As filed with the Securities and Exchange Commission on May 26, 1999
Registration No. 333-_________
- -----------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
450 FIFTH STREET, N.W.
Washington, D.C. 20549
___________
FORM S-8
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
___________
THE PEPSI BOTTLING GROUP, INC.
------------------------------------------------------
(Exact Name of Registrant as Specified in its Charter)
DELAWARE 13-4038356
------------------------------- ------------------------------------
(State or Other Jurisdiction of (I.R.S. Employer Identification No.)
Incorporation or Organization
One Pepsi Way
Somers, New York 10589-2201
------------------------------------------------------------
(Address of Principal Executive Offices, including zip code)
PBG EXECUTIVE INCOME DEFERRAL PROGRAM
-------------------------------------
(Full Title of the Plan)
Pamela C. McGuire
Senior Vice President, General Counsel and Secretary
The Pepsi Bottling Group, Inc.
One Pepsi Way
Somers, New York 10589
(914) 767-7540
- -------------------------------------------------------------------------------
(Name, Address and Telephone Number, including area code, of Agent for Service)
Copies to:
Mark D. Wincek Steven M. Rapp
Kilpatrick Stockton LLP The Pepsi Bottling Group, Inc.
700 13th Street, N.W., Suite 800 One Pepsi Way
Washington, D.C. 20005 Somers, New York 10589-2201
(202) 508-5801 (914) 767-7971
<TABLE>
<CAPTION>
============================================================================================================
CALCULATION OF REGISTRATION FEE
Proposed Maximum Proposed Maximum
Title of Securities Amount to be Offering Price Aggregate Amount of
to be Registered <F1> Registered Per Obligation Offering Registration Fee
Price <F2>
- ------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Deferred Compensation
Obligations $20,731,921.58 100% $20,731,921.58 $5,763.47
- ------------------------------------------------------------------------------------------------------------
<FN>
<F1>
<F1> The Deferred Compensation Obligations are unsecured obligations
of The Pepsi Bottling Group, Inc., to pay deferred compensation in
the future in accordance with the terms of the PBG Executive Income
Deferral Program.
<F2> Estimated solely for the purpose of determining the registration
fee.
</FN>
(/TABLE>
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<PAGE>
PART I
INFORMATION REQUIRED IN THE SECTION 10(a)
PROSPECTUS
ITEM 1. Plan Information.*
ITEM 2. Registration Information and Employee Plan Annual
Information.*
____________
* Information required by Part I to be contained in the Section
10(a) prospectus is omitted from this Registration Statement in
accordance with Rule 428 under the Securities Act of 1933, as amended,
and the Note to Part I of Form S-8.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. Incorporation of Documents by Reference
---------------------------------------
The Pepsi Bottling Group, Inc. (the "Registrant") hereby
incorporates by reference in this Registration Statement the following
documents previously filed with the Securities and Exchange Commission
(the "SEC"):
(1) the Registrant's Prospectus, dated March 30, 1999, filed
with the Commission pursuant to Rule 424(b) under the Securities
Act of 1933, as amended (the "Securities Act"), in Registration
Statement No. 333-70291 on Form S-1 ("Form S-1"),
(2) the Registrant's Quarterly Report on Form 10-Q for the
period ended March 20, 1999, and
(3) the description of the Registrant's Common Stock, par value
$.01 per share, contained in the Registrant's Registration
Statement on Form 8-A, pursuant to Section 12(b) of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"),
and all amendments and reports filed for the purpose of updating
such descriptions.
All documents subsequently filed by the Registrant with the SEC
under Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act, prior
to the filing of a post-effective amendment to this Registration
Statement which indicates that all securities offered have been sold
or which deregisters all securities then remaining unsold, shall be
deemed to be incorporated by reference in this Registration Statement
and to be a part hereof from the date of filing of such documents.
Any statement in a document incorporated or deemed to be incorporated
by reference herein shall be deemed to be modified or superseded for
the purposes of this Registration Statement to the extent that a
statement contained herein or in any other subsequently filed document
which also is or deemed to be incorporated by reference herein
modifies or supersedes such statement. Any statement so modified or
superseded shall not be deemed, except as so modified or superseded,
to constitute a part of this Registration Statement.
