AMENDMENT
---------------------------
OMB APPROVAL
---------------------------
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
SCHEDULE 13D
UNDER THE SECURITIES EXCHANGE ACT OF 1934
(AMENDMENT NO. 1)*
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 09949, (787) 251-2000
- --------------------------------------------------------------------------------
(Name, Address and Telephone Number of Person Authorized to Receive Notices and
Communications)
OCTOBER 15, 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 <square>.
(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
<PAGE>
SCHEDULE 13D
CUSIP NO. 713434 10 8 Page 2 of 5 Pages
----------- -----------------
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*
OO
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
8 SHARED VOTING POWER
BENEFICIALLY
0
OWNED BY
9 SOLE DISPOSITIVE POWER
EACH
5,212,500 SHARES OF COMMON STOCK
REPORTING
10 SHARED DISPOSITIVE POWER
PERSON
0
WITH
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
5,212,500 SHARE OF COMMON STOCK
1,706,667 SHARES OF COMMON STOCK BENEFICIALLY OWNED PURSUANT TO GRANTS
OF OPTIONS
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
*SEE INSTRUCTIONS BEFORE FILLING OUT!
INCLUDE BOTH SIDES OF THE COVER PAGE, RESPONSES TO ITEMS 1-7
(INCLUDING EXHIBITS) OF THE SCHEDULE, AND THE SIGNATURE ATTESTATION.
<PAGE>
ITEM 1. Security and Issuer.
-------------------
This Amendment No. 1 to Schedule 13D is being filed to amend the
initial Schedule 13D filed by Rafael Nin on October 9, 1996 relating to his
ownership of shares of Class A Common Stock, par value $0.01 per share
("Class A Shares") and 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"). Except as specifically indicated in this Amendment No. 1,
the information contained in the original filing of the Schedule 13D
remains unchanged.
ITEM 2. Identity and Background.
-----------------------
No Change.
ITEM 3. Source and Amount of Funds or Other Consideration.
-------------------------------------------------
The Company granted stock options on October 15, 1996 to Mr. Nin
to acquire (i) one million five hundred sixteen thousand six hundred sixty-
seven (1,516,667) Class B Shares (the "Nin Stock Option") and one hundred
ninety thousand (190,000) shares of Class B Common Stock (the "Company
Stock Option"), both at an exercise price of $5.00 per share. The Nin
Stock Option is exercisable in whole or in part commencing October 15, 1996
and will be unlimited in duration until exercised in full, subject to the
terms of the Stock Option Agreement dated as of October 15, 1996 (the
"Stock Option Agreement") relating to the Nin Stock Option. The Company
Stock Option is exercisable in whole or in part commencing October 15, 1996
for a period of 10 years after December 30, 1996, subject to the terms of
the Company's Qualified Stock Option Plan (the "Stock Option Plan") and
form of option Subscription Agreement thereunder, both dated as of December
30, 1996.
ITEM 4. Purpose of Transaction.
----------------------
The purpose of the grant of the Nin Stock Option and the Company
Stock Option to Mr. Nin is to give Mr. Nin additional incentives to further
the business success 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 (the
Class A Shares and Class B Shares are treated as one class for this purpose
because each Class A Share is exchangeable for a Class B Share):
PAGE
<PAGE>
<TABLE>
<CAPTION>
Class of Shares Aggregate Number of Shares Percentage of Class
- --------------- -------------------------- -------------------
<S> <C> <C>
Class A Shares 5,000,000 23.26%
Class B Shares 212,500 0.98%
Options to Acquire Class B Shares 1,706,667 N/A*
<FN>
_______________
* If all 1,706,667 Class B Shares were issued pursuant to the exercise
of these options they would represent 7.52% of the then outstanding
shares of Common Stock.
</FN>
</TABLE>
The 212,500 Class B Shares are held individually and the
5,000,000 Class A Shares are held under a voting trust agreement and are
disposable upon the exercise of the outstanding stock options granted under
a stock option agreement (see the Schedule 13D as originally filed).
(b) There have been no transactions involving any class of
shares during the past sixty days other than the transactions described in
Item 3 above.
ITEM 6. Contracts, Arrangements, Understandings or Relationships with
Respect to Securities of the Issuer.
--------------------------------------------------------------
The information contained in the Stock Option Agreement and the
Stock Option Plan and Rafael Nin option Subscription Agreement issued
thereunder (which are filed as exhibits to this Schedule 13D), which
describe their respective terms, are incorporated herein by reference.
ITEM 7. Materials To Be Filed As Exhibits.
---------------------------------
1. Stock Option Agreement dated as of October 15, 1996 between
Pepsi-Cola Puerto Rico Bottling Company and Rafael Nin.
2. Pepsi-Cola Puerto Rico Bottling Company Qualified Stock
Option Plan and Rafael Nin option Subscription Agreement issued
thereunder, both dated as of October 15, 1996.
