................... 26
Procedure for tendering in the U.S. Offer -- Holders of
Shares and CPOs........................................ 27
Procedure for tendering in the U.S. Offer -- Holders of
GDSs................................................... 28
Withdrawal rights......................................... 31
Extension of tender period; amendment and termination..... 31
Representations and warranties of tendering security
holders................................................ 33
Sources of funds.......................................... 34
Certain tax considerations................................ 34
Information Agent, Receiving Agents, U.S. Dealer Manager
and other expenses..................................... 40
Certain legal matters; regulatory approvals............... 41
Our plans for Gemex; transactions and operations following
the U.S. Offer......................................... 41
INFORMATION REGARDING GEMEX................................. 43
General................................................... 43
Capital stock............................................. 43
Price range of Securities................................. 44
Dividends................................................. 45
Selected financial data of Gemex.......................... 47
INFORMATION REGARDING PBG, BG LLC AND EMBOTELLADOR HM....... 52
PAST CONTACTS, TRANSACTIONS, NEGOTIATIONS AND AGREEMENTS.... 52
Agreements related to Gemex's Securities.................. 52
Agreements and transactions between PBG and PepsiCo and
its affiliates......................................... 57
Agreements and transactions between Gemex and PepsiCo and
its affiliates......................................... 58
ANNEX I -- INFORMATION CONCERNING DIRECTORS AND EXECUTIVE
OFFICERS OF EMBOTELLADOR HM, BG LLC, PBG AND PEPSICO...... 60
ANNEX II -- PROCEDURES FOR TENDERING INTO THE MEXICAN
OFFER..................................................... 70
ANNEX III -- RECONCILIATION NOTE............................ 71
v
SUMMARY TERM SHEET
In the U.S. Offer, we are offering to purchase all the outstanding GDSs at
a price of Ps.106.38 per GDS, all the outstanding Shares held by persons who are
not Mexican residents at a price of Ps.5.91 per Share, and all the outstanding
CPOs held by persons who are not Mexican residents at a price of Ps.17.73 per
CPO, in each case in cash, less any withholding taxes and without interest
thereon. The following are some of the questions you, as a holder of GDSs or a
non-Mexican resident holder of Shares and CPOs, may have and answers to those
questions. We urge you to carefully read the remainder of this U.S. Offer and
the accompanying GDS Letter of Transmittal because information in this summary
is not complete and additional important information is contained in the
remainder of this U.S. Offer and the GDS Letter of Transmittal.
WHO IS OFFERING TO BUY MY SECURITIES?
Our name is PBG Grupo Embotellador Hispano-Mexicano, S.L. We are a Spanish
limited liability company and an indirect majority-owned subsidiary of BG LLC,
the principal operating subsidiary of PBG in which PBG owns approximately 93% of
the equity interest and PepsiCo owns approximately 7%. PBG holds, indirectly,
the remaining interest in us. We were formed to make the Offers. As of August 9,
2002, approximately 42.7% of the voting capital stock of PBG was beneficially
owned by PepsiCo. According to Gemex's Annual Report on Form 20-F for the year
ended December 31, 2001, which was filed with the SEC on July 1, 2002 (the
"Annual Report"), PepsiCo also owned, directly or indirectly, approximately
34.4% of the total outstanding capital stock of Gemex as of June 26, 2002. All
of PepsiCo's Securities are deposited in a trust (the "Molina/PepsiCo Trust"),
which grants Mr. Molina the power to direct the voting of PepsiCo's Securities,
absent certain events, until December 31, 2002. However, during that time
PepsiCo has the right to approve specified decisions of Gemex's management. As a
result of PepsiCo's relationship with us and with Gemex, we may be deemed to be
an affiliate of Gemex under the Securities Exchange Act of 1934 (the "Exchange
Act") and the Offers commenced by us for all of the Shares, CPOs and GDSs will
constitute, if consummated, a "going-private transaction" within the meaning of
Rule 13e-3 promulgated under the Exchange Act. For more information regarding
us, BG LLC and PBG, see "Information Regarding PBG, BG LLC and Embotellador HM."
For more information concerning the Molina/PepsiCo Trust, see "Special Factors"
and "Past Contacts, Transactions, Negotiations and Agreements."
WHAT ARE THE CLASSES AND AMOUNTS OF SECURITIES SOUGHT IN THE OFFERS?
In the U.S. Offer, we are seeking to purchase all of the outstanding GDSs
of Gemex and all of the outstanding Shares and CPOs of Gemex held by persons who
are not Mexican residents. In the Mexican Offer, we are seeking to purchase all
Shares and CPOs, including those held by U.S. residents. For more information,
please see the section of this U.S. Offer captioned "The U.S. Offer -- Terms of
this U.S. Offer; Expiration Date."
HOW MUCH IS EMBOTELLADOR HM OFFERING TO PAY FOR MY SECURITIES AND WHAT IS THE
FORM OF PAYMENT?
In the U.S. Offer we are offering to pay each Gemex security holder Ps.5.91
per Share, Ps.17.73 per CPO and Ps.106.38 per GDS, in each case in cash, less
any withholding taxes and without interest thereon. The purchase prices for the
Securities accepted for payment pursuant to the U.S. Offer will be the U.S.
dollar equivalent of the applicable Mexican peso price based on the Applicable
Exchange Rate.
We may increase the purchase prices we are offering in this U.S. Offer for
any reason in our sole discretion. In addition, we may reduce the purchase
prices we are offering by the amount of all dividends for which a payment date
is announced or published by Gemex on or prior to the expiration date and which
is payable after the date of this U.S. Offer and prior to the date of purchase
of Securities pursuant to the Offers, if any. Under the Molina Agreement to
Tender and the PepsiCo Agreement to Tender, we agreed not to reduce the purchase
prices or change the form of consideration we are offering to pay in this U.S.
Offer for any other reason without the consent of Mr. Molina and PepsiCo.
1
DO I HAVE TO PAY BROKERAGE FEES IF I CHOOSE TO TENDER MY SECURITIES?
If you are the record owner of GDSs subject to this U.S. Offer and you
tender your GDSs in the U.S. Offer, you will not have to pay brokerage fees or
similar expenses. If you own your Securities through a broker or other nominee,
and your broker tenders your Securities on your behalf, your broker or nominee
may charge you a fee for doing so. If you are the record owner of Shares, you
must tender by book-entry delivery through an Indeval participant. You should
consult your broker or nominee to determine whether any charges will apply. For
more information, please see the section of this U.S. Offer captioned "The U.S.
Offer -- Terms of this U.S. Offer; Expiration Date."
DOES EMBOTELLADOR HM HAVE ANY AGREEMENTS WITH RESPECT TO THE OFFERS WITH ANY OF
GEMEX'S SECURITY HOLDERS?
We and BG LLC entered into the PepsiCo Agreement to Tender with PepsiCo.
Under the PepsiCo Agreement to Tender, PepsiCo has agreed to tender, and to
cause its nominee identified in such agreement to tender, all of the outstanding
Securities owned directly or indirectly by PepsiCo and which may be acquired by
PepsiCo prior to the expiration date in the Offers, subject to its right to
accept more competitive offers. In addition, as it is strategically important
that we, a subsidiary of PBG, one of PepsiCo's anchor bottlers, purchase Gemex,
PepsiCo has agreed to pay us Ps.172.7 million in order to facilitate such
purchase and ensure a smooth ownership transition of Gemex. This payment will be
made before the completion of the Offers.
We and BG LLC also entered into the Molina Agreement to Tender with Mr.
Molina. According to information in Gemex's Annual Report and an amendment to
Mr. Molina's Schedule 13D filed on September 18, 2002, Mr. Molina had beneficial
ownership over approximately 74.5% of the total capital stock of Gemex, as of
September 10, 2002, including (i) Shares and CPOs deposited by PepsiCo and its
subsidiaries in the Molina/PepsiCo Trust, and (ii) immediately exercisable
options held by Mr. Molina to buy series T shares of Gemex which are convertible
into CPOs. Without giving effect to PepsiCo's Shares and CPOs deposited in the
Molina/PepsiCo Trust and to Mr. Molina's options to buy series T shares of
Gemex, Mr. Molina owned, directly or indirectly, approximately 40.0% of the
total outstanding capital stock of Gemex, as of September 10, 2002. Under the
Molina Agreement to Tender, Mr. Molina has agreed to tender, and to cause his
affiliates identified in such agreement to tender, all of the outstanding
Securities owned by them and which may be acquired by them prior to the
expiration date in the Offers, subject to their right to accept more competitive
offers received at any time prior to or during the time the Offers remain
outstanding.
The Molina Agreement to Tender contains representations and warranties
concerning transactions between Mr. Molina and his affiliates on the one hand,
and Gemex and its subsidiaries, on the other hand. Under the Molina Agreement to
Tender, Mr. Molina has agreed to put in escrow an amount in U.S. dollars
equivalent to approximately Ps.141.1 million at the Applicable Exchange Rate
from the proceeds he is entitled to receive in the Offers for his Securities
(not including the Shares and CPOs deposited by PepsiCo in the Molina/PepsiCo
Trust), as security for any indemnity obligations resulting from a breach by Mr.
Molina of such representations and warranties. Mr. Molina's indemnification
obligation with respect to his representations and warranties will not exceed
Ps.188.2 million, including the amount in escrow. However, there is no
limitation on the remedies available to us in the event of other breaches by Mr.
Molina of the Molina Agreement to Tender.
The Molina Agreement to Tender and the PepsiCo Agreement to Tender contain
limitations on our ability to amend or extend the Offers, including limitations
on our ability to reduce the prices and the form of consideration we are
offering or the number of Securities sought in the Offers. For a detailed
description of the Molina Agreement to Tender and the PepsiCo Agreement to
Tender, see "Past Contacts, Transactions, Negotiations and Agreements" of this
U.S. Offer to Purchase.
2
HOW WILL PAYMENT BE MADE FOR THE SECURITIES I TENDER?
The purchase prices for the Securities accepted for payment pursuant to the
U.S. Offer will be the U.S. dollar equivalent of the applicable Mexican peso
price, based on the Applicable Exchange Rate. The purchase prices for the Shares
and CPOs tendered in the Mexican Offer will be paid, at the election of the
tendering holder, in Mexican pesos or in U.S. dollars equivalent to the Mexican
Peso price 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 prices 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. 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 U.S. business day after the
Applicable Exchange Rate is determined. If you choose to 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 such pesos into U.S. dollars. In the event that the
Mexican Offer is amended to increase the price offered for the Securities, we
will make a corresponding amendment to increase the price offered for the
Securities in the U.S. Offer.
For purposes of the U.S. Offer, we will be deemed to have accepted for
payment tendered Securities when and if we give oral or written notice to the
U.S. Receiving Agent or the Mexican Receiving Agent, as the case may be, of our
acceptance of the tenders of such Securities. Payment for GDSs tendered in
certificated form and for Shares or CPOs tendered in book-entry form accepted
for payment pursuant to the U.S. Offer will be made by deposit of the purchase
prices with the U.S. Receiving Agent or the Mexican Receiving Agent, as the case
may be, which will act as your agent for the purpose of receiving payments from
us and transmitting such payments to you. Payment for GDSs tendered by
book-entry transfer will be made by crediting the account of the nominee holding
the GDSs on your behalf with The Depositary Trust Company. In all cases, payment
for Securities accepted for payment pursuant to the U.S. Offer will be made only
after timely receipt by the U.S. Receiving Agent or the Mexican Receiving Agent,
as the case may be, of all the documents required to effect a tender, duly
signed and executed by you or your nominee. For more information regarding
acceptance of tendered Securities for payment, see the discussion under the
caption "The U.S. Offer -- Acceptance for payment."
DOES EMBOTELLADOR HM HAVE THE FINANCIAL RESOURCES TO MAKE PAYMENT?
PBG intends to issue commercial paper in an amount of up to $1.2 billion
prior to the expiration date of the Offers. The commercial paper will bear
interest at a rate to be determined immediately prior to or on the date of
issuance. The proceeds of this issuance will be used to finance the Offers and
to refinance a portion of the indebtedness of Gemex following the consummation
of the Offers. As support for the commercial paper, PBG has entered into a
bridge revolving credit facility with Salomon Smith Barney Inc., Credit Suisse
First Boston Corporation and Deutsche Bank Securities Inc., as joint lead
arrangers, Citibank N.A., Credit Suisse First Boston, Cayman Islands Branch and
Deutsche Bank AG New York Branch, as joint syndication agents, and certain
lenders specified in the bridge revolving credit facility agreement, to provide
up to $1.2 billion. The bridge revolving credit facility is guaranteed by BG
LLC. Borrowings under the bridge revolving credit facility may be repaid and
reborrowed until April 30, 2003, when the term of the bridge revolving credit
facility expires. Borrowings will bear interest, at the option of PBG, at the
base rate (i.e., prime rate) of Credit Suisse First Boston or LIBOR plus an
applicable margin determined by reference to PBG's credit rating. The bridge
revolving credit facility is unsecured. PBG does not anticipate borrowing under
the bridge revolving credit facility unless and to the extent that it does not
issue commercial paper as described above.
PBG, through BG LLC, will provide us with the funds raised by it to
purchase all the Securities validly tendered and not withdrawn in the Offers.
Any remaining funds necessary to consummate the Offers will be provided by BG
LLC from available cash or borrowings utilizing existing credit facilities of BG
LLC.
3
However, the Offers are not conditioned upon the receipt by PBG of the
proceeds of either such financing or the advance of such funds to BG LLC or
Embotellador HM. PBG expects to repay the commercial paper and/or the bridge
revolving credit facility, as the case may be, with the funds provided by BG LLC
from proceeds of a private placement of debt securities of BG LLC to be
completed after the consummation of the Offers. Up to $1.0 billion of debt
securities are expected to be guaranteed by PepsiCo.
IS THE FINANCIAL CONDITION OF EMBOTELLADOR HM RELEVANT TO MY DECISION TO TENDER
IN THE OFFER?
Because the form of payment consists solely of cash for which we have
already arranged financing and because this U.S. Offer is not conditioned on our
ability to obtain financing, we do not think our financial condition is relevant
to your decision whether to tender in this U.S. Offer.
WHY IS THERE A SEPARATE MEXICAN OFFER?
Gemex is a variable stock corporation organized under the laws of Mexico
whose Shares and CPOs are registered and traded in Mexico and whose GDSs are
registered and traded in the United States. Gemex is subject to Mexico's General
Rules Applicable to Disclosable Stock Acquisitions and Public Tender Offers.
These rules provide that any person or group that, directly or indirectly, seeks
to acquire control of a company whose securities are registered with the
Securities Registry of the CNBV, as is the case with Gemex, must do so in
compliance with prescribed tender offer procedures. In addition, Gemex has
security holders in these two countries, including its two principal security
holders, one of which, Mr. Molina, is an individual who is a citizen and a
resident of Mexico, and the other, PepsiCo, is a North Carolina corporation.
Under these circumstances we are required to have two separate offers in the
United States and Mexico.
The terms and conditions of the two Offers are the same in all material
respects. While we intend to make the offer periods and settlement dates for the
Mexican Offer and for this U.S. Offer the same, it is possible that settlement
dates will be different due to requirements of applicable law and/or market
practice. There are no material advantages or disadvantages for tendering Shares
and CPOs in the Mexican Offer compared to tendering in the U.S. Offer.
WHO CAN PARTICIPATE IN THE U.S. OFFER?
Holders of GDSs must tender their GDSs in the U.S. Offer. Holders of Shares
and CPOs who are not Mexican residents may tender their Shares and CPOs into
either the U.S. Offer or the Mexican Offer. Mexican residents must tender their
Shares and CPOs into the Mexican Offer. For more information, please see the
section of this U.S. Offer captioned "The U.S. Offer -- Terms of this U.S.
Offer; Expiration Date."
WHO CAN PARTICIPATE IN THE MEXICAN OFFER?
All holders may tender their Shares and CPOs in the Mexican Offer. Holders
of Shares and CPOs who are not Mexican residents may tender their Shares and
CPOs into either the Mexican Offer or the U.S. Offer, but cannot tender their
Shares and CPOs into both the U.S. Offer and the Mexican Offer. If you hold
Shares and/or CPOs and you wish to participate in the Mexican Offer rather than
in the U.S. Offer, you should follow the instructions regarding the procedures
for tendering your Shares or CPOs into the Mexican Offer as set forth in the
Mexican Offer to Purchase, a description of which is enclosed as Annex II to
this U.S. Offer to Purchase. For more information, please see the section of
this U.S. Offer captioned "The U.S. Offer -- Terms of this U.S. Offer;
Expiration Date."
WHAT HAPPENS IF I HOLD GDSS AND I WANT TO PARTICIPATE IN THE MEXICAN OFFER?
Holders of GDSs cannot tender GDSs directly in the Mexican Offer. If you
hold GDSs and you wish to participate in the Mexican Offer, you should contact
The Bank of New York, the depositary for the GDSs (the "Depositary"), at 101
Barclay Street, New York, New York, 10286, in order to convert your
4
GDSs into CPOs, which may be tendered directly in the Mexican Offer. You will
have to pay a fee of $5.00 for each 100 GDSs converted. For more information,
please see the section of this U.S. Offer captioned "The U.S. Offer -- Terms of
this U.S. Offer; Expiration Date."
HOW LONG DO I HAVE TO DECIDE WHETHER TO TENDER IN THIS U.S. OFFER?
The U.S. Offer will expire at 5:00 p.m., New York City time (4:00 p.m.,
Mexico City time), on November 5, 2002, and you may tender your Securities which
are subject to this U.S. Offer until such expiration date, unless the U.S. Offer
is extended, in which case you will have until the new expiration date to tender
your Securities. Please be aware that if your Securities are held by a broker,
bank or other custodian, they may require advance notification before the
expiration date. For more information, please see the section of this U.S. Offer
captioned "The U.S. Offer -- Terms of this U.S. Offer; Expiration Date."
CAN THIS U.S. OFFER BE EXTENDED AND UNDER WHAT CIRCUMSTANCES?
We may extend the U.S. Offer when we are required to do so by applicable
laws and regulations. Under the Molina Agreement to Tender and the PepsiCo
Agreement to Tender, if on or prior to the initial expiration date the
conditions to either of the Offers set forth in the U.S. Offer under the caption
"The U.S. Offer -- Certain conditions to the U.S. Offer" and in the Mexican
Offer are satisfied, we may extend the expiration date of the Offers for a
period of not more than five business days after such initial expiration date,
solely to increase the number of Securities to be tendered in the Offers. If, on
the other hand, the conditions to either of the Offers are not satisfied or
waived by us on or prior to the initial expiration date, we are required to
extend the Offers until all such conditions have been satisfied or waived, but
not more than ten business days after the initial expiration date. In the event
that the conditions to either of the Offers are still not satisfied or waived by
us, we have the right, at our sole discretion, to terminate the Offers after
such ten business days extension has expired or to further extend the Offers for
an additional ten business days. Under the Molina Agreement to Tender and the
PepsiCo Agreement to Tender, an extension of the Offers for any other reason or
under any other circumstances requires the consent of Mr. Molina and PepsiCo,
respectively, unless such extension is required by applicable laws and
regulations. For more information regarding an extension of the U.S. Offer see
the discussion under the caption "The U.S. Offer -- Extension of tender period,
amendment and termination."
HOW WILL I BE NOTIFIED IF THIS U.S. OFFER IS EXTENDED?
If we extend the U.S. Offer, we will inform the Information Agent and the
U.S. Dealer Manager of that fact and will make a public announcement of the
extension by means of a press release to the Dow Jones News service, not later
than 9:00 a.m., New York City time, on the U.S. business day after the day on
which the U.S. Offer was scheduled to expire. Any notice regarding the extension
of the Mexican Offer will be given in accordance with Mexican regulations. For
more information regarding an extension of the U.S. Offer, see the discussion
under the caption "The U.S. Offer -- Extension of tender period, amendment and
termination."
WHAT ARE THE CONDITIONS TO THE U.S. OFFER?
We will not be required to accept Securities 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
PepsiCo Agreement to Tender 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. Molina and his
affiliates identified in the Molina Agreement to Tender 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
5
set forth 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.
WHAT ARE THE CONDITIONS TO THE MEXICAN OFFER?
The Mexican Offer is subject to substantially similar conditions as the
U.S. Offer.
I HOLD CERTIFICATES REPRESENTING GEMEX GDSS. HOW DO I PARTICIPATE IN THIS U.S.
OFFER?
If you hold GDRs representing GDSs, complete and sign the GDS Letter of
Transmittal and send it, together with the GDRs evidencing your GDSs and any
other required documents, to the U.S. Receiving Agent at one of the addresses
set forth on the back cover of this U.S. Offer to Purchase before the expiration
of this U.S. Offer. The GDS Letter of Transmittal is enclosed with this U.S.
Offer to Purchase and is also available from the Information Agent. Do NOT send
your GDRs to us, PBG, BG LLC, Gemex, the Mexican Receiving Agent, the Mexican
Dealer Manager, the U.S. Dealer Manager or the Information Agent. For more
information about the procedure for tendering GDSs in the U.S. Offer, see the
discussion under the caption "The U.S. Offer -- Procedure for tendering in the
U.S. Offer -- Holders of GDSs."
I HOLD GEMEX GDSS IN BOOK-ENTRY FORM. HOW DO I PARTICIPATE IN THIS U.S. OFFER?
If you hold Gemex GDSs in book-entry form, instruct your broker or
custodian to arrange, before the expiration date of this U.S. Offer, for the
book-entry transfer of your GDSs into the U.S. Receiving Agent's account at The
Depository Trust Company, commonly known as DTC, and to deliver an agent's
message to the U.S. Receiving Agent via DTC's confirmation system confirming
that you have received and agree to be bound by the terms of the U.S. Offer. For
more information about the procedures for tendering GDSs in the U.S. Offer, see
the discussion under the caption "The U.S. Offer -- Procedure for tendering in
the U.S. Offer -- Holders of GDSs."
WHAT HAPPENS IF I AM NOT ABLE TO PROVIDE THE U.S. RECEIVING AGENT WITH ALL THE
DOCUMENTS REQUIRED FOR THE TENDER OF GDSS?
If you cannot provide the U.S. Receiving Agent with all required documents
prior to the expiration date of the U.S. Offer, you may obtain additional time
to do so by submitting, prior to such expiration date, a Notice of Guaranteed
Delivery to the U.S. Receiving Agent, which must be certified by an eligible
guarantor institution, guaranteeing that all required documents for a valid
tender of your GDSs will be received by the U.S. Receiving Agent within three
New York Stock Exchange, or NYSE, trading days after the U.S. Receiving Agent
has received your Notice of Guaranteed Delivery. For more information about the
procedures for tendering GDSs in the U.S. Offer, see the discussion under the
caption "The U.S. Offer -- Procedure for tendering in the U.S. Offer -- Holders
of GDSs."
I AM A U.S. PERSON AND I HOLD SHARES AND CPOS OF GEMEX. HOW DO I PARTICIPATE IN
THE U.S. OFFER?
If you are a U.S. person and either a record holder or beneficial owner of
Shares or CPOs, and you wish to tender your Shares or CPOs in the U.S. Offer,
you must do so by book-entry transfer. You will not be able to tender in the
U.S. Offer any Shares in certificated form. If you hold Shares in certificated
form and you wish to participate in the U.S. Offer you need to promptly contact
a broker, dealer, bank, trust company, financial institution or other nominee
who is a participant in the book-entry transfer system of Indeval and arrange to
have such a nominee hold the Shares on your behalf in book-entry form.
In order for a book-entry transfer to constitute a valid tender of your
Shares and CPOs in the U.S. Offer, the Shares and CPOs must be tendered by your
nominee who is an Indeval participant into the account of the Mexican Receiving
Agent with Indeval and the Mexican Receiving Agent must receive a properly
completed and duly executed Acceptance Letter from the Indeval participant who
tendered your Shares and CPOs into its account prior to the expiration date of
the U.S. Offer. Since this procedure is identical to that by which other Gemex
security holders participate in the Mexican Offer, such nominee
6
may wish to refer to the instructions for tendering into the Mexican Offer
attached as Annex II to this U.S. Offer to Purchase.
For more information about the procedure for tendering Shares and CPOs in
the U.S. Offer, see the discussion under the caption "The U.S.
Offer -- Procedure for tendering in the U.S. Offer -- Holders of Shares and
CPOs."
HOW DO I WITHDRAW PREVIOUSLY TENDERED SECURITIES?
To withdraw Securities previously tendered, you or your nominee must
deliver a written notice of withdrawal, or a facsimile of one, with the required
information to the U.S. Receiving Agent or instruct your broker or other nominee
to deliver such notice of withdrawal to the Mexican Receiving Agent, as the case
may be, while you still have the right to withdraw the Securities. For more
information regarding withdrawal rights and procedures, see the discussion under
the caption "The U.S. Offer -- Withdrawal rights."
UNTIL WHAT TIME CAN I WITHDRAW PREVIOUSLY TENDERED SECURITIES?
You can withdraw tendered Securities at any time until the U.S. Offer has
expired and, if we have not by December 6, 2002 agreed to accept your Securities
for payment, you can withdraw them at any time after such time until we accept
such Securities for payment. For more information regarding withdrawal rights
and procedures, see the discussion under the caption "The U.S.
Offer -- Withdrawal rights."
WILL GEMEX CONTINUE AS A PUBLIC COMPANY?
Following the consummation of the Offers, we intend to cause Gemex to
deregister its Shares and CPOs from the Registro Nacional de Valores, or "RNV,"
the Mexican National Securities Registry, to delist its Shares and CPOs from the
Mexican Stock Exchange and to cease being subject to the reporting requirements
applicable to publicly traded companies in Mexico. Following the consummation of
the Offers, we also intend to cause Gemex to delist the GDSs from The New York
Stock Exchange, which will result in the de-registration of the GDSs and the
underlying CPOs, Shares, D Shares and L Shares under Section 12(b) of the
Exchange Act. In the event that, following the consummation of the Offers, there
will still be any Securities outstanding other than those owned by us, then, to
the extent required under Mexican regulations, prior to the deregistration of
the Shares and CPOs from the RNV and their delisting from the Mexican Stock
Exchange, we will deposit in a trust for a period of two years the funds, in
Mexican pesos, that would be required to purchase all the Shares and CPOs
outstanding after the Offers (assuming conversion of any remaining GDSs into
CPOs), other than those owned by us, at the same Mexican peso price paid in the
Mexican Offer. Immediately after the de-listing of Gemex's Shares and CPOs from
the Mexican Stock Exchange, we intend to cause Gemex to carry out a reverse
stock split in order to eliminate for cash, at the same Mexican peso price paid
in the Mexican Offer, the outstanding Securities held by any remaining security
holders other than us in accordance with Mexican law. However, there can be no
assurance as to when or if such steps will occur. For more information, see the
discussion under the caption "Special Factors -- Effect of the Offers."
DO YOU, BG LLC AND PBG SUPPORT THE OFFERS?
Yes. We, BG LLC and PBG believe that the Offers and reverse stock split are
fair to the security holders of Gemex, other than Mr. Molina, PepsiCo and their
respective affiliates. This belief, however, should not be construed as a
recommendation to security holders of Gemex to tender in the Offers. For more
information, see the discussion under the caption "Special Factors -- Position
of PBG, BG LLC and Embotellador HM regarding fairness of the Offers and the
reverse stock split."
7
DOES GEMEX SUPPORT THE OFFERS?
Yes. According to Gemex's solicitation/recommendation statement on Schedule
14D-9, at a meeting of the Board of Directors of Gemex on October 3, 2002, the
Board, by a unanimous vote of all directors and alternate directors present,
which included a majority of the directors of Gemex who are not Gemex employees,
determined that the Offers are fair to the security holders of Gemex, other than
PepsiCo, Mr. Molina and their respective affiliates, and determined to recommend
to the security holders of Gemex, other than Mr. Molina, PepsiCo and their
respective affiliates, that they tender their Securities in the Offers. For more
information, see the discussion under the caption "Special
Factors -- Recommendation of the Gemex Board."
IF I DECIDE NOT TO TENDER, HOW WILL THE U.S. OFFER AFFECT MY SECURITIES?
The purchase of Securities pursuant to the U.S. Offer will substantially
reduce the number of Gemex security holders, and the number of Securities which
are still in the hands of the public after the consummation of the Offers may be
so small that there will no longer be an active public trading market (or,
possibly, there may not be any public trading market) for the Securities. We
also intend to take the actions described in the answer to the question above on
whether Gemex will continue as a public company, although as noted above, the
timing of such actions is not certain. For more information, see the discussion
under the caption "Special Factors -- Effect of the Offers."
WHAT ARE THE TAX CONSEQUENCES OF TENDERING MY SECURITIES IN THE U.S. OFFER?
The sale of Securities for cash pursuant to the U.S. Offer will be a
taxable transaction for United States federal income tax purposes and possibly
for state, local and foreign income tax purposes as well. In general, a U.S.
Holder (as defined under the caption "Certain tax considerations") who sells
Securities pursuant to the U.S. Offer will recognize gain or loss for United
States federal income tax purposes equal to the difference, if any, between the
amount of cash received and the holder's adjusted tax basis in the Securities
sold pursuant to the U.S. Offer. Gain or loss will be determined separately for
each block of Securities (i.e., Securities acquired at the same cost in a single
transaction) tendered pursuant to the U.S. Offer.
Payments for Shares and CPOs (but not GDSs) purchased in the Offers will be
subject in all cases to a 5% Mexican withholding tax on the gross proceeds of
the sale. See "The U.S. Offer -- Certain tax considerations -- Material Mexican
income tax consequences" for a discussion of this withholding tax and
instructions for a holder to obtain a refund under specified circumstances.
For a discussion of Mexican tax consequences and further discussion of U.S.
tax consequences to U.S. security holders tendering their Securities in the U.S.
Offer, see under the caption "The U.S. Offer -- Certain tax considerations."
WHAT IS THE MARKET VALUE OF MY SHARES, CPOS AND GDSS AS OF A RECENT DATE?
The last trade of Shares reported on the Mexican Stock Exchange occurred on
May 4, 2001. The closing price of the Shares at that time was Ps.5.00 per Share.
On May 7, 2002, the last trading day before PBG announced this U.S. Offer,
the closing price of CPOs reported by Bloomberg was Ps.14.90 per CPO. On October
4, 2002, the last trading day before we commenced this U.S. Offer, the closing
price of CPOs reported by Bloomberg was Ps.17.00 per CPO.
On May 7, 2002, the last trading day before PBG announced this U.S. Offer,
the closing price of GDSs reported by Bloomberg was $9.20, or PS.87.30, per GDS,
using the exchange rate of Ps.9.4890 per US$1.00 reported by Reuters and
Bloomberg on their FXBENCH Page as the New York closing rate on May 7, 2002. On
October 4, 2002, the last trading day before we commenced this U.S. Offer, the
closing price of GDSs reported on the NYSE was $10.08, or Ps.102.80, per GDS,
using the exchange rate of Ps.10.1985 per US$1.00 reported by Reuters and
Bloomberg on their FXBENCH Page as the New York closing rate on October 4, 2002.
8
You should obtain a recent quotation for Shares, CPOs and GDSs in deciding
whether to tender your Shares, CPOs and/or GDSs. See further under the caption
"Information Regarding Gemex -- Price range of Securities".
WHO CAN I TALK TO IF I HAVE QUESTIONS ABOUT THE U.S. OFFER?
If you have any questions about the procedure for tendering Shares and CPOs
into the U.S. Offer, please contact the Information Agent at its address as it
appears on the back cover of this U.S. Offer to Purchase. If you have any
questions about the procedure for tendering GDSs into the U.S. Offer, please
contact the Information Agent or the U.S. Receiving Agent at their respective
addresses as they appear on the back cover of this U.S. Offer to Purchase.
THIS U.S. OFFER TO PURCHASE AND THE RELATED GDS LETTER OF TRANSMITTAL
CONTAIN IMPORTANT INFORMATION AND SHOULD BE READ IN THEIR ENTIRETY BEFORE ANY
DECISION IS MADE WITH RESPECT TO THIS U.S. OFFER.
SPECIAL FACTORS
BACKGROUND OF THE OFFERS
Gemex is a Mexican holding company that, through its bottling and
distribution subsidiaries, produces, sells and distributes a variety of soft
drink products under the Pepsi-Cola, Pepsi Light, Pepsi Max, Pepsi Limon,
Mirinda, 7UP, Diet 7UP, Kas, Mountain Dew, Power Punch and Manzanita Sol
trademarks pursuant to exclusive franchise and bottling arrangements with
PepsiCo and various affiliates of PepsiCo. Gemex also produces, sells and
distributes a variety of non-PepsiCo products such as soft drinks under the
trademark Squirt and purified and mineral water under the trademarks Electropura
and Garci Crespo. According to publicly available information concerning Gemex
filed with the SEC, including its Annual Report, Gemex is currently the largest
bottler outside the United States of PepsiCo's soft drink products based on
sales volume. Through its ownership in the Electropura brand, Gemex is also the
largest producer of bottled and jug water in Mexico.
In October 1995, Gemex entered into a master joint venture agreement with
PepsiCo, certain of PepsiCo's subsidiaries and Mr. Enrique C. Molina Sobrino,
Gemex's Chairman of the Board, Chief Executive Officer and largest security
holder. Under the master joint venture agreement, PepsiCo designated Gemex as
PepsiCo's exclusive anchor bottler in Mexico and granted Gemex the rights to
develop and purchase soft drink bottling franchises within designated
territories in Mexico. In addition, PepsiCo contributed to Gemex approximately
$154 million in cash, its ownership in its wholly-owned bottling operations in
Central Mexico and its minority interest in certain bottling subsidiaries of
Gemex in Southeast Mexico, to become a major security holder of Gemex, holding
together with its affiliates, directly or indirectly as of the date of this U.S.
