Exhibit (d)(3)
ESCROW AGREEMENT
This Escrow Agreement (the "Agreement") is made as of the 4th day of
October 2002 by and among PBG Grupo Embotellador Hispano-Mexicano, S.L., a
Spanish limited liability company ("PBG Hispano"), Bottling Group, LLC, a
Delaware limited liability company ("BG" and together with PBG Hispano, the
"Bidder"), Xxxxxxx X. Xxxxxx Xxxxxxx ("Xxxxxx") and The Bank of New York, a New
York banking corporation (the "Escrow Agent").
WHEREAS, Xxxxxx and Bidder have entered on the date hereof into an
Agreement to Tender (the "Agreement to Tender") pursuant to which Xxxxxx agreed
to tender and not withdraw (except as permitted in section 3.2 of the Agreement
to Tender) the Xxxxxx Securities (as such term is defined in the Agreement to
Tender) in the Offers (as such term is defined in the Agreement to Tender);
WHEREAS, pursuant to the Agreement to Tender, Xxxxxx has certain
indemnification obligations to Bidder (the "Obligations");
WHEREAS, pursuant to the Agreement to Tender, the parties agreed that from
the purchase price for the Xxxxxx Securities, a sum equal to the U.S. dollar
equivalent of Ps.141,150,000 calculated at the exchange rate set forth in
Section 2.1 of the Agreement to Tender (the "Indemnity Amount") shall be
delivered to the Escrow Agent to be held as provided herein; and
WHEREAS, capitalized terms used herein but not defined shall have the
meanings ascribed to them in the Agreement to Tender.
NOW, THEREFORE, in consideration of the premises and the mutual agreements
hereinafter contained, the parties hereto agree as follows:
1. Delivery of Escrow Amount.
(a) Prior or on the date hereof, Xxxxxx shall have entered into
arrangements, reasonably satisfactory to Bidder for the delivery of the
Indemnity Amount to the Escrow Agent from the aggregate Offer Prices due to
Xxxxxx and the other Xxxxxx Shareholders if, in accordance with the terms of the
Agreement to Tender, Xxxxxx tenders and causes to be tendered the Xxxxxx
Securities in the Offers and Bidder accepts the tender of the Xxxxxx Securities.
(b) The Escrow Agent shall, upon receipt of the Indemnity Amount deposit
such amount (such amount plus any interest accrued or other income earned
thereon, the "Escrow Amount") in an escrow account that it shall create (the
"Escrow Account"), and will hold the Escrow Amount in accordance with the terms
and conditions of this Agreement.
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2. Escrow Fund Income.
(a) The Escrow Agent shall invest any monies held in the Escrow Account in
any of the following investments (collectively, "Permitted Investments") as
directed in writing by Xxxxxx from time to time: (i) securities issued or
directly and fully guaranteed or insured by the United States government or any
agency or instrumentality thereof having maturities not exceeding one year; (ii)
certificates of deposit and eurodollar time deposits, in each case with
maturities not exceeding one year, and overnight bank deposits with any domestic
commercial bank having capital and surplus in excess of $500,000,000; (iii)
commercial paper rated A-1 or the equivalent thereof by Standard & Poor's
Corporation or P-1 or the equivalent thereof by Xxxxx'x Investors Service, Inc.;
and (iv) any other investment to which both Xxxxxx and Bidder may agree, and in
each case maturing within six months after the date of the delivery of the
Indemnity Amount to the Escrow Agent; provided, however, if the amount of monies
held in the Escrow Account is insufficient to make an investment in any
Permitted Investment, the Escrow Agent shall invest such monies in a money
market account of the Escrow Agent or a New York money center bank designated by
Xxxxxx.
(b) Any interest accruing from time to time in the Escrow Account shall be
paid to Xxxxxx, monthly, unless otherwise directed by Xxxxxx; provided that to
the extent the Escrow Account has incurred any losses as a result of the
liquidation of investments made by the Escrow Agent, the Escrow Agent shall
withhold in the Escrow Account from such interest payments to be made to Xxxxxx
an amount equal to the lesser of (i) the total amount of interest to be paid to
Xxxxxx and (ii) the aggregate amount of such losses. Xxxxxx acknowledges that
payment of any interest earned on the monies held in the Escrow Account will be
subject to backup withholding penalties unless a properly completed Internal
Revenue Service Form W-8 certification is submitted to Escrow Agent. For tax
purposes, the monies held in the Escrow Account shall be the property of Xxxxxx
and all interest and other income earned on such monies shall be the income of
Xxxxxx. Xxxxxx shall, if necessary, file tax returns and, if necessary, the
Escrow Agent shall file a Form 1099 consistent with such treatment.
