AMENDMENT NO. 5 TO CLASS A SHAREHOLDERS AGREEMENT
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This Amendment No. 5 to the Class A Shareholders Agreement is made as
of this 14th day of May, 1997, by and between PEPSI-COLA PUERTO RICO
BOTTLING COMPANY, a Delaware corporation (the "Corporation") and the
individual and corporate shareholders (the "Shareholders") of the
Corporation whose signatures appear in the signature pages hereto.
WHEREAS, the undersigned are all parties to that certain Class A
Shareholders Agreement dated as of April 27, 1987, as amended under
Amendment No. 1 to Class A Shareholders Agreement dated as of July, 1990,
Amendment No. 2 to Class A Shareholders Agreement dated as of November 5,
1993, Amendment No. 3 to Class A Shareholders Agreement dated as of August
28, 1995, and Amendment No. 4 to Class A Shareholders Agreement dated as of
the 7th day of January, 1997 (hereinafter the "Agreement"); and,
WHEREAS, on September 28, 1996, the parties hereto executed a Stock
Option Agreement (the "Option Agreement") whereby all Class A shareholders
granted to Xx. Xxxxxx Xxx an option to purchase all 5,000,000 Class A
shares of the Corporation for a purchase price of $1 per share and which
option is exercisable within a period of two (2) years from the date
thereof; and,
WHEREAS, also on September 28, 1996, the parties hereto executed a
Voting Trust Agreement and Irrevocable Proxy (the "Trust Agreement")
whereby all Class A shareholders delivered and deposited with Xx. Xxx the
5,000,000 Class A shares of the Corporation in trust granting thereby to
Xx. Xxx the right to vote said shares in all shareholder meetings; and,
WHEREAS, as of May 14, 1997, the parties hereto have entered into a
new Stock Option Agreement ("Option Agreement No. 2") and Trust Agreement
("Trust Agreement No. 2") in respect of 2,500,000 Class B shares of the
Corporation (herein the "Class B Shares") wherein the Shareholders (i)
granted to Xx. Xxxxxx Xxx, in furtherance of any settlement relating to the
class action suits commenced by some of the public shareholders of the
Company (herein the "Suits"), an option to purchase said amount of Class B
Shares, said option being exercisable from the date hereof up to December
31, 1997, as set forth in said Option Agreement No. 2, and (ii) delivered
said shares with Xx. Xxx in trust under the Trust Agreement No. 2 granting
thereby to Xx. Xxx the right to vote said shares in all matters requiring
of shareholder approval and to make such shares available for purposes of
Option Agreement No. 2; and
WHEREAS, in consideration of the parties' agreements set forth in the
Option Agreement No. 2 and the Trust Agreement No. 2, the Shareholders
desire to amend certain provisions of the Agreement;
NOW THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties hereto agree as
follows:
PAGE
1. All capitalized terms not otherwise defined herein shall have the
meanings ascribed to such terms in the Agreement as amended.
2. In the event that the Option with respect to Class A Shares is
exercised pursuant to that certain Agreement titled Stock Option Agreement
dated September 28, 1996 by and between the Shareholders, Xxxxxx Xxx and
the Corporation, the Corporation agrees to undertake, as promptly as
practicable thereafter, such steps and acts necessary to register the Class
B Shares held by the Shareholders with the Securities and Exchange
Commission; and to otherwise provide for any other alternatives available
to make such B Shares fully tradable in the public markets. All costs and
expenses, except underwriting commissions, associated with the foregoing
undertaking shall be borne by the Corporation.
3. The Agreement shall be and is hereby amended for purposes of
providing that notwithstanding any provision therein to the contrary, as of
the date in which the court before which the Suits are being processed
enters into and issues a final and unappealable order approving the
settlement reached with the plaintiffs of such Suits, all restrictions
relating to the transferability of Shares under the Agreement shall be
deemed without effect and no longer be limited or restricted as to their
disposition of Shares of the Corporation or subject to the terms of the
Agreement. In this respect, as of such date, the Agreement shall be
terminated and no longer effective for all intent and purposes.
