Exhibit 9.6
PEPSI-COLA PUERTO RICO BOTTLING COMPANY
VOTING TRUST AGREEMENT
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VOTING TRUST AGREEMENT (the "Agreement"), made as the 28th day of
August, 1995 by and among the undersigned holders of shares of Common Stock
(the "Stock") of PEPSI-COLA PUERTO RICO BOTTLING COMPANY, a Delaware
corporation (the "Corporation"), (the undersigned holders of shares of the
Stock are hereinafter referred to individually as a "Shareholder", and
collectively as "Shareholders") and XXXXXXX X. BEACH and his successor in
trust, as trustee (hereinafter referred to as "Trustee").
WITNESSETH:
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WHEREAS, the Shareholders wish to enter into an agreement with
respect to voting rights of the Stock held by them and as to certain other
matters with respect to such Stock;
WHEREAS, each Shareholder owns one share of Stock; and
WHEREAS, the Shareholders have agreed upon the person who shall
act as Trustee; and
WHEREAS, the Trustee has consented to act under this Agreement as
trustee in the manner and for the purposes provided herein.
NOW, THEREFORE, in consideration of the premises, it is hereby
agreed as follows:
1. TRANSFER OF STOCK TO TRUSTEE
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A. Each Shareholder hereby assigns and transfers to the Trustee
the shares of Stock owned and held by each of them, subject to the terms
and conditions of this Agreement. Each Shareholder agrees to deliver to
the Trustee, simultaneously with the execution of this Agreement, a stock
certificate or certificates representing such shares of Stock, together
with a duly executed stock power for the transfer of such share of Stock to
the Trustee.
B. In the event a Shareholder shall, at any time or from time
to time, after having become a party to this Agreement, become the owner or
holder of additional shares of Stock of the Corporation, such Shareholder
shall assign and transfer to the Trustee such additional shares of Stock
and deliver to the Trustee stock certificates representing such shares of
Stock, together with a duly executed stock power for the transfer of such
additional shares of Stock to the Trustee.
2. VOTING TRUST CERTIFICATES
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A. Upon receipt by the Trustee of shares of Stock from a
Shareholder, the Trustee shall issue and deliver to such Shareholder a
certificate representing the beneficial interest in such shares of Stock (a
"Certificate", or a "Voting Trust Certificate"), and which shall be
registered in the name of such Shareholder on the books of the Trustee.
B. Until and unless changed by the Trustee, each Certificate
shall be substantially in the form of Exhibit A hereto. No Certificate
shall be valid unless and until signed by the Trustee. The Trustee may, at
any time and from time to time, make such changes in the form of
Certificates as he, in his absolute discretion, shall deem necessary or
advisable.
3. TRANSFER OF CERTIFICATES; RESTRICTIONS ON TRANSFER
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A. Each Certificate issued hereunder shall be transferable only
on the books kept by the Trustee and only upon surrender thereof by the
registered holder in person, or by attorney duly authorized, in accordance
with any rules established for such purpose of the Trustee. Until any
Certificate is transferred (in accordance with such rules), the Trustee may
treat the holder thereof shown on such register as the owner of such
Certificate for all purposes. The Trustee acknowledges that the transfer
of Certificates is restricted by the provisions of a certain Shareholders
Agreement dated as of April 27, 1987, as amended, between and among the
holder of the Stock and the Corporation (the "Shareholders Agreements"),
and he agrees that he shall not register any transfer of Certificates, and
the holders of Certificates shall, by accepting the same, be conclusively
deemed to have agreed that the Trustee shall not be required to register
any transfer of Certificates, which is made in violation of the
Shareholders Agreement.
B. During the term of this Agreement, no Shareholder shall
sell, assign, transfer or otherwise dispose of any of the Stock as
permitted by the Shareholders Agreement unless the person acquiring such
stock shall agree in writing to be bound by the provisions of this
Agreement and the Shareholders Agreement to the same extent as such
Shareholder.