2
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<PAGE>
ITEM 4. Description of Securities
-------------------------
The obligations of The Pepsi Bottling Group, Inc. under the PBG
Executive Income Deferral Program (the "Obligations") are unsecured
general obligations of The Pepsi Bottling Group, Inc. to pay deferred
compensation in the future in accordance with the terms of the PBG
Executive Income Deferral Program (the "Plan") and rank pari passu
with other unsecured and unsubordinated indebtedness of The Pepsi
Bottling Group, Inc. outstanding from time to time. However, the
right of The Pepsi Bottling Group, Inc., and hence the right of
creditors of The Pepsi Bottling Group, Inc. (including Participants in
the Plan), to participate in any distribution of the assets of any
subsidiary of The Pepsi Bottling Group, Inc. upon its liquidation or
reorganization or otherwise is necessarily subject to the prior claims
of creditors of the subsidiary, except to the extent that claims of
The Pepsi Bottling Group, Inc. itself as a creditor of the subsidiary
may be recognized.
The amount of compensation deferred by each Participant is
determined in accordance with the Plan based on the Participant's
elections, subject to such rules and regulations as may be established
by The Pepsi Bottling Group, Inc., as the plan administrator of the
Plan. Each Obligation will be payable in accordance with the terms of
the Plan. Under the Plan, the Obligations will yield an investment
return (plus or minus) based on one or more options individually
chosen by each Participant. The Obligations will be accounted for in
units and are payable in United States dollars.
Under the Plan, a Participant's right to the Obligations cannot
be assigned, alienated, sold, garnished, transferred, pledged, or
encumbered except by a written designation of a beneficiary under the
Plan or by the laws of descent and distribution. The Obligations are
not convertible into another security of The Pepsi Bottling Group,
Inc. No trustee has been appointed having the authority to take
action with respect to the Obligations and each Participant will be
responsible for acting independently with respect to, among other
things, the making of investment elections and giving of notices.
The Pepsi Bottling Group, Inc. reserves the right to amend or
terminate the Plan at any time.
ITEM 5. Interests of Named Experts and Counsel
--------------------------------------
The validity of the shares of Common Stock issuable under the PBG
Executive Income Deferral Program has been passed upon for the
Registrant by Pamela L. McGuire, Esq., Senior Vice President, General
Counsel and Secretary of the Registrant. Ms. McGuire holds options to
purchase shares of the Registrant's Common Stock.
ITEM 6. Indemnification of Directors and Officers
-----------------------------------------
Section 145 of the Delaware General Corporation Law provides that
a corporation may indemnify directors and officers as well as other
employees and individuals against expenses (including attorneys'
fees), judgments, fines and amounts paid in settlement actually and
reasonably incurred by such person in connection with any threatened,
3
<PAGE>
<PAGE>
pending or completed actions, suits or proceedings in which such
person is made a party by reason of such person being or having been a
director, officer, employee or agent to the Registrant. The Delaware
General Corporation Law provides that Section 145 is not exclusive of
other rights to which those seeking indemnification may be entitled
under any bylaw, agreement, vote of stockholders or disinterested
directors or otherwise. Article Eighth of the Registrant's
Certificate of Incorporation provides for indemnification by the
Registrant of its directors, officers and employees to the fullest
extent permitted by the Delaware General Corporation Law.
Section 102(b)(7) of the Delaware General Corporation Law permits
a corporation to provide in its certificate of incorporation that a
director of the corporation shall not be personally liable to the
corporation or its stockholders for monetary damages for breach of
fiduciary duty as a director, except for liability (i) for any breach
of the director's duty of loyalty to the corporation or its
stockholders, (ii) for acts or omissions not in good faith or which
involve intentional misconduct or a knowing violation of law, (iii)
for unlawful payments of dividends or unlawful stock repurchases,
redemptions or other distributions, or (iv) for any transaction from
which the director derived an improper personal benefit. Article
Ninth of the Registrant's Certificate of Incorporation provides for
such limitation of liability.
The Registrant maintains standard policies of insurance under
which coverage is provided (a) to its directors and officers against
loss rising from claims made by reason of breach of duty or other
wrongful act, and (b) to the Registrant with respect to payments which
may be made by the Registrant to such officers and directors pursuant
to the above indemnification provision or otherwise as a matter of
law.
ITEM 7. Exemption from Registration Claimed
-----------------------------------
Not applicable.
ITEM 8. Exhibits
--------
Exhibit No. Description
- ----------- -----------
4.1 Certificate of Incorporation (incorporated herein by
reference to Exhibit 3.1 to Form S-1.)
4.2 Bylaws (incorporated herein by reference to Exhibit
3.2 to Form S-1).
4.3 Amendments to Certificate of Incorporation
(incorporated herein by reference to Exhibit 3.3 to
Form S-1).
4.4 Form of common stock certificate (incorporated herein
by reference to Exhibit 4 to Form S-1).
5 Opinion and consent of Pamela C. McGuire, Esq., Senior
Vice President, General Counsel and Secretary of the
Registrant.
