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OMB APPROVAL
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OMB Number: 3235-0145
UNITED STATES Expires: October 31, 1997
SECURITIES AND EXCHANGE COMMISSION Estimated average burden
WASHINGTON, D.C. 20549 hours per response 14.90
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SCHEDULE 13D
UNDER THE SECURITIES EXCHANGE ACT OF 1934
- ----------------------------------------------------------------------------
(AMENDMENT NO. ___________){*}
PEPSI-COLA PUERTO RICO BOTTLING COMPANY
- ---------------------------------------------------------------------------
(Name of Issuer)
CLASS B COMMON STOCK
- ---------------------------------------------------------------------------
(Title Class of Securities)
713434 10 8
-------------------------------------------
(CUSIP Number)
RAFAEL NIN, C/O PEPSI-COLA PUERTO RICO BOTTLING COMPANY, CARRETERA #2, KM
- ---------------------------------------------------------------------------
19.4, BARRIO CANDELARIA, TOA BAJA, PUERTO RICO 00949, (787) 251-2000
- ---------------------------------------------------------------------------
(Name, Address and Telephone Number of Person Authorized to Receive Notices
and Communications)
SEPTEMBER 28, 1996
-----------------------------------------------------
(Date of Event which Requires Filing of this Statement)
If the filing person has previously filed a statement on Schedule 13G to
report the acquisition which is the subject of this Schedule 13D, and
is filing this schedule because of Rule 13d-1(b)(3) or (4), check the
following box <square>.
Check the following box if a fee is being paid with the statement
<checked-box>. (A fee is not required only if the reporting person: (1)
has a previous statement on file reporting beneficial ownership of more
than five percent of the class of securities described in Item 1; and
(2) has filed no amendment subsequent thereto reporting beneficial
ownership of five percent or less of such class.) (See Rule 13d-7.)
NOTE: Six copies of this statement, including all exhibits, should be
filed with the Commission. See Rule 13d-1(a) for other parties to whom
copies are to be sent.
*The remainder of this cover page shall be filled out for a reporting
person's initial filing on this form with respect to the subject class of
securities, and for any subsequent amendment containing information which
would alter disclosures provided in a prior cover page.
The information required on the remainder of this cover page shall not be
deemed to be "filed" for the purpose of Section 18 of the Securities
Exchange Act of 1934 ("Act") or otherwise subject to the liabilities of
that section of the Act but shall be subject to all other provisions of
the Act (however, see the Notes).
SEC 1746(12-91)
<PAGE>
SCHEDULE 13D
[CAPTION]
CUSIP NO. 713434 10 8 Page 2 of 8 Pages
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<CAPTION>
<S> <C> <C> <C>
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Rafael Nin
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP{*} (A) <square>
(B) <square>
3 SEC USE ONLY
4 SOURCE OF FUNDS{*}
00
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e) <square>
6 CITIZENSHIP OR PLACE OF ORGANIZATION
United States of America
7 SOLE VOTING POWER
NUMBER OF
5,212,500 shares of Common Stock
SHARES
BENEFICIALLY 8 SHARED VOTING POWER
0
OWNED BY
EACH 9 SOLE DISPOSITIVE POWER
5,212,500 shares of Common Stock
REPORTING
PERSON 10 SHARED DISPOSITIVE POWER
0
WITH
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
5,212,500 shares of Common Stock
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES{*} <square>
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
24.24%
14 TYPE OF REPORTING PERSON{*}
IN
</TABLE>
{*}SEE INSTRUCTIONS BEFORE FILLING OUT!
INCLUDE BOTH SIDES OF THE COVER PAGE, RESPONSES TO ITEMS 1-7 2 0F 8
(INCLUDING EXHIBITS) OF THE SCHEDULE, AND THE SIGNATURE ATTESTATION.
<PAGE>
ITEM 1. SECURITY AND ISSUER.
-------------------
This statement relates to the shares of Class A Common Stock, par
value $0.01 per share ("Class A Shares") and the shares of Class B Common
Stock, par value $0.01 per share ("Class B Shares", together with the Class
A Shares, the "Common Stock") of Pepsi-Cola Puerto Rico Bottling Company, a
Delaware corporation (the "Company"). The address of the principal
executive offices of the Company is:
Carretera #2, Km 19.4
Barrio Candelaria
Toa Boja
Puerto Rico 00949
ITEM 2. IDENTITY AND BACKGROUND.
-----------------------
(a) This statement is being filed by Rafael Nin.
(b) Mr. Nin's principal place of business is:
c/o Pepsi-Cola Puerto Rico Bottling Company
Carretera #2, Km 19.4
Barrio Candelaria
Toa Boja
Puerto Rico 00949
(c) Mr. Nin is and has been a Director of the Company since May
1987. Effective June 11, 1996, with the approval of the Board of
Directors, Mr. Nin assumed the office of President and Chief Executive
Officer of the Company.
(d) During the last five years, Mr. Nin has not been convicted
in a criminal proceeding (excluding traffic violations or similar
misdemeanors).
(e) During the last five years, Mr. Nin has not been a party to
a civil proceeding of a judicial or administrative body of competent
jurisdiction as a result of which he was subject to a judgment, decree or
final order enjoining future violations of, or prohibiting or mandating
activities subject to, federal or state securities laws or finding any
violation with respect to such laws.
(f) Mr. Nin is a citizen of the United States of America.