2
PAGE
<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.
/s/ Rafael Nin
--------------------------------
Rafael Nin
January 7, 1997
3
<PAGE>
STOCK OPTION AGREEMENT
This Agreement, dated as of October 15, 1996, is made by and between
PEPSI-COLA PUERTO RICO BOTTLING COMPANY, a corporation organized and
existing under the laws of the State of Delaware (hereinafter the
"Company"), and RAFAEL NIN, of legal age, married, President of the Company
and a resident of San Juan, Puerto Rico (hereinafter the "Optionee").
W I T N E S S E T H
WHEREAS, Optionee, in his capacity as President of the Company,
provided executive, management and other professional services to the
Company; and
WHEREAS, the Company desires to afford Optionee the opportunity to
subscribe shares of Class B common stock of the Company; and
WHEREAS, the Board of Directors of the Company (the "Board of
Directors") in a duly convened meeting, has determined that it would be in
the best interest of the Company and its shareholders to grant the option
provided for herein to Optionee to give optionee an additional incentive to
further the business success of the Company.
NOW, THEREFORE, in consideration of the premises, the mutual covenants
contained herein, and for other good and valuable consideration, receipt of
which is hereby acknowledged, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.01 CERTAIN DEFINITIONS. Whenever the following terms are
used in this Agreement, they shall have the respective meanings specified
below unless the context clearly indicates the contrary.
(a) "Class B Shares" shall mean the shares of Class B common stock of
the Company, at anytime issued and outstanding, having a par value of $0.01
and having one (1) vote per share.
(b) "Option" shall mean the option to subscribe Option Shares (as
hereinafter defined) granted under this Agreement.
(c) "Person" shall mean an individual or corporation, partnership,
trust, incorporated or unincorporated association, joint venture, joint
stock company, government (or any agency or political subdivision thereof)
or other entity of any kind.
(d) "Successor Entity" shall mean any corporation or other Person or
entity which acquires or succeeds to the business of the Company, whether
<PAGE>
by way of merger, consolidation, sale of assets, another business
combination, or otherwise.
ARTICLE II
GRANT OF OPTION
SECTION 2.01. GRANT OF OPTION. For purposes of giving Optionee
additional incentive in furthering the business success of the Company, the
Company hereby irrevocably grants to Optionee the option to subscribe up to
such amount of Class B Shares of the Company equal to One Million Five
Hundred Sixteen Thousand Six Hundred Sixty Seven (1,516,667) Class B Shares
(the "Option Shares") in whole or in part, on such terms and conditions as
set forth in this Agreement.
SECTION 2.02. PURCHASE PRICE. The purchase price of each Option
Share payable by Optionee upon exercise of the Option shall be Five Dollars
($5.00) per Class B Share (the "Purchase Price").
SECTION 2.03. ADJUSTMENTS IN OPTION. (a) In the event that the
aggregate number of Class B Shares of the Company is changed into or
exchanged for a different number, class or kind of shares of the Company or
other securities of the Company or of a Successor Entity by reason of
merger, consolidation, corporate reorganization, recapitalization,
reclassification, stock split, stock dividend, combination of shares, or
otherwise, the Board of Directors or the board of directors or governing
body of any Successor Entity, shall make, an appropriate and equitable
adjustment in the number and kind of Option Shares as to which the Option
is then yet unexercised to the effect that, after such event, the Option
Shares as to which the Option is then unexercised shall represent the same
ownership interest in the Company (or that part of a Successor Entity
which consists of the Company) represented immediately after such event as
such Option Shares represented immediately before such event. In no event
shall the Option Shares include any fractional share or part thereof. Any
fractions resulting from any such adjustment shall be rounded to the
nearest whole Class B Share. Any such adjustment made in accordance with
the terms of this Section 2.03 by the Board of Directors shall be
conclusive and shall bind Optionee, the Company, any Successor Entity or
any other interested Persons.
(b) In the event of any distribution to the shareholders of the
Company of any shares of Buenos Aires Embotelladora, S.A. ("BAESA")
beneficially owned by the Company, through its interest in Argentine
Bottling Associates, a Delaware general partnership, the Company shall deem
the Option Shares as issued for purposes of any such distribution, the
Company shall retain the shares of BAESA that would be distributed on
account of such Option Shares deemed issued, and thereupon Optionee shall
have the right Option shall automatically include the right to acquire,
without any adjustment to the Purchase Price, the shares of BAESA which
correspond to the Option Shares based on such distribution. The Option
Shares that may deemed issued hereunder and applicable to such BAESA shares
2
<PAGE>
and subject to the obligations of the Company as set forth above, shall
include any other class or kind of shares or other securities of BAESA or a
Successor Entity received by the Company in exchange for the BAESA Shares
by reason of merger, consolidation, corporate reorganization,
recapitalization, reclassification, stock split, stock dividend,
combination of shares or otherwise involving BAESA.