Offer, approximately 34.4% of the outstanding capital stock of Gemex.
Under the terms of the master joint venture agreement, Mr. Molina and
PepsiCo formed the Molina/PepsiCo Trust, into which Mr. Molina deposited a
portion of his CPOs and into which PepsiCo and its subsidiaries deposited all of
their Shares and CPOs. The Molina/PepsiCo Trust currently owns approximately
63.4% of the outstanding Shares, including Shares represented by CPOs and GDSs.
It was agreed by the parties to the joint venture agreement that during Phase I
of the agreement, commencing on October 6, 1995 and ending on the earlier of
December 31, 2002, Mr. Molina's retirement, disability or death, or the
occurrence of certain events, including Mr. Molina's withdrawal of any of his
Shares or CPOs from the Molina/PepsiCo Trust, Mr. Molina will have overall
management control of Gemex and the right to direct the voting of all Shares and
CPOs in the Molina/PepsiCo Trust, including Shares and CPOs deposited in the
Molina/PepsiCo Trust by PepsiCo and its subsidiaries.
During Phase I of the agreement, PepsiCo does not have the right to
withdraw any Shares or CPOs from the Molina/PepsiCo Trust. As a result,
according to information provided in Gemex's Annual Report
9
and an amendment to Mr. Molina's Schedule 13D filed with the SEC on September
18, 2002, Mr. Molina currently (i) beneficially owns approximately 74.5% of the
capital stock of Gemex as of September 10, 2002, including (A) Shares and CPOs
which were deposited by PepsiCo and its subsidiaries in the Molina/PepsiCo
Trust, and (B) immediately exercisable options held by Mr. Molina to buy series
T shares of Gemex which are convertible into CPOs, (ii) controls more than 50%
of the voting power of Gemex, including Shares and CPOs of PepsiCo and its
subsidiaries, and (iii) is able to appoint a majority of the directors of Gemex
and to determine the outcome of substantially all actions requiring shareholder
approval. However, during Phase I PepsiCo has the right to approve certain
management decisions.
During Phase II of the joint venture agreement scheduled to commence on
January 1, 2003, and thereafter, PepsiCo will have the right to direct the
voting of the Shares and CPOs held by the Molina/ PepsiCo Trust, including those
deposited by Mr. Molina, thereby giving PepsiCo beneficial ownership of
approximately 45.8% of the outstanding capital stock and control of over 50% of
the voting power of Gemex. However, during the first three years of Phase II and
for so long as Mr. Molina owns a minimum number of Gemex's Securities, Mr.
Molina will have the right to approve certain management decisions.
Without giving effect to PepsiCo's Shares and CPOs deposited into the
Molina/PepsiCo Trust and Mr. Molina's options to buy series T shares of Gemex,
Mr. Molina owned, directly or indirectly, approximately 40.0% of the total
outstanding capital stock of Gemex, as of September 10, 2002.
PBG was incorporated in Delaware in January 1999 as a wholly-owned
subsidiary of PepsiCo to effect the separation of most of PepsiCo's
company-owned bottling businesses. PBG became a publicly-traded company on March
31, 1999. PBG is the world's largest manufacturer, seller and distributor of
Pepsi-Cola beverages and has the exclusive right to manufacture, sell and
distribute Pepsi-Cola beverages in all or a portion of 41 U.S. states, the
District of Columbia, eight Canadian provinces, Spain, Greece, Russia and
Turkey. In some of its territories, PBG also has the right to manufacture, sell
and distribute soft drink products of other companies, including Dr. Pepper and
All Sport in the United States. PBG operates its business through BG LLC, its
principal operating subsidiary, in which PBG owns approximately 93% of the
equity interest and PepsiCo owns approximately 7%. As of August 9, 2002, PepsiCo
beneficially owned approximately 37.6% of the outstanding PBG common stock and
100% of the outstanding PBG Class B common stock, together representing
approximately 42.7% of the voting power of all classes of PBG's voting stock.
Neither we nor PBG or BG LLC currently own any capital stock of Gemex.
The purpose of the Offers is to acquire 100% of the capital stock of Gemex
through an affiliate of PBG, making Gemex an indirect subsidiary of PBG, and to
obtain immediate control over the voting power of securities of Gemex.
In a number of meetings in February and March 2001 between representatives
of PBG and PepsiCo, PepsiCo raised the possible acquisition by PBG of several
foreign bottlers of PepsiCo products, including Gemex. Those acquisitions would
be consistent with PepsiCo's business strategy not to have direct ownership and
management control of the bottling companies that are the franchise holders of
the PepsiCo trademarks and products and rather to manage the bottling business
through a limited number of independent anchor bottler companies. During this
period, PBG presented to PepsiCo its preliminary financial analysis of Gemex
based on publicly available information, and PBG requested additional financial
information from PepsiCo.
In May 2001, a representative of PBG met with Mr. Molina and an advisor to
express PBG's interest in a possible transaction in which PBG would acquire
control of Gemex. Discussions and analysis by PBG of a possible transaction
ensued in the following months. In November 2001 PBG met again with Mr. Molina
and an advisor to reconfirm PBG's interest in a transaction. During the first
two weeks of December 2001, a management team from PepsiCo and PBG met in Mexico
City with Mr. Molina and Gemex management to gain an understanding of the
business.
Based on information available to it in January 2002, PBG determined a
proposed gross enterprise value of Gemex and its business. Based on that
determination, on January 29, 2002, representatives of PBG preliminarily
indicated to Mr. Molina, in his capacity as the controlling security holder of
Gemex,
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PBG's interest in purchasing all the outstanding capital stock of Gemex at a
price per share based on a gross enterprise value of Gemex of approximately
Ps.10.1 billion, subject to adjustments. In mid-February 2002, PBG indicated
that it would be willing to increase its proposed gross enterprise value to
approximately Ps.10.5 billion.
During February and March 2002, Mr. Molina, an advisor and representatives
of PBG continued to discuss PBG's interest in a potential acquisition of Gemex.
In mid-April PBG notified Mr. Molina that it would be willing to increase its
proposed gross enterprise value of Gemex to approximately Ps.10.9 billion. In
late April and early May 2002, PBG and Mr. Molina continued their earlier
discussions. During the January to May 2002 period, PBG made the same
indications of interest to PepsiCo contemporaneously with doing so to Mr. Molina
and engaged in discussions with PepsiCo with respect thereto. During the same
time period, PepsiCo and PBG also discussed the franchisor/franchisee
arrangements that would be put in place with Gemex following the completion of
the Offers. As a result of these discussions, PepsiCo and PBG reached a general
understanding that such arrangements would remain substantially the same as
those in place prior to the completion of the Offers, except that PepsiCo agreed
to increase its marketing support to Gemex in an amount equal to Gemex's
scheduled concentrate price increase.
On May 3, 2002, PBG and Gemex executed a written confidentiality agreement.
In the first week of May 2002, PBG reached a non-binding agreement with Mr.
Molina and PepsiCo regarding the terms of a possible acquisition of all the
outstanding capital stock of Gemex by PBG, which terms were reflected in a term
sheet, dated May 7, 2002. The term sheet provided that the gross enterprise
value of Gemex for the purpose of the Offers would be approximately Ps.11.9
billion, subject to certain adjustments for working capital and indebtedness
levels and liabilities identified during a due diligence review. It also
provided that Mr. Molina would agree to tender in the Offers all the Securities
owned by him, directly or indirectly, not including Shares and CPOs deposited by
PepsiCo and its subsidiaries in the Molina/PepsiCo Trust. After the close of
business on May 7, 2002, PBG issued a press release announcing the non-binding
agreement to acquire Gemex and Gemex issued a press release announcing that it
had been informed of the agreement.
In light of changes in Mexico's tender offer regulations and tax laws, it
was determined by PBG that the preferred form of transaction would be a tender
offer by PBG, through an acquisition subsidiary, for all of the outstanding
capital stock of Gemex. Gemex, as a company organized under the laws of Mexico,
is subject to the General Rules Applicable to Disclosable Stock Acquisitions and
Public Tender Offers. These rules provide that any person or group that,
directly or indirectly, seeks to acquire control of a company whose securities
are registered with the CNBV must do so in compliance with prescribed tender
offer procedures. In particular, these rules provide that such tender offer must
be for 100% of the outstanding capital stock of the issuer. In addition, Mexican
tax laws provide certain tax benefits to individuals who sell capital stock
owned by them in a tender offer. Since Gemex's capital stock is listed for
trading both in the United States and in Mexico, PBG determined that dual and
simultaneous tender offers in Mexico and in the U.S. for all of the capital
stock of Gemex would be necessary.
During June and July 2002, PBG and its advisors conducted legal and
business due diligence of Gemex in Mexico and began preparing the documentation
required to effect the Offer. In June 2002, BG LLC formed Embotellador HM, to
purchase the Securities in the Offers.
Following the completion of the due diligence review in July 2002, in late
July and early August 2002 PBG discussed with Molina and PepsiCo possible
adjustments to the enterprise value of Gemex provided for in the term sheet. On
August 13, 2002, PBG, Mr. Molina and PepsiCo agreed on an enterprise value of
approximately Ps.11.6 billion, subject to approval of the Board of Directors of
PBG. In addition, as it is strategically important that we, a subsidiary of PBG,
one of PepsiCo's anchor bottlers, purchase Gemex, PepsiCo has agreed to make a
payment of Ps.172.7 million to us in order to facilitate the purchase of Gemex
and ensure a smooth ownership transition of Gemex. This payment will be made
before the completion of the Offers. On August 13, 2002, PBG issued a press
release announcing its agreement with Mr. Molina and PepsiCo and Gemex issued a
press release announcing that it had been informed of that agreement.
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On September 5, 2002, the Board of Directors of PBG held a meeting to
consider the Offers. At the meeting the Board received a description of the
transactions contemplated by the Offers and the related agreements. It was
determined that PBG believes that the Offers and the reverse stock split are
fair to the security holders of Gemex other than PepsiCo, Mr. Molina and their
respective affiliates. At the meeting, the Board of Directors of PBG also
reviewed a fairness opinion provided to it by Salomon Smith Barney Inc., PBG's
financial advisor, regarding the fairness, from a financial point of view, to
PBG of the aggregate consideration to be paid by PBG in the Offers, and received
the recommendation of the Audit and Affiliated Transactions Committee of PBG to
approve the PepsiCo Agreement to Tender and the purchase of PepsiCo's Securities
pursuant to the Offers. The Board of Directors of PBG approved the Offers and
the related agreements. We and BG LLC also believe that the Offers and reverse
stock split are fair to the security holders of Gemex other than PepsiCo, Mr.
Molina and their respective affiliates.
On October 2 and 3, 2002, PBG and Mr. Molina had discussions and reached an
understanding on the amount of net debt of Gemex that would be used for
calculating the equity value of Gemex, resulting in offer prices of Ps.5.91 per
Share, Ps.17.73 per CPO and Ps.106.38 per GDS.
According to Gemex's solicitation/recommendation statement on Schedule
14D-9, at a meeting held on October 3, 2002, the Board of Directors of Gemex was
presented a description of the terms of the Offers. In addition, Merrill Lynch,
Pierce, Fenner & Smith Incorporated ("Merrill Lynch"), an unaffiliated financial
advisor to the Company, presented a financial analysis of the terms of the
Offers. Merrill Lynch also delivered its opinion to the Gemex Board to the
effect that, as of October 3, 2002, and based upon and subject to the factors
and assumptions set forth in the opinion, the consideration to be received by
the holders of the Securities, other than PepsiCo, Mr. Molina and their
respective affiliates, was fair from a financial point of view to such holders.
According to Gemex's solicitation/recommendation statement on Schedule
14D-9, at its October 3, 2002 meeting, the Gemex Board, by a unanimous vote of
all directors and alternate directors present, which included a majority of the
directors of Gemex who are not Gemex employees, determined that the Offers are
fair to the holders of Securities, other than PepsiCo, Mr. Molina and their
respective affiliates, and determined to recommend that the holders of
Securities, other than PepsiCo, Mr. Molina and their respective affiliates,
accept the Offers and tender their Securities in the Offers.
On October 4, 2002, the Molina Agreement to Tender, the PepsiCo Agreement
to Tender and the escrow arrangement with Mr. Molina were all completed and
executed by the parties thereto. The commencement of the Offers was announced
promptly thereafter.
EFFECT OF THE OFFERS
Trading and information. We are an indirect subsidiary of BG LLC, the
principal operating subsidiary of PBG. As of August 9, 2002, approximately 42.7%
of the voting capital stock of PBG was owned by PepsiCo. According to Gemex's
Annual Report, PepsiCo also owned as of June 26, 2002, directly or indirectly,
approximately 55.8% of the voting capital stock and approximately 34.4% of the
total capital stock of Gemex. As a result, we may be deemed to be an affiliate
of Gemex under the Exchange Act and the Offers commenced by us for all of the
Shares, CPOs and GDSs will constitute, if consummated, a "going-private
transaction" within the meaning of Rule 13e-3 promulgated under the Exchange
Act. Following the consummation of the U.S. Offer, we intend to cause Gemex to
delist the GDSs from the NYSE, which will result in the de-registration of the
GDSs and the underlying CPOs, Shares, D Shares and L Shares under Section 12(b)
of the Exchange Act. This de-registration would make certain provisions of the
Exchange Act, such as the requirements of Rule 13e-3 under the Exchange Act with
respect to "going private" transactions and the prohibition on personal loans to
directors and executive officers, no longer applicable to Gemex. Following the
consummation of the Mexican Offer, we also intend to cause Gemex to deregister
the Shares and CPOs from the RNV and to delist them from the Mexican Stock
Exchange and to cease being subject to the reporting requirements applicable to
publicly traded companies in Mexico. The consummation of the Offers will also
substantially reduce the number of security holders, and the number of Shares,
CPOs and GDSs which will still be in the hands of the public
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may be so small that there will no longer be an active public trading market
(or, possibly, there may not be any public trading market) for the Shares, CPOs
or the GDSs.
In the event that, following the consummation of the Offers, there will
still be any Securities outstanding other than those owned by us, then, to the
extent required under Mexican regulations, prior to the deregistration of the
Shares and CPOs from the RNV and their delisting from the Mexican Stock
Exchange, we will deposit in a trust for a period of two years the funds, in
Mexican pesos, that would be required to purchase all the Shares and CPOs
outstanding after the Offers (assuming conversion of any remaining GDSs into
CPOs), other than those owned by us, at the same Mexican peso prices paid in the
Mexican Offer. Immediately after the de-listing of Gemex's Shares and CPOs from
the Mexican Stock Exchange, we intend to cause Gemex to carry out a reverse
stock split in order to eliminate for cash, at the same Mexican peso price paid
in the Mexican Offer, the outstanding Securities held by any remaining security
holders other than us in accordance with Mexican law.
As soon as practicable following the consummation of the Offers and the
reverse stock split, PBG and BG LLC intend to cause us to merge with and into
Gemex, which will be the surviving entity of such merger. In addition, in
accordance with the Molina Agreement to Tender, upon the purchase of the
Securities pursuant to the Offers, Mr. Molina's employment agreement with Gemex
and all arrangements and understandings related to it will terminate, and upon
such termination Mr. Molina agrees to release Gemex and its affiliates from any
and all claims and liabilities arising from his employment with Gemex and/or its
subsidiaries. Under the Molina Agreement to Tender, we acknowledge that Mr.
Molina will be entitled to receive approximately Ps.141.1 million in full
satisfaction of his rights under Gemex's executive pension plan and all other
statutory and severance benefits following the termination of his employment
with Gemex and agree to cause the pension plan to remit such amount to Mr.
Molina in accordance with the terms of the pension plan. We also intend to cause
the election of new directors to Gemex's Board of Directors at a shareholders
meeting to be held promptly after the consummation of the Offers and to appoint
certain new officers to Gemex.
Benefits and detriments. The Offers provide security holders of Gemex with
the following benefits:
- The cash consideration payable per CPO and per GDSs in the Offers
represent premiums to the closing prices for the respective Securities on
May 7, 2002, the last trading day prior to public announcement of the
Offers and on October 4, 2002, the last trading day prior to the
commencement of the Offers;
- immediate liquidity for their shares without the usual transaction costs
associated with open market sales;
- Mexican tax laws provide certain tax benefits to individuals who sell
capital stock owned by them in a tender offer and in compliance with
Mexican law requirements; and
- the Offers will eliminate the risk to those security holders of a
possible future decline in Gemex's business or the market value of the
Securities.
However, there are also some detriments to selling security holders:
- security holders will cease to participate in any future growth of Gemex;
- security holders may incur taxable gain from the sale of the Securities
in either of the Offers; and
- the price per Security offered in the Offers may be lower than the market
price of the Securities immediately prior to the date the Offers are
consummated.
On the other hand, however, the consummation of the Offers is expected to
eliminate the public market for Gemex's Securities and security holders of Gemex
who choose not to tender in the Offers will be adversely affected by the
decreased liquidity, market float and public information about Gemex.
13
U.S. federal tax consequences. The tender of Securities in the U.S. Offer
may result in Mexican and U.S. federal tax consequences for the tendering
security holders. For a discussion regarding these consequences, see below under
the caption "The U.S. Offer -- Certain tax considerations".
RECOMMENDATION OF THE GEMEX BOARD
According to Gemex's solicitation/recommendation statement on Schedule
14D-9, at a meeting of the Board of Directors of Gemex on October 3, 2002,
Merrill Lynch delivered an opinion to the Board of Directors of Gemex, dated
October 3, 2002, to the effect that, as of that date and based upon and subject
to the factors and assumptions set forth in the opinion, the consideration to be
received by the holders of the Securities, other than PepsiCo, Mr. Molina and
their respective affiliates, was fair, from a financial point of view, to those
holders. After considering, and based upon the opinion of Merrill Lynch and the
other factors set forth in Gemex's solicitation/recommendation statement on
Schedule 14D-9, the Board of Directors of Gemex by a unanimous vote of all
directors and alternate directors present at its October 3, 2002 meeting, which
included a majority of the directors of Gemex who are not Gemex employees,
determined that the Offers are fair to security holders of Gemex, other than
PepsiCo, Mr. Molina and their respective affiliates, and determined to recommend
that the security holders of Gemex, other than PepsiCo, Mr. Molina and their
respective affiliates, accept the Offers and tender their Securities in the
Offers. The full text of Merrill Lynch's October 3, 2002 fairness opinion, which
sets forth the assumptions made, matters considered and limitations on the
review undertaken by Merrill Lynch, is attached as an exhibit to Gemex's
solicitation/recommendation statement on Schedule 14D-9, which is being mailed
to you herewith.
The Offers do not require approval by the security holders of Gemex. Under
Mexican law, there are no appraisal rights available for security holders of
Gemex.
POSITION OF PBG, BG LLC AND EMBOTELLADOR HM REGARDING FAIRNESS OF THE OFFERS AND
THE REVERSE STOCK SPLIT
Fairness to shareholders of PBG. Because of the relationship between
PepsiCo and PBG and between PepsiCo and Gemex, the Board of Directors of PBG
retained Salomon Smith Barney to render an opinion with respect to the fairness,
from a financial point of view, to PBG of the aggregate consideration to be paid
by PBG, through us, in the Offers. We, BG LLC and PBG believe that the
consideration to be paid pursuant to the Offers is fair to PBG and its
shareholders, other than PepsiCo and its affiliates. In addition, the Audit and
Affiliated Transactions Committee of the Board of Directors of PBG has approved
the purchase of the Securities held by PepsiCo and its affiliates, the form,
terms and conditions of the PepsiCo Agreement to Tender and the guarantee of up
to $1.0 billion expected to be provided by PepsiCo to BG LLC in connection with
the private placement of debt securities that BG LLC intends to consummate after
the completion of the Offers to repay PBG's $1.2 billion bridge loan and/or
commercial paper, as the case may be, as discussed under the caption "The U.S.
Offer -- Sources of funds."
Opinion of Salomon Smith Barney. Salomon Smith Barney was retained to act
as a financial advisor to PBG in connection with the Offers. On September 5,
2002, Salomon Smith Barney rendered an opinion to the PBG Board of Directors, to
the effect that, based upon and subject to the considerations and limitations
set forth in the opinion, its work described below and other factors deemed
relevant, as of that date, the aggregate consideration to be paid by PBG,
through us, pursuant to the Offers is fair, from a financial point of view, to
PBG.
THE FULL TEXT OF SALOMON SMITH BARNEY'S OPINION, WHICH SETS FORTH, AMONG
OTHER THINGS, THE ASSUMPTIONS MADE, GENERAL PROCEDURES FOLLOWED, MATTERS
CONSIDERED AND LIMITS ON THE REVIEW UNDERTAKEN, IS FILED AS EXHIBIT (c)(1) TO
THE SCHEDULE TO. THE SUMMARY OF SALOMON SMITH BARNEY'S OPINION SET FORTH BELOW
IS QUALIFIED IN ITS ENTIRETY BY REFERENCE TO THE FULL TEXT OF THE OPINION.
14
In arriving at its opinion, Salomon Smith Barney, among other things:
- reviewed drafts, dated August 15, 2002 and August 16, 2002, respectively,
of agreements of PepsiCo and Mr. Molina to tender their Gemex shares to
PBG pursuant to the Offers;
- held discussions with certain senior officers, directors and other
representatives and advisors of PBG and certain of its respective
affiliates concerning the businesses, operations and prospects of Gemex;
- examined certain publicly available business and financial information
relating to Gemex as well as certain financial forecasts and other
information and data for Gemex, which were provided to or otherwise
discussed with Salomon Smith Barney by the management of PBG;
- reviewed the financial terms of the Offers in relation to, among other
things: current and historical market prices and trading volumes of the
Securities; the historical and projected financial and operating data of
Gemex; and the capitalization and financial condition of Gemex;
- considered, to the extent publicly available, the financial terms of
certain other similar transactions recently effected that Salomon Smith
Barney considered relevant in evaluating the Offers;
- analyzed certain financial, stock market and other publicly available
information relating to the businesses of other companies whose
operations Salomon Smith Barney considered relevant in evaluating those
of Gemex; and
- conducted such other analyses and examinations and considered such other
information and financial, economic and market criteria as Salomon Smith
Barney deemed appropriate.
In rendering its opinion, Salomon Smith Barney assumed and relied, without
independent verification, upon the accuracy and completeness of all financial
and other information and data publicly available or furnished to or otherwise
reviewed by or discussed with it and have further relied upon the assurances of
the management of PBG that they are not aware of any facts that would make any
of such information inaccurate or misleading. With respect to financial
forecasts and other information and data provided to or otherwise reviewed by or
discussed with it, Salomon Smith Barney has been advised by the management of
PBG that such forecasts and other information and data were reasonably prepared
on bases reflecting the best currently available estimates and judgments of the
management of PBG as to the future financial performance of Gemex. Salomon Smith
Barney expressed no view with respect to such forecasts and other information
and data or the assumptions on which they were based. Salomon Smith Barney has
not made or been provided with an independent evaluation or appraisal of the
assets or liabilities (contingent or otherwise) of Gemex nor has Salomon Smith
Barney made any physical inspection of the properties or assets of Gemex.
Representatives of PBG have advised Salomon Smith Barney, and Salomon Smith
Barney has assumed, that, when finalized, the documents it reviewed in draft
form, as described above, will not vary materially from such drafts.
Salomon Smith Barney was not requested to consider, and its opinion does
not address, the relative merits of the Offers as compared to any alternative
business strategies that might exist for PBG or the effect of any other
transaction in which PBG and its affiliates might engage. Salomon Smith Barney's
opinion necessarily is based upon information available to it and financial,
stock market and other conditions and circumstances existing and disclosed to it
as of the date of its opinion.
SALOMON SMITH BARNEY'S ADVISORY SERVICES AND ITS OPINION EXPRESSED WERE
PROVIDED SOLELY FOR THE INFORMATION OF THE PBG BOARD OF DIRECTORS IN ITS
EVALUATION OF THE OFFERS FROM PBG'S STANDPOINT. IT DOES NOT ADDRESS IN ANY
RESPECT THE FAIRNESS OF THE OFFERS TO GEMEX SECURITY HOLDERS, NOR DOES IT
CONSTITUTE A RECOMMENDATION OF THE OFFERS TO ANY PERSON.
Financial Analysis of Salomon Smith Barney. Salomon Smith Barney made a
brief presentation to the PBG Board of Directors with respect to Gemex and the
Offers which summarized certain analyses of the value of Gemex utilizing three
methodologies: a comparable public companies analysis; a precedent transactions
analysis; and a discounted cash flow analysis.
15
A copy of Salomon Smith Barney's written presentation to the PBG Board of
Directors relating to its opinion has been filed as an exhibit to the Schedule
TO filed by PBG with the SEC and will be available for inspection and copying at
the principal executive offices of PBG during regular business hours by any
interested stockholder of PBG or stockholder representative who has been so
designated in writing and may be inspected and copied at, and obtained by mail
from, the SEC.
COMPARABLE PUBLIC COMPANIES ANALYSIS
Salomon Smith Barney compared financial, operating and stock market
information, and forecasted financial information for selected Latin American
publicly traded companies that Salomon Smith Barney deemed appropriate for
comparison with financial, operating and forecasted financial information for
Gemex. The selected comparable companies considered by Salomon Smith Barney
were:
- Embotelladora Andina,
- Grupo Continental, S.A.,
- Coca-Cola Femsa, and
- Panamco.
Salomon Smith Barney considered these companies appropriate for comparison
but noted that none of these companies has the same management, make up, size
and combination of businesses as Gemex.
For each of the selected comparable public companies, Salomon Smith Barney
derived and compared, among other things:
- the ratio of each company's firm value as of August 23, 2002, to
(a) its revenue for the twelve months ending June 30, 2002,
(b) its earnings before interest expense, taxes, depreciation and
amortization, or EBITDA, for the twelve months ending June 30, 2002,
(c) its earnings before interest expense and taxes, or EBIT, for the
twelve months ending June 30, 2002,
(d) its estimated revenues for 2002,
(e) its estimated EBITDA for 2002, and
(f) its estimated EBIT for 2002.
The forecasted financial information used by Salomon Smith Barney for the
selected comparable companies in the course of these analyses was based on
information published by equity research analysts employed by Salomon Smith
Barney and other investment banking firms. With respect to Gemex, the forecasted
financial information used by Salomon Smith Barney was based on information
provided by PBG. Calculations were made based on the closing price per share of
each company's common stock on August 23, 2002. In deriving ratios for the
selected comparable companies, Salomon Smith Barney made certain adjustments to
the relevant data to take into account certain unusual and nonrecurring items.
Firm value was calculated as the sum of the value of:
- all common shares assuming the exercise of all in-the-money options,
warrants and convertible securities, less the proceeds from such
exercise; plus
- indebtedness; plus
- minority interests; plus
- preferred stock; plus
16
- out-of-the-money convertible securities; minus
- investments in unconsolidated affiliates and cash.
Salomon Smith Barney focused on the calculated ratios of firm value to
estimated EBITDA and, based on this information and qualitative judgment,
derived a reference range of Ps.11.68 to Ps.18.32 for the implied equity value
per CPO (which term includes CPOs underlying GDSs).
PRECEDENT TRANSACTIONS ANALYSIS
Multiples paid. Salomon Smith Barney reviewed publicly available
information for four completed merger or acquisition transactions announced in
emerging markets since October 1998 involving public companies in the soft drink
bottling sector. For each precedent transaction, Salomon Smith Barney derived
and compared, among other things:
- the ratio of the firm value of the acquired company to
(a) the revenue of the acquired company,
(b) the EBIT of the acquired company, and
(c) the EBITDA of the acquired company,
in each case, for the last twelve-month period ending prior to the announcement
of the transaction for which financial results were available.
With respect to the financial information for the companies involved in the
precedent transactions, Salomon Smith Barney relied on information provided by
Securities Data Corporation as well as information available in public
documents. Securities Data Corporation compiles summaries of merger and
financing information published by certain investment banks, market research
firms and trade associations. Salomon Smith Barney calculated firm value as
described above. Salomon Smith Barney considered the following transactions in
evaluating the Offers:
[Download Table]
ANNOUNCEMENT DATE ACQUIROR ACQUIRED COMPANY
----------------- -------- ----------------
August 2001 Coca-Cola Bottlers Philippines Cosmos Bottling Corporation
February 2001 San Miguel/Coca-Cola Co. Coca Cola Bottlers Philippines
September 2000 Coca-Cola Co. Ades Alfindo PutraSetia-Brands
August 2000 Quinsa Baesa Cerveceria Malteria
Based on this data, Salomon Smith Barney derived a range for the implied
equity value per CPO of Ps.21.22 to Ps.27.87.
Premiums paid. Salomon Smith Barney derived and compared, among other
things, a reference for the Gemex shares based on the premiums paid in other
Mexican public company transactions and Latin American consumer company
transactions, when compared to the trading price of the acquired company's
depositary receipts 4 weeks prior to announcement of the transaction. With
respect to the financial information for the companies involved in the
transactions, Salomon Smith Barney relied on information provided by Securities
Data Corporation as well as information available in public documents. Based on
this information and qualitative judgment, Salomon Smith Barney derived a
reference range for the implied equity value per CPO of Ps.15.57 to Ps.16.73.
DISCOUNTED CASH FLOW ANALYSIS
Salomon Smith Barney also performed a discounted cash flow analysis of
Gemex using PBG management forecasts in Mexican pesos for the years 2002 through
2011. Salomon Smith Barney calculated the estimated present value of Gemex's
unlevered free cash flows in Mexican pesos from October 2002 through 2011.
Salomon Smith Barney added to that the estimated present value of the
17
estimated terminal value of Gemex at the end of the year 2011. For purposes of
this analysis, Salomon Smith Barney utilized discount rates ranging from 12.0%
to 14.0% and perpetuity terminal value growth rates ranging from 0.5% to 1.5%.
From this analysis, and based on this information and qualitative judgment,
Salomon Smith Barney derived a reference range of Ps.16.92 to Ps.24.73 for the
implied equity value CPO.
The preceding discussion is a summary of the material financial analyses
furnished by Salomon Smith Barney to the PBG Board of Directors, but it does not
purport to be a complete description of the analyses performed by Salomon Smith
Barney or of its presentation to the PBG Board of Directors. The preparation of
financial analyses and fairness opinions is a complex process involving
subjective judgments and is not necessarily susceptible to partial analysis or
summary description. Salomon Smith Barney made no attempt to assign specific
weights to particular analyses or factors considered, but rather made
qualitative judgments as to the significance and relevance of all the analyses
and factors considered and determined to give its fairness opinion as described
above. Accordingly, Salomon Smith Barney believes that its analyses, and the
summary set forth above, must be considered as a whole, and that selecting
portions of the analyses and of the factors considered by Salomon Smith Barney,
without considering all of the analyses and factors, could create a misleading
or incomplete view of the processes underlying the analyses conducted by Salomon
Smith Barney and its opinion. With regard to the comparable companies and
precedent transaction analyses summarized above, Salomon Smith Barney selected
comparable public companies and precedent transactions on the basis of various
factors, including size and similarity of the relevant companies; however, no
company utilized in these analyses is identical to Gemex and no precedent
transaction is identical to the Offers. As a result, these analyses are not
purely mathematical, but also take into account differences in financial and
operating characteristics of the subject companies and other factors that could
affect the transaction or public trading value of the subject companies to which
Gemex is being compared.
In its analyses, Salomon Smith Barney made numerous assumptions with
respect to Gemex, industry performance, general business, economic, market and
financial conditions and other matters, many of which are beyond Gemex's
control. Any estimates contained in Salomon Smith Barney's analyses are not
necessarily indicative of actual values or predictive of future results or
values, which may be significantly more or less favorable than those suggested
by these analyses. Estimates of values of companies do not purport to be
appraisals or necessarily to reflect the prices at which companies may actually
be sold. Because these estimates are inherently subject to uncertainty, none of
PBG, Gemex, the PBG Board of Directors, Salomon Smith Barney or any other person
assumes responsibility if future results or actual values differ materially from
the estimates.
Salomon Smith Barney's analyses were prepared solely as part of Salomon
Smith Barney's analysis of the fairness of the Offers and were provided to the
PBG Board of Directors in that connection. The opinion of Salomon Smith Barney
was only one of the factors taken into consideration by the PBG Board of
Directors in making its determination to approve the Offers.
Salomon Smith Barney is an internationally recognized investment banking
firm engaged in, among other things, the valuation of businesses and their
securities in connection with mergers and acquisitions, restructurings,
leveraged buyouts, negotiated underwritings, competitive biddings, secondary
distributions of listed and unlisted securities, private placements and
valuations for estate, corporate and other purposes. The PBG Board of Directors
selected Salomon Smith Barney to act as its financial advisor on the basis of
Salomon Smith Barney's international reputation and Salomon Smith Barney's
familiarity with PBG. In the ordinary course of its business, Salomon Smith
Barney and its affiliates may actively trade or hold PBG and Gemex securities
for its own account and for the account of customers and, accordingly, may at
any time hold a long or short position in those securities. Salomon Smith Barney
and its affiliates, including Citigroup Inc. and its affiliates, may maintain
other relationships with PBG, Gemex and their respective affiliates.
Fairness to security holders of Gemex. The rules of the SEC require PBG,
BG LLC and us (collectively referred to as the "Bidders") to express their
belief as to the fairness of the Offers and the
18
reverse stock split to Gemex security holders who are not affiliated with the
Bidders, PepsiCo or Mr. Molina. The Bidders believe the Offers and the reverse
stock split are financially and procedurally fair to such Gemex security
holders. This belief, however, should not be construed as a recommendation to
Gemex security holders to tender Securities in the Offers. The Bidders base
their belief on their consideration of the following factors, each of which, in
their judgment, supports their views as to the fairness of the Offers and the
reverse stock split.