23.1 Consent of KPMG LLP.
23.2 Consent of Pamela C. McGuire, Esq., Senior Vice
President, General Counsel and Secretary of the
Registrant (included in her opinion filed as Exhibit 5
hereto).
24 Powers of Attorney.
4
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ITEM 9. Undertakings
------------
The undersigned Registrant hereby undertakes:
(1) to file, during any period in which offers or sales are
being made, a post-effective amendment to this Registration Statement:
(a) to include any prospectus required by Section 10(a)(3)
of the Securities Act;
(b) to reflect in the prospectus any facts or events
arising after the effective date of the registration statement
(or the most recent post-effective amendment thereof) which,
individually or in the aggregate, represent a fundamental change
in the information set forth in the registration statement.
Notwithstanding the foregoing, any increase or decrease in volume
of securities offered (if the total dollar value of securities
offered would not exceed that which was registered) and any
deviation from the low or high end of the estimated maximum
offering range may be reflected in the form of prospectus filed
with the SEC pursuant to Rule 424(b) if, in the aggregate, the
changes in volume and price represent no more than a 20% change
in the maximum aggregate offering price set forth in the
"Calculation of Registration Fee" table in the effective
registration statement; and
(c) to include any material information with respect to the
plan of distribution not previously disclosed in the registration
statement or any material change to such information in the
registration statement;
provided, however, that paragraphs (1)(a) and (1)(b) do not apply if
the information required to be included in a post-effective amendment
by those paragraphs is contained in periodic reports filed by the
Registrant pursuant to Section 13 or Section 15(d) of the Exchange Act
that are incorporated by reference in this Registration Statement.
(2) That, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be deemed to
be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold
at the termination of the offering.
The undersigned Registrant hereby undertakes that, for the
purposes of determining any liability under the Securities Act, each
filing of the Registrant's annual report pursuant to Section 13(a) or
Section 15(d) of the Exchange Act (and, where applicable, each filing
of an employee benefit plan's annual report pursuant to Section 15(d)
of the Exchange Act) that is incorporated by reference in this
Registration Statement shall be deemed to be a new registration
statement relating to the securities offered therein, and the offering
of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
5
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<PAGE>
Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling
persons of the Registrant pursuant to the foregoing provisions, or
otherwise, the Registrant has been advised that in the opinion of the
SEC such indemnification is against public policy as expressed in the
Securities Act and is, therefore, unenforceable. In the event that a
claim for indemnification against such liabilities (other than the
payment by the Registrant of expenses incurred or paid by a director,
officer or controlling person of the Registrant in the successful
defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the
securities being registered, the Registrant will, unless in the
opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question
whether such indemnification by it is against public policy as
expressed in the Securities Act and will be governed by the final
adjudication of such issue.
6
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<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act, the
Registrant certifies that it has reasonable grounds to believe that it
meets all of the requirements for filing on Form S-8 and has duly
caused this Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Somers, State
of New York, on May 26, 1999.
THE PEPSI BOTTLING GROUP, INC.
By: /s/ PAMELA C. MCGUIRE
Pamela C. McGuire
Senior Vice President, General Counsel
and Secretary
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
Signature Title Date
--------- ----- ----
/s/ Craig E. Weatherup Principal Executive Officer and May 26, 1999
Craig E. Weatherup Director (Principal Executive
Officer)
/s/ John T. Cahill Executive Vice President, Chief May 26, 1999
John T. Cahill Financial Officer and Director
(Principal Financial Officer)
/s/ Peter A. Bridgman Senior Vice President and May 26, 1999
Peter A. Bridgman Controller (Principal
Accounting Officer)
_________________________ Director May __, 1999
Linda G. Alvarado
*
- ------------------------- Director May 26, 1999
Barry H. Beracha
*
- ------------------------- Director May 26, 1999
Thomas W. Jones
*
- ------------------------- Director May 26, 1999
Thomas H. Kean
*
- ------------------------- Director May 26, 1999
Susan Kronick
*
- ------------------------- Director May 26, 1999
Robert F. Sharpe, Jr.
_________________________ Director May __, 1999
Karl M. von der Heyden
* By: Pamela C. McGuire, Attorney-in-Fact
/s/ PAMELA C. MCGUIRE
Pamela C. McGuire
<PAGE>
<PAGE>
EXHIBIT INDEX
Exhibit No. Description
- ----------- -----------
4.1 Certificate of Incorporation (incorporated herein by
reference to Exhibit 3.1 to Form S-1.)
4.2 Bylaws (incorporated herein by reference to Exhibit
3.2 to Form S-1).
