EXHIBIT 3.5
AMENDED AND RESTATED
LIMITED LIABILITY COMPANY AGREEMENT
OF
BOTTLING GROUP, LLC
This AMENDED AND RESTATED LIMITED LIABILITY COMPANY
AGREEMENT of Bottling Group, LLC (the "Company") is dated as of the 30th day
of March, 1999 (the "Effective Date") by and among Pepsi Bottling Holdings,
Inc., a Delaware corporation ("Pepsi Holdings"), Bottling Group Holdings,
Inc., a Delaware corporation ("PBG Holdings") and The Pepsi Bottling Group,
Inc., a Delaware corporation ("PBG").
WHEREAS, Pepsi Holdings and PBG Holdings have caused the
Certificate of Formation of the Company to be filed with the Office of the
Secretary of the State of Delaware, and intended thereby and by executing the
Limited Liability Company Agreement of the Company dated as of February 8,
1999 (the "Original Agreement"), to form a limited liability company in
accordance with the Delaware Limited Liability Company Act (6 Del. C.
ss.18-101 et seq.) (hereinafter referred to as the "Act"), and further
intended by the execution of the Original Agreement to be Members thereof; and
WHEREAS, pursuant to Amendment No. 1 to the Original
Agreement, dated March 29, 1999, PBG has been admitted as a Member of the
Company, effective as of the date thereof; and
WHEREAS, Pepsi Holdings, PBG Holdings and PBG now wish to
amend and restate the Original Agreement in its entirety as follows (as so
amended and restated, the "Agreement");
NOW, THEREFORE, in consideration of the mutual covenants,
promises and agreements contained herein, the parties hereby agree as follows:
ARTICLE I
Certain Definitions
1.1 Defined Terms. As used herein, the following terms shall have the
meanings set forth below:
"Additional Member" shall mean a Person who has acquired a
Membership Interest from the Company or an existing Member after the Effective
Date and been admitted as a Member of the Company pursuant to Section 9.2
hereof.
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"Adjusted Capital Account" shall mean, with respect to any
Member. such Member's Capital Account as of the end of the relevant Fiscal
Year after giving effect to the following adjustments:
(a) credit to such Capital Account any amounts that such
Member is obligated to restore pursuant to Regulations Section
1.704-1(b)(2)(ii)(c) or is deemed to restore pursuant to the penultimate
sentences of Regulations Sections 1.704-2(g)(1) and 1.704-2(i)(5); and
(b) debit to such Capital Account the items described in
Regulations Sections 1.704-1(b)(2)(ii)(d)(4), (5) and (6).
This definition of Adjusted Capital Account is intended to comply with the
provisions of Regulations Section 1.704-1(b)(2)(ii)(d) and shall be
interpreted consistently therewith.
"Affiliate" shall mean, with respect to any Persons (i) any
Person directly or indirectly controlling, controlled by or under common
control with such Person and (ii) any executive officer or director of such
Person. For purposes of this definition, the term "controls," "is controlled
by," or "is under common control with" shall mean (x) the direct or indirect
ownership of more than 50% of the equity interests (or interests convertible
into or otherwise exchangeable for equity interests) in a Person, or (y)
possession of the direct or indirect right to elect in excess of 50% of the
Board of Directors or other governing body of a Person (whether by securities,
ownership, contract or otherwise).
"Bankruptcy" shall mean, with respect to any Person, the
occurrence of any of the following events: (a) the filing by such Person of a
petition in bankruptcy or for relief under applicable bankruptcy laws; (b) the
filing against such Person of any such petition (unless such petition is
dismissed within ninety (90) days from the date of filing thereof); (c) entry
against such Person of an order for relief under applicable bankruptcy laws;
(d) written admission by such Person of its inability to pay its debts as they
mature, or an assignment by such Person for the benefit of creditors; or (e)
appointment of a trustee, conservator or receiver for the property or affairs
of such Person.
"Business Day" shall mean each day of the calendar year
other than a Saturday, a Sunday or a day on which banks are required or
authorized to close in the State of New York.
"Capital Account" shall have the meaning set forth in
Section 5.2(a) of this Agreement.
"Capital Contribution" shall mean any contribution of cash
and the initial Gross Asset Value of any property (other than money)
contributed to the Company made by or on behalf of a Member.
"Certificate of Formation" shall mean the certificate of
formation of the Company filed in the Office of the Secretary of State of the
State of Delaware pursuant to the Act.
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"Code" shall mean the Internal Revenue Code of 1986, as
amended from time to time (or any corresponding provisions of succeeding law).
"Company Minimum Gain" shall have the meaning of
"partnership minimum gain" as defined in Regulations Sections 1.704-2(b)(2)
and 1.704-2(d).
"Depreciation" shall mean, for each Fiscal Year, an amount
equal to the depreciation, amortization, or other cost recovery deduction
allowable for federal income tax purposes with respect to an asset for each
Fiscal Year, except that if the Gross Asset Value of an asset differs from its
adjusted basis for federal income tax purposes at the beginning of such Fiscal
Year, Depreciation shall be an amount that bears the same ratio to such
beginning Gross Asset Value as the federal income tax depreciation,
amortization, or other cost recovery deduction for such Fiscal Year bears to
such beginning adjusted tax basis; provided, however, that if the federal
income tax depreciation, amortization, or other cost recovery deduction for
such year is zero, Depreciation shall be determined with reference to such
beginning Gross Asset Value using any reasonable method selected by the
Managing Directors or their designees.
"Distribution" shall mean a transfer of cash or property by
the Company to a Member on account of such Member's Membership Interest as
described in Section 6.6 hereof.
"Fiscal Year" shall mean the Company's fiscal year, which
shall end on the last Saturday in December.
"Gross Asset Value" shall mean, with respect to any asset,
the asset's adjusted basis for federal income tax purposes, except as follows:
(a) The initial Gross Asset Value of any asset contributed
by a Member to the Company shall be the gross fair market value of such asset,
as unanimously determined by the contributing Member and the Managing
Directors;
(b) The Gross Asset Values of all assets of the Company shall
be adjusted to equal their respective gross fair market values, as unanimously
determined by the Managing Directors, as of the following times: (a) the
acquisition of an additional interest in the Company by any new or existing
Member in exchange for more than a de minimis (as that term is used in
Regulation Section 1.704-1(b)(2)(iv)(f)) Capital Contribution; (b) the
distribution by the Company to a Member of more than a de minimis amount of
Company property as consideration for an interest in the Company; and (c) the
liquidation of the Company within the meaning of Regulations Section
1.704-1(b)(2)(ii)(g). Notwithstanding the foregoing, the adjustments pursuant
to clauses (a) and (b) above shall be made only if the Managing Directors
determine that such adjustments are necessary or appropriate to reflect the
relative economic interests of the Members in the Company;
(c) The Gross Asset Value of any Company asset distributed
to any Member shall be the gross fair market value of such asset, as
unanimously determined by the distributee Member and the Managing Directors,
on the date of distribution;
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(d) The Gross Asset Value of the assets of the Company shall
be increased (or decreased) to reflect any adjustments to the adjusted basis
of such assets pursuant to Section 734(b) of the Code or Section 743(b) of the
Code, but only to the extent that such adjustments are required to be taken
into account in determining Capital Accounts pursuant to Regulations Section
1.704-1(b)(2)(iv)(m) and subsection (f) of the definition of "Net Profits and
Net Losses" and Section 6.3(f) hereof; provided, however, that Gross Asset
Value shall not be adjusted pursuant to this paragraph (d) to the extent that
an adjustment was made pursuant to paragraph (b) of this definition in
connection with any transaction that would otherwise have resulted in an
adjustment pursuant to this paragraph (d).
