EXHIBIT C
VOTING AGREEMENT
VOTING AGREEMENT (this "Agreement"), dated as of June 28, 1999, by and
among Pepsi-Cola Puerto Rico Bottling Company, a Delaware corporation ("PPR")
and P-PR Transfer, LLP, a Delaware limited liability partnership ("P-PRT").
W I T N E S S E T H:
WHEREAS, concurrently with the execution and delivery of this
Agreement, PPR, Delta Beverage Group, Inc., a Delaware corporation ("Delta") and
the stockholders of Delta named therein have entered into an Exchange Agreement,
dated as of June 28, 1999 (as such agreement may hereafter be amended from time
to time, the "Delta Exchange Agreement"), pursuant to which, among other things,
PPR will issue shares of Class B Common Stock, par value $.01 per share, of PPR
("PPR Class B Common Stock") in exchange for shares of Delta common stock held
by the Delta stockholders;
WHEREAS, concurrently with the execution and delivery of this Agreement
and the Delta Exchange Agreement, PPR, Dakota Beverage Company, Inc. and Pohlad
Companies have entered into an Exchange Agreement, dated as of June 28, 1999 (as
such agreement may hereafter be amended from time to time, the "Dakota Exchange
Agreement", and together with the Delta Exchange Agreement, the "Exchange
Agreements"), pursuant to which, among other things, PPR will issue shares of
PPR Class B Common Stock in exchange for membership interests in DakBev, LLC, a
Delaware limited liability company;
WHEREAS, P-PRT is the owner, beneficially and of record, and has the
sole right to vote and dispose of 4,000,000 shares of PPR Class A Common Stock
("PPR Class A Common Stock") and 6,329,000 shares of PPR Class B Common Stock
(and together with the PPR Class A Common Stock, "PPR Stock") (all PPR Stock
owned by P-PRT, the "Owned Shares"); and
WHEREAS, as an inducement and a condition to its entering into the
Exchange Agreements and incurring the obligations set forth therein, PPR has
required that P-PRT enter into this Agreement.
NOW, THEREFORE, in consideration of the foregoing and the mutual
promises, representations, warranties, covenants and agreements contained herein
and in the Exchange Agreements, the parties hereto, intending to be legally
bound hereby, agree as follows:
1. Certain Definitions. Capitalized terms not defined herein have the
respective meanings ascribed to them in the Exchange Agreements. In addition,
for purposes of this Agreement:
"Affiliate" means, with respect to any specified Person, any Person
that directly, or indirectly through one or more intermediaries, controls, or is
controlled by, or is under common control with, the Person specified.
"Beneficially Own" or "Beneficial Ownership" with respect to any
securities means having "beneficial ownership" of such securities (as determined
pursuant to Rule 13d-3 under the Exchange Act), including pursuant to any
agreement, arrangement or understanding, whether or not in writing. Without
duplicative counting of the same securities by the same holder, securities
Beneficially Owned by a Person shall include securities Beneficially Owned by
all Affiliates of such Person and all other Persons with whom
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such Person would constitute a "group" within the meaning of Section 13(d) of
the Exchange Act and the rules promulgated thereunder.
"Person" means an individual, corporation, partnership, limited
liability company, joint venture, association, trust, unincorporated
organization or other entity.
"Representative" means, with respect to any Person, such Person's
officers, directors, employees, agents and representatives (including any
investment banker, financial advisor, agent, representative or expert retained
by or acting on behalf of such Person or its subsidiaries).
"Transfer" means, with respect to a security, the sale, transfer,
pledge, hypothecation, encumbrance, assignment or disposition of such security
or the Beneficial Ownership thereof, the offer to make such a sale, transfer or
other disposition, and each option, agreement, arrangement or understanding,
whether or not in writing, to effect any of the foregoing. As a verb, "Transfer"
shall have a correlative meaning.
