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AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON DECEMBER 6, 2000
Registration No. 333-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-4
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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WHITMAN CORPORATION
(Exact name of Registrant as specified in its charter)
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<S> <C> <C>
DELAWARE 2086 13-6167838
(State or other jurisdiction (Primary standard industrial (I.R.S. Employer
of incorporation or classification code number) Identification No.)
organization)
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3501 ALGONQUIN ROAD
ROLLING MEADOWS, ILLINOIS 60008
(847) 818-5000
(Address, including zip code, and telephone number, including area code, of
Registrant's principal executive offices)
STEVEN R. ANDREWS
SENIOR VICE PRESIDENT, SECRETARY AND GENERAL COUNSEL
WHITMAN CORPORATION
3501 ALGONQUIN ROAD
ROLLING MEADOWS, ILLINOIS 60008
(847) 818-5000
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
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COPY TO:
RICHARD E. ROBBINS
SIDLEY & AUSTIN
BANK ONE PLAZA
10 SOUTH DEARBORN STREET
CHICAGO, ILLINOIS 60603
(312) 853-7000
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APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: At various
times after the effective date of this Registration Statement.
If the securities being registered on this Form are being offered in
connection with the formation of a holding company and there is compliance with
General Instruction G, check the following box. [ ]
If this form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, check the following box and
list the Securities Act registration statement number of the earlier effective
registration statement for the same offering. [ ]
If this form is a post-effective amendment filed pursuant to Rule 462(d)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [ ]
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CALCULATION OF REGISTRATION FEE
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PROPOSED MAXIMUM PROPOSED MAXIMUM
TITLE OF EACH CLASS OF AMOUNT TO BE OFFERING PRICE AGGREGATE OFFERING AMOUNT OF
SECURITIES TO BE REGISTERED REGISTERED PER UNIT (1) PRICE (1) REGISTRATION FEE
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Common Stock........................ 5,000,000 $14.72 $73,600,000 $19,430.40
Preferred Stock Purchase Rights..... 5,000,000 (2) (2) (2)
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(1) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457(c) under the Securities Act of 1933, based upon the
average of the high and low sale prices of the Common Stock, as reported in
the consolidated reporting system on December 4, 2000.
(2) Rights to purchase Series A Junior Participating Preferred Stock initially
are attached to and trade with the shares of Common Stock being registered
hereby. Value attributable to the Rights, if any, is reflected in the market
price of the Common Stock.
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THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR DATES
AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL FILE
A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION STATEMENT
SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF THE
SECURITIES ACT OF 1933 OR UNTIL THIS REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(A),
MAY DETERMINE.
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SUBJECT TO COMPLETION, DATED DECEMBER 6, 2000
5,000,000 SHARES
WHITMAN CORPORATION
COMMON STOCK
We may issue up to 5,000,000 shares of our common stock from time to time in
connection with acquisitions of assets, businesses or securities.
This prospectus may also be used under certain limited circumstances in
connection with the resale of common stock that was originally issued pursuant
to this prospectus.
Our common stock is traded on the New York Stock Exchange under the symbol WH.
Our common stock is also traded on the Chicago Stock Exchange and the Pacific
Stock Exchange. On December [ ], 2000, the closing sale price of the common
stock in New York Stock Exchange composite transactions was $[ . ] per share.
This prospectus provides you with information about Whitman. We encourage you to
read it carefully. In addition, you may obtain information about Whitman from
documents that we have filed with the Securities and Exchange Commission.
This prospectus is dated December [ ], 2000. You should be aware that the
delivery of this prospectus and the sale of common stock pursuant to this
prospectus will not in any way create an implication that the information
contained in this prospectus is accurate or complete at any time after December
[ ], 2000.
We are not making an offer of common stock in any state where the offer is not
permitted.
NEITHER THE SECURITIES AND EXCHANGE COMMISSION NOR ANY STATE SECURITIES
COMMISSION HAS APPROVED OR DISAPPROVED THE COMMON STOCK TO BE ISSUED UNDER THIS
PROSPECTUS OR DETERMINED IF THIS PROSPECTUS IS TRUTHFUL OR COMPLETE. ANY
REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
The date of this prospectus is December [ ], 2000
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TABLE OF CONTENTS
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About This Prospectus....................................... 3
Whitman..................................................... 3
Where You Can Find More Information......................... 5
Special Note On Forward-Looking Statements.................. 6
Securities Covered By This Prospectus....................... 7
Description Of Common Stock................................. 8
PepsiCo Shareholder Agreement............................... 10
Pohlad Shareholder Agreement................................ 15
Legal Matters............................................... 18
Experts..................................................... 18
</TABLE>
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ABOUT THIS PROSPECTUS
This prospectus is part of a registration statement that we filed with the
Securities and Exchange Commission, which is known as the SEC, utilizing a
"shelf" registration process. Under this shelf registration process, we may sell
up to 5,000,000 shares of our common stock from time to time in connection with
the acquisition of assets, businesses or securities.
You should read carefully both this prospectus and any prospectus
supplement together with the additional information described under the heading
"Where You Can Find More Information."
The registration statement of which this prospectus is a part (including
the exhibits) contains additional important information about Whitman and our
common stock. That registration statement can be read at the web site of the SEC
or at the SEC offices mentioned under the heading "Where You Can Find More
Information."
You should not assume that the information in this prospectus or any
prospectus supplement is accurate as of any date other than the date on the
front of each of those documents.
WHITMAN
We manufacture, package, sell and distribute carbonated and non-carbonated
Pepsi-Cola beverages and a variety of other non-alcoholic beverages in the
United States, Puerto Rica, Jamaica and Central Europe through our subsidiaries,
Pepsi-Cola General Bottlers, Inc. (which we refer to as Pepsi General) and
PepsiAmericas, Inc.
In 1999, we entered into a new business relationship with PepsiCo, Inc.
pursuant to which Pepsi General sold its franchises in Marion, Virginia;
Princeton, West Virginia; and the St. Petersburg area of Russia to PepsiCo and
Pepsi General acquired from PepsiCo its domestic franchises in Cleveland, Ohio;
Dayton, Ohio; Indianapolis and portions of southern Indiana; and St. Louis,
Missouri; and international franchises in Hungary, the Czech Republic, the
Republic of Slovakia and Poland. By virtue of these transactions, PepsiCo became
our largest shareholder. We have entered into a shareholder agreement with
PepsiCo. See "PepsiCo Shareholder Agreement."
PepsiAmericas became one of our subsidiaries in 2000, when it merged with
another of our subsidiaries. Upon completion of the PepsiAmericas merger, Robert
C. Pohlad, the Chairman and Chief Executive Officer of PepsiAmericas, became our
Chief Executive Officer and a member of our Board of Directors. Mr. Pohlad is
the President of Pohlad Companies and he also owns one-third of its stock.
Pohlad Companies and PepsiCo hold all of the membership interests in Dakota
Holdings LLC, which in turn held a controlling interest in PepsiAmericas prior
to the PepsiAmericas Merger. We have entered into a shareholder agreement with
Mr. Pohlad, Pohlad Companies and Dakota Holdings. See "Pohlad Shareholder
Agreement."