If the Gross Asset Value of an asset has been determined or
adjusted pursuant to paragraph (a), (b), or (d) of this definition, the Gross
Asset Value of such asset shall thereafter be adjusted by the Depreciation
taken into account with respect to such asset for purposes of computing Net
Profits and Net Losses.
"Initial Member" means each of Pepsi Holdings, PBG Holdings
and PBG.
"Interest" as defined under the Act, shall mean the Member's
share of the Net Profits and Net Losses of the Company, the Member's right to
receive distributions of the assets and Cash Flow of the Company and the
Member's right to approve certain actions relating to the management of the
Company in accordance with the terms of this Agreement or as otherwise
provided by the Act.
"Majority of the Members" and "Two-Thirds of the Members"
shall mean Members owning Membership Interests the aggregate percentage of
which is greater than 50% or at least 66 2/3%, respectively.
"Managing Director" shall mean each Person elected or
appointed by the Members as a Managing Director pursuant to Section 4.1(b)
hereof and each Person appointed by the Members to serve as a Managing
Director pursuant to Section 4.1(c) hereof to fill a vacant Managing Director
position. A Managing Director need not be a Member.
"Member" shall mean each person designated as such in this
Agreement, a Substitute Member or an Additional Member, as the case may be;
and "Members" shall mean the Members, collectively.
"Member Nonrecourse Debt" shall mean "partner nonrecourse
debt" or "partner nonrecourse liability" as defined in Regulations Section
1.704(2)-(b)(4).
"Member Nonrecourse Debt Minimum Gain" shall mean "partner
nonrecourse debt minimum gain" as defined in Regulations Sections
1.704-2(i)(2) and 1.704-2(b)(3).
"Member Nonrecourse Deductions" shall mean "partner
nonrecourse deductions" as defined in Regulations Sections 1.704-2(i)(1) and
1.704-2(i)(2).
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"Membership Interest" shall mean, with respect to any
Member, the percentage set forth opposite such Member's name on Exhibit A
hereto, as such percentage may change from time to time consistent with the
terms hereof.
"Net Profits" and "Net Losses" shall mean for each Fiscal
Year or other period, an amount equal to the Company's taxable income or loss
for such period determined in accordance with Section 703(a) of the Code (for
this purpose, all items of income, gain, loss, or deduction of the Company,
whether or not required to be stated separately pursuant to Section 703(a)(1)
of the Code, shall be included in taxable income or loss), with the following
adjustments:
(a) Any income of the Company that is exempt from federal
income tax and not otherwise taken into account in computing Net Profits or
Net Losses shall be added to such taxable income or loss;
(b) Any expenditures of the Company described in Section
705(a)(2)(B) of the Code (or expenditures treated as such pursuant to
Regulations Section 1.704-1(b)(2)(iv)(i)) that are not otherwise taken into
account in computing Net Profits or Net Losses shall be subtracted from such
taxable income or loss;
(c) If the Gross Asset Value of any Company asset is
adjusted pursuant to paragraph (b) or (c) of the definition of Gross Asset
Value, the amount of such adjustment shall be taken into account as gain or
loss from the disposition of such asset, for purposes of computing Net Profits
or Net Losses;
(d) Gain or loss resulting from any disposition of Company
property with respect to which gain or loss is recognized for federal income
tax purposes (or is deemed realized pursuant to paragraph (c) above) shall be
computed by reference to the Gross Asset Value of the property disposed of,
notwithstanding that the adjusted tax basis of such property differs from its
Gross Asset Value;
(e) In lieu of the depreciation, amortization, and other
cost recovery deductions taken into account in computing such taxable income
or loss, there shall be taken into account Depreciation for such Fiscal Year
or other period;
(f) To the extent that, under Section 734(b) or Section
743(b) of the Code, an adjustment is required to be taken into account in
determining Capital Accounts, pursuant to Regulations Section
1.704-1(b)(2)(iv)(m), the amount of such adjustment shall be treated as an
item of gain (if the adjustment increases the basis of the asset) or loss (if
the adjustment decreases the basis of the asset) from the disposition of the
asset and shall be taken into account for purposes of computing Net Profits or
Net Losses;
(g) Notwithstanding anything to the contrary in the
definition of the terms "Net Profits" and "Net Losses," any items that are
specially allocated pursuant to Sections 6.2 and 6.3 shall be excluded in
computing Net Profits or Net Losses; and
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(h) For purposes of this Agreement, any deduction for a loss
on a sale or exchange of Company property that is disallowed to the Company
under Section 267(a)(1) of the Code or Section 707(b) of the Code shall be
treated as an expenditure under Section 705(a)(2)(B) of the Code.
"Nonrecourse Deductions" shall have the meaning set forth in
Regulations Section 1.704-2(b)(1).
"Person" shall mean an individual, trust, estate,
partnership, limited liability company or any other incorporated or
unincorporated entity permitted to be a member of a limited liability company
under the Act.
"Regulations" shall mean, except where the context indicates
otherwise, the permanent and temporary regulations of the Department of the
Treasury promulgated under the Code, as such regulations may be lawfully
changed from time to time (including corresponding provisions of succeeding
regulations).
"Substitute Member" shall mean an assignee of a Membership
Interest who has been admitted to all of the rights of membership pursuant to
Section 9.3 hereof.
"Transfer" shall mean, as a noun, any voluntary or
involuntary transfer, sale, assignment, pledge, encumbrance or other
disposition; and, as a verb, voluntarily or involuntarily to sell, assign,
transfer, grant, give away, hypothecate, pledge, encumber or otherwise dispose
of, and shall include any transfer by will, gift or intestate succession.
ARTICLE II
The Limited Liability Company
2.1 Formation. The Company has been formed as a limited liability
company pursuant to the provisions of the Act. A Certificate of Formation for
the Company has been filed in the Office of the Secretary of State of the
State of Delaware in conformity with the Act. The Company and, if required,
each of the Members shall execute or cause to be executed from time to time
all other instruments, certificates, notices and documents and shall do or
cause to be done all such acts and things (including keeping books and records
and making publications or periodic filings) as may now or hereafter be
required for the formation, valid existence and, when appropriate, termination
of the Company as a limited liability company under the laws of the State of
Delaware, as well as the limited liability status of the Company and the
limited liability of the Members under the Laws of the State of Delaware and
of each other jurisdiction in which the Company does business.
2.2 Name. The name of the Company shall be "Bottling Group, LLC" and
its business shall be carried on in such name with variations and changes as
the Managing Directors
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shall determine or deem necessary to comply with requirements of the
jurisdiction in which the Company's operations are conducted.
2.3 Business Purposes. The Company is formed for the purposes of
engaging in any lawful business, purpose or activity for which limited
liability companies may be formed under the Act.
2.4 Registered Office and Agent. The location of the registered
office the Company shall be 1013 Center Road, Wilmington, New Castle County,
Delaware 19805. The Company's registered agent at such address will be
Corporation Service Company. The Managing Directors may, from time to time,
change the Company's registered office or registered agent, and shall
forthwith amend the Certificate of Formation to reflect such change.
2.5 Term. The existence of the Company shall commence on the date of
the filing of the Certificate of Formation in the Office of the Secretary of
State of the State of Delaware in accordance with the Act and, unless the
Company is dissolved sooner pursuant to the Articles X and XI below or the
Act, the Company shall have perpetual existence.
2.6 Principal Place of Business. The principal place of business of
the Company shall be located at One Pepsi Way, Somers, NY 10589 or at such
other location as the Managing Directors may, from time to time, select.