2. Voting of Owned Shares; Proxy. (a) During the period commencing on
the date hereof and continuing until the earlier of (x) the Closing and (y) the
termination of the Exchange Agreements in accordance with their terms (such
period being referred to as the "Voting Period"), at any meeting (whether annual
or special, and whether or not an adjourned or postponed meeting) of PPR's
stockholders, however called, or in connection with any written consent of PPR's
stockholders, subject to the absence of a preliminary or permanent injunction or
other final order by any United States federal, state or foreign court barring
such action, P-PRT shall vote (or cause to be voted) all of its Owned Shares:
(a) in favor of the issuance of PPR Class B Common Stock pursuant
to the Exchange Agreements;
(b) in favor of each of the other actions contemplated by the
Exchange Agreements and this Agreement and any actions
required in furtherance thereof and hereof;
(c) in favor of the amendment to the Certificate of Incorporation
of PPR to increase the authorized shares of capital stock of
PPR required to effect the issuances pursuant to the Exchange
Agreements;
(d) in favor of the amendment to the Certificate of Incorporation
of PPR to change the name of PPR; and
(e) against any action or agreement that would (A) result in a
breach of any covenant, representation or warranty or any other obligation or
agreement under the Exchange Agreements or of P-PRT under this Agreement or (B)
impede, interfere with, delay, postpone, or adversely affect the Exchange or the
transactions contemplated by the Exchange Agreements or hereby.
(b) IRREVOCABLE PROXY. P-PRT HEREBY GRANTS TO, AND APPOINTS
XXXXXX XXXXXX AND XXXX XXXXXXXX IN THEIR RESPECTIVE CAPACITIES AS OFFICERS OF
PPR, AND ANY INDIVIDUAL WHO SHALL HEREAFTER SUCCEED TO ANY SUCH OFFICE OF PPR,
AND ANY OTHER DESIGNEE OF PPR, EACH OF THEM INDIVIDUALLY, P-PRT's IRREVOCABLE
(UNTIL THE END OF THE VOTING PERIOD) PROXY AND ATTORNEY-IN-FACT (WITH FULL POWER
OF SUBSTITUTION) TO VOTE THE OWNED SHARES OF P-PRT AS INDICATED IN SECTION 2(a)
ABOVE. P-PRT INTENDS THIS PROXY TO BE IRREVOCABLE (UNTIL THE END OF THE VOTING
PERIOD) COUPLED WITH AN INTEREST AND SHALL TAKE
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SUCH FURTHER ACTIONS AND EXECUTE SUCH OTHER INSTRUMENTS AS MAY BE NECESSARY TO
EFFECTUATE THE INTENT OF THIS PROXY AND HEREBY REVOKES ANY PROXY PREVIOUSLY
GRANTED BY P-PRT WITH RESPECT TO THE OWNED SHARES.
3. Restrictions on Transfer, Other Proxies. P-PRT shall not, until the
expiration of the Voting Period, directly or indirectly: (i) Transfer to any
Person any or all of its Owned Shares other than to Dakota LLC immediately prior
to the Closing; (ii) except as provided in Section 2(b), grant any proxies or
powers of attorney, deposit any Owned Shares into a voting trust or enter into a
voting agreement, understanding or arrangement with respect to such Owned
Shares; or (iii) take any action that would make any representation or warranty
of P-PRT contained herein untrue or incorrect or would result in a breach by
P-PRT of its obligations under this Agreement or a breach by PPR of its
obligations under the Exchange Agreements.
4. Certain Events. In the event of any stock split, stock dividend,
merger, reorganization, recapitalization or other change in the capital
structure of PPR affecting the PPR Stock, or the acquisition of additional
shares of PPR Stock or other securities or rights of PPR by P-PRT, the number of
Owned Shares shall be adjusted appropriately, and this Agreement and the
obligations hereunder shall attach to any additional PPR Stock or other
securities or rights of PPR issued to or acquired by P-PRT.
5. Representations and Warranties of P-PRT. P-PRT hereby represents,
warrants and covenants as follows:
(1) Due Authorization, Etc. P-PRT has all necessary power and
authority to enter into and perform this Agreement and perform its obligations
hereunder, and no other proceedings or actions on the part of P-PRT is necessary
to authorize the execution, delivery or performance of this Agreement or the
consummation of the transactions contemplated hereby. P-PRT currently has good,
valid and marketable title to the Owned Shares, free and clear of all security
interests, liens, claims, charges, encumbrances, equities and options of any
nature whatsoever, and with no restriction on the voting rights pertaining
thereto. P-PRT further warrants that there are no outstanding options, warrants
or rights to purchase or acquire, or agreements relating to, any of the Owned
Shares.
(2) Enforceability. This Agreement constitutes a valid and
binding agreement of P-PRT, enforceable against P-PRT in accordance with its
terms. Neither the execution and delivery of this Agreement by P-PRT nor the
consummation by P-PRT of the transactions contemplated hereby shall conflict
with or constitute a violation of or default under any contract, commitment,
agreement, arrangement or restriction of any kind to which P-PRT is a party or
by which P-PRT is bound.
