<PAGE>
As filed with the Securities and Exchange Commission on November 12, 1999
Registration No. 333-______
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
--------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
--------------
PepsiAmericas, Inc.
(Exact Name of Registrant as Specified in Its Charter)
Delaware ###-##-####
(State or Other Jurisdiction (I.R.S. Employer
of Incorporation or Organization) Identification No.)
3800 Dain Rauscher Plaza
60 South Sixth Street
Minneapolis, Minnesota 55402
(612) 661-3830
(Address, including Zip Code, of Principal Executive Offices)
--------------
PEPSIAMERICAS, INC. 1999 STOCK OPTION PLAN
PAS/DELTA PHANTOM PLAN
PAS/DAKOTA PHANTOM PLAN
(Full Title of the Plans)
--------------
JOHN F. BIERBAUM COPIES TO:
Chief Financial Officer BRIAN D. WENGER, ESQ.
PepsiAmericas, Inc. CHRISTOPHER C. CLEVELAND, ESQ.
3800 Dain Rauscher Plaza BRETT D. ANDERSON, ESQ.
60 South Sixth Street Briggs and Morgan
Minneapolis, Minnesota 55402 Professional Association
(612) 661-3830 2400 IDS Center
(Name, Address, including Zip Code, 80 South Eighth Street
and Telephone Number, including Area Minneapolis, Minnesota 55402
Code, of Agent for Service) (612) 334-8400
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
===========================================================================================================================
Proposed Proposed
Maximum Maximum Amount of
Title of Each Class of Securities To Be Registered Amount To Be Offering Price Aggregate Registration
Registered(1) Per Share(2) Offering Price Fee
===========================================================================================================================
<S> <C> <C> <C> <C>
PepsiAmericas, Inc. 1999 Stock Option Plan 4,000,000 $5.1875 $20,750,000 $5,769
Class B Common Stock (par value $0.01 per share)..
PAS/Delta Phantom Plan 428,891 $5.1875 $ 2,224,872 $ 619
Class B Common Stock (par value $0.01 per share)...
PAS/Dakota Phantom Plan
Class B Common Stock (par value $0.01 per share)... 125,480 $5.1875 $ 650,928 $ 181
===========================================================================================================================
(1) This Registration Statement shall also cover any additional shares of Class B Common Stock which become issuable under
the PepsiAmericas, Inc. 1999 Stock Option Plan, the PAS/Delta Phantom Plan and the PAS/Dakota Phantom Plan by reason
of any stock dividend, stock split, recapitalization or other similar transaction effected without the receipt of
consideration which results in an increase in the number of outstanding shares of Class B Common Stock.
(2) Estimated solely for the purpose of calculating the registration fee under Rule 457(h) and based upon the average of
the high and low prices for such stock on November 8, 1999, as reported by the New York Stock Exchange.
===========================================================================================================================
</TABLE>
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The SEC allows us to "incorporate by reference" the information we file
with them, which means that we can disclose important information to you by
referring you to documents we file with the SEC. The information incorporated by
reference is considered to be part of this registration statement. Information
that we file later with the SEC will automatically update and supersede this
information. We incorporate by reference the documents listed below and any
future filings we will make with the SEC under Sections 13(a), 13(c), 14 or
15(d) of the Exchange Act until all of the shares covered by this registration
statement have been sold:
o Transition Report on Form 10-K for the transition period ended
December 31, 1998;
o Quarterly Reports on Form 10-Q for the quarters ended March
31, 1999 (as amended) and June 30, 1999;
o Description of our common stock contained in our Registration
Statement on Form S-1 (No. 33-94620) (as amended);
o Current Reports on Form 8-K filed on June 28, 1999, July 15,
1999, and October 26, 1999; and
o Definitive Schedule 14A Proxy Statements filed on January 19,
1999 (annual meeting) and September 7, 1999 (special meeting).
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
Not applicable.
Item 6. Indemnification of Directors and Officers
Section 145 of the Delaware General Corporation Law (the "DGCL")
empowers a corporation, subject to certain limitations, to indemnify its
directors and officers against expenses (including attorneys' fees), judgments,
fines and certain settlements actually and reasonably incurred by them in
connection with any action, suit or proceeding to which they are a party or
threatened to be made a party so long as they acted in good faith and in a
manner reasonably believed to be in or not opposed to the best interests of the
corporation, and, with respect to a criminal action or proceeding, so long as
they had no reasonable cause to believe their conduct to have been unlawful.