- The assumption that, after considering, and based upon, factors deemed
relevant by the Board of Directors of Gemex, that Board of Directors
would recommend to Gemex's security holders (other than PepsiCo, Mr.
Molina and their respective affiliates) that they accept the Offers and
tender their Securities in the Offers. Gemex's
solicitation/recommendation statement on Schedule 14D-9 filed with the
SEC on October 7, 2002, sets forth the recommendation of the Board of
Directors of Gemex and the factors it considered in making that
recommendation.
- The assumption that the Board of Directors of Gemex would receive a
written opinion from a major United States investment bank that, as of
the date of such opinion, the cash consideration to be received by the
security holders of Gemex in the Offers was fair to the security holders
of Gemex (other than PepsiCo, Mr. Molina and their respective affiliates)
from a financial point of view. Gemex's solicitation/recommendation
statement on Schedule 14D-9 filed with the SEC on October 7, 2002,
reported that the Board of Directors of Gemex received such an opinion
from Merrill Lynch dated October 3, 2002.
- The assumption that the cash consideration payable per CPO and per GDS in
the Offers represent premiums to the closing prices for the respective
Securities on May 7, 2002, the last trading day prior to public
announcement of the Offers. The Mexican pesos cash consideration payable
per CPO and per GDS in the Offers represent premiums of 18.993% and
21.857% to the closing prices for the respective Securities on May 7,
2002.
- The Offers are conditioned on the tender of a sufficient number of shares
of capital stock of Gemex so that, after the Securities (including those
owned by PepsiCo, Mr. Molina and their respective affiliates identified
in the Agreements to Tender) are purchased pursuant to the Offers, we
would own at least 90% of the outstanding capital stock of Gemex
(including shares represented by CPOs and GDSs) on the expiration date
(the "Minimum Condition"). Satisfaction of the Minimum Condition will
require that more than 50% of the shares of capital stock of Gemex
(including shares of capital stock underlying CPOs and GDSs) not owned by
the Bidders, PepsiCo or Mr. Molina are tendered. The Minimum Condition is
designed to provide an opportunity to the public to determine if the
Offers are fair, and a meaningful procedural protection for Gemex
security holders.
- The Offers, the Mexican Stock Exchange de-listing offer and the reverse
stock split provide the Gemex security holders substantially greater
opportunity to sell their holdings in Gemex at a premium than has been
available in the public market, where historically low volumes of trading
have greatly limited liquidity, without the usual transaction costs
associated with open market sales.
- The Bidders believe that the Gemex security holders are capable of
evaluating Offers that provide solely for the payment of cash
consideration.
- Gemex security holders who elect not to tender their Securities in the
Offers will receive the same consideration in the Mexican Stock Exchange
de-listing offer and the reverse stock split that we pay in the Offers.
This provision is designed to eliminate any concern on the part of Gemex
security holders that they should tender into the Offers or risk being
treated less fairly.
- Mr. Molina, the Chairman of the Board of Directors and Chief Executive
Officer of Gemex, in his capacity as the largest security holder of
Gemex, has agreed to tender his Securities, and to cause his affiliates
identified in the Molina Agreement to Tender to tender their Securities,
in the Offers.
19
- Mr. Molina has the right to accept more competitive offers for his
Securities, and to cause his affiliates identified in the Molina
Agreement to Tender to accept more competitive offers for their
Securities, received at any time prior to or during the period the Offers
remain outstanding.
- The Offers are not conditioned upon the Bidders obtaining financing.
The Bidders also considered the following factors, which they considered to
be potentially negative, in their consideration of the fairness of the Offers
and the reverse stock split.
- Tendering Gemex security holders will cease to participate in Gemex's
future earnings or growth, if any, or benefit from increases, if any, in
the value of the Securities.
- The Minimum Condition may be waived by the Bidders.
- Shares and CPOs representing more than 50% of the voting power of Gemex
are held in the PepsiCo/Molina Trust. Under the terms of the
PepsiCo/Molina Trust, Mr. Molina has the power to direct the voting of
such Shares and CPOs during Phase I and PepsiCo has the power to direct
the voting of such Shares and CPOs during Phase II, in each case with the
exception of the approval of certain corporate actions that require the
consent of the party that does not direct the voting. These corporate
actions include certain sales of assets in excess of $5.0 million,
certain issuances or repurchases of capital stock of Gemex and certain
mergers. This may have had the effect of discouraging potential buyers of
Gemex.
- PepsiCo has an interest in the Offers that is different from other
security holders of Gemex because PepsiCo will have an indirect ownership
interest in Gemex following the Offers and the reverse stock split as a
result of its approximately 42.7% ownership interest in the voting
capital stock of PBG and its approximately 7% ownership interest in BG
LLC.
The Bidders believe that each of the foregoing factors is relevant to all
Gemex security holders who are not affiliated with the Bidders, PepsiCo or Mr.
Molina. The Bidders also believe that the potentially negative factors do not,
individually or in the aggregate, outweigh the overall fairness of the Offers
and the reverse stock split to Gemex's security holders other than Mr. Molina,
PepsiCo and their respective affiliates.
The Bidders determined that the following factors were not relevant to the
financial and procedural fairness of the Offers and the reverse stock split.
- The net book value of Gemex (approximately Ps.4.335 billion at June 30,
2002, as reported in Gemex's Form 6-K filed with the SEC on July 26,
2002), because the Bidders do not believe that net book value is a true
indication of the value of Gemex as a going concern and its goodwill.
- The liquidation value of Gemex's assets, because the Bidders believe that
the value that could be obtained through a liquidation of Gemex's assets
would be significantly less than the value that could be obtained through
a sale of Gemex as a going concern.
- The fact that on September 5, 2002, the Board of Directors of PBG
received a written opinion of Salomon Smith Barney Inc. that, as of that
date and based upon and subject to the various assumptions and
limitations set forth in the opinion, the aggregate consideration to be
paid pursuant to the Offers is fair, from a financial point of view, to
PBG.
- Due to the illiquidity of the market for the Shares, which were last
traded on the Mexican Stock Exchange in May 2001, the assumption that the
cash consideration payable per Share in the Offers represents a premium
to the closing price for Shares on May 7, 2002, the last trading day
prior to the public announcement of the Offers.
The foregoing discussion of the information and factors considered by the
Bidders is not intended to be exhaustive but includes all material factors the
Bidders considered. In view of the variety of factors considered in connection
with the Bidders' evaluation of the Offers and the reverse stock split, the
Bidders did not find it practicable to, and did not, quantify or otherwise
assign relative weights to the specific factors and considered all factors as a
whole in reaching their determination.
20
EXEMPTIONS REQUESTED FROM THE SECURITIES AND EXCHANGE COMMISSION
In order to facilitate the making of the U.S. Offer, we have requested from
the SEC relief with respect to certain rules promulgated under the Exchange Act.
In particular, we have requested the following:
- exemptive relief from the provisions of Rule 14d-10(a)(1) under the
Exchange Act to permit the dual offer structure described in this U.S.
Offer to Purchase and to exclude holders of Shares and CPOs who are
Mexican residents but who are eligible to participate in the Mexican
Offer;
- exemptive relief from the provisions of Rule 14e-5 under the Exchange
Act. Rule 14e-5 prohibits a person making a cash tender offer for an
equity security registered under Section 12 of the Exchange Act from,
directly or indirectly, purchasing or making any arrangement to purchase
such equity or any security convertible into, or exchangeable for such
equity security, otherwise than pursuant to a tender offer, from the time
the offer is publicly announced until its expiration. Accordingly, in the
absence of the exemptive relief, the application of Rule 14e-5 would
prohibit us and our affiliates from purchasing Shares and CPOs in the
Mexican Offer. The exemption from Rule 14e-5 would permit us and our
affiliates to purchase Shares and CPOs pursuant to the Mexican Offer
during, but outside, this U.S. Offer; and
- Confirmation that the SEC Division of Corporation Finance will not
recommend that the SEC take enforcement action under the provisions of
Rule 14d-10(a)(2). Rule 14d-10(a)(2) promulgated under the Exchange Act
provides that the consideration paid to any security holder pursuant to a
tender offer must be the highest consideration paid to any other security
holder during such tender offer. Read literally, Rule 14d-10(a)(2) could
be interpreted to prohibit (i) the Ps.172.7 million payment from PepsiCo
to us in order to facilitate the purchase of Gemex and ensure a smooth
ownership transition of Gemex as contemplated by the PepsiCo Agreement to
Tender because such payment could be construed to render the purchase
price payable to PepsiCo for its Securities to be lower than the price
offered to all other security holders of Gemex, and (ii) the indemnity
and escrow arrangement under the Molina Agreement to Tender because it
could possibly result in Mr. Molina ultimately receiving a price per
Security that is lower than the price per Security offered in the Offers.
On October 4, 2002, the SEC orally granted the relief described above.
FOREIGN CURRENCY
In this document, references to "United States dollars," "U.S. dollars,"
"US$," "$" or "dollars" are to U.S. currency and references to "Mexican pesos,"
"pesos" or "Ps." are to Mexican currency. Solely for the convenience of the
reader, certain peso amounts have been translated into dollars at specified
rates. These translations should not be construed as representations that the
peso amounts actually represent such dollar amounts or could be converted into
dollars at the rate indicated or at any other rate. On October 4, 2002, the last
trading day prior to the date of this U.S. Offer, the exchange rate between
pesos and dollars reported by Reuters and Bloomberg on their FXBENCH page as the
New York closing rate for the exchange of Mexican pesos and U.S. dollars was
Ps.10.1985 to US$1.00.
FORWARD LOOKING STATEMENTS
This U.S. Offer to Purchase, including any documents incorporated by
reference, contains statements that constitute forward looking statements. The
statements appear throughout this U.S. Offer to Purchase and include statements
regarding the intent, belief or current expectations of us and our management,
including with respect to our strategy following completion of the Offers, our
plans with respect to the acquisition of Gemex and the probable impact of that
acquisition, if successful, on our financial condition and results of operation.
Such forward looking statements are not guarantees of future performance and
involve risks and uncertainties, and actual results may differ materially from
those described in such forward looking statements as a result of various
factors.
21
THE U.S. OFFER
TERMS OF THIS U.S. OFFER; EXPIRATION DATE
Subject to the terms and conditions set forth below, 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 each case in cash, less
any withholding taxes and without interest thereon. The purchase prices 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 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
U.S. business day after the Applicable Exchange Rate is determined. The
aggregate purchase price for all the Securities we are offering to purchase in
the Offers is Ps.8,966,655,256.
The Mexican Offer is open to all holders of Shares and CPOs, including U.S.
holders. If you are a U.S. holder and would like to tender your Shares and CPOs
in the Mexican Offer instead of the U.S. Offer you may do so. You also may
contact the Depositary to convert your GDSs into CPOs and tender such CPOs in
the Mexican Offer. You will have to pay a fee of $5.00 for each 100 GDSs
converted. The purchase prices for the Shares and CPOs tendered in the Mexican
Offer will be paid, at your election, in Mexican pesos or in U.S. dollars
equivalent to the Mexican peso price based on the Applicable Exchange Rate.
However, if you are an individual tendering Shares and CPOs into the Mexican
Offer you will be entitled to elect to receive the purchase prices in U.S.
dollars only if you have an account in or outside Mexico into which you 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 choose to
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 then wish to convert such pesos into U.S.
dollars. In the event that the Mexican Offer is amended to increase or decrease
the price offered for the Shares and CPOs, we will make a corresponding
amendment to increase or decrease the price offered for the Securities in the
U.S. Offer.
In connection with the Offers, we and BG LLC entered into the PepsiCo
Agreement to Tender and the Molina Agreement to Tender. Under the PepsiCo
Agreement to Tender, as it is strategically important that we, a subsidiary of
PBG, one of PepsiCo's anchor bottlers, purchase Gemex, PepsiCo has agreed to pay
us Ps.172.7 million in order to facilitate the purchase of Gemex and ensure a
smooth ownership transition of Gemex. This payment will be made before the
completion of the Offers. In addition, PepsiCo undertakes to tender, and to
cause its nominee identified in such agreement to tender, in the Offers the
Securities owned directly or indirectly by PepsiCo, or which may be acquired by
PepsiCo on or before the expiration date, subject to their right to accept more
competitive offers received at any time prior to or during the time the Offers
remain outstanding.
Under the Molina Agreement to Tender, Mr. Molina has undertaken to tender,
and to cause his affiliates identified in the Molina Agreement to Tender to
tender, in the Offers the Securities owned by them, or which may be acquired by
them on or before the expiration date, subject to their right to accept more
competitive offers. Mr. Molina has also agreed that, if his and his affiliates'
Securities are purchased by us in the Offers, for five years, he will not engage
in the manufacture, marketing or wholesale sales or distribution of beverages
that are competitive with the products manufactured, marketed, sold or
distributed by Gemex in Mexico as of the date of the Molina Agreement to Tender.
In addition, Mr. Molina represented and warranted that, other than as disclosed
in the Molina Agreement to Tender, there are no undisclosed liabilities of Gemex
to companies and individuals affiliated with Mr. Molina and that neither he nor
any of his affiliates has any claims against Gemex and its subsidiaries or
representatives of any of them. Mr. Molina also represented and warranted that
all agreements between Mr. Molina and his affiliates, on the one hand, and Gemex
and its subsidiaries, or representatives of any of them, on the other hand, may
be terminated by Gemex without payment of any penalty, liquidated damages or
termination charge. Mr. Molina also agreed to put in escrow an amount in U.S.
dollars equivalent to
22
approximately Ps.141.1 million at the Applicable Exchange Rate from the proceeds
he is entitled to receive in the Offers for his Securities, as security for any
indemnity obligations resulting from a breach by Mr. Molina of such
representations and warranties. The funds in escrow will be released over a
period of three years, at a rate of one-sixth of the total amount originally put
in escrow every six months, to the extent indemnification claims have not been
made against them. Mr. Molina's indemnification obligation with respect to his
representations and warranties described in this paragraph will not exceed
Ps.188.2 million (including amounts paid out of the escrow described above).
However, there is no limitation on the remedies available to us in the event of
other breaches by Mr. Molina of the Molina Agreement to Tender.
We will accept for payment and pay for all the Securities that are validly
tendered prior to the expiration date and not withdrawn as provided below under
the caption "Withdrawal rights." This U.S. Offer will expire at 5:00 p.m., New
York City time (4:00 p.m., Mexico City time) on November 5, 2002, unless we have
extended the period of time for which this U.S. Offer is open. For more
information regarding an extension of the U.S. Offer, see the discussion below
under the caption "Extension of tender period; amendment and termination."
This U.S. Offer is subject to certain conditions which are described below
under the caption "Certain conditions to the U.S. Offer." The conditions to the
Mexican Offer are substantially similar to those of the U.S. Offer. If the
conditions to the U.S. Offer are not satisfied and we choose to waive any
condition, we may be required to extend the U.S. Offer under applicable laws and
regulations. Under the Molina Agreement to Tender and the PepsiCo Agreement to
Tender, if on or prior to the initial expiration date the conditions to either
of the Offers set forth in the U.S. Offer under the caption "The U.S. Offer --
Certain conditions to the U.S. Offer" and in the Mexican Offer are satisfied, we
may extend the expiration date of the Offers for a period of not more than five
business days after such initial expiration date, solely to increase the number
of Securities to be tendered in the Offers. If, on the other hand, the
conditions to either of the Offers are not satisfied or waived by us on or prior
to the initial expiration date, we are required to extend the Offers until all
such conditions have been satisfied or waived, but not more than ten business
days after the initial expiration date. In the event that the conditions to
either of the Offers are still not satisfied or waived by us, we have the right,
at our sole discretion, to terminate the Offers after such ten business day
extension has expired or to further extend the Offers for an additional ten
business days. Under the Molina Agreement to Tender and the PepsiCo Agreement to
Tender, an extension of the Offers for any other reason or under any other
circumstances requires the consent of Mr. Molina and PepsiCo, respectively,
unless such extension is required by applicable laws and regulations.
We, BG LLC and PBG have not and will not purchase, or make any arrangements
to purchase, Securities outside of the U.S. Offer during the period which
commenced on May 8, 2002 until the expiration date of the U.S. Offer, except
pursuant to the Mexican Offer.
Gemex has allowed us to use its security position listings for the purpose
of disseminating this U.S. Offer to holders of the Securities. This U.S. Offer
to Purchase and the related GDS Letter of Transmittal have been mailed to record
holders of the Securities that may be tendered in the U.S. Offer. Also, these
materials are being furnished to brokers, banks and similar persons whose names,
or the names of whose nominees, appear on Gemex's security position listing or,
if applicable, who are listed as participants in a clearing agency's security
position listing for subsequent transmittal to beneficial owners of such
Securities.
CERTAIN CONDITIONS TO THE U.S. OFFER
We will not be required to accept Securities 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 into 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 are
tendered into the Offers and not withdrawn, (iii) less than all of the
Securities of Gemex owned, directly or indirectly, by Mr. Molina and his
affiliates identified in the Molina
23
Agreement to Tender, are tendered into 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) at any time before the
acceptance of the Securities for payment, any of the following events occurs:
1. a material breach by Mr. Molina of any of the material provisions
of the Molina Agreement to Tender (which agreement is described below under
the caption "Past Contacts, Transactions, Negotiations and Agreements")
including, without limitation, a breach by Mr. Molina of his
representations and warranties regarding transactions between Gemex and its
affiliates, on one hand, and Mr. Molina and his affiliates, on the other
hand, as set forth therein;
2. a material breach by PepsiCo of any of the material provisions of
the PepsiCo Agreement to Tender (which agreement is described below under
the caption "Past Contacts, Transactions, Negotiations and Agreements");
3. any regulatory approval, action, waiver or consent required to
consummate the Offers, including any approval of the CNBV, the SEC or any
securities exchange, (a) shall not have been obtained, or shall have been
obtained under conditions or restrictions that would adversely affect
either of the Offers or Gemex or its subsidiaries, (b) shall have been
modified in any material way that would adversely affect the either of
Offers or Gemex, or (c) has been revoked;
4. (a) there shall be pending any action, suit, proceeding or claim by
any person, domestic or foreign, which has a reasonable likelihood of
success, or by any government, governmental authority or other regulatory
or administrative agency or commission, domestic, foreign or supranational,
before any court, governmental, regulatory or administrative agency or
commission, authority or tribunal, domestic, foreign or supranational, or
there shall be any statute, rule, regulation, order, judgment, decree or
injunction applicable to either of the Offers, by such governmental or
administrative bodies, prohibiting, materially restricting or substantially
delaying, or seeking to prohibit, materially restrict or substantially
delay the consummation of either of the Offers, or materially modifying or
affecting either of the Offers, or (b) any change, event, condition or
development which has had or would reasonably be expected to result in a
material adverse effect on the financial condition, business, properties,
franchises, licenses, assets, liabilities or results of operations of Gemex
and its subsidiaries, taken as a whole;
5. any filings of Gemex with the SEC, the CNBV or any securities
exchange shall have contained, at the time of their respective filings,
untrue statements of material facts or omitted to state material facts
necessary to make the statements made therein, in light of the
circumstances in which they were made, not misleading, and such untrue
statements or omissions would reasonably be expected to cause a material
adverse effect on the financial condition, business, properties,
franchises, licenses, assets, liabilities or results of operations of Gemex
and its subsidiaries, taken as a whole;
6. any material adverse change in the financial markets, including
without limitation, (a) any general suspension of trading in any of the
Securities on the NYSE or the Mexican Stock Exchange (except for daily
suspensions in accordance with their respective rules or policies), (b) a
declaration of a banking moratorium or imposition of limitations on the
extension of credit generally in the United States or any adverse change in
exchange controls in the U.S. or Mexico, or (c) any material limitations on
the markets for currency in Mexico;
7. commencement of a war, armed hostilities, military coup d'etat,
acts of terrorism, collapse of the government or other national or
international crisis in each case involving the United States or Mexico
which would reasonably be expected to result in a material adverse effect
on the financial condition, business, properties, franchises, licenses,
assets, liabilities or results of operations of Gemex and its subsidiaries,
taken as a whole;
8. Gemex or any of its subsidiaries shall have, at any time after June
30, 2002, effected any change to their respective capital structure which
would reasonably be expected to result in a material adverse effect on the
financial condition, business, properties, franchises, licenses, assets,
liabilities or
24
results of operations of Gemex and its subsidiaries, taken as a whole,
including, without limitation, (a) issued, sold or otherwise transferred,
or proposed to do any of the foregoing, to any person, any shares of
capital stock or other securities (including options to purchase shares of
capital stock and any debt securities), (b) declared, paid or proposed to
declare or pay any dividend or distribution on the Securities, (c) altered,
or proposed to alter, any material term of any outstanding security of
Gemex or any of its subsidiaries other than employee stock options
consistent with the provisions of the Molina Agreement to Tender, (d)
split, combined or otherwise changed, or authorized or proposed the split,
combination or other change of, the Securities or Gemex's or any of its
subsidiaries' capitalization, and (e) authorized, recommended, proposed or
entered into any merger, consolidation, liquidation, dissolution, business
combination, joint venture, strategic alliance or similar arrangement
involving any material assets, acquisition or disposition of a material
amount of assets or securities, other than pursuant to the Offers;
9. Gemex or any of its subsidiaries shall have at any time after June
30, 2002 operated its business otherwise than in the ordinary course
consistent with past practice, including, without limitation, (a) entered
into or invested in a line of business different from those in which Gemex
or any of its subsidiaries was engaged as of June 30, 2002, (b) effected
any material change to its corporate structure, including, without
limitation, the transfer or division of all or a significant portion of its
assets, (c) disposed of, or created liens on, other than pursuant to credit
facilities existing as of June 30, 2002, any material assets of Gemex or
any of its subsidiaries, (d) voluntarily or involuntarily terminated or
modified, in any material adverse manner, any material agreements, (e) made
a material change in its accounting practices (other than as required by
U.S. or Mexican GAAP) or regulatory compliance procedures, (f) waived,
released, assigned, settled or compromised any claims or litigation
involving amounts or other rights or assets in excess of $2.0 million, or
(g) amended or authorized or proposed any amendments to Gemex's Bylaws or
any other organizational documents;
10. Gemex and its subsidiaries have "consolidated adjusted net debt"
in excess of Ps.2,648,353,587 or do not have "consolidated adjusted working
capital" of at least Ps.190.75 million, as such terms are defined in the
Molina Agreement to Tender. The term "consolidated adjusted net debt" as of
any date is defined in the Molina Agreement to Tender and the PepsiCo
Agreement to Tender as all short-term and long-term indebtedness, including
obligations under capital leases, but not including accrued interest, of
Gemex and its subsidiaries on a consolidated basis as of such date, reduced
by the sum of (i) the consolidated cash and cash equivalents of Gemex and
its subsidiaries as of such date, (ii) an amount equal to Ps.172,708,000
and (iii) the aggregate amount not yet received as cash as of such date by
Gemex from its employees and/or its subsidiaries representing the aggregate
unpaid strike price of their vested options to acquire securities of Gemex
(assuming all of such vested options, whether exercised or not, are
included in calculating the prices we are offering in the Offers). For the
purpose of this calculation, all dollar denominated indebtedness of Gemex
and its subsidiaries will be converted to Mexican pesos calculated using
the average of the exchange rates reported on each of the five consecutive
U.S. business days ending two U.S. business days prior to the commencement
of the Offers by Reuters and Bloomberg on their FXBENCH page as the New
York closing rate for the exchange of Mexican pesos to U.S. dollars. The
term "consolidated adjusted working capital" as of any date is defined in
the Molina Agreement to Tender and the PepsiCo Agreement to Tender as (A)
the consolidated current assets of Gemex and its subsidiaries as of such
date, other than the consolidated cash and cash equivalents of Gemex and
its subsidiaries used to compute consolidated adjusted net debt as of such
date less (B) the consolidated current liabilities of Gemex and its
subsidiaries as of such date, other than (i) the principal amount of
short-term indebtedness and the principal amount of the current portion of
long-term indebtedness as of such date, and (ii) dividends payable as of
such date; and
11. any default by Gemex or any of its subsidiaries under any
indebtedness which would reasonably be expected to result in a material
adverse effect on the financial condition, business, properties,
franchises, licenses, assets, liabilities or results of operations of Gemex
and its subsidiaries,
25
taken as a whole, or which would, following the purchase of Securities in
the Offers, result in a cross-default under any indebtedness of PBG or BG
LLC.
The foregoing conditions are for our benefit only and any such condition
may be waived by us, in whole or in part, at any time or from time to time prior
to the expiration of the U.S. Offer in our sole discretion, subject to
applicable law. Our failure at any time to assert any of the foregoing
conditions in respect of particular facts or circumstances will not be deemed a
waiver of our right to assert any such conditions in respect of any other facts
or circumstances and each such condition will be deemed to be an ongoing
condition which may be asserted or waived by us at any time and from time to
time prior to the expiration of the U.S. Offer.
ACCEPTANCE FOR PAYMENT
Upon the terms and subject to the conditions of the U.S. Offer, we will
accept for payment Securities validly tendered by the expiration date of the
U.S. Offer, as it may be extended, and not withdrawn, and promptly after the
expiration date pay for such Securities. In addition, we reserve the right, in
our sole discretion and subject to applicable law, to delay the acceptance for
payment or the payment for Securities in order to comply in whole or in part
with any applicable law. For a description of our right to terminate the U.S.
Offer and not accept for payment or pay for Securities or to delay the
acceptance for payment or the payment for Securities, see the disclosure below
under the caption "Extension of tender period; termination and amendment."
For purposes of the U.S. Offer, we will be deemed to have accepted for
payment tendered Securities when and if we give oral or written notice to the
U.S. Receiving Agent or the Mexican Receiving Agent, as the case may be, of our
acceptance of the tenders of such Securities. Payment for GDSs tendered in
certificated form and for Shares or CPOs tendered in book-entry form accepted
for payment pursuant to the U.S. Offer will be made by deposit of the purchase
prices with the U.S. Receiving Agent or the Mexican Receiving Agent, as the case
may be, which will act as your agent for the purpose of receiving payments from
us and transmitting such payments to you. Payment for GDSs tendered by
book-entry transfer will be made by crediting the account of the nominee holding
the GDSs on your behalf with The Depositary Trust Company. In all cases, payment
for Securities accepted for payment pursuant to the U.S. Offer will be made only
after timely receipt by the U.S. Receiving Agent or the Mexican Receiving Agent,
as the case may be, of:
- in the case of Shares and CPOs, a properly completed and duly executed
Acceptance Letter from the Indeval participant holding the Shares and
CPOs on behalf of the tendering security holder;
- in the case of GDSs tendered in certificated form, GDRs evidencing GDSs
together with a properly completed and duly executed GDS Letter of
Transmittal and all other required documents, as described below under
the section captioned "Procedure for accepting this U.S. Offer -- Holders
of GDSs;" and
- in the case of GDSs tendered by book-entry transfer, a properly completed
and duly executed GDS Letter of Transmittal (or facsimile thereof), or an
Agent's Message (as defined below) instead of the GDS Letter of
Transmittal, and all other required documents, as described below under
the section captioned "Procedure for accepting this U.S. Offer -- Holders
of GDSs."
Accordingly, payment may be made to tendering security holders at different
times if delivery of the Securities and other required documents occur at
different times. Under no circumstances will interest be paid by us on the
purchase prices for Securities pursuant to the U.S. Offer regardless of any
delay in making such payments.
If we increase or decrease the purchase prices to be paid for Securities
pursuant to the Mexican Offer, we will pay such increased or decreased
consideration for Securities purchased pursuant to the U.S. Offer.
26
The purchase prices for the Securities accepted for payment pursuant to the
U.S. Offer will be the U.S. dollar equivalent of the applicable Mexican peso
price of the U.S. Offer, based on the Applicable Exchange Rate. The purchase
prices for the Shares and CPOs tendered in the Mexican Offer will be paid, at
the holder's election, in Mexican pesos or in U.S. dollars equivalent to the
applicable Mexican peso price of 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 prices 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 choose to 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 such pesos into U.S. dollars. Security
holders should be aware that they will bear additional exchange rate risks
should the U.S. Offer be extended.
We reserve the right to transfer or assign, in whole or, from time to time,
in part, to one or more of our affiliates the right to purchase Securities
tendered pursuant to the U.S. Offer, but any such transfer or assignment will
not relieve us of our obligations under the U.S. Offer or prejudice the rights
of tendering security holders to receive payment for Securities validly tendered
and accepted for payment.
If any tendered Securities are not purchased pursuant to the U.S. Offer for
any reason, or if certificates are submitted for more Securities than are
tendered, certificates for such unpurchased or untendered Securities will be
returned (or, in the case of Securities tendered by book-entry transfer, such
Securities will be credited to an account maintained by the U.S. Receiving Agent
or the Mexican Receiving Agent at The Depositary Trust Company or at Indeval,
respectively), without expense to the tendering security holder, as promptly as
practicable following the expiration or termination of the U.S. Offer.
PROCEDURE FOR TENDERING IN THE U.S. OFFER -- HOLDERS OF SHARES AND CPOS
When you tender your Shares and CPOs in accordance with the procedures
described in this section and we accept your Shares and CPOs for payment, this
will constitute a binding agreement between you and us, subject to the terms and
conditions of the U.S. Offer. If you are not a Mexican resident and you are
either a record holder or beneficial owner of Gemex Shares or CPOs, and you wish
to tender your Shares or CPOs in the U.S. Offer, you must do so by book-entry
transfer as described below. You will not be able to tender in the U.S. Offer
any Shares in certificated form. If you hold Shares in certificated form you
should promptly contact any broker, dealer, bank, trust company, financial
institution or other nominee who is a participant in the book-entry transfer
system of Indeval and arrange for such a nominee to hold the Shares on your
behalf in book-entry form.
Any broker, dealer, bank, trust company or other nominee acting on your
behalf that is a participant in Indeval may make delivery of Shares and CPOs by
causing Indeval to transfer such Shares and CPOs into the Mexican Receiving
Agent's account with Indeval in accordance with the procedures of Indeval. In
order to effect a tender of the Shares or CPOs you beneficially own, you should
promptly contact your nominee and instruct it to tender such Shares or CPOs. If
you hold your Shares and CPOs through a broker, dealer, bank, trust company or
other nominee who is not an Indeval participant, such nominee, on your behalf,
should promptly contact an Indeval participant and make arrangements for the
tender of the Shares and CPOs into the account of the Mexican Receiving Agent
with Indeval on or prior to the expiration date. Since this procedure is
identical to that by which other Gemex security holders participate in the
Mexican Offer, such nominee may wish to refer to the instructions for tendering
into the Mexican Offer attached as Annex II to this U.S. Offer to Purchase.
In order for a book-entry transfer to constitute a valid tender of your
Shares and CPOs in the U.S. Offer, the Shares and CPOs must be tendered by your
nominee who is an Indeval participant into the account of the Mexican Receiving
Agent with Indeval and the Mexican Receiving Agent must receive a properly
completed and duly executed Acceptance Letter from the Indeval participant who
tendered your Shares and CPOs into its account, prior to the expiration date of
the U.S. Offer.
27
Matters concerning validity, eligibility and acceptance. All questions as
to the form of documents and the validity, eligibility (including time of
receipt) and acceptance for payment of any tender of Shares and CPOs will be
determined by us, in our sole discretion, which determination shall be final and
binding. We reserve the absolute right to reject any or all tenders of Shares
and CPOs determined by us not to be in proper form or the acceptance for payment
of or payment for which may, in the opinion of our counsel, be unlawful. We also
reserve the absolute right to waive any defect or irregularity in any tender of
Shares and CPOs. Neither we, BG LLC, PBG, the U.S. Dealer Manager, the Mexican
Receiving Agent, the U.S. Receiving Agent, the Information Agent nor any other
person will be under any duty to give notification of any defect or irregularity
in tenders or incur any liability for failure to give any such notification.
If you are in any doubt about the procedure for tendering Shares and CPOs
into the U.S. Offer, please contact the Information Agent at its address as it
appears on the back cover of this U.S. Offer to Purchase.
ANY HOLDER OF SHARES AND CPOs WHO IS NOT A MEXICAN RESIDENT MAY, AT ITS
OPTION, TENDER ITS SHARES AND CPOs INTO EITHER THE MEXICAN OFFER OR THE U.S.
OFFER. SHARES AND CPOs THAT ARE TENDERED (I) IN THE U.S. OFFER WILL BE PAID FOR
IN U.S. DOLLARS AND (II) IN THE MEXICAN OFFER WILL BE PAID FOR IN U.S. DOLLARS
OR MEXICAN PESOS, AT THE ELECTION OF THE HOLDER, PROVIDED THAT AN INDIVIDUAL
HOLDER IS ENTITLED TO MAKE SUCH ELECTION ONLY IF IT HAS AN ACCOUNT OUTSIDE
MEXICO INTO WHICH A PAYMENT IN U.S. DOLLARS CAN BE MADE AND THE INFORMATION
REGARDING SUCH ACCOUNT HAS BEEN PROVIDED TO THE MEXICAN RECEIVING AGENT. ANY
HOLDER OF SHARES OR CPOs WHO DESIRES TO ACCEPT THE MEXICAN OFFER SHOULD READ
CAREFULLY THE MEXICAN OFFER PROSPECTUS (FOLLETO INFORMATIVO) DATED OCTOBER 7,
2002, AND SHOULD FOLLOW THE PROCEDURES FOR TENDERING SHARES AND CPOs INTO THE
MEXICAN OFFER, A DESCRIPTION OF WHICH IS ATTACHED AS ANNEX II TO THIS U.S. OFFER
TO PURCHASE.