ITEM 3. SOURCE AND AMOUNT OF FUNDS OR OTHER CONSIDERATION.
-------------------------------------------------
The Company is a holding company which, through its manufacturing and
distribution subsidiaries, produces, sells and distributes a variety of
soft drink and fruit juice products, ice teas, isotonics and bottled water
in the Commonwealth of Puerto Rico ("Puerto Rico"). On September 28, 1996,
in connection with the appointment of Rafael Nin as President and Chief
3
<PAGE>
Executive Officer of the Company and for the benefit of the Company, the
5,000,000 Class A Shares of the Company were deposited with Mr. Nin as
trustee of an irrevocable voting trust pursuant to a Voting Trust Agreement
and Mr. Nin was granted an option to purchase all 5,000,000 Class A Shares
of the Company pursuant to a Stock Option Agreement. See "Item 6.
Contracts, Arrangements, Understandings or Relationships with Respect to
Securities of the Issuer" for a description of the Stock Option Agreement.
ITEM 4. PURPOSE OF TRANSACTION.
----------------------
The purpose of the creation of the irrevocable voting trust naming
Rafael Nin as trustee and the grant of stock options to Rafael Nin in
connection with his appointment as President and Chief Executive Officer of
the Company is to permit Mr. Nin to use the options for the benefit of the
Company.
ITEM 5. INTEREST IN SECURITIES OF THE ISSUER.
------------------------------------
(a) Mr. Nin beneficially owns the following amounts and
percentages of each class of securities identified pursuant to Item 1:
Aggregate Number of
SHARES OF COMMON STOCK PERCENTAGE OF CLASS
---------------------- -------------------
Common Stock: 5,212,500 24.24%
Mr. Nin may be deemed to beneficially own a total of 5,212,500 shares
of Common Stock, representing 24.24% of the outstanding Common Stock; which
includes 212,500 Class B Shares (0.98%), held individually and 5,000,000
Class A Shares (23.26%) held under the Voting Trust Agreement and
disposable upon the exercise of the outstanding stock options granted under
the Stock Option Agreement.
(b) Mr. Nin has the sole power to vote or direct the vote, and
sole power to dispose, or to direct the disposition of, 5,212,500 shares of
Common Stock, or 24.24% of the Company's Common Stock. As the Class A
Shares are entitled to six votes per share and the Class B Shares are
entitled to one vote per share, Mr. Nin has the power to direct the vote of
shares representing 64.97% of the total voting power of the Company's Common
Stock.
(c) There have been no transactions involving any class of
shares during the past 60 days other than the transactions described in
Item 3 above.
(d) The Grantors will receive $1 per share from the proceeds of
the option exercise, and the Company is entitled to receive any additional
proceeds of benefit. Prior to the exercise of the option, the Grantors are
entitled to receive all dividends on the 5,000,000 Class A Shares. No
other person is known to have the right to receive or the power to direct
the receipt of dividends from, or the proceeds from the sale of, such
securities.
(e) The inquiry about when the reporting person ceased to be a
five percent beneficial owner is inapplicable.
4
<PAGE>
ITEM 6. CONTRACTS, ARRANGEMENTS, UNDERSTANDINGS OR RELATIONSHIPS WITH
-------------------------------------------------------------
RESPECT TO SECURITIES OF THE ISSUER.
-----------------------------------
On September 28, 1996, Rafael Nin, as trustee (the "Trustee"), the
Company and the shareholders of the Company's outstanding Class A Shares
(the "Shareholders") entered into a Voting Trust Agreement (the "Voting
Trust Agreement"), pursuant to which the Shareholders created an
irrevocable voting trust (the "Trust"). Upon execution of the Voting Trust
Agreement, the Shareholders deposited stock certificates representing the
number of shares set forth in the Voting Trust Agreement with the Trustee.
The terms of the Trust provide that the Trustee will possess legal title
to, but not beneficial ownership of, these shares of stock and will be
entitled to exercise all rights with respect to the shares (other than the
right to retain dividends or distributions). The Trust will be effective
until September 28, 2001, subject to earlier termination (i) at any time by
Rafael Nin in his sole discretion; (ii) upon the death of Rafael Nin; and
(iii) in the event of a merger or consolidation involving the Company in
which the Company is not the surviving entity, the Trust will terminate on
the effective date of the consolidation or merger unless the Trustee gives
notice within 30 days of the consolidation or merger of an election to
continue the Voting Trust Agreement. Upon termination of the Trustee or
upon release of any shares from the Trust, the Trustee must surrender any
stock certificates held by the Trust, or the stock certificates relating to
the shares being released, duly endorsed in the name of the Shareholders,
to the Company to allow the Company to issue the corresponding stock
certificates to the Shareholders. The terms of the Voting Trust Agreement
provide that the Trust will automatically be renewed for an additional five
year period unless either PepsiCo, Inc., or the Trustee gives notification
of termination six months prior to the initial termination date.
On September 28, 1996, in connection with the Voting Trust Agreement,
Rafael Nin (the "Optionee"), the Company and the shareholders of the
Company's 5,000,000 outstanding Class A Shares (the "Grantors") entered
into a Stock Option Agreement (the "Stock Option Agreement"), pursuant to
which the Grantors granted Rafael Nin an option (the "Option") to buy all
of the 5,000,000 Class A Shares, par value $0.01 per share (the "Option
Shares") of the Company, at a price of $1.00 per share, subject to
adjustment from time to time (the "Exercise Price") as described below.