We account for about 21 percent of all Pepsi-Cola products sold in the
United States. We serve a significant portion of an eighteen state region,
primarily in the Midwest, with a population of approximately 45 million people.
In addition, we serve a population of
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approximately 6.5 million people in our territories in Puerto Rico and Jamaica
and approximately 65 million people in our territories in Poland, Hungary, the
Czech Republic and the Republic of Slovakia.
We sell a variety of brands that we bottle under licenses from PepsiCo and
PepsiCo joint ventures. The brands we distribute in the United States under
these licenses include Pepsi, Diet Pepsi, Mountain Dew, Pepsi One, Sierra Mist,
Slice, Mug Root Beer, Wild Cherry Pepsi, Caffeine Free Pepsi, Caffeine Free Diet
Pepsi, Diet Mountain Dew, All Sport, Ocean Spray, Lipton Iced Teas, Starbucks
Frappuccino and Aquafina. In some territories we manufacture, package, sell and
distribute products under brands we license from companies other than PepsiCo.
The brands we distribute in the United States under licenses from brand owners
include Dr. Pepper, Diet Dr. Pepper, 7Up, Diet 7Up, Hawaiian Punch, Country
Time, Citrus Hill, Avalon, Sunny Delight, Juice Tyme, Seagram mixers, Cadbury
mixers, Crush, Sunkist, Monarch and Yoo-Hoo. This brand line-up is not present
in every location, but is representative of offerings in the United States.
We distribute beer and malt beverages through a joint venture in portions
of Louisiana under agreements with the Miller Brewing company, Heineken USA
Incorporated and other brewers or licensors.
The brands we distribute in our international markets under licenses from
PepsiCo include Pepsi, Pepsi Max, Pepsi Light, Mirinda, 7Up, 7Up Light,
Tropicana, Ting, Old Jamaica Ginger Beer and Desnoes and Geddes flavors in
Jamaica. The brands we distribute in our international markets under licenses
from other brand owners other than PepsiCo include Schweppes Tonic, Schweppes
Soda, Schweppes Lemon Soda, Schweppes Orange, Schweppes Water, Dr. Pepper,
Canada Dry Ginger Ale, Hortex Juices, Rauch Juices and Lipton Iced Teas. This
brand line-up is not present in each of our international markets.
In addition to brands licensed from others, we own and distribute Toma
branded products, including carbonated soft drinks, juices and water, in the
Czech Republic and Toma branded water in Slovakia. Desnoes and Geddes ("D&G")
brands, including Ting, Old Jamaica Ginger Beer and D&G Flavors, are owned by
PepsiAmericas outside the Caribbean. We do not currently sell any D&G branded
products outside the Caribbean.
While we manage all phases of our operations (including pricing of our
products), we exchange information regarding production, marketing and
distribution with PepsiCo, which benefits both companies' respective efforts to
lower costs, improve productivity and increase product sales.
The owners of beverage brands either manufacture and sell products
themselves or appoint bottlers to sell, distribute and, in some cases,
manufacture these products under license. Brand owners, such as PepsiCo,
generally own both the beverage trademarks and the secret formulas for the
concentrates, which they also manufacture and sell to their licensed bottlers.
Brand owners also develop new products and packaging for use by their bottlers.
Brand owners develop national marketing, promotion and advertising programs to
support their brands and brand image, and coordinate selling efforts with
respect to national fountain, supermarket and mass merchandising accounts. They
also provide local marketing support to their bottlers.
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Bottlers such as we are generally responsible for manufacturing, packaging,
selling and distributing products under the brand names they license from brand
owners in their exclusive territories. For carbonated soft drink products, the
bottler combines soft drink concentrate with sweeteners and carbonated water and
packages this mixture in bottles or cans. Bottlers may also have licenses to
manufacture syrup for sale to fountain accounts. Under these licenses, bottlers
combine soft drink concentrate with sweeteners to manufacture syrup for delivery
to fountain customers. For non-carbonated beverages, the bottler either
manufactures and packages the beverages or purchases the beverages in finished
form and sells them through its distribution system.
The primary distribution channels for the retail sale of carbonated soft
drink products are supermarkets, mass merchandisers, vending machines,
convenience stores, gas stations, fountain channels, such as restaurants or
cafeterias, and other channels, such as small groceries, drug stores and
educational institutions. The largest channel in the United States is
supermarkets, but our fastest growing channels have been mass merchandisers, the
cold drink channel, which includes sales through vending machines, coolers and
fountain equipment and convenience stores and gas stations.
Depending upon the size of the bottler and the particular market, a bottler
delivers products through these channels using either a direct-to-store delivery
system or a warehouse distribution system. In its exclusive territories, each
bottler is responsible for selling products and providing timely service to its
existing customers and identifying and obtaining new customers. Bottlers are
also responsible for local advertising and marketing, as well as the execution
in their territories of national and regional selling programs instituted by
brand owners. The bottling business is capital intensive. Manufacturing
operations require specialized high-speed equipment, and distribution requires
extensive placement of fountain equipment and cold drink vending machines and
coolers, as well as investment in trucks and warehouse facilities.
We previously engaged in the refrigeration systems and equipment business
conducted through Hussmann International, Inc. and in the automotive services
business through Midas, Inc. On January 30, 1998, we distributed to our
shareholders all of the common stock of Hussmann and Midas in tax-free
spin-offs.
Our principal executive offices are located at 3501 Algonquin Road, Rolling
Meadows, Illinois 60008, and our telephone number is (847) 818-5000.
WHERE YOU CAN FIND MORE INFORMATION
We file annual, quarterly and special reports and other information with
the SEC. You may read and copy any document we file at the SEC's public
reference room at 450 Fifth Street, N.W., Washington, D.C. 20549. Please call
the SEC at (800) SEC-0330 for further information on the operation of the public
reference room.
Our SEC filings are also available to the public over the Internet on the
web site of the SEC at http://www.sec.gov and at the office of the New York
Stock Exchange at 20 Broad Street, New York, New York 10005. For further
information on obtaining copies of our public filings at the New York Stock
Exchange, please call (212) 656-5060.
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The SEC allows us to "incorporate by reference" the information we file
with them, which means that we can disclose important information to you by
referring you to those documents. The information incorporated by reference is
considered part of this prospectus, and information that we file later with the
SEC will automatically update and supersede this information. We incorporate by
reference into this prospectus the following documents which we filed or may
file with the SEC (SEC file number 001-15019):
- the Annual Report on Form 10-K for our fiscal year ended January 1, 2000;
- the Quarterly Reports on Form 10-Q for our fiscal quarters ended April 1,
July 1, and September 30, 2000;
- the Current Reports on Form 8-K we filed with the SEC on August 23 and
December 1, 2000;
- the descriptions of our common stock and the associated preferred stock
purchase rights included in registration statements we filed with the SEC
under the Securities Exchange Act of 1934, including any amendment or
report filed to update either description; and
- any future filings that we make under Section 13(a), 13(c), 14 or 15(d)
of the Securities Exchange Act of 1934 until we sell all of the common
stock offered by this prospectus.