(3) Voting Rights. Except as provided in Section 2(b) hereof,
P-PRT has sole power to vote and to dispose of the Owned Shares, and sole power
to issue instructions with respect to the Owned Shares to the extent appropriate
in respect of the matters set forth in this Agreement, sole power to demand
appraisal rights and sole power to agree to all of the matters set forth in this
Agreement, in each case with respect to all of the Owned Shares, with no
limitations, qualifications, or restrictions on such rights, subject to
applicable securities laws and the terms of this Agreement.
(4) No Filings. No filing with, and no permit, authorization,
consent or approval of, any state or federal governmental body or authority is
necessary for the execution of this Agreement by P-PRT and the consummation by
P-PRT of the transactions contemplated hereby, and none of the execution and
delivery of this Agreement by P-PRT, the consummation by P-PRT of the
transactions contemplated hereby or compliance by P-PRT with any of the
provisions hereof shall (A) conflict with or result in any breach of the
organizational documents of P-PRT, (B) result in a violation or breach of, or
constitute (with or without
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notice or lapse of time or both) a default (or give rise to any third party
right of termination, cancellation, material modification or acceleration) under
any of the terms, conditions or provisions of any note, loan agreement, bond,
mortgage, indenture, license, contract, commitment, arrangement, understanding,
agreement or other instrument or obligation of any kind to which P-PRT is a
party or by which P-PRT or any of its properties or assets (including the Owned
Shares) may be bound, or (C) violate any order, writ, injunction, decree,
judgment, statute, rule or regulation applicable to P-PRT or any of its
properties or assets.
(5) Reliance. P-PRT understands and acknowledges that PPR is
entering into the Exchange Agreements, and is incurring the obligations set
forth therein, in reliance upon P-PRT's execution and delivery of this
Agreement.
6. Representations and Warranties of PPR. PPR hereby represents,
warrants and covenants to P-PRT as follows:
(1) Due Authorization, Etc. PPR has all necessary power and
authority to enter into and perform this Agreement and perform its obligations
hereunder, and no other proceedings or actions on the part of PPR is necessary
to authorize the execution, delivery or performance of this Agreement or the
consummation of the transactions contemplated hereby.
(2) Enforceability. This Agreement constitutes a valid and
binding agreement of PPR, enforceable against PPR in accordance with its terms.
Neither the execution and delivery of this Agreement by PPR nor the consummation
by PPR of the transactions contemplated hereby shall conflict with or constitute
a violation of or default under any contract, commitment, agreement, arrangement
or restriction of any kind to which PPR is a party or by which PPR is bound.
(3) No Filings. Except for filings, authorizations, consents
and approvals as may be required under the Exchange Agreements, (i) no filing
with, and no permit, authorization, consent or approval of, any state or federal
public body or authority is necessary for the execution of this Agreement by PPR
and the consummation by PPR of the transactions contemplated hereby and (ii)
none of the execution and delivery of this Agreement by PPR, the consummation by
PPR of the transactions contemplated hereby or compliance by PPR with any of the
provisions hereof shall (A) conflict with or result in any breach of the
Certificate of Incorporation or By-laws of PPR, or (B) result in a violation or
breach of, or constitute (with or without notice or lapse of time or both) a
default (or give rise to any third party right of termination, cancellation,
material modification or acceleration) under any of the terms, conditions or
provisions of any note, loan agreement, bond, mortgage, indenture, license,
contract, commitment, arrangement, understanding, agreement or other instrument
or obligation of any kind to which PPR is a party or by which PPR or any of its
properties or assets may be bound, or violate any order, writ, injunction,
decree, judgment, statute, rule or regulation applicable to PPR or any of its
respective properties or assets.
7. Certain Covenants.
(1) No Sale. P-PRT shall not sell, transfer, assign, pledge,
hypothecate or otherwise dispose of or limit its right to vote in any manner any
of the Owned Shares which are the subject matter of this Agreement except
pursuant to the terms hereof.
(2) Further Assurances. From time to time, at the other
party's request and without further consideration, each party hereto shall
execute and deliver such additional documents and take all such further lawful
action as may be necessary or desirable to consummate and make effective, in the
most expeditious manner practicable, the transactions contemplated by this
Agreement.