The Option is exercisable with respect to all of the Option Shares at any
time or with respect to a portion of the Option Shares from time to time
after September 28, 1996 until 5:00 p.m., San Juan, Puerto Rico time, on
the second anniversary of the date of the Stock Option Agreement (the
"Expiration Time").
The Optionee may exercise the Option at any time and from time to time
prior to the Expiration Time by delivering written notice to the Company
setting forth the number of Option Shares with respect to which the Option
is being exercised. Upon receipt of such notice, the Company will notify
each Grantor of (i) the number of Option Shares to be sold by each Grantor,
which must be proportional to the number of Option Shares beneficially
owned by each Grantor which are subject to the Option, (ii) the applicable
Exercise Price and (iii) the date of consummation of the sale (the "Closing
Date") which must be no later than ten business days after the receipt of
such notice by the Company. On the Closing Date the Grantors (or the
trustee of the voting trust) must deliver to the Secretary of the Company
the certificates endorsed in the name of the Company evidencing the Option
Shares to be sold, and the Optionee must deliver the Exercise Price to the
Secretary. The Company must then promptly deliver the Exercise Price to
5
<PAGE>
the appropriate Grantors and deliver the stock certificates representing
the Option Shares being purchased to the order of the Optionee (or to the
order of the trustee of the voting trust).
If the Trust is in effect at any time the Option is exercised, then
(i) the Option Shares will continue to be subject to the voting trust
agreement and the Optionee will not be entitled to receive the certificates
evidencing the Option Shares, (ii) references to the delivery of share
certificates representing the Option Shares in the Stock Option Agreement
shall be disregarded and (iii) references in the Stock Option Agreement to
Option Shares will include references to the beneficial interests in the
voting trust relating to such shares.
The Stock Option Agreement places restrictions on exercise or
transferability. Rafael Nin is not entitled to exercise the Option, but is
permitted only to transfer the Option in whole or with respect to some
Option Shares to third parties selected by him (including the Company), in
exchange for consideration as agreed to by Rafael Nin and the transferee.
The consideration must be delivered to the Company and will be considered
additional paid-in capital to the Company. Pursuant to the terms of the
Stock Option Agreement, Rafael Nin will not be entitled to receive any
consideration in exchange for the transfer. Additionally, if Rafael Nin
would control less than a majority of the total votes of the shareholders
of the Company (including both Class A and Class B shares) as a result of
the transfer of all or part of his rights under the Option, PepsiCo, Inc.
must give prior written approval to the transfer. Finally, the Option may
not be transferred unless a registration statement under the Securities Act
of 1933 is in effect or the Company has received an opinion of counsel to
the effect that such registration is not required.
In the event of any stock split, extraordinary dividend, combination,
reclassification, exchange, or any other transaction or event that changes
the character or amount of the common stock of the Company outstanding
prior to the Expiration Time, adjustments will be made in (i) the
character and number of Option Shares and (ii) the Exercise Price, to make
the Options equivalent to the Options existing prior to such event. In the
event of any merger, consolidation, or other business combination involving
the Company, or the partial or complete liquidation of the Company, the
Optionee is entitled to receive, upon exercise of its Options, the kind and
amount of securities or other consideration that the Optionee would have
received had it exercised the Options immediately prior to such event.
Pursuant to the terms of the Stock Option Agreement and the Voting
Trust Agreement, the Grantors may not sell, pledge or otherwise transfer or
encumber any of their Option Shares.
The terms of both the Stock Option Agreement and the Voting Trust
Agreement provide that neither will be effective until PepsiCo, Inc. and
Banco Popular de Puerto Rico have consented to the grant of the Option and
the creation of the Trust and the Company receives an endorsement to its
directors and officers liability insurance policy providing that the
policy will remain in effect after the consummation of the transactions
contemplated by the Stock Option Agreement and the Voting Trust Agreement.
No other contracts, arrangements, understandings or relationships with
respect to the securities of the Company have been entered into by Rafael
Nin.
6
<PAGE>
ITEM 7. MATERIALS TO BE FILED AS EXHIBITS
---------------------------------
1. Stock Option Agreement dated as of September 28, 1996 among
Rafael Nin, Pepsi-Cola Puerto Rico Bottling Company and the Shareholders.
2. Voting Trust Agreement dated September 28, 1996 among Rafael Nin,
Pepsi-Cola Puerto Rico Bottling Company and the Grantors.
7
<PAGE>
SIGNATURE
After reasonable inquiry and to the best of my knowledge and
belief, I certify that the information set forth in this statement is true,
complete and correct.
October 8, 1996 /s/ RAFEAL NIN
------------------------------
Rafael Nin
STOCK OPTION AGREEMENT
STOCK OPTION AGREEMENT dated as of September 28, 1996, between
the persons and entities listed under "Grantors" in the signature pages
hereof (the "Grantors"), Mr. Rafael Nin (the "Optionee") and Pepsi-Cola
Puerto Rico Bottling Company, a Delaware corporation (the "Corporation").