2.7 Title to Company Property. Legal title to all property of the
Company shall be held, vested and conveyed in the name of the Company and no
real or other property of the Company shall be deemed to be owned by the
Members individually.
2.8 Business Transactions of the Members and Managing Director with
the Company. In accordance with Section 18-107 of the Act, each Member and
Managing Director may lend money to, borrow money from, act as a surety,
guarantor or endorser for, guarantee or assume one or more obligations of,
provide collateral for, and transact other business with, the Company under
the same terms as a Person who is not a Member or Managing Director and,
subject to applicable law, shall have the same rights and obligations with
respect to any such matter as a Person who is not a Member or Managing
Director.
2.9 Single Class of Interests. Notwithstanding any other provision of
this Agreement, all Membership Interests of the Members of the Company shall
be a single class of interests for all purposes of this Agreement and the Act
(including all voting provisions of the Act).
ARTICLE III
The Members
3.1 The Members. The name, address, Capital Contribution, and
Interest of each Member are set forth on Exhibit A hereof, and in the books
and records of the Company, which books and records shall be amended from time
to time to reflect the admission of an Additional
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Member or Substitute Member, an additional Capital Contribution or acquisition
of Membership Interests by an existing Member, or the cessation of a Member
pursuant to Section 9.4 hereof.
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3.2 Member Meetings.
(a) Actions by the Members; Meetings. The Members may vote,
approve a matter or take any action by the vote of Members at a meeting, in
person or by proxy, or without a meeting by the written consent of Members
pursuant to subparagraph (d) below. Meetings of the Members shall be held upon
at least five (5) days' prior written notice of the time and place of such
meeting. Notice of any meeting may be waived in writing by any Member before
or after any meeting. Meetings of the Members may be conducted in person or by
conference telephone facilities.
(b) Annual Meeting. An annual meeting of Members shall be
held within five (5) months after the close of the Fiscal Year on such date
and at the time and place (either within or without the State of Delaware) as
shall be fixed by the Managing Directors. At the annual meeting, the Members
shall elect the Managing Directors and transact such other business as may
properly be brought before the meeting. In lieu of an annual meeting of
Members, the Members may, by written consent, elect the Managing Directors and
transact such other business as may properly be brought before a meeting of
Members, such elections and actions to have the same force and effect as
elections and actions taken at a meeting of Members. If a meeting of Members
is not held or a consent not executed within five (5) months after the close
of the Fiscal Year, the Managing Directors shall hold their respective offices
until such Managing Directors resign or until new Managing Directors shall be
duly elected.
(c) Special Meetings. A special meeting of Members may be
called at any time by the Managing Directors and shall be called by the
Managing Directors at the request in writing of any Member. Any such request
shall state the purpose or purposes of the proposed meeting. Business
transacted at any special meeting of Members shall be confined to the purposes
set forth in the notice thereof.
(d) Action by Written Consent. Any action required or
permitted under the Act or this Agreement to be taken by the Members, and any
action otherwise referred to the Members for their approval by the Managing
Directors, may be taken by the Members without a meeting by the written
consent of a Majority of Members, or such greater percentage as is otherwise
required under this Agreement for the subject matter of the written consent. A
copy of any action taken by written consent shall be sent promptly to all
Members and filed with the records of the Company.
(e) Quorum; Voting. For any meeting of Members, the presence
in person or by proxy of all of the Members shall constitute a quorum for the
transaction of any business. Except as otherwise provided in this Agreement,
the affirmative vote of a Majority of all the Members shall constitute
approval of any action. If, however, a quorum shall not be present or
represented at any meeting of Members, the Members entitled to vote thereat,
present in person or represented by proxy, shall have the power to adjourn the
meeting from time to time, without notice other than announcement at the
meeting, until a quorum shall be present or represented. At such adjourned
meeting, at which a quorum shall be present or represented, any business may
be transacted which might have been transacted at the meeting as originally
notified.
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(f) Record Date. For the purpose of determining the Members
entitled to notice of, or to vote at any meeting of Members or any adjournment
thereof, or to express consent or dissent from any proposal without a meeting,
or for the purpose of determining the Members entitled to receive payment of
any Distribution or the allotment of any rights, or for the purpose of any
other action, the Members may fix, in advance, a date as the record date for
any such determination of Members. Such date shall not be more than fifty nor
less than ten days before the date of any meeting, any action taken without a
meeting, the payment of any distribution, or the allotment of any rights, or
any other action.
(g) Person Recognized as Member. The Company shall be
entitled to treat the holder of record of any Interest as the holder in fact
thereof and, accordingly, shall not be bound to recognize any equitable or
other claim to or interest in such Interest on the part of any other Person,
whether or not it shall have express or other notice thereof, except as
otherwise provided by the Act.
3.3 No Liability of Members. All debts, obligations and liabilities
of the Company, whether arising in contract, tort or otherwise, shall be
solely the debts, obligations and liabilities of the Company, and no Member
shall be obligated personally for any such debt, obligation or liability of
the Company solely by reason of being a Member.
3.4 Power to Bind the Company. No Member (acting in its capacity as
such) shall have any authority to bind the Company to any third party with
respect to any matter except pursuant to a resolution expressly authorizing
such action which resolution is duly adopted by the Managing Directors by the
affirmative vote required for such matter pursuant to this Agreement or the
Act.
ARTICLE IV
Management of the Company
4.1 Management By Managing Directors.
(a) General; Number of Managing Directors. Subject to such
matters as are expressly reserved hereunder or under the Act to the Members
for decision, the business and affairs of the Company shall be managed by the
Managing Directors, who shall be responsible for policy-setting, approving the
overall direction of the Company and making all decisions affecting the
business and affairs of the Company. There shall be at least three (3) but not
more than five (5) Managing Directors, the exact number of Managing Directors
to be determined from time to time by resolution of the Members. All actions
of the Managing Directors, unless otherwise stated herein, shall be by
majority vote.
(b) Election; Removal; Resignations. Each Managing Director
shall be elected by a Majority of Members and shall serve until his or her
successor has been duly elected and qualified, or until his or her earlier
removal, resignation, death or disability; provided,
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however, that so long as Pepsi Holdings shall be a Member, at least one
Managing Director (the "Pepsi Holdings Managing Director") shall be appointed
by Pepsi Holdings and shall be an officer or employee of Pepsi Holdings, or of
an Affiliate of Pepsi Holdings. A Majority of Members may remove any Managing
Director from any other capacity with the Company at any time (other than
being a member of the Company), with or without cause. If the Pepsi Holdings
Managing Director is removed, Pepsi Holdings shall appoint a new Managing
Director. A Managing Director may resign at any time upon written notice to
the Members. The resignation shall take effect upon receipt of notice or at
such later date as specified in such notice. The acceptance of the resignation
is not necessary to make it effective.
(c) Vacancies. Any vacancy occurring as a result of the
resignation, removal, death or disability of a Managing Director or an
increase in the number of Managing Directors shall be filled by the vote of a
Majority of the Members; provided, however, that if the vacancy relates to the
Pepsi Holdings Managing Director, Pepsi Holdings shall appoint a new Managing
Director. A Managing Director chosen to fill a vacancy resulting from the
resignation, removal, death or disability of a Managing Director shall serve
the unexpired term of his or her predecessor in office.