As permitted by the DGCL, the registrant's Certificate of Incorporation
limits the personal liability of a director of the registrant for monetary
damages for breach of fiduciary duty of care as a director. Liability is not
eliminated for (i) any breach of the director's duty of loyalty to the
registrant or its shareholders, (ii) acts or omissions not in good faith or
which involve intentional misconduct or a knowing violation of law, (iii)
unlawful payment of dividends, stock purchases or redemptions pursuant to
Section 174 of the DGCL, or (iv) any transaction from which the director derived
an improper personal benefit.
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Under provisions contained in the registrant's Certificate of
Incorporation and Bylaws, the registrant will indemnify any director, trustee,
officer, employee or agent of the registrant who was or is a party or is
threatened to be made a party to any threatened, pending or completed action,
suit or proceeding, whether civil, criminal, administrative or investigative
(other than an action by or in the right of the registrant). Indemnification
will be provided if the action, suit or proceeding arose by reason of the fact
that a director, trustee, officer, employee or agent of the registrant is or was
serving at the request of the registrant as a director, trustee, officer,
employee or agent of another corporation, partnership, joint venture, trust or
other enterprise. Indemnification will be provided against expenses (including
attorneys' fees) judgments, fines and amounts paid in settlement actually and
reasonably incurred by him in connection with such action, suit or proceeding if
he acted in good faith and in a manner that he reasonably believed to be in or
not opposed to the best interests of the registrant. Indemnification will be
allowed with respect to any criminal action or proceeding if the director,
trustee, officer, employee, or agent involved had no reasonable cause to believe
his conduct was unlawful. The termination of any action, suit or proceeding by
judgment, order, settlement, conviction or upon a plea of nolo contendere or its
equivalent, shall not, of itself, create a presumption that the person did not
act in good faith and in a manner which he reasonably believed to be in or not
opposed to the best interest of the registrant. With respect to any criminal
action or proceeding, termination by one of the above dispositions shall not, of
itself, create a presumption that the person involved had reasonable cause to
believe that his conduct was unlawful.
The registrant shall indemnify any person who was or is a party, or is
threatened to be made a party to any threatened, pending or completed action or
suit by or in the right of the registrant to procure a judgment in its favor by
reason of the fact that he is or was a director, trustee, officer, employee or
agent of the registrant. This includes situations where such person involved was
serving at the request of the registrant as a director, trustee, officer,
employee or agent of another corporation, partnership, joint venture, trust or
other enterprise. Under these circumstances, the registrant shall indemnify such
director, trustee, officer, employee or agent against expenses (including
attorneys' fees) actually and reasonably incurred by him in connection with the
defense or settlement of the action or suit, if he acted in good faith and in a
manner he reasonably believed to be in or not opposed to the best interests of
the registrant. No indemnification will be made by the registrant for any claim,
issue or matter as to which such director, trustee, officer, employee or agent
shall have been adjudged to be liable to the registrant. However, the Court of
Chancery of the State of Delaware or the court in which such action or suit was
brought may determine that, despite the adjudication of liability but in view of
all the circumstances of the case, such director, trustee, officer, employee or
agent is fairly and reasonably entitled to indemnity for such expenses which the
court shall deem proper.
To the extent that any director, trustee, officer, employee or agent
referred to above, has been successful on the merits or otherwise in defense of
any action, suit or proceeding described above, or in defense of any claim,
issue or matter described above, the registrant will indemnify him against
expenses (including attorneys' fees) actually and reasonably incurred by him in
connection therewith.
Any indemnification will be made by the registrant only as authorized
in the specific case upon a determination that indemnification of the director,
officer, employee or agent is proper in the circumstances because he has met the
applicable standard of conduct set forth above. This determination will be made
at the option of the person seeking indemnification, by one of the following:
(a) by the Board of Directors by a majority vote of directors who are not
parties to such action, suit or proceedings, or (b) by independent legal counsel
selected by the person seeking indemnification from a specific list of law firms
or which are otherwise reasonably acceptable to the registrant, in a written
opinion, or (c) if agreed upon by the registrant, by the shareholders. In making
such determination, the person seeking indemnification shall be presumed to have
met the applicable standard of conduct set forth in the Bylaws, which
presumption may be rebutted with evidence to the contrary. This determination
shall be made by the Board of Directors or independent legal counsel, as the
case may be, as promptly as possible after submission to the Board of Directors
or legal counsel, and, to the extent possible, within 30 days of such
submission. A determination made in accordance with the Bylaws shall not be
deemed to affect any right to judicial review of such determination that a
person seeking indemnification may have under applicable law.
