Second Amended and Restated Shareholder Agreement dated as of September 6, 2005 among PepsiAmericas, Inc. and PepsiCo, Inc.
EXHIBIT 2
Second Amended and Restated Shareholder Agreement dated as of September 6, 2005
among PepsiAmericas, Inc. and PepsiCo, Inc.
SECOND AMENDED AND RESTATED SHAREHOLDER AGREEMENT
BY AND BETWEEN
PEPSIAMERICAS, INC.,
A DELAWARE CORPORATION,
A DELAWARE CORPORATION,
AND
PEPSICO, INC.,
A NORTH CAROLINA CORPORATION
A NORTH CAROLINA CORPORATION
DATED
AS OF SEPTEMBER 6, 2005
TABLE OF CONTENTS
Page | ||||
ARTICLE I CERTAIN DEFINITIONS |
1 | |||
Section 1.1 Certain Definitions |
1 | |||
ARTICLE II REPRESENTATIONS AND WARRANTIES |
5 | |||
Section 2.1 Representations and Warranties of the Company |
5 | |||
Section 2.2 Representations and Warranties of the Shareholder |
5 | |||
ARTICLE III SHAREHOLDER AND COMPANY CONDUCT |
6 | |||
Section 3.1 Acquisition of Voting Securities |
6 | |||
Section 3.2 Required Reduction of Ownership Percentage |
7 | |||
Section 3.3 Top-Up Rights |
7 | |||
Section 3.4 Transfer |
7 | |||
Section 3.5 Charter and By-Laws |
8 | |||
Section 3.6 Rights Agreement |
8 | |||
Section 3.7 Special Meetings Requested by the Shareholder; Nominations |
8 | |||
Section 3.8 No Agreements |
9 | |||
ARTICLE IV EFFECTIVENESS AND TERMINATION |
9 | |||
Section 4.1 Effectiveness |
9 | |||
Section 4.2 Termination |
9 | |||
Section 4.3 Amendments Following Certain Acquisitions |
9 | |||
ARTICLE V MISCELLANEOUS |
10 | |||
Section 5.1 Injunctive Relief |
10 | |||
Section 5.2 Successors and Assigns |
10 | |||
Section 5.3 Amendments; Waiver |
10 | |||
Section 5.4 Notices |
11 | |||
Section 5.5 Applicable Law |
11 | |||
Section 5.6 Headings |
11 | |||
Section 5.7 Integration |
11 | |||
Section 5.8 Severability |
12 | |||
Section 5.9 Consent to Jurisdiction |
12 | |||
Section 5.10 Counterparts |
12 |
-i-
SECOND
AMENDED AND RESTATED SHAREHOLDER AGREEMENT, dated as of September 6, 2005 (this
“Agreement”), by and between PepsiAmericas, Inc., a Delaware corporation (the
“Company”), and PepsiCo, Inc., a North Carolina corporation (the “Shareholder”).
WITNESSETH:
WHEREAS, the Company and the Shareholder are parties to a Shareholder Agreement, dated as of
May 20, 1999, as amended and restated as of November 30, 2000 (the “Original Shareholder
Agreement”);
WHEREAS, Shareholder is currently the owner of certain outstanding shares of common stock,
par value $0.01 per share of the Company (the “Common Stock”);
WHEREAS, the Company and the Shareholder again 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.
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.
“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 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 they may be amended from time to
time.
“Charter” shall mean the Certificate of Incorporation of the Company, as it may be
amended from time to time.
“Commission” shall mean the United States Securities and Exchange Agreement.
“Common Stock” shall have the meaning assigned in the recitals of this Agreement.
“Company” shall have the meaning assigned in the preamble.
“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, and who is not a director,
officer, employee, consultant or advisor (financial, legal or other) of any member of the
Shareholder 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
which results in the Shareholder Group’s Total Ownership Percentage exceeding 49.0%, so long
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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.
“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
the Shareholder Group’s Total Ownership Percentage to exceed the 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, or (4) a transaction approved by a majority of the
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.