ARTICLE III
EXERCISE OF OPTION
SECTION 3.01. EXERCISE OF OPTION. The Option shall be unlimited in
duration and may be exercised in whole or in part until exercised in full
in accordance with the terms hereof.
SECTION 3.02. PERSONS ELIGIBLE TO EXERCISE. The Option granted
hereunder may only be exercised by Optionee, its successors or permitted
assigns, including without limiting the generality of the foregoing, the
estate of Optionee.
SECTION 3.03. PARTIAL EXERCISE. Subject to the restrictions of
Section 3.01, the Option may be exercised in whole or in part at any time.
SECTION 3.04. METHOD OF EXERCISE. Subject to the restrictions of
Section 3.01, the Option may be exercised in whole or in part, to the
extent not theretofore exercised, and by the delivery to the office of the
Board of Directors of all of the following:
(a) Notice in writing signed by Optionee or the other Person then
entitled to exercise the Option or such portion, stating that the Option or
such portion is hereby exercised;
(b) Full payment (in cash, wire transfer or by check) for the Option
Shares with respect to which the Option or such portion is exercised, at
the price calculated in accordance with Section 2.02 hereof; and
(c) In the event the Option shall be exercised in whole or in part
pursuant to Section 3.02 hereof by any Person or Persons other than
Optionee, appropriate proof of the right of such Person or Persons to
exercise the Option.
SECTION 3.05. ISSUANCE OF OPTION SHARES. The Option Shares, or any
part thereof, shall be Class B Shares which have been authorized but not
previously issued or subscribed. The Option Shares, when issued and
delivered pursuant to any exercise of the Option, shall be fully paid and
nonassessable, subject to all the terms and conditions of this Agreement.
SECTION 3.06. RIGHTS OF OPTIONEE. Optionee, as such, shall not be,
and not have any of the rights or privileges of a shareholder of the
Company in respect of any Option Shares unless and until such Option Shares
3
<PAGE>
shall have been subscribed by Optionee, and delivered by the Company to
Optionee in accordance with this Agreement.
ARTICLE IV
OPTIONEE'S REPRESENTATIONS, WARRANTIES AND COVENANTS
Optionee represents, warrants, and agrees with the Company as follows:
SECTION 4.01. REVIEW OF DOCUMENTS. Optionee has been granted access
to and has reviewed carefully copies of all annual and other periodic or
occasional financial reports of the Company prior to the date of this
Agreement and will review carefully all such reports and statements
hereafter as such shall be issued by the Company from time to time until
the Option shall have been exercised in full or shall have expired.
Optionee is entering into this Agreement and the transactions contemplated
hereby solely in reliance on Optionee's own investigation and review.
SECTION 4.02. ACQUISITION OF OPTION SHARES FOR OWN ACCOUNT. Optionee
will acquire the Option Shares, if at all, pursuant to this Agreement with
Optionee's own funds, and not with the funds of any other Person. The
Option Shares will be acquired, if at all, for Optionee's own account, not
as a nominee or agent and not for the account of any other Person. No
other Person will have any interest, beneficial or otherwise, in any of the
Option Shares, unless upon the assignment of any Options by Optionee to his
successors, heirs or legatees as herein set forth. Optionee is not
obligated to transfer any of the Option Shares or any interest therein to
any other Person nor has Optionee entered into any agreement or
understanding to transfer said Option Shares. Optionee will acquire the
Option Shares, if at all, for an indefinite period for investment purposes
only and not with a view to the sale or distribution by public or private
sale or other disposition, and does not have the intention of selling,
granting any participation in or otherwise distributing or disposing of any
or all of the Option Shares or any interest therein, except as herein
provided or by applicable securities laws. Optionee does not intend to
subdivide Optionee's acquisition of any Option Shares with any other
Person.
SECTION 4.03. NATURE OF OPTION SHARES. Optionee is (or will be at
the time of any acquisition of Option Shares) able to bear the economic
risk of any investment in Option Shares and is aware that it must be
prepared to hold any Option Shares received for an indefinite period of
time and that such Option Shares have not been registered under the
Securities Act of 1933, as amended.
SECTION 4.04. SOPHISTICATION OF OPTIONEE. Optionee has such
knowledge and experience in financial and business matters that Optionee is
capable of evaluating the merits and risks of the prospective investment by
Optionee contemplated by this Agreement and Optionee has carefully reviewed
and/or will carefully review all of the information regarding the Company,
access to which has been or will be provided to Optionee hereunder and
4
<PAGE>
Optionee is thoroughly familiar with the business, operations and
properties of the Company by virtue of such review and of Optionee's
relationship with the Company.