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Expenses incurred by an officer or director in defending a civil or
criminal action, suit or proceeding shall be paid by the registrant in advance
of the final disposition of such action, suit or proceeding upon receipt of any
undertaking by or on behalf of such director or officer to repay such amount if
it shall ultimately be determined that he is not entitled to be indemnified by
the registrant under its indemnification policies described in Article Tenth of
the Certificate of Incorporation. The registrant may pay such expenses incurred
by its other employees and agents upon such terms and conditions, if any, as the
Board of Directors deems appropriate.
The indemnification and advancement of expenses provided by, or granted
pursuant to, Article Tenth of the Certificate of Incorporation shall not be
deemed exclusive of any other rights to which those seeking indemnification may
be entitled under any statute, by-law, agreement, vote of shareholders or
disinterested directors or otherwise both as to action in his official capacity
and as to action in another capacity while holding such office.
The indemnification and advancement of expenses provided by, or granted
pursuant to, the Certificate of Incorporation shall, unless otherwise provided
when authorized or ratified, continue to a person who has ceased to be a
director or officer of the registrant and shall inure to the benefit of the
heirs, executors and administrators of such a person.
Expenses incurred by a present or former officer or director in
defending a civil or criminal action, suit, investigation or administrative
matter ("Indemnifiable Events") in which such person is named as a party,
subject or witness, or brought against such person, by reason of his serving or
acting, or having served or acted as a director or officer, or arising or
allegedly arising, directly or indirectly, out of any act, omission, occurrence
or event involving such person, shall be paid by the registrant in advance of
the final disposition or completion of such Indemnifiable Event upon the written
request of such person and compliance with the other requirements of the Bylaws.
A person requesting payments under the Bylaws shall be required to execute an
undertaking to repay such amount if it shall ultimately be determined that he is
not entitled to be indemnified by the registrant and furnish or file with the
registrant any other document required by law. Unless required by law, such
undertaking need not be secured. After receipt by the registrant of such
executed undertaking and any other documents required by law, payment shall be
made by the registrant promptly after receipt by it of a reasonably detailed
invoice for any such expenses, certified by the person seeking reimbursement or
the payment of the invoice, to the effect that such expense was actually
incurred by him in connection with his defense of a claim for which
indemnification could be sought under the Bylaws. It is the intent of the
registrant that the provisions of the Bylaws be mandatory in operation and not
subject to the discretion of the registrant. Further, fees and expenses shall be
recoverable from the registrant by any person adjudged or determined to be
entitled to indemnity under the Bylaws, if such fees and expenses are incurred
in order to enforce the Bylaws with respect to advancement of expenses or
indemnification.
The rights to indemnification and to the advancement or reimbursement
of expenses under the Bylaws (i) are and shall be contract rights based upon
good and valuable consideration, pursuant to which the persons in favor of whom
such rights are created may sue as if the provisions of the bylaws were set
forth in a separate written contract or contracts between such persons and the
registrant, and (ii) shall continue and remain available and enforceable, after
any revocation or restricted modification thereof, as to Indemnifiable Events
occurring or having occurred prior to such revocation or modification. To the
extent that any amendment to the Bylaws establishes specific procedures relating
to indemnification and advancement of expenses or grants additional rights to
persons covered thereunder, such procedures and additional rights shall only be
applicable with respect to Indemnifiable Events relating to events or actions or
omissions by such persons in their capacity as director, officer, employee or
agent of the registrant, in each case occurring after the date of such
amendment. The bylaws are intended to grant indemnification to persons covered
hereby only to the maximum extent permitted by applicable law.
The DGCL authorizes the purchase of indemnification insurance by the
registrant. The registrant currently maintains a policy insuring its directors
and officers against liabilities which may be incurred by such persons acting in
such capacities. The registrant has also agreed to maintain, until October 15,
2005, and to
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the extent commercially available, a directors, officers and company liability
policy with respect to claims arising from facts or events that have occurred or
occur prior to, simultaneously with or after the acquisition of Delta and
Dakota.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
Exhibit
Number Description
- ------ -----------
5.1 Opinion of Briggs and Morgan, Professional Association.
23.1 Consent of Briggs and Morgan, Professional Association
(included in Exhibit 5.1).