WHEREAS the Grantors own the shares of stock of the Corporation set
forth opposite their names on the signature pages hereof, or beneficial
interests in a voting trust holding such shares;
WHEREAS because the Grantors believe that the business of the
Corporation is viable and that it should be preserved on an ongoing basis,
the Grantors are willing to incur some short-term loss in their investment
in order to foster the long-term financial health of the Corporation; and
WHEREAS the Grantors believe that this Agreement is in the best
interest of the Corporation and all of its shareholders in that the grant
of the rights set forth herein will (a) provide flexibility to the
Corporation to pursue ways in which the Corporation's recent financial
losses may be overcome, (b) create alternative means of financing future
capital needs, and (c) encourage stability in the management of the
Corporation.
NOW, THEREFORE, in consideration of the premises and other good and
valuable consideration, the receipt and adequacy of which are hereby
acknowledged, each of the parties herein, intending to be legally bound,
agrees as follows:
<PAGE>
1. GRANT OF OPTION. Subject to Section 3 hereof, the Grantors
---------------
hereby grant to the Optionee an option (the "Option") to buy all of the
5,000,000 shares of Class A Common Stock, par value $0.01 per share (the
"Option Shares"), of the Corporation, at a price of $1.00 per share, as
such price may be adjusted from time to time in accordance with Section 4
below (the "Exercise Price"), which Option may be exercised with respect to
all Option Shares at any time or with respect to some of the Option Shares
from time to time after the date hereof and until 5:00 p.m., San Juan,
Puerto Rico time, on the second anniversary of the date hereof (the
"Expiration Time").
2. EXERCISE OF OPTION. The Option may be exercised at any time and
-------------------
from time to time prior to the Expiration Time by delivery by the Optionee
of a written notice to the Corporation setting forth the number of Option
Shares with respect to which the Option is being exercised. Upon receipt
of such notice, the Corporation shall notify all the Grantors of the number
of Option Shares to be sold by each Grantor, which shall be proportional to
the number of Option Shares beneficially owned by each Grantor which are
subject to this Option, the applicable Exercise Price and the date of
consummation of the sale (the "Closing Date") which shall not be later than
ten business days after receipt of such notice by the Corporation. On the
Closing Date the Grantors (or the trustee of the voting trust referred to
in Section 5) shall deliver to the Secretary of the Corporation the
certificates evidencing the Option Shares to be sold, endorsed in the name
of the Corporation, and the Optionee shall deliver the Exercise Price to
<PAGE>
such Secretary. The Corporation shall then promptly deliver the Exercise
Price to the appropriate Grantors and shall deliver stock certificates
representing the Option Shares being purchased to the order of the Optionee
(or to the order of the trustee of the voting trust referred to in Section
5).
3. RESTRICTIONS ON EXERCISE OF TRANSFERABILITY.
-------------------------------------------
(a) Mr. Rafael Nin shall not be entitled to exercise the Option, but
shall only be permitted to transfer the Option in whole or with respect to
some Option Shares to third parties selected by Mr. Rafael Nin (including
the Corporation), in exchange for such consideration as shall be agreed
upon by Mr. Rafael Nin and such transferee (such consideration to be
delivered to the Corporation and considered as additional paid-in capital
to the Corporation), it being further understood that Mr. Rafael Nin shall
not be entitled to receive any consideration in exchange for such transfer.
Any such transfer of the Option by Mr. Rafael Nin is subject to the
condition that, without PepsiCo Inc.'s prior written approval, which shall
not be unreasonably withheld or delayed, Mr. Rafael Nin will not transfer
all or part of his rights under the Option if such transfer could result in
the trustee of the voting trust referred to in Section 5 hereof, not
controlling at least a majority of the total votes of the Shareholders of
the Corporation (including both Class A and Class B shares). The approval
of PepsiCo Inc. described in the preceding sentence shall be as to both the
person and/or entity to whom the transfer is being made and the terms of
the transfer. References in this Agreement to "Optionee" shall, at any
<PAGE>
time of exercise of the Option, be deemed to be references to the
transferee of the Option.
(b) This Option may not be transferred unless a registration
statement under the Securities Act of 1933 is in effect with respect
thereto or the Corporation shall have received an opinion of counsel to the
effect that such registration is not required.
4. SHARE AND PRICE ADJUSTMENTS. In the event of any stock split,
-----------------------------
extraordinary dividend, combination, reclassification, exchange, or any
other transaction or event that changes the character or amount of the
common stock outstanding prior to the Expiration Time, the parties hereto
agree that adjustments shall be made in (x) the character and number of
Option Shares and (y) the Exercise Price thereof, to make the Options
equivalent to the Options existing prior to such event (it being understood
and agreed that in the event of any merger, consolidation, or other
business combination involving the Corporation, or the partial or complete
liquidation thereof, the Optionee shall be entitled to receive, upon
exercise of its Options, the kind and amount of securities or other
consideration that the Optionee would have received had the optionee
exercised such Options immediately prior to such event).
5. PROVISIONS APPLICABLE IN THE EVENT THAT VOTING TRUST IS IN
-----------------------------------------------------------------
EFFECT. In the event that the voting trust established pursuant to the
- ------
voting trust agreement dated September 28, 1996, to which voting trust the
Grantors or some of them transferred their Option Shares, is in effect at
any time the Option is exercised, then (i) the Option Shares shall continue
to be subject to such voting trust agreement and the Optionee shall not be
<PAGE>
entitled to receive the certificates evidencing such Option Shares, (ii)
references herein to delivery of share certificates representing the Option
Shares shall be disregarded and (iii) references herein to Option Shares
shall include references to the beneficial interests in such voting trust
relating to such shares.
