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EXHIBIT 4.7
PEPSI-COLA PUERTO RICO BOTTLING COMPANY
NON-QUALIFIED STOCK OPTION PLAN
THIS STOCK OPTION PLAN is made as of this 30 day of December, 1996, by
PEPSI-COLA PUERTO RICO BOTTLING COMPANY, a corporation organized under the laws
of the State of Delaware (the "Company"), for the benefit of those persons
designated as Participants (as hereinafter defined) under this Plan by the Board
of Directors of the Company.
1. PURPOSE. The purpose of this Stock Option Plan (the "Plan") is to
provide a means whereby the Company may, through the grant of stock
options ("Options") to Key Employees and directors of the Company or
its subsidiaries or affiliates, attract and retain persons of ability
and motivate such persons to exert their best efforts on behalf of the
Company and its subsidiaries or affiliates. The term "Key Employee"
shall mean and include those employees and directors of the Company or
any subsidiary or affiliate thereof who are considered especially
important to the future of the Company. For purposes of this Plan, the
Key Employees who receive Options hereunder are hereafter referred to
as "Participants."
2. ADMINISTRATION OF THE PLAN. This Plan shall be administered by the
Board of Directors of the Company. Accordingly, the Board shall have
complete authority to interpret all provisions of this Plan consistent
with law, to prescribe, amend, and rescind any rules and regulations
necessary or appropriate for the administration of the Plan and to make
such other determinations and take such other action as it deems
necessary or advisable to carry out the Plan. Any interpretation,
determination or other action made or taken by the Board shall be
final, binding and conclusive. The Board, however, is authorized to
create a committee (the "Stock Option Committee" or "Committee"), which
shall consist of at least three (3) directors selected by the Board, to
assist the Board in the management and administration of the Plan. The
Board may also select one or more directors as alternate members of the
Stock Option Committee who may take the place of any absent member or
members at any meeting of the Stock Option Committee. The Stock Option
Committee shall not have any decision making authority hereunder except
that it may recommend to the Board any action to be taken hereunder. In
this respect, the Board of Directors of the Company has selected and
hereby appoints John W. Beck, Richard Reiss and Anton Schedlbauer to
serve as the initial members of the Stock Option Committee who shall
serve as such and in such capacity for such period of time until the
Board shall select and appoint any successor members of the Stock
Option Committee.
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3. GRANT OF OPTIONS.
a. Subject to and in accordance with the provisions of this Plan,
the Board of Directors of the Company shall (i) determine and
designate the Participants to whom Options are to be granted,
(ii) determine the number of shares of the Company's Class B
Common Stock ("Class B Common Stock") subject to the Options,
(iii) determine the price and the manner in which Options
shall be exercisable and the duration of the vesting and
exercise periods for such Option, which for purposes hereof
may include immediate vesting of Options; and (iv) determine
the timing when Options will be granted and any conditions
that must be satisfied before an award is made. In no event
shall any Option granted under the Plan be an "incentive stock
option," as defined in Section 422 of the U.S. Internal
Revenue Code of 1986, as amended (the "Code"), unless it is
designated by the Board (upon recommendation of the Committee,
if applicable) as such at or before the time the Option is
granted. The aggregate fair market value (as determined under
Section 5 to the extent not inconsistent with Section 422 of
the Code), determined as of the date an Option is granted, of
the Class B Common Stock for which any Participant may be
awarded incentive stock options which are first exercisable by
the participant during any calendar year under the Plan (or
any other stock option plan required to be taken into account
under Section 422(d) of the Code) shall not exceed $100,000.
b. Options granted under this Plan shall be evidenced by a
written agreement to be signed by the Participant and by all
members of the Committee, or any one of them designated for
such proposes, which agreement shall set forth the terms and
conditions of such Options, including the number of Options
granted, the purchase price for the Class B Common Stock
covered by such Options and the vesting and exercise
schedules. Each Participant shall acknowledge in such
agreement receipt of a copy of this Plan and shall agree to be
bound by all the terms and provisions hereof.
c. Any provision to the contrary herein contained
notwithstanding, no Options may be granted to any Participant
unless and until such Participant shall have been employed by,
or served as a director of, the Company or any of its
subsidiaries or affiliates for at least one (1) year prior to
the date such Options are granted.
d. Options granted hereunder shall have a term of no longer than
ten (10) years from the date of their grant and shall vest and
become exercisable in accordance with the terms of their
grant. Options may be exercisable in
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installments during the option period; however, options must
be exercised for full shares of Class B Common Stock. In the
case of "incentive stock options" granted to an individual
described in Section 422(b) of the Code (relating to certain
10% owners), such Options shall have a term of no longer than
five (5) years from the date of their grant.
e. For purposes of determining the eligibility of a Participant
to exercise Options granted hereunder, the Board may request
such certificates, documents or other information from
officers of the Company or otherwise property evidencing such
Participant's eligibility.
f. The total number of shares of Class B Common Stock with
respect to which options may be granted under the Plan is
500,000 subject to adjustment as set forth in Section 7. Any
shares of Class B Common Stock with respect to which an Option
expires or otherwise is forfeited pursuant to the terms of the
Plan or any Option award agreement shall thereupon again
become available for new grants of Options.