4.3 Amendments to Certificate of Incorporation
(incorporated herein by reference to Exhibit 3.3 to
Form S-1).
4.4 Form of common stock certificate (incorporated herein
by reference to Exhibit 4 to Form S-1).
5 Opinion and consent of Pamela C. McGuire, Esq.,
Senior Vice President, General Counsel and
Secretary of the Registrant.
23.1 Consent of KPMG LLP.
23.2 Consent of Pamela C. McGuire, Esq., Senior Vice
President, General Counsel and Secretary of the
Registrant (included in her opinion filed as
Exhibit 5 hereto).
24 Powers of Attorney
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EXHIBIT 5
OPINION AND CONSENT OF PAMELA C. MCGUIRE
[The Pepsi Bottling Group, Inc. Letterhead]
May 26, 1999
The Board of Directors
The Pepsi Bottling Group, Inc.
One Pepsi Way
Somers, New York 10589
Dear Ladies and Gentlemen:
I have acted as general counsel to The Pepsi Bottling Group,
Inc., a Delaware corporation (the "Company'), in connection with the
registration on Form S-8 (the "Registration Statement") under the
Securities Act of 1933, as amended (the "Act"), of $20,731,921.58 of
deferred compensation obligations which represent unsecured
obligations of the Company to pay deferred compensation in the future
in accordance with the terms of the PBG Executive Income Deferral
Program (the "Plan").
I, or other attorneys employed by the Company, have reviewed such
corporate records, other documents and such questions of law and fact
as we have considered necessary or appropriate for the purposes of
this opinion.
Based on such review, I am of the opinion that the deferred
compensation obligations registered pursuant to the Registration
Statement to which this opinion is an exhibit, when incurred in
accordance with the terms of the Plan, will be valid and binding
obligations of the Company, enforceable in accordance with their
terms, except as enforcement thereof may be limited by bankruptcy,
insolvency or other laws of general applicability relating to or
affecting enforcement of creditor's rights or by general equity
principles.
I consent to the filing of this opinion letter as an exhibit to
the Registration Statement. In giving this consent, I do not admit
that I am in the category of persons whose consent is required under
Section 7 of the Act or the rules and regulations of the Securities
and Exchange Commission thereunder.
This opinion letter is rendered as of the date first written
above and I disclaim any obligation to advise you of facts,
circumstances, events or developments which hereafter may be brought
to our attention and which may alter, affect or modify the opinion
expressed herein. My opinion is expressly limited to the matters set
forth above and we render no opinion, whether by implication or
otherwise, as to any other matters relating to the Company, the Plan
or the Shares.
Very truly yours,
/s/ Pamela C. McGuire
Pamela C. McGuire, Esq.
EXHIBIT 23.1
CONSENT OF KPMG LLP
The Board of Directors
The Pepsi Bottling Group, Inc.:
We consent to incorporation by reference in the registration
statement on Form S-8 of The Pepsi Bottling Group, Inc. for the PBG
Executive Income Deferral Program of our report dated March 8, 1999,
relating to the combined balance sheets of The Pepsi Bottling Group,
Inc. as of December 26, 1998 and December 27, 1997, and the related
combined statement of operations, cash flows, and accumulated other
comprehensive loss for each of the fiscal years in the three-year
period ended December 26, 1998, including the related financial
statement schedule, which report appears in the Form S-1 registration
statement of The Pepsi Bottling Group, Inc.
/s/ KPMG LLP
New York, New York
May 26, 1999
EXHIBIT 24
THE PEPSI BOTTLING GROUP, INC.
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS that the undersigned director of
THE PEPSI BOTTLING GROUP, INC. (the "Company") hereby constitutes and
appoints Pamela C. McGuire and Steven M. Rapp, and each of them
severally, the true and lawful agents and attorneys-in-fact of the
undersigned with full power and authority in said agents and
attorneys-in-fact, and in any one of them, to sign for the undersigned
and in the name of the undersigned as director of the Company,
Registration Statements to be filed with the Securities and Exchange
Commission under the Securities Act of 1933, as amended, relating to
the registration of the shares of Common Stock of the Company that are
issuable under each of the plans listed below, and to sign any and all
amendments to such Registration Statement:
PBG Directors' Stock Plan,
PBG Stock Incentive Plan,
PBG 1999 Long-Term Incentive Plan,
PBG Executive Income Deferral Program, and
PBG Long Term Savings Program.
IN WITNESS WHEREOF, the undersigned has executed this Power of
Attorney on May 20, 1999.