6. COVENANTS. The Grantors agree not to sell, pledge or
---------
otherwise transfer or encumber any of their Option Shares.
7. INDEMNITY. In consideration of the fact that Mr. Rafael Nin will
---------
not personally benefit from the grant of the Option, the Corporation will
indemnify and hold Mr. Rafael Nin harmless from any and all claims,
demands, causes of action, losses, liabilities, damages, judgments or
charges of any kind, including without limitation the cost of defending any
action against him, together with any reasonable attorneys' fees and
investigation costs incurred in connection therewith or in connection with
any potential claim or loss, and including any tax imposed on Mr. Rafael
Nin arising from this agreement, or any other expenses, fees, or charges of
any character or nature, arising in connection with this agreement, unless
and until it is determined in a final unappealable judgment that such
claim, demand, damage or expense arises as a direct result of the willful
misconduct or gross negligence of Mr. Rafael Nin.
8. REPRESENTATIONS AND WARRANTIES. Each of the parties represents
------------------------------
that he, she or it is duly authorized to execute, deliver and perform this
agreement and has duly authorized, executed and delivered this agreement,
and that this agreement is the valid, binding and enforceable obligation of
<PAGE>
such person or entity and does not conflict with any agreement or other
document binding on such person or entity.
9. BINDING EFFECT. This Agreement shall be binding upon and inure
--------------
to the benefit of the parties hereto and their respective successors,
assigns and legal representatives.
10. SPECIFIC PERFORMANCE. The parties recognize and agree that if
--------------------
any of the provisions of this Agreement are not performed in accordance
with their specific terms or are otherwise breached, immediate and
irreparable harm or injury would be caused for which money damages will not
be an adequate remedy. Accordingly, each party agrees that, in addition to
other remedies, the non-breaching parties shall be entitled to an
injunction restraining any violation or threatened violation of the
provisions of this Agreement or to specific performance or other equitable
relief to enforce the provisions of this Agreement. In the event that any
action is brought in equity to enforce the provisions of this Agreement, no
party will allege, and each party hereby waives the defense, that there is
an adequate remedy at law.
11. ENTIRE AGREEMENT. This Agreement constitutes the entire
-----------------
agreement among the parties with respect to the subject matter hereof and
supersedes all other prior agreements and understandings, both written and
oral, between the parties with respect to the subject matter hereof.
12. FURTHER ASSURANCES. Each party will execute and deliver all such
------------------
further documents and instruments and take all such further action as may
<PAGE>
be necessary to give effect to this agreement and consummate the
transactions contemplated hereby.
13. VALIDITY. The invalidity or unenforceability of any provision of
--------
this Agreement shall not affect the validity or enforceability of any other
provisions of this Agreement, which shall remain in full force and effect.
14. GOVERNING LAW. This Agreement shall be governed by and construed
-------------
in accordance with the laws of the Commonwealth of Puerto Rico.
15. COUNTERPARTS. This Agreement may be executed in counterparts,
------------
each of which shall be deemed to be an original, but all of which, taken
together, shall constitute one and the same instrument.
16. AMENDMENTS. This Agreement may not be amended or modified except
----------
by a written agreement, signed by the affected parties hereto.
17. NOTICES. All notices which may or are required to be given under
-------
this Agreement or with respect to it shall be in writing and shall be given
either by personal delivery or by certified or registered mail, and shall
be deemed to have been given or made when personally delivered or five
business days after being deposited in the mail, return receipt requested,
in the case of notice by certified or registered mail, to the following
addresses:
(a) If to the Optionee:
1 Cervantes Street, Apt. 2
Condado
San Juan, Puerto Rico 00907
<PAGE>
(b) If to the Corporation:
PO Box 1709
Hato Rey, Puerto Rico 00919
Attention: President
(c) If to any Grantor, to the address set forth below their
names on the signature pages hereof.
The parties may, by written notice given hereunder, designate any
further or different address to which subsequent notices shall be sent or
persons to whose attention the same shall be directed.
18. EFFECTIVENESS. Anything to the contrary herein notwithstanding,
-------------
this Agreement shall not be effective until (i) PepsiCo, Inc. and Banco
Popular de Puerto Rico have consented to the granting of the Option and
(ii) the Corporation receives an endorsement to its Directors and Officers
liability insurance policy providing that such policy will remain in effect
after the consummation of the transactions contemplated hereby.
<PAGE>
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year first written above.
<TABLE>
<CAPTION>
NAME OF GRANTOR NUMBER AND CLASS
AND ADDRESS FOR OF OPTION SHARES
NOTICES OWNED BY THE GRANTOR
--------------- --------------------
<S> <C>
Charles H. and Patricia B. Beach 2,131,439 Class A
Michael J. Gerrits Investment Ltd. 396,315
Patrick T. Gerrits Investment Ltd. 323,845
Patrick T. Gerrits Irrevocable Trust 36,234
Christine Marie Gerrits Kline 36,234
Irrevocable Trust
Anne Gerrits 126,821
Anita F. Gerrits Trustee 24,156
of Anita F. Gerrits Trust No. 1
James C. and Laurie L. Keavney 66,430
James C. Keavney, Trustee 12,078
for Laurie L. Keavney Irrevocable
Generation Skipping Trust
Laurie L. Keavney, Trustee 12,078
for James C. Keavney Irrevocable
Generation Skipping Trust
Thomas J. Lawless 5,661
Ronald Robison 5,661
William A. Proulx 5,661
James J. O'Brien Estate 5,661
Michael J. Gerrits 943,605
Lumiye Int. S.A. 264,210
c/o Elmac S.A.