4.2 Powers of Managing Directors. The power and authority of the
Managing Directors to act on behalf of the Company shall include the power to:
(a) purchase, lease or otherwise acquire from any Person, or
sell, lease or otherwise dispose of to any Person, any property of the
Company,
(b) open bank accounts and, except as otherwise provided
herein, invest the funds of the Company,
(c) purchase insurance on the business and assets of the Company,
(d) commence lawsuits and other proceedings,
(e) enter into any agreement, instrument or other writing,
(f) retain accountants, attorneys or other agents and
(g) execute, acknowledge and deliver any and all agreements
and instruments to effectuate the foregoing and to take other lawful action
that the Managing Directors consider necessary, convenient or advisable in
connection with any business of the Company.
4.3 Limitation on Powers of Managing Directors. Notwithstanding the
foregoing, the Managing Directors shall not have the authority to do any of
the following without the unanimous approval of the Members:
(a) take any action in contravention of this Agreement;
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(b) take any action which would make it impossible to carry
on the ordinary business of the Company or make any material change in the
business or purpose of the Company;
c) make, execute or deliver on behalf of the Company any
assignment for the benefit of creditors or file any bankruptcy or insolvency
petition;
(d) merge or consolidate the Company with or into another entity;
(e) commingle the Company's funds with those of any other Person;
(f) confess any judgment on behalf of the Company;
(g) approve or permit any voluntary liquidation, dissolution or
termination of the Company;
(h) make any amendment to this Agreement or to the certificate of
formation of the Company;
(i) permit or approve any issuance by the Company of any
additional or other equity interests (including any interests convertible into
equity interests) of, or the admission of a new member to, the Company
pursuant to Section 9.2;
(j) permit or approve any split, combination or reclassification
of any Interests;
(k) make any registered public offering of any equity interests
of the Company;
(l) enter into any contract, agreement or arrangement providing
for the lending of funds by the Company other than in the ordinary course of
business; or
(m) enter into a sale, lease, transfer or other disposition
of any assets of the Company outside the ordinary course of business with a
fair market value in excess of $10,000,000.
4.4 Liability for Certain Acts. The Managing Directors shall perform
their duties in good faith, in a manner and with such care as an ordinarily
prudent person in a similar position would use under similar circumstances. A
Managing Director who so performs such duties shall not have any liability by
reason of being or having been a Managing Director. Without limiting the
generality of the preceding sentence, a Managing Director does not in any way
guaranty the return of any Capital Contribution to a Member or a profit for
the Members from the operations of the Company.
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4.5 Salaries. The salaries, if any, and other compensation of the
Managing Directors shall be fixed from time to time by the unanimous vote or
written consent of the Members.
4.6 Powers to Bind the Company. No Managing Director (acting in his
or her capacity as such) shall have any authority to bind the Company with
respect to any matter except as authorized by the majority of the Managing
Directors in accordance with this Article IV.
ARTICLE V
Capital Contributions
5.1 Capital Contributions. Each Member shall contribute the assets
set forth on Exhibit A to this Agreement as its initial Capital Contribution.
No interest shall accrue on any Capital Contribution and no Member shall have
the right to withdraw or be repaid any Capital Contribution, except as
provided in this Agreement. If any Member withdraws from the Company pursuant
to Section 9.5 hereof, such Member shall remain obligated for any unpaid
Capital Contributions and shall not be entitled to a return of its Capital
Contribution. The value of any Additional Member's Capital Contribution and
the terms upon which such Capital Contribution shall be made shall be as
agreed upon by the Members.
5.2 Maintenance of Capital Accounts.
(a) The Company shall establish and maintain Capital Accounts for
each Member and assignee.
"Capital Account" means an account to be maintained for each
Member in accordance with the Code and Regulations, which, subject to any
contrary requirements of the Code and Regulations, shall be increased by
(i) the amount of money contributed by such Member to the
Company, if any;
(ii) the Gross Asset Value of property, if any, contributed
by such Member to the Company (net of liabilities that are secured by such
contributed property that the Company is considered to assume or take subject
to under Code Section 752 as set forth in Regulations Section
1.704-1(b)(2)(iv)(b)(2));
(iii) the amount of any Company liabilities that are
assumed by such Member pursuant to Regulations Section 1.704-1(b)(2)(iv)(c);
(iv) allocations to such Member of Net Profits determined
under Section 6.1 of the Agreement; and
(v) any items in the nature of income or gain which are
specially allocated to such Member pursuant to Sections 6.2, 6.3, and 6.4 of
the Agreement;
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and decreased by
(i) the amount of money distributed to such Member by the
Company;
(ii) the Gross Asset Value of property distributed to such
Member by the Company (net of liabilities that are secured by such distributed
property that such Member is considered to assume or take subject to under
Code Section 752 as set forth in Regulations Section 1.704-1(b)(2)(iv)(b)(5));
(iii) the amount of such Member's liabilities that are
assumed by the Company pursuant to Regulation Section 1.704-1(b)(2)(iv)(c);
(iv) allocations to the Member of Net Losses as determined
under Section 6.1; and
(v) any items in the nature of loss or deduction which are
specially allocated to such Member pursuant to Sections 6.2, 6.3 and 6.4 of
the Agreement.
(b) This Section and other provisions of this Agreement relating
to the maintenance of Capital Accounts are intended to comply with
Regulations Section 1.704-1(b), and shall be interpreted and applied in a
manner consistent with such Regulations. Notwithstanding that a particular
adjustment is not set forth in this Section, the Capital Accounts of the
Members shall be adjusted as required by, and in accordance with, the capital
account maintenance rules of Regulations Section 1.704-1(b).
5.3 Negative Capital Accounts. No Member shall be required to make up
an deficit balance of an Adjusted Capital Account or pay to any Member the
amount of such deficit in any such account.
5.4 Sale or Exchange of Membership Interest. In the event of a
Transfer of some or all of a Member's Membership Interest, the Capital Account
of the Transferring Member (as hereinafter defined) shall become the Capital
Account of the transferee, to the extent it relates to the Member's Membership
Interest so Transferred.
ARTICLE VI
Allocations of Profits and Losses; Distributions
6.1 Allocations of Net Profits and Net Losses from Operations. After
giving effect to the special allocations in Sections 6.2 and 6.3, Net Profits
and Net Losses shall be allocated among Members ratably in proportion to their
respective Membership Interests.
6.2 Special Provisions Regarding Allocations of Net Profits and Net
Losses.
14
(a) Minimum Gain Chargeback. In the event that there is a
net decrease in the Company Minimum Gain during a Fiscal Year, there shall be
a minimum gain chargeback described in Regulations Sections 1.704-2(f), (g)
and (j).
(b) Member Minimum Gain Chargeback. If during a Fiscal Year
there is a net decrease in Member Nonrecourse Debt Minimum Gain, any Member
with a share of that Member Nonrecourse Debt Minimum Gain (as determined under
Regulations Section 1.704-2(i)(5)) as of the beginning of the year must be
allocated items of Company income and gain for the yea r (and, if necessary,
for succeeding years) equal to that Member's share of such net decrease in
accordance with Regulations Sections 1.704-2(i) and (j).
(c) Qualified Income Offset. If any Member unexpectedly
receives any adjustments, allocations or distributions described in
Regulations Section 1.704-1(b)(2)(ii)(d)(4), (5) or (6), items of Company
income and gain shall be specially allocated to each such Member in an amount
and manner sufficient to eliminate, to the extent required by Regulations
Section 1.704-1(b)(2)(ii)(d), the deficit balance in the Adjusted Capital
Account of such Member as quickly as possible, provided that an allocation
pursuant to this Section 6.2(c) shall be made only if and to the extent that
such Member would have a deficit balance in the Adjusted Capital Account after
all other allocations provided for in this Article VI for the applicable
taxable year of the Company have been tentatively made as if this Section
6.2(c) were not in the Agreement.