SECTION 4.05. AGREEMENT TO REFRAIN FROM RESALES. Without in any way
qualifying Optionee's representations delivered hereunder, Optionee further
agrees that upon exercise of its rights hereunder, Optionee shall in no
event make any disposition of all, or any part of, or interest in, the
Option Shares and that Optionee shall not encumber, pledge, hypothecate,
sell or otherwise transfer the Option Shares nor shall Optionee receive any
consideration for the Option Shares or for any interest therein from any
Person, and if Optionee intends to dispose of the Option Shares hereunder,
until prior to any proposed transfer, encumbrance, disposition, pledge,
hypothecation or sale of any of the Option Shares, either (a) a
registration statement on Form S-1 (or any other form replacing such form
or appropriate for such purpose) under the Act with respect to the Option
Shares proposed to be transferred or otherwise disposed of shall then be
effective, or (b) (i) Optionee shall have notified the Company of the
proposed disposition and shall have furnished the Company with a detailed
statement of the circumstances surrounding the proposed disposition, (ii)
Optionee shall have furnished the Company with an opinion of counsel in
form and substance satisfactory to the Company to the effect that such
disposition will not require the registration of any of the Option Shares
under the Act or qualification of the Option Shares under any other
securities law, and (iii) counsel for the Company shall have concurred with
such opinion of counsel and the Company shall have advised and given notice
to Optionee of such concurrence.
SECTION 4.06. OPTION SHARES CONSTITUTE "RESTRICTED SECURITIES". The
Option Shares, if and when subscribed, will constitute "restricted
securities, as such term is defined in Rule 144 of the Act, and
accordingly, the Option Shares must be held indefinitely, until
subsequently registered under the Act, an exception from such registration
is available or the Option Shares are resold in conformance with Rule 144.
Option Shares may be resold pursuant to Rule 144 under the Act only after
being held for two (2) years following payment by Optionee of the full
subscription price for all of the Option Shares which are proposed to be
resold by Optionee and thereafter only in conformance with the volume
requirements of Rule 144.
SECTION 4.07. OPTION NOT ASSIGNABLE. The Option herein granted to
Optionee may not be assigned or conveyed by Optionee to any Person or
Persons without the prior written consent of the Company, except to his
successors, permitted assigns, personal or legal representatives, heirs and
legatees, or as otherwise permitted hereunder.
5
<PAGE>
ARTICLE V
REGISTRATION RIGHTS
SECTION 5.01. COMPANY COMPLIANCE WITH CONDITIONS TO SALE OF
RESTRICTED SECURITIES. The Company will cooperate with the Optionee in
supplying such information as may be necessary for the Optionee 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 Securities Act of 1933, as amended
(the "Act") for the sale of restricted securities.
SECTION 5.02. "PIGGYBACK" REGISTRATION. 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, (ii) on Form S-4 or any successor form, (iii) with respect
to any dividend reinvestment plan of the Company, or (iv) pursuant to
Section 5.03), 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 the Optionee for registration of Option Shares, the
Company shall (i) 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 effective with respect to, the
Option Shares as to which Optionee requests registration, and (ii) if such
proposed registration is in connection with an underwritten offering, upon
request of Optionee cause the managing underwriter therefor to include in
such offering the Option Shares as to which the Optionee 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 5.02 without
any obligation to the Optionee.
SECTION 5.03. DEMAND REGISTRATION. Whenever Optionee shall make a
written request to the Company to register under the Act any Option Shares,
the Company within five days after such request is effective shall promptly
file a registration statement with respect to and use its best efforts to
register the Option Shares requested by Optionee to be registered.
SECTION 5.04. OTHER PROVISIONS RELATING TO REGISTRATION RIGHTS. In
connection with any registration pursuant to this Article:
(i) Upon the request of the Optionee, the Company will
cooperate with any underwriters (as defined in the Act) for the
Optionee, including, without limitation, providing such information,
certificates, comfort letters of accountants and opinions of counsel
as may be reasonably requested by such underwriters.
6
<PAGE>
(ii) The Company shall not be required to maintain the
effectiveness of any registration statement under Section 5.02 or 5.03
for a period in excess of six months or, in the case of an
underwritten offering, such longer period as may be required by the
Act to enable the underwriters to complete such offering.
(iii) The Company will furnish to the Optionee (i) at least
seven days prior to the filing thereof with the SEC, a copy of the
registration statement in the form in which the Company proposes to
file the same with the SEC and, not later than the effective date
thereof, a copy of any and all amendments to such registration
statement, (ii) within five days of the filing thereof with the SEC, a
copy of any and all post-effective amendments to such registration
statement, and (iii) at the request of Optionee and, in the case of a
registration pursuant to Section 5.03, the Holders' Managers (as
defined below), a reasonable number of copies of a preliminary
prospectus and a final prospectus (each of which shall, as of their
respective dates, comply with Section 10 of the Act and shall not, as
ofsuch dates, include an untrue statement of a material fact or omit
to state a material fact required to be stated therein or necessary to
make the statements therein not misleading) covering the offering and
sale by the Optionee of the Option Shares to be covered thereby as
aforesaid.