Krauser Family Investments Ltd. 209,355
Krauser Irrevocable Education Trust 6,039
Rose Krauser Irrevocable Generation 18,117
Skipping Trust
Charles R. Krauser Irrevocable Generation Skipping 18,117
Trust
Goltra Family Investments Ltd. 203,315
John R. Goltra Irrevocable 24,156
Generation Skipping Trust
<PAGE>
Janet L. Goltra Irrevocable 24,156
Generation Skipping Trust
Dorothy D'Angelo 251,628
Haas Financial Corp. 531,250 Class B
John Wm. Beck 339,698
</TABLE>
/S/ RAFAEL NIN
-------------------------------
Rafael Nin
PEPSI-COLA PUERTO RICO BOTTLING COMPANY
By: /S/ RAFAEL NIN
------------------------------------
Rafael Nin
VOTING TRUST AGREEMENT AND IRREVOCABLE PROXY
VOTING TRUST AGREEMENT AND IRREVOCABLE PROXY dated September 28,
1996, by and among the individuals set forth in the signature pages hereof
(collectively referred to herein as the "Shareholders"), Mr. Rafael Nin, as
trustee (the "Trustee"), Pepsi-Cola Puerto Rico Bottling Company (the
"Corporation").
WHEREAS the Shareholders own Class A shares of stock of the
Corporation set forth opposite their names on the signature pages hereof;
and
WHEREAS the Shareholders believe that it is in the best interest
of the Corporation that they grant to the Trustee the irrevocable powers
hereinafter set forth;
NOW, THEREFORE, in consideration of the premises and other good
and valuable consideration, the receipt and adequacy of which are hereby
acknowledged, each of the parties herein, intending to be legally bound,
agrees as follows:
1. VOTING TRUST. The Shareholders hereby create and
irrevocable voting trust (the "Trust") under the following terms and
conditions:
(a) The Shareholders shall, upon execution of this Agreement,
deposit the stock certificates representing the shares of stock of the
Corporation set forth opposite their names on the signature pages hereof
with the Trustee.
(b) The shares of stock of the Corporation so deposited with the
Trustee shall be transferred in the stock ledger of the Corporation to the
name of "Mr. Rafael Nin, Trustee". During the period when the Trust shall
be in force, the Trustee shall possess legal title to such shares of stock
deposited with him (but not the beneficial ownership of such shares), and
shall be entitled to exercise all rights of every kind (other than the
right to retain dividends paid and other distributions made with respect to
such shares, except to the extent necessary to reimburse the Trustee as set
forth in Section 1(j) hereof), including without limitation the right to
vote in person or by proxy and such shares of stock deposited within upon
any and all matters that are brought up for vote to the Corporation's
shareholders; provided, however, that, in the case of any proposed
transaction between the Corporation and the Trustee or in which the Trustee
has a personal pecuniary interest (other than an interest shared generally
by shareholders of the Corporation) the Trustee shall not vote such shares
but shall grant a proxy to one or more disinterested directors of the
Corporation or any committee of disinterested directors of the Corporation,
in each case selected by the Board of Directors of the Corporation (without
the participation of the Trustee); and provided further that, in the case
of the proposed issuance of options to purchase approximately 1,516,666
shares of common stock of the Corporation to Mr. Rafael Nin, the
<PAGE>
Shareholders hereby instruct the Trustee and the holder of any proxy
granted by the Trustee to vote in favor of such issuance.
(c) The Trust shall be effective and remain in full force and
effect for a period of five (5) years from the date of execution hereof
(the "Original Term") which term shall be automatically renewed for an
additional five (5) year period (the "Renewal Term") unless either PepsiCo
Inc. or the Trustee notify the other party of non-renewal at least six (6)
months prior to the end of the initial five (5) year period; provided,
however, that such non-renewal by PepsiCo., Inc. shall not be unreasonably
withheld. Anything herein to the contrary notwithstanding, Mr. Rafael Nin
may earlier terminate this Agreement during the Original Term or the
Renewal Term, as the case may be, (i) at any time at this sole and
exclusive discretion upon written notice thereof to the Corporation, (ii)
upon the death or incapacity of Mr. Rafael Nin and (iii) as provided in
paragraph (g) below. In addition, the Trustee may, at his sole and
exclusive discretion upon notice to the Corporation, release some of the
shares subject to the Trust, either unconditionally or subject to the stock
option agreement being executed substantially simultaneously herewith or to
such other restrictions and conditions as may be agreed between the Trustee
and the beneficial owner of such shares. In addition to the foregoing, in
the event of non-renewal by Mr. Rafael Nin, or the Corporation, or in the
event of Mr. Rafael Nin's notice of termination, death or incapacity during
the Original Term or the Renewal Term, as the case may be, PepsiCo., Inc.
shall, for a period of ninety (90) days after such termination, have the
right to appoint a substitute Trustee, subject to the consent of the
beneficial owners of a majority of the Class A shares, which consent will
not be unreasonably withheld or delayed. During the time between such
notice, death or incapacity and the appointment of the substitute Trustee,
the Board of Directors shall elect a committee of three members of such
Board which shall vote the shares within the Trust, by decision of the
majority thereof, as Interim Trustee of the Trust. The designation by the
Board of such committee of three members of the Board shall become the
substitute Trustee for a term not greater than ninety (90) days. In the
event PepsiCo, Inc. and the Shareholders are unable to agree to a
substitute Trustee within such ninety (90) days term, the Trust will
effectively terminate.