(d) Allocation of Nonrecourse Deductions. Nonrecourse
Deductions attributable under Sections 1.704-2(c) and (j) of the Regulations
to increases in the Company Minimum Gain shall be allocated, in accordance
with Regulations Section 1.704-2(e), to the Members pro rata in proportion to
the relative Membership Interest held by each Member.
(e) Allocation of Member Nonrecourse Deductions. Any Member
Nonrecourse Deductions shall be allocated to the Members in accordance with
Regulations Section 1.704-2(i)(1).
(f) Section 754 Adjustment. To the extent that any
adjustment to the adjusted tax basis of any Company asset pursuant to Code
Section 734(b) or Code Section 743(b) is required, pursuant to Regulations
Section 1.704-1(b)(2)(iv)(m), to be taken into account in determining Capital
Accounts, the amount of such adjustment shall be treated as an item of gain
(if the adjustment increases the basis of the asset) or loss (if the
adjustment decreases such basis), and such gain or loss shall be specially
allocated to the Members in a manner consistent with the manner in which their
Capital Accounts are required to be adjusted pursuant to such section of the
Regulations.
(g) Notwithstanding any other provision of this Article VI,
no item of loss or deduction of the Company shall be allocated to a Member if
such allocation would cause or increase a deficit balance in an Adjusted
Capital Account of such Member. Any such loss or deduction shall be allocated
first among the Members with positive balances in their Adjusted Capital
Accounts in proportion to (and to the extent of) such positive balances and
thereafter, at
15
such time that there are no Members with positive Adjusted Capital Accounts,
to all the Members in accordance with their Membership Interests.
6.3 Curative Allocations. The Managing Directors shall determine if
any special allocations of items of income, gain, loss or deduction pursuant
to Section 6.2 shall be taken into account in computing allocations in a
subsequent Fiscal Year (or portion thereof) pursuant to the other provisions
of Article VI so that the net amount of any items so allocated and all other
items allocated to each Member pursuant to Article VI shall, to the extent
possible, be equal to the net amount that would have been allocated to each
Member pursuant to Article VI if the special allocations in Section 6.2 had
not been made. In determining the allocations under this Section 6.3,
consideration must be given to future allocations under Sections 6.2(a) and
6.2(b) that, although not yet required, are likely to offset allocations under
Sections 6.2(d) and 6.2(e).
6.4 Other Allocation Rules.
(a) For purposes of determining Net Profits, Net Losses or
any other items allocable to any period, Net Profits, Net Losses and any other
such items shall be determined on a daily, monthly or other basis, as
determined by the Members using any method that is permissible under Code
Section 706. If an Interest in the Company is Transferred in accordance with
Article VIII of this Agreement, the Net Profits and Net Losses of the Company
and any other items of the Company shall be allocated between the periods
before and after the Transfer using any method that is permissible under Code
Section 706. As of the date of such Transfer, the transferee shall succeed to
the Capital Account of the transferor Member with respect to the Transferred
Interest. This Section 6.4(a) shall apply for purposes of computing a Member's
Capital Account and for federal income tax purposes.
(b) If any fees or other payments deducted for federal
income tax purposes by the Company are recharacterized by the Internal Revenue
Service or by a court, in a determination or ruling with respect to which no
appeal or other relief is available, as nondeductible distributions to any
Member, then, notwithstanding all other allocation provisions (other than the
special allocations pursuant to Section 6.2 hereof), gross income shall be
allocated to such Member (for each Fiscal Year in which such
recharacterization occurs) in an amount equal to the fees or payments
recharacterized.
(c) A Member's share of the "excess nonrecourse liabilities"
of the Company within the meaning of Regulations Section 1.752-3(a)(3) shall
be determined by allocating such liabilities among the Members in proportion
to their Membership Interests, which proportion shall be deemed to be the
Members' respective "interests in partnership profits" (as such term is used
in Regulations Section 1.752-3(a)(3)) for purposes of such determination.
6.5 Tax Allocations: Code Section 704(c).
(a) In accordance with Code Section 704(c), the traditional
method as set forth in Regulations Section 1.704-3(b), shall, solely for tax
purposes, direct the allocation of income, gain, loss, and deduction with
respect to any Company property among the Members so as to
16
take account of any variation between the adjusted basis of such property to
the Company for federal income tax purposes and its initial Gross Asset Value.
(b) In the event that the Gross Asset Value of any Company
asset is adjusted pursuant to the definition of Gross Asset Value contained
herein, subsequent allocations of income, gain, loss and deduction with
respect to such asset shall take into account any variation between the
adjusted basis of such asset for federal income tax purposes and its Gross
Asset Value in the same manner as under Code Section 704(c) and the
traditional method as set forth in Regulations Section 1.704-3(b).
(c) Except as provided in Section 6.5(a), for federal income
tax purposes, under the Code and Regulations, each Company item of income,
gain, loss and deduction shall be allocated among the Members in the same
manner as its correlative item of "book" income, gain, loss or deduction is
allocated pursuant to this Article VI. Any elections or other decisions
relating to such allocations shall be made by the Members (or, to the extent
provided in Section 7.2(g), the Tax Matters Member) in any manner that
reasonably reflects the purpose and intention of this Agreement. Allocations
pursuant to this Section 6.5 are solely for purposes of federal, state and
local taxes and shall not affect, or in any way be taken into account in
computing, any Member's Capital Account or share of Net Profits or Net Losses,
other items, or distributions pursuant to any provision of this Agreement.
6.6 Distributions.
(a) Other than liquidating distributions, which shall be
governed by Section 11.1 herein, and the distribution described in Section
6.6(b), the Managing Directors shall determine, in their sole and absolute
discretion, cash available for distribution to Members and the amount to be
distributed to Members, and shall authorize and distribute to the Members pro
rata in proportion to their Membership Interests, the determined amount when,
as and if declared by the Managing Directors; provided, however, that to the
extent of available cash, the Managing Directors shall authorize and
distribute pro rata to all Members sufficient cash such that the aggregate
cash distributed to PBG and PBG Holdings will enable PBG to pay its taxes and
make interest payments on $1 billion 7% Senior Notes due 2029; provided
further, that the total cash distributed to the Members pursuant to this
Section 6.6(a) in each Fiscal Year of the Company beginning before February 8,
2001, shall not exceed the Company's "net cash flow" as defined in Regulations
Section 1.707-4(b)(2) for such year without the unanimous consent of all
Members. Available cash, as referred to herein, shall mean the cash and other
liquid investments of the Company after appropriate provision for expenses and
liabilities as determined by the Managing Directors, in their sole and
absolute discretion.
(b) The Company shall distribute to Pepsi Holdings, as promptly
as is reasonably practicable, the entire net proceeds of the issuance by the
Company on February 9, 1999 of Senior Notes.
6.7 Withholding Taxes. The Company is authorized to withhold from
Distributions to a Member, or with respect to allocations to a Member, and to
pay over to a federal, state or
17
local government, any amounts required to be withheld pursuant to the Code, or
any provisions of any other federal, state or local law. Any amounts so
withheld shall be treated as having been distributed to such Member pursuant
to this Article VI for all purposes of this Agreement, and shall be offset
against the amounts otherwise distributable to such Member. The Tax Matters
Member shall provide each Member with documentation that such withholdings
were in fact paid to the relevant governmental entity.
ARTICLE VII
Accounts and Tax Matters Member
7.1 Books. The Managing Directors shall cause to be maintained
complete and accurate books of account of the Company's affairs at the
Company's principal place of business. Such books shall be kept in accordance
with generally accepted accounting principles and shall be available for
inspection by any Member at the Company's principal place of business during
normal business hours.