23.2 Consent of Independent Public Accountants.
23.3 Independent Accountants' Consent.
23.4 Consent of Independent Public Accountants.
23.5 Consent of Independent Public Accountants.
24.1 Powers of Attorney (included on signature page to the
Registration Statement).
Item 9. Undertakings.
The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made,
a post-effective amendment to this registration statement:
(i) To include any prospectus required by Section
10(a)(3) of the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events
arising after the effective date of the registration
statement (or the most recent post-effective
amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the
information set forth in the registration statement;
and
(iii) To include any material information with respect to
the plan of distribution not previously disclosed in
the registration statement or any material change to
such information in the registration statement;
provided, however, that the undertakings set forth in paragraphs (i) and (ii)
above do not apply if the information required to be included in a
post-effective amendment by those paragraphs is contained in periodic reports
filed with or furnished to the SEC by the registrant pursuant to Section 13 or
Section 15(d) of the Securities Exchange Act of 1934 that are incorporated by
reference in the registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed to be
a new registration statement relating to the securities offered
II-4
<PAGE>
therein, and the offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the termination of
the offering.
The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Securities Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to Section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by reference in the
registration statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers, and controlling persons of
the registrant pursuant to the provisions summarized in Item 15 above, or
otherwise, the registrant has been advised that in the opinion of the SEC such
indemnification is against public policy as expressed in the Securities Act and
is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the registrant of expenses
incurred or paid by a director, officer, or controlling person of the registrant
in the successful defense of any action, suit or proceeding) is asserted by such
director, officer, or controlling person in connection with the securities being
registered, the registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Securities Act and will be governed by the final
adjudication of such issue.
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<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act, the registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-8 and has duly caused this registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Minneapolis, State of Minnesota, on the 12th day of
November, 1999.
PepsiAmericas, Inc.
By /s/ Robert C. Pohlad
------------------------------
Robert C. Pohlad
Chief Executive Officer
and Chairman of the Board
POWER OF ATTORNEY
KNOW ALL BY THESE PRESENT, that each person whose signature appears
below constitutes and appoints Robert C. Pohlad and John F. Bierbaum as his true
and lawful attorney-in-fact and agent, with full powers of substitution and
resubstitution, for him and in his name, place and stead, in any and all
capacities, to sign any or all amendments (including post-effective amendments)
to this registration statement, and to file the same, with all exhibits thereto,
and other documents in connection therewith, with the SEC, granting unto said
attorney-in-fact and agent, full power and authority to do and perform each and
every act and thing requisite or necessary to be done in and about the premises,
as fully to all intents and purposes as he might or could do in person, hereby
ratifying and confirming all that said attorney-in-fact and agent, or his or
their substitute or substitutes, may lawfully do or cause to be done by virtue
hereof.
Pursuant to the requirements of the Securities Act, this registration
statement has been signed by the following persons on the dates and in the
capacities indicated.
<TABLE>
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
/s/ Robert C. Pohlad Chief Executive Officer and Chairman November 12, 1999
- ---------------------------------------- of the Board (Principal Executive
Robert C. Pohlad Officer)
/s/ John F. Bierbaum Chief Financial Officer (Principal November 12, 1999
- ---------------------------------------- Financial and Accounting Officer)
John F. Bierbaum
/s/ Christopher C. Clouser Director November 12, 1999
- ----------------------------------------
Christopher C. Clouser
/s/ Philip N. Hughes Director November 12, 1999
- ----------------------------------------
Philip N. Hughes
/s/ Diego Suarez, Jr. Director November 12, 1999
- ----------------------------------------
Diego Suarez, Jr.
</TABLE>
II-6
<PAGE>
<TABLE>
<CAPTION>
<S> <C> <C>
/s/ Basil K. Vasiliou Director November 12, 1999
- ----------------------------------------
Basil K. Vasiliou
- ---------------------------------------- Director
Michael D. White
/s/ John F. Woodhead Director November 12, 1999
- ----------------------------------------
John F. Woodhead
/s/ Raymond W. Zehr, Jr. Director November 12, 1999
- ----------------------------------------
Raymond W. Zehr, Jr.