(iv) The Company will advise the Optionee of the entry of
any stop order suspending the effectiveness of such registration
statement or of the initiation of any proceeding for that purpose,
and, if such stop order should be entered, use its best efforts
promptly to cause such stop order to be lifted or removed.
(v) For such period of time (not exceeding the maximum
period of time for which the Company is required to maintain the
effectiveness of such registration statement) as the Optionee may be
required by law to deliver a prospectus in connection with a sale of
any Option Shares pursuant to such registration statement, if any
event shall occur as a result of which it is necessary to amend or
supplement the prospectus forming a part of such registration
statement in order to correct an untrue statement of a material fact,
or an omission to state a material fact necessary to make the
statements therein, in the light of the circumstances existing when
such prospectus is delivered to a purchaser, not misleading, or if it
is necessary to amend or supplement such prospectus to comply with any
law, the Company will forthwith prepare and furnish to the Optionee
and, in the case of a registration pursuant to Section 5.03, the
Holders' Managers, a reasonable number of amended or supplemented
prospectuses so that statements in the prospectuses as so amended or
7
<PAGE>
supplemented will not, in the light of the circumstances then
existing, be misleading, or so that such prospectuses will comply with
law.
(vi) At any time prior to the filing of a registration
statement pursuant to Section 5.03, the Optionee may select an
investment banker or bankers (collectively, the "Holders' Managers")
which shall be satisfactory to the Company, and the offering pursuant
to such registration statement shall be made through the Holders'
Managers. The Company shall enter into an underwriting agreement in
customary form with the Holders' Managers. Such underwriting
agreement will contain indemnification and contribution provisions
substantially identical to those set forth in clauses (ix) and (x)
below or otherwise acceptable to the underwriters.
(vii) The Company will qualify, file or register the Option
Shares being registered under the securities laws of such states of
the United States of America and of the Commonwealth of Puerto Rico as
may be reasonably designated by the Optionee or by the Holders'
Managers and will obtain the consent, authorization or approval of any
governmental agency (other than any such consent, authorization or
approval required under any statute or regulation applicable to the
Optionee and not applicable to investors generally) required in
connection with the sale of the Option Shares being registered or in
order that the Optionee may publicly sell the Option Shares covered by
such registration statement.
(viii) All fees, disbursements and expenses incurred by the
Company in connection with any registration pursuant to Section 5.02
or 5.03 shall be borne by the Company, including, without limitation,
all registration and filing fees, all costs of preparation and
printing (in such quantities as the Optionee, or the Holders'
Managers, may reasonably request) 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 such legal
opinions, auditors' comfort letters or other closing documents as the
Optionee, or as the Holders' Managers shall reasonably request. All
underwriting commissions, expenses of the Holders' Managers and fees
and expenses of counsel to the Optionee shall be paid for by Optionee.
(ix) The Company will indemnify and hold harmless the
Optionee and any underwriter (as defined in the Act) for each person
or entity if any who controls such underwriter within the meaning of
the Act or the Exchange Act, against any losses, claims, damages,
liabilities, costs or expenses, joint or several, or actions in
respect thereof to which Optionee or underwriter or controlling person
or entity may become subject under the Act, the Exchange Act, state
8
<PAGE>
securities or Blue Sky laws, or otherwise, insofar as such losses,
claims, damages, liabilities, costs, expenses or actions in respect
thereof arise out of, or are based upon, or are related to, any untrue
statement or alleged untrue statement of any material fact contained
in any registration statement under which Option Shares of Optionee
were registered under the Act, any preliminary prospectus, amended
preliminary prospectus, or final prospectus contained therein, or any
amendment or supplement thereto, or arise out of, or are based upon,
or are related to, the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the
statements therein not misleading, and will reimburse Optionee or
underwriter or controlling person or entity for any legal or other
expenses reasonably incurred by them in connection with investigating
or defending any such loss, claim, damage, liability or action.
(x) If the indemnification provided for in clause (ix) is
due in accordance with its terms but is for any reason held by a court
to be unavailable, on grounds of policy or otherwise, then the Company
and the Optionee shall contribute to the aggregate losses, claims,
damages, liabilities and expenses to which the Company and the
Optionee may be subject in such proportion as is appropriate to
reflect the relative fault of the Company and of the Optionee in
connection with the statements or omissions which resulted in such
losses, claims, damages, liabilities or expenses, as well as any other
relevant equitable considerations. The relative fault of the Company
and the Optionee shall be determined by reference to, among other
things, whether the untrue or alleged untrue statement of a material
fact relates to information supplied by the Company of by the Optionee
and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission. The
Company and the Optionee agree that it would not be just and equitable
if contribution pursuant to this clause (x) were determined by pro
rata allocation or by any other method of allocation which does not
take account of the equitable considerations referred to in the two
immediately preceding sentences. Notwithstanding the provisions of
this clause (x), the Optionee shall not be required to contribute any
amount in excess of the amount by which the total price at which the
Option Shares owned by the Optionee were offered to the public exceeds
the amount of any damages which the Optionee have otherwise been
required to pay by reason of such untrue or alleged untrue statement
or omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Act)
shall be entitled to contribution from any person who was not guilty
of fraudulent misrepresentation.