PROCEDURE FOR TENDERING IN THE U.S. OFFER -- HOLDERS OF GDSS
To tender GDSs pursuant to the U.S. Offer,
- if you hold GDSs in certificated form, a properly completed and duly
executed GDS Letter of Transmittal (or a copy thereof with original
signatures) together with the GDRs for the GDSs to be tendered and all
other documents required by the GDS Letter of Transmittal must be
received by the U.S. Receiving Agent at one of its addresses set forth on
the back cover of this U.S. Offer to Purchase by the expiration date,
- if you hold the GDSs in book-entry form, the GDSs must be delivered to
the U.S. Receiving Agent pursuant to the procedures for book-entry
transfer described below, and a confirmation of such delivery must be
received by the expiration date by the U.S. Receiving Agent, as well as a
properly completed and duly executed GDS Letter of Transmittal (or a copy
thereof with original signatures) or an Agent's Message, as defined
below, by the expiration date. Alternatively, you may be able to use the
guaranteed delivery procedure described below.
The term "Agent's Message" means a message, transmitted by 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.
Book-entry transfer. The U.S. Receiving Agent will establish an account
with respect to the GDSs with DTC for purposes of the U.S. Offer within two U.S.
business days after the date of this U.S. Offer to Purchase, and any financial
institution that is a participant in the Automated Tender Offer Program at
28
DTC may make delivery of GDSs by causing DTC to transfer such GDSs into the U.S.
Receiving Agent's account in accordance with the procedures of DTC. Any broker,
dealer, bank, trust company or other nominee acting on your behalf that is a
participant at DTC may make delivery of GDSs by causing DTC to transfer such
GDSs into the U.S. Receiving Agent's account with DTC in accordance with the
procedures of DTC. In order to effect a tender of the GDSs you beneficially own,
you should promptly contact your nominee and instruct it to tender such GDSs by
completing, signing and returning to your nominee the instruction form attached
to the letter from your nominee which is included in the material you received
in connection with the U.S. Offer.
In order for a book-entry transfer to constitute a valid tender of your
GDSs in the U.S. Offer, a properly completed and duly signed GDS Letter of
Transmittal or an Agent's Message instead of the GDS Letter of Transmittal, and
any other required documents must, in any case, be received by the U.S.
Receiving Agent at one of its addresses set forth on the back cover of this U.S.
Offer to Purchase by the expiration date.
DELIVERY OF THE GDS LETTER OF TRANSMITTAL AND ANY OTHER REQUIRED DOCUMENTS
TO DTC DOES NOT CONSTITUTE DELIVERY TO THE U.S. RECEIVING AGENT.
Guaranteed Delivery Procedures. If you are a holder of the GDSs and wish
to tender your GDSs, but
- the GDRs evidencing the GDSs are not immediately available;
- time will not permit your GDRs evidencing the GDSs or other required
documents to reach the U.S. Receiving Agent before the expiration of the
U.S. Offer; or
- the procedure for book-entry transfer cannot be completed before the
expiration of the U.S. Offer,
you may effect a tender of your GDSs if:
- the tender is made through an eligible guarantor institution, as defined
below;
- 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; these documents may be sent by overnight
courier, registered or certified mail or facsimile transmission; and
- the U.S. Receiving Agent receives (i) in case you hold GDSs in
certificated form, the GDRs for all physically tendered GDSs, in proper
form for transfer, together with a properly completed and duly executed
GDS Letter of Transmittal, with any required signature guarantees, and
all other required documents or (ii) in case you hold the GDSs in
book-entry form, a book-entry confirmation of the transfer of the GDSs
into the U.S. Receiving Agent account at DTC, together with a properly
completed and duly executed GDS Letter of Transmittal or an Agent's
Message that forms a part of the book-entry confirmation instead of a GDS
Letter of Transmittal, in each case, within three NYSE trading days after
the date of execution of the Notice of Guaranteed Delivery.
Partial tenders. If fewer than all of the GDSs evidenced by GDRs delivered
to the U.S. Receiving Agent are to be tendered, the holder thereof should so
indicate in the GDS Letter of Transmittal by filling in the number of GDSs which
are to be tendered in the box entitled "Number of GDSs Tendered" in the GDS
Letter of Transmittal. In such case, a new GDR for the untendered GDSs
represented by the old GDR will be sent to the person(s) signing such GDS Letter
of Transmittal (or delivered as such person properly indicates thereon) as
promptly as practicable following the date the tendered GDSs are accepted for
payment.
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ALL GDSs DELIVERED TO THE U.S. RECEIVING AGENT WILL BE DEEMED TO HAVE BEEN
TENDERED UNLESS OTHERWISE INDICATED. SEE INSTRUCTION 4 OF THE GDS LETTER OF
TRANSMITTAL.
Signature guarantees. Signatures on a GDS Letter of Transmittal or a
notice of withdrawal, as the case may be, must be guaranteed unless you are
either:
- a registered holder of GDSs and have not completed the box entitled
"Special Issuance Instructions" or "Special Delivery Instructions" on the
GDS Letter of Transmittal; or
- you are tendering GDSs for the account of an eligible guarantor
institution.
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.
If signatures on a GDS Letter of Transmittal or a notice of withdrawal are
required to be guaranteed, the guarantor must be an eligible guarantor
institution. If you plan to sign the GDS Letter of Transmittal but you are not
the registered holder of the GDSs, you must have the GDS Letter of Transmittal
signed by the registered holder of the GDSs and that signature must be
guaranteed by an eligible guarantor institution. You may also send a separate
instrument of transfer or exchange signed by the registered holder and
guaranteed by an eligible guarantor institution, but that instrument must be in
a form satisfactory to us in our sole discretion. In addition, if a person or
persons other than the registered holder or holders of GDSs signs the GDS Letter
of Transmittal, certificates for the GDSs must be endorsed or accompanied by
appropriate stock powers, in either case signed exactly as the name or names of
the registered holder or holders that appear on the certificates for GDSs.
Acceptance of U.S. Offer and representations by holder. The tender of GDSs
pursuant to any one of the procedures described above will constitute the
tendering security holder's acceptance of the U.S. Offer, as well as the
tendering security holder's representation and warranty that such security
holder has the full power and authority to tender and assign the GDSs tendered,
as specified in the GDS Letter of Transmittal. Our acceptance for payment of
GDSs tendered pursuant to the U.S. Offer will constitute a binding agreement
between us and the tendering security holder containing the terms and conditions
of the U.S. Offer.
Matters concerning validity, eligibility and acceptance. All questions as
to the form of documents and the validity, eligibility (including time of
receipt) and acceptance for payment of any tender of GDSs will be determined by
us, in our sole discretion, which determination shall be final and binding. We
reserve the absolute right to reject any or all tenders of GDSs determined by us
not to be in proper form or the acceptance for payment of or payment for which
may, in the opinion of our counsel, be unlawful. We also reserve the absolute
right to waive any defect or irregularity in any tender of GDSs. None of us, BG
LLC, PBG, the U.S. Dealer Manager, the U.S. Receiving Agent, the Mexican
Receiving Agent, the Information Agent or any other person will be under any
duty to give notification of any defect or irregularity in tenders or incur any
liability for failure to give any such notification.
THE METHOD OF DELIVERY OF GDSs AND ALL OTHER REQUIRED DOCUMENTS, INCLUDING
THROUGH THE DEPOSITARY TRUST COMPANY, IS AT THE OPTION AND RISK OF THE TENDERING
SECURITY HOLDER AND THE DELIVERY WILL BE DEEMED MADE ONLY WHEN ACTUALLY RECEIVED
BY THE U.S. RECEIVING AGENT. IN ALL CASES, SUFFICIENT TIME SHOULD BE ALLOWED TO
ENSURE A TIMELY DELIVERY. REGISTERED MAIL WITH RETURN RECEIPT REQUESTED,
PROPERLY INSURED, IS RECOMMENDED FOR GDSs SENT BY MAIL.
If you are in any doubt about the procedure for tendering GDSs into the
U.S. Offer, please contact the Information Agent or the U.S. Receiving Agent at
their respective addresses as they appear on the back cover of this U.S. Offer
to Purchase.
30
WITHDRAWAL RIGHTS
Tenders of Securities 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 in our sole discretion subject to applicable law. Thereafter,
such tenders are irrevocable, except that they may be withdrawn after December
6, 2002, unless they are accepted for payment as provided in this 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 Securities, or are unable to
accept for payment or pay for Securities 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 and the Mexican Receiving Agent, as the case may be, may, on our
behalf, retain all the Securities tendered, unless such Securities are withdrawn
in accordance with the procedure described in the paragraph below. 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 or the Mexican Receiving Agent, as the case may be, at their
respective addresses set forth on the back cover of this U.S. Offer to Purchase
and must specify the name of the person who tendered the Securities to be
withdrawn, the number of Securities to be withdrawn and the name of the
registered holder of the Securities, if different from that of the person who
tendered such Securities. If the Securities to be withdrawn have been delivered
to either of the receiving agents for the U.S. Offer, a signed notice of
withdrawal must be submitted prior to the acceptance of such Securities for
payment by us, together with, in the case of withdrawals of GDSs (except in the
case of GDSs tendered by an eligible guarantor institution), signatures
guaranteed by an eligible guarantor institution. 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 Securities tendered by book-entry transfer, the
name and participant number at DTC or Indeval, as the case may be, to be
credited with the withdrawn Securities. Withdrawals may not be rescinded, and
Securities withdrawn will thereafter be deemed not validly tendered for purposes
of the U.S. Offer. However, withdrawn Securities may be re-tendered by again
following one of the procedures described in this U.S. Offer to Purchase, as
applicable, at any time prior to the expiration date. The withdrawal rights in
the Mexican Offer are similar to the withdrawal rights in the U.S. Offer.
All questions as to the form and validity (including time of receipt) of
any notice of withdrawal will be determined by us, in our sole discretion, which
determination shall be final and binding. Neither we, BG LLC, PBG, the U.S.
Dealer Manager, the U.S. Receiving Agent, the Mexican Receiving Agent, the
Information Agent nor any other person will be under any duty to give
notification of any defect or irregularity in any notice of withdrawal or incur
any liability for failure to give any such notification.
EXTENSION OF TENDER PERIOD; AMENDMENT AND TERMINATION
We may extend the U.S. Offer when we are required to do so under applicable
laws and regulations. For example, if we decrease the percentage of Securities
being sought or decrease the consideration to be paid for Securities pursuant to
the U.S. Offer, assuming we have received the consent of Mr. Molina and PepsiCo
to such amendments under the Molina Agreement to Tender and PepsiCo Agreement to
Tender, and the U.S. Offer is scheduled to expire at any time before the
expiration of a period of ten U.S. business days from, and including, the date
that notice of such increase or decrease is first published, sent or given in
the manner specified below, the U.S. Offer will be extended until the expiration
of such period of ten U.S. business days. We currently do not intend to decrease
the percentage of, or increase or decrease the consideration to be paid for,
Securities to be purchased in the U.S. Offer. If we make a material change in
the terms of the U.S. Offer (other than a change in price or percentage of
securities sought) or in the information concerning the U.S. Offer, or waive a
material condition of the U.S. Offer, we will extend the U.S. Offer, if required
by applicable law, for a period sufficient to allow security holders to consider
the amended terms of the U.S. Offer. In a published release, the SEC has stated
that in its view an offer must remain open for a minimum period of time
following a material change in the terms of such offer. The release states that
an offer should remain open for a minimum of five U.S. business days from the
date the
31
material change is first published, sent or given to security holders, and that
if material changes are made with respect to information that approaches the
significance of price and share levels, a minimum of ten U.S. business days may
be required to allow adequate dissemination and investor response.
In addition, under the Molina Agreement to Tender and the PepsiCo Agreement
to Tender, if on or prior to the initial expiration date the conditions to
either of the Offers set forth in the U.S. Offer under the caption "The U.S.
Offer -- Certain conditions to the U.S. Offer" and in the Mexican Offer are
satisfied, we may extend the expiration date of the Offers for a period of not
more than five business days after such initial expiration date, solely to
increase the number of Securities to be tendered in the Offers. If, on the other
hand, the conditions to either of the Offers are not satisfied or waived by us
on or prior to the initial expiration date, we are required to extend the Offers
until all such conditions have been satisfied or waived, but not more than ten
business days after the initial expiration date. In the event that the
conditions to either of the Offers are still not satisfied or waived by us, we
have the right, at our sole discretion, to terminate the Offers after such ten
business days extension has expired or to further extend the Offers for an
additional ten business days. Under the Molina Agreement to Tender and the
PepsiCo Agreement to Tender, an extension of the Offers for any other reason or
under any other circumstances requires the consent of Mr. Molina and PepsiCo,
respectively, unless such extension is required by applicable laws and
regulations.
We may amend the U.S. Offer at any time in our sole discretion to increase
the price we are offering to pay for the Securities. We may also reduce the
purchase prices we are offering by the amount of all dividends for which a
payment date is announced or published by Gemex on or prior to the expiration
date and which is payable after the date of this U.S. Offer and prior to the
date of purchase of the Securities pursuant to the Offers, if any. Except as set
forth in this and the preceding paragraph, under the Molina Agreement to Tender
and the PepsiCo Agreement to Tender we may not reduce the price we are offering
to pay or the number of Securities sought in the Offers or otherwise materially
amend the Offers in any manner materially adverse to Mr. Molina or PepsiCo,
without the consent of Mr. Molina or PepsiCo, as the case may be.
We also reserve the right, in our sole discretion, in the event any of the
conditions to the U.S. Offer is not satisfied and so long as Securities have not
been accepted for payment, to delay (except as otherwise required by applicable
law) acceptance for payment of, or payment for Securities.
If we extend the period of time during which the U.S. Offer is open, are
delayed in accepting for payment or paying for Securities, or are unable to
accept for payment or pay for Securities 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 and the Mexican Receiving Agent, as the case may be, may, on our
behalf, retain all the Securities tendered, unless such Securities are withdrawn
in accordance with the procedure set forth above under the caption "Withdrawal
rights." The reservation by us of the right to delay acceptance for payment of
or payment for Securities is subject to applicable law, which requires that we
pay the consideration offered or return the Securities deposited by or on behalf
of security holders promptly after the termination or withdrawal of the U.S.
Offer. While we intend to make the offer periods and settlement dates for the
Mexican Offer and for this U.S. Offer the same, it is possible that the
settlement dates will be different due to requirements of applicable law and/or
market practice.
We will inform the Information Agent, the U.S. Dealer Manager, the U.S.
Receiving Agent and the Mexican Receiving Agent of any extension, amendment or
termination of the U.S. Offer and, without limiting the manner in which we may
choose to make any public announcement, we will not have any obligation (except
as otherwise required by applicable law) to publish, advertise or otherwise
communicate any such public announcement other than by making a press release to
the Dow Jones News Service, not later than 9:00 a.m., New York City time, on the
U.S. business day after the day on which the U.S. Offer was scheduled to expire.
During any such extension, all Securities previously tendered in the U.S. Offer
and not withdrawn will remain subject to the U.S. Offer, subject to the rights
of a tendering holder to withdraw its Securities in accordance with the
procedures set forth above.
32
REPRESENTATIONS AND WARRANTIES OF TENDERING SECURITY HOLDERS
Each holder of Securities, by tendering its Securities in the U.S. Offer,
irrevocably undertakes, represents, warrants and agrees (so as to bind the
holder and the holder's personal representatives, heirs, successors and assigns)
as follows:
1. in the event of tender of Shares and CPOs, that it is not a Mexican
resident;
2. that it has the full power and authority to tender and assign the
Securities tendered, as specified in the GDS Letter of Transmittal and that
our acceptance for payment of Securities tendered pursuant to the U.S.
Offer will constitute a binding agreement between us and the tendering
security holder containing the terms and conditions of the U.S. Offer;
3. in the event of tender of Shares and CPOs, that the Mexican Dealer
Manager withhold 5% of the gross proceeds to be paid by us to such holder,
and to waive the option available to such holder under Mexican tax law to
have a 20% income tax withholding on the gain, if any, that would be
generated by the sale of its Shares and/or CPOs in the U.S. Offer, and any
other applicable tax treatment for purposes of calculating any income tax
withholding, notwithstanding the holder's tax treatment under the Mexican
Income Tax Statute, tax residency and/or any other circumstance, without
prejudice to the right that such holder may have to claim any applicable
tax refund from Mexican tax authorities for the withheld amounts, or to
claim an income tax credit;
4. that the execution of a GDS Letter of Transmittal shall constitute:
(i) an acceptance of the U.S. Offer in respect of the number of Securities
identified therein, (ii) an undertaking to execute all further documents
and give all further assurances which may be required to enable us to
obtain the full benefit and to obtain title to the tendered Securities, and
(iii) that each such acceptance shall be irrevocable;
5. that the Securities in respect to which the U.S. Offer is accepted
or deemed to be accepted are fully paid and non-assessable, sold free from
all liens, equities, charges and encumbrances and together with all rights
now or hereafter attaching thereto, including voting rights and the right
to all dividends or other distributions hereafter declared, made or paid;
6. that the execution of the GDS Letter of Transmittal constitutes,
subject to the accepting holder not having validly withdrawn his or her
acceptance, the irrevocable appointment of U.S. Receiving Agent and its
directors and agents as such holder's attorney-in-fact and an irrevocable
instruction to the attorney-in fact to complete and execute any and all
form(s) of transfer and/or other document(s) which are necessary or
required at the discretion of the attorney-in-fact in order to transfer the
Securities in respect of which the tendering holder of Securities has not
validly withdrawn its tender, in our name or such other person or persons
as we may direct, and to deliver such form(s) of transfer and/or other
document(s) together with other document(s) of title relating to such
Securities and to do all such other acts and things as may in the opinion
of the attorney-in-fact be necessary or required for the purpose of, or in
connection with, the acceptance of the U.S. Offer and to vest title to the
Securities in us or our nominees as aforesaid;
7. that the execution of the GDS Letter of Transmittal constitutes,
subject to the tendering holder of Securities not having validly withdrawn
its tender, an irrevocable authority and request (i) to Gemex and its
directors, officers and agents, to procure the registration of the transfer
of the Securities pursuant to the U.S. Offer and the delivery of any and
all document(s) of title in respect thereof to us or our nominees; and (ii)
to us or our agents, to record and act upon any instructions with regard to
notices and payments which have been recorded in the records of Gemex in
respect of such holder's holding(s) of Securities; and
8. that it agrees to ratify each and every act or thing which may be
done or effected by us or any of our directors or agents or Gemex or its
agents, as the case may be, in the proper exercise of the power and/or
authorities of any such person.
33
SOURCES OF FUNDS
PBG intends to issue commercial paper in an amount of up to $1.2 billion
prior to the expiration date of the Offers. The commercial paper will bear
interest at a rate to be determined immediately prior to or on the date of its
issuance. The proceeds of this issuance will be used to finance the Offers and
to refinance a portion of the indebtedness of Gemex following the consummation
of the Offers. As support for the commercial paper, PBG has entered into a
bridge revolving credit facility with Salomon Smith Barney Inc., Deutsche Bank
Securities Inc. and Credit Suisse First Boston Corporation, as joint lead
arrangers, Citibank N.A., Credit Suisse First Boston, Cayman Islands Branch and
Deutsche Bank AG New York Branch, as joint syndication agents, and certain
lenders specified in the bridge revolving credit facility agreement, to provide
up to $1.2 billion. The bridge revolving credit facility is guaranteed by BG
LLC. Borrowings under the bridge revolving credit facility may be repaid and
reborrowed until April 30, 2003, when the term of the bridge revolving credit
facility expires. Borrowings will bear interest, at the option of PBG, at the
base rate (i.e., prime rate) of Credit Suisse First Boston or LIBOR plus an
applicable margin determined by reference to PBG's credit rating. The bridge
revolving credit facility is unsecured. PBG does not anticipate borrowing under
the bridge revolving credit facility unless and to the extent that it does not
issue commercial paper as described above.
PBG, through BG LLC, will provide us with the funds raised by it to
purchase all the Securities validly tendered and not withdrawn in the Offers.
Any remaining funds necessary to consummate the Offers and refinance a portion
of the indebtedness of Gemex will be provided by BG LLC from available cash or
borrowings utilizing existing credit facilities of BG LLC.
However, the Offers are not conditioned upon the receipt by PBG of the
proceeds of either such financing or the advance of such funds to BG LLC or
Embotellador HM. PBG expects to repay the commercial paper and/or the bridge
revolving credit facility, as the case may be, with funds provided by BG LLC
from the proceeds of a private placement of debt securities of BG LLC expected
to be completed after the consummation of the Offers. Up to $1.0 billion of debt
securities are expected to be guaranteed by PepsiCo.
CERTAIN TAX CONSIDERATIONS
Material U.S. federal income tax consequences.
The following is a summary of the material United States federal income tax
consequences of the U.S. Offer to holders of Securities whose Securities are
tendered and accepted for payment in the U.S. Offer. The discussion is for
general information only and does not purport to consider all aspects of United
States federal income taxation that might be relevant to holders of Securities.
The discussion is based on current provisions of the Internal Revenue Code of
1986, as amended (the "Code"), existing, proposed and temporary regulations
promulgated thereunder and administrative and judicial interpretations thereof,
all of which are subject to change, possibly with a retroactive effect. The
discussion applies only to holders of Securities who hold their Securities as
capital assets within the meaning of Section 1221 of the Code. This discussion
does not apply to Securities received pursuant to the exercise of employee stock
options or otherwise as compensation, or to certain types of holders who may be
subject to special rules such as the following:
- insurance companies;
- regulated investment companies;
- common trust funds;
- tax-exempt organizations;
- banks or other financial institutions;
- broker-dealers;
34
- holders who have acquired the Securities as part of a straddle, hedge,
conversion transaction or other integrated investment; or
- persons who own or owned, directly or indirectly, 10% or more of the
total combined voting power of all classes of stock of Gemex entitled to
vote.
This discussion does not consider the effect of any foreign, state or local
tax laws nor does it discuss the United States federal income tax consequences
to any holder of Securities who, for United States federal income tax purposes,
is not a "U.S. Holder" (as defined below). As used in this discussion, the term
"U.S. Holder" means a beneficial owner of Securities that is any of the
following for United States federal income tax purposes:
- an individual who is a citizen or resident of the United States;
- a corporation or partnership, or other entity treated as a corporation or
partnership, created or organized under the laws of the United States or
any State or any political subdivision thereof;
- an estate the income of which is subject to United States federal income
taxation regardless of its source; or
- a trust, if a United States court is able to exercise primary supervision
over the trust's administration and one or more United States persons
have the authority to control all of the trust's substantial decisions.
If a partnership or other entity treated as a pass-through for United
States federal income tax purposes holds Securities, the tax treatment of an
owner of such entity will depend upon the status of the partner or the owner of
such entity and the activities of the entity. If a U.S. Holder is a partner of a
partnership holding Securities or an owner of another entity holding Securities
which is treated as a pass-through for United States federal income tax
purposes, such holder is urged to consult its tax advisors.
Sale of Shares, CPOs and/or GDSs. The sale of Securities for cash pursuant
to the U.S. Offer will be a taxable transaction for United States federal income
tax purposes and possibly for state, local and foreign income tax purposes as
well. In general, a U.S. Holder who sells Securities pursuant to the U.S. Offer
will recognize gain or loss for United States federal income tax purposes equal
to the difference, if any, between the amount of cash received and the holder's
adjusted tax basis in the Securities sold pursuant to the U.S. Offer. Gain or
loss will be determined separately for each block of Securities (i.e.,
Securities acquired at the same cost in a single transaction) tendered pursuant
to the U.S. Offer. Such gain or loss will be long-term capital gain or loss
provided that a holder's holding period for such Securities is more than one
year at the time of the consummation of the U.S. Offer. Long-term capital gains
recognized by an individual upon a disposition of Securities are eligible for
reduced rates of taxation. Certain limitations apply to the use of a holder's
capital losses.
If Mexican income tax is withheld with respect to the disposition of Shares
or CPOs by a U.S. Holder, a U.S. Holder who qualifies for exemption under the
income tax treaty in effect between the United States and Mexico or under
Mexican tax law from the imposition of Mexican tax on capital gains arising from
such disposition should apply for a refund of such withholding tax with the
appropriate Mexican agency. Such U.S. Holder will not be entitled to claim a
foreign tax credit with respect to such tax for U.S. federal income tax
purposes.
The conversion of GDSs by U.S. Holders in exchange for CPOs will not be
taxable for United States federal income tax purposes. U.S. Holders should take
an adjusted tax basis in the CPOs immediately after such exchange equal to their
adjusted tax basis immediately before such exchange in the GDSs exchanged
therefor, plus the amount of the fee paid to the Depositary in order to
effectuate such conversion.
Passive Foreign Investment Company. The above discussion assumes that Gemex
is not a passive foreign investment company ("PFIC") with respect to any holder
of Securities. Generally, Gemex would be a PFIC with respect to a U.S. Holder
if, during any year during such holder's holding period, 75% or
35
more of Gemex's annual gross income consisted of certain "passive" income or 50%
or more of the average value of Gemex's assets in any such year consisted of
assets that produced, or were held for the production of, such passive income.
Based on information provided in Gemex's Annual Report, we do not believe that
Gemex is a PFIC for the current year, and we assume that Gemex was not a PFIC
with respect to any previous year.
If Gemex were a PFIC with respect to any U.S. Holder, such holder generally
would be required to pay an interest charge together with tax calculated at the
maximum ordinary income tax rate with respect to all or a portion of its gain
from the sale of Securities for cash pursuant to the U.S. Offer. This special
PFIC rule generally would not apply to the sale of Securities for cash pursuant
to the U.S. Offer, however, if, in the first year of such holder's ownership of
Securities that Gemex was a PFIC ("Initial Year"), the holder either (x) made an
election to treat Gemex as a qualified electing fund to include in income on a
current basis such holder's share of the income or gain of Gemex ("QEF
Election") or (y) made an election ("Mark-to-Market Election") to recognize on a
current basis increases or decreases in the value of the holder's Securities. If
the holder did not make a QEF Election in the Initial Year but did make a QEF
Election in a subsequent year, the special PFIC rule also generally would not
apply if such holder had made an additional election ("Purging Election") to
include certain amounts in income with respect to its Securities in the year the
Purging Election was made.
Any U.S. Holder who believes that Gemex is or may be a PFIC with respect
such holder is urged to consult its tax advisors.
Information Reporting and Backup Withholding. A U.S. Holder whose
Securities are purchased in the U.S. Offer may be subject to information
reporting. In addition, a U.S. Holder of Securities may be subject to backup
withholding at the rate of 30% on the proceeds from the sale of Securities
pursuant to the U.S. Offer unless such holder is an exempt recipient (such as a
corporation) or provides the respective U.S. or Mexican Receiving Agent with the
holder's correct taxpayer identification number and certifies that such holder
is exempt from or otherwise not subject to backup withholding by completing the
Substitute Form W-9 included with the GDS Letter of Transmittal. Backup
withholding is not an additional tax. The amount of any backup withholding will
be allowed as a credit against the United States federal income tax liability of
any holder subject to backup withholding. In addition, procedures are available
to holders subject to backup withholding to obtain a refund of the amount of any
excess backup withholding. For further information concerning backup withholding
and instructions for completing the Substitute Form W-9, consult the enclosed
"Guidelines for Certification of Taxpayer Identification Number on Substitute
Form W-9."
BECAUSE INDIVIDUAL CIRCUMSTANCES MAY DIFFER, HOLDERS OF SECURITIES ARE
URGED TO CONSULT THEIR TAX ADVISORS TO DETERMINE THE APPLICABILITY OF THE RULES
DISCUSSED ABOVE AND THE SPECIFIC TAX CONSEQUENCES OF THE U.S. OFFER TO THEM,
INCLUDING THE APPLICATION AND EFFECT OF THE ALTERNATIVE MINIMUM TAX, AND ANY
STATE, LOCAL AND FOREIGN TAX LAWS AND OF CHANGES IN SUCH LAWS.
Material Mexican income tax consequences
Gemex is a company incorporated and existing under Mexican law. Generally,
under the Mexican Income Tax Statute ("MITS"), the sale of stock issued by a
Mexican company generates Mexican-source income that is subject to income tax in
Mexico, without regard to the tax residency of the seller. However, gain from
the sale of stock of a Mexican company that is traded over a recognized
securities market is exempt from Mexican income tax in certain cases, as
described below.
Mexican residents
- Mexican resident individuals who were not security holders of Gemex when
its securities became publicly traded. A Mexican resident individual who
derives income from the sale of stock of a Mexican company in a sale of
shares over a recognized securities exchange designated as such
36
under the Ley de Mercado de Valores, which we refer to as the "Mexican
Securities Law," or a securities exchange located in a country with which
Mexico has entered into a double taxation treaty is exempt from Mexican
income tax on such sale. The same tax treatment is applicable to the sale
of depositary receipts issued by a non-Mexican financial institution with
reference to stock of a Mexican entity, such as the GDSs, that are traded
in a non-Mexican securities exchange, located in a country with which
Mexico has entered into a double taxation treaty. In this latter case,
Mexican resident individuals will have to file an annual tax return
declaring capital gains derived from the sale of such depositary receipts.
Failure to file such return will void the exemption referred in this
paragraph only for capital gains derived from the sale of these depositary
receipts.
- Mexican resident individuals who were security holders of Gemex when its
securities became publicly traded. Income derived by individuals who were
security holders of Gemex when its securities became publicly traded
(i.e., Gemex registered before the RNV) will qualify for the exemption
only if the following conditions are met:
- five uninterrupted years have elapsed since the initial public
offering of Gemex;
- at least 35% of the subscribed and paid stock of Gemex is publicly
traded, as defined by the Mexican administrative regulations issued by
the Ministry of Finance and Public Credit;
- the tender offer comprises all the classes of stock of Gemex and is at
the same price per share for all security holders, and
- all security holders are entitled to accept more favorable offers,
without incurring any penalties.
Failure to comply with any of the requirements mentioned above will
cause the sale to be taxable for that particular security holder.
- Mexican resident entities. Mexican resident entities will be subject to
income tax in Mexico for capital gains derived from the sale of stock over
a securities exchange at the Mexican statutory corporate tax rate of 35%.
Non-Mexican residents
In general, the sale of stock issued by a Mexican company will create
Mexican-source income that is taxable to a non-Mexican resident in Mexico.
Certain exemptions apply to stock or depositary receipts that are traded over a
recognized securities market, as described below:
- Non-Mexican resident individuals who were not security holders of Gemex
when its securities became publicly traded. The sale of stock by a
non-Mexican resident individual in a transaction traded over a recognized
securities exchange designated as such under the Mexican Securities Law or
a securities exchange located in a country with which Mexico has entered
into a double taxation treaty is exempt from income tax in Mexico. The
same tax treatment is applicable to depositary receipts issued by a
non-Mexican financial institution with reference to stock issued by a
Mexican entity, such as the GDSs, that are traded in a non-Mexican
securities exchange located in a country with which Mexico has entered
into a double taxation treaty.
- Non-Mexican resident individuals who were security holders of Gemex when
its securities became publicly traded. In tender offers, income derived
by non-Mexican resident individuals who were security holders of Gemex
when its securities became publicly traded (i.e., Gemex was registered
before the RNV) will be exempt if the conditions mentioned above under the
caption "-- Mexican resident individuals -- Mexican resident individuals
who were security holders of Gemex when its securities became publicly
traded" are met. Otherwise, such individual will be taxed.
- Non-Mexican resident entities that were not security holders of Gemex
when its securities became publicly traded. In the case of non-Mexican
resident entities, income derived from the sale of stock issued by a
Mexican company, or of depositary receipts issued by a non-Mexican
financial institution with reference to stock issued by a Mexican company,
such as the GDSs, that are traded over a securities exchange, will be
taxable in Mexico. However, certain administrative regulations
37
currently allow such transactions to be exempted if the stock or
depositary receipt is traded over a recognized securities exchange
designated as such under the Mexican Securities Law or a securities
exchange located in a country with which Mexico has entered into a double
taxation treaty, provided certain conditions are met.
- Non-Mexican resident entities that were security holders of Gemex when
its securities became publicly traded. As in the case of non-Mexican
resident individuals, should a non-Mexican resident entity be a security
holder of Gemex at the time its securities became publicly traded, the
conditions mentioned above under the caption "-- Mexican resident
individuals -- Mexican resident individuals who were security holders of
Gemex when it became publicly traded" will have to be met in order for the
sale in a public tender offer to be exempted from income tax in Mexico.
Tax basis in shares of Gemex stock for Mexican tax purposes. Under recent
Mexican tax legislation, for purposes of calculating taxable income, the tax
basis is the higher of:
- the average of the last twenty two (22) stock quotes in the calendar year
2001 of the shares being transferred, or
- the tax basis of the shares being transferred under the normal tax basis
rules as provided in the MITS (i.e., the acquisition price, plus (minus)
certain adjustments).
If the stock quotes used under the first method listed above are "unusual," then
the taxpayer must use the average stock quotes for the last six months of the
calendar year 2001. The MITS does not define the standard to be used in
determining whether the quotes are "unusual."
Mexican withholding tax consequences
- Withholding tax consequences for Mexican resident individuals and
non-Mexican residents. If the sale is taxable to a Mexican individual or
to a non-Mexican resident (whether or not such resident is an individual
or an entity), the "broker in charge of the sale" will have to withhold
20% of the taxable profits derived in the transaction. For purposes of
determining the taxpayer's gain, the basis rules outlined above in "-- Tax
basis in shares of Gemex stock for Mexican tax purposes" are applicable.
Alternatively, the "broker in charge of the transaction" may withhold 5%
of the gross proceeds of the sale at the election of the seller. The
taxpayer may take a credit for any Mexican income taxes owed or request a
refund for any taxes withheld by the "broker in charge of the sale" with
the appropriate documentation (see "-- Accival's intention to withhold on
Shares and/or CPOs tendered" below). The MITS and its current regulations
do not define who is considered to be the "broker in charge of the sale."