You may request a copy of these filings at no cost by writing or calling
our Corporate Communications Department at the following address or telephone
number: Whitman Corporation, 3501 Algonquin Road, Rolling Meadows, Illinois
60008, telephone: (847) 818-5000.
You should only rely on the information incorporated by reference or
provided in this prospectus and any prospectus supplement. We have not
authorized anyone else to provide you with additional or different information.
SPECIAL NOTE ON FORWARD-LOOKING STATEMENTS
This prospectus contains or incorporates by reference forward-looking
statements made pursuant to the safe harbor provisions of Section 27A of the
Securities Act of 1933 and Section 21E of the Securities Exchange Act of 1934
that reflect management's expectations, estimates and assumptions, based on
information available at the time this prospectus, or any document that is
incorporated into this prospectus by reference, was prepared. These
forward-looking statements include, but are not limited to, statements regarding
future events, plans, goals, objectives and expectations. When used in this
prospectus, the words "anticipate," "believe," "estimate," "expect," "plan,"
"intend" and similar expressions are intended to identify forward-looking
statements.
Forward-looking statements involve risks, uncertainties and other factors
which may cause our actual performance or achievements to be materially
different from any future results, performance or achievements expressed or
implied by those statements. These risks, uncertainties and other factors
include, but are not limited to, the following: competition, including product
and pricing pressures; changing trends in consumer tastes; changes in our
relationship and/or support programs with PepsiCo and other brand owners;
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market acceptance of new product offerings; weather conditions; cost and
availability of raw materials; availability of capital; labor and employee
benefit costs; unfavorable interest rate and currency fluctuations; costs of
legal proceedings; outcomes of environmental claims and litigation; and general
economic, business and political conditions in the countries and territories
where we operate. Others may be discussed elsewhere in a prospectus supplement
or in the documents we incorporate into this prospectus by reference. These
events and uncertainties are difficult or impossible to predict accurately and
many are beyond our control.
The inclusion of forward-looking statements should not be regarded as a
representation that the future expectations, estimates and assumptions we
contemplate will be achieved. Furthermore, past performance in operations and
share price is not necessarily predictive of future performance. We assume no
obligation to publicly release the result of any revisions that may be made to
any forward-looking statements to reflect events or circumstances after the date
of those statements or to reflect the occurrence of anticipated or unanticipated
events. You are cautioned not to rely on forward-looking statements.
SECURITIES COVERED BY THIS PROSPECTUS
This prospectus covers shares of common stock that we may issue from time
to time upon the completion of acquisitions of assets, businesses or securities.
It also covers shares that we may issue upon the payment of dividends on, or
conversion of shares of, preferred stock or other equity interests or the
conversion of, or payment of interest on, convertible notes issued in connection
with those acquisitions. In addition to the shares of common stock offered by
this prospectus, the consideration we may offer in these acquisitions may
include cash, debt or other securities or interests (which may be convertible
into shares of common stock covered by this prospectus), or our assumption of
liabilities of the assets, businesses, or securities being acquired or of their
owners, or a combination thereof.
We expect that the terms of acquisitions involving the issuance of the
shares of common stock covered by this prospectus will be determined by direct
negotiations with the owners or controlling persons of the assets, businesses or
securities to be acquired, and that the shares of common stock issued will be
valued at prices reasonably related to the market price of the common stock
either at or about the time an agreement is entered into concerning the terms of
the acquisition or at or about the time the shares are delivered. No
underwriting discounts or commissions will be paid, although finder fees and
certain other fees may be paid in connection with certain acquisitions. Any
person receiving these kinds of fees may be deemed to be an "underwriter" within
the meaning of the Securities Act of 1933, and any profit on the resale of
shares of common stock purchased by them may be deemed to be underwriting
commissions or discounts under the Securities Act.
We may, from time to time, in an effort to maintain an orderly market in
the common stock or for other reasons, negotiate agreements with persons
receiving common stock covered by this prospectus that will limit the number of
shares that they may sell at specified intervals. These agreements may be more
restrictive than restrictions on sales made pursuant to the exemption from the
registration requirements of the Securities Act, including the requirements
under Rule 144 or Rule 145(d), and certain parties to these
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agreements may not otherwise be subject to those Securities Act requirements. We
anticipate that, in general, any of these agreements will be of limited duration
and will permit the recipients of common stock issued in connection with
acquisitions to sell up to a specified number of shares per business day or
days.
This prospectus may also be used, with our consent, by persons who have
received or will receive from us common stock covered by this prospectus and who
may wish to sell that stock under circumstances requiring or making desirable
its use. This prospectus may also be used, with our consent, by pledgees, donees
or assignees of these persons. Our consent to any such use may be conditioned
upon an agreement not to offer more than a specified number of shares after we
have supplemented or amended this prospectus. We may agree to use our best
efforts to prepare and file supplements or amendments described in the
immediately preceding sentence at certain intervals. We may require that any
resale offering as described in this paragraph be effected in an organized
manner through securities dealers.
Sales by means of this prospectus may be made from time to time privately
at prices to be individually negotiated with the purchasers, or publicly through
transactions in the over-the-counter market or on a securities exchange (which
may involve block transactions), at prices reasonably related to market prices
at or about the time of sale or at negotiated prices. Broker-dealers
participating in these transactions may act as agent or as principal and, when
acting as agent, may receive commissions from the purchasers as well as from the
sellers (if also acting as agent for the purchasers). We may indemnify any
broker-dealer participating in these transactions against certain liabilities,
including liabilities under the Securities Act. Profits, commissions and
discounts on sales by persons who may be deemed to be underwriters within the
meaning of the Securities Act may be deemed underwriting compensation under the
Securities Act.
Shareholders may also offer shares of common stock covered by this
prospectus by means of prospectuses under other registration statements or
pursuant to exemptions from the registration requirements of the Securities Act,
including sales which meet the requirements of Rule 144 or Rule 145(d) under the
Securities Act. Shareholders should seek the advice of their own counsel with
respect to the legal requirements for such sales.
DESCRIPTION OF COMMON STOCK
Under our Certificate of Incorporation, we are authorized to issue 350
million shares of common stock, par value $0.01 per share, and 12.5 million
shares of preferred stock, par value $0.01 per share. As of November 30, 2000,
136,368,706 shares of common stock (excluding treasury shares) were issued and
outstanding and no shares of preferred stock were issued and outstanding. We
will issue shares of common stock in connection with the PepsiAmericas merger.
The total number of shares that we will issue will depend on a variety of
factors, including the performance of PepsiAmericas through the end of 2002. We
have reserved for the issuance of up to 33,500,000 shares of common stock in
connection with the PepsiAmericas merger. In addition, as of November 30, 2000,
our Board of Directors had approved the issuance of 19,140,200 shares of common
stock under our equity incentive plans, and of that number 11,849,019 were
subject to issuance under
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outstanding stock options. The number of authorized shares of preferred stock
includes 3.5 million authorized shares of Series A Junior Participating
Preferred Stock issuable pursuant to the Rights Agreement that we entered into
with First Chicago Trust Company of New York, none of which is currently
outstanding. See "- Stock Purchase Rights."