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8. Enforcement. The parties agree that irreparable damage would occur
in the event that 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 an injunction or
injunctions to prevent breaches of this Agreement and to enforce specifically
the terms and provisions of this Agreement in any court of the United States
located in the State of Delaware or in any Delaware State court, this being in
addition to any other remedy to which they are entitled at law or in equity. In
addition, each of the parties hereto (a) consents to submit itself (without
making such submission exclusive) to the personal jurisdiction of any federal
court located in the State of Delaware or any Delaware State court in the event
any dispute arises out of this Agreement or any of the transactions contemplated
by this Agreement and (b) agrees that it will not attempt to deny or defeat such
personal jurisdiction by motion or other request for leave from any such court.
9. Miscellaneous.
(1) Assignment. Neither this Agreement nor any of the rights,
interests or obligations under this Agreement shall be assigned or delegated, in
whole or in part, by operation of law or otherwise, by any of the parties hereto
without the prior written consent of the other parties, except that PPR may
assign its rights and obligations, in whole or in part, to any of its
Affiliates, but no such assignment shall relieve PPR of its obligations
hereunder if such assignee does not perform such obligations. Subject to the
preceding sentence, this Agreement will be binding upon, inure to the benefit
of, and be enforceable by, the parties and their respective successors and
assigns.
(2) Amendments. This Agreement may be amended, modified, or
supplemented only by a written agreement among each of the parties hereto.
(3) Notices. All notices and other communications hereunder
shall be in writing and shall be deemed to have been duly given when delivered
in person, by facsimile, receipt confirmed, or on the next business day when
sent by overnight courier or on the second succeeding business day when sent by
registered or certified mail (postage prepaid, return receipt requested) to the
respective parties at the following addresses (or at such other address for a
party as shall be specified by like notice):
if to PPR, to
Pepsi-Cola Puerto Rico Bottling Company
X.X. Xxx 000000
Xxxx. 000 xx 0.4
Xxxxxx Xxxxxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attn: President
with a copy to:
Xxxxxxx Xxxx & Xxxxxxxxx
000 Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxxxxxxxx X. Xxxxx, Esq.
Fax: (000) 000-0000
and
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(ii) if to P-PRT, to
Pohlad Companies
0000 Xxxx Xxxxxxxx Xxxxx
00 Xxxxx Xxxxx Xxxxxx
Xxxxxxxxxxx, XX 00000
Attn: Xxxxxx X. Xxxxxx
with a copy to:
Xxxxxx and Xxxxxx, P.A.
2400 IDS Center
00 Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxxxx, XX 00000
Attn: Xxxxx X. Xxxxxx, Esq.
(4) GOVERNING LAW. THIS AGREEMENT SHALL BE DEEMED TO BE MADE
IN, AND IN ALL RESPECTS SHALL BE INTERPRETED, CONSTRUED AND GOVERNED BY AND IN
ACCORDANCE WITH THE INTERNAL LAWS OF, THE STATE OF DELAWARE.
(5) Counterparts. This Agreement may be executed in one or
more counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
(6) Interpretation. When a reference is made in this Agreement
to a Section, such reference shall be to a Section of this Agreement unless
otherwise indicated. The headings contained in this Agreement are for reference
purposes only and shall not affect in any way the meaning or interpretation of
this Agreement. Whenever the words "include", "includes" or "including" are used
in this Agreement, they shall be deemed to be followed by the words "without
limitation."
(7) Entire Agreement; No Third-Party Beneficiaries. This
Agreement and the Exchange Agreements (together with the other documents and
instruments referred to in the Exchange Agreements, and the exhibits and
disclosure schedules thereto) (a) constitute the entire agreement and supersedes
all prior agreements and understandings, both written and oral, between the
parties with respect to the subject matter of this Agreement and, (b) are not
intended to confer upon any person other than the parties hereto any rights or
remedies.
(8) Severability. In case any provision in this Agreement
shall be held invalid, illegal or unenforceable in a jurisdiction, such
provision shall be modified or deleted, as to the jurisdiction involved, only to
the extent necessary to render the same valid, legal and enforceable, and the
validity, legality and enforceability of the remaining provisions hereof shall
not in any way be affected or impaired thereby nor shall the validity, legality
or enforceability of such provision be affected thereby in any other
jurisdiction.
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IN WITNESS WHEREOF, this Agreement has been duly executed and delivered
by the parties hereto on the date first above written.
PEPSI-COLA PUERTO RICO BOTTLING
COMPANY
By: /s/ Xxxx X. Xxxxxxxx
-------------------------------
Its: Vice President and
--------------------------
Chief Financial Officer
--------------------------
P-PR TRANSFER, LLP
By: /s/ Xxxxxx X. Xxxxxx
-------------------------------
Its: President
--------------------------
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