- Withholding tax consequences for Mexican resident entities. Under the
MITS, the "broker in charge of the sale" has no obligation to withhold
from the proceeds of the sale payable to a Mexican resident entity.
- Withholding tax consequences for U.S. beneficiaries of the U.S.-Mexican
Tax Treaty. Mexico has entered into certain treaties to avoid double
taxation, pursuant to which Mexico will not tax capital gains in certain
cases, if the effective beneficiary is resident of a country with which
Mexico has entered into such a treaty. In the case of the U.S.-Mexico
Treaty, Mexico will be precluded from imposing taxes on capital gains,
unless (i) 50% or more of the value of such U.S. entity's shares is
represented by real estate situated in Mexico; (ii) the U.S. holder owned
more than 25% of the outstanding shares (including GDSs) of Gemex,
directly or indirectly, during the preceding 12-month period; or (iii) the
gain is attributable to a permanent establishment or fixed base of the
U.S. holder in Mexico. The application of the treaty will override any
Mexican internal provision in this respect.
- Accival's intention to withhold on Shares and/or CPOs tendered. The
recent changes to the MITS outlined above are unclear with respect to
whether the Mexican Dealer Manager has an obligation to withhold Mexican
income tax on any proceeds to be received by holders of Shares and/or
CPOs. The Mexican Dealer Manager has requested a ruling from the Mexican
tax authorities in order to
38
clarify some of the issues in the Mexican tax legislation with regard to
its obligation to withhold on the proceeds of this tender offer. However,
the Mexican Dealer Manager has not received a response as of the date of
this Offer. As a result of the uncertainty in this legislation, as well as
practical difficulties in determining the identity of holders, the Mexican
Dealer Manager currently intends to require all holders of Shares and/or
CPOs, through their custodians, to consent to a 5% income tax withholding
by the Mexican Dealer Manager on the gross proceeds to be paid by
Embotellador HM to each holder. As part of this consent, the holder will
also be required to:
- acknowledge that the Mexican Dealer Manager will not apply any other
mechanism of withholding or income tax exemption provided under
Mexican Law or under any tax treaty to avoid double taxation and such
holder agrees not to exercise the option to have a 20% income tax
withholding on the gain, if any, and
- release, under all circumstances, the Mexican Dealer Manager from any
liability related to any claim brought against such holder arising
from a withholding made as described above.
The foregoing does not preclude any holder from enforcing any rights it may
have before the appropriate tax authorities.
The 5% income tax withholding will be delivered by the Mexican Dealer
Manager to the Ministry of Finance and Public Credit on behalf of the
holders of Shares and CPOs. The holders may, through their custodian,
request from the Mexican Dealer Manager a withholding certificate that will
enable them to claim any applicable tax refund from the Ministry of Finance
and Public Credit or to credit on income tax. In order for the Mexican
Dealer Manager to issue the relevant withholding certificates, the
custodian must deliver to the Mexican Dealer Manager, together with the
Acceptance Letter, the following information:
- the number of Shares and/or CPOs tendered by the holder,
- the full name of the holder,
- the tax domicile of the holder,
- the federal tax identification number (RFC) of the holder (only
Mexican tax residents), and
- the CURP of the Holder (identity card code for Mexican residents).
Any amount withheld by a "broker in charge of the sale" must be deposited
with the Ministry of Finance and Public Credit within the first seventeen
days of the month following the time of the transaction. Failure to
withhold and to file the required return as required by law will cause the
"broker in charge of the sale" to become jointly liable for the payment of
taxes. Generally, no withholding obligation exists whenever the transaction
is exempt from the payment of taxes or if the sale meets certain
requirements provided in Section 109, paragraph XXVI of the MITS, and the
CNBV issues a statement certifying that certain facts are true. The CNBV
has advised that it is currently not issuing any certification pending
clarification of the relevant tax regulations.
If, during the Offer period, the Mexican Dealer Manager receives a response
to its ruling request or the Mexican tax authorities issue any new public
guidance with respect to a party's obligation to withhold, the applicable
tax treatment by the Mexican Dealer Manager described in the previous
paragraphs could be modified to conform to the terms and conditions of any
such guidance by the tax authorities. If the Mexican Dealer Manager
determines, in its sole discretion, that the new guidance releases it from
any obligation to withhold with respect to a particular holder of Shares
and/or CPOs, then the Mexican Dealer Manager will not withhold from the
proceeds due to that holder even if the Holder has agreed to such
withholding pursuant to the terms of the Acceptance Letter.
In addition, if a holder, through its custodian, delivers to the Mexican
Dealer Manager a copy of a specific ruling from the Ministry of Finance and
Public Credit confirming that such holder is exempt from Mexican income tax
and/or withholding tax in connection with the sale of its Shares and/or
CPOs, then the Mexican Dealer Manager will not withhold from the proceeds
due to that holder even if the holder has agreed to such withholding
pursuant to the terms of the Acceptance Letter.
39
The U.S. Receiving Agent does not intend to withhold for holders who tender
GDSs in the U.S. Offer.
BECAUSE INDIVIDUAL CIRCUMSTANCES MAY DIFFER, YOU SHOULD CONSULT YOUR TAX
ADVISOR REGARDING THE APPLICABILITY OF THE RULES DISCUSSED ABOVE TO YOU AND THE
PARTICULAR TAX EFFECTS TO YOU OF THE OFFERS.
INFORMATION AGENT, RECEIVING AGENTS, U.S. DEALER MANAGER AND OTHER EXPENSES
We have retained Salomon Smith Barney Inc. as U.S. Dealer Manager in
connection with the U.S. Offer and as our financial advisor in connection with
the proposed acquisition of all of the capital stock of Gemex. The U.S. Dealer
Manager has not been retained to make solicitations. The U.S. Dealer Manager
will receive reasonable and customary compensation for acting in the foregoing
capacities. We also agreed to reimburse the U.S. Dealer Manager for its
out-of-pocket expenses, including the fees and expenses of legal counsel and
other advisors, incurred in connection with its engagement, and to indemnify the
U.S. Dealer Manager and certain related persons against certain liabilities and
expenses in connection with its engagement, including certain liabilities under
the federal securities laws.
We have retained The Bank of New York to act as the U.S. Receiving Agent in
connection with the tender of GDSs in the U.S. Offer. The U.S. Receiving Agent
has not been retained to make solicitations or recommendations in its role as
receiving agent. The U.S. Receiving Agent will receive reasonable and customary
compensation for its services, will be reimbursed for certain reasonable
out-of-pocket expenses and will be indemnified against certain liabilities in
connection therewith, including certain liabilities under the U.S. Federal
securities laws.
We have retained Acciones y Valores de Mexico, S.A. de C.V., or Accival, to
act as the Mexican Receiving Agent in connection with the tender of Shares and
CPOs in the U.S. Offer and to act as the Mexican Dealer Manager in connection
with the Mexican Offer. Accival has not been retained to make solicitations or
recommendations in its role as receiving agent. Accival will receive reasonable
and customary compensation for its services, will be reimbursed for certain
reasonable out-of-pocket expenses and will be indemnified against certain
liabilities in connection therewith, including certain liabilities under the
U.S. Federal securities laws.
We have retained Morrow & Co., Inc. to act as the Information Agent in
connection with the U.S. Offer. The Information Agent may contact holders of
Securities by mail, telephone, telex, telegraph and personal interviews and may
request brokers, dealers and other nominee security holders to forward materials
relating to the U.S. Offer to beneficial owners. The Information Agent will
receive reasonable and customary compensation for its services, will be
reimbursed for certain reasonable out-of-pocket expenses and will be indemnified
against certain liabilities in connection therewith, including certain
liabilities under the U.S. Federal securities laws.
The estimated expenses in connection with the U.S. Offer, the Mexican Offer
and the transactions related thereto, are as follows:
[Download Table]
TYPE OF EXPENSE AMOUNT
--------------- -----------
Legal fees and expenses..................................... $ 3,229,050
Dealer Manager and Financial Advisor........................ $ 1,200,000
Information Agent........................................... $ 12,000
Receiving Agents............................................ $ 330,000
Auditors.................................................... $ 4,621,395
Advertising................................................. $ 114,000
Printing.................................................... $ 60,468
Filing fees................................................. $ 81,427
Other....................................................... $ 1,351,660
-----------
TOTAL....................................................... $11,000,000
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CERTAIN LEGAL MATTERS; REGULATORY APPROVALS
Based on our examination of publicly available information filed by Gemex
with the SEC and other publicly available information concerning Gemex, except
for actions or approvals by the SEC, CNBV, the Mexican Stock Exchange and the
Mexican Federal Competition Commission, neither we nor BG LLC is aware of:
- any governmental license or regulatory permit that appears to be material
to Gemex's business that might be adversely affected by our acquisition
of Securities as contemplated herein;
- any approval or other action by any government or governmental
administrative or regulatory authority or agency, domestic or foreign,
that would be required for the acquisition or ownership of Securities by
us as contemplated herein; or
- any approval or other action by any government or governmental
administrative regulatory authority or agency, domestic or foreign, or
any consent, waiver or other approval that would be required as a result
of or in connection with the U.S. Offer.
Should any such approval or other action be required, we and BG LLC
currently contemplate that such approval or other action will be sought. We and
BG LLC are unable to predict whether such approval or other action may determine
that we are required to delay the acceptance for payment of or payment for
Securities tendered pursuant to the U.S. Offer pending the outcome of any such
matter. There can be no assurance that any such approval or other action, if
needed, would be obtained or would be obtained without substantial conditions or
that if such approvals were not obtained or such other actions were not taken
adverse consequences might not result to Gemex's business or certain parts of
Gemex's business might not have to be disposed of, any of which could cause us
to elect to terminate the U.S. Offer without the purchase of Securities
thereunder. Our obligation under the U.S. Offer to accept for payment and pay
for Securities is subject to certain conditions as described above under the
caption "Certain conditions to the U.S. Offer."
OUR PLANS FOR GEMEX; TRANSACTIONS AND OPERATIONS FOLLOWING THE U.S. OFFER
Gemex Shares, CPOs and GDSs. Following the consummation of the U.S. Offer,
we intend to cause Gemex to delist the GDSs from the NYSE, which will result in
the de-registration of the GDSs and the underlying CPOs, Shares, D Shares and L
Shares under Section 12(b) of the Exchange Act. Following the consummation of
the Mexican Offer, we also intend to cause Gemex to deregister its Shares and
CPOs from the RNV and to delist them from the Mexican stock exchange and to
cease being subject to the reporting requirements applicable to publicly traded
companies in Mexico. The consummation of the Offers will also substantially
reduce the number of security holders, and the number of Securities which are
still in the hands of the public after the consummation of the Offers may be so
small that there will no longer be an active public trading market (or,
possibly, there may not be any public trading market) for such Securities.
In the event that, following the consummation of the Offers, any Securities
remain outstanding, then, to the extent required under Mexican regulations,
prior to the deregistration of the Shares and CPOs from the RNV and their
delisting from the Mexican Stock Exchange, we will deposit in a trust for a
period of two years the funds, in Mexican pesos, that would be required to
purchase all remaining Securities (assuming conversion of any remaining GDSs
into CPOs) at the same price paid in the Mexican Offer. Immediately after the
delisting of Gemex's Securities from the Mexican Stock Exchange, we intend to
cause Gemex to carry out a reverse stock split in order to eliminate for cash,
at the same Mexican peso price paid in the Mexican Offer, the Securities held by
any remaining security holders in accordance with Mexican law.
Plans for Gemex. We have made a preliminary review, and will continue to
review, on the basis of available information, various possible business
strategies for Gemex. As soon as practicable following the purchase of the
Securities pursuant to the Offers and the reverse stock split, PBG and BG LLC
intend to cause us to merge with and into Gemex, which will be the surviving
entity of such merger. In addition, in
41
accordance with the Molina Agreement to Tender, upon the purchase of the
Securities pursuant to the Offers, Mr. Molina's employment agreement with Gemex
and all arrangements and understandings related to it will terminate and Mr.
Molina will release Gemex and its affiliates from any and all claims and
liabilities arising from his employment with Gemex and/or its subsidiaries.
Under the Molina Agreement to Tender, we acknowledge that Mr. Molina will be
entitled to receive approximately Ps.141.1 million in full satisfaction of his
rights under Gemex's executive pension plan and all other statutory and
severance benefits following the termination of his employment with Gemex and
agree to cause the pension plan to remit such amount to Mr. Molina in accordance
with the terms of the pension plan. We also intend to elect new directors to
Gemex's Board of Directors by a meeting of security holders to be held promptly
after the consummation of the Offers and to appoint certain new officers to
Gemex.
Except as described above and subject to our ongoing review, we have no
current plans, proposals or negotiations which relate to or would result in any
other material change in Gemex's corporate structure or business.
42
INFORMATION REGARDING GEMEX
GENERAL
The information contained in this U.S. Offer regarding Gemex, including
Gemex's selected financial data presented below, is derived from or is based
upon reports and other documents on file with the SEC, including Gemex's Annual
Report and other publicly available data. Although we do not have any knowledge
that would indicate that any statements contained herein based on such reports
or documents are untrue, we do not take any responsibility for the accuracy or
completeness of the information contained in such reports and other documents or
for failure by Gemex to disclose events that may have occurred and may affect
the significance or accuracy of any such information but that are unknown to us.
Gemex is subject to the informational requirements of the Exchange Act.
Accordingly, Gemex files reports and other information with the SEC. Gemex also
furnishes to its stockholders annual reports, which include financial statements
audited by its independent certified public accountants, and other reports which
the law requires Gemex to send to its stockholders. You may read and copy any
reports or other information that Gemex files with the SEC at the SEC's public
reference room at Judiciary Plaza, 450 Fifth Street N.W., Washington, D.C.
20549. You may obtain information on the operation of the public reference room
by calling the SEC at 1-800-SEC-0330. These reports and other information may
also be inspected at the offices of the New York Stock Exchange, 20 Broad
Street, New York, New York 10005. As a foreign private issuer, Gemex is not
required to furnish proxy statements to holders of Shares, CPOs or GDSs.
According to Gemex's Annual Report, Gemex is the largest bottler outside
the United States of PepsiCo soft drink products based on sales volume. Gemex is
a Mexican holding company that, through its bottling and distribution
subsidiaries, produces, sells and distributes a variety of soft drink products
under the Pepsi-Cola, Pepsi Light, Pepsi Max, Pepsi Limon, Mirinda, 7UP, Diet
7UP, Kas, Mountain Dew, Power Punch and Manzanita Sol trademarks pursuant to
exclusive franchise and bottling arrangements with PepsiCo and certain
affiliates of PepsiCo. Gemex is the sole and exclusive anchor bottler for
PepsiCo in Mexico. Gemex also produces, sells and distributes a variety of
non-PepsiCo products such as soft drinks under the trademark Squirt and purified
and mineral water under the trademarks Electropura and Garci Crespo. Gemex's
principal office is located at Avenida Acoxpa No. 69, Col. San Lorenzo Huipulco,
Delegacion Tlalpan, 14370 Mexico, D.F., Mexico, telephone +52-55-5627-8600.
CAPITAL STOCK
According to publicly available information concerning Gemex filed with the
SEC, including its Annual Report, as of June 17, 2002, there were 758,171,017
series B shares outstanding, 374,711,008 series D shares outstanding and
374,711,008 series L shares outstanding. Of these shares, 374,711,008 series B
shares, and all series D shares and series L shares were held in the form of
CPOs (each CPO consists of one share of each of the foregoing series). According
to the Depositary, of the 374,711,008 CPOs outstanding, as of September 10,
2002, 17,281,121 were held in the form of GDSs (each GDS consists of six CPOs).
PepsiCo, owned, directly or indirectly, as of August 9, 2002, approximately
42.7% of the voting power of all classes of PBG's voting stock and, according to
Gemex's Annual Report, also owned, directly or indirectly, approximately 34.4%
of the total outstanding capital stock of Gemex, as of June 26, 2002. All of
PepsiCo's Securities are deposited in the Molina/PepsiCo Trust that grants Mr.
Molina the power to direct the voting of PepsiCo's Securities, absent certain
events, until December 31, 2002. However, during that time PepsiCo has the right
to approve certain decisions of Gemex's management.
According to information in Gemex's Annual Report and an amendment to Mr.
Molina's Schedule 13D filed on September 18, 2002, Mr. Molina had beneficial
ownership over approximately 74.5% of the total capital stock of Gemex, as of
September 10, 2002, including (i) Shares and CPOs deposited by PepsiCo and its
subsidiaries in the Molina/PepsiCo Trust, and (ii) immediately exercisable
43
options held by Mr. Molina to buy series T shares of Gemex which are convertible
into CPOs. Without giving effect to PepsiCo's Shares and CPOs deposited in the
PepsiCo/Molina Trust and to Mr. Molina's options to buy series T shares of
Gemex, Mr. Molina owned, directly or indirectly, approximately 40.0% of the
total outstanding capital stock of Gemex, as of September 10, 2002.
PRICE RANGE OF SECURITIES
Price range of Shares. The series B shares are listed and traded on the
Mexican Stock Exchange under the symbol "PEPSIGX." The last trade of Shares
reported by the Mexican Stock Exchange occurred on May 4, 2001 and the closing
price of the Shares at that time was Ps.5.00 per Share.
The U.S. Offer price of Ps.5.91 per Share will be paid in U.S. dollars
based on the Applicable Exchange Rate. On October 4, 2002, the New York closing
exchange rate of Mexican pesos to U.S. dollars reported by Reuters and Bloomberg
on their FXBENCH page was Ps.10.1985 per US$1.00. Exchange rates are subject to
fluctuation. Holders are urged to obtain a current market quotation of the
exchange rate of Mexican pesos to U.S. dollars.
Price range for CPOs. The CPOs are listed and traded on the Mexican Stock
Exchange under the symbol "PEPSIGX". The following table sets forth, for the
periods indicated, the quarterly high and low per CPO closing prices of the CPOs
in Mexican pesos, as reported by Bloomberg. The following information reflects
nominal Mexican peso amounts as of the trade dates and has not been restated in
constant Mexican pesos.
[Download Table]
HIGH LOW
----- -----
(PS.) (PS.)
Calendar Year 2002
First Quarter............................................. 12.50 9.51
Second Quarter............................................ 17.00 12.70
Third Quarter............................................. 17.10 15.50
Fourth Quarter (through October 4, 2002).................. 17.00 17.00
Calendar Year 2001
First Quarter............................................. 8.10 6.02
Second Quarter............................................ 9.70 7.40
Third Quarter............................................. 11.00 8.12
Fourth Quarter............................................ 10.10 6.30
Calendar Year 2000
First Quarter............................................. 10.18 7.16
Second Quarter............................................ 8.88 7.28
Third Quarter............................................. 8.50 7.22
Fourth Quarter............................................ 8.40 6.20
On May 7, 2002, the last full day of trading on the Mexican Stock Exchange
prior to the public announcement of the Offers, the reported closing sales price
of the CPOs by Bloomberg was Ps.14.90 per CPO. On October 4, 2002, the last full
day of trading prior to the date of this U.S. Offer, the reported closing sales
price of the CPO by Bloomberg was Ps.17.00 per CPO. Holders of CPOs are urged to
obtain a current market quotation for the CPOs.
The U.S. Offer price of Ps.17.73 per CPO will be paid in U.S. dollars based
on the Applicable Exchange Rate. On October 4, 2002, the New York closing
exchange rate of Mexican pesos to U.S. dollars reported by Reuters and Bloomberg
on their FXBENCH page was Ps.10.1985 per US$1.00. Exchange rates are subject to
fluctuation. Holders are urged to obtain a current market quotation of the
exchange rate of Mexican pesos to U.S. dollars.
44
Price range of GDSs. The GDSs are listed and traded on the NYSE under the
symbol "GEM." Each GDS represents six CPOs. The following table sets forth, for
the periods indicated, the quarterly high and low closing prices of the GDSs in
U.S. dollars as reported by Bloomberg.
[Download Table]
HIGH LOW
----- -----
($) ($)
Calendar Year 2002
First Quarter............................................. 8.50 6.00
Second Quarter............................................ 10.50 8.41
Third Quarter............................................. 10.38 9.73
Fourth Quarter (through October 4, 2002).................. 10.15 10.08
Calendar Year 2001
First Quarter............................................. 5.05 3.88
Second Quarter............................................ 6.04 4.63
Third Quarter............................................. 7.18 4.98
Fourth Quarter............................................ 6.70 4.30
Calendar Year 2000
First Quarter............................................. 6.44 4.69
Second Quarter............................................ 5.50 4.44
Third Quarter............................................. 5.56 4.31
Fourth Quarter............................................ 5.50 3.75
On May 7, 2002, the last full day of trading on the NYSE prior to the
public announcement of the Offers, the reported closing sales price of the GDSs
by Bloomberg was US$9.20, or Ps.87.30, per GDS using the exchange rate of
Ps.9.4890 per US$1.00 reported by Reuters and Bloomberg on their FXBENCH page as
the New York closing rate on May 7, 2002.
On October 4, 2002, the last full day of trading prior to the date of this
U.S. Offer, the reported closing sales price of the GDSs by Bloomberg was
US$10.08, or Ps.102.80, per GDS using the exchange rate of Ps.10.1985 per
US$1.00 reported by Reuters and Bloomberg on their FXBENCH page as the New York
closing rate on October 4, 2002. Holders of GDSs are urged to obtain a current
market quotation for the GDSs.
DIVIDENDS
The table below sets forth the nominal Mexican peso amount of dividends
declared in respect of each series of Shares for fiscal years 1999, 2000 and
2001, as reported in Gemex's Annual Reports, paid in respect of each of the
years indicated. Holders of CPOs on the date the payment of dividends is
announced are entitled to receive any dividends payable in respect of the Shares
underlying the CPOs. Holders of GDSs on the date the payment of dividends is
announced are entitled to receive any dividends payable in respect of the Shares
underlying the CPOs represented by the GDSs (each GDS representing six CPOs).
Cash dividends on the CPOs represented by the GDSs are paid to the Depositary in
Mexican pesos and are converted by the Depositary into U.S. dollars and are paid
to the holders of the GDSs, net of currency conversion expenses.
[Download Table]
B SHARE L SHARE D SHARE
-------- -------- --------
(PS.) (PS.) (PS.)
1999................................................. -- -- --
2000................................................. -- -- --
2001................................................. 0.145075 0.145075 0.220376
The dividend declared in 2001 was paid in Mexican pesos on June 28, 2002.
45
On April 30, 2002, the security holders of Gemex authorized the Board of
Directors of Gemex to announce at any time in its discretion a dividend payment
to security holders of an aggregate of Ps.297,594,000 of Gemex's retained
earnings as follows: (i) Ps.0.25743226 for each of the 374,711,008 shares of
Series D Preferred Shares outstanding (including the Series D preferred
dividend); (ii) Ps.0.17753949 for each of the 758,171,017 Shares outstanding;
and (iii) Ps.0.17753949 for each of the 374,711,008 shares of Series L Limited
Voting Shares outstanding. Holders of CPOs will receive Ps.0.61251124 for each
of their CPOs (which includes the dividends on the shares underlying the CPOs).
No payment date for such dividend had been set as of October 4, 2002. Under the
Molina Agreement to Tender, we may reduce the purchase prices we are offering in
this U.S. Offer by the amount of all dividends, including the dividends declared
but not yet paid as mentioned above, for which a payment date is announced or
published by Gemex on or prior to the expiration date and which is payable after
the date of this U.S. Offer and prior to the date of purchase of the Securities
pursuant to the Offers, if any. Alternatively, if we consummate the U.S. Offer
and pay for the Securities tendered without reducing the offering price, Mr.
Molina will pay us within five business days after the expiration date the
aggregate amount of all such dividends paid or announced to be paid to security
holders of Gemex, other than PBG or any of its subsidiaries, including us.
46
SELECTED FINANCIAL DATA OF GEMEX
The following table presents historical selected financial data of Gemex
for each of the last two fiscal years. This information is derived from Gemex's
Annual Report, except "Ratio of Earnings to Fixed Charges," which was provided
by Gemex. Gemex composed this summary from its audited financial statements,
which are included, together with the notes thereto, in such Annual Report filed
with the SEC on July 1, 2002. Gemex's financial statements and the table below
are prepared in accordance with Mexican GAAP, which differ in certain
significant respects from U.S. GAAP. Such differences are explained in detail in
note number 18 of the auditors' notes accompanying Gemex's audited financial
statements. A copy of the reconciliation note is attached to this U.S. Offer to
Purchase as Annex III.
[Enlarge/Download Table]
2000 2001 2001
--------------- ---------------- -------------
(THOUSANDS OF CONSTANT PESOS AS OF (THOUSANDS OF
DECEMBER 31, 2001)(1) DOLLARS)(2)
INCOME STATEMENT DATA:
MEXICAN GAAP:
Revenues:
Net Sales...................................... Ps.9,572,760 Ps.11,036,212 $1,204,827
Other.......................................... 87,652 56,997 6,222
------------ ------------- ----------
Total Revenues............................... 9,660,412 11,093,209 1,211,049
------------ ------------- ----------
Costs and Expenses:
Cost of Sales.................................. 4,256,900 4,898,743 534,797
Selling Expenses(3)............................ 3,487,790 3,969,210 433,320
General and Administrative Expenses............ 566,103 651,262 71,098
Depreciation and Amortization.................. 308,890 403,090 44,005
------------ ------------- ----------
Total Costs and Expenses..................... 8,619,683 9,922,305 1,083,220
------------ ------------- ----------
Operating Income.................................. 1,040,729 1,170,904 127,829
------------ ------------- ----------
Other Income (Expense) -- Net..................... (31,513) (197,396) (21,550)
------------ ------------- ----------
Restructuring Charge.............................. 568,980 136,866 14,942
------------ ------------- ----------
Integral Cost (Income) of Financing:
Interest Income................................ (14,897) (5,981) (653)
Interest Expense............................... 404,303 399,655 43,630
Exchange Loss (Gain) -- Net.................... 71,295 (217,594) (23,755)
Monetary Position Gain......................... (426,608) (158,625) (17,317)
------------ ------------- ----------
Total Integral Cost (Income) of Financing --Net... 34,093 17,455 1,905
------------ ------------- ----------
Income Before Provisions and Extraordinary Gain... 406,143 819,187 89,432
Income Taxes and Asset Tax..................... (174,419) 228,846 24,985
Employee Statutory Profit-Sharing.............. 64,971 (4,847) (529)
------------ ------------- ----------
Income Before Extraordinary Gain............... 515,591 595,188 64,976
Extraordinary Gain(4).......................... -- -- --
------------ ------------- ----------
Consolidated Net Income........................... 515,591 595,188 64,976
============ ============= ==========
Earnings per Series B Share....................... 0.34 0.36 0.04
============ ============= ==========
Earnings per CPO.................................. 1.19 1.23 0.13
============ ============= ==========
Earnings per GDS.................................. Ps. 7.12 Ps. 7.36 $ 0.80
============ ============= ==========
Ratio of Earnings to Fixed Charges................ 3.75 4.47 4.47
U.S. GAAP:
Net Income........................................ Ps. 207,590 Ps. 310,352 $ 33,881
============ ============= ==========
Earnings per Series B Share....................... 0.14 0.19 0.02
============ ============= ==========
Earnings per CPO.................................. 0.48 0.64 0.07
============ ============= ==========
Earnings per GDS.................................. Ps. 2.87 Ps. 3.84 $ 0.42
============ ============= ==========
47
[Enlarge/Download Table]
2000 2001 2001
--------------- ---------------- -------------
(THOUSANDS OF CONSTANT PESOS AS OF (THOUSANDS OF
DECEMBER 31, 2001)(1) DOLLARS)(2)
BALANCE SHEET DATA (AT END OF PERIOD):
MEXICAN GAAP:
Total Current Assets.............................. Ps.2,335,951 Ps.1,836,448 $ 200,486
Property, Plant and Equipment -- Net.............. 7,262,477 7,125,890 777,936
Total Assets...................................... 11,288,080 10,579,045 1,154,918
Total Current Liabilities (including short-term
debt).......................................... 2,058,898 1,877,052 204,919
Short-Term Debt(5)................................ 916,557 376,910 41,147
Long-Term Debt.................................... 3,206,071 2,946,493 21,670
Total Stockholders' Equity........................ Ps.4,966,892 Ps.4,666,362 Ps. 509,428
U.S. GAAP:
Total Assets...................................... 11,807,716 11,721,033 1,279,588
Total Stockholders' Equity........................ 5,153,027 5,268,159 575,127
OTHER DATA:
MEXICAN GAAP:
EBITDA(6)......................................... Ps.1,514,894 Ps.1,695,830 $ 185,134
EBITDA/Net Interest Expense....................... 3.89x 4.31x 4.31x
Operating Profit Margin(7)........................ 10.8% 10.6% 10.6%
Capital Expenditures(8)........................... Ps.1,031,819 Ps.1,089,243 $ 118,913
Cash Dividends Declared........................... -- 246,931 26,958
Per Series B Share(9)............................. -- 0.1451 0.02
Per CPO(7)........................................ -- 0.5105 0.0557
Per GDS(7)........................................ -- 3.0630 0.3343
Soft Drink Sales Volume(10)....................... 311,455 347,113 N/A
Five Gallon Jugs.................................. 88,749 95,310 N/A
Single Serve/Multiserve........................... 22,636 27,935 N/A
Number of Employees (at end of period)............ 26,691 25,349 N/A
U.S. GAAP:
EBITDA(6)......................................... Ps.1,448,302 Ps.1,540,171 $ 168,141
INFLATION AND EXCHANGE RATE DATA:
Increase in NCPI.................................. 8.96% 4.40% N/A
Peso/dollar exchange rate (nominal pesos) (rate at
end of period)................................. 9.65 9.16 N/A
48
NOTES TO SELECTED FINANCIAL DATA
(1) Except for per Share, CPO and GDS data.
(2) Dollar translation is calculated solely for the convenience of the reader
at the Interbank Rate of Ps.9.16 per dollar, as reported by Centro de
Analisis y Proyecciones Economicas para Mexico, or CAPEM, on December 31,
2001, except for capital expenditures, which is translated at the average
rate for the entire year of 2001.
(3) Selling expense includes amortization of bottles and cases amounting to
Ps.165,275 and Ps.121,836 for the years 2000 and 2001, respectively.
(4) Extraordinary gain consists solely of the benefit from the utilization of
tax loss carryforwards and asset tax credit carryforwards.
(5) Includes current portion of long-term debt.
(6) EBITDA, for Mexican GAAP purposes, is defined as operating income plus
depreciation and amortization (including amortization of bottles and
cases), whereas for U.S. GAAP purposes, EBITDA is defined as operating
income plus depreciation and amortization (including amortization of
bottles and cases), plus the restructuring charge and adjustments from
impairment of long-lived assets and severance payments. EBITDA should not
be construed as an alternative to (a) consolidated net income as an
indicator of our operating performance or (b) cash flows from operating
activities, financing activities and investing activities as a measure of
our liquidity. Our definition of EBITDA may not necessarily be comparable
to other companies' definitions of EBITDA.
(7) Operating income expressed as a percentage of total revenues.
(8) These amounts are restated for inflation and exchange rate impact and are
net of disposals.
(9) Nominal pesos.
(10) In thousands of cases. Includes sales of soft drinks and mineral water
products.
49
The following tables present historical selected financial and operational
data of Gemex for the first half of 2002. This information is derived from
Gemex's Report on Form 6-K filed with the SEC on July 26, 2002, except book
value information, which was provided by Gemex.
[Enlarge/Download Table]
JUNE, 2002 DECEMBER, 2001
------------ ----------------
IN MILLIONS OF CONSTANT MEXICAN
PESOS AS OF JUNE 30, 2002(1)
Current Assets.............................................. Ps. 1,586 Ps. 1,884
Cash and cash equivalents................................. 282 102
Property, Plant & Equipment (net)........................... 7,218 7,000
Goodwill & Deferred Assets.................................. 1,606 1,903
Other Assets................................................ 63 63
Total Assets................................................ 10,473 10,850
--------- ---------
Short Term Debt............................................. 35 386
Other Liabilities........................................... 1,434 1,539
Current Liabilities......................................... 1,469 1,925
Long Term Debt.............................................. 3,195 3,022
Other Liabilities........................................... 1,454 1,117
Long Term Liabilities....................................... 4,649 4,139
Total Liabilities........................................... 6,118 6,064
Stockholder's Equity........................................ 4,355 4,786
Total Liabilities & Stockholder's Equity.................... 10,473 10,850
--------- ---------
Book Value per Series B Share............................... 2.89 --
Book Value per CPO.......................................... 8.67 --
Book Value per GDS.......................................... 52.00 --
---------------
(1) (9.965 Pesos = US$1.00)
50
[Enlarge/Download Table]
3 MONTHS 3 MONTHS 6 MONTHS 6 MONTHS
ENDED % OF ENDED % OF ENDED % OF ENDED % OF
JUNE 30, TOTAL JUNE 30, TOTAL JUNE 30, TOTAL JUNE 30, TOTAL
2002 REVENUES 2001 REVENUES 2002 REVENUES 2001 REVENUES
-------- -------- -------- -------- -------- -------- -------- --------
IN MILLIONS OF CONSTANT MEXICAN PESOS AS OF JUNE 30, 2002(1)
Total Volume (MM's 8oz
Cases)..................... 107.2 98.5 197.2 180.6
Soft Drinks (MM's 8oz.
Cases)..................... 96.0 90.5 177.8 165.6
Bottled Water (MM's 8oz.
Cases)..................... 11.2 8.0 19.4 15.0
Water Jug (MM's 19 Lts.