COMMON STOCK
Subject to the rights of the holders of any preferred stock, each record
holder of common stock on the applicable record date is entitled to receive
dividends as our Board of Directors may declare, and, in the event of
liquidation, to share pro rata in any distribution of our assets after payment
of our liabilities. Each holder of common stock is entitled to one vote for each
share held of record on the applicable record date on all matters presented to a
vote of shareholders. Our Certificate of Incorporation does not provide for
cumulative voting in the election of directors, which means that holders of more
than one half of the outstanding shares of our voting securities will be able to
elect all of the directors then standing for election and holders of the
remaining shares will not be able to elect any directors. The outstanding common
stock is, and the shares of common stock offered by this prospectus will be,
fully paid and nonassessable. EquiServe Trust Company, N.A. is the registrar and
transfer agent for our common stock.
STOCK PURCHASE RIGHTS
Each outstanding share of common stock includes, and each share of common
stock offered by this prospectus will include, one preferred stock purchase
right provided under the rights agreement.
If there is a public announcement that a person or group has become an
acquiring person (which is defined as the beneficial owner of 15% or more of all
outstanding shares of our common stock) or ten business days after the
commencement or announcement of a tender or exchange offer which would result in
a person or group becoming an acquiring person, whichever is earlier, we will
issue and distribute separate certificates which will represent the rights.
After the distribution of the rights certificates, each right may be exercised
to purchase from us one one-hundredth of a share of Series A Preferred Stock for
$61.25, subject to adjustment. The Series A Preferred Stock is nonredeemable and
will have 100 votes per share (subject to adjustment). We have designated 3.5
million shares of Series A Preferred Stock for issuance upon exercise of the
rights.
The rights agreement specifically excludes each of the following persons
from becoming an acquiring person under the circumstances described below;
similarly, under those circumstances, we will not issue or distribute rights
certificates:
- PepsiCo and its affiliates to the extent they own shares of our common
stock held or acquired by them in connection with our 1999 transactions
with PepsiCo, which are described under the heading "Whitman" or as
permitted by our shareholder agreement with PepsiCo, which is described
under the heading "PepsiCo Shareholder Agreement;"
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- any transferee who acquires beneficial ownership of our common stock from
PepsiCo pursuant to provisions of the PepsiCo shareholder agreement;
- Mr. Pohlad, Pohlad Companies and their respective affiliates to the
extent they own shares of our common stock acquired pursuant to, or in
connection with, the PepsiAmericas merger, which is described under the
heading "Whitman" or as permitted by our shareholder agreement with Mr.
Pohlad, Pohlad Companies and Dakota Holdings, which is described under
the heading "Pohlad Shareholder Agreement;" and
- Dakota Holdings for so long as it is owned solely by Mr. Pohlad, PepsiCo
and/or their respective affiliates.
If a person or group becomes an acquiring person, then each right not owned
by the acquiring person will entitle its holder to purchase a limited number of
shares of our common stock at a 50% discount to the then-current market price of
our common stock. If, after a person becomes an acquiring person, we are
involved in a merger or other business combination transaction or we sell more
than 50% of our assets or earning power, each right will entitle the holder to
purchase a limited number of shares of common stock of the acquiring company at
a 50% discount to the then-current market price of that stock. The rights will
have no voting rights and will expire ten years from the date of the rights
agreement. Our Board of Directors may, at any time after any person becomes an
acquiring person and before that person has become the beneficial owner of 50%
or more of our common stock then outstanding, exchange each right for one share
of our common stock.
Our Board of Directors may redeem all the rights for 1c per right at any
time before a person or group becomes an acquiring person. The rights agreement
may have the effect of deterring, delaying or preventing a takeover of Whitman
without the consent of our Board of Directors.
One right will be issued in respect of each share of common stock issued
before the earlier of May 20, 2009 or the redemption of the rights. As of the
date of this prospectus, the rights are not exercisable, certificates
representing the rights have not been issued and the rights automatically trade
with our common stock.
PEPSICO SHAREHOLDER AGREEMENT
In 1999, PepsiCo acquired shares of our common stock as part of the
transactions described under the heading "Whitman." We entered into a
shareholder agreement with PepsiCo at that time. That agreement was amended and
restated when we completed the PepsiAmericas merger. A summary description of
the material terms of the agreement is set forth below. The agreement is
included as an exhibit to the registration statement of which this prospectus is
a part. See "Where You Can Find More Information."
OWNERSHIP OF WHITMAN COMMON STOCK
The PepsiCo shareholder agreement generally limits PepsiCo and its
affiliates to a maximum ownership percentage of 49.0% of the voting power of
Whitman. We will sometimes refer to this limit as the "PepsiCo maximum ownership
percentage." It also
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limits PepsiCo and its affiliates, together with Mr. Pohlad, his affiliates and
his family, to a combined maximum ownership percentage of 49.9% of the voting
power of Whitman. We will sometimes refer to this limit as the "combined maximum
ownership percentage." If one of the percentage limits is exceeded due to an
acquisition of our securities which is permitted by the PepsiCo shareholder
agreement, that percentage will be increased to allow for the permitted
acquisition.
Acquisitions by PepsiCo and its affiliates permitted under the PepsiCo
shareholder agreement include:
- any transaction that would not result in the PepsiCo maximum ownership
percentage or the combined maximum ownership percentage being exceeded;
- any tender offer or exchange offer by PepsiCo or its affiliates for all
of our voting securities not beneficially owned by PepsiCo and its
affiliates at a price not less than the minimum price calculated as set
forth in the PepsiCo shareholder agreement;
- any merger or business combination in which all our voting securities not
beneficially owned by PepsiCo and its affiliates are exchanged or
converted at a price not less than the minimum price calculated as set
forth in the PepsiCo shareholder agreement;
- any merger or business combination approved by our shareholders,
excluding PepsiCo and its affiliates;
- a transaction approved by a majority of our independent directors; and
- an acquisition of our voting securities by Mr. Pohlad, his affiliates or
his family that is approved by the Affiliated Transaction Committee of
our Board of Directors or, if that committee does not then exist, by a
committee composed entirely of independent directors.
For purposes of the PepsiCo shareholder agreement and the Pohlad
shareholder agreement, independent directors are directors who are not, and
within the past two years have not been, affiliated with PepsiCo and its
affiliates, or with Mr. Pohlad, his affiliates and his family, and who are not,
and within the past two years have not been, officers, employees, consultants or
advisors to Whitman.
The minimum price referred to above is the highest average of Whitman
closing prices on the New York Stock Exchange over any 20 consecutive trading
day period during the 18 months preceding the announcement of the offer or
business combination in question.
CONDUCT BY PEPSICO
The PepsiCo shareholder agreement provides that PepsiCo and its affiliates
generally may not take any of the following actions without the prior approval
of a majority of our independent directors:
- acquire, propose to acquire, disclose an intention to acquire, or offer
or agree to acquire, beneficial ownership of any Whitman voting security
that would cause the PepsiCo maximum ownership percentage or the combined
maximum ownership
11
<PAGE> 13
percentage to be exceeded, other than pursuant to an acquisition permitted by
the PepsiCo shareholder agreement;
- form, join or in any way participate in a group that would be required to
file a statement on Schedule 13D as a "person" under Section 13(d)(3) of
the Securities Exchange Act of 1934 with respect to any of the voting
securities of Whitman or its subsidiaries if the group's ownership of
Whitman voting securities would exceed the PepsiCo maximum ownership
percentage; or
- initiate a merger, acquisition or other business combination transaction
relating to Whitman, other than a combination of a party unaffiliated
with PepsiCo with Whitman that would not be a permitted acquisition under
the PepsiCo shareholder agreement.
