<PAGE>
EXHIBIT D
MEMBERSHIP INTEREST PURCHASE AGREEMENT
This Membership Interest Purchase Agreement (the "Agreement") is made
as of this 27th day of December, 2000, by and between Pepsi-Cola Metropolitan
Bottling Company, a New Jersey corporation ("Metro"), PepsiCo, Inc., a North
Carolina corporation ("PepsiCo"), and Midwest Beverage Holdings, LLC, a
Minnesota limited liability company ("Midwest").
R E C I T A L S
FIRST, Metro currently owns thirty and one-tenth percent (30.1%) of the
issued and outstanding Class A membership interest ("Class A Membership
Interest") in Dakota Holdings, LLC, a Minnesota limited liability company
("Dakota Holdings").
SECOND, Dakota Holdings owns 12,478,291 shares of common stock of
Whitman Corporation and 2,201,445 shares of common stock of PepsiCo.
THIRD, the rights of the Class B membership interest in Dakota Holdings
to income, profits and distributions are determined solely by reference to the
PepsiCo stock owned by Dakota Holdings and the rights of Class A Membership
Interests in profits, losses and distributions are determined by excluding the
profits, losses and value of the PepsiCo stock.
FOURTH, Metro's investment in Dakota Holdings is evidenced by and
subject to the terms and conditions of the Amended and Restated Limited
Liability Company Agreement of Dakota Holdings, LLC dated November 30, 2000(the
"LLC Agreement").
FIFTH, Midwest desires to purchase, and Metro desires to sell, that
portion of Metro's Class A Membership Interest in Dakota Holdings equal to
thirteen and seventy one one-hundredths percent (13.71%) of the issued and
outstanding Class A Membership interest in Dakota Holdings, subject to all terms
and conditions set forth in this Agreement (the "Transfer").
NOW, THEREFORE, in consideration of the foregoing premises and the
covenants and agreements set forth hereinafter, and for other good and valuable
consideration, it is hereby agreed as follows:
1. RECITALS. The Recitals hereto are incorporated by reference and
form a part of this Agreement.
2. PURCHASE PRICE FOR CLASS A MEMBERSHIP INTEREST. Metro does
hereby sell, transfer and deliver to Midwest, and Midwest hereby purchases
from Metro, that portion of Metro's Class A Membership Interest in Dakota
Holdings equal to thirteen and seventy one one-hundredths percent (13.71%)
(the "Transferred Membership Interest") of the issued and outstanding Class A
Membership interests in Dakota Holdings for an aggregate purchase price of
$24,998,685.08.
3. METHOD OF PAYMENT FOR INTEREST. Midwest shall pay Metro for the
Transferred Membership Interest by wire transfer concurrently with the
execution of this Agreement.
D-1
<PAGE>
4. DELIVERY OF DOCUMENTS. Contemporaneously with the signing of
this Agreement, Metro shall deliver to Midwest: (a) an Assignment of
Membership Interest in the form of Exhibit A attached hereto, which Midwest
agrees to execute simultaneously with the execution of this Agreement, and
(b) a consent of members of Dakota Holdings to the Transfer as required under
section 9.1 of the LLC Agreement and to the making of section 754 election as
required by section 8.3(f) of the LLC Agreement ("Consent") signed by Metro,
PepsiCo and Beverages, Food & Service Industries, Inc. ("BFSI"). Midwest
shall deliver a Consent signed by Pohlad Companies and Beverage Investment,
LLC. Additionally, Metro, Midwest and the other members of Dakota Holdings
shall, simultaneously with execution of this Agreement, enter into an
Amendment to the Limited Liability Company Agreement for Dakota Holdings (the
"Amendment") reflecting the admission of Midwest as a Member of Dakota
Holdings.
5. REPRESENTATIONS OF METRO AND PEPSICO. Metro and PepsiCo represent
and warrant to Midwest that:
a. AUTHORIZATION AND ENFORCEABILITY. All corporate action on the
part of Metro and PepsiCo necessary for the authorization, execution
and delivery of this Agreement and the Amendment and the documents and
instruments executed in connection therewith has been taken, and this
Agreement, the Amendment and all documents and instruments executed in
connection therewith constitute valid and legally binding obligations
of Metro and PepsiCo, enforceable against Metro and PepsiCo in
accordance with their respective terms, except as limited by applicable
bankruptcy, insolvency, reorganization, moratorium, fraudulent
conveyance and other laws of general application affecting enforcement
of creditors rights generally, or as limited by laws relating to the
availability of specific performance, injunctive relief or other
equitable remedies.
b. TITLE TO TRANSFERRED MEMBERSHIP INTEREST. Metro is the owner,
free and clear of any security interests, mortgages or liens, of the
Transferred Membership Interest.
c. NO CONSENTS. No consent, order, or authorization of, or
registration, declaration or filing with, any person, is required
to be made or received by PepsiCo or Metro in connection with the
execution and delivery of this Agreement or the consummation of the
Transfer.
