UNITED STATES |
SECURITIES AND EXCHANGE COMMISSION |
Washington, D.C. 20549 |
SCHEDULE 13D/A [Rule 13d-101] |
Under the Securities Exchange Act of 1934 |
INFORMATION TO BE INCLUDED IN STATEMENTS FILED PURSUANT TO § 240.13d-1(a) AND AMENDMENTS THERETO FILED PURSUANT TO § 240.13d-2(a) |
Embotelladora Andina S.A. |
(Name of Issuer) |
Common Stock, No Par Value |
(Title of Class of Securities) |
None * |
(CUSIP Number) |
* CUSIP number for American Depositary Shares representing |
Series A Common Stock is |
29081P 20 4 |
CUSIP number for American Depositary Shares representing |
Series B Common Stock is |
29081P 30 3 |
Gary P. Fayard |
Executive Vice President and Chief Financial Officer |
The Coca‑Cola Company |
One Coca‑Cola Plaza |
Atlanta, Georgia 30313 |
(404) 676‑2121 |
(Name, Address and Telephone Number of Person |
Authorized to Receive Notices and Communications) |
With a copy to: |
Bernhard Goepelt Senior Vice President, General Counsel and Chief Legal Counsel |
The Coca‑Cola Company |
One Coca‑Cola Plaza |
Atlanta, Georgia 30313 |
(404) 676‑2121 |
6/25/2012 |
(Date of Event which Requires Filing of this Statement) |
1 | NAME OF REPORTING PERSON S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON | ||
THE COCA-COLA COMPANY 58-0628465 | |||
2 | CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* | (a) [ X ] | |
(b) [ ] | |||
3 | SEC USE ONLY | ||
4 | SOURCE OF FUNDS* | ||
N/A | |||
5 | CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) OR 2(e) | ||
N/A | |||
6 | CITIZENSHIP OR PLACE OF ORGANIZATION | ||
State of Delaware | |||
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH | 7 | SOLE VOTING POWER 41,962,864 shares of Series A Common Stock, no par value, and 41,962,864 shares of Series B Common Stock, no par value (See Attachment A) | |
8 | SHARED VOTING POWER None | ||
9 | SOLE DISPOSITIVE POWER 41,962,864 shares of Series A Common Stock, no par value, and 41,962,864 shares of Series B Common Stock, no par value (See Attachment A) | ||
10 | SHARED DISPOSITIVE POWER None | ||
11 | AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 41,962,864 shares of Series A Common Stock, no par value, and 41,962,864 shares of Series B Common Stock, no par value (See Attachment A) | ||
12 | CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES | [ ] | |
13 | PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 11.0% of the shares of Series A Common Stock, no par value, outstanding; 11.0% of the shares of Series B Common Stock, no par value, outstanding (See Attachment B) | ||
14 | TYPE OF REPORTING PERSON* CO |
1 | NAME OF REPORTING PERSON S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON | ||
THE COCA-COLA EXPORT CORPORATION 13-1525101 | |||
2 | CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* | (a) [ X ] | |
(b) [ ] | |||
3 | SEC USE ONLY | ||
4 | SOURCE OF FUNDS* | ||
N/A | |||
5 | CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) OR 2(e) | ||
N/A | |||
6 | CITIZENSHIP OR PLACE OF ORGANIZATION | ||
State of Delaware | |||
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH | 7 | SOLE VOTING POWER 41,962,864 shares of Series A Common Stock, no par value, and 41,962,864 shares of Series B Common Stock, no par value (See Attachment A) | |
8 | SHARED VOTING POWER None | ||
9 | SOLE DISPOSITIVE POWER 41,962,864 shares of Series A Common Stock, no par value, and 41,962,864 shares of Series B Common Stock, no par value (See Attachment A) | ||
10 | SHARED DISPOSITIVE POWER None | ||
11 | AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 41,962,864 shares of Series A Common Stock, no par value, and 41,962,864 shares of Series B Common Stock, no par value (See Attachment A) | ||
12 | CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES | [ ] | |
13 | PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 11.0% of the shares of Series A Common Stock, no par value, outstanding; 11.0% of the shares of Series B Common Stock, no par value, outstanding (See Attachment B) | ||
14 | TYPE OF REPORTING PERSON* CO |
1 | NAME OF REPORTING PERSON S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON | ||
SERVICIOS Y PRODUCTOS PARA BEBIDAS REFRESCANTES S.R.L. (TIN - N/A) | |||
2 | CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* | (a) [ X ] | |
(b) [ ] | |||
3 | SEC USE ONLY | ||
4 | SOURCE OF FUNDS* | ||
N/A | |||
5 | CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) OR 2(e) | ||
N/A | |||
6 | CITIZENSHIP OR PLACE OF ORGANIZATION | ||
Republic of Argentina | |||
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH | 7 | SOLE VOTING POWER 41,962,864 shares of Series A Common Stock, no par value, and 41,962,864 shares of Series B Common Stock, no par value (See Attachment A) | |
8 | SHARED VOTING POWER None | ||
9 | SOLE DISPOSITIVE POWER 41,962,864 shares of Series A Common Stock, no par value, and 41,962,864 shares of Series B Common Stock, no par value (See Attachment A) | ||
10 | SHARED DISPOSITIVE POWER None | ||
11 | AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 41,962,864 shares of Series A Common Stock, no par value, and 41,962,864 shares of Series B Common Stock, no par value (See Attachment A) | ||