If at any time PepsiCo becomes aware that the ownership of PepsiCo and its
affiliates of our voting securities exceeds the PepsiCo maximum ownership
percentage, except as specifically permitted under the PepsiCo shareholder
agreement, PepsiCo and its affiliates must promptly take all action necessary to
reduce the amount of our voting securities beneficially owned by them to a level
below the PepsiCo maximum ownership percentage.
If at any time PepsiCo becomes aware that the combined maximum ownership
percentage has been exceeded as a result of a reduction in the number of Whitman
voting securities outstanding, PepsiCo and its affiliates must take specified
action to reduce their ownership, though, in taking those actions, the reduction
need only be pro rata based on the relative ownership of PepsiCo and its
affiliates, on the one hand, and Mr. Pohlad, his affiliates and his family, on
the other hand.
If at any time PepsiCo becomes aware that the combined maximum ownership
percentage has been exceeded (other than as a result of reduction in the number
of Whitman voting securities outstanding), PepsiCo and its affiliates must
promptly take action to reduce the amount of Whitman voting securities
beneficially owned by them so that the combined maximum ownership percentage is
not exceeded, though, if the reason that the combined maximum ownership
percentage has been exceeded is due to an acquisition of Whitman voting
securities by Mr. Pohlad, his affiliates or his family, PepsiCo and its
affiliates will not be required to reduce their ownership percentage.
NO AGREEMENTS WITH THE POHLAD GROUP; DAKOTA HOLDINGS
The PepsiCo shareholder agreement provides that none of PepsiCo or its
affiliates may, directly or indirectly, enter into any agreement or commitment
with Mr. Pohlad, any of his affiliates or any member of his family with respect
to the holding, voting, acquisition or disposition of Whitman voting securities.
That prohibition specifically excludes the amended and restated limited
liability company agreement of Dakota Holdings so long as (1) that limited
liability company agreement provides that PepsiCo and its affiliates on the one
hand, and Mr. Pohlad and his affiliates on the other hand, ultimately have sole
power with respect to the voting of specified numbers of Whitman voting
securities held by Dakota Holdings and (2) Dakota Holdings takes no action to
acquire beneficial ownership of any
12
<PAGE> 14
additional voting securities of Whitman except as permitted by the PepsiCo
shareholder agreement.
TRANSFERS BY PEPSICO
PepsiCo and its affiliates may transfer any of their Whitman voting
securities without restriction except for transfers to transferees who would own
20% or more of our voting securities after the transfer. We will refer to such a
transferee as a "significant transferee." PepsiCo and its affiliates may effect
a transfer to a significant transferee with the prior written consent of a
majority of our independent directors. PepsiCo and its affiliates may also
transfer our voting securities to any significant transferee without restriction
and without obtaining consent if, at the time of the transfer, PepsiCo and its
affiliates beneficially own at least 20% of the outstanding voting securities of
the significant transferee and no other person beneficially owns a greater
percentage of the significant transferee than PepsiCo and its affiliates.
However, in this situation PepsiCo and its affiliates will need to obtain the
prior written consent of a majority of the independent directors of Whitman to
transfer any voting securities of the significant transferee if, at the time of
that transfer, the significant transferee owns greater than 20% of our voting
securities and that transfer would result in PepsiCo and its affiliates
beneficially owning less than 20% of the voting securities of the significant
transferee or any other person beneficially owning a greater percentage of the
significant transferee than PepsiCo and its affiliates. None of the foregoing
restrictions will apply to (1) a transfer by PepsiCo or any of its affiliates in
a public offering where reasonable efforts are made to achieve a wide
distribution of offered securities, (2) a liquidation of Dakota Holdings or
other distribution of assets to its members in proportion to their capital
accounts or (3) a transfer of our voting securities among PepsiCo and its
affiliates, provided that any transferee agrees in writing prior to the transfer
to be bound by the terms of the PepsiCo shareholder agreement.
SPECIAL MEETINGS REQUESTED BY PEPSICO
PepsiCo and its affiliates may request a special meeting of our
shareholders in accordance with our By-Laws or may nominate an alternative slate
of directors to the slate proposed by our Board of Directors at any annual
meeting of our shareholders. The PepsiCo shareholder agreement provides that if
PepsiCo takes either action, we may not, without PepsiCo's consent, from the
date of receipt of the request or nomination, as the case may be, until the
adjournment of the requested special meeting or the annual meeting, as the case
may be, take any of the following actions:
- effect a material change in our capital structure;
- declare or pay a dividend, other than any regular dividend;
- materially increase the compensation of any executive officer; or
- take any material action not in the ordinary course of business.
However, we are not restricted in our ability to comply with commitments
entered into prior to the date of the request.
13
<PAGE> 15
CERTIFICATE OF INCORPORATION, BY-LAWS AND RIGHTS AGREEMENT
The PepsiCo shareholder agreement provides that neither we nor PepsiCo or
its affiliates can attempt to amend, alter or repeal any provision of our
Certificate of Incorporation or By-Laws in any manner inconsistent with the
terms of the PepsiCo shareholder agreement. If the provisions of the PepsiCo
shareholder agreement conflict with the provisions of our Certificate of
Incorporation or By-Laws, Whitman and PepsiCo are obligated to use all
reasonable efforts, consistent with their fiduciary responsibilities, to cause
the provisions of our Certificate of Incorporation and By-Laws to conform to the
PepsiCo shareholder agreement.
The PepsiCo shareholder agreement also provides that we may not amend any
provision of the rights agreement in any manner which is inconsistent with the
PepsiCo shareholder agreement, the 1999 agreement with PepsiCo or the agreement
providing for the PepsiAmericas merger and which adversely affects the rights of
PepsiCo and its affiliates under the terms of the PepsiCo shareholder agreement.
In addition, we may not adopt any new rights agreement which is inconsistent
with the terms of the PepsiCo shareholder agreement, the 1999 agreement with
PepsiCo or the agreement providing for the PepsiAmericas merger and which
adversely affects the rights of PepsiCo and its affiliates under the terms of
the PepsiCo shareholder agreement.
TERM
The PepsiCo shareholder agreement will remain in effect until it is
terminated on the earliest to occur of:
- the date on which PepsiCo and its affiliates' ownership of our voting
securities falls below 15%;
- subject to the provisions described in the following paragraph, the date
on which a permitted acquisition is consummated which results in PepsiCo
and its affiliates, together with Mr. Pohlad, his affiliates and his
family, beneficially owning 75% or more of the voting power of Whitman;
- two years from the first date on which the following two conditions are
met: (a) PepsiCo and its affiliates, together with Mr. Pohlad, his
affiliates and his family, beneficially own more than 55% but less than
75% of the voting power of Whitman and (b) PepsiCo and its affiliates
have consummated a tender offer or exchange offer for our securities at a
price not less than the minimum price pursuant to which at least 10% of
the voting power of Whitman not beneficially owned prior to that offer by
PepsiCo and its affiliates, or Mr. Pohlad, his affiliates or his family,
was acquired; and
- a termination date that is mutually agreed upon by Whitman and PepsiCo.