Jugs)...................... 30.0 26.2 53.5 48.3
Total Revenues............... Ps.3,308 100.0% Ps.3,006 100.0% Ps.6,003 100.0% Ps.5,498 100.0%
Cost of Sales................ 1,339 40.5% 1,323 44.0% 2,473 41.2% 2,361 42.9%
Gross Profit................. 1,969 59.5% 1,683 56.0% 3,530 58.8% 3,137 57.1%
Operating Expenses........... 1,325 40.0% 1,192 39.7% 2,443 40.7% 2,226 40.5%
EBITDA(2).................... 644 19.5% 491 16.3% 1,087 18.1% 911 16.6%
Depreciation &
Amortization............... 166 5.1% 145 4.8% 311 5.2% 296 5.4%
Operating Income............. 478 14.4% 346 11.5% 776 12.9% 615 11.2%
Other Expenses............... 46 1.4% 25 0.8% 84 1.4% 89 1.6%
Integral Cost of Financing... 396 12.0% (85) -2.8% 356 5.9% (94) -1.7%
Net interest expense....... 66 2.0% 120 4.0% 138 2.3% 222 4.1%
Foreign exchange loss
(gain)................... 358 10.8% (164) -5.5% 301 5.0% (236) -4.3%
Monetary position gain..... (28) -0.8% (41) -1.3% (83) -1.4% (80) -1.5%
Income before tax............ 36 1.0% 406 13.5% 336 5.6% 620 11.3%
Deferred tax................. 52 1.5% 77 2.6% 92 1.5% 86 1.6%
Tax.......................... 41 1.2% 82 2.7% 65 1.1% 98 1.8%
Net Income................... (57) -1.7% 247 8.2% 179 3.0% 436 7.9%
Ratio of earnings to fixed
charges.................... 10.59 4.04 7.90 3.71
---------------
(1) (9.965 Pesos = US$1.00)
(2) EBITDA, for Mexican GAAP purposes, is defined as operating income plus
depreciation and amortization (including amortization of bottles and cases).
EBITDA should not be construed as an alternative to (a) consolidated net
income as an indicator of our operating performance or (b) cash flows from
operating activities, financing activities and investing activities as a
measure of our liquidity. Our definition of EBITDA may not necessarily be
comparable to other companies' definitions of EBITDA.
51
INFORMATION REGARDING PBG, BG LLC AND EMBOTELLADOR HM
PBG is the world's largest manufacturer, seller and distributor of
Pepsi-Cola beverages. Pepsi-Cola beverages sold by PBG include Pepsi-Cola, Diet
Pepsi, Pepsi One, Pepsi Twist, Mountain Dew, Mountain Dew Code Red, Amp, Lipton
Brisk, Lipton's Iced Tea, Slice, Mug, Aquafina, Starbucks Frappucino,
Fruitworks, Sierra Mist, Dole and Sobe, and outside the United States, 7UP,
Pepsi Max, Mirinda and Kas. PBG has the exclusive right to manufacture, sell and
distribute Pepsi-Cola beverages in all or a portion of 41 states, the District
of Columbia, eight Canadian provinces, Spain, Greece, Russia and Turkey. In some
of its territories, PBG also has the right to manufacture, sell and distribute
soft drink products of other companies, including Dr. Pepper and All Sport in
the United States.
PBG was incorporated in Delaware in January 1999 as a wholly-owned
subsidiary of PepsiCo to effect the separation of most of PepsiCo's
company-owned bottling businesses. PBG became a publicly-traded company on March
31, 1999. As of August 9, 2002, PepsiCo owned approximately 37.6% of the
outstanding PBG common stock and 100% of the outstanding PBG Class B common
stock, together representing approximately 42.7% of the voting power of all
classes of PBG's voting stock. According to Gemex's Annual Report, PepsiCo also
owned as of June 26, 2002, directly or indirectly, approximately 34.4% of the
total capital stock of Gemex. PBG's main office is located at 1 Pepsi Way,
Somers, New York 10589-2201, telephone (914) 767-6000.
BG LLC was formed in Delaware in January, 1999. BG LLC is the principal
operating subsidiary of PBG. PBG owns approximately 93% of the equity interest
in BG LLC and PepsiCo owns approximately 7%. BG LLC's main office is located at
1 Pepsi Way, Somers, New York 10589-2201, telephone (914) 767-6000.
We were organized under the laws of Spain in June 2002, for the purpose of
carrying out the transactions contemplated in this U.S. Offer and the Mexican
Offer. We are an indirect majority-owned subsidiary of BG LLC. PBG holds,
indirectly, the minority interest in us. Our main office is located at Avenida
de los Olmos, #2, 01013, Vitoria, Spain, telephone +34 945 16 41 00. As a result
of PepsiCo's ownership interests in PBG, BG LLC and Gemex, we may be deemed to
be an affiliate of Gemex and the Offers commenced by us for all of the Shares,
CPOs and GDSs will constitute, if consummated, a "going-private transaction"
within the meaning of Rule 13e-3 promulgated under the Exchange Act.
Neither we nor PBG or BG LLC currently own any capital stock of Gemex.
PAST CONTACTS, TRANSACTIONS, NEGOTIATIONS AND AGREEMENTS
AGREEMENTS RELATED TO GEMEX'S SECURITIES
Master Joint Venture Agreement and Trust. According to information
provided in Gemex's Annual Report, in October 1995, Gemex entered into a master
joint venture agreement with PepsiCo, some of PepsiCo's subsidiaries and Mr.
Molina, Gemex's Chairman of the Board, Chief Executive Officer, and largest
security holder. Under the terms of the master joint venture agreement, Mr.
Molina and PepsiCo formed the Molina/PepsiCo Trust into which Mr. Molina
deposited a portion of his voting securities in Gemex and into which PepsiCo and
its subsidiaries deposited all of their voting securities in Gemex. The
Molina/PepsiCo Trust currently controls 63.4% of Gemex's Shares, giving the
trust the ability to elect a majority of Gemex's Board of Directors and
effective control over Gemex.
During Phase I of the joint venture agreement, which will end no later than
December 31, 2002, absent certain events, the shares in the trust are voted by
Mr. Molina. Consequently, Mr. Molina has the power to elect a majority of the
directors of Gemex and Gemex's management to determine the outcome of
substantially all actions requiring stockholder approval (including the
declaration, amount and payment of dividends), except some actions that may
involve a conflict of interest and some actions that require, pursuant to the
joint venture agreement, the approval of PepsiCo. During Phase II of the joint
venture agreement, PepsiCo will have the right to direct the vote of all of the
Shares and CPOs in the Molina/ PepsiCo Trust described above, including the CPOs
owned by Mr. Molina to the extent not previously
52
withdrawn by him. The voting power of the Shares and the CPOs in the
Molina/PepsiCo Trust currently is sufficient to give PepsiCo (during Phase II)
the ability to elect a majority of Gemex's directors and to determine the
outcome of substantially all actions requiring stockholder approval, except some
actions that may involve a conflict of interest and some actions that require,
pursuant to the joint venture agreement, the approval of Mr. Molina.
Put options and pledges of Securities. According to information provided
in Gemex's Annual Report, Mr. Molina and PepsiCo entered into a put option
agreement dated as of October 6, 1995 (the "1995 Put Agreement"). Under the 1995
Put Agreement, Mr. Molina has the right at any time and from time to time during
the seven-year period commencing on October 6, 1995 to sell to PepsiCo all or
part of 50,000,000 CPOs or 150,000,000 Shares (or a combination of such CPOs and
Shares) at a price of $2.00 per CPO and $0.67 per Share; provided that the total
purchase price for Shares and CPOs that are subject to the option that are sold
under the 1995 Put Agreement may not exceed $100 million.
According to information provided in Gemex's Annual Report, in connection
with a credit agreement, dated as of October 11, 1995 (the "1995 Loan
Agreement"), by and among GTE de Mexico, S.A. de C.V., a Mexican company
controlled by Mr. Molina ("GTE"), and Internationale Nederlanden (U.S.) Capital
Corporation, as agent, or ING, among others, Mr. Molina pledged certain rights
under the Molina/PepsiCo Trust and the 1995 Loan Agreement to ING in order to
enable ING, after an event of default under the 1995 Loan Agreement, to put up
to 50,000,000 CPOs held in the Molina/PepsiCo Trust to PepsiCo at an exercise
price specified in the 1995 Put Agreement. According to information provided in
an amendment to Mr. Molina's Schedule 13D filed on September 18, 2002, in late
August, 2002, GTE repaid $50.0 million of the outstanding principal amount under
the 1995 Loan Agreement. In September 2002, Mr. Molina arranged for Banco Bilbao
Vizcaya Argentaria, S.A., formerly known as Banco Bilbao Vizcaya, S.A., ("BBVA")
to provide Subenmo, S.A. de C.V., a Mexican company controlled by Mr. Molina
("Subenmo") a loan in the amount of $50.0 million which was used to repay the
remaining balance of the 1995 Loan Agreement. This loan is evidenced by a demand
note which will mature on October 27, and is unconditionally guaranteed by
PepsiCo. Mr. Molina has indemnified PepsiCo against any loss it may incur as a
result of its guarantee and has assigned to PepsiCo his rights under the 1995
Put Agreement. In addition, an affiliate of Mr. Molina has pledged 36,112,679
CPOs of Gemex to secure Mr. Molina's indemnification obligations.
Gemex's Annual Report further provides that in connection with the entering
into of a loan agreement, dated as of January 27, 1999 (the "1999 Loan
Agreement"), by and among Subenmo and BBVA, New York Branch, as agent, Mr.
Molina entered into a trust agreement, dated as of January 27, 1999 (the "1999
Trust Agreement"), by and among Mr. Molina, BBVA, The Chase Manhattan Bank and
Chase Manhattan Bank Delaware. Pursuant to the terms of the 1999 Loan Agreement
and the 1999 Trust Agreement, the Molina 1999 Pepsi-Gemex Shares Trust, a
Delaware statutory business trust for the benefit of Mr. Molina (the "1999
Trust"), was formed as a security device for the lenders, and Mr. Molina
contributed 100,000,000 CPOs to the 1999 Trust. PepsiCo and the 1999 Trust
entered into a put option agreement, dated as of January 27, 1999 (the "1999 Put
Agreement"), pursuant to which the 1999 Trust, after an event of default under
the 1999 Loan Agreement, may, at any time prior to October 6, 2002, put to
PepsiCo all of the CPOs held by the 1999 Trust at the time of exercise, at a
purchase price of US$1.00 per CPO. According to information provided in an
amendment to Mr. Molina's Schedule 13D filed on September 18, 2002, in
connection with an agreement dated August 27, 2002, entered into among the
parties to the 1999 Loan Agreement to extend the maturity date of the 1999 Loan
Agreement until November 27, 2002, PepsiCo and the 1999 Trust entered into an
agreement, dated as of August 15, 2002, amending the 1999 Put Agreement to
extend the final date of the exercise period to January 10, 2003.
The 1999 Loan Agreement contains customary default provisions. Unless and
until an event of default has occurred and is continuing under the 1999 Loan
Agreement, Mr. Molina has the full right to direct the vote of the CPOs
delivered to the Molina/PepsiCo Trust and the 1999 Trust and has the full right
to direct the disposition of any cash dividends on the CPOs delivered to the
Molina/PepsiCo Trust or the
53
1999 Trust. Mr. Molina may not transfer any of the CPOs held by the
Molina/PepsiCo Trust or the 1999 Trust.
Mr. Molina may withdraw CPOs from the 1999 Trust upon prepayment of the
loans made pursuant to the 1999 Loan Agreement. In order to induce PepsiCo to
enter into the 1999 Put Agreement, Mr. Molina entered into a letter agreement,
dated as of January 27, 1999, with PepsiCo (the "1999 Letter Agreement"),
pursuant to which Mr. Molina agreed that for every two CPOs and for every six
Shares put to PepsiCo pursuant to the terms of the 1995 Put Agreement, Mr.
Molina shall transfer one additional CPO to PepsiCo, up to a certain number
determined in accordance with the 1999 Letter Agreement, subject to a maximum of
25,000,000 CPOs. Upon withdrawal of CPOs from the 1999 Trust, Mr. Molina and
PepsiCo agreed to enter into a pledge and security agreement pursuant to which
Mr. Molina will pledge to PepsiCo the CPOs that are subject to transfer under
the 1999 Letter Agreement; under certain circumstances, the CPOs pledged to
PepsiCo pursuant to the terms of the 1999 Letter Agreement may be deposited in
the Molina/PepsiCo Trust.
If any put is made to PepsiCo of any securities (including CPOs and Shares)
under the 1995 Put Agreement or the 1999 Put Agreement, Phase II under the terms
of the Molina/PepsiCo Trust immediately commences.
Registration Rights Agreement. According to Gemex's Annual Report, in
connection with the master joint venture agreement, Gemex entered into a
registration rights agreement with Mr. Molina pursuant to which, during the
period beginning October 1995 and ending on the sixth anniversary of the
termination of Phase I, Gemex has agreed to file, at the request of Mr. Molina,
the appropriate registration statement(s) with the SEC and the CNBV, to register
CPOs. In addition, Mr. Molina has "piggyback" registration rights with respect
to any such registrations Gemex files with respect to the issuance and sale of
its shares during such time.
Molina Agreement to Tender. On October 4, 2002, we and BG LLC entered into
the Molina Agreement to Tender with Mr. Molina. According to information in
Gemex's Annual Report and an amendment to Mr. Molina's Schedule 13D filed on
September 18, 2002, Mr. Molina had beneficial ownership over approximately 74.5%
of the total capital stock of Gemex, as of September 10, 2002, including (i)
Shares and CPOs deposited by PepsiCo and its subsidiaries in the Molina/PepsiCo
Trust, and (ii) immediately exercisable options held by Mr. Molina to buy series
T shares of Gemex which are convertible into CPOs. Without giving effect to
PepsiCo's Shares and CPOs deposited in the Molina/ PepsiCo Trust and to Mr.
Molina's options to buy series T shares of Gemex, Mr. Molina owned, directly or
indirectly, approximately 40.0% of the total outstanding capital stock of Gemex,
as of September 10, 2002. Under the Molina Agreement to Tender, Mr. Molina has
agreed to tender, and to cause his affiliates identified in such agreement to
tender, in the Offers, and not withdraw, all of the outstanding Securities owned
by them, directly or indirectly, or which may be acquired by them on or before
the expiration date of the Offers, subject to their right to accept more
competitive offers received at any time prior to or during the time the Offers
remain outstanding. Mr. Molina and such affiliates will tender such Securities
at the same price offered to all security holders.
Under the Molina Agreement to Tender, if on or prior to the initial
expiration date the conditions to either of the Offers set forth in the U.S.
Offer under the caption "The U.S. Offer -- Certain conditions to the U.S. Offer"
and in the Mexican Offer are satisfied, we may extend the expiration date of the
Offers for a period of not more than five business days after such initial
expiration date, solely to increase the number of Securities to be tendered in
the Offers. If, on the other hand, the conditions to either of the Offers are
not satisfied or waived by us on or prior to the initial expiration date, we are
required to extend the Offers until all such conditions have been satisfied or
waived, but not more than ten business days after the initial expiration date.
In the event that the conditions to either of the Offers are still not satisfied
or waived by us, we have the right, at our sole discretion, to terminate the
Offers after such ten business days extension has expired or to further extend
the Offers for an additional ten business days. Under the Molina Agreement to
Tender, an extension of the Offers for any other reason or under any other
54
circumstances requires the consent of Mr. Molina, unless such extension is
required by applicable laws and regulations.
We may amend the U.S. Offer at any time in our sole discretion to increase
the price we are offering to pay for the Securities. We may also reduce the
purchase prices we are offering by the amount of all dividends for which a
payment date is announced or published by Gemex on or prior to the expiration
date and which is payable after the date of this U.S. Offer and prior to the
date of purchase of securities pursuant to the Offers, if any. If such dividends
are paid or announced, but we nonetheless consummate the U.S. Offer and pay for
the Securities tendered without reducing the offering price, Mr. Molina will pay
us within five business days after the expiration date the aggregate amount of
all such dividends paid or announced to be paid to security holders of Gemex,
other than PBG or any of its subsidiaries, including us.
Except as set forth in the preceding paragraph, under the Molina Agreement
to Tender we may not change the form of consideration or reduce the price we are
offering to pay or the number of Securities sought in this U.S. Offer or
otherwise amend the U.S. Offer in any manner materially adverse to Mr. Molina,
without the consent of Mr. Molina.
Mr. Molina has agreed that effective on the date his Securities and the
Securities of his affiliates are purchased in the Offers, he will surrender to
Gemex all of his unvested options to acquire securities of Gemex and release us
and Gemex from any and all claims, liabilities, losses and demands with respect
to such unvested options. Further, Mr. Molina agreed to exercise all of his
vested options in accordance with their terms prior to the initial expiration
date of the Offers and to tender in the Offers the Securities issued to him as a
result of his exercise. Mr. Molina has also agreed not to authorize, instruct or
otherwise cause Gemex or the Board of Directors of Gemex to modify or consent to
the modification of any of the terms and conditions of the unvested options to
acquire Securities of Gemex held by employees of Gemex or its subsidiaries.
Under the Molina Agreement to Tender, Mr. Molina has also agreed that, if
his and his affiliates' Securities are purchased by us in the Offers, for five
years he will not engage in the manufacture, marketing or wholesale sales or
distribution of beverages that are competitive with the products manufactured,
marketed, sold or distributed by Gemex in Mexico as of the date of the Molina
Agreement to Tender. In addition, Mr. Molina represented and warranted to us and
BG LLC, except as expressly disclosed in such agreement, that Gemex and its
affiliates do not have any liabilities or obligations of any nature to Mr.
Molina or any of his affiliates and that neither him nor any of his affiliates
has any claims against Gemex and its subsidiaries or representatives of any of
them. Mr. Molina further warranted and represented to us and BG LLC that all
agreements between Mr. Molina and his affiliates, on one hand, and Gemex and any
of its subsidiaries, on the other hand, may be terminated by Gemex without
payment of any penalty, liquidated damages or termination charge.
Mr. Molina agreed to put in escrow an amount in U.S. dollars equivalent to
approximately Ps.141.1 million at the Applicable Exchange Rate from the proceeds
he is entitled to receive in the Offers for his Securities (not including
Securities deposited by PepsiCo and its subsidiaries in the Molina/PepsiCo
Trust), as security for any indemnity obligations resulting from a breach by Mr.
Molina of his representations and warranties referred to in the preceding
paragraph. Under an Escrow Agreement among us, BG LLC, Mr. Molina and The Bank
of New York, as escrow agent, dated October 4, 2002, the funds in escrow will be
released over a period of three years, at a rate of one-sixth of the total
amount originally put in escrow every six months, to the extent indemnification
claims have not been made against them. Mr. Molina's indemnification obligations
with respect to the representations and warranties described in the preceding
paragraph will not exceed Ps.188.2 million, including amounts paid out of the
escrow. However, there is no limitation on the remedies available to us in the
event of other breaches by Mr. Molina of the Molina Agreement to Tender.
Pursuant to the Molina Agreement to Tender, Mr. Molina and specified affiliates
of Mr. Molina released Gemex and its affiliates from all claims, liabilities and
obligations, other than specified obligations. Gemex also released Mr. Molina
and such
55
affiliates from all claims, liabilities and obligations other than his
indemnification obligations and other specified obligations.
In the Agreement to Tender, Mr. Molina agreed to use his reasonable efforts
to cause Gemex to call an ordinary shareholders meeting to replace and elect new
members to the Gemex Board for a date selected by us, including to recommend
that date to the Gemex Board.
The Molina Agreement to Tender further provides that upon the purchase of
Mr. Molina's and his affiliates' Securities pursuant to the Offers, Mr. Molina's
employment agreement with Gemex and all arrangements and understandings related
to it will terminate, and upon such termination Mr. Molina agrees to release
Gemex and its affiliates from any and all claims and liabilities arising from
his employment with Gemex and/or its subsidiaries. Under the Molina Agreement to
Tender, we and BG LLC acknowledge that Mr. Molina will be entitled to receive
approximately Ps.141.1 million in full satisfaction of his rights under Gemex's
executive pension plan and all other statutory and severance benefits following
the termination of his employment with Gemex and agree to cause the pension plan
to remit such amount to Mr. Molina in accordance with the terms of the pension
plan.
Each party to the Molina Agreement to Tender may terminate such agreement
upon written notice to the other parties if there is any law, rule, regulation
or governmental order prohibiting the consummation of the Offers or upon a
breach of the agreement by the other party.
PepsiCo Agreement to Tender. On October 4, 2002, we and BG LLC entered
into the PepsiCo Agreement to Tender with PepsiCo, which as of August 9, 2002
owned, directly or indirectly, approximately 42.7% of the voting power of all
classes of PBG's voting stock. According to Gemex's Annual Report, PepsiCo also
owned, directly or indirectly, approximately 34.4% of the total outstanding
capital stock of Gemex, as of June 26, 2002. All of PepsiCo's Securities are
deposited in the Molina/ PepsiCo Trust that grants Mr. Molina the power to
direct the voting of PepsiCo's Securities, absent certain events, until December
31, 2002. However, during that time PepsiCo has the right to approve certain
decisions of Gemex's management. Under the PepsiCo Agreement to Tender, PepsiCo
has agreed to tender, and to cause its nominee identified in the such agreement
to tender, and not withdraw, all of the outstanding Securities owned directly or
indirectly by PepsiCo, or which may be acquired by PepsiCo, on or before the
expiration date, in the Offers, subject to their right to accept more
competitive offers received at any time prior to or during the period the Offers
remain outstanding.
The PepsiCo Agreement to Tender provides that, as it is strategically
important that we purchase Gemex, PepsiCo has agreed to pay us Ps.172.7 million
in order to facilitate such purchase and ensure a smooth ownership transition of
Gemex. This payment will be made before the completion of the Offers.
Under the PepsiCo Agreement to Tender, if on or prior to the initial
expiration date the conditions to either of the Offers set forth in the U.S.
Offer under the caption "The U.S. Offer -- Certain conditions to the U.S. Offer"
and in the Mexican Offer are satisfied, we may extend the expiration date of the
Offers for a period of not more than five business days after such initial
expiration date, solely to increase the number of Securities to be tendered in
the Offers. If, on the other hand, the conditions to either of the Offers are
not satisfied or waived by us on or prior to the initial expiration date, we are
required to extend the Offers until all such conditions have been satisfied or
waived, but not more than ten business days after the initial expiration date.
In the event that the conditions to either of the Offers are still not satisfied
or waived by us, we have the right, at our sole discretion, to terminate the
Offers after such ten business days extension has expired or to further extend
the Offers for an additional ten business days. Under the PepsiCo Agreement to
Tender, an extension of the Offers for any other reason or under any other
circumstances requires the consent of PepsiCo, unless such extension is required
by applicable laws and regulations.
We may amend the U.S. Offer at any time in our sole discretion to increase
the price we are offering to pay for the Securities. We may also reduce the
purchase prices we are offering by the amount of all dividends for which a
payment date is announced or published by Gemex on or prior to the expiration
date and which is payable after the date of this U.S. Offer and prior to the
date of purchase of Securities
56
pursuant to the Offers, if any. Except as set forth in this paragraph, under the
PepsiCo Agreement to Tender we may not change the form of consideration or
reduce the price we are offering to pay or the number of Securities sought in
this U.S. Offer or otherwise amend the U.S. Offer in any manner materially
adverse to PepsiCo, without the consent of PepsiCo.
Each party to the PepsiCo Agreement to Tender may terminate such agreement
upon written notice to the other parties if there is any law, rule, regulation
or governmental order prohibiting the consummation of the Offers or upon a
breach of the agreement by the other party. There is no limitation on our
remedies in the event of a breach by PepsiCo of the PepsiCo Agreement to Tender.
AGREEMENTS AND TRANSACTIONS BETWEEN PBG AND PEPSICO AND ITS AFFILIATES
PBG conducts its business primarily under agreements with PepsiCo. These
agreements give PBG the exclusive right to market, distribute, and produce
beverage products of PepsiCo in authorized containers in specified territories.
Material agreements and transactions between PBG and PepsiCo and certain of its
affiliates during 2000 and 2001 are described below.
Beverage agreements and purchases of concentrates and finished
products. PBG purchases concentrates from PepsiCo and manufactures, packages,
distributes and sells carbonated and non-carbonated beverages under license
agreements with PepsiCo. These agreements give PBG the right to manufacture,
sell and distribute beverage products of PepsiCo in both bottles and cans and
fountain syrup in specified territories. The agreements also provide PepsiCo
with the ability to set prices of such concentrates, as well as the terms of
payment and other terms and conditions under which PBG purchases such
concentrates. In addition, PBG bottles water under the Aquafina trademark
pursuant to an agreement with PepsiCo, which provides for the payment of a
royalty fee to PepsiCo. In certain instances, PBG purchases finished beverage
products from PepsiCo.
Total payments by PBG to PepsiCo for concentrates, royalties and finished
beverage products were approximately $1.5 billion in 2000 and $1.7 billion in
2001.
PBG manufacturing services. PBG provides manufacturing services to PepsiCo
in connection with the production of certain finished beverage products. Amounts
paid or payable by PepsiCo to PBG for these services were approximately $21.1
million in 2000 and $13.8 million in 2001.
Transactions with joint ventures in which PepsiCo holds an equity
interest. PBG purchases tea concentrate and finished beverage products from the
Pepsi/Lipton Tea Partnership, a joint venture of Pepsi-Cola North America, a
division of PepsiCo, and Lipton. The total amounts paid or payable to PepsiCo
for the benefit of such partnership were approximately $113.3 million in 2000
and $116.7 million in 2001. In addition, PBG provides certain manufacturing
services in connection with the hot-filled tea products of the partnership to
PepsiCo for the benefit of the partnership. Amounts paid or payable by PepsiCo
to PBG for these services were approximately $14.8 million in 2000 and $18.4
million in 2001.
PBG purchases finished beverage products from the North American Coffee
Partnership, a joint venture of Pepsi-Cola North America and Starbucks. Amounts
paid or payable to the North American Coffee Partnership by PBG were
approximately $95.8 million in 2000 and $108.3 million in 2001.
Purchase of snack food products from Frito-Lay, Inc. PBG purchases snack
food products from Frito-Lay, Inc., a subsidiary of PepsiCo, for sale and
distribution through all of Russia except for Moscow. Amounts paid or payable by
PBG to Frito-Lay, Inc. were approximately $23.7 million in 2000 and $27.1
million in 2001.
Shared services. PepsiCo provides various services to PBG pursuant to a
shared services agreement, including procurement of raw materials, processing of
accounts payable and credit and collection, certain tax and treasury services
and information technology maintenance and systems development. Amounts paid or
payable to PepsiCo for shared services totaled approximately $138.8 million in
2000 and $178.9 million in 2001.
57
Pursuant to the shared services agreements, PBG provides certain employee
benefit and international tax and accounting services to PepsiCo. Payments to
PBG from PepsiCo for these services totaled approximately $638,000 in 2000 and
$598,000 in 2001.
Rental payments. Amounts paid or payable by PepsiCo to PBG for rental of
office space at certain PBG facilities were approximately $10.6 million in 2000
and $11.6 million in 2001.
Insurance services. Hillbrook Insurance Company, Inc., a subsidiary of
PepsiCo, provides insurance and risk management services to PBG pursuant to a
contractual arrangement. Costs associated with such services totaled
approximately $62.1 million in 2000 and $57.8 million in 2001. In addition, in
December 2000, PBG paid Hillbrook approximately $57.6 million for insurance and
risk management services in 2001.
National fountain services. PBG provides certain manufacturing, delivery
and equipment maintenance services to PepsiCo's national fountain customers. Net
amounts paid or payable by PepsiCo to PBG for these services were approximately
$188.5 million in 2000 and $184.6 million in 2001.
Marketing and other support arrangements. PepsiCo provides PBG with
various forms of marketing support. The level of this support is negotiated
annually and can be increased or decreased at the discretion of PepsiCo. This
marketing support is intended to cover a variety of programs and initiatives,
including direct marketplace support (including point-of-sale materials),
capital equipment funding and shared media and advertising support. Total direct
marketing support funding paid or payable to PBG by PepsiCo was approximated
$523.6 million for 2000 and $553.8 million for 2001.
Transactions with bottlers in which PepsiCo holds an equity interest. In
March 2002, PBG acquired the operations and exclusive right to manufacture, sell
and distribute Pepsi-Cola's international beverages in Turkey. Specifically, PBG
acquired the majority and minority ownership interests in Fruko Mesrubat Sanayii
A.S. and other related entities from Tamek Holding A.S., individual shareholders
and PepsiCo. Prior to the acquisition, PepsiCo had a 22% investment in the
bottling operations in Turkey. As part of this acquisition, PBG paid PepsiCo
$7.0 million for its equity interest in the acquired entity, and received $16.0
million from PepsiCo for the sale of the acquired entity's local brands to
PepsiCo.
PBG and PepsiAmericas, Inc., a bottler in which PepsiCo owns an equity
interest, and PBG and Pepsi Bottling Ventures LLC, a bottler in which PepsiCo
owns an equity interest, bought from and sold to each other finished beverage
products. These transactions occurred in instances where the proximity of one
party's production facilities to the other party's markets or lack of
manufacturing capability, as well as other economic considerations, made it more
efficient or desirable for one bottler to buy finished product from another.
PBG's sales to those bottlers totaled approximately $18.5 million in 2000 and
$774,000 in 2001. Purchases from those bottlers were approximately $1.5 million
in 2000 and $40,000 in 2001.
AGREEMENTS AND TRANSACTIONS BETWEEN GEMEX AND PEPSICO AND ITS AFFILIATES
Marketing. According to information provided in Gemex's Annual Report,
Gemex enters into cooperative marketing arrangements with Pepsi-Cola Mexicana, a
subsidiary of PepsiCo, on a yearly basis. These arrangements provide for
advertising of Pepsi-Cola and other Pepsi products on national and local
television and radio stations, billboards, newspapers and other media, as well
as other marketing-related efforts. The planning and execution of media spending
in support of Pepsi products are controlled by Pepsi-Cola Mexicana. In addition,
the cooperative marketing arrangements between Gemex and Pepsi-Cola Mexicana
also include reimbursements by Pepsi-Cola Mexicana of expenditures on various
promotional tools of the trade (including vending machines and refrigerated
display cases), other equipment used in connection with the sale of Pepsi
products and various marketing expenditures related to new products or
packaging, although Pepsi-Cola Mexicana reimburses only up to 33% (as compared
to 50% generally under cooperative arrangements) of some of these expenditures.
Reimbursements by Pepsi-Cola Mexicana amounted to Ps.208.3 million, Ps.236.6
million and Ps.340.5 million for the years ended December 31, 1999, 2000 and
2001, respectively.
58
In recent years, the spending levels under cooperative marketing
arrangements have been negotiated annually. These arrangements provide for a
specified amount to be spent on marketing in a particular year expressed as a
percentage of the value of all concentrate purchased by Gemex in that year.
Pepsi-Cola Mexicana contributes half of the amount to be spent on cooperative
marketing and Gemex contributes the remaining half. Since 1997, the amount spent
on marketing under these arrangements has been increasing in nominal terms and
as a percentage of concentrate sales. In 1999, 2000 and 2001, the total amount
spent on marketing equaled 100% of the value of concentrate purchased in each of
these years. According to Gemex's Annual Report, Gemex expects that such amount
in 2002 will equal the 2001 levels. During the discussions among PepsiCo, PBG
and Gemex prior to the commencement of this U.S. Offer to Purchase, PepsiCo and
PBG discussed the franchisor/franchisee arrangements that would be put in place
with Gemex following the completion of the Offers. As a result of these
discussions, PepsiCo and PBG reached a general understanding that such
arrangements would remain substantially the same as those in place prior to the
completion of the Offers, except that PepsiCo agreed to increase its marketing
support to Gemex in an amount equal to Gemex's scheduled concentrate price
increase of 2% on September 30, 2002.
Bottling arrangements. According to information provided in Gemex's Annual
Report, under Gemex's bottling agreement with PepsiCo, Gemex must purchase all
of its concentrate and syrup requirements for each Pepsi product from PepsiCo or
its designees. In 2001, Gemex's syrup concentrate purchases from PepsiCo and its
subsidiaries totaled Ps.1,230.2 million; in the first half of 2002, its syrup
and concentrate purchases from PepsiCo and its subsidiaries totaled Ps.617.7
million. In addition, Gemex and PepsiCo pay and reimburse each other in
connection with some of Gemex's marketing programs.
In September 2000, Gemex acquired Emvasa, a Pepsi bottler operating in
territories contiguous with Gemex's then existing marketing territories, through
a cash tender offer. Gemex paid approximately Ps.724.9 million, or $77.7 million
at the then existing exchange rate, for all of the existing shares of Emvasa and
assumed Emvasa's outstanding indebtedness. In connection with the acquisition of
Emvasa, Gemex paid a subsidiary of PepsiCo approximately $14.5 million, in the
form of 18,749,260 CPOs, for its equity interest in the principal bottling
subsidiary of Emvasa. In addition, during 2000, Gemex purchased PepsiCo's 50%
interest in Tenedora del Noreste, a company through which Gemex and PepsiCo held
a joint venture interest in the Northeast Bottling Group, for $22.1 million in
the form of 28,670,742 CPOs.
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ANNEX I -- INFORMATION CONCERNING DIRECTORS AND EXECUTIVE OFFICERS OF
EMBOTELLADOR HM, BG LLC, PBG AND PEPSICO
An asterisk denotes persons who are executive officers, but do not serve on
the Board of Directors of the respective entities referred to below.