4. RESTRICTIONS ON EXERCISE BASED ON TERMINATION OF EMPLOYMENT.
a. No Option held by a Participant may be exercised after the
termination of the Participant's employment with the Company
or an affiliate or subsidiary thereof, except that (i) if such
termination occurs by reason of the Participant's death, total
disability or retirement, then all Options vested in the
Participant as of the date of such event shall immediately
become exercisable and may be exercised until the expiration
of such vested Options, and all unvested Options held by the
Participant as of such date shall automatically expire and
terminate; and (ii) if such termination occurs by reason of
the Participant's being terminated without cause or voluntary
resignation, then all Options vested in the Participant as of
the date of such termination or resignation shall immediately
become exercisable and may be exercised for a period of thirty
(30) days after the date of such termination or resignation,
and all unvested Options held by the Participant as of such
date shall automatically expire and terminate.
b. In the event a Participant's employment is terminated "with
cause" (as defined below), then the Participant shall forfeit
all rights to any unexercised Options granted hereunder,
whether or not vested, and all of his or her outstanding
Options shall automatically terminate and lapse. The term
"with cause" means termination as a result of a Participant's
dishonesty, misuse of drugs or alcohol, collusion with
competitors, misconduct or gross negligence.
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5. PURCHASE PRICE. Except as specifically set forth in this Plan (or in an
attachment hereto), the price per share of Class B Common Stock at
which Options granted under this Plan may be exercised by the
Participants shall be such price determined by the Board of Directors,
which, without otherwise limiting the right to determine such price,
may be the Fair Market Value (as defined below) of a share of Class B
Common Stock of the Company on the date such Option is granted, or
less, including $0 (herein the "Purchase Price"). For purposes hereof,
the "Fair Market Value" of a share of Class B Common Stock of the
Company shall be equal to (i) the sales price for a share of the Class
B Common Stock as quoted in the New York Stock Exchange at close of
business on such date, if, at the time an Option is granted, the Class
B Common Stock is publicly traded on the New York Stock Exchange, or
(ii) if, at the time an Option is granted the Class B Common Stock is
not publicly traded, such value as determined by an independent third
party expert selected by the Committee.
6. PAYMENT OF PURCHASE PRICE UPON EXERCISE.
a. Each Option shall provide that the Purchase Price for the
shares of Class B Common Stock as to which an Option is
exercised shall be paid in full in cash or in such other
consideration as the Board of Directors may deem appropriate
on the date of such exercise. Upon receipt of payment, the
Company shall deliver to the Participant exercising such
Option a certificate for such shares of Class B Common Stock.
It shall be a condition to the performance of the Company's
obligation to issue shares of Class B Common Stock upon
exercise of an Option that the Participant exercising such
Option pay any applicable foreign, United States federal
(including FICA), state or, local withholding taxes which the
Company is obligated to collect with respect to the transfer
of Class B Common Stock upon such exercise.
b. A Participant shall have none of the rights of a shareholder
of the company until shares of Class B Common Stock are
transferred to him, and no adjustment will be made for
dividends or other rights for which the record date is prior
to the date such Option was exercised.
c. The Participants to whom Options have been awarded and who
have exercised any rights granted thereunder pursuant to this
Plan shall acknowledge at the time of purchase that they are
not acquiring the shares of Class B Common Stock with a view
to distribute them in violation of any applicable federal or
state securities laws or the regulations promulgated
thereunder. The shares of Class B Common Stock subject to the
Options awarded hereunder, if and when subscribed, will
constitute "restricted securities," as such term is defined in
Rule 144 of the Securities Act of 1933, as amended (the
"Act"), and accordingly, said shares must be held
indefinitely, until subsequently
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registered under the Act, an exemption from such regulation is
available or they are resold pursuant to Rule 144 under the
Act only after being held for two (2) years following the
exercise of Options by a Participant and the payment of the
full subscription price, and thereafter only in conformance
with the volume requirements of Rule 144. Therefore, upon
exercise all Participants shall acknowledge that no shares of
Class B Common Stock shall be transferred under the Plan until
all legal requirements applicable to the transfer of such
shares have been complied with to the satisfaction of the
Board of Directors of the Company. In this respect, the Board
shall have the right to condition any transfer of shares to
any Participant upon such Participant's written undertaking to
comply with such restrictions on his subsequent disposition of
such shares as the Board shall deem necessary or advisable as
a result of any applicable law, regulation or official
interpretation thereof. Certificates representing shares of
Class B Common Stock may be legended to reflect any of the
foregoing restrictions. Transferees of Option Shares that
constitute "restricted securities" under Rule 144 promulgated
by the SEC under the Act or any successor regulation shall
have the same rights as the Participants under this Section 6
with respect to such shares of Class B Common Stock.