For 90 days after the consummation of a permitted acquisition pursuant to
which PepsiCo and its affiliates, together with Mr. Pohlad, his affiliates and
his family, become the
14
<PAGE> 16
beneficial owner of 75% or more of our common stock, we may not, without
PepsiCo's consent, take any action or enter into any agreement which:
- restricts the acquisition by PepsiCo and its affiliates of any of our
voting securities;
- restricts in any manner the transfer of any of our voting securities by
PepsiCo and its affiliates;
- restricts any right of PepsiCo and its affiliates to initiate a merger,
acquisition or business combination relating to us;
- otherwise restricts in any manner the ability of PepsiCo and its
affiliates to take any action with respect to our voting securities,
including amending the rights agreement to provide for any such
restriction;
- effects a material change in our capital structure;
- declares or pays a dividend other than any regular dividend;
- materially increases the compensation of any executive officer; or
- is a material action not in the ordinary course of business.
However, we are not restricted in our ability to comply with commitments
entered into prior to the date of the permitted acquisition.
POHLAD SHAREHOLDER AGREEMENT
We entered into a shareholder agreement with Mr. Pohlad, Pohlad Companies
and Dakota Holdings upon completion of the PepsiAmericas merger. A summary
description of the material terms of that agreement is set forth below. The
agreement is included as an exhibit to the registration statement of which this
prospectus is a part. See "Where You Can Find More Information."
OWNERSHIP OF WHITMAN COMMON STOCK
The Pohlad shareholder agreement generally limits Mr. Pohlad, his
affiliates and his family to a maximum ownership percentage equal to the
aggregate percentage of the voting power of Whitman held by them upon completion
of the PepsiAmericas merger. We will sometimes refer to this limit as the
"Pohlad maximum ownership percentage." It also limits Mr. Pohlad, his affiliates
and his family, together with PepsiCo and its affiliates, to a combined maximum
ownership percentage of 49.9% of the voting power of Whitman. This is the same
combined maximum ownership percentage referenced above in the description of the
PepsiCo shareholder agreement. If one of the percentage limits is exceeded due
to an acquisition of Whitman securities which is permitted by the Pohlad
shareholder agreement, that percentage will be increased to allow for the
permitted acquisition.
Acquisitions by Mr. Pohlad, his affiliates, his family and Dakota Holdings
permitted under the Pohlad shareholder agreement include:
- any transaction that would not result in the Pohlad maximum ownership
percentage or the combined maximum ownership percentage being exceeded;
15
<PAGE> 17
- any acquisition of Whitman voting securities that is contemplated by the
agreement providing for the PepsiAmericas merger;
- any acquisition pursuant to the right of Pohlad Companies to acquire
Whitman common stock with a value of $25 million from PepsiCo and its
affiliates;
- a transaction (including the grant of any options to purchase Whitman
common stock granted to Mr. Pohlad, any of his affiliates or any member
of his family) approved by the Affiliated Transaction Committee of our
Board of Directors or, if that committee does not then exist, by a
committee composed entirely of independent directors; and
- any acquisition of Whitman voting securities by PepsiCo or its affiliates
permitted by the PepsiCo shareholder agreement.
CONDUCT BY THE POHLAD GROUP
The Pohlad shareholder agreement provides that Mr. Pohlad, his affiliates
and his family may not take any of the following actions without the prior
approval of the Affiliated Transaction Committee of our Board of Directors:
- acquire, propose to acquire, disclose an intention to acquire, or offer
or agree to acquire beneficial ownership of, any Whitman voting security
that would cause the Pohlad maximum ownership percentage or the combined
maximum ownership percentage to be exceeded, other than pursuant to an
acquisition permitted by the Pohlad shareholder agreement;
- form, join or in any way participate in a group which would be required
to file a statement on Schedule 13D as a "person" under Section 13(d)(3)
of the Securities Exchange Act of 1934 with respect to any voting
securities of Whitman or its subsidiaries if that group's ownership of
Whitman voting securities would exceed the Pohlad maximum ownership
percentage; or
- initiate a merger, acquisition or other business combination transaction
relating to Whitman, other than a combination of a party unaffiliated
with Mr. Pohlad, his affiliates and his family with Whitman that would
not be a permitted acquisition under the Pohlad shareholder agreement.
If at any time Mr. Pohlad, Pohlad Companies or Dakota Holdings becomes
aware that the ownership of Mr. Pohlad, his affiliates and his family of our
voting securities exceeds the Pohlad maximum ownership percentage, except as
specifically permitted under the Pohlad shareholder agreement, Mr. Pohlad, his
affiliates and his family must promptly take all action necessary to reduce the
amount of our voting securities beneficially owned by them to a level below the
Pohlad maximum ownership percentage.
If at any time Mr. Pohlad, Pohlad Companies or Dakota Holdings becomes
aware that the combined maximum ownership percentage has been exceeded as a
result of a reduction in the number of Whitman voting securities outstanding,
Mr. Pohlad, his affiliates and his family must take specified action to reduce
their ownership, though in taking those actions
16
<PAGE> 18
the reduction need only be pro rata based on the relative ownership of Mr.
Pohlad, his affiliates and his family, on the one hand, and PepsiCo and its
affiliates, on the other hand.
If at any time Mr. Pohlad, Pohlad Companies or Dakota Holdings becomes
aware that the combined maximum ownership percentage has been exceeded (other
than as a result of reduction in the number of voting securities outstanding),
Mr. Pohlad, his affiliates and his family must promptly take action to reduce
the amount of Whitman voting securities beneficially owned by them so that the
combined maximum ownership percentage is not exceeded, though, if the reason
that the combined maximum ownership percentage has been exceeded is due to an
acquisition of Whitman voting securities by PepsiCo or its affiliates, Mr.
Pohlad, his affiliates and his family will not be required to reduce their
ownership percentage.
NO AGREEMENTS WITH PEPSICO; DAKOTA HOLDINGS
The Pohlad shareholder agreement provides that none of Mr. Pohlad, any of
his affiliates or any member of his family may, directly or indirectly, enter
into any agreement or commitment with PepsiCo or its affiliates with respect to
the holding, voting, acquisition or disposition of Whitman voting securities.
That prohibition specifically excludes the amended and restated limited
liability company agreement of Dakota Holdings so long as (1) that limited
liability company agreement provides that PepsiCo and its affiliates on the one
hand, and Mr. Pohlad and his affiliates on the other hand, ultimately have sole
power with respect to the voting of specified numbers of Whitman voting
securities held by Dakota Holdings and (2) Dakota Holdings takes no action to
acquire beneficial ownership of any additional voting securities of Whitman
except as permitted by the Pohlad shareholder agreement.
OPTIONS
Whitman may not grant to Mr. Pohlad, any of his affiliates or any member of
his family any options to purchase Whitman common stock unless that grant is
approved by the Affiliated Transaction Committee of our Board of Directors or,
if that committee does not then exist, by a committee composed entirely of
independent directors.
