AMENDED AND RESTATED SHAREHOLDER AGREEMENT
BY AND BETWEEN
XXXXXXX CORPORATION,
A DELAWARE CORPORATION,
AND
PEPSICO, INC.,
A NORTH CAROLINA CORPORATION
DATED AS OF [_________], 2000
TABLE OF CONTENTS
PAGE
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ARTICLE I
CERTAIN DEFINITIONS
Section 1.1. Certain Definitions............................................1
ARTICLE II
REPRESENTATIONS AND WARRANTIES
Section 2.1. Representations and Warranties of the Company..................6
Section 2.2. Representations and Warranties of the Shareholder..............7
ARTICLE III
SHAREHOLDER AND COMPANY CONDUCT
Section 3.1. Acquisition of Voting Securities...............................7
Section 3.2. Required Reduction of Ownership Percentage.....................8
Section 3.3. Top-Up Rights.................................................10
Section 3.4. Transfer......................................................10
Section 3.5. Charter and By-Laws...........................................11
Section 3.6. Rights Agreement..............................................11
Section 3.7. Special Meetings Requested by the Shareholder; Nominations....11
Section 3.8. No Agreements.................................................11
Section 3.9. Dakota Holdings...............................................11
ARTICLE IV
BOARD COMPOSITION
Section 4.1. Board Composition.............................................12
ARTICLE V
EFFECTIVENESS AND TERMINATION
Section 5.1. Effectiveness.................................................12
Section 5.2. Termination...................................................12
Section 5.3. Agreements Following Certain Acquisitions.....................13
ARTICLE VI
MISCELLANEOUS
Section 6.1. Injunctive Relief.............................................13
Section 6.2. Successors and Assigns........................................14
Section 6.3. Amendments; Waiver............................................14
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PAGE
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Section 6.4. Notices.......................................................14
Section 6.5. Applicable Law................................................15
Section 6.6. Headings......................................................15
Section 6.7. Integration...................................................15
Section 6.8. Severability..................................................15
Section 6.9. Consent to Jurisdiction.......................................16
Section 6.10. Counterparts..................................................16
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AMENDED AND RESTATED SHAREHOLDER AGREEMENT, dated as of [_______], 2000
(this "AGREEMENT"), by and between Xxxxxxx Corporation, a Delaware corporation
(the "COMPANY"), and PepsiCo, Inc., a North Carolina corporation (the
"SHAREHOLDER").
W I T N E S S E T H:
WHEREAS, the Company and the Shareholder are parties to a Shareholder
Agreement, dated as of May 20, 1999 (the "ORIGINAL SHAREHOLDER AGREEMENT");
WHEREAS, the Company, Anchor Merger Sub, Inc., a Delaware corporation
("MERGER SUB"), and PepsiAmericas, Inc., a Delaware corporation ("PAS"), have
entered into an Agreement and Plan of Merger, dated as of August 18, 2000 (the
"MERGER AGREEMENT"), pursuant to which, among other things, PAS will be merged
with and into Merger Sub, with Merger Sub as the surviving corporation, and in
connection therewith, certain outstanding shares of common stock of PAS will be
converted into shares of common stock, par value $0.01 per share (the "COMMON
STOCK"), of the Company (the "MERGER");
WHEREAS, the execution of this Agreement upon the consummation of the
Merger (the "CLOSING") is a covenant of the Company in the Merger Agreement and
a condition to the Company's obligations to close the transactions contemplated
by the Merger Agreement;
WHEREAS, the Shareholder has entered into a voting agreement, dated as of
August 18, 2000, pursuant to which the Shareholder has agreed to vote in favor
of the Merger and the other transactions contemplated by the Merger Agreement;
and
WHEREAS, in light of the transactions contemplated by the Merger Agreement,
the Company and the Shareholder desire to amend and restate in this Agreement
certain terms and conditions concerning the acquisition and disposition of
Voting Securities (as defined herein) of the Company by the Shareholder, and
related provisions concerning the Shareholder's relationship with and investment
in the Company immediately following the Closing.
NOW, THEREFORE, in consideration of the mutual covenants and agreements set
forth herein and for other good and valuable consideration, receipt and
sufficiency of which is hereby acknowledged, the parties hereto hereby agree as
follows:
ARTICLE I
CERTAIN DEFINITIONS
Section 1.1. CERTAIN DEFINITIONS. In addition to other terms defined
elsewhere in this Agreement, as used in this Agreement, the following terms
shall have the meanings ascribed to them below:
"AFFILIATE" shall mean, with respect to any person, any other person that
directly or indirectly through one or more intermediaries controls or is
controlled by or is under common control with such person. For the purposes of
this definition, "control," when used with respect
to any particular person, means the power to direct the management and policies
of such person, directly or indirectly, whether through the ownership of voting
securities, by contract or otherwise; and the terms " controlling" and
"controlled" have meanings correlative to the foregoing.
"AFFILIATED TRANSACTION COMMITTEE" shall mean the Affiliated Transaction
Committee of the Board.
"AGREEMENT" shall have the meaning assigned to such term in the preamble.