SECTION 5.05. RIGHTS OF TRANSFEREES OF OPTION SHARES THAT CONSTITUTE
"RESTRICTED SECURITIES". Transferees of Option Shares that constitute
"restricted securities" under Rule 144 promulgated by the SEC under the Act
9
<PAGE>
or any successor regulation shall have the same rights as Optionee under
this Article V with respect to such Option Shares.
ARTICLE VI
MISCELLANEOUS
SECTION 6.01. COMMITMENT OF OPTIONEE. Optionee understands and
agrees that any sale or transfer of the Option Shares received by Optionee
an exercise of the Option provided hereunder HAS NOT BEEN REGISTERED UNDER
THE ACT OR WITH ANY SECURITIES REGULATORY AUTHORITY OF ANY STATE OR OTHER
JURISDICTION. THEREFORE, OPTIONEE WILL NOT OFFER, SELL, PLEDGE OR
OTHERWISE TRANSFER ANY OPTION SHARES EXCEPT IN ACCORDANCE WITH AND AS MAY
BE PERMITTED HEREUNDER AND IN EACH CASE IN ACCORDANCE WITH APPLICABLE
SECURITIES LAW.
SECTION 6.02 COMPLIANCE WITH RESTRICTIONS. The covenants,
conditions and restrictions herein contained shall be and constitute
covenants, conditions and restrictions accepted by Optionee with regards to
the Option Shares now or hereafter owned by Optionee, or any transferee of
Option Shares from Optionee directly or indirectly, and none of the Option
Shares shall be sold, transferred, encumbered, pledged, hypothecated, given
as a gift, or otherwise disposed of or alienated in any way to any Person
except in full compliance with the laws of the United States and Optionee
agrees to take all such action as is necessary or convenient to prohibit
transfer of certificates for Option Shares. Any Person who acquires any
Option Shares or any interest therein shall hold such Option Shares or
interest subject to this Agreement and shall be deemed to be the holder
thereof with respect to the Option Shares or interest so acquired for all
purposes of Article IV hereof.
SECTION 6.03. FURTHER ASSURANCES. (a) Optionee shall execute and
deliver such further instruments of conveyance and transfer and take such
other action as the Company may reasonably request to convey and transfer
to other Persons any Option Shares to be transferred in the future pursuant
to this Agreement. The Company agrees to apply for and use its best
efforts to obtain all governmental and administrative approvals required in
connection with any exercise of the option. Optionee agrees to cooperate
in obtaining such approvals and to execute any and all documents or
instruments which, in the opinion of the Company, may be required,
appropriate or desirable to be executed by Optionee in connection with such
approvals. The Company shall pay all costs and filing fees in connection
with obtaining such approvals.
(b) The Company shall permit Optionee, or any person entitled to
exercise the Option pursuant to Section 3.02 hereof, so long as the Option
has not been exercised in full, to inspect, review and copy, or shall
furnish to Optionee a copy of, each annual and other periodic or occasional
financial reports of the Company from a date two (2) years prior to the
date hereof.
10
<PAGE>
SECTION 6.04. SUCCESSORS AND ASSIGNS. Without limiting the
restrictions on transfer set forth herein, this Agreement shall bind and
shall inure to the benefit of and be enforceable by the Company, any
successor Entity, and Optionee, and their respective successors, permitted
assigns, personal or legal representatives, heirs and legatees, whether
herein so expressed or not, and this Agreement shall be binding on any
transferee who has received Option Shares in accordance with any provisions
hereof and shall be binding on any Persons to whom any of the Option Shares
are transferred in violation of any provision of this Agreement and on any
executor, administrator, successor or assign of any such Person.
SECTION 6.05. SEVERABILITY. It is intended that each provision of
this Agreement shall be viewed as separate and divisible and in the event
that any provision hereof shall be held to be invalid or enforceable, the
remaining provisions shall continue to be in full force and effect.
SECTION 6.06. INSPECTION OF AGREEMENT. A copy of this Agreement
shall be maintained by the Board of Directors and shall be shown to any
person who demonstrates, to the satisfaction of the Company, that it has a
right hereunder.
SECTION 6.07. ENTIRE AGREEMENT. This Agreement contains the entire
Agreement of the parties hereto and supersedes all prior negotiations,
correspondence, understandings and agreements between the parties hereto,
with respect to the subject matter hereof.