6. REPRESENTATIONS OF MIDWEST. Midwest represents and warrants to
Metro that:
a. AUTHORIZATION AND ENFORCEABILITY. All corporate action on the
part of Midwest necessary for the authorization, execution and delivery
of this Agreement and the Amendment and the documents and instruments
executed in connection therewith has been taken, and this Agreement,
the Amendment and all documents and instruments executed in connection
therewith constitute valid and legally binding obligations of Midwest,
enforceable against Midwest in accordance with their respective terms,
except as limited by applicable bankruptcy, insolvency, reorganization,
moratorium, fraudulent conveyance and other laws of general application
affecting enforcement of creditors rights generally, or as limited by
laws relating to the availability of specific performance, injunctive
relief or other equitable remedies.
D-2
<PAGE>
b. INVESTMENT REPRESENTATIONS. The Transferred Membership
Interest is being acquired for Midwest's own account and for
investment and without the intention of reselling or redistributing
the Transferred Membership Interest. Midwest has made no agreement
with others regarding the Transferred Membership Interest except as
set forth in this Agreement and in the Second Restated Partnership
Agreement. Midwest will not transfer the Transferred Membership
Interest or any fraction thereof to any person who does not
similarly represent and warrant that it will not transfer such
interest or fraction thereof to any person who does not similarly
represent and warrant. Midwest realizes that its investment in
Dakota Holdings is a long term investment and that its financial
condition is such that it is not likely that it will be necessary
for Midwest to dispose of the Transferred Membership Interest in the
foreseeable future. Midwest understands that an investment in Dakota
Holdings is speculative, but because the owners of Midwest have
substantial experience in evaluating and investing in transactions
similar to Dakota Holdings, it is capable of evaluating the merits
and risks of its investment in Dakota Holdings and has the capacity
to protect its own interests, and believes that this investment is
suitable for it based upon its investment objectives and financial
needs.
c. NO CONSENTS. No consent, order, or authorization of, or
registration, declaration or filing with, any person, is required to
be made or received by Midwest in connection with the execution and
delivery of this Agreement or the consummation of the Transfer.
7. MISCELLANEOUS.
a. SURVIVAL OF WARRANTIES. The representations and warranties
contained in or made pursuant to this Agreement shall survive the
execution and delivery of this Agreement and the delivery of the
Transferred Membership Interest to Midwest hereunder, and shall be
binding upon and inure to the benefit of the parties hereto and their
successors and assigns.
b. GOVERNING LAW. This Agreement and the rights and obligations
of the parties hereunder and all other instruments or documents
delivered pursuant hereto shall be construed in accordance with and
governed by the laws of the state of Minnesota, and may be executed in
counterparts, each of which shall be deemed an original and all of
which when taken together shall constitute one and the same document.
c. ENTIRETY OF AGREEMENT. This Agreement, together with the
Amendment, states the entire agreement of the parties with respect to
the subject matter hereof, and merges and supersedes all prior
negotiations, agreements, understandings and letters of intent, if any
there be.
d. AMENDMENT. This Agreement may be modified or amended only by an
instrument in writing duly signed by the parties hereto.
e. TITLES AND SUBTITLES. The titles and subtitles used in this
Agreement are used for convenience only and are not to be considered in
construing or interpreting this Agreement.
D-3
<PAGE>
f. BROKERS OR FINDERS. Each of Metro and Midwest hereby represent
and warrant to the other that neither has incurred, directly or
indirectly, any liability for brokerage or finders fees or agent's
commissions or similar charges in connection with the transaction
contemplated by this Agreement.
g. EXPENSES. Each of Metro and Midwest shall bear their own
expenses incurred with respect to the this Agreement and the
transaction contemplated hereby.
h. SEVERABILITY. If one or more provisions of this Agreement are
held to be unenforceable under applicable law such provisions, to the
extent necessary, shall be severed from this Agreement and the balance
of this Agreement shall be interpreted as if such provision were so
excluded and shall be enforceable in accordance with its terms.
(Remainder of page left intentionally blank)
D-4
<PAGE>
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first above written.
PEPSI-COLA METROPOLITAN BOTTLING COMPANY
By: /s/ W. Timothy Heaviside
Its: Vice President
PEPSICO, INC.
By: /s/ W. Timothy Heaviside
Its: Vice President
MIDWEST BEVERAGE HOLDINGS, LLC
By: /s/ John F. Bierbaum
Its: Vice President
D-5
<PAGE>
EXHIBIT A
ASSIGNMENT OF MEMBERSHIP UNITS
For value received, the undersigned, Pepsi-Cola Metropolitan Bottling Company, a
New Jersey Corporation, hereby sells, assigns and transfers unto Midwest
Beverage Holdings, LLC, a Minnesota limited liability company, its rights and
interests in thirteen and seventy one one-hundredths percent (13.71%) of the
Class A membership interest in Dakota Holdings, LLC, a Delaware limited
liability company (the "Company"), standing in its name on the books of the
Company and does hereby irrevocably constitute and appoint
________________________ as attorney to transfer the said Class A Membership
Interest on the books of the Company with full power of substitution in the
premises.
Dated: PEPSI-COLA METROPOLITAN BOTTLING COMPANY
----------------------------
By:
------------------------
Its:
-----------------------
D-6