7.2 Tax Matters Member. PBG Holdings shall be the tax matters partner
("Tax Matters Member") of the Company. The Tax Matters Member shall perform
the following:
(a) Prepare and file or supervise the preparation and filing of
the Company's federal, state and local partnership or other income tax
returns.
(b) Furnish or cause to be furnished to the Members, within
ninety (90) days after the close of the taxable year of the Company, all tax
information with respect to the Company as may be required by the other
Members for the preparation of any separate tax return which they may be
required to file.
(c) Prepare or cause to be prepared, within fifteen (15) days
after the close of each accounting period, a financial report for such
accounting period, and shall cause a copy of the report to be furnished to the
other Members. Such copy shall include a balance sheet as of the last day of
the accounting period and a statement of income or profit and loss for the
accounting period and the year-to-date period including that accounting
period. The statement of income or profit and loss shall disclose the amount
of and any changes in profit or loss, and shall show in particular the amounts
of depreciation, amortization, interest, and extraordinary income or charges,
whether or not included in the operating income.
(d) Cause to be prepared and furnished to the Member, within
ninety (90) days after the close of the Fiscal Year, audited financial
statements of the Company.
(e) Furnish the name, address, profits interest and taxpayer
identification number of each Member to the Internal Revenue Service.
18
(f) Refuse to extend the statute of limitations with respect
to tax items of the Company without the unanimous written consent of the
Members.
(g) Elect the accrual method of accounting for the Company
and make any other tax elections on behalf of the Company as the Tax Matters
Member, subject to Section 6.5(c), deems necessary and advisable; provided,
however, that the election under Code Sections 754, 734(b) and 743(b) shall be
made only with the unanimous consent of the Members; and provided, further,
that no election to treat the Company as a corporation for federal income tax
purposes shall be made under Regulations Section 301.7701-3(c) without the
Pepsi Holdings Managing Director's consent.
Nothing in this Section shall limit the ability of any Member to
take any action in its individual capacity relating to administrative
proceedings of Company matters that is left to the determination of any
individual Member under the Code or under any similar state or local
provision.
The Tax Matters Member will be entitled to reimbursement from
the Company for all reasonable costs and expenses incurred by it in
complying with and carrying out its responsibilities as Tax Matters Member.
ARTICLE VIII
Transfers of Membership Interests
8.1 Prohibition. No Member may Transfer all or any portion of its
Membership Interests other than upon the unanimous written consent of the
Members. Any attempted Transfer of Membership Interests, other than in strict
accordance with this Article VIII, shall be null and void and the purported
transferee shall have no rights as a Member or assignee hereunder.
8.2 Effect of Transfers. Upon any Transfer, the assignee shall be
entitled to receive the Distributions and allocations of income, gain, loss,
deduction, credit or similar items to which the transferring Member was
entitled with respect to the Transferred Interest. The assignee shall become a
Substitute Member pursuant to Section 9.3 hereof.
ARTICLE IX
Additional and Substitute Members; Withdrawal of Members
9.1 Admission; Withdrawals. Other than the Initial Members, no Person
shall be admitted to the Company as a Member except in accordance with Section
9.2 or 9.3 hereof. Except as otherwise specifically set forth in Section 9.5
hereof, no Member shall be entitled to withdraw from the Company. Any
purported admission or withdrawal which is not in accordance with this Article
IX shall be null and void. Upon admission of any Additional or
19
Substitute Member, or upon any Member ceasing to be a Member, the books and
records of the Company shall be revised accordingly to reflect such admission.
9.2 Admission of Additional Members. A Person shall become an
Additional Member pursuant to the terms of this Agreement only if and when
each of the Members consents in writing to such admission, which consent may
be given or withheld in each Member's sole and absolute discretion, and the
Members receive written instruments (including, without limitation, such
Person's consent to be bound by this Agreement as a Member) that are in a form
satisfactory to them, as determined in their sole and absolute discretion.
9.3 Admission of Assignees as Substitute Members. An assignee of all
or any portion of a Member's Membership Interest shall become a Substitute
Member of the Company only if and when both of the following conditions are
satisfied:
(a) Each Member consents in writing to such admission, which
consent may be given or withheld, or made subject to such conditions as are
determined by each Member, in its sole and absolute discretion; and
(b) the Members receive written instruments (including,
without limitation, such assignee's consent to be bound by this Agreement as a
Member) that are in a form satisfactory to them, as determined in their sole
and absolute discretion.
9.4 Cessation of a Member.
(a) Events Resulting in Cessation of a Member. Any Member
shall cease to be a Member of the Company upon the earliest to occur of any of
the following events:
(i) such Member's withdrawal from the Company pursuant to
Section 9.5 hereof;
(ii) as to any Member that is not an individual, the filing
of a certificate of dissolution, or its equivalent, for such Member; or
(iii) the Bankruptcy of such Member.
(b) Effect of Cessation of a Member. Upon any Member ceasing
to be a Member pursuant to Subsection (a) above, other than in a transaction
covered by Subsection (c) below, such Member or its successor in interest (if
any) shall become an assignee of its Membership Interests, entitled to receive
the Distributions and allocations of income, gain, loss, deduction, credit or
similar item to which such Member would have been entitled and shall not be
entitled to exercise any of the other rights of a Member in, or have any
duties or other obligations of a Member with respect to, such Membership
Interests. No such Member shall have a right to a return of its Capital
Contribution.
20
(c) Upon a withdrawal by a Member pursuant to Section
9.5(b), the Member's Interest (i) shall be redeemed by the Company in exchange
for such combination of cash and/or property as is agreed by the withdrawing
Member and each other Member of the Company, which cash and/or property shall
be paid by the Company to the withdrawing Member or its designee at such time
or times as are agreed upon by the withdrawing Member and each other Member of
the Company or (ii) shall be disposed of in such other transaction or
transactions as are agreed by the withdrawing Member and each other Member of
the Company.
9.5 Withdrawal of Members.
(a) Withdrawal Upon Transfer. If a Member has Transferred all of
its Membership Interests in one or more Transfers, then such Member shall
withdraw from the Company on the date upon which each assignee of such
Membership Interests has been admitted as a Substitute Member in accordance
with Section 9.3 hereof, and such Member shall no longer be entitled to
exercise any rights or powers of a Member under this Agreement.
(b) Voluntary Withdrawal. In addition to a withdrawal pursuant
to Subsection (a) above, each Member shall have the right to withdraw from the
Company at any time, but only upon the unanimous consent of the Members. A
withdrawing Member shall have no right to a return of its Capital
Contribution.
ARTICLE X
Events of Dissolution
The Company shall be dissolved upon the occurrence of either of the
following events (each, an "Event of Dissolution"):
(a) The PepsiCo Member and the PBG Member each consents to
dissolution; or
(b) A judicial dissolution of the Company pursuant to Section
18-802 of the Act.
ARTICLE XI
Termination
11.1 Liquidation. In the event that an Event of Dissolution shall
occur, the Company shall be liquidated and its affairs shall be wound up. All
proceeds from such liquidation shall be distributed as set forth below, in
accordance with the provisions of Section 18-804 of the Act:
(a) to creditors, including Members who are creditors to the
extent permitted by law, in satisfaction of the Company's liabilities; and
21
(b) to Members in accordance with their positive Capital
Account balances, taking into account all Capital Account adjustments for the
Company's Fiscal Year in which the liquidation occurs. Liquidation proceeds
shall be paid by the end of the Company's Taxable Year in which the
liquidation occurs or, if later, within 90 days after the date of liquidation.