SECTION 6.08. SHARES TO BE RESERVED. The Company shall at all times
while the Option is outstanding, reserve and keep available such number of
Class B Shares as will be sufficient to satisfy the requirements of this
Agreement including, without limitation, the sale of the Option Shares to
Optionee.
SECTION 6.09. NOTICES. Except as otherwise expressly provided
herein, any notice or communication to be given under the terms of this
Agreement shall be in writing and shall be deemed duly given when delivered
personally or deposited in the mail, by certified or registered mail, or by
telecopier (confirmed in writing), property addressed as follows:
(i) if to the Company:
Pepsi-Cola Puerto Rico Bottling Company
PO Box 191709
San Juan, Puerto Rico 00919-1709
Attention:
Telecopier: (787) 251-2975
11
<PAGE>
(ii) if to Optionee:
No. 1 Cervantes St.
Apt. No. 2
San Juan, Puerto Rico 00907
Attention: Mr. Rafael Nin
Telecopier:
By notice given pursuant to this Section 5.09, either party may
hereinafter designate a different address for said notices.
SECTION 6.10. TITLES AND HEADINGS OF SECTIONS. The titles and
headings of Articles and Sections in this Agreement are provided for
convenience purposes only and are not intended to modify or affect the
meaning of any provision herein, and thus, shall not serve as a basis for
interpretation or construction of this Agreement.
SECTION 6.11. AMENDMENTS. This Agreement may not be amended, altered
or modified except by a written instrument executed by both parties hereto.
IN WITNESS WHEREOF, the authorized representatives of the parties
hereto execute this Agreement on the date first above written.
COMPANY
PEPSI COLA PUERTO RICO BOTTLING COMPANY
By:
Title:
OPTIONEE
Rafael Nin
12
<PAGE>
PEPSI-COLA PUERTO RICO BOTTLING COMPANY
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."
<PAGE>
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.
2
<PAGE>
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; 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
3
<PAGE>
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 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.
In the case of "incentive stock options" granted to an individual described
in Section 422(b)(6) of the Code (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.
4
<PAGE>
(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 properly 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
5
<PAGE>
exercisable and may be exercised for a period of thirty (30) days after the
date of such termination or resignation, and all unvested Options hold 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.
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 no
less than (or, in the case incentive stock options granted to an individual
described in Section 422(b)(6) of the Code (relating to certain 10%
owners), shall be no less than 110% of) 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 (herein the "Purchase Price"). If, at the time an Option
is granted, the Class B Common Stock is publicly traded on the New York
Stock Exchange, the "Fair Market Value" of a share of Class B Common Stock
of the Company shall be equal to the sales price for a share of the Class 8
6
<PAGE>
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 not publicly traded, the Fair Market Value shall be 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
7
<PAGE>
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 registered under the Act, an exemption
from such registration is available or they are resold in conformance with
Rule 144. Said shares of Class B Common Stock may be 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.
8
<PAGE>
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 exercises,
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 S-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
9
<PAGE>
(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 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
10
<PAGE>
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. AMENDMENT AND DISCONTINUE.
-------------------------
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 approved by the
shareholders, cause grants under the Plan to fail to satisfy the
11
<PAGE>
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.
12
<PAGE>
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:__________________________
13
<PAGE>
SUBSCRIPTION AGREEMENT
----------------------
OF RAFAEL NIN
-------------
THIS AGREEMENT, made and entered into as of this thirtieth (30th)
day of December, 1996, by and between PEPSI-COLA PUERTO RICO BOTTLING
COMPANY, a corporation organized and existing under the laws of the State
of Delaware (hereinafter referred to as the "Corporation") and RAFAEL NIN,
of legal age, the President and Chief Executive officer of the Corporation
and resident of San Juan, Puerto Rico (hereinafter referred to as the
"Subscriber").
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, the Corporation has adopted a Stock Option Plan dated as
of December 30, 1996 (the "Plan"), whereby it may grant options to purchase
shares of Class B stock of the Corporation ("Class B Stock") to its key
members of management; and,
WHEREAS, pursuant to resolutions of the Board of Directors of the
Corporation approved October 15, 1996 (the "Resolutions"), the Corporation
granted the Subscriber with options to purchase (the "Options") up to
190,000 shares of Class B stock (the "Class B Stock") of the Corporation;
and,
WHEREAS, pursuant to the Resolutions, the Options granted to the
Subscriber vested immediately upon their grant; and,
WHEREAS, the parties hereto wish to enter into this Agreement for
purposes of evidencing the right of Subscriber to purchase and request the
subscription of the Option Shares;
<PAGE>
NOW, THEREFORE, in consideration of the mutual promises and
covenants herein contained and for other good and valuable consideration,
it is hereby mutually agreed as follows:
Section 1. PREAMBLE. The preamble to this Agreement is
hereby made an integral part hereof.