1. DIRECTORS AND EXECUTIVE OFFICERS OF PBG
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PRESENT PRINCIPAL OCCUPATION OR
NAME EMPLOYMENT AND FIVE-YEAR EMPLOYMENT HISTORY
---- -------------------------------------------
Linda G. Alvarado......................... 49, was elected to PBG's Board in March 1999. She is
the President and Chief Executive Officer of Alvarado
Construction, Inc., a general contracting firm
specializing in commercial, industrial, environmental
and heavy engineering projects, a position she assumed
in 1976. Ms. Alvarado is also a director of Pitney
Bowes, Inc., Qwest Communications International, Inc.,
Lennox International and 3M Company.
Barry H. Beracha.......................... 60, was elected to PBG's Board in March 1999. He has
been the Chief Executive Officer of Sara Lee Bakery
Group since August 2001. Previously, Mr. Beracha was
the Chairman of the Board and Chief Executive Office of
The Earthgrains Company since 1993. Earthgrains was
formerly part of Anheuser-Busch Companies, where Mr.
Beracha served from 1967 to 1996. From 1979 to 1993, he
held the position of Chairman of the Board of
Anheuser-Busch Recycling Corporation. From 1976 to
1995, Mr. Beracha is also a director of St. Louis
University and McCormick & Co., Inc.
John T. Cahill............................ 45, was elected to PBG's Board in January 1999. He has
been our Chief Executive Officer since September 2001.
Previously, Mr. Cahill served as our President and
Chief Operating Officer. Mr. Cahill served as our
Executive Vice President and Chief Financial Officer
prior to becoming our President and Chief Operating
Officer in August 2000. He was Executive Vice President
and Chief Financial Officer of the Pepsi-Cola Company
from April 1998 to November 1998. Prior to that, Mr.
Cahill was Senior Vice President and Treasurer of
PepsiCo, having been appointed to that position in
April 1997. In 1996, he became Senior Vice President
and Chief Financial Officer of Pepsi-Cola North
America. Mr. Cahill joined PepsiCo in 1989 and held
several other senior financial positions through 1996.
Thomas H. Kean............................ 67, was elected to PBG's Board in March 1999. Mr. Kean
has been the President of Drew University since 1990
and was the Governor of the State of New Jersey from
1982 to 1990. Mr. Kean is also a director of Amerada
Hess Corporation, Aramark Corporation, Fiduciary Trust
Company International and UnitedHealth Group, Inc. He
is also Chairman of Carnegie Corporation of New York.
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PRESENT PRINCIPAL OCCUPATION OR
NAME EMPLOYMENT AND FIVE-YEAR EMPLOYMENT HISTORY
---- -------------------------------------------
Susan D. Kronick.......................... 51, was elected to PBG's Board in March 1999. Ms.
Kronick has been Group President of Federated
Department Stores since February 2001. Previously, Ms.
Kronick was the Chairman and Chief Executive Officer of
Burdines, a division of Federated Department Stores, a
position she had held since June 1997. From 1993 to
1997, Ms. Kronick served as President of Federated's
Rich's/Lazarus/Goldsmith's division. She spent the
previous 20 years at Bloomingdale's, where her last
position was as Senior Executive Vice President and
Director of Stores. Ms. Kronick is also a director of
Union Planters National Bank in Miami.
Blythe J. McGarvie........................ 45, was elected to the Board at PBG's Board meeting in
March 2002. Ms. McGarvie is Executive Vice President
and Chief Financial Officer of BIC Group, a position
she has held since July 1999. From 1994 to 1999, Ms.
McGarvie served as Senior Vice President and CFO of
Hannaford Bros. Co. Ms. McGarvie is a Certified Public
Accountant and has also held senior financial positions
at Sara Lee Corporation, Kraft General Foods, Inc. and
Pizza Hut Inc. Ms. McGarvie is also a director of
Accenture Ltd.
Margaret D. Moore......................... 54, was elected to PBG's Board in January 2001. Ms.
Moore is Senior Vice President, Human Resources of
PepsiCo, a position she assumed at the end of 1999.
From November 1998 to December 1999, she was Senior
Vice President and Treasurer of PBG. Prior to joining
PBG, Ms. Moore spent 25 years with PepsiCo in a number
of senior financial and human resources positions.
Clay G. Small............................. 52, was elected to PBG's Board of Directors in May
2002. Mr. Small is Senior Vice President and General
Counsel of Frito-Lay North America, a division of
PepsiCo. Mr. Small joined PepsiCo as an attorney in
1981 and held several positions in the legal
department. He served as Vice President and Division
Counsel of Pizza Hut, Inc. from 1987 to 1997. Prior to
his PepsiCo tenure, he was an associate with the law
firm of White & Case in New York City.
Craig E. Weatherup........................ 57, was elected to PBG's Board in January 1999. He has
been Chairman of the Board of PBG since March 1999. Mr.
Weatherup was also the Chief Executive Officer of PBG
from March 1999 to September 2001. He served on the
Board of Directors of PepsiCo from 1996 until March
1999. Prior to becoming Chairman and Chief Executive
Officer of PBG, he had served as Chairman and Chief
Executive Officer of the Pepsi-Cola Company since July
1996. He was appointed President of the Pepsi-Cola
Company in 1988, President and Chief Executive Officer
of Pepsi-Cola North America in 1991, and served as
PepsiCo's President in 1996. Mr. Weatherup is also a
director of Federated Department Stores, Inc. and
Starbucks Corporation.
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PRESENT PRINCIPAL OCCUPATION OR
NAME EMPLOYMENT AND FIVE-YEAR EMPLOYMENT HISTORY
---- -------------------------------------------
Eric J. Foss*............................. 44, is currently President, PBG North America.
Previously, Mr. Foss was Executive Vice President and
General Manager, PBG North America from August 2000 to
September 2001. From October 1999 until August 2000, he
served as PBG's Senior Vice President, U.S. Sales and
Field Operations, and prior to that, he was Senior Vice
President, Sales and Field Marketing, since March 1999.
Mr. Foss joined Pepsi-Cola Company in 1982 and has held
a variety of other field and headquarters-based sales,
marketing and general management positions. From 1994
to 1996, Mr. Foss was General Manager of Pepsi-Cola
North America's Great West Business Unit. In 1996, Mr.
Foss was named General Manager for the Central Europe
Region for Pepsi-Cola International, a position he held
until joining PBG in March 1999.
Yiannis Petrides*......................... 44, has been President, PBG Europe, since June 2000,
with responsibilities for PBG's operations in Spain,
Greece and Russia. Most recently, he served as Business
Unit General Manager for PBG in Spain and Greece. Mr.
Petrides joined PepsiCo in 1987 in the international
beverage division. In 1993, he was named General
Manager of Frito Lay's Greek operation with additional
responsibility for the Balkan countries. Two years
later, he was appointed Business Unit General Manager
for Pepsi Beverages International's bottling operation
in Spain.
Alfred H. Drewes*......................... 47, is Senior Vice President and Chief Financial
Officer of PBG. Appointed to this position in June
2001, Mr. Drewes previously served as Senior Vice
President and Chief Financial Officer of Pepsi
Beverages International ("PBI"). Mr. Drewes joined
PepsiCo in 1982 as a financial analyst in New Jersey.
During the next nine years, he rose through
increasingly responsible finance positions within
Pepsi-Cola North America in field operations and
headquarters. In 1991, Mr. Drewes joined PBI as Vice
President of Manufacturing Operations, with
responsibility for the global concentrate supply
organization.
Pamela C. McGuire*........................ 55, has been Senior Vice President, General Counsel and
Secretary of PBG since November 1998. Ms. McGuire
joined PepsiCo in 1977 and served as Vice President and
Division Counsel of Pepsi-Cola Company from 1989 to
March 1998, when she was named Vice President and
Associate General Counsel of the Pepsi-Cola Company.
The address of each of the directors and executive officers of PBG is c/o
PBG, 1 Pepsi Way, Somers, New York 10589-2201, telephone (914) 767-6000.
62
2. MANAGING DIRECTORS AND EXECUTIVE OFFICERS OF BG LLC
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PRESENT PRINCIPAL OCCUPATION OR
NAME EMPLOYMENT AND FIVE-YEAR EMPLOYMENT HISTORY
---- -------------------------------------------
John T. Cahill............................ 45, is a Managing Director and the Principal Executive
Officer of BG LLC. Mr. Cahill is currently the Chief
Executive Officer of PBG. Previously, Mr. Cahill served
as PBG's President and Chief Operating Officer from
August 2000 to September 2001. Mr. Cahill has been a
member of PBG's Board of Directors since January 1999
and served as PBG's Executive Vice President and Chief
Financial Officer prior to becoming President and Chief
Operating Officer in August 2000. He was Executive Vice
President and Chief Financial Officer of the Pepsi-Cola
Company from April 1998 until November 1998. Prior to
that, Mr. Cahill was Senior Vice President and
Treasurer of PepsiCo, having been appointed to that
position in April 1997. In 1996, he became Senior Vice
President and Chief Financial Officer of Pepsi-Cola
North America. Mr. Cahill joined PepsiCo in 1989 where
he held several other senior financial positions
through 1996.
Alfred H. Drewes*......................... 47, is the Principal Financial Officer of BG LLC. He is
also the Senior Vice President and Chief Financial
Officer of PBG. Appointed to this position in June
2001. Mr. Drewes previously served as Senior Vice
President and Chief Financial Officer of PBI. Mr.
Drewes joined PepsiCo in 1982 as a financial analyst in
New Jersey. During the next nine years, he rose through
increasingly responsible finance positions within
Pepsi-Cola North America in field operations and
headquarters. In 1991, Mr. Drewes joined PBI as Vice
President of Manufacturing Operations, with
responsibility for the global concentrate supply
organization.
Andrea L. Forster*........................ 43, is the Principal Accounting Officer of BG LLC. She
is also Vice President and Controller of PBG. In
September 2000, Ms. Forster was also named Corporate
Compliance Officer for PBG. Following several years
with Deloitte Haskins and Sells, Ms. Forster joined
PepsiCo in 1987 as a Senior Analyst in External
Reporting. She progressed through a number of positions
in the accounting and reporting functions and, in 1998,
was appointed Assistant Controller of the Pepsi-Cola
Company. She was named Assistant Controller of PBG in
1999.
Pamela C. McGuire......................... 55, is a Managing Director of BG LLC. She is also the
Senior Vice President, General Counsel and Secretary of
PBG. She was the Vice President and Division Counsel of
the Pepsi-Cola Company from 1989 to March 1998, at
which time she was named its Vice President and
Associate General Counsel. Ms. McGuire joined PepsiCo
in 1977 and held several other positions in its legal
department through 1989.
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PRESENT PRINCIPAL OCCUPATION OR
NAME EMPLOYMENT AND FIVE-YEAR EMPLOYMENT HISTORY
---- -------------------------------------------
Matthew M. McKenna........................ 52, is a Managing Director of BG LLC. He is also the
Senior Vice President of Finance of PepsiCo. Mr.
McKenna began his career at PepsiCo as Vice President,
Taxes, in 1993. In 1998, he became Senior Vice
President, Taxes, and served as Senior Vice President
and Treasurer from 1998 until 2000. Prior to joining
PepsiCo, he was a partner with the law firm of
Winthrop, Stimson, Putnam & Roberts in New York.
The address of each of the directors and executive officers of BG LLC is
c/o PBG, 1 Pepsi Way, Somers, New York 10589-2201, telephone (914) 767-6000.
3. DIRECTORS AND EXECUTIVE OFFICERS OF EMBOTELLADOR HM
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PRESENT PRINCIPAL OCCUPATION OR
NAME EMPLOYMENT AND FIVE-YEAR EMPLOYMENT HISTORY
---- -------------------------------------------
Inigo Madariaga........................... 41, is a Managing Director of Embotellador HM. He is
also the Legal & Tax Vice President of PBG Europe.
Previously he was the Legal & Tax Vice President of PBG
Spain. Mr. Madariaga joined PepsiCo in 1990 and held
several other positions in the international groups of
its Legal and Tax Departments.
Javier Ezpeleta Gurpide................... 37, was elected administrator of Embotellador HM at its
incorporation in June 2002. Mr. Ezpeleta is also member
of the Board of many other entities of PBG Spain. Mr.
Ezpeleta joined PepsiCo in 1989, as member of the legal
and tax Department. He is also a Member of the Bar of
Lawyers of Vitoria, Spain.
Francisco Javier Relloso.................. 38, was elected General Representative of Embotellador
HM at its incorporation in June 2002. Mr. Relloso is
also PBG's Tax Director for Europe. He joined PepsiCo
in 1994 as Manager in the Corporate Tax and Legal
Department in Spain, and he has held legal and tax
responsibilities within the PepsiCo and PBG structure
in various countries. He is also Managing Director and
Board member of several companies in Spain. Mr. Relloso
is a Member of the Bar of Lawyers of Alava, Spain.
The address of each of the directors and executive officers of Embotellador
HM is c/o Embotellador HM, Avenida de los Olmos, #2, 01013, Vitoria, Spain,
telephone +34 945 16 41 00.
4. DIRECTORS AND EXECUTIVE OFFICERS OF PEPSICO
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PRESENT PRINCIPAL OCCUPATION OR
NAME EMPLOYMENT AND FIVE-YEAR EMPLOYMENT HISTORY
---- -------------------------------------------
John F. Akers............................. 67, former Chairman of the Board and Chief Executive
Officer of International Business Machines Corporation,
has been a member of PepsiCo's Board since 1991. Mr.
Akers joined IBM in 1960 and was Chairman and Chief
Executive Officer from 1986 until 1993. He is also a
director of Hallmark Cards, Inc., Lehman Brothers
Holdings, Inc., The New York Times Company, and W. R.
Grace & Co.
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PRESENT PRINCIPAL OCCUPATION OR
NAME EMPLOYMENT AND FIVE-YEAR EMPLOYMENT HISTORY
---- -------------------------------------------
Robert E. Allen........................... 67, former Chairman of the Board and Chief Executive
Officer of AT&T Corp., has been a member of PepsiCo's
Board since 1990 and is Chairman of its Nominating
Committee. He began his career at AT&T in 1957 when he
joined Indiana Bell. He was elected President and Chief
Operating Officer of AT&T in 1986, and was Chairman and
Chief Executive Officer from 1988 until 1997. He is
also a director of Bristol-Myers Squibb Company and
WhisperWire.com., and a Trustee of The Mayo Foundation
and Wabash College.
David R. Andrews*......................... 60, became PepsiCo's Senior Vice President, Government
Affairs, General Counsel and Secretary in February
2002. Before joining PepsiCo, Mr. Andrews was a partner
in the law firm of McCutchen, Doyle, Brown & Enersen,
LLP, a position he held from 2000 to 2002 and from 1981
to 1997. From 1997 to 2000, he served as the legal
adviser to the U.S. Department of State and former
Secretary Madeleine Albright.
Peter A. Bridgman*........................ 49, has been PepsiCo's Senior Vice President and
Controller since August, 2000. Mr. Bridgman began his
career with PepsiCo at Pepsi-Cola International in 1985
and became Chief Financial Officer for Central Europe
in 1990. He became Senior Vice President and Controller
for Pepsi-Cola North America in 1992 and Senior Vice
President and Controller for The Pepsi Bottling Group
in 1999.
Roger A. Enrico........................... 57, has been a member of PepsiCo's Board since 1987.
Mr. Enrico served as Chief Executive Officer and
Chairman of the Board from 1996 to 2001. He was Vice
Chairman from 1993 to 1996 and from May 2001 until his
retirement from PepsiCo in March 2002. He joined
PepsiCo in 1971, and became President and Chief
Executive Officer of Pepsi-Cola USA in 1983, President
and Chief Executive Officer of PepsiCo Worldwide
Beverages in 1986, Chairman and Chief Executive Officer
of Frito-Lay, Inc. in 1991 and Chairman and Chief
Executive Officer of PepsiCo Worldwide Foods in 1992.
In addition, he was Chairman and Chief Executive
Officer, PepsiCo Worldwide Restaurants, from 1994 until
the spin-off of PepsiCo's restaurant businesses in
1997. Mr. Enrico is a member of the Board of Directors
of the A. H. Belo Corporation, Electronic Data Systems
Corporation, Target Corporation and The National
Geographic Society.
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PRESENT PRINCIPAL OCCUPATION OR
NAME EMPLOYMENT AND FIVE-YEAR EMPLOYMENT HISTORY
---- -------------------------------------------
Peter Foy................................. 62, is Chairman of Whitehead Mann Group, an executive
search firm based in London, a position he has held
since January 1, 2001. He was elected to PepsiCo's
Board in 1997. He is the former Chairman of Baring
Brothers International Ltd., the corporate finance
section of ING Group's investment bank. Mr. Foy joined
McKinsey & Co., Inc. in 1968, became a director and
head of its U. K. Consumer Goods Practice in 1980, the
managing director of McKinsey U.K. in 1983, and was
Senior Partner from 1990 until 1996. In 1996, he became
Chairman of Baring Brothers, a position he held until
he retired in December 1998. Mr. Foy is also a director
of Omnicom Group Inc., The Peninsular and Oriental
Steam Navigation Company and Safeway PLC.
Ray L. Hunt............................... 59, Chairman and Chief Executive Officer of Hunt Oil
Company and Chairman, Chief Executive Officer and
President, Hunt Consolidated, Inc., was elected to
PepsiCo's Board in 1996. Mr. Hunt began his association
with Hunt Oil Company in 1958 and has held his current
position since 1976. He is also a director of
Halliburton Company, Security Capital Group, Electronic
Data Systems Corporation, and a Class C Director of the
Federal Reserve Bank of Dallas.
Arthur C. Martinez........................ 62, former Chairman of the Board, President and Chief
Executive Officer of Sears, Roebuck and Co., was
elected to PepsiCo's Board in May 1999. Mr. Martinez
was Chairman and Chief Executive Officer of the former
Sears Merchandise Group from 1992 to 1995 and served as
Chairman of the Board, President and Chief Executive
Officer of Sears, Roebuck and Co. from 1995 until 2000.
He served as Vice Chairman and a director of Saks Fifth
Avenue from 1990 to 1992. Mr. Martinez is Chairman of
The Federal Reserve Bank of Chicago. He is also a
director of Liz Claiborne, Inc., International Flavors
and Fragrances, Inc. and Martha Stewart Living
Omnimedia, Inc.
Matthew M. McKenna*....................... 52, has been PepsiCo's Senior Vice President of Finance
since August, 2001. Mr. McKenna began his career at
PepsiCo as Vice President, Taxes in 1993. In 1998, he
became Senior Vice President, Taxes and served as
Senior Vice President and Treasurer from 1998 until
2001. Prior to joining PepsiCo, he was a partner with
the law firm Winthrop, Stimson, Putnam & Roberts in New
York.
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PRESENT PRINCIPAL OCCUPATION OR
NAME EMPLOYMENT AND FIVE-YEAR EMPLOYMENT HISTORY
---- -------------------------------------------
Robert S. Morrison........................ 60, was elected to PepsiCo's Board and became Vice
Chairman in August 2001. Since 1997, Mr. Morrison has
served as Chairman of the Board, President and Chief
Executive Officer of The Quaker Oats Company, which
merged with PepsiCo in August 2001. From 1994 until
1997, Mr. Morrison served as Chairman and Chief
Executive Officer of Kraft Foods, Inc., a division of
Philip Morris Companies, Inc. Mr. Morrison had joined
Kraft in 1983 and while there also held the positions
of President of Kraft Refrigerated Products Group,
President of Kraft General Foods Canada and President
of General Foods U.S.A. prior to becoming Chairman and
Chief Executive Officer. He is also a director of Aon
Corporation and The Tribune Company.
Indra K. Nooyi............................ 46, was elected to PepsiCo's Board and became President
and Chief Financial Officer in May 2001, after serving
as Senior Vice President and Chief Financial Officer
since February 2000. Ms. Nooyi also served as Senior
Vice President, Strategic Planning and Senior Vice
President, Corporate Strategy and Development from 1994
until 2000. Prior to joining PepsiCo, Ms. Nooyi spent
four years as Senior Vice President of Strategy,
Planning and Strategic Marketing for Asea Brown Boveri,
Inc. She was also Vice President and Director of
Corporate Strategy and Planning at Motorola, Inc.
Lionel L. Nowell III*..................... 48, has been PepsiCo's Senior Vice President and
Treasurer since August 2001. Mr. Nowell joined PepsiCo
as Senior Vice President and Controller in 1999 and
then became Senior Vice President and Chief Financial
Officer of The Pepsi Bottling Group. Prior to joining
PepsiCo, he was Senior Vice President, Strategy and
Business Development for RJR Nabisco, Inc. From 1991 to
1998, he served as Chief Financial Officer of Pillsbury
North America, and its Pillsbury Foodservice and Haagen
Dazs unit, serving as Vice President and Controller of
the Pillsbury Company, Vice President of Food and
International Retailing Audit and Director of Internal
Audit.
Franklin D. Raines........................ 53, was elected to PepsiCo's Board in May 1999, and is
Chairman of its Audit Committee. Mr. Raines has been
Chairman of the Board and Chief Executive Officer of
Fannie Mae since January 1999. He was Director of the
U.S. Office of Management and Budget from 1996 to 1998.
From 1991 to 1996, he was Vice Chairman of Fannie Mae
and in 1998 he became Chairman and CEO-Designate. Prior
to joining Fannie Mae, Mr. Raines was a general partner
at Lazard Freres &Co., an investment banking firm. Mr.
Raines is also director of AOL Time Warner, Inc. and
Pfizer, Inc.
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PRESENT PRINCIPAL OCCUPATION OR
NAME EMPLOYMENT AND FIVE-YEAR EMPLOYMENT HISTORY
---- -------------------------------------------
Steven S. Reinemund....................... 54, has been PepsiCo's Chairman and Chief Executive
Officer since May 2001. He was elected a director of
PepsiCo in 1996 and before assuming his current
position, served as President and Chief Operating
Officer from September 1999 until May 2001. Mr.
Reinemund began his career with PepsiCo in 1984 as a
senior operating officer of Pizza Hut, Inc. He became
President and Chief Executive Officer of Pizza Hut in
1986, and President and Chief Executive Officer of
Pizza Hut Worldwide in 1991. In 1992, Mr. Reinemund
became President and Chief Executive Officer of
Frito-Lay, Inc., and Chairman and Chief Executive
Officer of the Frito-Lay Company in 1996.
Sharon Percy Rockefeller.................. 57, was elected a director of PepsiCo in 1986. She is
President and Chief Executive Officer of WETA public
stations in Washington, D.C., a position she has held
since 1989, and was a member of the Board of Directors
of WETA from 1985 to 1989. She is a member of the Board
of Directors of Public Broadcasting Service,
Washington, D. C. and was a member of the Board of
Directors of the Corporation for Public Broadcasting
until 1992. Mrs. Rockefeller is also a director of
Sotheby's Holdings, Inc.
Franklin A. Thomas........................ 68, was elected to PepsiCo's Board in 1994. From 1967
to 1977, he was President and Chief Executive Officer
of the Bedford-Stuyvesant Restoration Corporation. From
1977 to 1979, Mr. Thomas had a private law practice in
New York City. Mr. Thomas was President of the Ford
Foundation from 1979 to April 1996 and is currently a
consultant to the TFF Study Group, a non-profit
organization assisting development in southern Africa.
He is also a director of ALCOA, Avaya Inc., Citicorp,
Conoco, Inc., Cummins, Inc. and Lucent Technologies.
Cynthia M. Trudell........................ 49, President of Sea-Ray Group since 2001, was elected
to PepsiCo's Board in January 2000. From 1999 until
2001, Ms. Trudell served as General Motors' Vice
President and Chairman and President of Saturn
Corporation, a wholly owned subsidiary of GM. Ms.
Trudell began her career with the Ford Motor Co. as a
chemical process engineer. In 1981, she joined GM and
held various engineering and manufacturing supervisory
positions. In 1995, she became plant manager at GM's
Wilmington Assembly Center in Delaware. In 1996, she
became President of IBC Vehicles in Luton, England, a
joint venture between General Motors and Isuzu.
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PRESENT PRINCIPAL OCCUPATION OR
NAME EMPLOYMENT AND FIVE-YEAR EMPLOYMENT HISTORY
---- -------------------------------------------
Solomon D. Trujillo....................... 50, Chairman, Chief Executive Officer and President of
Graviton, Inc. since November 2000, was elected to
PepsiCo's Board in January 2000. Previously, Mr.
Trujillo was Chairman of US WEST from May 1999, and
served as its President and Chief Executive Officer
beginning in 1998. He served as President and Chief
Executive Officer of US WEST Communications Group and
Executive Vice President of US WEST from 1995 until
1998 and President and Chief Executive Officer of US
WEST Dex, Inc. from 1992 to 1995. Mr. Trujillo is also
a director of Comstellar Technologies, Orange SA and
Target Corporation.
Daniel Vasella............................ 49, was elected to PepsiCo's Board in February 2002.
Dr. Vasella became Chairman of the Board and Chief
Executive Officer of Novartis AG in 1999, after serving
as President since 1996. From 1992 to 1996, Dr. Vasella
held the positions of Chief Executive Officer, Chief
Operating Officer, Senior Vice President and Head of
Worldwide Development and Head of Corporate Marketing
at Sandoz Pharma Ltd. He also served at Sandoz
Pharmaceuticals Corporation from 1988 to 1992. Dr.
Vasella is a director of Credit Suisse Group and a
member of the Supervisory Board of Siemens AG.
The address of each of the directors and executive officers of PepsiCo is
c/o PepsiCo, Inc., 700 Anderson Hill Road, Purchase, New York 10577, telephone
(914) 253-2000.
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ANNEX II -- PROCEDURES FOR TENDERING INTO THE MEXICAN OFFER
In the Mexican Offer, we offer to purchase all outstanding Shares and CPOs,
including those held by U.S. residents. Shares and CPOs may be tendered in the
Mexican Offer only by book-entry transfer. If you hold Shares in certificated
form you may participate in the Mexican Offer by promptly contacting the Mexican
Receiving Agent or a broker, dealer, bank, trust company, financial institution
or other nominee ("custodian") who is a participant in the book-entry transfer
system of S.D. Indeval, S.A. de C.V., Institucion para el Deposito de Valores,
commonly known as "Indeval," a privately-owned central securities depositary
that acts as clearing house, depositary, custodian, settlement, transfer and
registration institution for the Mexican Stock Exchange, and arrange for the
holding by the Mexican Receiving Agent or by such custodian of the Shares on
your behalf in book-entry form. In order for a book-entry transfer to constitute
a valid tender of your Shares and CPOs in the Mexican Offer, the Mexican
Receiving Agent must receive a properly completed and duly executed Acceptance
Letter from your custodian accepting the Mexican Offer prior to the expiration
date of the Mexican Offer. The Acceptance Letter should be sent to its address
located at Paseo de la Reforma 398, Piso 1, Col. Juarez, C.P. 06600, Mexico,
D.F., Mexico, to the attention of Mr. Erubiel Manrique. The form Acceptance
Letter has been prepared by the Mexican Receiving Agent and will be available to
custodians as of October , 2002 from the Mexican Receiving Agent at the
above-mentioned address. Neither we nor the Mexican Receiving Agent will bear
any responsibility for a failure to comply with the instructions contained in
the Acceptance Letter submitted by the custodians on behalf of their respective
clients. In addition to the delivery of a properly completed and duly executed
Acceptance Letter, the corresponding custodian must transfer the Shares and/or
CPOs into account number 0307 maintained by the Mexican Receiving Agent with
Indeval before the expiration date of the Mexican Offer.
Any issue relating to the form, validity (including hour of tender and
transfer) and the acceptance for payment of the Shares and CPOs tendered
pursuant to the Mexican Offer will be determined by us, at our sole discretion,
and such determination shall be final and binding. We reserve the right to
reject any tender of Shares or CPOs that in our opinion does not meet the
requirements set forth in the Mexican Offer, as well as the right not to carry
out a payment for Shares or CPOs that in the opinion of our counsel may be
considered illegal. In addition, we reserve the right to waive any irregularity
or defect in the tendering of the Shares and CPOs. We will have no obligation,
nor will PBG, the Mexican Receiving Agent, the U.S. Receiving Agent, the U.S.
Dealer Manager or any other person related with the Mexican Offer will be under
any duty to give notification of any defect or irregularity in tenders or incur
any liability for failure to give any such notification.
The purchase price for the Shares and CPOs accepted for payment pursuant to
the Mexican Offer will be paid, at the election of the holder, in Mexican pesos
or in U.S. dollars equivalent to the applicable Mexican peso price 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 prices 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. All tendering
holders will bear exchange rate risks and costs if they wish to convert the
currency received into another currency. Holders of Shares and CPOs who wish to
receive Mexican pesos for their Shares and CPOs instead of U.S. dollars, should
have their custodians tender their Shares and CPOs in the Mexican Offer and
indicate their election to receive the purchase price in Mexican pesos.
70
ANNEX III
[THE FOLLOWING NOTE IS COPIED FROM THE NOTES TO GEMEX'S AUDITED CONSOLIDATED
FINANCIAL STATEMENTS AT DECEMBER 31, 2000 AND 2001 AND FOR EACH OF THE THREE
YEARS IN THE PERIOD ENDED DECEMBER 31, 2001, AS SET FORTH IN THE ANNUAL REPORT.
A COMPLETE COPY OF SUCH AUDITED FINANCIAL STATEMENT IS ATTACHED TO GEMEX'S
ANNUAL REPORT FOR THE YEAR ENDED DECEMBER 31, 2001, WHICH WAS FILED WITH THE SEC
ON JULY 1, 2002]
18. DIFFERENCES BETWEEN MEXICAN AND UNITED STATES OF AMERICA ACCOUNTING
PRINCIPLES
The Company's consolidated financial statements are prepared in accordance
with Mexican GAAP, which vary in certain respects from accounting principles
generally accepted in the United States of America ("U.S. GAAP").
The Mexican GAAP consolidated financial statements include the effects of
inflation as provided for under Bulletin B-10, as amended, whereas financial
statements prepared under U.S. GAAP are presented on an historical cost basis.
The following reconciliations to U.S. GAAP do not include the reversal of the
adjustments required under Bulletin B-10, as amended, except as discussed in
Note 18 (c). The application of Bulletin B-10, as amended, represents a
comprehensive measure of the effects of price level changes in the Mexican
economy and, as such, is considered a more meaningful presentation than
historical cost-based financial reporting for both Mexican GAAP and U.S. GAAP
purposes.
Mexican GAAP also requires the restatement of all financial statements to
constant pesos as of the date of the most recent balance sheet presented.
All material differences, other than inflation accounting, between Mexican
GAAP and U.S. GAAP and the effects on net income and total shareholders' equity
are presented below with an explanation of the adjustments:
[Enlarge/Download Table]
THOUSANDS OF
U.S. DOLLARS
(CONVENIENCE
TRANSLATION)
YEAR ENDED DECEMBER 31, YEAR ENDED
-------------------------------------- DECEMBER 31,
RECONCILIATION OF NET INCOME OF MAJORITY INTEREST 1999 2000 2001 2001
------------------------------------------------- ---------- ----------- ----------- ------------
Net income of majority interest reported under
Mexican GAAP................................. Ps.822,845 Ps. 482,522 Ps. 595,188 $ 64,976
U.S. GAAP adjustments for:
Deferred income taxes........................ (90,833) (250,375) (201,439) (21,991)
Deferred employee statutory profit-sharing... 30,033 11,690 18,116 1,978
Restatement of foreign sourced fixed assets... (45,780) (53,067) (103,998) (11,354)
Amortization of goodwill..................... 27,865 (9,434) 27,867 3,042
Accrued vacation cost........................ 21,480 (13,311) (12,462) (1,360)
Accrued severance payments................... -- 16,236 (16,236) (1,772)
Reversal of capitalized exchange losses and
monetary position gains and related
depreciation.............................. 58,216 23,329 3,315 362
Minority interest applicable to above
adjustments............................... (76,899) -- -- --
---------- ----------- ----------- --------
Net income under U.S. GAAP..................... Ps.746,927 Ps. 207,590 Ps. 310,351 $ 33,881
========== =========== =========== ========
71
[Enlarge/Download Table]
THOUSANDS OF
U.S. DOLLARS
(CONVENIENCE
DECEMBER 31, TRANSLATION)
------------------------------------------- DECEMBER 31,
RECONCILIATION OF SHAREHOLDERS' EQUITY 1999 2000 2001 2001
-------------------------------------- ------------- ------------ ------------ ------------
Total shareholders' equity reported
under Mexican GAAP................... Ps. 5,805,972 Ps.4,966,892 Ps.4,666,362 $509,428
Less minority interest in consolidated
subsidiary included in shareholders'
equity under Mexican GAAP............ 229,349 -- -- --
------------- ------------ ------------ --------
5,576,623 4,966,892 4,666,362 509,428
U.S. GAAP adjustments for:
Effect on retained earnings from:
Deferred income taxes............. (1,248,991) (323,938) (525,377) (57,356)
Deferred employee statutory
profit-sharing.................. (167,021) (30,569) (12,453) (1,360)
Restatement of foreign sourced
fixed assets.................... (88,856) (141,923) (245,921) (26,847)
Goodwill.......................... (345,539) (354,973) (327,106) (35,710)
Accrued vacation cost............. (3,751) (17,062) (29,524) (3,223)
Accrued severance payments........ -- 16,236 -- --
Reversal of capitalized exchange
losses and monetary position
gains and related
depreciation.................... (70,771) (47,442) (44,127) (4,817)
Effect on deficiency in restated
shareholders' equity related to:
Deferred income taxes............. 229,037 19,044 21,129 2,307
Deferred employee statutory
profit-sharing.................. 6,080 5,441 6,034 659
Restatement of foreign source
fixed assets.................... 915,605 1,061,321 1,759,142 192,046
Minority interest applicable to above
adjustments....................... (96,476) -- -- --
------------- ------------ ------------ --------
Shareholders' equity under U.S. GAAP... Ps. 4,705,940 Ps.5,153,027 Ps.5,268,159 $575,127
============= ============ ============ ========
The applicable effects of inflation on the above U.S. GAAP adjustments in
the reconciliation of net income that relate to monetary assets or liabilities
have been included in the corresponding adjustments.