"BENEFICIAL OWNER" (and, with correlative meanings, "BENEFICIALLY OWN" and
"BENEFICIAL OWNERSHIP") of any interest means a Person who, together with his or
its Affiliates, is or may be deemed a beneficial owner of such interest for
purposes of Rule 13d-3 or 13d-5 under the Exchange Act, or who, together with
his or its Affiliates, has the right to become such a beneficial owner of such
interest (whether such right is exercisable immediately or only after the
passage of time) pursuant to any agreement, arrangement or understanding, or
upon the exercise, conversion or exchange of any warrant, right or other
instrument, or otherwise; PROVIDED that a Person shall not be deemed the
Beneficial Owner of Voting Securities solely as a result of having been granted
a revocable proxy relating to such Voting Securities in connection with any one
special or annual meeting of shareholders of the Company (including any
postponements or adjournments thereof), nor shall the procurement of such a
proxy be deemed to give the proxy holder "control" over any Person as to which
such proxy holder does not otherwise have control; and PROVIDED, FURTHER, that
this definition shall be subject to the last sentence of Section 3.9.
"BOARD" shall mean the Board of Directors of the Company in office at the
applicable time, as elected in accordance with the By-Laws. "BUY-BACK EXCESS"
shall have the meaning set forth in Section 3.2 of this Agreement.
"BUY-BACK OFFER" shall have the meaning set forth in Section 3.2 of this
Agreement.
"BY-LAWS" shall mean the by-laws of the Company, as in effect immediately
following consummation of the Merger (including amendments pursuant to the
Merger Agreement), as they may be amended from time to time.
"CHARTER" shall mean the Certificate of Incorporation of the Company, as in
effect immediately following consummation of the Merger, as it may be amended
from time to time.
"CLOSING" shall have the meaning assigned in the third recital of this
Agreement.
"COMBINED MAXIMUM OWNERSHIP PERCENTAGE" shall mean, calculated at a
particular point in time, a Total Ownership Percentage of 49.9%; PROVIDED that
in the event of a Permitted Acquisition (other than a Contingent Payment
Acquisition) which results in the Significant Shareholders' Total Ownership
Percentage exceeding 49.9%, so long as the Significant Shareholders' Total
Ownership Percentage exceeds 49.9% due to such Permitted
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Acquisition, the Combined Maximum Ownership Percentage shall become the
Significant Shareholders' Total Ownership Percentage giving effect to such
Permitted Acquisition.
"COMMISSION" shall mean the United States Securities and Exchange
Commission.
"COMMON STOCK" shall have the meaning assigned in the first recital of this
Agreement.
"COMPANY" shall have the meaning assigned in the preamble.
"CONTINGENT PAYMENT ACQUISITION" shall mean any acquisition of Voting
Securities pursuant to any Contingent Payment (as defined in the Merger
Agreement).
"DAKOTA HOLDINGS" shall mean Dakota Holdings, LLC, a Delaware limited
liability company.
"DAKOTA HOLDINGS AGREEMENT" shall have the meaning set forth in Section 3.9
of this Agreement.
"DIRECTOR" shall mean any member of the Board of Directors of the Company
in office at the applicable time, as elected in accordance with the provisions
of the By-Laws.
"EXCHANGE ACT" shall mean the Securities Exchange Act of 1934, as amended.
"FAMILY" shall mean, with respect to any natural person, (i) any child,
stepchild, parent, stepparent, spouse or sibling, and (ii) any grandchild,
grandparent, uncle, aunt, first cousin, mother-in-law, father-in-law,
son-in-law, daughter-in-law, brother-in-law or sister-in-law who Beneficially
Owns greater than 1% of the Voting Power or who has entered into an agreement or
commitment with said natural person with respect to the Voting Securities, and
shall in each case include adoptive relationships.
"INDEPENDENT DIRECTOR" shall mean any person who is both (i) independent of
and otherwise unaffiliated with any member of the Shareholder Group or the
Pohlad Group, and who is not a director, officer, employee, consultant or
advisor (financial, legal or other) of any member of the Shareholder Group or
the Pohlad Group and has not served in any such capacity in the previous two (2)
years and (ii) not an officer or employee, consultant or advisor (financial,
legal or other) of the Company and has not served in any such capacity in the
previous two (2) years.
"MAXIMUM OWNERSHIP PERCENTAGE" shall mean, calculated at a particular point
in time, a Total Ownership Percentage of 49.0%; PROVIDED that in the event of a
Permitted Acquisition (other than a Contingent Payment Acquisition) which
results in the Shareholder Group's Total Ownership Percentage exceeding 49.0%,
so long as the Shareholder Group's Total Ownership Percentage exceeds 49.0% due
to such Permitted Acquisition, the Maximum Ownership Percentage shall become the
Shareholder Group's Total Ownership Percentage giving effect to such Permitted
Acquisition.
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"MERGER" shall have the meaning set forth in the second recital of this
Agreement.
"MERGER AGREEMENT" shall have the meaning set forth in the second recital
of this Agreement.
"MINIMUM PRICE" shall mean the highest average of per share closing prices
on the NYSE Composite Tape of the Voting Securities (or, if the Voting
Securities are not quoted on the NYSE Composite Tape, on the principal United
States securities exchange registered under the Exchange Act on which such
Voting Securities are listed, or, if such Voting Securities are not listed on
any such exchange, the closing sale price or bid quotation with respect to such
Voting Securities on the National Association of Securities Dealers, Inc.
Automated Quotations System or any system then in use; PROVIDED, HOWEVER, if no
such quotations are available with respect to such Voting Securities, the price
of such Voting Securities shall be the public market trading value as determined
by an investment banker of nationally recognized reputation selected by the
Independent Directors) over any 20 consecutive trading day period during the 18
month period preceding the date of the first public announcement of a
Shareholder Offer.