In the event of any sale of shares of Class B Common Stock by
any Participant pursuant to the terms of Rule 144 of the Act,
upon exercise, the Company will cooperate in supplying such
information as may be necessary to complete and file any
information reporting forms presently or hereafter required by
the Securities and Exchange Commission (the "SEC") as a
condition to the availability of an exemption from the Act for
the sale of restricted securities.
7. Registration Rights.
a. Whenever the Company proposes to file under the Act a
registration statement relating to the issuance or sale of any
of its shares of capital stock (other than a registration
statement (i) required to be filed in respect of employee
benefit plans of the Company on Form S-8 or any successor form
from time to time in effect, or (ii) on Form 8-4 or any
successor form, with respect to any dividend reinvestment plan
of the Company, the Company shall at least 30 days prior to
such filing give effective written notice of such proposed
filing to the Optionee. Upon receipt by the Company not more
than 15 days after such effective notice of a written request
from a Participant whose Options have vested for registration
of shares of Class B Common Stock subject to such Options
(herein the "Option Shares"), the Company shall (1) include in
such registration statement or in a separate registration
statement concurrently filed, and use its best efforts to
cause such registration statement to become
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effective with respect to, the Option Shares as to which such
Participant requests registration, and (2) if such proposed
registration is in connection with an underwritten offering,
upon request of said Participant cause the managing
underwriter therefor to include in such offering the Option
Shares as to which the Participant requests such inclusion, on
terms and conditions comparable to those of the other shares
to be offered, provided that the Company shall have the right
to postpone or withdraw any registration effected pursuant to
this Section 7 without any obligation to the Participant.
b. Whenever a Participant whose Options have vested or has vested
Options requests in writing to the Company that it registers
under the Act any Option Shares, the Company within five days
after such request is effective shall promptly file a
registration statement on Form S-8, together with such other
documents or writings required thereunder, in order to
register the Option Shares requested by such Participant to be
registered.
c. All fees, disbursements and expenses incurred by the Company
in connection with any registration pursuant to this Section 7
shall be borne by the Company, including, without limitation,
all registration and filing fees, all costs of preparation and
printing of any registration statement and related prospectus
and any amendments or supplements thereto, all fees and
disbursements of counsel for the Company, the expenses of
complying with applicable securities or blue sky laws, and all
costs in connection with the preparation and delivery of any
other documents related thereto.
8. ADJUSTMENT IN EVENT OF CHANGE IN CLASS B COMMON STOCK. In the event of
any change in shares of the Class B Common Stock by reason of any stock
dividend, recapitalization, exchange of shares or split up of the
issued and outstanding shares of Class B Common Stock, the number of
such shares of Class B Common Stock subject to the Options granted and
outstanding hereunder at such time, and the Purchase Price per share,
shall be appropriately adjusted to prevent dilution and to maintain the
proportion and cost of the Class B Common Stock subject to such
Options. In the event of a reorganization, merger or consolidation
wherein the Company is not the surviving entity, the Board shall allow
the Participants to exercise the rights with respect to the Options
that are granted and outstanding prior to the consummation of any such
merger, reorganization or consolidation or shall take any other action
it may deem appropriate in order to prevent any loss of value held by
the Participants with respect to any Options granted hereunder.
9. AMENDMENTS AND DISCONTINUANCE. The Board of Directors of the Company
may from time to time amend, suspend or discontinue the Plan; provided,
however, that the Board may not make any amendment that would, if such
amendment were not
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approved by the shareholders, cause grants under the Plan to fail to
satisfy the requirements for exemption under Section 16 of the United
States Securities Exchange Act of 1934, as amended, unless and until
shareholder approval is obtained. No amendment of this Plan shall
materially and adversely affect any right of any Participant with
respect to any Options theretofore granted or awarded without such
Participant's consent.
10. EXPIRATION DATE. This Plan shall expire and no further Options may be
issued under the Plan on the earlier of (i) ten (10) years after the
date hereof or (ii) the date the Board of Directors of the Company
decide to terminate the Plan.