72
A summary of changes in shareholders' equity giving effect to the U.S. GAAP
adjustments described above is as follows:
[Enlarge/Download Table]
ACCUMULATED
ADDITIONAL OTHER TOTAL
CAPITAL PAID-IN RETAINED COMPREHENSIVE SHAREHOLDERS'
STOCK CAPITAL EARNINGS RESERVES INCOME EQUITY
---------- ------------ ------------- ------------ ------------- -------------
Balance at January 1, 1999...... Ps.861,981 Ps.4,414,863 Ps.(1,318,836) Ps.1,034,273 Ps. (999,449) Ps.3,992,832
Repurchase and sale of capital
stock -- net.................. (2,446) 393 (14,875) 5,756 -- (11,172)
Result from holding non-monetary
assets........................ -- -- -- -- (517,565) (517,565)
Net income...................... -- -- 746,927 -- -- 746,927
Effect on deficiency in restated
shareholders' equity related
to:
Deferred income taxes......... -- -- -- -- 1,954 1,954
Deferred employee statutory
profit-sharing.............. -- -- -- -- 559 559
Restatement of foreign sourced
fixed assets................ -- -- -- -- 511,982 511,982
Effect of minority interest on
U.S. GAAP adjustments to
shareholders' equity.......... -- -- -- -- (19,577) (19,577)
---------- ------------ ------------- ------------ ------------- ------------
Balance at December 31, 1999.... 859,535 4,415,256 (586,784) 1,040,029 (1,022,096) 4,705,940
Repurchase and sale of common
stock -- net.................. 223 1,357 -- 5,940 -- 7,520
Result from holding non-monetary
assets........................ -- -- -- -- (200,127) (200,127)
Net income...................... -- -- 207,590 -- -- 207,590
Capital share increase.......... 1,942 40,320 -- -- -- 42,262
Acquisition of minority
interest...................... 16,519 341,763 -- -- -- 358,282
Effect on deficiency in restated
shareholders' equity related
to:
Deferred income taxes......... -- -- -- -- (209,993) (209,993)
Deferred employee statutory
profit-sharing.............. -- -- -- -- (639) (639)
Restatement of foreign sourced
fixed assets................ -- -- -- -- 145,716 145,716
Effect of minority interest on
U.S. GAAP adjustments to
shareholders' equity.......... -- -- -- -- 96,476 96,476
---------- ------------ ------------- ------------ ------------- ------------
Balance at December 31, 2000.... 878,219 4,798,696 (379,194) 1,045,969 (1,190,663) 5,153,027
Sale of capital stock -- net.... 714 69 -- 19,045 -- 19,828
Result from holding non-monetary
assets........................ -- -- -- -- (625,212) (625,212)
Net income...................... -- -- 310,351 -- -- 310,351
Dividends declared.............. -- (246,931) -- -- -- (246,931)
Shareholders' equity adjustment
for labor obligations upon
retirement.................... -- -- -- -- (43,403) (43,403)
Effect on deficiency in restated
shareholders' equity related
to:
Deferred income taxes......... -- -- -- -- 2,085 2,085
Deferred employee statutory
profit-sharing.............. -- -- -- -- 593 593
Restatement of foreign sourced
fixed assets................ -- -- -- 697,821 697,821
---------- ------------ ------------- ------------ ------------- ------------
Balance at December 31, 2001.... Ps.878,933 Ps.4,551,834 Ps. (68,843) Ps.1,065,014 Ps.(1,158,779) Ps.5,268,159
========== ============ ============= ============ ============= ============
A) DEFERRED INCOME TAXES AND EMPLOYEE STATUTORY PROFIT-SHARING -- As
mentioned in Note 1 to the consolidated financial statements, beginning January
1, 2000, the Company changed its method of accounting for income tax, tax on
assets and employee statutory profit-sharing under Mexican GAAP to conform with
the new Bulletin D-4.
73
D-4 requires the use of the asset and liability method of accounting for
deferred income tax and employee statutory profit-sharing. Under such method,
deferred tax assets and liabilities are recognized for the estimated future tax
consequences attributable to differences between the financial statement
carrying amount and their respective tax bases. This method also requires the
recognition of future tax benefits, such as those arising from tax loss
carryforwards, to the extent the realization of such benefits is highly likely.
Deferred tax assets and liabilities are measured using enacted tax rates
expected to apply to taxable income in the years in which those temporary
differences are expected to be recovered or settled. The effect on deferred tax
assets and liabilities of a change in the tax rates is recognized in income in
the period that includes the enactment date. A deferred tax asset is also
recognized for the unused portion of tax credits, such as tax on assets, to the
extent the realization of such tax credit is highly likely. When, in accordance
with accounting principles generally accepted in Mexico, items related to
temporary differences are recorded directly to shareholders' equity, without
affecting net income, the deferred effects of such items are also recorded
directly to shareholders' equity. D-4 also requires that when there is a tax
regime that recognizes totally or partially the effects of inflation and this
causes the tax effect of the temporary differences to be restated, the change in
deferred tax arising from the restatement for inflation should be included in
the monetary result of the period.
Through December 31, 1999, deferred income taxes under Mexican GAAP were
provided only for identifiable, nonrecurring timing differences, which were
expected to reverse over a definite period of time.
For U.S. GAAP purposes, the Company applies Statement of Financial
Accounting Standards No. 109, "Accounting for Income Taxes" ("SFAS No. 109").
Under SFAS No. 109, deferred income taxes reflect the net tax effect of (a)
temporary differences between the carrying amounts of assets and liabilities for
financial reporting purposes and the amounts used for income tax purposes and
(b) the benefits of operating loss and tax credit carryforwards. Under SFAS No.
109, the effect on deferred taxes of a change in tax rates is recognized as
income or expense, as the case may be, in the period that includes the enactment
date.
During the year ended December 31, 2001, the valuation allowance for income
tax purposes associated with certain net operating losses and tax credits
carryforwards increased by $249,270, because the Company believes it is more
likely than not that such deferred tax asset will not be realized.
The Company calculates a deferred employee statutory profit-sharing
liability for U.S. GAAP purposes based on temporary differences between the
financial reporting basis and the employee statutory profit-sharing basis of
assets and liabilities for those subsidiaries of the Company which have
employees. Through December 31, 1999, under Mexican GAAP, deferred employee
statutory profit-sharing was not recognized in the financial statements;
however, with the adoption of D-4, beginning January 1, 2000 the Company
recognizes deferred statutory profit-sharing as described above. During the year
ended December 31, 2001, the valuation allowance for deferred profit sharing
assets associated with certain tax losses carryforwards increased by $45,932
because the Company believes it is more likely than not that such deferred tax
asset will not be realized.
Under U.S. GAAP the portion of deferred taxes and deferred employee
statutory profit-sharing attributable to the excess (deficiency) in restated
shareholders' equity is reflected as an adjustment to the excess (deficiency) in
restated shareholders' equity.
Under Mexican GAAP, employee statutory profit-sharing expense or benefit is
included in provisions after operating income. Under U.S. GAAP, employee
statutory profit-sharing expense or benefit is treated as a component of
operating expenses.
Under Mexican GAAP deferred tax assets and liabilities are of a long-term
nature, whereas under U.S. GAAP they are classified based on the nature of the
temporary difference.
74
Under U.S. GAAP, temporary differences and the resulting deferred tax
assets and liabilities at December 31, 2000 and 2001 are summarized as follows:
[Enlarge/Download Table]
DECEMBER 31,
-----------------------------
2000 2001
------------- -------------
Current deferred tax liabilities -- Inventories......... Ps. (343,983) Ps. (344,344)
------------- -------------
Current deferred tax assets:
Accrued expenses and reserves......................... 52,078 103,931
Allowance for doubtful accounts....................... 26,090 34,315
------------- -------------
Total current deferred tax assets.................. 78,168 138,246
------------- -------------
Non-current deferred tax liabilities:
Property, plant and equipment......................... (1,021,252) (1,298,176)
Investments in associated companies................... (8,920) --
Other................................................. (46,129) (45,871)
------------- -------------
Total non-current deferred tax liabilities......... (1,076,301) (1,344,047)
------------- -------------
Non-current deferred tax assets -- Net operating losses
and tax credits....................................... 524,932 794,923
------------- -------------
Valuation allowance..................................... (272,309) (521,579)
------------- -------------
Net deferred tax liability....................... Ps.(1,089,493) Ps.(1,276,801)
============= =============
The components of deferred employee statutory profit-sharing at December
31, 2000 and 2001 are summarized as follows:
[Enlarge/Download Table]
DECEMBER 31,
-------------------------
2000 2001
----------- -----------
Current deferred tax liabilities -- Inventories............ Ps. (54,724) Ps. (69,587)
----------- -----------
Current deferred tax assets:
Accrued expenses and reserves............................ 15,311 19,416
Allowance for doubtful accounts.......................... 7,090 3,896
----------- -----------
Total current deferred tax assets..................... 22,401 23,312
----------- -----------
Non-current deferred tax liabilities:
Property, plant and equipment............................ (125,474) (78,471)
Other.................................................... 10,924 16,421
----------- -----------
(125,474) (94,892)
----------- -----------
Non-current deferred tax assets -- Net operating losses.... -- 54,076
----------- -----------
Valuation allowance........................................ -- (45,932)
----------- -----------
Net deferred employee statutory profit-sharing liability... Ps.(168,718) Ps.(133,023)
=========== ===========
B) MINORITY INTEREST -- Under Mexican GAAP, the minority interest in
consolidated subsidiaries is presented as a separate component within the
shareholders' equity section in the consolidated balance sheet. For U.S. GAAP
purposes, the minority interest is not included in shareholders' equity.
C) RESTATEMENT OF FOREIGN SOURCED FIXED ASSETS -- Effective January 1,
1997, the Company adopted the Fifth Amendment to Bulletin B-10 which allows
foreign sourced fixed assets to be restated for inflation using either of two
methodologies. Under the first methodology, foreign sourced fixed assets are
restated by applying Mexican NCPI factors to the original cost of the asset,
denominated in pesos. The alternate methodology, which is utilized by the
Company, restates foreign sourced fixed assets by applying the
75
inflation factor of the country of origin to the original cost, denominated in
the foreign currency, and then translating such amounts into pesos at the
foreign exchange rate in effect at the most recent balance sheet date.
The alternate methodology is not consistent with Regulation S-X, Rule
3-20(e) of the Securities and Exchange Commission. Accordingly, foreign sourced
fixed assets have been restated using the Mexican NCPI applied to original cost
(the balance of the related assets at December 31, 1997 or historical cost if
acquired subsequent to 1997), in pesos, for purposes of the U.S. GAAP
reconciliation.
d) GOODWILL -- In 1992 and 1995, the Company recorded goodwill in
connection with the acquisition of three entities under common control in
accordance with Mexican GAAP. Under U.S. GAAP, such transactions would be
accounted for in a manner similar to that of a pooling of interests and,
accordingly, the unamortized excess of the amount paid over the net book value
of net assets acquired has been recognized as a reduction to equity and the
amortization expense for Mexican GAAP has been reversed for U.S. GAAP purposes.
Also, in December 2000, the Company recognized in the results of operations
under Mexican GAAP the negative goodwill that arose from the acquisition of a
minority interest of a consolidated associated company. For U.S. GAAP purposes,
the Company has reversed the negative goodwill recognized into income and has
reduced the recorded value of non-current assets.
As mentioned in Note 1, beginning 2001, the Company began to include as
part of other income and expense in the statements of income prepared under
Mexican GAAP, the amortization of the excess of cost over fair value of net
assets acquired. The consolidated statements of income of prior years were
reclassified in order to conform them with the presentation utilized in 2001.
For U.S. GAAP purposes the amortization of goodwill should be reported as part
of operating income. Accordingly, Ps.78,014, Ps.(4,156) and Ps.90,111 would have
to be recorded as a decrease (increase) of operating income for the years ended
December 31, 1999, 2000 and 2001, respectively. This difference does not have an
effect in the net income or earnings per share reported during the years ended
December 31, 1999, 2000 and 2001.
e) ACCRUED VACATION -- Under Mexican GAAP, the Company does not accrue
liabilities related to employees' rights to receive compensation for future
absences. Statement of Financial Accounting Standards No. 43, "Accounting for
Compensated Absences," requires that vacation benefits be accrued. For purposes
of the U.S. GAAP reconciliation, the Company has accrued such liability as of
December 31, of each year presented and recognized the related expense.
f) ACCRUED SEVERANCE PAYMENTS -- Under Mexican GAAP, the Company has
accrued severance payments to be made to certain of its employees as a
consequence of the restructuring of operations initiated at the end of 2000 as
described in Note 1. For U.S. GAAP purposes the Company has reversed such cost
since at the date of the financial statements the Company had not communicated
to the employees the type and amount of benefits they will receive upon
termination.
g) CAPITALIZATION OF INTEGRAL COST (INCOME) OF FINANCING -- Under Mexican
GAAP, total integral cost (income) of financing is subject to capitalization to
assets under construction, including foreign exchange gains and losses, interest
income and gains and losses from monetary position. In accordance with U.S.
GAAP, foreign exchange gains and losses, interest income and monetary position
gains and losses are not capitalizable. Consequently, such amounts capitalized
under Mexican GAAP have been reversed and treated as income or expense, as
appropriate, in the period incurred and current year depreciation has also been
adjusted.
h) OTHER DIFFERENCES AND SUPPLEMENTAL U.S. GAAP DISCLOSURES --
1. Extraordinary Items -- Through December 31, 1999, under Mexican
GAAP, the utilization of tax loss carryforwards and assets taxes paid in
prior years was considered to be an extraordinary gain. Under U.S. GAAP,
such amounts would be considered to be a component of income tax expense.
Although this difference does not affect consolidated net income, it does
affect the reported amount of income tax expense.
76
2. Cash flows -- The Company presents its cash flow information,
under Mexican GAAP, exclusive of the effects of inflation. Such information
for the year ended December 31, 1999, 2000 and 2001 is presented below:
[Download Table]
DECEMBER 31,
-------------------------------------------
1999 2000 2001
----------- ------------- -------------
OPERATING ACTIVITIES:
Consolidated net income-Mexican
GAAP............................. Ps. 891,371 Ps. 515,591 Ps. 595,188
Effects of inflation............... (476,096) (259,059) (218,646)
----------- ------------- -------------
Consolidated net income exclusive
of inflation-Mexican GAAP........ 415,275 256,532 376,542
Adjustments to reconcile net (loss)
income to net cash provided by
operating activities:
Depreciation and amortization.... 435,414 428,762 602,837
Statutory seniority premiums..... 14,505 32,455 43,689
Restructuring charge............. -- 524,000 83,505
Equity in earnings of associated
companies..................... (1,120) -- --
Deferred taxes................... -- (263,523) (28,456)
Unrealized foreign exchange
(gain) loss on current and
long-term debt................ (96,435) 56,211 (185,225)
Realized foreign exchange (gain)
loss on current and long-term
debt.......................... (69,924) 12,079 (9,404)
Changes in operating assets and
liabilities:
Accounts receivable -- net....... (320,735) (95,041) (9,451)
Inventories...................... (1,956) (252,171) 276,530
Prepaid expenses................. (4,177) (5,374) 15,932
Trade accounts payable........... 144,447 59,032 (949)
Taxes payable, accrued expenses
and other liabilities......... 18,722 (23,259) 163,344
----------- ------------- -------------
NET CASH PROVIDED BY OPERATING
ACTIVITIES.................... 534,016 729,703 1,328,894
----------- ------------- -------------
INVESTING ACTIVITIES:
Acquisition of property, plant and
equipment........................ (809,101) (941,269) (1,067,638)
Loan to associated company......... (94,383) (1,121) --
Other assets....................... 61,385 (29,638) 110,356
Increase in goodwill............... -- -- (111,650)
Acquisition of subsidiaries, net of
cash received.................... -- 77,716 --
Effect on cash of consolidating
Tenedora......................... 44,910 -- --
----------- ------------- -------------
NET CASH USED IN INVESTING
ACTIVITIES....................... (797,189) (894,312) (1,068,932)
----------- ------------- -------------
FINANCING ACTIVITIES:
Payments of long-term debt......... (74,992) (40,760) (282,154)
Proceeds from long-term debt....... 63,760 768,294 732,772
Payments of notes payable.......... (556,688) (1,056,921) (1,775,772)
Proceeds from notes payable........ 653,373 479,469 918,166
Repurchase and sale of capital
stock -- net..................... (9,822) 6,861 19,427
Capital stock increase............. -- 40,481 --
----------- ------------- -------------
77
[Download Table]
DECEMBER 31,
-------------------------------------------
1999 2000 2001
----------- ------------- -------------
NET CASH PROVIDED BY (USED IN)
FINANCING ACTIVITIES............. 75,631 197,424 (387,561)
----------- ------------- -------------
Net increase (decrease) in cash and
cash equivalents................. (187,542) 32,815 (127,599)
Cash and cash equivalents at
beginning of year................ 317,651 169,239 217,217
Effect of inflation on cash........ 39,130 24,721 9,558
----------- ------------- -------------
Cash and cash equivalents at end of
year............................. Ps. 169,239 Ps. 226,775 Ps. 99,176
=========== ============= =============
Supplemental Cash Flow Information Required by U.S. GAAP -- Resources
generated by operating activities in the statements of changes in financial
position reflect cash payments of interest and income taxes as follows:
[Download Table]
YEAR ENDED DECEMBER 31,
------------------------------------
1999 2000 2001
---------- ---------- ----------
Interest................................. Ps.389,571 Ps.399,386 Ps.396,560
Income taxes............................. -- -- --
In accordance with Mexican GAAP, acquisition of subsidiaries is shown
net of cash received as an investing activity and the corresponding debt
incurred in the acquisition is shown as a financing activity. Also, when
material, acquisition of minority interest in exchange of own shares is
shown as an investing and financing activity, respectively. Under U.S.
GAAP, because such transactions are non-cash, it is necessary only to
disclose non-cash investing and financing activities. Supplemental
disclosure of non-cash investing and financing activities is as follows:
[Download Table]
YEAR ENDED DECEMBER 31,
----------------------------
1999 2000 2001
------ ---------- ------
Fair value of net assets acquired.................. Ps.-- Ps.708,014 Ps.--
Less: liabilities incurred......................... -- 791,907 --
------ ---------- ------
Acquisition of subsidiaries, net of cash
acquired......................................... Ps.-- Ps.(83,893) Ps.--
====== ========== ======
Shares issued in exchange of minority interest..... Ps.-- Ps.358,282 Ps.--
====== ========== ======
In accordance with Mexican GAAP, unrealized exchange losses on current
and long-term debt are included as a financing activity in the statement of
changes in financial position. Under U.S. GAAP, unrealized exchange losses
on current and long-term debt would be reflected as non-cash expenses in
operating activities and not as a financing activity.
Also, under Mexican GAAP dividends declared and not paid are shown as
resources used in and generated by financing activities, respectively.
Under U.S. GAAP dividends declared but not paid are not included in the
statement of cash flows.
3. Statement of Comprehensive Income -- Statement of Financial
Accounting Standards No. 130, "Reporting Comprehensive Income," establishes
standards for reporting and display of comprehensive income and its
components. The Company's statements of comprehensive income for
78
the years ended December 31, 1999, 2000 and 2001, giving effect to the U.S.
GAAP adjustments described above, are set forth below:
[Download Table]
THOUSANDS OF
U.S. DOLLARS
(CONVENIENCE
DECEMBER 31, TRANSLATION)
--------------------------------------- DECEMBER 31,
1999 2000 2001 2001
----------- ----------- ----------- ------------
Net income under U.S. GAAP.. Ps. 746,927 Ps. 207,590 Ps. 310,352 $ 33,881
Other comprehensive (loss)
income:
Result from holding
nonmonetary assets as
reported under Mexican
GAAP...................... (517,565) (200,127) (625,212) (68,255)
Adjustment from labor
obligations upon
retirement under Mexican
GAAP...................... -- -- (43,403) (4,738)
U.S. GAAP adjustments to
result from holding
nonmonetary assets........ 494,918 31,560 700,501 76,474
----------- ----------- ----------- --------
Total other comprehensive
(loss) income............. (22,647) (168,567) 31,886 3,481
----------- ----------- ----------- --------
Comprehensive income (loss)
under U.S. GAAP........... Ps. 724,280 Ps. 39,023 Ps. 342,238 $ 37,362
=========== =========== =========== ========
Accumulated other comprehensive loss at December 31, 1999, 2000 and
2001, giving effect to the U.S. GAAP adjustments discussed above, consists
of losses from holding nonmonetary assets of Ps.(1,022,096), Ps.(1,190,663)
and Ps.(1,237,344), respectively.
4. Earnings Per Share in Accordance With U.S. GAAP -- Statement of
Financial Accounting Standards No. 128, "Earnings per Share" ("SFAS No.
128") requires the presentation of "basic" earnings per share, which is
calculated by dividing income available to common shareholders by the
weighted average number of shares outstanding during the period, and
diluted earnings per share giving effect to all potentially dilutive common
shares outstanding during the period.
At December 31, 2000, the Company has not presented diluted earnings
per share because there are no potentially dilutive securities outstanding.
However, as discussed in Note 9, during 1999 the Company established an
executive share purchase program. Under SFAS No. 128, shares granted under
this program would possibly be considered dilutive when and if granted.
Earnings per share for each of the years in the three-year period
ended December 31, 2001 is presented below:
[Download Table]
THOUSANDS OF
U.S. DOLLARS
(CONVENIENCE
DECEMBER 31, TRANSLATION)
--------------------------------- DECEMBER 31,
1999 2000 2001 2001
--------- --------- --------- ------------
Basic earnings per share:
B Shares..................... Ps. 0.51 Ps.0.14 Ps.0.19 $0.020
CPOs......................... 1.77 0.48 0.64 0.070
GDS.......................... 10.64 2.87 3.84 0.419
Weighted average shares
outstanding (in 000's):
Total shares................. 1,343,064 1,347,664 1,504,383
CPOs......................... 322,381 336,219 375,318
GDS.......................... 53,730 56,037 62,553
79
5. Restructuring Charge -- In accordance with U.S. GAAP the
restructuring charges should be reported as part of operating income. This
difference does not have an effect in the net income or earnings per share
reported during the year ended December 31, 2001.
6. Impairment of long-lived assets and severance payments -- In
accordance with U.S. GAAP the adjustments arising from the impairment of
long-lived assets and severance payments arising from restructurings or
reorganizations which are included in other expenses for Mexican GAAP
purposes should be reported as part of the operating income. This
difference does not have an effect in the net income or earnings per share
reported during the year ended December 31, 2001.
7. Stock Option Program -- In accordance with the program (see Note
9) the exercise price is determined to be the closing price on the last
trading day prior to May 1 of each year for the options granted for the
previous year, therefore, there was no compensation expense recognized in
the financial statements, in accordance with Accounting Principles Board
Opinion No. 25, "Accounting for Stock Issued to Employees" ("APB 25"), for
U.S. GAAP purposes.
APB 25 requires that compensation expense for a stock option plan be
measured using the intrinsic value method whereby compensation expense for
a fixed plan is recognized in an amount equal to the excess of the market
price of the underlying stock over the exercise price of the option at the
grant date.
Under Statement of Financial Accounting Standards No. 123 "Accounting
for Stock-Based Compensation," ("SFAS No. 123"), the Company presents the
following additional required disclosures to the financial statements:
Pro Forma Effect of Stock Compensation Program -- SFAS No. 123
requires the disclosure of the Company's net income and net income per
share, as if the Company had accounted for its employee stock option
plan under the fair value method. For purposes of these pro forma
disclosures, the estimated fair value of the options is amortized over
the options' vesting period. Had the Company's stock option program been
accounted for under SFAS No. 123, the net income for U.S. GAAP at
December 31, 1999, 2000 and 2001 would have been decreased by Ps.17,087,
Ps.16,708 and Ps.10,080, respectively.
Earnings per share for each of the years in the three-year period
ended December 31, 2001 is presented below:
[Download Table]
THOUSANDS OF
U.S. DOLLARS
(CONVENIENCE
DECEMBER 31, TRANSLATION)
--------------------------------- DECEMBER 31,
1999 2000 2001 2001
--------- --------- --------- ------------
Basic earnings per share:
B Shares..................... Ps. 0.49 Ps.0.13 Ps.0.18 $0.020
CPOs......................... 1.69 0.44 0.62 0.068
GDS.......................... 10.15 2.64 3.71 0.406
Weighted average shares
outstanding (in 000's):
Total shares................. 1,343,064 1,347,664 1,504,383
CPOs......................... 322,381 336,219 375,318
GDS.......................... 53,730 56,037 62,553
The fair value of the options granted used in order to calculate the
pro forma amounts above, have been estimated at the date of grant using the
Black-Scholes option-pricing model with the following assumptions: i)
expected life of 7 years and expected volatility of 44.0%, ii) risk free
rate of 5.32% and 6.36% for options granted during 1999 and 2000,
respectively, and iii) no expected dividend yield. Based on these
assumptions, the weighted average fair value of employee stock options
granted during 1999 and 2000 was Ps.1.94 and Ps.1.55 per share (in nominal
pesos), respectively, and the market price on the grant date was Ps.4.13
and Ps.2.72, respectively
80
The Black-Scholes option valuation model was developed for use in
estimating the fair value of traded options that have no vesting
restrictions and are fully transferable. In addition, option valuation
models require the input of highly subjective assumptions, including the
expected stock price volatility. The Company's options have characteristics
significantly different from those of traded options, and changes in the
subjective input assumptions can materially affect the fair value estimate.
8. Recently Issued Accounting Standards -- In June 2001, the
Financial Accounting Standards Board ("FASB") issued Statement of Financial
Accounting Standards No. 141, "Business Combinations" ("SFAS 141") and
Statement of Financial Accounting Standards No. 142, "Goodwill and Other
Intangible Assets" ("SFAS 142"). SFAS 141 addresses financial accounting
and reporting for business combinations and requires that the purchase
method of accounting be used for all business combinations initiated or
completed after June 30, 2001. Under SFAS 142, goodwill and certain other
intangible assets with indefinite useful lives will no longer be
systematically amortized, but instead will be tested for impairment at
least annually and written-down with a charge to operations when the
carrying amount exceeds the estimated fair value. SFAS 142 is effective for
fiscal years beginning after December 15, 2001. The Company's management
has not completed the initial impairment review required by SFAS 142.
However, management believes that the adoption of SFAS 142 will reduce
substantially the amortization expense of future years.
In August 2001, the FASB also issued Statement of Financial Accounting
Standards No. 143, "Accounting for Obligations Associated with the
Retirement of Long-Lived Assets" ("SFAS 143"). SFAS 143 establishes
accounting standards for the recognition and measurement of an asset
retirement obligation and its associated asset retirement cost. It provides
accounting guidance for legal obligations associated with the retirement of
tangible long-lived assets. It requires the recognition of the fair value
of a liability for an asset retirement obligation in the period in which it
is incurred if a reasonable estimate of fair value can be made. SFAS 143 is
effective for fiscal years beginning after June 15, 2002, with early
adoption permitted. Management is currently evaluating the effects of
adopting SFAS 143, but believes it will not have a material effect on the
Company's results of operations and financial position. In addition, in
October 2001, the FASB issued Statement of Financial Accounting Standards
No. 144, "Accounting for the Impairment or Disposal of Long-Lived Assets"
("SFAS 144"). SFAS 144 establishes a single accounting model for the
impairment or disposal of long-lived assets, including discontinued
operations. SFAS 144 is effective for fiscal years beginning after December
15, 2001. Management is currently evaluating the effects of adopting SFAS
144, but believes it will not have a material effect on the Company's
results of operations or financial position.
In April 2002, the FASB issued SFAS No 145, "Recission of FASB
Statements Nos. 4, 44 and 64, Amendment of FASB Statement No. 13, and
Technical Corrections." As a result of this statement, The Company may no
longer classify gains and losses from extinguishments of debt as
extraordinary items unless the debt meets the criteria of APB 30. The
provisions of this statement with regard to FAS 4 will be effective for
fiscal years beginning after 2002. Gains and losses from extinguishments of
debt that have been classified as extraordinary in previous years that do
not meet the criteria of APB 30 will be reclassified.
During 2000 and 2001, the Emerging Issues Task Force ("EITF")
addressed various issues related to the income statement classification of
certain promotional payments. In April 2001, the EITF reached a consensus
on Issue 00-14: "Accounting for Certain Sales Incentives" which addresses
the recognition, measurement, and income statement classification for sales
incentives offered voluntarily by a vendor without charge to customers that
can be used in, or that are exercisable by a customer as a result of, a
single exchange transaction. Sales incentives have various forms including
discounts, coupons, rebates, and free products or services. Under the
consensus, it is required that if the sales incentive is a free product
delivered at the time of sale, the cost of the product or service should be
classifies as an expense. However, the reduction in or refund of the
selling price of the products resulting from any cash sales incentives
should be classified as a reduction of revenue. EITF 00-14 should be
applied for annual or interim periods beginning after December 15, 2001. In
81
January, 2001 the EITF reached a consensus on Issue 00-22: "Accounting for
"Points" and Certain Other Time-Based or Volume-Based Sales Incentive
Offers for Free Products or Services to be Delivered in the Future." EITF
00-22 requires that cash rebates or refund obligations should be recognized
as a reduction of revenue based on a systematic and rational allocation of
the cost of honoring them. EITF 00-22 is applied for quarters ended after
February 15, 2001. In April 2001, the EITF reached a consensus on Issue
00-25: "Vendor Income Statement Characterization of Consideration Paid to
Reseller of the Vendor's Products." EITF 00-25 addresses the income
statement classification, other than that addressed in EITF 00-14, from a
vendor to a reseller or another party that purchases the vendor's products.
EITF 00-25 requires that any consideration from a vendor to a reseller of
its products is presumed to be a reduction of the selling price of the
vendor's products and should be characterized as a reduction of revenue in
the vendor's income statement. Such EITF, also establishes the conditions
under which the consideration could be characterized as a cost incurred.
EITF 00-25 should be applied for annual or interim periods beginning after
December 15, 2001. In November of 2001, EITF codified Issues 00-14, 00-22
and 00-25 as Issue 01-9: "Accounting for a Consideration Given by a Vendor
to a Reseller of the Vendor's Products." Management is currently evaluating
the effects of adopting EITF 00-14 and 00-25, but believes it will not have
a material effect on the Company's results of operations or financial
position. Adoption of EITF 00-22 did not have a material effect in the
results of operation or financial position.
The adoption of Statement of Accounting Standards No. 133, "Accounting
for Derivative Instruments and Hedging Activities" ("SFAS No. 133"), as
amended by SFAS 138 did not have a material effect on the results of
operations, financial position and cash flows of the Company on January 1,
2001, the date of adoption. SFAS No. 133 establishes accounting and
reporting standards for derivative instruments, including certain
derivative instruments embedded in other contracts (collectively referred
to as derivatives) and for hedging activities. SFAS No. 133 requires an
enterprise to recognize all derivatives as either assets or liabilities in
the statement of financial position and measure these instruments at fair
value.
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GDS Letters of Transmittal, properly completed and duly signed, accompanied
by GDRs, or in the event of book-entry deliveries, Agent's Messages, evidencing
the tendered GDSs, and all other required documents related to the tender of
GDSs in the U.S. Offer should be delivered to the U.S. Receiving Agent. In order
to tender by Guaranteed Delivery, prior to the expiration of the U.S. Offer, the
U.S. Receiving Agent must receive 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. These documents may be sent by overnight
courier, registered or certified mail or (in the case of Notices of Guaranteed
Delivery only) facsimile transmission.
The U.S. Receiving Agent for the U.S. Offer is:
THE BANK OF NEW YORK
By Mail:
The Bank of New York
Tender & Exchange Department
P.O. Box 11248
Church Street Station
New York, New York 10286-1248
By Hand or Overnight Courier:
The Bank of New York
Tender & Exchange Department
101 Barclay Street
Receive and Deliver Window Street Level
New York, New York 10286
For Notices of Guaranteed Delivery Only:
Facsimile Transmission:
(for Eligible Institutions only)
(212) 815-6433
To Confirm Facsimile Transmission:
(212) 815-6212
DELIVERY OF A GDS LETTER OF TRANSMITTAL AND ANY CERTIFICATE OR AGENT'S
MESSAGE TO AN ADDRESS OTHER THAN THE ADDRESS LISTED ABOVE IS NOT A VALID
DELIVERY OF THE GDS LETTER OF TRANSMITTAL, CERTIFICATE OR AGENT'S MESSAGE.
An Acceptance Letter from the Mexican custodian, evidencing the tendered
Shares or CPOs, and all other required documents related to the tender of Shares
and CPOs in the U.S. Offer should be delivered to the Mexican Receiving Agent.
The Mexican Receiving Agent for the U.S. Offer is:
ACCIONES Y VALORES DE MEXICO, S.A. de C.V.
By Hand or Overnight Courier
Paseo de la Reforma 398, Piso 1
Col. Juarez, C.P. 06600
Mexico, D.F.,
Mexico
Attention: Mr. Erubiel Manrique
DELIVERY OF ANY ACCEPTANCE LETTER TO AN ADDRESS OTHER THAN THE ADDRESS
LISTED ABOVE IS NOT A VALID DELIVERY OF THE CONFIRMATION.
Questions or requests for assistance or additional copies of this 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., INC. 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 and Documents Incorporated by Reference
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