12 | CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES | [ ] | |
13 | PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 11.0% of the shares of Series A Common Stock, no par value, outstanding; 11.0% of the shares of Series B Common Stock, no par value, outstanding (See Attachment B) | ||
14 | TYPE OF REPORTING PERSON* OO (limited liability company) |
1 | NAME OF REPORTING PERSON S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON | ||
COCA-COLA DE CHILE S.A. (TIN - N/A) | |||
2 | CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* | (a) [ X ] | |
(b) [ ] | |||
3 | SEC USE ONLY | ||
4 | SOURCE OF FUNDS* | ||
N/A | |||
5 | CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) OR 2(e) | ||
N/A | |||
6 | CITIZENSHIP OR PLACE OF ORGANIZATION | ||
Republic of Chile | |||
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH | 7 | SOLE VOTING POWER 41,962,864 shares of Series A Common Stock, no par value, and 41,962,864 shares of Series B Common Stock, no par value (See Attachment A) | |
8 | SHARED VOTING POWER None | ||
9 | SOLE DISPOSITIVE POWER 41,962,864 shares of Series A Common Stock, no par value, and 41,962,864 shares of Series B Common Stock, no par value (See Attachment A) | ||
10 | SHARED DISPOSITIVE POWER None | ||
11 | AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 41,962,864 shares of Series A Common Stock, no par value, and 41,962,864 shares of Series B Common Stock, no par value (See Attachment A) | ||
12 | CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES | [ ] | |
13 | PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 11.0% of the shares of Series A Common Stock, no par value, outstanding; 11.0% of the shares of Series B Common Stock, no par value, outstanding (See Attachment B) | ||
14 | TYPE OF REPORTING PERSON* CO |
(i) | the possible acquisition of additional securities of Andina, or the disposition of securities of Andina; |
(ii) | possible extraordinary corporate transactions (such as a merger, consolidation or reorganization) involving Andina or any of its subsidiaries, including with other bottling companies in which one or more of the Reporting Persons may have a direct or indirect equity interest; or |
(iii) | the possible acquisition by Andina or its subsidiaries of assets or interests in one or more bottling companies, including other bottling companies in which one or more of the Reporting Persons may have a direct or indirect equity interest, or the possible sale of assets or bottling operations by Andina or its subsidiaries. |
ITEM 6. CONTRACTS, ARRANGEMENTS, UNDERSTANDINGS OR RELATIONSHIPS WITH RESPECT TO | SECURITIES OF THE ISSUER |
(a) | any amendment to the articles of association or by-laws of Andina or any subsidiary thereof; |
(b) | any sale or disposal of substantially all the assets of Andina or any subsidiaries thereof; |
(c) | any amendment to the Code of Business Conduct; |
(d) | the approval by Andina or any of its subsidiaries of the annual business plan or any material amendment to the annual business plan, including the annual budget for investments, financing (including profit distribution as part of the annual financing structure), research and development, or operations; |
(e) | in respect of Andina, any resolution about the payment of dividends (either on an interim or definitive basis) of Andina (on a consolidated basis) or of any other kind of distribution to the shareholders which has a similar economic effect, for an amount in excess of 66% percent of the net profit of the current fiscal year (in case of interim dividends) or of the preceding fiscal year (in case of definitive dividends), without duplication; |
(f) | in respect of Andina or any of its subsidiaries, (i) any acquisition or transfer of any interest in another entity or business enterprise; (ii) the formation of or participation in any company, joint venture or other similar entity; or (iii) the purchase or any acquisition of any assets for an amount equal to or in excess of the equivalent to US$50,000,000, whether in a single or series of transactions in a 12 consecutive months period; |
(g) | any sale, lease, exchange, transfer, mortgage, pledge or any other disposal of fixed assets of Andina or any of its subsidiaries, with a market value in excess of the equivalent to US$50,000,000, whether in a single or in a series of transactions in a 12 consecutive months period; |
(h) | (i) any merger, share exchange, consolidation, corporate reorganization, transformation, formation and incorporation of subsidiaries and/or affiliates (coligadas) or any other similar transaction involving Andina or any of its subsidiaries; (ii) the dissolution or liquidation of Andina or any of its subsidiaries; or (iii) filing by Andina or any of its subsidiaries for voluntary bankruptcy or of any proposal for a creditors agreement, or the insolvency of Andina or any of its subsidiaries, unless filing for their own bankruptcy is legally mandatory; |