3. Assurances.
Xxxxxx and Bidder each shall at the request of the other execute and
deliver all other documents and take all such further action as the parties may
reasonably request in order to effect the purposes and provisions of this
Agreement.
4. Default. Remedies.
(a) In the event that, at any time, Bidder shall, reasonably and in good
faith, assert a claim for indemnification pursuant to Section 8.1 of the
Agreement to Tender (a "Claim"), Bidder shall deliver to Xxxxxx and the Escrow
Agent a written notice (the "Indemnification Notice"), which Indemnification
Notice shall specify, in reasonable detail, (i) the basis for the Claim and (ii)
the estimated amount of such Claim together with fees and costs related to such
Claim determined in good faith by the Bidder (the "Indemnity Estimate"). If the
actual damages are determined to be greater than the
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Indemnity Estimate, Bidder shall not be limited in its remedies to the Indemnity
Estimate. If the actual damages are determined to be less than the Indemnity
Estimate, any amount previously paid to Bidder with respect to such Claim which
is in excess of the actual damages shall be returned promptly to the Escrow
Account and disbursed only in accordance with its terms. Xxxxxx shall have a
period of fifteen (15) Business Days following receipt of the Indemnity Notice
within which to deliver to Bidder and Escrow Agent a written notice (the
"Response Notice"), which Response Notice shall advise Bidder either (A) that
Xxxxxx agrees that Bidder is entitled to indemnification pursuant to Section 8.1
of the Agreement to Tender with respect to the Claim and that Xxxxxx agrees with
the Indemnity Estimate set forth in the Indemnity Notice, or (B) that Xxxxxx
does not agree that Bidder is entitled to indemnification pursuant to Section
8.1 of the Agreement to Tender with respect to the Claim or that Xxxxxx does not
agree with the Indemnity Estimate set forth in the Indemnity Notice. If (i)
Xxxxxx shall advise Bidder, in the Response Notice as provided in clause (A) of
this Section 4(a) or (ii) Xxxxxx fails to send to Bidder a Response Notice
within the fifteen (15) Business Day period described above, then no dispute
shall exist and the Escrow Agent shall, if so instructed by Bidder, deliver to
Bidder the Indemnity Estimate from the Escrow Amount. If, on the other hand,
Xxxxxx shall advise Bidder in the Response Notice as provided in clause (B)
above (specifying in reasonable detail Xxxxxx'x disagreement), a dispute (the
"Dispute") shall be deemed to exist between Bidder and Xxxxxx.
(b) Bidder and Xxxxxx shall endeavor in good faith to resolve the Dispute
by direct consultation and negotiation with each other. In the event Bidder and
Xxxxxx are unable to resolve the Dispute within ten (10) Business Days after
receipt of the Response Notice, the Dispute shall be finally settled by
arbitration in New York City under the international arbitration rules of the
American Arbitration Association ("AAA"), before a panel of three arbitrators
selected in accordance with said rules; provided however, that a Dispute arising
from a Third Party Claim shall not be submitted to arbitration until ten (10)
Business Days after such Third Party Claim has been reduced to a final judgment
not subject to further appeal or has otherwise been settled in accordance with
the procedures of Section 8 of the Agreement to Tender. The arbitral tribunal
and the AAA in administering the dispute shall also give effect to the Expedited
Procedures of the commercial arbitration rules of the AAA. The official language
of the arbitration shall be English. Each party shall bear the expenses of its
own counsel and witnesses. The costs of the arbitration proceeding shall be
borne by the non-prevailing party. The arbitral tribunal shall not have the
power to add to, modify or change any provisions of this Agreement. If the
arbitral tribunal determines the amount of Xxxxxx'x indemnification obligation
with respect to the related Claim, the Escrow Agent shall, upon receipt from
Bidder of a copy of such determination and an instruction from Bidder to pay
Bidder the amount of such determination, pay to Bidder the amount of such
determination from the Escrow Amount.