“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.
3
“Pohlad Group” shall mean Xxxxxx X. Xxxxxx, any Affiliate of Xxxxxx X. Xxxxxx (other
than the Company or its subsidiaries), any member of Xxxxxx X. Xxxxxx’x Family, and any Person with
whom Xxxxxx X. Xxxxxx, any Affiliate of Xxxxxx X. Xxxxxx or any member of Xxxxxx X. Xxxxxx’x Family
is part of a 13D Group.
“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.
“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 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 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).
“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
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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:
(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
5
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 the
Shareholder Group’s Total Ownership Percentage to exceed the 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
6
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 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) 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 the Shareholder Group, on the same terms and conditions, including price, as
in the Repurchase, a percentage of those shares of Common Stock Beneficially Owned by the
Shareholder Group equal to the percentage of shares of Common Stock to be Repurchased from
the Beneficial Owners of shares of Common Stock other than the Shareholder Group (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, 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 the Shareholder Group’s Total Ownership
Percentage to exceed the Maximum Ownership.
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
7
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, or (ii) a Transfer 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 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 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 Section shall not restrict the ability of the Company to comply with
commitments entered into prior to the date of such request.
8
Section 3.8 No Agreements. During the term of this Agreement, 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.
ARTICLE IV
EFFECTIVENESS AND TERMINATION
Section 4.1 Effectiveness. This Agreement shall take effect immediately upon its
execution and shall remain in effect until it is terminated pursuant to Section 4.2 hereof.
Section 4.2 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 4.3, 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%;
(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%,
but less than (y) 75%, 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 Shareholder
Group prior to such Shareholder Offer were acquired by the Shareholder Group.
(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 4.3 Amendments 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%, 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
9
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 Section shall not restrict the
ability of the Company to comply with commitments entered into prior to the date of such Permitted
Acquisition.
ARTICLE V
MISCELLANEOUS
Section 5.1 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 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 5.2 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 5.3 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.
10
Section 5.4 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
000 Xxxxxxxx Xxxx Xxxx
Xxxxxxxx, XX 00000
Attention: General Counsel
Fax: (000) 000-0000
If to the Company:
PepsiAmericas, Inc.
4000 Xxxx Xxxxxxxx Plaza
00 Xxxxx Xxxxx Xxxxxx
Xxxxxxxxxxx, Xxxxxxxxx 00000
Attention: Chief Executive Officer
Fax: (000) 000-0000
4000 Xxxx Xxxxxxxx Plaza
00 Xxxxx Xxxxx Xxxxxx
Xxxxxxxxxxx, Xxxxxxxxx 00000
Attention: Chief Executive Officer
Fax: (000) 000-0000
with a copy to:
Xxxxxx and Xxxxxx, P.A.
2200 IDS Center
00 X. 0xx Xxxxxx
Xxxxxxxxxxx, XX 00000
Attention: Xxxxx X. Xxxxxx
Fax: (000) 000-0000
2200 IDS Center
00 X. 0xx Xxxxxx
Xxxxxxxxxxx, XX 00000
Attention: Xxxxx 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 5.5 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 5.6 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 5.7 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
11
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 5.8 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, 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 5.9 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 5.4 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 5.10 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.
[SIGNATURE PAGE FOLLOWS]
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[SIGNATURE PAGE TO SECOND AMENDED AND RESTATED SHAREHOLDER
AGREEMENT]
AGREEMENT]
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.
PEPSIAMERICAS, INC. |
||||
By: | /s/ Xxxxxx X. Xxxxxx | |||
Name: | Xxxxxx X. Xxxxxx | |||
Title: | Chairman of the Board and Chief Executive Officer | |||
PEPSICO, INC. (on behalf of itself and all members of the Shareholder Group) |
||||
By: | /s/ Xxxxxx X. Xxxxxx III | |||
Name: | Xxxxxx X. Xxxxxx III | |||
Title: | Senior Vice President and Treasurer | |||