SPECIAL MEETINGS REQUESTED BY THE POHLAD GROUP
If Mr. Pohlad, his affiliates and his family request a special meeting of
our shareholders in accordance with our By-Laws or nominate an alternative slate
of directors to the slate proposed by our Board of Directors at any annual
meeting of shareholders, we may not, without the consent of Pohlad Companies,
Dakota Holdings and Mr. Pohlad, from the date of receipt of the request or
nomination, as the case may be, until the adjournment of the requested special
meeting or the annual meeting, as the case may be, take any of the following
actions:
- effect a material change in our capital structure;
- declare or pay a dividend, other than any regular dividend;
- materially increase the compensation of any executive officer; or
17
<PAGE> 19
- take any material action not in the ordinary course of business.
However, we are not restricted in our ability to comply with commitments entered
into prior to the date of the request.
CERTIFICATE OF INCORPORATION, BY-LAWS AND RIGHTS AGREEMENT
The Pohlad shareholder agreement provides that neither we nor Mr. Pohlad,
any of his affiliates or any member of his family can attempt to amend, alter or
repeal any provision of our Certificate of Incorporation or By-Laws in any
manner inconsistent with the terms of the Pohlad shareholder agreement. If the
provisions of the Pohlad shareholder agreement conflict with the provisions of
our Certificate of Incorporation or By-Laws, Whitman, Mr. Pohlad, Pohlad
Companies and Dakota Holdings are obligated to use all reasonable efforts,
consistent with their fiduciary responsibilities, to cause the provisions of our
Certificate of Incorporation and By-Laws to conform to the Pohlad shareholder
agreement.
The Pohlad shareholder agreement also provides that we may not amend any
provision of the rights agreement in any manner which is inconsistent with the
Pohlad shareholder agreement or the agreement providing for the PepsiAmericas
merger and which adversely affects the rights of Mr. Pohlad, his affiliates or
his family under the terms of the Pohlad shareholder agreement. In addition, we
may not adopt any new rights agreement which is inconsistent with the terms of
the Pohlad shareholder agreement or the agreement providing for the
PepsiAmericas merger and which adversely affects the rights of Robert Pohlad,
his affiliates and his family under the terms of the Pohlad shareholder
agreement.
TERM
The Pohlad shareholder agreement will remain in effect until it is
terminated by written agreement of Whitman (which will require the approval of
the Affiliated Transaction Committee of our Board of Directors, or if that
committee does not then exist, by a committee composed entirely of independent
directors), Mr. Pohlad, Pohlad Companies and Dakota Holdings.
LEGAL MATTERS
The validity of the common stock offered by this prospectus has been passed
upon for us by Sidley & Austin, Chicago, Illinois.
EXPERTS
The consolidated financial statements of Whitman Corporation and
subsidiaries appearing in our Annual Report on Form 10-K for the year ended
January 1, 2000 have been audited by KPMG LLP, independent certified public
accountants, as set forth in their report included therein. These consolidated
financial statements are incorporated by reference into this prospectus in
reliance upon that report given upon the authority of KPMG LLP as experts in
accounting and auditing.
18
<PAGE> 20
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 20. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 145 of the General Corporation Law of the State of Delaware permits
indemnification of directors, officers, employees and agents of corporations
under certain conditions and subject to certain limitations. Article V of the
Registrant's By-Laws provides for indemnification of any director, officer,
employee or agent of the Registrant, or any person serving in the same capacity
in any other enterprise at the request of the Registrant, under certain
circumstances. Article NINTH of the Registrant's Certificate of Incorporation
eliminates the liability of directors of the Registrant under certain
circumstances for breaches of fiduciary duty to the Registrant and its
shareholders.
Directors and officers of the Registrant are insured, at the expense of the
Registrant, against certain liabilities which might arise out of their
employment and which might not be subject to indemnification under the By-Laws.
ITEM 21. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES.
Certain documents listed below are incorporated by reference to Exhibits to
reports filed by Whitman Corporation with the Securities and Exchange Commission
(the "Commission") pursuant to the requirements of the Securities Exchange Act
of 1934. Whitman Corporation's SEC File Number is 001-15019.
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
------- -----------
<S> <C>
2.1 Agreement and Plan of Merger, dated as of August 18, 2000,
among Whitman Corporation, Anchor Merger Sub, Inc. and
PepsiAmericas, Inc., is hereby incorporated by reference to
Exhibit 2.1 to Whitman Corporation's Current Report on Form
8-K filed with the Commission on August 23, 2000
4.1 Certificate of Incorporation of Whitman Corporation, as
amended and restated on May 20, 1999, is hereby incorporated
by reference to Exhibit 3a to Whitman Corporation's
Quarterly Report on Form 10-Q for the quarter ended July 3,
1999
4.2 By-Laws of Whitman Corporation, as amended and restated on
November 30, 2000, are hereby incorporated by reference to
Exhibit 3 to Whitman Corporation's Current Report on Form
8-K filed with the Commission on December 1, 2000
4.3 Rights Agreement, dated as of May 20, 1999, between Whitman
Corporation and First Chicago Trust Company of New York, is
hereby incorporated by reference to Exhibit 4 to the
Registration Statement on Form 8-A filed by Whitman
Corporation with the Commission on May 25, 1999
</TABLE>
II-1
<PAGE> 21
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
------- -----------
<S> <C>
4.4 Amendment to Rights Agreement, dated as of August 18, 2000,
between Whitman Corporation and First Chicago Trust Company
of New York, is hereby incorporated by reference to Exhibit
4.4 to the Registration Statement on Form S-4 (No.
333-46368) filed by Whitman Corporation with the Commission
on September 22, 2000
4.5 Indenture dated as of January 15, 1993 between Whitman
Corporation and Bank One Trust Company, National Association
(f/k/a The First National Bank of Chicago), as Trustee, is
hereby incorporated by reference to Exhibit 4(a) to Whitman
Corporation's Annual Report on Form 10-K for the year ended
December 31, 1992 (File No. 1-4710)
4.6 First Supplemental Indenture dated as of May 20, 1999
between Whitman Corporation and Bank One Trust Company,
National Association (f/k/a The First National Bank of
Chicago), as Trustee, is hereby incorporated by reference to
Exhibit 4 to Whitman Corporation's Quarterly Report on Form
10-Q for the quarter ended July 3, 1999
5* Opinion of Sidley & Austin
10.1 Amended and Restated Shareholder Agreement between Whitman
Corporation and PepsiCo, Inc. is hereby incorporated by
reference to Exhibit 10.1to Whitman Corporation's current
report on Form 8-K filed with the Commission on December 1,
2000
10.2 Shareholder Agreement between Whitman Corporation, Pohlad
Companies, Dakota Holdings, LLC and Robert Pohlad is hereby
incorporated by reference to Exhibit 10.2 to Whitman
Corporation's current report on Form 8-K filed with the
Commission on December 1, 2000
23.1* Consent of KPMG LLP
23.2 Consent of Sidley & Austin (included in Exhibit 5 hereto)
24.1* Power of Attorney of Directors of Whitman Corporation
</TABLE>
-------------------------
* Filed herewith
II-2
<PAGE> 22
ITEM 22. UNDERTAKINGS
(a) 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:
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933;
(ii) 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 the 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 Securities and Exchange Commission pursuant to Rule 424(b) if,
in the aggregate, the changes in volume and price represent no more
than a 20 percent change in the maximum aggregate offering price set
forth in the "Calculation of Registration Fee" table in the effective
Registration Statement; and
(iii) 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.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, 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.