Such Distributions shall be in cash or property (which need not be distributed
proportionately) or partly in both, as determined by the Managing Directors.
11.2 Final Accounting. In the event of the dissolution of the
Company, prior to any liquidation, a proper accounting shall be made to the
Members from the date of the last previous accounting to the date of
dissolution.
11.3 Cancellation of Certificate. Upon the completion of the
Distribution of the Company's assets upon dissolution, the Company shall be
terminated and the Managing Directors shall cause the Company to execute and
file a certificate of cancellation in accordance with Section 18-203 of the
Act.
ARTICLE XII
Exculpation and Indemnification
12.1 Exculpation. Notwithstanding any other provisions of this
Agreement, whether express or implied, or obligation or duty at law or in
equity, none of the Managing Directors or Members, or any officers, directors,
stockholders, partners, employees, representatives, consultants or agents of
either of the foregoing, nor any officer, employee, representative, consultant
or agent of the Company or any of its Affiliates (individually, a "Covered
Person" and, collectively, the "Covered Persons") shall be liable to the
Company or any other Person for any act or omission (in relation to the
Company and the conduct of its business, the Agreement, any related document
or any transaction contemplated hereby or thereby) taken or omitted in good
faith by a Covered Person and in the reasonable belief that such act or
omission was in, or was not contrary to, the best interests of the Company.
12.2 Indemnification. To the fullest extent permitted by law, the
Company shall indemnify and hold harmless each Managing Director, Member and
officer of the Company and each officer or director of any Member
(individually, an "Indemnified Person" and, collectively, the "Indemnified
Persons") from and against any and all losses, claims, demands, liabilities,
expenses, judgments, fines, settlements and other amounts arising from any and
all actions, suits or proceedings, whether civil, criminal, administrative or
investigative ("Claims"), in which such Indemnified Person may be involved, or
threatened to be involved, as a party or otherwise, by reason of its
management of the affairs of the Company or which relates to or arises out of
the Company or its property, business or affairs. The Company shall pay in
advance any legal or other expenses incurred in investigating or defending
against any loss, claim, damage or liability which may be subject to
indemnification under this Section 12.2, upon receipt of an undertaking from
the Indemnified Person on whose behalf such expenses are paid to repay such
amount if it shall ultimately be determined that such Indemnified Party is not
entitled to be indemnified by the Company. The Company shall purchase
insurance, to the extent available at reasonable cost,
22
to cover losses, claims, damages or liabilities subject to indemnification
under this Section. The Company, upon a determination by the Managing
Directors, may, but shall not be obligated to, provide indemnification to any
employees, representatives, agents or consultants of the Company to the same
extent provided to Indemnified Persons pursuant to this Section 12.2.
ARTICLE XIII
Amendment to Agreement
Amendments to this Agreement shall be approved in writing upon
consent of each of the Members. An amendment shall become effective as of the
date agreed to by the Members.
23
ARTICLE XIV
General Provisions
14.1 Notices. Unless otherwise specifically provided in this
Agreement, all notices and other communications required or permitted to be
given hereunder shall be in writing and shall be (i) delivered by hand, (ii)
delivered by a nationally recognized commercial overnight delivery service,
(iii) mailed postage prepaid by first class mail or (iv) by telecopier, in any
such case directed or addressed to each Member at the address or telecopy
number set forth on Exhibit A hereof. Such notices shall be effective: (a) in
the case of hand deliveries when received; (b) in the case of an overnight
delivery service, on the next business day after being placed in the
possession of such delivery service, with delivery charges prepaid; (c) in the
case of mail, seven (7) days after deposit in the postal system, first class
mail, postage prepaid, and (d) in the case of facsimile notices, when
electronic indication of receipt is received. Any Member may change its
address and telecopy number by written notice to the Company.
14.2 Entire Agreement. This Agreement constitutes the entire
agreement among the Members hereto relating to the subject matter hereof and
supersedes all prior contracts, agreements and understandings between them. No
course of prior dealings among the Members shall be relevant to supplement or
explain any term used in this Agreement. Acceptance or acquiescence in a
course of performance rendered under this Agreement shall not be relevant to
determine the meaning of this Agreement even though the accepting or the
acquiescing party has knowledge of the nature of the performance and an
opportunity for objection. Provisions of this Agreement may be waived, amended
or modified only by an instrument in writing executed by the waiving party. No
waiver of any terms or conditions of this Agreement in one instance shall
operate as a waiver of any other term or condition or as a waiver in any other
instance.
14.3 Counterparts. This Agreement may be executed in two or more
counterparts by the parties hereto, each of which when so executed will be an
original, but all of which together will constitute one and the same
instrument.
14.4 Severability. If any provision of this Agreement is held to be
invalid or unenforceable for any reason, such provision shall be ineffective
to the extent of such invalidity or unenforceability; provided, however, that
the remaining provisions will continue in full force without being impaired or
invalidated in any way unless such invalid or unenforceable provision or
clause shall be so significant as to materially affect the Members'
expectations regarding this Agreement. Otherwise, the Members agree to replace
any invalid or unenforceable provision with a valid provision which most
closely approximates the intent and economic effect of the invalid or
unenforceable provision.
14.5 Governing Law. This Agreement shall be governed by and construed
in accordance with the laws of the State of Delaware without regard to the
principles of conflicts of laws thereof.
14.6 Binding Effect. This Agreement shall be binding upon, and inure to
the benefit of the Members.
24
14.7 Additional Documents and Acts. Each Member agrees to execute and
deliver such additional documents and instruments and to perform such
additional acts as may be necessary or appropriate to effectuate, carry out
and perform all of the terms, provisions, and conditions of this Agreement and
of the transactions contemplated hereby.
14.8 No Third-Party Beneficiary. This Agreement is made solely for
the benefit of the parties hereto and no other person shall have any rights,
interest, or claims hereunder or otherwise be entitled to any benefits under
or on account of this Agreement as a third-party beneficiary or otherwise.
14.9 Limited Liability Company. The parties to this Agreement agree
to be Members of a limited liability company and do not intend to form a
partnership under the laws of the State of Delaware or any other laws;
provided, however, that, to the extent permitted by United States Federal and
applicable state and local law, the Company will be treated as a partnership
for United States federal, state and local income tax purposes.
IN WITNESS WHEREOF, each Member has duly executed this Agreement as
of the day first above written.
PEPSI BOTTLING HOLDINGS, INC.
By: /s/ Matthew M. McKenna
-----------------------------------
Name: Matthew M. McKenna
Title: President
BOTTLING GROUP HOLDINGS, INC.
By: /s/ Lawrence F. Dickie
-----------------------------------
Name: Lawrence F. Dickie
Title: Vice President and Secretary
THE PEPSI BOTTLING GROUP, INC.
By: /s/ Pamela C. McGuire
-----------------------------------
Name: Pamela C. McGuire
Title:
25
EXHIBIT "A"
Members: Capital Contribution: Membership Interest:
- -------- --------------------- --------------------
Pepsi Holdings Assets and Liabilities 7.08%
described in Exhibit "B"
PBG Holdings Assets and Liabilities 80.12%
described in Exhibit "C"
PBG Assets and Liabilities 12.80%
described in Exhibit "D"
Dated: February 8, 1999
Exhibit "B"
Pepsi Holdings Capital Contribution
Pepsi Holdings is contributing all of its assets and liabilities, including
but not limited to those assets specifically related to the franchise
locations set forth below and its equity ownership of New Bern Transport
Company and the liabilities associated with the assets or otherwise arising
out of the bottling operations at the franchise locations set forth below.