4. DIVIDENDS
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A. If the Corporation shall declare a cash dividend with
respect to shares of a Stock held by the Trustee under this Agreement, the
Trustee shall pay such dividend to the respective registered holders of the
then outstanding Certificates in such amounts as if the shares of Stock
represented by such Certificates were held directly by the respective
registered holders of such Certificates.
B. If the Corporation shall declare a dividend of Stock or
shall otherwise distribute shares of Stock with respect to or upon shares
of Stock held by the Trustee hereunder, upon the Corporation's delivery to
the Trustee of stock certificates representing such shares of Stock, the
Trustee shall hold such shares of Stock and such stock certificates subject
to the terms hereof, and shall issue, PRO RATA, to the respective
registered holders of the then-outstanding Certificates, additional
Certificates, which shall represent the beneficial interest in such
additional shares of Stock, and which shall be registered in the name of
such respective registered holders of the then outstanding Certificates.
5. TRUSTEE: IN GENERAL; POWERS
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A. The Trustee shall have full power, at any time and from time
to time, to cause certificates of shares of Stock held by him as Trustee
hereunder to be transferred on the books of the Corporation into his own
name; PROVIDED, HOWEVER, that as holder of such shares of Stock the Trustee
shall assume no liability as stockholder, his interest hereunder being
solely that of Trustee.
B. Upon the transfer of Certificates of shares of Stock to the
Trustee and thereafter, the Trustee shall, in person or by his nominee, in
respect of any and all such Stock held by him hereunder, possess and be
entitled to exercise all shareholder rights, including the right to vote
and to give any consent for any purpose as fully as any shareholder might
do, and to waive any shareholder's rights or privileges in respect thereof,
and to consent to any act of the Corporation, as though he were the
absolute owner of such Stock, but shall not have any right to sell or
otherwise dispose of any Stock, other than by distribution to the holders
of Certificates upon termination of this Agreement. The right to vote
shall include, without being limited to, the right to vote in favor of or
against the dissolution, reorganization, merger, consolidation or
recapitalization or the sale, lease, exchange or disposition of
substantially all of the assets of the Corporation.
C. The Trustee is hereby expressly authorized to do any and all
acts which he deems necessary or advisable in connection with the carrying
out of the terms, provisions and conditions of this Agreement.
D. The interpretation by the Trustee of the terms, provisions
and conditions of this Agreement and any Certificates issued hereunder
shall be conclusive and binding upon all holders of Certificates and on all
other interested parties.
6. TRUSTEE; PROCEDURE
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The Trustee may exercise any power or perform any act under
this Agreement by an agent or attorney, appointed in writing.
7. RESIGNATION; SUCCESSOR TRUSTEE
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A. In the event of the death or disability of the Trustee, his
executor or legal representative shall select a successor Trustee to
replace the deceased or disabled Trustee.
B. Any successor Trustee shall succeed to and have all the
rights, powers, privileges and duties of the Trustee named herein, with the
same force and effect as though such successor Trustee had originally been
a party to this Agreement.
8. TERMINATION
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A. Unless sooner terminated in accordance with the provisions
of Section 8B hereof or extended in accordance with this Section 8A, this
Agreement shall terminate without notice by or action of the Trustee on
______, 2008; PROVIDED, HOWEVER, that within two (2) years prior to the
termination of the initial term or any extension term hereof, the then
Shareholders may agree to extend the duration of this Agreement for an
additional period agreed to at such time as permissible under applicable
Law.
B. This Agreement may be terminated prior to the date specified
in Section 8A only by the written agreement of the Trustee.