5. Rights, Duties and Immunities of the Escrow Agent.
(a) Acceptance by the Escrow Agent of its duties under this Agreement is
subject to the following terms and conditions, which all parties to this
Agreement hereby agree shall govern and control the rights, duties and
immunities of the Escrow Agent:
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(i) The duties and obligations of the Escrow Agent are purely
ministerial in nature and are determined solely by the express provisions of
this Agreement.
(ii) The Escrow Agent shall not be responsible in any manner
whatsoever for any failure or inability of the parties to this Agreement, or of
anyone else, to honor any of the provisions of this Agreement.
(iii) The parties hereto will reimburse and indemnify the Escrow
Agent for, and hold it harmless against, any loss, liability, damage or expense,
including but not limited to counsel fees and expenses arising out of or in
connection with its acceptance of, or the performance of its duties and
obligations under, this Agreement, except for losses, liabilities, damages and
expenses caused by the willful misconduct or gross negligence of the Escrow
Agent. In no event will the Escrow Agent be liable for any loss of asset value
or consequential, indirect or special damages. The obligations set forth in this
Section 5(a)(iii) shall survive the termination of this Agreement.
(iv) The Escrow Agent may act in reliance upon any signature
believed by it to be genuine and may assume that any person who has been
designated by Bidder or Xxxxxx to give written instructions, notice of receipt
or make any statements in connection with the provisions hereof is authorized to
do so. The Escrow Agent shall have no duty to make inquiry as to the
genuineness, accuracy or validity of any statements or instruments or any
signatures on any statements or instructions. Bidder and Xxxxxx agree that, for
the purposes of this Agreement, the names and true signatures of each individual
authorized to act on behalf of each of them will be set forth on a separate
writing as drafted by the parties if either of them elects to have another
person or entity to act on their behalf. Subject to the provisions of this
Agreement, in the event that the Escrow Agent is uncertain as to its duties or
the manner in which any of its duties shall be performed, the Escrow Agent shall
notify Bidder and Xxxxxx, and the Escrow Agent need not take any action or
perform any act until the uncertainty is resolved to the satisfaction of the
Escrow Agent.
(v) The Escrow Agent shall not be liable for any error of judgment,
or for any act done or step taken or omitted by it, or for anything which it may
do or refrain from doing in connection herewith, except its own fraud, willful
misconduct or gross negligence.
(vi) The Escrow Agent may seek the advice of such legal counsel as
it deems necessary in the event of any dispute or question as to the
construction of any of the provisions of this Agreement or its duties hereunder,
and it shall incur no liability and shall be fully protected in respect of any
action taken, omitted or suffered by it in accordance with the opinion of such
counsel.
(vii) The Escrow Agent makes no representation as to the validity,
value, genuineness or collectibility of any security, document or instrument
held by or delivered to it.
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(b) If the Escrow Agent has any doubts as to whether or not it should
release all or any part of the Escrow Amount, the Escrow Agent may, at the
Escrow Agent's option, deposit such Escrow Amount with the clerk of the United
States District Court for the Southern District of New York or the Supreme Court
of the State of New York, County of New York upon commencement of an action in
the nature of an interpleader and the Escrow Agent shall thereupon be released
and discharged from any and all further obligations arising in connection with
this Agreement.
(c) The parties agree that in the event that the Escrow Agent becomes
unable to perform its duties under this Agreement, Bidder and Xxxxxx, shall
jointly designate a new Escrow Agent to perform the obligations under this
Agreement.
(d) If at any time the Escrow Agent is served with any judicial or
administrative order, judgment, decree, writ or other form of judicial or
administrative process which in any way affects the Escrow Amount (including,
but not limited to, orders of attachment or garnishment or other forms of levies
or injunctions or stays relating to the Escrow Amount), the Escrow Agent shall
provide written notice thereof to Bidder and Xxxxxx within three Business Days
in accordance with the notice provisions in Section 7(f) of this Agreement.
6. Termination; Distribution of Escrow Amount.
(a) This Escrow Agreement shall terminate on the third year anniversary of
the Purchase Date; provided, however, that in the event that a Dispute(s) exists
on such date, this Agreement shall remain in effect until the resolution of such
Dispute(s). Notwithstanding anything to the contrary, this Agreement shall
terminate upon distribution of all of the property held in the Escrow Account
from the Escrow Account pursuant to the terms and conditions of this Agreement.