(i) | the acquisition or initiation of any new business or the interruption or reduction of a significant part of the business of Andina or any of its subsidiaries, including the interruption or significant reduction of a business or production line; |
(j) | (i) capital expenditures and investments (e.g. leasing with purchase option, construction of a warehouse or storage, expansion of production capacity, engineering or architectural work for a plant, development of IT systems, etc.) by Andina or any of its subsidiaries in excess of the equivalent to US$75,000,000, whether in a single or in a series of transactions in a 12 consecutive months period; (ii) granting any collateral over the assets of Andina or any of its subsidiaries in excess of the equivalent to US$75,000,000; or (iii) any guarantee by Andina or any of its subsidiaries thereof in favor of any debts, credits or other obligations in excess of the equivalent to US$75,000,000, except for any guarantee granted by Andina in favor of its subsidiaries; and |
(k) | at any shareholders' meeting of Andina or any of its subsidiaries, the granting of any loan to any Majority Shareholder or a Related Party thereto; |
(i) | If the shares to be purchased by the Majority Shareholders pursuant to the Put Right are shares of Series A Stock, the Put Price for such shares shall be mutually agreed upon by the KO Shareholders and the Majority Shareholders or, if the KO Shareholders and the Majority Shareholders are unable to agree within 30 days after the request by the KO Shareholders for the determination of the Put Price, the Majority Shareholders, on the one hand, and the KO Shareholders, on the other hand, shall each choose an internationally recognized investment banking firm with experience in the analysis of soft drink businesses, and each of those two firms within 60 days from the date of their engagement shall prepare an appraisal setting forth its determination of the Put Price. If such two firms do not agree on the Put Price and following such determination the KO Shareholders and the Majority Shareholders continue to be unable to agree upon the Put Price within ten days from the expiration of such 60-day term, the two firms shall, in good faith, select a third investment banking firm, which third firm shall be an internationally recognized firm with experience in the analysis of soft drink businesses. The third investment banking firm so selected shall within 45 days from the date of its engagement prepare an appraisal setting forth its determination of the Put Price, which determination shall be final and binding to the parties. The Put Price of the shares of Series A Stock shall be the price that a holder of shares of Series A Stock would receive upon the sale of such shares in a transaction under market conditions between a willing seller and a willing buyer as of the date of the request by the KO Shareholders that the Put Price be determined. |
(ii) | If the Shares to be purchased by the Majority Shareholders pursuant to the Put Right are shares of Series B Stock, the Put Price shall be the Market Value of such shares of Series B Stock. |
(i) | the sale of all or substantially all of the assets of Andina; |
(ii) | any reorganization, merger, consolidation, share exchange or business combination involving Andina; |
(iii) | any change in the direct or indirect ownership of the outstanding voting power or equity interests of any of the Majority Shareholders as a result of which the Majority Shareholders Partner Group owns collectively less than 75% of the outstanding voting power or less than 75% the outstanding equity interests of any of the Majority Shareholders; |
(iv) | any change in the direct or indirect ownership of the outstanding voting power or equity interests of Andina as a result of which the Majority Shareholders own in the aggregate less than 50.1% of the outstanding voting power of Andina or less than 25% of the outstanding equity interests of Andina; or |
(v) | a stock split, subdivision, stock dividend, extraordinary dividend or dividends or other reclassification, consolidation or combination of Andina's voting securities or any similar action or transaction. |
(a) | Any of the Majority Shareholders Partners; |
(b) | Any of the spouses of the Majority Shareholders Partners; |
(c) | Any of the lineal descendants (whether natural or adopted) of any of the Majority Shareholders Partners; |
(d) | Any individual who, in circumstances where the transferor at the time of his death did not have a spouse or any lineal descendants, receives shares of the Majority Shareholders by intestacy from (i) a Majority Shareholder Partner, (ii) a lineal descendant (whether natural or adopted) of any of the Majority Shareholder Partners, or (iii) a person who has previously received shares of the Majority Shareholders by intestacy as described in this paragraph (d); |
(e) | Any wholly owned subsidiary of any of the foregoing; and |
(f) | Any trust formed for the benefit of any the persons listed in clauses (a), (b), (c) or (d) if one or more persons listed in clauses (a), (b), (c) or (d) retains full voting and investment power over the assets of such trust. |