"NYSE" shall mean the New York Stock Exchange, Inc.
"PERMITTED ACQUISITION" shall mean the acquisition of Voting Securities
pursuant to (1) a transaction or series of transactions that would not result,
individually or in the aggregate, in any member of the Shareholder Group, singly
or as part of a partnership, limited partnership, syndicate or other 13D Group,
directly or indirectly, acquiring, proposing to acquire, or publicly announcing
or otherwise disclosing an intention to propose to acquire, or offering or
agreeing to acquire, by purchase or otherwise, Beneficial Ownership of any
Security so as to cause either (x) the Shareholder Group's Total Ownership
Percentage to exceed the Maximum Ownership Percentage or (y) the Significant
Shareholders' Total Ownership Percentage to exceed the Combined Maximum
Ownership Percentage, (2) a Shareholder Offer at a price which is not less than
the Minimum Price, (3) a merger or other business combination approved by a
majority of the Voting Power attributable to Voting Securities not Beneficially
Owned by the Shareholder Group, (4) a transaction approved by a majority of the
Independent Directors, or (5) any acquisition of Voting Securities by the Pohlad
Group approved by the Affiliated Transaction Committee (or, if such Committee
shall not be in existence, by a committee of the Board composed entirely of
Independent Directors). For purposes of this definition, the value of any
securities offered in exchange for Voting Securities pursuant to a Shareholder
Offer shall be the average of closing prices on the NYSE Composite Tape of such
securities (or, if such securities are not quoted on the NYSE Composite Tape, on
the principal United States securities exchange registered under the Exchange
Act on which such securities are listed, or, if such securities are not listed
on any such exchange, the closing sale price or bid quotation with respect to
such security on the National Association of Securities Dealers, Inc. Automated
Quotations System or any system then in use; PROVIDED, HOWEVER, if no such
quotations are available with respect to such securities, the price of such
securities shall be the public market trading value as determined by an
investment banker of nationally recognized reputation selected by the
Independent Directors) over the five consecutive trading day period preceding
the date of the first public announcement of such Shareholder Offer.
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"PERMITTED SIGNIFICANT TRANSFEREE" shall have the meaning set forth in
Section 3.4 of this Agreement.
"PERSON" shall mean any individual, partnership, joint venture,
corporation, trust, unincorporated organization, government or department or
agency of a government.
"POHLAD COMPANIES" shall mean Pohlad Companies, a Minnesota corporation.
"POHLAD GROUP" shall mean Xxxxxx Xxxxxx, any Affiliate of Xxxxxx Xxxxxx
(other than the Company or its subsidiaries), any member of Xxxxxx Xxxxxx'x
Family, and any Person with whom Xxxxxx Xxxxxx, any Affilate of Xxxxxx Xxxxxx
or any member of Xxxxxx Xxxxxx'x Family is part of a 13D Group.
"POHLAD SHAREHOLDER AGREEMENT" shall mean the Shareholder Agreement, dated
as of [________], 2000, by and between the Company, Dakota Holdings, the Pohlad
Companies and Xxxxxx Xxxxxx.
"REPURCHASE" shall have the meaning set forth in Section 3.2 of this
Agreement.
"RIGHTS AGREEMENT" shall mean the Shareholder Rights Agreement, dated as of
May 20, 1999, as amended.
"SECURITIES ACT" shall mean the Securities Act of 1933, as amended.
"SHAREHOLDER" shall have the meaning assigned in the preamble.
"SHAREHOLDER AFFILIATE" shall mean any Affiliate of the Shareholder (other
than the Company or its subsidiaries).
"SHAREHOLDER GROUP" shall mean the Shareholder, any Shareholder Affiliate,
any Permitted Significant Transferee and any Person with whom the Shareholder,
any Shareholder Affiliate or any Permitted Significant Transferee is part of a
13D Group in respect of Voting Securities, but shall exclude any member of the
Pohlad Group.
"SHAREHOLDER OFFER" shall mean (i) a tender offer or exchange offer by any
member of the Shareholder Group for all Voting Securities not Beneficially Owned
by the Shareholder Group or (ii) a merger or other business combination pursuant
to which all Voting Securities not Beneficially Owned by the Shareholder Group
are proposed to be exchanged or converted.
"SIGNIFICANT SHAREHOLDERS" shall mean, collectively, the Shareholder Group
and the Pohlad Group.
"SIGNIFICANT TRANSFEREE" shall mean a transferee which would have a Total
Ownership Percentage of greater than 20% after giving effect to any proposed
Transfer.
"13D GROUP" shall mean any group of Persons acquiring, holding, voting or
disposing of any Voting Security which would be required under Section 13(d) of
the Exchange
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Act and the rules and regulations thereunder to file a statement on Schedule 13D
with the Commission as a "person" within the meaning of Section 13(d)(3) of the
Exchange Act; PROVIDED that a Person shall not be deemed to be part of a 13D
Group with another Person solely as a result of having been granted a revocable
proxy relating to such Person's Voting Securities in connection with any one
special or annual meeting of shareholders of the Company (including any
postponements or adjournments thereof); PROVIDED, FURTHER, that the members of
the Shareholder Group shall not be deemed to be part of a 13D Group with any
member of the Pohlad Group solely due to ownership of interests in Dakota
Holdings so long as all members of the Shareholder Group are in compliance with
the proviso in the first sentence of Section 3.9.