11. NON TRANSFERABILITY OF OPTIONS. The Options granted under this Plan
shall not be assignable or transferable by a Participant other than by
will or the laws of descent and distribution, and the Options may be
exercised during the lifetime of a Participant only by the Participant
or, in the event the Participant is incapable of acting by reason of
total disability, by his or her legal representative.
12. NO RIGHTS TO AWARDS OR CONTINUED EMPLOYMENT. Nothing contained in this
Plan or in any Option granted hereunder shall confer upon any
Participant any rights to continue in the employ of the Company, or any
of its subsidiaries or affiliates, or alter the right of the Company or
any of its subsidiaries or affiliates to terminate his or her
employment at any time. Except as specifically set forth herein, no
person shall have any claim or right to be granted Options under this
Plan.
IN WITNESS WHEREOF, an authorized representative of the Company hereby
signs and executes this Plan as of the day and year first above written.
PEPSI-COLA PUERTO RICO
BOTTLING COMPANY
By: /s/ John W. Beck, Chairman
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AMENDMENT NO. 1 TO
PEPSI-COLA PUERTO RICO BOTTLING COMPANY
NONQUALIFIED STOCK OPTION PLAN
Pursuant to the amendment authority retained by the Board of Directors
of Pepsi-Cola Puerto Rico Bottling Company (the "Company") in Section 9 of the
Pepsi-Cola Puerto Rico Bottling Company Nonqualified Stock Option Plan (the
"Plan") adopted December 30, 1996, the Plan is hereby amended in the following
respects:
Section 3(c) is deleted and replaced with the following language:
"Options may be granted to any Key Employees and directors of the
Company or its subsidiaries or affiliates at any time without regard to
the completion of any period of service before the dates such options
are granted."
"This provision shall be effective as of August 1, 1998."
This Amendment shall be effective as of the date approved by the Board
of Directors.
But for these changes the Plan established December 30, 1996 shall
remain in full force and effect.
IN WITNESS WHEREOF, an authorized representative of the Company hereby
signs and executes this Plan as of the day and year first above written.
Dated this 3rd day of November, 1998.
PEPSI-COLA PUERTO RICO BOTTLING COMPANY
By /s/ John F. Bierbaum
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John F. Bierbaum
Its: Chief Financial Officer
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AMENDMENT NO. 2 TO
PEPSI-COLA PUERTO RICO BOTTLING COMPANY
NONQUALIFIED STOCK OPTION PLAN
Pursuant to the amendment authority retained by the Board of Directors
of Pepsi-Cola Puerto Rico Bottling Company (the "Company") in Section 9 of the
Pepsi-Cola Puerto Rico Bottling Company Nonqualified Stock Option Plan (the
"Plan") adopted December 30, 1996, the Plan is hereby amended in the following
respects:
Section 4(b) shall be deleted in its entirety and replaced with the
following language:
"(b) In the event a Participant's employment is terminated "with cause"
(as defined below), then the Participant shall forfeit all rights to
any unexercised Options granted hereunder, whether or not vested, and
all of his or her outstanding Options shall automatically terminate and
lapse. The term "with cause" means involuntary termination of a
Participant's employment or service as a director by the Company upon
the occurrence of any of the following:
(i) the willful and continued failure by a Participant to
substantially perform Participant's duties with the Company
(other than any such failure as resulting from Participant's
disability), after a demand for performances delivered to the
Participant which identifies the manner in which the Company
believes that the Participant has not performed his or her
duties and the Participant has failed to resume substantial
performance of those duties on a continuous basis within 14
days of receiving such demand;
(ii) the Participant's willful engaging in conduct which is
demonstrable and materially injurious to the Company,
monetarily or otherwise;
(iii) the Participant's conviction of a felony which impairs
his/her ability substantially to perform the Participant's
duties with the Company;
(iv) the Participant's personal dishonesty, incompetence,
breach of fiduciary duty for personal profit or willful
violation of any law, rule or regulation (other than traffic
violations or similar offenses) or final cease and desist
order.
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For purposes of this subparagraph (b), no act or failure to act on the
part of the Participant shall be deemed "willful" unless done or
omitted to be done by the Participant not in good faith and without
reasonable belief that the Participant's actions or omission was in the
best interest of the Company. Failure to perform duties with the
Company during any period of disability shall not constitute Cause. The
Company shall give notice to the Participant of any determination that
the Participant's termination is with Cause."
This Amendment shall be effective as of the date approved by the Board
of Directors.
But for these changes the Plan established December 30, 1996 shall
remain in full force and effect.
IN WITNESS WHEREOF, an authorized representative of the Company hereby
signs and executes this Plan as of the day and year first above written.
Dated this 3rd day of November, 1998.
PEPSI-COLA PUERTO RICO BOTTLING COMPANY
By /s/ Brian Wenger
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Its Secretary
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