EXHIBIT NO. | DESCRIPTION |
Exhibit 99.1 | Directors and Executive Officers of the Reporting Persons |
Exhibit 99.2 | Amended and Restated Shareholders' Agreement |
Exhibit 99.3 | Coca-Cola de Chile Power of Attorney [Translated from Spanish] |
Exhibit 99.4 | Servicios y Productos Para Bebidas Refrescantes S.R.L Power of Attorney [Translated from Spanish] |
Exhibit 99.5 | Form of Amendment to Stock Purchase Option and Custody Agreement [Translated from Spanish] |
Date: June 29, 2012 | THE COCA‑COLA COMPANY By: /s/ Christopher P. Nolan Christopher P. Nolan Vice President and Treasurer |
Date: June 29, 2012 | THE COCA‑COLA EXPORT CORPORATION By: /s/ Christopher P. Nolan Christopher P. Nolan Vice President and Treasurer |
Date: June 29, 2012 | COCA‑COLA DE CHILE S.A. By: /s/ Sylvia Chamorro and /s/ Alejandro del Basto Sylvia Chamorro and Alejandro del Basto Attorneys-in-Fact |
Date: June 29, 2012 | SERVICIOS y PRODUCTOS PARA BEBIDAS REFRESCANTES S.R.L. By: /s/ Alejandro del Basto Alejandro del Basto Attorney-in Fact |
EXHIBIT NO. | DESCRIPTION |
Exhibit 99.1 | Directors and Executive Officers of the Reporting Persons |
Exhibit 99.2 | Amended and Restated Shareholders' Agreement |
Exhibit 99.3 | Coca-Cola de Chile Power of Attorney [Translated from Spanish] |
Exhibit 99.4 | Servicios y Productos Para Bebidas Refrescantes S.R.L Power of Attorney [Translated from Spanish] |
Exhibit 99.5 | Form of Amendment to Stock Purchase Option and Custody Agreement [Translated from Spanish] |
EXHIBIT 99.1 |
NAME | PRINCIPAL OCCUPATION OR EMPLOYMENT | ADDRESS |
Muhtar Kent* | Chairman of the Board of Directors, President and Chief Executive Officer of The Coca-Cola Company | |
Herbert A. Allen | President, Chief Executive Officer and a Director of Allen & Company Incorporated, a privately held investment firm | Allen & Company Incorporated 711 Fifth Avenue New York, NY 10022 |
Ronald W. Allen | President, Chief Executive Officer and Director of Aaron's Inc. | Aaron's, Inc. 309 East Paces Ferry Road Suite 1100 Atlanta, GA 30305 |
Howard G. Buffett | President of Buffett Farms and President of the Howard G. Buffett Foundation, a private foundation supporting humanitarian initiatives focused on agriculture, nutrition, water and conservation | Howard G. Buffett Foundation 145 North Merchant Street Decatur, IL 62523 |
Richard M. Daley | Managing Principal of Tur Partners LLC, an investment and advisory firm focused on sustainable solutions within the urban environment | Tur Partners LLC 900 N. Michigan Avenue Suite 172 Chicago, IL 60611 |
Barry Diller | Chairman of the Board and Senior Executive of IAC/InterActiveCorp, an interactive commerce company | IAC/InterActiveCorp 555 West 18th Street New York, NY 10011 |
Evan G. Greenberg | Chairman, President and Chief Executive Officer of ACE Limited, the parent company of the ACE Group of Companies, a global insurance and reinsurance organization | ACE Group 1133 Avenue of the Americas 45th Floor New York, NY 10036 |
Alexis M. Herman | Chair and Chief Executive Officer of New Ventures LLC, a corporate consulting company | New Ventures 633 Pennsylvania Avenue, NW 3rd Floor Washington, D.C. 20004 |
NAME | PRINCIPAL OCCUPATION OR EMPLOYMENT | ADDRESS |
Donald R. Keough | Non-executive Chairman of the Board of Allen & Company Incorporated, a privately held investment firm, and non-executive Chairman of the Board of Allen & Company LLC, an investment banking firm | DMK International 200 Galleria Parkway Suite 970 Atlanta, GA 30339 |
Robert A Kotick | President, Chief Executive Officer and a Director of Activision Blizzard, Inc., an interactive entertainment software company | Activision Blizzard 3100 Ocean Park Boulevard Santa Monica, CA 90405 |
Maria Elena Lagomasino | Chief Executive Officer of GenSpring Family Offices, LLC, an affiliate of SunTrust Banks, Inc. | GenSpring Family Offices, LLC 13-15 West 54th Street 3rd Floor New York, NY 10019 |
Donald F. McHenry | Distinguished Professor in the Practice of Diplomacy and International Affairs at the School of Foreign Service, Georgetown University | Walsh School of Foreign Service Georgetown University ICC 301 Washington, D.C. 20057 |
Sam Nunn | Co-Chairman and Chief Executive Officer of the Nuclear Threat Initiative, a nonprofit organization working to reduce the global threats from nuclear, biological and chemical warfare | Sam Nunn School of International Affairs Georgia Institute of Technology 781 Marietta Street, N.W. Atlanta, GA 30318 |
James D. Robinson III | Co-Founder and General Partner of RRE Ventures, LLC, a private information technology-focused venture capital firm | RRE Ventures, LLC 130 East 59th Street, 17th Floor New York, NY 10022 |
Peter V. Ueberroth | Investor and Chairman of the Contrarian Group, Inc. a business management company | The Contrarian Group, Inc. 5 San Joaquin Plaza Suite 330 Newport Beach, CA 92660 |