"TOTAL OWNERSHIP PERCENTAGE" shall mean, calculated at a particular point
in time, the Voting Power represented by the Voting Securities Beneficially
Owned by the Person (or Persons) whose Total Ownership Percentage is being
determined.
"TOTAL VOTING POWER" shall mean, calculated at a particular point in time,
the aggregate Votes represented by all then outstanding Voting Securities.
"TRADING DAY", with respect to a Voting Security, shall mean a day on which
the principal national securities exchange on which such Voting Security is
listed or admitted to trading is open for the transaction of business or, if
such security is not listed or admitted to trading on any national securities
exchange, any day other than a Saturday, Sunday or a day on which banking
institutions in the City of New York are authorized or obligated to close.
"TRANSFER" shall mean any sale, transfer, pledge, encumbrance or other
disposition to any Person, and to "TRANSFER" shall mean to sell, transfer,
pledge, encumber or otherwise dispose of to any Person.
"VOTES" shall mean votes entitled to be cast generally in the election of
Directors, assuming the conversion of any securities then convertible into
Common Stock or shares of any other class of capital stock of the Company then
entitled to vote generally in the election of Directors.
"VOTING POWER" shall mean, calculated at a particular point in time, the
ratio, expressed as a percentage, of (a) the Votes represented by the Voting
Securities with respect to which the Voting Power is being determined to (b)
Total Voting Power.
"VOTING SECURITIES" shall mean the Common Stock and shares of any other
class of capital stock of the Company then entitled to vote generally in the
election of Directors and any securities then convertible into Common Stock or
shares of any other class of capital stock of the Company then entitled to vote
generally in the election of Directors.
ARTICLE II
REPRESENTATIONS AND WARRANTIES
Section 2.1. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The Company
represents and warrants to the Shareholder as of the date hereof as follows:
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(a) The Company has been duly incorporated and is validly existing as
a corporation in good standing under the laws of the State of Delaware and
has all necessary corporate power and authority to enter into this
Agreement and to carry out its obligations hereunder.
(b) This Agreement has been duly and validly authorized by the Company
and all necessary and appropriate action has been taken by the Company to
execute and deliver this Agreement and to perform its obligations
hereunder.
(c) This Agreement has been duly executed and delivered by the Company
and assuming due authorization and valid execution and delivery by the
Shareholder, this Agreement is a valid and binding obligation of the
Company, enforceable against it in accordance with its terms.
Section 2.2. REPRESENTATIONS AND WARRANTIES OF THE SHAREHOLDER. The
Shareholder represents and warrants to the Company as of the date hereof as
follows:
(a) The Shareholder has been duly incorporated and is validly existing
as a corporation in good standing under the laws of the State of North
Carolina and has all necessary corporate power and authority to enter into
this Agreement and to carry out its obligations hereunder.
(b) This Agreement has been duly and validly authorized by the
Shareholder and all necessary and appropriate action has been taken by
the Shareholder to execute and deliver this Agreement and to perform its
obligations hereunder.
(c) This Agreement has been duly executed and delivered by the
Shareholder and assuming due authorization and valid execution and delivery
by the Company, this Agreement is a valid and binding obligation of the
Shareholder, enforceable against it in accordance with its terms.
ARTICLE III
SHAREHOLDER AND COMPANY CONDUCT
Section 3.1. ACQUISITION OF VOTING SECURITIES. Subject to the provisions of
this Agreement, during the term of this Agreement, the Shareholder agrees with
the Company that, without the prior approval of a majority of the Independent
Directors, the Shareholder will not, and will cause each member of the
Shareholder Group not to, take any of the following actions:
(a) singly or as part of a partnership, limited partnership, syndicate
or other 13D Group, directly or indirectly, acquire, propose to acquire, or
publicly announce or otherwise disclose an intention to propose to acquire,
or offer or agree to acquire, by purchase or otherwise, Beneficial
Ownership of any Voting Security so as to cause either (x) the Shareholder
Group's Total Ownership Percentage to exceed the Maximum Ownership
Percentage or (y) to the best of the Shareholder's knowledge, the
Significant
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Shareholders' Total Ownership Percentage to exceed the Combined
Maximum Ownership Percentage, other than pursuant to a Permitted
Acquisition;
(b) form, join or in any way participate in a 13D Group with respect
to any Voting Securities of the Company or any securities of its
subsidiaries if such 13D Group's Total Ownership Percentage would exceed
the Maximum Ownership Percentage;
(c) initiate (including by means of proposing or publicly announcing
or otherwise disclosing an intention to propose, solicit, offer, seek to
effect or negotiate) a merger, acquisition or other business combination
transaction relating to the Company (other than a merger, acquisition or
business combination of a third party (not a member of the Shareholder
Group) with the Company) which would not be, if consummated, a Permitted
Acquisition.
The Shareholder Group shall not be prohibited by the terms of this
Agreement from taking any action or exercising any right which is not
inconsistent with the terms of this Agreement, including soliciting or obtaining
the revocable proxy of any other shareholder of the Company with respect to the
election of directors or any other matter, seeking the election of new
directors, calling special meetings of shareholders of the Company, making
shareholder proposals, engaging in discussions with the Board or the management
of the Company or otherwise voting its Voting Securities in any manner in which
any member of the Shareholder Group shall determine in its sole discretion. In
addition, this section shall not be deemed to restrict Directors affiliated with
the Shareholder from participating as Board members in the direction of the
Company.