Upon termination of the Trustee or upon release of any shares
from the Trust, the Trustee shall surrender the stock certificates held by
the Trust, or the stock certificates relating to the shares being released,
as the case may be, duly endorsed in the name of the Shareholders or their
designees, to the Corporation so that the Corporation may issue the
corresponding stock certificates to the Shareholders of their designees.
This Agreement may not be terminated by any Shareholder.
(d) The Shareholders will not sell, transfer, encumber, or
otherwise dispose of their respective shares of stock deposited with the
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<PAGE>
Trustee under this Trust or any beneficial interest therein.
(e) The Shareholders will, severally, in proportion to the
number of shares beneficially owned by them which are subject to this
Voting Trust Agreement, indemnify and hold the Trustee harmless from any
and all claims, demands, causes of action, losses, liabilities, damages,
judgments or charges of any kind, including without limitation the cost of
defending any action against him, together with any reasonable attorneys'
fees and investigation costs incurred in connection therewith or in
connection with any potential claim or loss, or any other expenses, fees,
or charges of any character or nature, arising in connection with this
Voting Trust Agreement, unless and until it is determined in a final
unappealable judgment that such claim, demand, damage or expense arises as
a direct result of the willful misconduct or gross negligence of the
Trustee. To the extent that the Trustee is unable to enforce this
indemnity against any Shareholder, the Corporation shall indemnify the
Trustee to the same extent required from such Shareholder.
(f) The Trustee shall cause all dividends (except stock
dividends, which shall be deposited and subject to the Trust) and other
distributions paid by the Company to the Trustee with respect to the shares
of stock held in the Trust to be distributed among the Shareholders in
accordance with their interests in the Trust, after deducting expenses
reimbursable to the Trustee.
(g) In the event of a merger or consolidation involving the
Corporation and in which the Corporation is not the surviving entity, the
Trust shall terminate on the effective date of said consolidation or merger
unless the Trustee gives notice not later than thirty (30) days after said
merger or consolidation to the Shareholders of an election to continue this
Agreement for its full term, substituting where appropriate the voting
shares issued in said consolidation or merger for the shares initially
deposited with the Trustee.
(h) In voting on all matters which may be voted on by the
shareholders of the Corporation and in discharging his responsibilities and
exercising his rights hereunder, the Trustee shall incur no liability to
any Shareholder, by reason of any error of law or otherwise, unless it
shall have been determined by a final unappealable judgment that the
Trustee acted with gross negligence or engaged in willful misconduct.
(i) The Shareholders agree to cooperate fully with the Trustee
and to do all further acts and things requested by the Trustee to more
fully carry out and give effect to this Agreement and to permit the Trustee
to comply with applicable laws and regulations in all matters related to
the shares deposited with the Trustee, including without limitation the
execution of proxies in favor of the Trustee, the execution of any public
3
<PAGE>
deeds that may be required under applicable law and the preparation and
filing of any reports required by any applicable law or regulation.
(j) The Trustee shall be entitled to reimbursement from the
Trust or, in the event that the Trust shall have no cash, from the
Corporation, of all expenses incurred in connection with this Agreement and
to deduct any such expenses from amounts distributable to Shareholders, but
shall not be otherwise entitled to any compensation for his services as
Trustee.
2. ACKNOWLEDGMENT BY SHAREHOLDERS. The Shareholders hereby
acknowledge and agree to all of the terms and conditions contained in the
PepsiCo, Inc. consent letter dated September 24, 1996, attached hereto.
3. PROXY. The Shareholders hereby grant to the Trustee a proxy
to vote the shares held by the Trustee pursuant to this Voting Trust
Agreement which, being coupled with an interest, shall be irrevocable until
the termination of the Trustee.
4. ENTIRE AGREEMENT. This Agreement constitutes the entire
agreement between the parties on the subject matter of this Agreement, and
supersedes any and all prior negotiations, correspondence, agreements and
understandings.
5. SEVERABILITY. If any provision of this Agreement is held to
be unenforceable, the remainder of this Agreement shall not be affected
thereby.
6. AMENDMENTS. This Agreement may not be amended or modified
except by a written agreement signed by the affected parties hereto.
7. ASSIGNMENT. This Agreement may not be assigned by any party
without the consent of the other parties hereto. This Agreement shall be
binding upon the heirs, successors, administrators, executors and assigns
of each of the parties hereto.
8. NO WAIVER. Any waiver by a party of a breach of any
provision of this Agreement shall not operate as or be construed to be a
waiver of any other breach of such provision or of any other provision of
this Agreement. The failure of a party to insist on strict adherence to
any term of this Agreement shall not be considered a waiver or deprive that
party of the right thereafter to insist upon strict adherence to that term
or any other term of this Agreement.
9. GOVERNING LAW. This Agreement shall be governed by and
construed in accordance with the laws of the Commonwealth of Puerto Rico
and, with respect to matters covered by the Delaware General Corporation
Law, including without limitation the validity of this Voting Trust
Agreement and the formalities related thereto, by the Delaware General
Corporation Law.