Jacob Wallenberg | Chairman of the Board of Investor AB, a Swedish industrial holding company Mr. Wallenberg is a citizen of Sweden. | Investor AB SE-103 32 Stockholm SWEDEN |
James B. Williams | Former Chairman of the Board and Chief Executive Officer of SunTrust Banks, Inc., a bank holding company. | SunTrust Banks, Inc. P.O. Box 4418 Mail Code: GA-ATL-0645 Atlanta, GA 30302 |
NAME | PRINCIPAL OCCUPATION OR EMPLOYMENT | ADDRESS |
Harry L. Anderson | Senior Vice President, Global Business and Technology Services of The Coca-Cola Company | |
Ahmet C. Bozer | President of the Eurasia and Africa Group of The Coca-Cola Company Mr. Bozer is a citizen of the United States. | Fahrettin Kerim Gokay Cad. Istanbul 34662 TURKEY |
Steven A. Cahillane | President and Chief Executive Officer of Coca-Cola Refreshments USA., Inc., a wholly-owned subsidiary of The Coca-Cola Company | |
Alexander B. Cummings | Executive Vice President and Chief Administrative Officer of The Coca-Cola Company | |
J. Alexander M. Douglas, Jr. | President of the North America Group of The Coca-Cola Company | |
Ceree Eberly | Senior Vice President and Chief People Officer of The Coca-Cola Company | |
Gary P. Fayard | Executive Vice President and Chief Financial Officer of The Coca-Cola Company | |
Irial Finan | Executive Vice President of The Coca-Cola Company and President, Bottling Investments and Supply Chain Mr. Finan is a citizen of Ireland. | |
Bernhard Goepelt | Senior Vice President, General Counsel and Chief Legal Counsel of The Coca-Cola Company Mr. Goepelt is a citizen of Germany. | |
Glenn G. Jordan S. | President of the Pacific Group of The Coca-Cola Company Mr. Jordan is a citizen of Colombia. | |
Muhtar Kent | Chairman of the Board of Directors, President and Chief Executive Officer of The Coca-Cola Company |
NAME | PRINCIPAL OCCUPATION OR EMPLOYMENT | ADDRESS |
Dominique Reiniche | President of the Europe Group of The Coca-Cola Company Ms. Reiniche is a citizen of France. | 27 rue Camille Desmoulins Issy-les-Moulineaux 92130 FRANCE |
Jose Octavio Reyes | President of the Latin America Group of The Coca-Cola Company Mr. Reyes is a citizen of Mexico. | Ruben Dario No. 115 Mexico D.F. 11580 MEXICO |
Joseph V. Tripodi | Executive Vice President and Chief Marketing and Commercial Officer of The Coca-Cola Company | |
Clyde C. Tuggle | Senior Vice President and Global Public Affairs and Communications Officer of The Coca-Cola Company | |
Guy Wollaert | Senior Vice President and Chief Technical Officer of The Coca-Cola Company Mr. Wollaert is a citizen of Belgium. |
NAME | PRINCIPAL OCCUPATION OR EMPLOYMENT | ADDRESS |
William D. Hawkins III* | Vice President and General Tax Counsel of The Coca-Cola Company | |
Marie D. Quintero-Johnson | Vice President and Director, Mergers and Acquisitions, The Coca-Cola Company | |
Kathy N. Waller* | Vice President and Controller of The Coca-Cola Company |
NAME AND POSITION WITH TCCEC | PRINCIPAL OCCUPATION OR EMPLOYMENT | ADDRESS |
Muhtar Kent President and Chief Executive Officer | Chairman of the Board of Directors, President and Chief Executive Officer of The Coca-Cola Company | |
Gary P. Fayard Executive Vice President and Chief Financial Officer | Executive Vice President and Chief Financial Officer of The Coca-Cola Company | |
Kathy N. Waller Vice President and Controller | Vice President and Controller of The Coca-Cola Company | |
William D. Hawkins III Vice President and General Tax Counsel | Vice President and General Tax Counsel of The Coca-Cola Company | |
Christopher P. Nolan Vice President and Treasurer | Vice President and Treasurer of The Coca-Cola Company |
NAME | PRINCIPAL OCCUPATION OR EMPLOYMENT | ADDRESS |
Francisco Crespo* | President South Latin Business Unit of The Coca-Cola Company Mr. Crespo is a citizen of the United States. | Paraguay 733 Buenos Aires C1057AAI ARGENTINA |
Alejandro Del Basto Hevia | Chile Finance and Administration Manager, The Coca-Cola Company Mr. del Basto is a citizen of Chile. | Chile Region Office Avda. Kennedy 5757 - Piso 12 Santiago de Chile CHILE |
Gonzalo Iglesias | General Manager, Chile, The Coca-Cola Company Mr. Iglesias is a citizen of Chile. | Chile Region Office Avda. Kennedy 5757 - Piso 12 Santiago de Chile CHILE |
NAME | PRINCIPAL OCCUPATION OR EMPLOYMENT | ADDRESS |
Martin Ignacio Raul Franzini Manager | Legal Vice President, South Latin Business Unit of The Coca-Cola Company Mr. Franzini is a citizen of Argentina. | Paraguay 733 Buenos Aires C1057AAI ARGENTINA |
Gerardo Beramendi Rosconi Manager | Vice President, Finance, South Latin Business Unit of The Coca-Cola Company Mr. Beramendi is a citizen of Uruguay. | Paraguay 733 Buenos Aires C1057AAI ARGENTINA |
Francisco Crespo Manager | President, South Latin Business Unit of The Coca-Cola Company Mr. Crespo is a citizen of the United States. | Paraguay 733 Buenos Aires C1057AAI ARGENTINA |
Marcelo Gil Manager | Director, Argentina Fin, Plan. & Comm. Cap. of The Coca-Cola Company Mr. Gil is a citizen of Mexico. | Paraguay 733 Buenos Aires C1057AAI ARGENTINA |
Dino Troni Manager | General Manager, Argentina FU of The Coca-Cola Company Mr. Troni is a citizen of Chile. | Paraguay 733 Buenos Aires C1057AAI ARGENTINA |
