SUBSCRIPTION AGREEMENT
THIS AGREEMENT, made and entered into as of this thirtieth (30th)
day of December, 1996, by and between PEPSI-COLA PUERTO RICO BOTTLING
COMPANY, a corporation organized and existing under the laws of the State
of Delaware (hereinafter referred to as the "Corporation") and XXXXXX XXX,
of legal age, the President and Chief Executive Officer of the Corporation
and resident of San Xxxx, Puerto Rico (hereinafter referred to as the
"Subscriber").
WITNESSETH:
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WHEREAS, the Corporation has adopted a Qualified Stock Option
Plan dated as of December 30, 1996 (the "Plan"), whereby it may grant
options to purchase shares of Class B stock of the Corporation ("Class B
Stock") to its key members of management; and,
WHEREAS, pursuant to resolutions of the Board of Directors of the
Corporation approved October 15, 1996 (the "Resolutions"), the Corporation
granted the Subscriber with options to purchase (the "Options") up to
190,000 shares of Class B stock (the "Class B Stock") of the Corporation;
and,
WHEREAS, pursuant to the Resolutions, the Options granted to the
Subscriber vested immediately upon their grant; and,
WHEREAS, the parties hereto wish to enter into this Agreement for
purposes of evidencing the right of Subscriber to purchase and request the
subscription of the Option Shares;
NOW, THEREFORE, in consideration of the mutual promises and
covenants herein contained and for other good and valuable consideration,
it is hereby mutually agreed as follows:
Section 1. PREAMBLE. The preamble to this Agreement is
hereby made an integral part hereof.
Section 2. THE PLAN. Reference is hereby made to the Plan,
under which the Options were granted. All provisions therein contained
relating to the representations and warranties of the Participant (as
therein defined) and the conditions of the transferability of Shares, as
well as provisions relating to rights of the Subscriber as a Participant
thereunder (including, without limitation, the rights of the Subscriber to
request the registration of the Shares (as hereinafter defined) as set
forth and in accordance with Section 7 of the Plan) shall be deemed and are
hereby incorporated in this Agreement and shall extend and be applicable to
this Agreement.
Section 3. SUBSCRIPTION. The Corporation hereby grants the
Subscriber the right to subscribe to one Hundred Ninety Thousand (190,000)
shares of Class B Stock of the Corporation (the "Shares"), having a par
value of One Cent ($0.01) per share, free and clear of all liens and
encumbrances, fully paid and nonassessable, for a purchase price of Five
Dollars ($5) per share (the "Purchase Price") [payable at the closing of
the purchase of the Shares (the "Closing") which shall take place on the
date no later than thirty (30) days from the date of exercise of the
Options by Subscriber (the "Closing Date")]. The Shares shall be subject
to the provisions of the Certificate of Incorporation of the Corporation,
as amended and restated under that certain Amended and Restated Certificate
of Incorporation dated August 24, 1995, and as it may be further amended in
the future (the "Certificate of Incorporation"), and to the terms of the
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Plan, and any transfers of the Shares by the Subscriber are subject to such
provisions. The Shares shall be shares of Class B Stock of the Corporation
and, when issued and delivered pursuant to the terms hereof, shall be fully
paid and nonassessable, subject to all the terms and conditions of this
Agreement.
Section 4. CLOSING; RIGHTS AS SHAREHOLDER. The Closing for
the purchase of the Shares shall be held at the place and on the date
agreed by the parties hereto. At the Closing the Purchase Price must be
paid in full. Until such time the Shares shall not be considered
subscribed or issued for any corporate purpose. Accordingly, the
Subscriber, as such, shall not be, and not have any of the rights or
privileges of a shareholder of the Corporation in respect of any Shares
unless and until such Shares shall have been subscribed by Subscriber, and
delivered by the Corporation to the Subscriber in accordance with this
Agreement.
Section 5. TERM. Any provision herein to the contrary
notwithstanding, this Agreement, and the rights of Subscriber to purchase
the Shares shall be in force for a period of ten (10) years from the date
hereof. If at the end of such period the Subscriber has not exercised its
right to purchase the Shares hereunder by notice to the Corporation as set
forth in Section 7 hereof, this Agreement shall terminate and no longer be
in force.
Section 6. LEGEND. All stock certificates representing the
Shares shall bear on their face the following legend:
"The sale, transfer or other hypothecation or
disposition of the shares of stock represented by this
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Certificate is prohibited except as provided in the
Certificate of Incorporation, as amended, of the
issuing Corporation, and in the agreement for the
purchase of such stock, a copy of which can be examined
upon request to the Issuing Corporation.
The shares represented by this certificate have not
been registered under the Securities Act of 1933, as
amended (the "Act"), and may not be sold or otherwise
transferred in the absence of (i) an effective
registration statement for the shares under the Act, or
(ii) an opinion of counsel satisfactory to the
Corporation that registration is not required under the
Act."
Section 7. NOTICES. All notices required to be given
hereunder shall be made via registered or certified mail, postage prepaid,
return receipt requested or delivered by hand and shall be deemed given
upon receipt by the party to whom addressed at the corresponding address
set forth below:
IF TO:
Pepsi-Cola Puerto Rico Bottling Company
XX Xxx 000000
Xxx Xxxx, Xxxxxx Xxxx 00000-0000
Tel: (000) 000-0000
Fax: (000) 000-0000
Attention: Mr. C. Xxxx Xxxxxxx
IF TO:
Xxxxxx Xxx
Xxxxxxxxx Xx. 0
Xxx. 0
Xxxxxxx
Xxx Xxxx, Xxxxxx Xxxx
Section 8. MISCELLANEOUS. (a) The waiver of any breach or
default of any term or provision of this Agreement in one instance shall
not be deemed a waiver of any breach or default in any other instance.
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(b) The parties hereto agree to execute whatever further
documents shall be necessary to effectuate the purposes of this Agreement.
(c) All of the terms and conditions of this Agreement shall be
binding upon and inure to the benefit of the parties hereto, and their
respective heirs, legal representatives, successors and assigns.
(d) This Agreement shall be governed by and interpreted in
accordance with the Laws of the Commonwealth of Puerto Rico.
(e) This Agreement may be executed in counterparts each of which
shall be deemed an original but all of which together shall constitute but
one and the same instrument.
(f) The rights herein granted to the Subscriber to subscribe to
and purchase the Shares may not be assigned or conveyed to any person or
persons without the prior written consent of the Corporation, except as
otherwise permitted hereunder.
IN WITNESS WHEREOF, the parties hereto have hereunto affixed
their signatures on the day and year first above written.
CORPORATION SUBSCRIBER
PEPSI-COLA PUERTO RICO
BOTTLING COMPANY
By:____________________________ _______________________
Xxxxxx Xxx
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