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<PAGE>
10. CAPTIONS. The captions of the various sections of the
Agreement are included for convenience of reference only and shall in no
way affect the construction or interpretation of this Trust.
11. NOTICES. All notices which may or are required to be given
under this Agreement or with respect to it shall be in writing and shall be
given by personal delivery or by certified or registered mail, and shall be
deemed to have been given or made when personally delivered or five
business days after being deposited in the mail, return receipt requested,
in the case of notice by certified or registered mail, to the following
addresses:
(a) If to the Trustee:
1 Cervantes Street, Apt. 2
Condado
San Juan, Puerto Rico 00907
(b) If to the Corporation:
PO Box 1709
Hato Rey, Puerto Rico 00919
Attention: President
(c) If to any Shareholder, to the address set forth below their
names on the signature pages hereof.
The parties may, by written notice given hereunder, designate any
further or different address to which subsequent notices shall be sent or
persons to whose attention the same shall be directed.
12. EFFECTIVENESS. Anything to the contrary herein
notwithstanding, this Agreement shall not be effective until (i) PepsiCo.
Inc. and Banco Popular de Puerto Rico have consented to the transactions
contemplated hereby and (ii) the Corporation receives an endorsement to its
Directors and officers liability insurance policy providing that such
policy will remain in effect after the consummation of the transactions
contemplated hereby.
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the day and year first written above.
<TABLE>
<CAPTION>
Number and Class
Name of Shareholders of Shares being
and Address for Deposited in the
Notices Trust Signature
- ------------------------------------------------------ --------------------------- -----------------------
<S> <C> <C>
MICHAEL J. GERRITS INVESTMENT LTD 396,315
PATRICK T. GERRITS INVESTMENT LTD 323,845
PATRICK T. GERRITS IRREVOCABLE TRUST 36,234
CHRISTINE MARIE GERRITS KLINE IRREVOCABLE TRUST 36,234
5
<PAGE>
</TABLE>
<TABLE>
<CAPTION>
Number and Class
Name of Shareholders of Shares being
and Address for Deposited in the
Notices Trust Signature
- ------------------------------------------------------ --------------------------- -----------------------
<S> <C> <C>
ANNE GERRITS 126,821
ANITA F. GERRITS TRUSTEE OFANITA F. GERRITS TRUST NO. 1 24,156
JAMES C. AND LAURIE L. KEAVNEY 66,430
JAMES C. KEAVNEY, TRUSTEE FOR LAURIE L. KEAVNEY 12,078
IRREVOCABLE GENERATION SKIPPING TRUST
LAURIE L. KEAVNEY, TRUSTEE FOR JAMES C. KEAVNEY 12,078
IRREVOCABLE GENERATION SKIPPING TRUST
THOMAS J. LAWLESS 5,661
RONALD ROBINSON 5,661
WILLIAM A. PROULX 5,661
JAMES J. O'BRIEN ESTATE 5,661
John Wm Beck 339,698
Charles H. & Patricia B. Beach 2,131,439
Michael J. Gerrits 943,605
Lamiye Int. S.A. 264,210
c/o Elmac S.A.
Krauser Family Investments Ltd. 209,355
c/o Atlantic Development & Management Inc., SE
Via Mizner Financial Plaza
700 S. Federal Highway, Suite 100
Boca Raton, FL 33432
Krauser Family Investments Ltd. 6,039
c/o Atlantic Development & Management Inc., SE
Via Mizner Financial Plaza
700 S. Federal Highway, Suite 100
Boca Raton, FL 33432
Rose Krauser Irrevocable Generation 18,117
Skipping Trust
c/o Atlantic Development & Management Inc., SE
Via Mizner Financial Plaza
700 S. Federal Highway, Suite 100
Boca Raton, FL 33432
Charles R. Krauser Irrevocable 18,117
Generation Skipping Trust
c/o Atlantic Development & Management Inc., SE
Via Mizner Financial Plaza
700 S. Federal Highway, Suite 100
Boca Raton, FL 33432
Goltra Family Investments Ltd. 203,315
c/o Atlantic Development & Management Inc., SE
Via Mizner Financial Plaza
700 S. Federal Highway, Suite 100
Boca Raton, FL 33432
John R. Goltra Irrevocable 24,156
Generation Skipping Trust
c/o Atlantic Development & Management Inc., SE
Via Mizner Financial Plaza
700 S. Federal Highway, Suite 100
Boca Raton, FL 33432
6
<PAGE>
Janet L. Goltra Irrevocable 24,156
Generation Skipping Trust
c/o Atlantic Development & Management Inc., SE
Via Mizner Financial Plaza
700 S. Federal Highway, Suite 100
Boca Raton, FL 33432
Dorothy D'Angelo 251,628
c/o Atlantic Development & Mgmt. Corp.
30 Technology Drive, P.O. Box 4500
Warrent, NJ 07059
Haas Financial Corp. 531,250 Shares
230 Park Avenue Class B
New York, N.Y. 10169
</TABLE>
/S/ RAFAEL NIN
----------------------------------
Rafael Nin, as Trustee
PEPSI-COLA PUERTO RICO
BOTTLING COMPANY
By: /S/ RAFAEL NIN
-------------------------------
Rafael Nin
7
<PAGE>