Jorge Murillo Manager | Regional Controller, Latin America Group-RFC, Brazil and South Latin Business Units of The Coca-Cola Company Mr. Murillo is a citizen of Costa Rico. | Paraguay 733 Buenos Aires C1057AAI ARGENTINA |
Ruben Asorey Alternate Manager | Outside counsel to The Coca-Cola Company Mr. Asorey is a citizen of Argentina. | Asorey & Navarrine Cerrito 1136 - Piso 10 Buenos Aires C1010AAX ARGENTINA |
Mercedes Rodriguez Canedo Alternate Manager | Trademark Counsel, Latin America, The Coca-Cola Company Mrs. Rodriguez Canedo is a citizen of Argentina. | Paraguay 733 Buenos Aires C1057AAI ARGENTINA |
1. | Effective Date. This Agreement shall become effective and binding as of the date hereof, except for the provisions set forth in Sections 4.1, 4.3, 4.4, 4.5, 5.1, 5.2(b), 5.2(c), 5.3, 5.4 and 5.7, which shall |
2. | Termination. |
(a) | Any of the Majority Shareholders Partners; |
(b) | Any of the spouses of the Majority Shareholders Partners; |
(c) | Any of the lineal descendants (whether natural or adopted) of any of the Majority Shareholders Partners; |
(d) | Any individual who, in circumstances where the transferor at the time of his death did not have a spouse or any lineal descendants, receives shares of the Majority Shareholders by intestacy from (i) a Majority Shareholder Partner, (ii) a lineal descendant (whether natural or adopted) of any of the Majority Shareholder Partners, or (iii) a person who has previously received shares of the Majority Shareholders by intestacy as described in this paragraph (d); |
(e) | Any Wholly Owned Subsidiary of any of the foregoing; and |
(f) | Any trust formed for the benefit of any the Persons listed in clauses (a), (b), (c) or (d) if one or more Persons listed in clauses (a), (b), (c) or (d) retains full voting and investment power over the assets of such trust. |
3.1. | Board of Directors. The Shareholders agree that the Board of Directors of Andina shall consist at all times of not more than fourteen incumbent members (with no alternate members). The KO Shareholders shall be entitled to nominate at least two incumbent members to the Board of Directors of Andina. |
3.2. | Election of Directors. At every annual meeting and at any special meeting of Shareholders hereafter called for the purpose of electing a director or directors of Andina, the KO Shareholders shall vote all of their Shares in favor of the election of the nominees for directors designated by the KO Shareholders as provided in this Article 3, and the Majority Shareholders shall vote such number of Shares owned, directly or indirectly, by them as may be necessary (after taking into account the Shares voted by the KO Shareholders) to cause the election of such KO nominees. |
3.3. | Vacancies. In the event of any vacancy on the Board of Directors occasioned by the death, incapacity, resignation or removal of a director nominated by the KO Shareholders, each Shareholder will vote or cause to be voted all Shares which the Shareholder owns to fill such vacancy with the nominee designated by the KO Shareholders. The Shareholders will take all such action as may be necessary to promptly fill such vacancy, including the calling of a shareholders' meeting. |
3.4. | Removal of Directors. If the KO Shareholders, in their sole discretion, determine to remove a director which the KO Shareholders had previously so nominated and so notify the other Shareholder in writing, each Shareholder agrees, promptly to vote or cause to be voted all Shares which the Shareholder owns in favor of the removal of such director. |
3.5. | Management of Andina; Board of Directors Action. |
3.6. | Shareholders' Meetings. |
3.7. | Code of Business Conduct. The Majority Shareholders agree (i) that Andina and its subsidiaries shall have in effect at all times a Code of Business Conduct in substantially the form of Exhibit 3.7 and (ii) to cause Andina to take appropriate action to assure that the Code of Business Conduct is adequately communicated to management and all employees of Andina and its subsidiaries. |
3.8. | Environmental & Occupational Safety & Health Matters. The Majority Shareholders agree that: |
4.1. | Transfer Restriction Generally. |
4.2. | Corporate reorganization of Freire One, Freire Two and Los Aromos. |
4.3. | Right of First Refusal. |
4.4. | Right of First Offer. |
4.5. | Closing Purchase. At the closing of any purchase and sale of Shares by the Shareholders pursuant to |
5.1. | Put Right. |
5.2. | Amended Option and Custody Agreement. |
(i) | the sale of all or substantially all of the assets of Andina; |
(ii) | any reorganization, merger, consolidation, share exchange or business combination involving Andina; |
(iii) | any change in the direct or indirect ownership of the outstanding voting power or equity interests of any of the Majority Shareholders as a result of which the Majority Shareholders Partner Group owns collectively less than 75% of the outstanding voting power or less than 75% the outstanding equity interests of any of the Majority Shareholders; |