SECTION 3.2. REQUIRED REDUCTION OF OWNERSHIP PERCENTAGE. (a) If at any time
the Shareholder becomes aware that the Shareholder Group's Total Ownership
Percentage exceeds the Maximum Ownership Percentage, other than as permitted
pursuant to the terms of this Agreement, then the Shareholder shall, or shall
cause the Shareholder Group to, consistent with the provisions of this
Agreement, promptly (in any event, prior to the earliest to occur of (i) the
record date for the next annual or special meeting of shareholders of the
Company, (ii) the record date for the taking of any action of shareholders of
the Company by written consent or (iii) the purchase of any additional Voting
Securities by any member of the Shareholder Group) take all action necessary to
reduce the amount of Voting Securities Beneficially Owned by the Shareholder
Group such that the Shareholder Group's Total Ownership Percentage is not
greater than the Maximum Ownership Percentage.
(b) If at any time the Shareholder becomes aware that the Significant
Shareholders' Total Ownership Percentage exceeds the Combined Maximum Ownership
Percentage as a result of a reduction in the number of Voting Securities
outstanding (including, without limitation, as a result of a purchase of Common
Stock by the Company) (such excess, the "BUY-BACK EXCESS"), then the Shareholder
shall, or shall cause the Shareholder Group to, consistent with the provisions
of this Agreement, promptly (in any event, prior to the earliest to occur of (x)
the record date for the next annual or special meeting of shareholders of the
Company, (y) the record date for the taking of any action of shareholders of the
Company by written consent or (z) the purchase of any additional Voting
Securities by any member of the
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Shareholder Group) take all action necessary to reduce the amount of Voting
Securities Beneficially Owned by the Shareholder Group by the amount of such
Buy-Back Excess in the following manner and order:
(i) First, by Transferring to a Person other than the Significant
Shareholders the amount, if any, of Voting Securities received by the
Shareholder Group as an Aggregate Contingent Payment (as defined in the
Merger Agreement), to the extent not previously Transferred pursuant to
this Section;
(ii) Second, by Transferring to a Person other than the Significant
Shareholders the pro rata amount (based on the relative amounts of Voting
Securities purchased by each of the Shareholder Group and the Pohlad Group
since August [18], 2000) of Voting Securities, if any, purchased by the
Shareholder Group since August [18], 2000;
(iii) Third, by Transferring to a Person other than the Significant
Shareholders the pro rata amount of any remaining Buy-Back Excess (based on
the relative Total Ownership Percentages, after giving effect to (i) and
(ii) above, of the Shareholder Group and the Pohlad Group immediately prior
to the time when the Combined Maximum Ownership Percentage was exceeded);
(iv) Fourth, notwithstanding the foregoing, the maximum number of
Voting Securities that the Shareholder Group shall be required to Transfer
pursuant to (ii) and (iii) above shall not exceed the amount that would be
required to be Transferred if the Pohlad Group made its corresponding pro
rata Transfers consistent with (ii) and (iii) above.
(c) If at any time the Shareholder becomes aware that the Significant
Shareholders' Total Ownership Percentage exceeds the Combined Maximum Ownership
Percentage, other than as a result of a reduction in the total number of Voting
Securities (which situation shall be governed by paragraph (b) above) or as
permitted pursuant to the terms of this Agreement, then the Shareholder shall,
or shall cause the Shareholder Group to, consistent with the provisions of this
Agreement, promptly (in any event, prior to the earliest to occur of (i) the
record date for the next annual or special meeting of shareholders of the
Company, (ii) the record date for the taking of any action of shareholders of
the Company by written consent or (iii) the purchase of any additional Voting
Securities by any member of the Shareholder Group) take all action necessary to
reduce the amount of Voting Securities Beneficially Owned by the Shareholder
Group such that the Significant Shareholders' Total Ownership Percentage is not
greater than the Combined Maximum Ownership Percentage; PROVIDED that if the
Shareholder becomes aware that the Significant Shareholders' Total Ownership
Percentage exceeds the Combined Maximum Ownership Percentage due to an
acquisition by a member of the Pohlad Group of Voting Securities or the addition
to the Pohlad Group of a new Affiliate that Beneficially Owns Voting Securities,
the Shareholder shall promptly inform the Company of such fact but shall not be
required to reduce the amount of Voting Securities Beneficially Owned by the
Shareholder Group due to such event so long as the Shareholder Group is in
compliance with the other provisions of this Agreement.
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(d) During the term of this Agreement, if the Company purchases shares of
Common Stock from the public, whether by tender offer, open market purchase or
otherwise (a "REPURCHASE"), the Company shall contemporaneously with the
Repurchase offer to purchase from each of the Significant Shareholders, on the
same terms and conditions, including price, as in the Repurchase, a percentage
of those shares of Common Stock Beneficially Owned by each of the Significant
Shareholders equal to the percentage of shares of Common Stock to be Repurchased
from the Beneficial Owners of shares of Common Stock other than the Significant
Shareholders (the "BUY-BACK OFFER"). The Company shall provide notice to the
Shareholder of its intention to engage in a Repurchase and of the mechanism by
which the Repurchase shall occur not less than thirty (30) days in advance of
the date on which the Repurchase is to be consummated, and the Shareholder shall
provide notice to the Company within ten (10) days of receipt of such notice of
whether the Shareholder Group intends to accept the Buy-Back Offer.