After the above referenced date regarding the finality of the order
approving the settlement, any Shareholder may thereafter dispose of his,
her or its Shares of the Corporation by any lawful means including the
following alternatives: (i) a Rule 144 offering (subject to the volume
limitations set forth in said Rule 144), (ii) by virtue of a filing and
registration of Class B shares by the Corporation through Form S-3 of the
Securities and Exchange Commission which filing shall be made by the
Company not later than October 31, 1997, or (iii) if the Form S-3 filing is
not available to the Corporation by October 31, 1997, the Corporation
agrees to undertake to file promptly a Form S-1 with the Securities and
Exchange Commission for the registration of all of such Class B Shares.
With respect to each of the above alternatives, the Corporation shall
undertake to do all things and perform all acts required or necessary in
connection with the preparation and filing of any registration statement,
prospectus and/or form with the Securities and Exchange Commission as may
be required under applicable securities laws, and, shall pay all expenses
related thereto, except any underwriting commissions.
4. It is further agreed that (i) shares subject to the Voting Trust
Agreement or the Option Agreement (to the extent such agreement is still in
effect) shall continue to be subject to the restrictions on transfer and
other terms of the Voting Trust Agreement and the Option Agreement,
respectively; (ii) all Shares shall be subject to the restrictions on
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PAGE
transfer imposed by applicable securities laws; (iii) the Essential
Shareholders may not sell or otherwise transfer any Shares if such sale or
transfer would give PepsiCo, Inc. the right to terminate any of the
Exclusive Bottling Appointments dated April 27, 1987 between PepsiCo, Inc.,
the Corporation and the shareholders specified therein; and (iv) the
holders of Class A Shares may not sell any Class A Shares, even after
termination of the Voting Trust Agreement, without the consent of the
Corporation, and shall, at the request of the Corporation, and to the
extent that the EBAs require the Essential Shareholders to maintain voting
control of the Corporation, transfer to the Essential Shareholders, in
exchange for Class B Shares held by the Essential Shareholders, as many
Class A Shares as shall be necessary so that, after termination of the
Voting Trust Agreement, the Essential Shareholders maintain voting control
of the Corporation.
5. Other than for the amendments herein set forth, the Agreement, as
amended by Amendment Xx. 0, Xxxxxxxxx Xx. 0, Xxxxxxxxx Xx. 0, and Amendment
No. 4 shall remain in full force and effect, unaltered and unchanged, with
the provisions of this Amendment No. 5 being fully incorporated to the
Agreement and Amendment Xx. 0, Xxxxxxxxx Xx. 0, Xxxxxxxxx Xx. 0 and
Amendment No. 4.
6. This Amendment may be executed in one or more counterparts, each
of which shall be deemed to be an original, but all of which together shall
constitute one and the same instrument.
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IN WITNESS WHEREOF, the parties hereto execute this Amendment No. 5 to
Class A Shareholders Agreement, as of the date first above written.
CORPORATION SHAREHOLDERS
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PEPSI-COLA PUERTO RICO
BOTTLING COMPANY
By: /s/ XXXXXX XXX /s/Xxxxxxx X. Beach
-------------- /s/XXXXXXXX XXXXX
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Xxxxxxx X. Beach, for himself and as trustee
under Voting Trust Agreement dated 8/25/96
/s/XXXXXXX X. XXXXXXX
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Xxxxxxx X. Xxxxxxx, as Trustee under Voting
Trust dated April 27, 1987.
/s/XXXX X. XXXX
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Xxxx X. Xxxx
/s/XXXXXXX X. XXXXXXX
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Xxxxxxx X. Xxxxxxx, as Trustee under Voting
Trust dated April 27, 1987.
/s/XXXX DE X. XXXXXXXXXXX
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Girasol Enterprises, S.A.
/s/XXXXX XXXXXXXXXXX
---------------------------
Lumiye International, S.A.
/s/XXXXXX XXXX
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Xxxx Financial Corporation
---------------------------
Xxxxxx Xxxxxx
/s/XXXXX XXXXXXX-XXXXXXX
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Xxxxx Xxxxxxx-Xxxxxxx
/s/XXXXXX XXX
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Xxxxxx Xxx
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