(b) The Escrow Agent shall deliver to Xxxxxx, on every six-month
anniversary of the Purchase Date until the third year anniversary of the
Purchase Date (each such six month anniversary, a "Release Date"), an amount
equal to the lesser of (i) one sixth of the U.S. dollar equivalent of
Ps.141,150,000 calculated at the exchange rate set forth in Section 2.1 of the
Agreement to Tender or (ii) the excess, if any, of any remaining Escrow Amount
before giving effect to any amount to be released on such Release Date over the
aggregate Indemnity Estimate of all unpaid Claim(s) and of all Claim(s) that are
the subject of a Dispute(s) as of such date.
(c) If, on the third year anniversary of the Purchase Date, there are no
unpaid Claim(s) or existing Dispute(s), the then remaining Escrow Amount shall
be promptly released to Xxxxxx, but in no event shall such release be made more
than five (5) Business Days after such third year anniversary. If an unpaid
Claim(s) or a Dispute(s) exists on the sixth Release Date, Section 6(b) hereof
shall continue to be applicable and the then remaining Escrow Amount shall be
held by the Escrow Agent until such Claim(s) is paid or Dispute(s) is resolved,
at which time the then remaining Escrow Amount shall be promptly released to
Xxxxxx, but in no event shall such release be made
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more than five (5) Business Days after the date on which all such Claim(s) is
paid or such Dispute(s) is resolved.
(d) A Dispute shall be resolved upon the earlier of (i) an agreement, duly
executed between Bidder and Xxxxxx, specifying the resolution of such Dispute or
(ii) the entry of a final judgment not subject to further appeal by a court as
provided in Section 7(b) hereof.
(e) Xxxxxx and the Bidder may remove the Escrow Agent at any time by
giving the Escrow Agent a thirty (30) calendar day prior written notice signed
by both Xxxxxx and the Bidder. The Escrow Agent may resign by giving Xxxxxx and
the Bidder a thirty (30) calendar day prior written notice thereof.
7. Miscellaneous.
(a) Governing Law. This Agreement shall be governed by, and construed and
enforced in accordance with, and the rights to the parties shall be governed by,
the laws of the State of New York, regardless of the laws that might otherwise
govern under applicable principles of conflicts of laws thereof.
(b) Forum. This Agreement shall be subject to the exclusive jurisdiction
of the Federal Courts for the Southern District of New York and State courts of
New York County in the State of New York. The parties irrevocably waive, to the
fullest extent permitted by law, any objection or immunities to jurisdiction
which they may now or hereafter have (including sovereign immunity, immunity to
pre-judgment attachment, post-judgment attachment and execution) to the laying
of venue of any suit, action or proceeding arising out of or relating to this
Agreement or the transactions contemplated hereby, or any judgment entered by
any court in respect hereof brought in the State of New York, and further
irrevocably waive any claim that any suit, action or proceeding in the Borough
of Manhattan, New York has been brought in an inconvenient forum. For the
purpose of proceedings in the courts described in this Section 7(b), Xxxxxx
hereby irrevocably designates CT Corporation as his agent, and in the event that
such agent or any successor shall cease to represent him, Xxxxxx shall promptly
and irrevocably designate a successor and notify Bidder thereof, to accept on
his behalf service of any and all process or other documents which may be served
in any action or proceeding in any of such courts. Xxxxxx further agrees that
(i) service upon such agent shall constitute valid and effective service upon
Xxxxxx and that failure of such agent to give any notice of such service to
Xxxxxx shall not affect the validity of such service or any judgment rendered in
any action or proceeding based thereon and (ii) that service of any and all such
process or other documents of Xxxxxx may also be effected by registered mail to
his address as set forth in Section 7(f) hereof.
(c) Remedies Cumulative; No Third Party Beneficiaries. The rights and
remedies of the parties to this Agreement are cumulative and not alternative.
Neither any failure nor any delay by any party in exercising any right, power or
privilege under this Agreement will operate as a waiver of such right, power or
privilege, and no single or partial exercise of any such right, power or
privilege will preclude any other or further
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exercise of such right, power or privilege or the exercise of any other right,
power or privilege. Nothing in this Agreement shall convey any rights upon any
person or entity that is not a party to this Agreement.