C. Upon termination of this Agreement, the Trustee, in exchange
for and upon the surrender of any Certificate then outstanding by the
registered holder thereof, shall, in accordance with the terms thereof,
transfer a Certificate or Certificates of shares of Stock held by the
Trustee hereunder to the registered holder of such Certificate, in an
amount equal to the number of shares of Stock the beneficial interest in
which is represented by such surrendered Certificate. Thereupon, all
liability of the Trustee for delivery of such Certificates of shares of
Stock shall terminate, and the Certificate so surrendered shall be null and
void. The Trustee acknowledges that the transfer of Stock is restricted by
the provisions of the Shareholders Agreement and agrees that he shall not
deliver any Certificates for Stock, and the holders of Certificates shall
by accepting the same shall be conclusively deemed to have agreed that the
Trustee shall not be acquired to deliver any Certificates for Stock, to any
person whose acquisition of the same would be in violation of the
Shareholders Agreement.
D. If upon termination hereof, one or more registered holders
of Certificates shall fail to surrender the same to the Trustee in
accordance with the provisions of Section 8C within a reasonable time (not
to exceed 90 days) after such termination, the Trustee shall deposit with
the Corporation Certificates of shares of Stock, properly endorsed for
transfer in blank, for the number of shares of Stock whose beneficial
interest is represented by such outstanding Certificates, with authority in
writing to the Corporation to deliver such Certificates of shares of Stock
in exchange for and upon the surrender of any such outstanding Certificates
by or for the account of the registered holders thereof, in the amounts
equal to the number of shares of Stock represented by the Certificates so
surrendered, and thereupon, all liability of the Trustee for delivery of
such Certificates of shares of Stock in exchange for Certificates shall
terminate.
9. SUCCESSORS AND ASSIGNS
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All of the terms, provisions and conditions of this Agreement and
any Certificate issued hereunder shall apply to, be binding upon and inure
to the benefit of the Trustee and any successor Trustee appointed or
designated under the provisions of Section 8 hereof and the holders of
Certificates and their heirs, assigns, and legal representatives.
10. GOVERNING LAW
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The validity, enforceability and interpretation of this Agreement
and any Certificate issued hereunder shall be determined in accordance with
and governed by the laws of the State of Delaware.
11. FILING AND INSPECTION
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A counterpart of this Agreement shall be deposited with the
Corporation at its executive offices at x/x XXXXX, Xxxxxxx Division, 000
Xxxxx Xxxxxxx Xxxxxxx, 0xx Xxxxx, Xxxx Xxxxx, Xxxxxxx, and a copy at the
offices of the Secretary of the Corporation at Xxxxxxxx Xxxxx & Calabria,
c/o Xxxxxxxx Xxxxx, 16th Floor, Popular Center Building, Hato Rey, Puerto
Rico, and shall be open for inspection by any Shareholder of the
Corporation or by any registered holder of a Certificate, in person or by
agent or attorney, during regular business hours.
12. AGREEMENT
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A. This Agreement may be executed in any number of
counterparts, each of which shall be an original and all of which, taken
together, shall constitute one and the same instrument.
B. This Agreement contains the entire agreement and
understanding of the parties with respect to the transactions contemplated
hereby. Except as herein expressly provided with respect to the
Shareholders Agreement, no prior agreement, whether written or oral, shall
be construed to change, amend, alter, repeal or invalidate this Agreement.
13. SEVERABILITY
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A. If any provision hereof or of any Certificate issued
hereunder shall, in whole or in part, prove to be invalid for any reason,
such invalidity shall affect only the portion of such provision which shall
be invalid, and in all other respects this Agreement and any Certificate
issued hereunder shall stand as if such invalid provisions had not been
made, and they shall fail to the extent, and only to the extent, of such
invalid provision, and no other portion or provision of this Agreement, or
any Certificate issued hereunder, shall be invalidated, impaired or
affected thereby.
IN WITNESS WHEREOF, each of the parties hereto has executed this
Agreement, as of the day and year first above written.
TRUSTEE:
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/S/ XXXXXXX X. BEACH
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Xxxxxxx X. Beach,
Trustee
SHAREHOLDERS:
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/S/ XXXXXX XXXXX
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Xxxxxx Xxxxx
/S/ XXXXX XXXXXX
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Xxxxx XxXxxx
/S/ XXXXXXX XXXXX, JR.
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Xxxxxxx Xxxxx, Jr.