Section 3.3. TOP-UP RIGHTS. During the term of this Agreement, if the
Shareholder Group's Total Ownership Percentage is below the Maximum Ownership
Percentage and the Significant Shareholders' Total Ownership Percentage is below
the Combined Maximum Ownership Percentage, the Shareholder Group may at its
option purchase Voting Securities from time to time in the open market or
otherwise in an amount not in excess of the amount that would cause either (x)
the Shareholder Grou s Total Ownership Percentage to exceed the Maximum
Ownership Percentage or (y) the Significant Shareholders' Total Ownership
Percentage to exceed the Combined Maximum Ownership Percentage.
SECTION 3.4. TRANSFER. Except for any requirements of the Securities Act
applicable to such Transfer, each of the members of the Shareholder Group may
Transfer any of the Voting Securities Beneficially Owned by such member of the
Shareholder Group to any transferee which is not a Significant Transferee
without restriction, and may effect such a Transfer to a Significant Transferee
with the prior written consent of a majority of the Independent Directors;
PROVIDED, HOWEVER, that each of such members of the Shareholder Group may
Transfer any of such Voting Securities to any Significant Transferee without
restriction (other than as contemplated in the last sentence of this Section
3.4) or obtaining such consent if, at the time of such Transfer, the Shareholder
Group Beneficially Owns at least 20% of the outstanding voting securities of
such Significant Transferee and no other Person Beneficially Owns a greater
percentage of the outstanding voting securities of such Significant Transferee
than the percentage owned by the Shareholder Group (a "PERMITTED SIGNIFICANT
TRANSFEREE"). The Shareholder Group shall obtain the prior written consent of a
majority of the Independent Directors to any Transfer by the Shareholder Group
of any voting securities of a Permitted Significant Transferee if, at the time
of such Transfer, such Permitted Significant Transferee has a Total Ownership
Percentage of greater than 20% and such Transfer would result in (x) the
Shareholder Group Beneficially Owning less than 20% of the outstanding voting
securities of such Permitted Significant Transferee or (y) any other Person
Beneficially Owning a greater percentage of the outstanding voting securities of
such Permitted Significant Transferee than the percentage Beneficially Owned by
the Shareholder Group after giving effect to such Transfer. Notwithstanding the
foregoing provisions of this Section 3.4, none of the restrictions of this
Section 3.4 shall apply to (i) a Transfer by any member of the Shareholder Group
of any of the Voting Securities in a public offering pursuant to which
reasonable efforts are made to achieve a wide distribution of such Voting
Securities, (ii) a liquidation of Dakota Holdings or other distribution of its
assets to its members in proportion to their capital accounts or (iii) a
Transfer
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of Voting Securities among members of the Shareholder Group, PROVIDED that any
such transferee shall agree with the Company in writing prior to each such
Transfer to be bound by the terms of this Agreement with respect to its
Beneficial Ownership of Voting Securities.
Section 3.5. CHARTER AND BY-LAWS. During the term of this Agreement the
Company shall not, and the Shareholder Group shall not, and shall not facilitate
any effort to, amend, alter or repeal, or propose the amendment, alteration or
repeal of, any provision of the Charter or the By-Laws in any manner which is
inconsistent with the terms of this Agreement. If at any time during the term of
this Agreement the provisions of this Agreement shall conflict with the
provisions of the Charter or the By-Laws, the parties shall use all reasonable
efforts, consistent with their fiduciary responsibilities, to cause the
provisions of the Charter and the By-Laws to be brought into conformity with the
provisions of this Agreement.
Section 3.6. RIGHTS AGREEMENT. During the term of this Agreement, the
Company hereby agrees not to (i) amend any provision of the Rights Agreement in
any manner which is inconsistent with the terms of this Agreement or the Merger
Agreement and which adversely affects the rights of the Shareholder Group under
the terms of this Agreement or (ii) adopt any new rights agreement which is
inconsistent with the terms of this Agreement or the Merger Agreement and which
adversely affects the rights of the Shareholder Group under the terms of this
Agreement.
SECTION 3.7. SPECIAL MEETINGS REQUESTED BY THE SHAREHOLDER; NOMINATIONS. In
the event that during the term of this Agreement the Shareholder Group requests
a special meeting of the stockholders of the Company in accordance with the
By-Laws, or the Shareholder Group nominates an alternative slate of directors to
the slate proposed by the Board at any annual meeting of stockholders of the
Company in accordance with the By-Laws, the Company hereby agrees that the
Company shall not, without the Shareholder's consent, from the date of receipt
of such request for a special meeting or the date of receipt of such nomination,
as the case may be, until the adjournment of the requested special meeting or
the annual meeting, as the case may be, (i) take any action effecting a material
change in its capital structure, (ii) declare or pay a dividend (other than any
regular quarterly dividend), (iii) materially increase the compensation of any
executive officer or (iv) take any material action not in the ordinary course of
business; PROVIDED that this provision shall not restrict the ability of the
Company to comply with commitments entered into prior to the date of such
request.
SECTION 3.8. NO AGREEMENTS. During the term of this Agreement, except as
specifically contemplated in Section 3.9, no member of the Shareholder Group
shall, directly or indirectly, enter into any agreement or commitment with any
member of the Pohlad Group with respect to the holding, voting, acquisition or
disposition of Voting Securities.