(b) The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
Registrant's annual report pursuant to Section 13(a) or 15(d) of the Securities
Exchange Act of 1934 that is incorporated by reference in the 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.
(c) The undersigned Registrant hereby undertakes as follows: that prior to
any public reoffering of the securities registered hereunder through use of a
prospectus which is part of this Registration Statement, by any person or party
who is deemed to be an underwriter within the meaning of Rule 145(c), the
Registrant undertakes that such reoffering prospectus will contain the
information called for by the applicable registration form with respect to
reofferings by persons who may be deemed underwriters, in addition to the
information called for by the other items of the applicable form.
II-3
<PAGE> 23
(d) The Registrant undertakes that every prospectus: (i) that is filed
pursuant to paragraph (c) immediately preceding, or (ii) that purports to meet
the requirements of Section 10(a)(3) of the Securities Act of 1933 and is used
in connection with an offering of securities subject to Rule 415, will be filed
as part of an amendment to the Registration Statement and will not be used until
such amendment is effective, and that, for purposes of determining any liability
under the Securities Act of 1933, each such post-effective amendment shall be
deemed to be a new registration statement related 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.
(e) Insofar as indemnification for liabilities arising under the Securities
Act of 1933 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 Securities and Exchange Commission
such indemnification is against public policy as expressed in the Securities Act
of 1933, 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 of 1933, and will be governed by the final adjudication of such issue.
(f) The undersigned Registrant hereby undertakes to respond to requests for
information that is incorporated by reference into the prospectus pursuant to
Item 4, 10(b), 11 or 13 of this form, within one business day of receipt of such
request, and to send the incorporated documents by first class mail or other
equally prompt means. This includes information contained in documents filed
subsequent to the effective date of the Registration Statement through the date
of responding to the request.
(g) The undersigned Registrant hereby undertakes to supply by means of a
post-effective amendment all information concerning a transaction, and the
company being acquired involved therein, that was not the subject of and
included in the Registration Statement when it became effective.
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<PAGE> 24
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
has duly caused this Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Rolling Meadows, State of
Illinois, on December 6, 2000.
WHITMAN CORPORATION
By: ROBERT C. POHLAD
------------------------------------
Robert C. Pohlad
Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities indicated on December 6, 2000.
<TABLE>
<C> <S>
SIGNATURE TITLE
ROBERT C. POHLAD Chief Executive Officer and Director
----------------------------------------------------- (principal executive officer)
Robert C. Pohlad
G. MICHAEL DURKIN, JR. Senior Vice President and Chief
----------------------------------------------------- Financial Officer (principal
G. Michael Durkin, Jr. financial and accounting officer)
* Chairman of the Board of Directors
-----------------------------------------------------
Archie R. Dykes
* Director
-----------------------------------------------------
Herbert M. Baum
* Director
-----------------------------------------------------
Richard G. Cline
* Director
-----------------------------------------------------
Pierre S. du Pont
* Director
-----------------------------------------------------
Charles W. Gaillard
* Director
-----------------------------------------------------
Jarobin Gilbert, Jr.
* Director
-----------------------------------------------------
Victoria B. Jackson
* Director
-----------------------------------------------------
Robert F. Sharpe, Jr.
* Director
-----------------------------------------------------
Karl von der Heyden
*By: STEVEN R. ANDREWS
---------------------------------------------------
Steven R. Andrews, Attorney-in-Fact
</TABLE>
II-5
<PAGE> 25
EXHIBIT INDEX
Certain documents listed below are incorporated by reference to Exhibits to
reports filed by Whitman Corporation with the Securities and Exchange Commission
(the "Commission") pursuant to the requirements of the Securities Exchange Act
of 1934. Whitman Corporation's SEC File Number is 001-15019.
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EXHIBIT
NUMBER DESCRIPTION
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2.1 Agreement and Plan of Merger, dated as of August 18, 2000,
among Whitman Corporation, Anchor Merger Sub, Inc. and
PepsiAmericas, Inc., is hereby incorporated by reference to
Exhibit 2.1 to Whitman Corporation's Current Report on Form
8-K filed with the Commission on August 23, 2000
4.1 Certificate of Incorporation of Whitman Corporation, as
amended and restated on May 20, 1999, is hereby incorporated
by reference to Exhibit 3a to Whitman Corporation's
Quarterly Report on Form 10-Q for the quarter ended July 3,
1999
4.2 By-Laws of Whitman Corporation, as amended and restated on
November 30, 2000, are hereby incorporated by reference to
Exhibit 3 to Whitman Corporation's Current Report on Form
8-K filed with the Commission on December 1, 2000
4.3 Rights Agreement, dated as of May 20, 1999, between Whitman
Corporation and First Chicago Trust Company of New York, is
hereby incorporated by reference to Exhibit 4 to the
Registration Statement on Form 8-A filed by Whitman
Corporation with the Commission on May 25, 1999
4.4 Amendment to Rights Agreement, dated as of August 18, 2000,
between Whitman Corporation and First Chicago Trust Company
of New York, is hereby incorporated by reference to Exhibit
4.4 to the Registration Statement on Form S-4 (No.
333-46368) filed by Whitman Corporation with the Commission
on September 22, 2000
4.5 Indenture dated as of January 15, 1993 between Whitman
Corporation and Bank One Trust Company, National Association
(f/k/a The First National Bank of Chicago), as Trustee, is
hereby incorporated by reference to Exhibit 4(a) to Whitman
Corporation's Annual Report on Form 10-K for the year ended
December 31, 1992 (File No. 1-4710)
4.6 First Supplemental Indenture dated as of May 20, 1999
between Whitman Corporation and Bank One Trust Company,
National Association (f/k/a The First National Bank of
Chicago), as Trustee, is hereby incorporated by reference to
Exhibit 4 to Whitman Corporation's Quarterly Report on Form
10-Q for the quarter ended July 3, 1999
5* Opinion of Sidley & Austin
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EXHIBIT
NUMBER DESCRIPTION
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10.1 Amended and Restated Shareholder Agreement between Whitman
Corporation and PepsiCo, Inc. is hereby incorporated by
reference to Exhibit 10.1 to Whitman Corporation's current
report on Form 8-K filed with the Commission on December 1,
2000
10.2 Shareholder Agreement between Whitman Corporation, Pohlad
Companies, Dakota Holdings, LLC and Robert Pohlad is hereby
incorporated by reference to Exhibit 10.2 to Whitman
Corporation's current report on Form 8-K filed with the
Commission on December 1, 2000
23.1* Consent of KPMG LLP
23.2 Consent of Sidley & Austin (included in Exhibit 5 hereto)
24.1* Power of Attorney of Directors of Whitman Corporation
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* Filed herewith