/s/ BARRY H. BERACHA
Barry H. Beracha, Director
<PAGE>
<PAGE>
EXHIBIT 24
THE PEPSI BOTTLING GROUP, INC.
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS that the undersigned director of
THE PEPSI BOTTLING GROUP, INC. (the "Company") hereby constitutes and
appoints Pamela C. McGuire and Steven M. Rapp, and each of them
severally, the true and lawful agents and attorneys-in-fact of the
undersigned with full power and authority in said agents and
attorneys-in-fact, and in any one of them, to sign for the undersigned
and in the name of the undersigned as director of the Company,
Registration Statements to be filed with the Securities and Exchange
Commission under the Securities Act of 1933, as amended, relating to
the registration of the shares of Common Stock of the Company that are
issuable under each of the plans listed below, and to sign any and all
amendments to such Registration Statement:
PBG Directors' Stock Plan,
PBG Stock Incentive Plan,
PBG 1999 Long-Term Incentive Plan,
PBG Executive Income Deferral Program, and
PBG Long Term Savings Program.
IN WITNESS WHEREOF, the undersigned has executed this Power of
Attorney on May 20, 1999.
/s/ THOMAS W. JONES
Thomas W. Jones, Director
<PAGE>
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EXHIBIT 24
THE PEPSI BOTTLING GROUP, INC.
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS that the undersigned director of
THE PEPSI BOTTLING GROUP, INC. (the "Company") hereby constitutes and
appoints Pamela C. McGuire and Steven M. Rapp, and each of them
severally, the true and lawful agents and attorneys-in-fact of the
undersigned with full power and authority in said agents and
attorneys-in-fact, and in any one of them, to sign for the undersigned
and in the name of the undersigned as director of the Company,
Registration Statements to be filed with the Securities and Exchange
Commission under the Securities Act of 1933, as amended, relating to
the registration of the shares of Common Stock of the Company that are
issuable under each of the plans listed below, and to sign any and all
amendments to such Registration Statement:
PBG Directors' Stock Plan,
PBG Stock Incentive Plan,
PBG 1999 Long-Term Incentive Plan,
PBG Executive Income Deferral Program, and
PBG Long Term Savings Program.
IN WITNESS WHEREOF, the undersigned has executed this Power of
Attorney on May 20, 1999.
/s/ THOMAS H. KEAN
Thomas H. Kean, Director
<PAGE>
<PAGE>
EXHIBIT 24
THE PEPSI BOTTLING GROUP, INC.
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS that the undersigned director of
THE PEPSI BOTTLING GROUP, INC. (the "Company") hereby constitutes and
appoints Pamela C. McGuire and Steven M. Rapp, and each of them
severally, the true and lawful agents and attorneys-in-fact of the
undersigned with full power and authority in said agents and
attorneys-in-fact, and in any one of them, to sign for the undersigned
and in the name of the undersigned as director of the Company,
Registration Statements to be filed with the Securities and Exchange
Commission under the Securities Act of 1933, as amended, relating to
the registration of the shares of Common Stock of the Company that are
issuable under each of the plans listed below, and to sign any and all
amendments to such Registration Statement:
PBG Directors' Stock Plan,
PBG Stock Incentive Plan,
PBG 1999 Long-Term Incentive Plan,
PBG Executive Income Deferral Program, and
PBG Long Term Savings Program.
IN WITNESS WHEREOF, the undersigned has executed this Power of
Attorney on May 20, 1999.
/s/ SUSAN KRONICK
Susan Kronick, Director
<PAGE>
<PAGE>
EXHIBIT 24
THE PEPSI BOTTLING GROUP, INC.
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS that the undersigned director of
THE PEPSI BOTTLING GROUP, INC. (the "Company") hereby constitutes and
appoints Pamela C. McGuire and Steven M. Rapp, and each of them
severally, the true and lawful agents and attorneys-in-fact of the
undersigned with full power and authority in said agents and
attorneys-in-fact, and in any one of them, to sign for the undersigned
and in the name of the undersigned as director of the Company,
Registration Statements to be filed with the Securities and Exchange
Commission under the Securities Act of 1933, as amended, relating to
the registration of the shares of Common Stock of the Company that are
issuable under each of the plans listed below, and to sign any and all
amendments to such Registration Statement:
PBG Directors' Stock Plan,
PBG Stock Incentive Plan,
PBG 1999 Long-Term Incentive Plan,
PBG Executive Income Deferral Program, and
PBG Long Term Savings Program.
IN WITNESS WHEREOF, the undersigned has executed this Power of
Attorney on May 20 1999.
/s/ ROBERT F. SHARPE, JR.
Robert F. Sharpe, Jr., Director