</TABLE>
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<PAGE>
EXHIBIT INDEX
Exhibit
Number Description
- ------ -----------
5.1 Opinion of Briggs and Morgan, Professional Association.
23.1 Consent of Briggs and Morgan, Professional Association
(included in Exhibit 5.1).
23.2 Consent of Independent Public Accountants.
23.3 Independent Accountants' Consent.
23.4 Consent of Independent Public Accountants.
23.5 Consent of Independent Public Accountants.
24.1 Powers of Attorney (included on signature page to the
Registration Statement).
<PAGE>
EXHIBIT 5.1
November 12, 1999
PepsiAmericas, Inc.
3800 Dain Rauscher Plaza
60 South Sixth Street
Minneapolis, Minnesota 55402
Gentlemen:
In connection with the registration on Form S-8 under the Securities
Act of 4,554,371 shares of Class B Common Stock to be issued under the
PepsiAmericas, Inc. 1999 Stock Option Plan, the PAS/Delta Phantom Plan and the
PAS/Dakota Phantom Plan, we have examined such documents and have reviewed such
questions of law as we have considered necessary and appropriate for the
purposes of this opinion and, based thereon, we advise you that, in our opinion,
when such shares have been issued and sold pursuant to the applicable provisions
of the applicable plan and in accordance with the registration statement, such
shares will be validly issued, fully paid and nonassessable.
We hereby consent to the filing of this opinion as an exhibit to the
above described registration statement.
Very truly yours,
BRIGGS AND MORGAN,
Professional Association
By /s/ Brian D. Wenger
---------------------------
Brian D. Wenger
<PAGE>
EXHIBIT 23.2
Consent of Independent Public Accountants
As independent public accountants, we hereby consent to the incorporation by
reference in this registration statement of our reports dated March 11, 1999 on
the consolidated financial statements and financial statement schedule of
PepsiAmericas, Inc. (formerly known as Pepsi-Cola Puerto Rico Bottling Company)
as of December 31, 1998 and for the transition period then ended, and as of
September 30, 1998 and for the year then ended, included in PepsiAmericas, Inc.
(formerly known as Pepsi-Cola Puerto Rico Bottling Company) Transition Report on
Form 10-K for the transition period ended December 31, 1998 and the Definitive
Schedule 14A Proxy Statement filed September 7, 1999.
/s/ ARTHUR ANDERSEN LLP
ARTHUR ANDERSEN LLP
Memphis, Tennessee,
November 12, 1999.
<PAGE>
EXHIBIT 23.3
Independent Accountants' Consent
The Board of Directors
PepsiAmericas, Inc.:
We consent to incorporation by reference in this registration statement on Form
S-8 of PepsiAmericas, Inc. (formerly known as Pepsi-Cola Puerto Rico Bottling
Company) (the Company) of our report dated December 5, 1997 relating to the
consolidated balance sheet of the Company as of September 30, 1997, and the
related consolidated statements of income/(loss), shareholders' equity and cash
flows for each of the years in the two-year period ended September 30, 1997, and
schedule, which report appears in the December 31, 1998 Transition Report on
Form 10-K of the Company.
/s/ KPMG LLP
KPMG LLP
San Juan, Puerto Rico
November 12, 1999
<PAGE>
EXHIBIT 23.4
Consent of Independent Public Accountants
As independent public accountants, we hereby consent to the incorporation by
reference in this registration statement of our report dated March 2, 1999 on
Delta Beverage Group, Inc. included in PepsiAmericas, Inc. (formerly known as
Pepsi-Cola Puerto Rico Bottling Company) Definitive Schedule 14A Proxy Statement
filed September 7, 1999.
/s/ ARTHUR ANDERSEN LLP
ARTHUR ANDERSEN LLP
Memphis, Tennessee,
November 12, 1999.
<PAGE>
EXHIBIT 23.5
Consent of Independent Public Accountants
As independent public accountants, we hereby consent to the incorporation by
reference in this registration statement of our report dated March 5, 1999
(except with respect to the matter discussed in Note 7, regarding debt
covenants, as to which the date is June 25, 1999) on Dakota Beverage Company,
Inc. included in PepsiAmericas, Inc. (formerly known as Pepsi-Cola Puerto Rico
Bottling Company) Definitive Schedule 14A Proxy Statement filed September 7,
1999.
/s/ ARTHUR ANDERSEN LLP
ARTHUR ANDERSEN LLP
Minneapolis, Minnesota,
November 12, 1999.