SECTION 3.9. DAKOTA HOLDINGS. Notwithstanding the provisions of Section
3.8, members of the Shareholder Group and members of the Pohlad Group may be
parties to the Amended and Restated Limited Liability Company Agreement of
Dakota Holdings, LLC, attached as Annex A to this Agreement (the "DAKOTA
HOLDINGS AGREEMENT"), and hold interests in Dakota Holdings pursuant to the
Dakota Holdings Agreement, PROVIDED that (i) the Dakota Holdings Agreement
expressly provides that (x) the members of the Shareholder Group who are parties
to the Dakota Holdings Agreement ultimately have sole power with respect to the
voting
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of [____] of the Voting Securities owned by Dakota Holdings, and with respect to
the voting of such Voting Securities members of the Pohlad Group shall have no
power, influence or discretion, and (y) the members of the Pohlad Group who are
parties to the Dakota Holdings Agreement have sole power with respect to the
voting of [____] of the Voting Securities owned by Dakota Holdings, and with
respect to the voting of such Voting Securities members of the Shareholder Group
shall have no power, influence or discretion which is not subject to the
ultimate power of the Pohlad Group to direct the voting; and (ii) Dakota
Holdings shall not take any action to acquire, directly or indirectly,
Beneficial Ownership of any additional Voting Securities (excluding any Voting
Securities acquired pursuant to the transactions contemplated by the Merger
Agreement (including any Contingent Payment Acquisitions) and excluding Voting
Securities acquired through stock dividends on then-owned Voting Securities and
excluding the acquisition of Voting Securities pursuant to the right of Dakota
Holdings to acquire Common Stock with a value of $25 million from the PepsiCo
Group, in connection with the Merger). So long as the proviso in the preceding
sentence is complied with, for purposes of calculating the Shareholder Group's
Total Ownership Percentage, those Voting Securities over which a member of the
Pohlad Group has the sole powers described in clause (y) of clause (i) in the
proviso in the preceding sentence shall not be considered Beneficially Owned by
the Shareholder Group and a transfer of interests in Dakota Holdings from a
member of the Pohlad Group to a member of the Shareholder Group shall be
permitted with the consent of the Affiliated Transaction Committee (or, if such
Committee shall not be in existence, by a committee of the Board composed
entirely of Independent Directors), which consent shall not be unreasonably
withheld.
ARTICLE IV
BOARD COMPOSITION
Section 4.1. BOARD COMPOSITION. As of the Effective Time (as defined in the
Merger Agreement) of the Merger, the Board shall consist of the current
directors of the Company and Xxxxxx Xxxxxx.
ARTICLE V
EFFECTIVENESS AND TERMINATION
Section 5.1. EFFECTIVENESS. This Agreement shall take effect immediately
upon the Closing and shall remain in effect until it is terminated pursuant to
Section 5.2 hereof.
Section 5.2. TERMINATION. This Agreement shall terminate upon the earliest
to occur of the following:
(a) The Shareholder Group's Total Ownership Percentage falling below
15% at any time;
(b) Subject to the provisions of Section 5.3, the consummation of a
Permitted Acquisition pursuant to which the Shareholder Group becomes the
Beneficial Owner of
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not less than that percentage of the Voting Power attributable to all
Voting Securities of the Company equal to 75% less the Pohlad Group's
Voting Power;
(c) Two (2) years from the first date on which the following two
conditions are met: (i) the Shareholder Group has become the Beneficial
Owner of a percentage of the Voting Power attributable to all Voting
Securities of the Company which is greater than (x) 55% less the Pohlad
Group's Voting Power, but less than (y) 75% less the Pohlad Group's Voting
Power, and (ii) the Shareholder Group has consummated a Shareholder Offer
at a price which is not less than the Minimum Price pursuant to which at
least 10% of the Voting Power attributable to Voting Securities not
Beneficially Owned by the Significant Shareholders prior to such
Shareholder Offer were acquired by the Shareholder Group; or
(d) Mutual written agreement of the Company and the Shareholder at any
time to terminate this Agreement, which termination shall occur at a time
to be fixed in such mutual agreement.
SECTION 5.3. AGREEMENTS FOLLOWING CERTAIN ACQUISITIONS. Following the
consummation of a Permitted Acquisition pursuant to which the Shareholder Group
becomes the Beneficial Owner of not less than that percentage of the Voting
Power attributable to all Voting Securities of the Company equal to 75% less the
Pohlad Group's Voting Power, the Company agrees that for a period of 90 days
after such Permitted Acquisition it shall not, without the Shareholder's
consent, take any action or enter into any agreement which (i) restricts the
acquisition by the Shareholder Group of any Voting Securities, notwithstanding
that such acquisition is not a Permitted Acquisition, (ii) restricts in any
manner the transfer of any such Voting Securities by the Shareholder Group,
(iii) restricts any right of the Shareholder Group specifically preserved under
Section 3.1, (iv) otherwise restricts in any manner the ability of any member of
the Shareholder Group to take any action with respect to Voting Securities,
including, in the case of clauses (i) through (iv), amending the Rights
Agreement to provide for any such restriction, (v) effects a material change in
the capital structure, (vi) declares or pays a dividend (other than any regular
quarterly dividend), (vii) materially increases the compensation of any
executive officer or (viii) is a material action not in the ordinary course of
business; PROVIDED that this provision shall not restrict the ability of the
Company to comply with commitments entered into prior to the date of such
Permitted Acquisition.