(d) Entire Agreement. This Agreement and the Agreement to Tender
constitute the full and entire understanding and agreement between the parties
with regard to the subject matter hereof. This Agreement supersedes all prior
agreements and understandings, written or oral, between the parties with respect
to such subject matter.
(e) Severability. If any provision of this Agreement is held invalid or
unenforceable by any court of competent jurisdiction, the other provisions of
this Agreement will remain in full force and effect. Any provision of this
Agreement held invalid or unenforceable only in part or degree will remain in
full force and effect to the extent not held invalid or unenforceable.
(f) Notices. Any and all notices or other communications or deliveries
required or permitted to be given under any of the provisions of this Agreement
shall be in writing and shall be deemed to have been duly given (i) five days
after the mailing thereof by registered mail, return receipt requested, (ii) on
the day following mailing when sent by overnight express mail or courier,
signature required, and (iii) at the actual time of receipt when delivered
personally, addressed to Xxxxxx, Bidder or the Escrow Agent at the addresses set
forth below (or at such other address as any party may specify by notice to the
other parties hereto given as aforesaid):
If to Xxxxxx, to:
Xxxxxx Xxxxxxx Xx. 000
Xxx. Xxxxxxx
00000 Xxxxxx, D.F., Mexico
Phone: (000-0000) 0000-0000
Fax: (000-0000) 0000-0000
With a copy to:
Fried, Frank, Harris, Xxxxxxx & Xxxxxxxx
Xxx Xxx Xxxx Xxxxx,
Xxx Xxxx, XX 00000
Attn: Xxx X. Xxxxx, Esq.
Phone: (000) 000-0000
Fax: (000) 000-0000
If to Bidder, to:
c/o The Pepsi Bottling Group
0 Xxxxx Xxx
Xxxxxx, XX 00000
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Attn: Senior Deputy General Counsel
Phone: (000) 000-0000
Fax: (000) 000-0000
With a copy to:
Proskauer Rose LLP
0000 Xxxxxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxxx X. Xxxxxxxx, Esq.
Phone: (000) 000-0000
Fax: (000) 000-0000
If to the Escrow Agent, to:
The Bank of New York
Insurance/Escrow Unit, 8th Floor West
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxx X. Xxxxxxx, Assistant Vice President
Phone: (000) 000-0000
Fax: (000) 000-0000
(g) Amendment. This Agreement may not be amended except by a written
instrument signed by each party hereto.
(h) Escrow Agent Fees. The fees of the Escrow Agent for acting as such
under this Agreement shall be paid by Bidder.
(i) Binding Effect; No Assignment. This Agreement shall be binding upon
and inure to the benefit of the parties and their respective successors and
permitted assigns. This Agreement and each party's rights hereunder may not be
assigned without the prior written consent of the other parties hereto, except
that Bidder may assign, in whole or in part, its rights hereunder to one or more
of its Affiliates; provided that, Bidder has given Xxxxxx prior written notice
of any such assignment.
(j) Counterparts; Headings. This Agreement may be executed in two
counterparts, each of which shall be an original, but which together shall
constitute one and the same instrument. The descriptive headings of the several
sections and paragraphs of this Agreement are inserted for reference only and
shall not limit or otherwise affect the meaning hereof.
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IN WITNESS WHEREOF, the parties have executed or caused this Agreement to be
executed as of the date first written above.
PBG GRUPO EMBOTELLADOR
HISPANO-MEXICANO, S.L.
By: /s/ Xxxxx Xxxxxxxxx
_______________________
Name: Xxxxx Xxxxxxxxx
Title: Managing Director
BOTTLING GROUP, LLC
By: /s/ Xxxxxx X. Xxxxxx
_______________________
Name: Xxxxxx X. Xxxxxx
Title: Principal Financial Officer
/s/ Xxxxxxx X. Xxxxxx Xxxxxxx
--------------------------
XXXXXXX X. XXXXXX SOBRINO
THE BANK OF NEW YORK, as Escrow Agent
By: /s/ Xxxxxx X. Xxxxxxx
_______________________
Name: Xxxxxx X. Xxxxxxx
Title: Assistant Vice President
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