(iv) | any change in the direct or indirect ownership of the outstanding voting power or equity interests of Andina as a result of which the Majority Shareholders own in the aggregate less than 50.1% of the outstanding voting power of Andina or less than 25% of the outstanding equity interests of Andina; or |
(v) | a stock split, subdivision, stock dividend, extraordinary dividend or dividends or other reclassification, consolidation or combination of Andina's voting securities or any similar action or transaction. |
5.3. | Preemptive Rights. The KO Shareholders reserve their rights, to the full extent permitted under applicable Chilean laws and regulations, to maintain their pro rata share ownership of Series A Stock, Series B Stock or other capital stock through the exercise of preemptive rights. If Andina issues additional shares of capital stock to existing shareholders in a preemptive rights offering (a “Preemptive Rights Offering”), the Majority Shareholders agree that they will not vote the Majority Shareholder Shares in favor of, or permit, the setting of a price for any shares of capital stock which may be offered to third parties (even if such shares are to be acquired in a transfer on a stock exchange) which is lower than the price at which shares of capital stock were offered to the KO Shareholders in the Preemptive Rights Offering without the prior written consent of the KO Shareholders. |
5.4. | Provision of Certain Information. The Majority Shareholders agree to cause Andina to provide the KO Shareholders with the following: |
5.5. | Representations and Warranties. Each party hereto represents and warrants to each other party hereto as follows: |
5.6. | Liability of the Majority Shareholders. The Majority Shareholders agree and undertake for the benefit of the KO Shareholders that under this Agreement they shall be deemed to be a single party and that therefore the fulfillment of their obligations under this Agreement is indivisible, being jointly and severally liable for the breach of such obligations. The KO Shareholders hereby accept the joint and several liability of the Majority Shareholders. |
5.7. | Undertakings of the Majority Shareholders Partners. Each Majority Shareholders Partner executes this Agreement to provide for an intuito personae contractual relationship with the KO Shareholders, and further agrees and undertakes for the benefit of the KO Shareholders that they will (i) cause the respective Majority Shareholders legal entity, as applicable, to comply and perform with their obligations under this Agreement, and (ii) give the prior notice indicated in Section 5.2(b). |
6.1. | Effect of Reorganization, Etc. The purchase price per Share and similar provisions in this Agreement shall be equitably adjusted to reflect any stock split, subdivision, stock dividend, extraordinary dividend or dividends or other reclassification, consolidation or a combination of Andina´s voting securities or any similar action or transaction which occurs after the date of this Agreement. |
6.2. | Entire Agreement; Amendment. This Agreement and the Amended Option and Custody Agreement contain the entire agreement among the parties hereto with respect to the subject matter hereof, and supersedes all prior agreements and negotiations and oral understandings relating to the subject matter hereof; provided that this provision is not intended to abrogate any other written agreement between the parties executed contemporaneously with or after this agreement; and provided further that neither this Agreement nor the Amended Option and Custody Agreement is intended to amend or modify any of the terms or provisions of any of the bottlers' agreements between KO and Andina or any of the subsidiaries of Andina. In the event of any conflict or inconsistency between the terms of this Agreement or the Amended Option and Custody Agreement with the terms of any such bottlers' agreements with respect to the subject matter governed by such bottlers' agreements, the terms of such bottlers' agreement shall control. No amendment, modification or alteration of the terms or provisions of this Agreement shall be binding unless the same shall be in writing and duly executed by the parties hereto. |
6.3. | Successors and Assignees. This Agreement and the rights of a party hereunder may not be assigned, and the obligations of a party hereunder may not be delegated, in whole or in part, without the prior written consent of all other parties hereto, except that the rights and obligations of the KO Shareholders may be assigned or delegated to KO or to any subsidiary of KO, provided that such assignment shall not relieve the assignor of its obligations under this Agreement. This Agreement shall be binding upon and shall inure to the benefit of the parties and their respective successors and permitted assigns. |