ARTICLE VI
MISCELLANEOUS
Section 6.1. INJUNCTIVE RELIEF. Each party hereto acknowledges that it
would be impossible to determine the amount of damages that would result from
any breach of any of the provisions of this Agreement and that the remedy at law
for any breach, or threatened breach, of any of such provisions would likely be
inadequate and, accordingly, agrees that each other party shall, in addition to
any other rights or remedies which it may have, be entitled to seek such
equitable and injunctive relief as may be available from any court of competent
jurisdiction to compel specific performance of, or restrain any party from
violating, any of such provisions. In connection with any action or proceeding
for injunctive relief, each party hereto hereby waives
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the claim or defense that a remedy at law alone is adequate and agrees, to the
maximum extent permitted by law, to have each provision of this Agreement
specifically enforced against him or it, without the necessity of posting bond
or other security against him or it, and consents to the entry of injunctive
relief against him or it enjoining or restraining any breach or threatened
breach of such provisions of this Agreement.
Section 6.2. SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon,
shall inure to the benefit of and shall be enforceable by the Company and by the
Shareholder and their respective successors and permitted assigns, and no such
term or provision is for the benefit of, or intended to create any obligations
to, any other Person.
Section 6.3. AMENDMENTS; WAIVER. (a) This Agreement may be amended only by
an agreement in writing executed by the parties hereto. Any approval of an
amendment of this Agreement upon the part of the Company shall require the
approval of a majority of the Independent Directors at a duly convened meeting
thereof.
(b) Either party may waive in whole or in part any benefit or right
provided to it under this Agreement, such waiver being effective only if
contained in a writing executed by the waiving party. No failure by any party to
insist upon the strict performance of any covenant, duty, agreement or condition
of this Agreement or to exercise any right or remedy consequent upon breach
thereof shall constitute a waiver of any such breach or of any other covenant,
duty, agreement or condition, nor shall any delay or omission of either party to
exercise any right hereunder in any manner impair the exercise of any such right
accruing to it thereafter. Any waiver of any benefit or right provided to the
Company under this Agreement shall require the approval of a majority of the
Board and a majority of the Independent Directors at a duly convened meeting
thereof.
Section 6.4. NOTICES. Except as otherwise provided in this Agreement, all
notices, requests, claims, demands, waivers and other communications hereunder
shall be in writing and shall be deemed to have been duly given when delivered
by hand, when delivered personally or by courier, three days after being
deposited in the mail (registered or certified mail, postage prepaid, return
receipt requested), or when received by facsimile transmission if promptly
confirmed by one of the foregoing means, as follows:
If to the Shareholder:
PepsiCo, Inc.
000 Xxxxxxxx Xxxx Xxxx
Xxxxxxxx, XX 00000
Attention: General Counsel
Fax: (000) 000-0000
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with a copy to:
Cravath, Swaine & Xxxxx
Worldwide Plaza
000 Xxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxx Xxxxxxxx
Fax: (000) 000-0000
If to the Company:
Xxxxxxx Corporation
0000 Xxxxxxxxx Xxxx
Xxxxxxx Xxxxxxx, Xxxxxxxx 00000
Attention: General Counsel
Fax: (000) 000-0000
with a copy to:
Wachtell, Lipton, Xxxxx & Xxxx
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxx X. Xxxxxx
Fax: (000) 000-0000
or to such other address or facsimile number as either party may, from time to
time, designate in a written notice given in a like manner.
Section 6.5. APPLICABLE LAW. This Agreement shall be governed by and
construed in accordance with the internal laws of the State of Delaware without
giving effect to principles of conflicts of law.
Section 6.6. HEADINGS. The descriptive headings of the several sections in
this Agreement are for convenience only and do not constitute a part of this
Agreement and shall not be deemed to limit or affect in any way the meaning or
interpretation of this Agreement.
Section 6.7. INTEGRATION. This Agreement and the other writings referred to
herein or delivered pursuant hereto which form a part hereof contain the entire
understanding of the parties with respect to its subject matter. This Agreement
supersedes all prior agreements and understandings between the parties with
respect to its subject matter. There are no restrictions, agreements, promises,
representations, warranties, covenants or undertakings with respect to its
subject matter other than those expressly set forth or referred to herein.
Section 6.8. SEVERABILITY. If any term or provision of this Agreement or
any application thereof shall be declared or held invalid, illegal or
unenforceable, in whole or in part, whether generally or in any particular
jurisdiction, such provision shall be deemed amended to the extent, but only to
the extent, necessary to cure such invalidity, illegality or unenforceability,
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and the validity, legality and enforceability of the remaining provisions, both
generally and in every other jurisdiction, shall not in any way be affected or
impaired thereby.
Section 6.9. CONSENT TO JURISDICTION. In connection with any suit, claim,
action or proceeding arising out of this Agreement, the Shareholder and the
Company each hereby consent to the in personam jurisdiction of the United States
federal courts and state courts located in the State of Delaware; the
Shareholder and the Company each agree that service in the manner set forth in
Section 6.4 hereof shall be valid and sufficient for all purposes; and the
Shareholder and the Company each agree to, and irrevocably waive any objection
based on forum non conveniens or venue not to, appear in any United States
federal court or state court located in the State of Delaware.
Section 6.10. COUNTERPARTS. This Agreement may be executed by the parties
hereto in two or more counterparts, each of which shall be deemed an original,
but all of which together shall constitute one and the same instrument.
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IN WITNESS WHEREOF, the Company and the Shareholder have caused this
Agreement to be duly executed by their respective authorized officers as of the
date set forth at the head of this Agreement.
XXXXXXX CORPORATION
By:
--------------------------------------
Name:
Title:
PEPSICO, INC. (on behalf of itself and all
members of the Shareholder Group)
By:
--------------------------------------
Name:
Title:
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