Section 2. THE PLAN. Reference is hereby made to the Plan,
under which the Options were granted. All provisions therein contained
relating to the representations and warranties of the Participant (as
therein defined) and the conditions of the transferability of Shares, as
well as provisions relating to rights of the Subscriber as a Participant
thereunder shall be deemed and are hereby incorporated to this Agreement
and shall extend and be applicable to this Agreement.
Section 3. SUBSCRIPTION. The Corporation hereby grants the
Subscriber the right to subscribe to One Hundred Ninety Thousand (190,000)
shares of Class B Stock of the Corporation (the "Shares"), having a par
value of One Cent ($0.01) per share, free and clear of all liens and
encumbrances, fully paid and nonassessable, for a purchase price of Five
Dollars ($5) per share (the "Purchase Price") [payable at the closing of
the purchase of the Shares (the "Closing") which shall take place on the
date no later than thirty (30) days from the date of exercise of the
Options by Subscriber (the "Closing Date")]. The Shares shall be subject
to the provisions of the Certificate of Incorporation of the Corporation,
as amended and restated under that certain Amended and Restated Certificate
of Incorporation dated August 24, 1995, and as it may be further amended in
the future (the "Certificate of Incorporation"), and to the terms of the
2
<PAGE>
Plan, and any transfers of the Shares by the Subscriber are subject to such
provisions. The Shares shall be shares of Class B Stock of the Corporation
and, when issued and delivered pursuant to the terms hereof, shall be fully
paid and nonassessable, subject to all the terms and conditions of this
Agreement.
Section 4. CLOSING; RIGHTS AS SHAREHOLDER. The Closing for
the purchase of the Shares shall be held at the place and on the date
agreed by the parties hereto. At the Closing the Purchase Price must be
paid in full. Until such time the Shares shall not be considered
subscribed or issued for any corporate purpose. Accordingly, the
Subscriber, as such, shall not be, and not have any of the rights or
privileges of a shareholder of the Corporation in respect of any Shares
unless and until such Shares shall have been subscribed by Subscriber, and
delivered by the Corporation to the Subscriber in accordance with this
Agreement.
Section 5. TERM. Any provision herein to the contrary
notwithstanding, this Agreement, and the rights of Subscriber to purchase
the Shares shall be in force for a period of ten (10) years from the date
hereof. If at the end of such period the Subscriber has not exercised its
right to purchase the Shares hereunder by notice to the Corporation as set
forth in Section 7 hereof, this Agreement shall terminate and no longer be
in force.
Section 6. LEGEND. All stock certificates representing the
Shares shall bear on their face the following legend:
"The sale, transfer or other hypothecation or disposition of
the shares of stock represented by this Certificate is
3
<PAGE>
prohibited except as provided in the Certificate of
Incorporation, as amended, of the issuing Corporation, and
in the agreement for the purchase of such stock, a copy of
which can be examined upon request to the Issuing
Corporation.
The shares represented by this certificate have not been
registered under the Securities Act of 1933, as amended (the
"Act"), and may not be sold or otherwise transferred in the
absence of (i) an effective registration statement for the
shares under the Act, or (ii) an opinion of counsel
satisfactory to the Corporation that registration is not
required under the Act."
Section 7. NOTICES. All notices required to be given
hereunder shall be made via registered or certified mail, postage prepaid,
return receipt requested or delivered by hand and shall be deemed given
upon receipt by the party to whom addressed at the corresponding address
set forth below:
IF TO:
Pepsi-Cola Puerto Rico Bottling Company
PO Box 191709
San Juan, Puerto Rico 00919-1709
Tel: (787) 251-2000
Fax: (787) 251-2977
Attention: Mr. C. Leon Timothy
IF TO:
Rafael Nin
Cervantes No. 1
Apt. 2
Condado
San Juan, Puerto Rico
Section 8. MISCELLANEOUS. (a) The waiver of any breach or
default of any term or provision of this Agreement in one instance shall
not be deemed a waiver of any breach or default in any other instance.
4
<PAGE>
(b) The parties hereto agree to execute whatever further
documents shall be necessary to effectuate the purposes of this Agreement.
(c) All of the terms and conditions of this Agreement shall
be binding upon and inure to the benefit of the parties hereto, and their
respective heirs, legal representatives, successors and assigns.
(d) This Agreement shall be governed by and interpreted in
accordance with the Laws of the Commonwealth of Puerto Rico.
(e) This Agreement may be executed in counterparts each of
which shall be deemed an original but all of which together shall
constitute but one and the same instrument.
(f) The rights herein granted to the Subscriber to
subscribe to and purchase the Shares may not be assigned or conveyed to any
person or persons without the prior written consent of the Corporation,
except as otherwise permitted hereunder.
IN WITNESS WHEREOF, the parties hereto have hereunto affixed
their signatures on the day and year first above written.
CORPORATION SUBSCRIBER
PEPSI-COLA PUERTO RICO
BOTTLING COMPANY
By:_________________________ ______________________________
Rafael Nin
5
<PAGE>