6.4. | Specific Performance. The parties agree that irreparable damage would occur if any of the provisions of this Agreement were not performed in accordance with their specific terms or were otherwise breached. It is accordingly agreed that the parties shall be entitled to equitable relief, including in the form of injunctions, in order to enforce specifically the provisions of this Agreement, in addition to any other remedy to which they are entitled at law or in equity. |
6.5. | Counterparts. This Agreement may be executed in one or more counterparts, each of which shall for all purposes be deemed to be an original and all of which shall constitute one and the same instrument. |
6.6. | Headings. The headings of the sections and paragraphs of this Agreement are inserted for convenience only and shall not be deemed to constitute part of this Agreement or to affect the interpretation hereof. |
6.7. | Modification and Waiver. Any rights arising under this Agreement may be waived in writing by the party holding the same. No waiver of any right arising under this Agreement shall be deemed to or shall constitute a waiver of any other right hereunder (whether or not similar). |
6.8. | Notices. Any notice, request, instruction or other document to be given hereunder by any party hereto to any other party hereto shall be in writing and delivered personally or by e-mail evidenced by electronic proof of transmission or sent by registered or certified mail or by any express mail service, postage and fees prepaid: |
6.9. | Legends. Upon the execution of this Agreement, the parties hereto shall cause each and every certificate representing Shares owned by each Shareholder to bear on its face in conspicuous type and in both the English and Spanish languages the following legends. |
6.10. | GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED AND ENFORCED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, UNITED STATES OF AMERICA, WITHOUT GIVING EFFECT TO THE CONFLICTS OF LAW PRINCIPLES THEREOF. |
6.11. | Construction. No provision of this Agreement shall be construed against or interpreted to the disadvantage of any party hereto by any court or other governmental authority by reason of such party's having or being deemed to have structured or drafted such provision. |
6.12. | No Third-Party Beneficiaries. Except as otherwise specifically provided in this Agreement, nothing in this Agreement is intended to confer upon any person other than the parties hereto any rights or remedies. |
6.13. | Consent to Jurisdiction. |
6.14. | Translations. This Agreement has been executed, and all amendments, supplements, modifications or replacements hereto shall be made, in the English language. This Agreement may be translated into the Spanish language for convenience of one or more of the parties hereto, provided that in case of discrepancies the English version shall prevail in all cases. |
6.15. | Other Restrictions. The provisions of this Agreement shall be in addition to and not in lieu of any and all restrictions on the Transfer of the shares of capital stock of Andina which arise from applicable laws and any other restrictions on Transfers agreed to by or among the parties hereto. |
6.16. | “Including”. Words of inclusion shall not be construed as terms of limitation herein, so that references to “included” matters shall be regarded as non-exclusive, non-characterizing illustrations. |
6.17. | References. Whenever reference is made in this Agreement to any Article or Section, such reference shall be deemed to apply to the specified Article or Section of this Agreement. |
6.18. | Severability. The invalidity or unenforceability of any provision hereof in any jurisdiction will not affect the validity or enforceability of the remainder hereof in that jurisdiction or the validity or enforceability of this Agreement, including that provision, in any other jurisdiction. To the extent permitted by applicable law, each party waives any provision of law that renders any provision hereof prohibited or unenforceable in any respect. If any provision of this Agreement is held to be unenforceable for any reason, it shall be adjusted rather than voided, if possible, in order to achieve the intent of the parties to the extent possible. |
• | José Said Saffie |
• | José Antonio Garcés Silva (senior) |
• | Gonzalo Said Handal |
• | Alberto Hurtado Fuenzalida |
• | Patricia Claro Marchant |
• | María Soledad Chadwick Claro |
• | Eduardo Chadwick Claro |
• | María Carolina Chadwick Claro |
• | María de la Luz Chadwick Hurtado |
with a copy to: | [•] |
with a copy to: | [•] |
_______________________________ | _______________________________ |
[•] | [•] |
p.p. Inversiones Freire S.A. | p.p. Inversiones Freire Dos S.A. |
_______________________________ |
[•] |
p.p. Inversiones Los Aromos Limitada |
_______________________________ | _______________________________ |
[•] | [•] |
p.p. The Coca-Cola Company | p.p. Coca-Cola de Chile S.A. |
_______________________________ | _______________________________ |
[•] | [•] |
p.p. Servicios y Productos Para Bebidas Refrescantes SRL | p.p. Coca-Cola Interamerican Corporation |
_______________________________ [•] p.p. Embotelladora Andina S.A. |