Franchise Location Name
--------- -------- ----
0 7 MILWAUKEE
0 9 INDIANAPOLIS
1 15 DETROIT PLANT-DPC
1 27 BOWLING GREEN, OHIO (401)
8 6 FORMER EAST HQ
8 27 MILTON MA (ACQ 1995)
8 70 WEST LYNNE MA (ACQ 1990)
8 71 NATICK MA (ACQ 1990)
8 75 PORTSMOUTH (NH)
8 77 MANCHESTER (NH)
8 78 LOUDEN (NH)
8 79 CLAREMONT (NH)
8 80 ALLSTON
8 81 CAPE COD
8 82 UNCASVILLE
8 84 CRANSTON PRODUCTION
8 85 WILMINGTON
8 86 TAUNTON
8 87 N. ENG. AREA V.P.
9 30 CHARLSTON (GCC)
9 31 OAK HILL (GCC)
14 50 DCI-CRANSTON (DIVESTED)
14 51 CENTRAL LOCATION
15 15 TREASURY (HOME OFFICE)
17 30 DENVER DPC
17 31 FT. COLLINS
17 32 GREELEY
17 33 KREMMLING
17 34 BRUSH
2
Exhibit "B"
Franchise Location Name
--------- -------- ----
17 35 STERLING
17 36 LIMON
17 37 DENVER GM
20 11 PLANT ROAD
20 12 NEW BRUNSWICK
20 13 JERSEY CITY
20 14 MOONACHIE AREA
20 15 WEST CALDWELL
20 16 KEARNEY
20 17 MOONACHIE SALES
20 51 OAKHURST
20 60 PISCATAWAY (PLANT)
21 33 ATLANTIC CITY
21 71 HARRISBURG (PBG)
21 72 YORK (PBG)
21 73 LANCASTER (PBG)
21 74 SELINSGROVE (PBG)
21 80 NEWVILLE (PBG)
29 1 EASTERN DIVISION H.Q.
29 4 DIVISION HQ-ACQUISITIONS
29 5 DIVISION HQ-MANUFACTURING
30 10 MESQUITE (DALLAS PLANT)
30 11 COMO
30 12 MANAGEMENT OVERHEAD DALLAS
30 14 CARROLTON WAREHOUSE
30 16 FORT WORTH
30 80 LONGVIEW
30 81 TYLER
30 82 LUFKIN
31 13 WACO
31 15 KILLEEN
31 17 BRYAN
31 20 HOUSTON
31 21 CONROE WEST
31 22 BAY CITY
31 23 CONROE
31 24 BEAUMONT
31 25 LAKE CHARLES ACQ 8/92
31 26 AUSTIN
3
Exhibit "B"
Franchise Location Name
--------- -------- ----
31 27 CONROE PACKAGING INC
31 28 CONROE LIPTON TEA
31 40 HARLINGEN PLANT
31 42 SAN ANTONIO
31 43 MANAGEMENT OVERHEAD-CTEX
32 36 LAS VAGAS RECEIVABLES
32 37 PUEBLO RECEIVABLES
33 40 LAS VAGAS WAREHOUSE
33 41 ST GEORGE UTAH
33 42 KINGMAN ARIZONA
33 44 NEEDLES
33 45 BAKER
34 23 FLORIDA AREA ADMIN
35 50 ALBUQUERQUE
35 55 GALLUP
35 69 SANTA FE
37 60 PUEBLO PLANT
37 61 10TH ST. WAREHOUSE
37 62 ALAMOSA
37 63 CANON CITY
37 64 LAJUNTA
37 65 LAMAR
37 66 SALIDA
37 67 TRINIDAD
38 8 PERRY (NORTH FLORIDA)
38 21 VALDOSTA (GEORGIA)
38 22 CORDELE (GEORGIA)
40 2 TEXAS DIV HQS (NORTON)
40 5 PCC DIV HQS (SOUTH)
41 20 SALT LAKE CITY
41 21 ELKO
41 22 GRAND JUNCTION
41 23 MONTROSE
41 24 CRAIG (CO)
41 25 GLENWOOD SPRINGS
41 28 AZTEC, NM
41 29 PRICE UT
46 41 CARLSDAD
46 42 HOBBS
4
Exhibit "B"
Franchise Location Name
--------- -------- ----
46 43 ALAMOGORDO
46 44 MIDLAND
46 45 ODESSA
46 46 MONAHANS
46 47 LUBBOCK
46 48 ROSWELL CONSOLIDATED
46 49 CLOVIS
46 90 PAMPA (TX)
46 91 AMARILLO (TX)
48 40 EKB TEAM
48 41 PIKEVILLE, KY
48 42 PAINTSVILLE, KY
48 43 HAZARD, KY
51 90 PETURSBURG VA
51 91 DANVILLE
51 92 LAWRENCEVILLE VA
53 62 NORTH CAL METRO GM
57 20 CLARKSBURGH
59 59 WESTERN DIVISION HQ
59 60 STATE TAX
59 61 CALIFORNIA GM
59 62 CAL RIM GM
63 70 BALTIMORE (PBG)
63 75 NORFOLK (PBG)
63 76 SUFFOLK (PBG)
63 77 NEWPORT NEWS (PBG)
63 78 RICHMOND (PBG)
63 79 FREDRICKSBURG (PBG)
63 81 WILLIAMSPORT (PBG)
63 82 THURMONT (PBG)
64 26 CHESAPEAKE, PCC REIM
65 50 PARKERSBURG
65 52 HUNTINGTON WV
65 53 WVA BDM
65 54 OPEN
65 55 OPEN
66 51 LOGAN
67 60 MOUNDSVILLE WEST VA
68 33 INDY PCC REIM
5
Exhibit "B"
Franchise Location Name
--------- -------- ----
73 37 FEJQ PCC-REIM
73 38 FEHQ PCC-MANAGE
76 19 CUMBERLAND
76 22 PETERSBURG W VA
82 78 ARDMORE (OK)
82 79 HUGO (ARK)
82 80 OKLAHOMA CITY (OK)
82 82 ENID (OK)
82 83 WOODWARD (OK)
82 84 LAWTON (OK)
82 88 ADA (OK)
82 89 OKLAHOMA CITY SP EVENTS
82 97 SW-BEVERAGES INC (OK)
88 1 PCC TAX
88 2 NBU ADJUSTMENT
88 62 E.I.E.I.O.
88 90 METRO HOME OFFICE
88 91 PCC ELIM
88 92 OLDELIM
98 2 CAL TAX
98 4 FLORIDA TAX
98 8 MEI TAX
98 22 OPPCO TAX
98 24 ALTON TAX
98 26 GENERAL TAX
98 28 METRO TAX
98 36 LAUREL TAX
98 38 CAROLINAS TAX
98 62 GCB TAX
98 64 RICE TAX
98 66 ANNAP TAX
98 69 GEN ACQ COST TAX
98 70 ALPAC 07-93 TAX
98 72 BEAMAN TAX
98 74 MILTON TAX
98 76 TRIO TAX
98 94 TAXES GEN TAX
98 98 TOPSIDES TAX
16 16 PCPI (HOME OFFICE)
6
Exhibit "B"
Franchise Location Name
--------- -------- ----
27 20 BEAMAN ADMINISTRATIVE
27 33 NASHVILLE
27 34 COLUMBIA
27 35 MURFREESBORO
27 39 NASHVILLE PROD. FACILITY
27 36 CHATTANOOGA
27 37 TULLAHOMA
27 38 ROME
70 12 EVERET
70 20 SPOKANE
70 21 COEUR D'ALENE
70 30 PORTLAND
70 31 SALEM
70 40 ANCHORAGE
70 41 FAIRBANKS
70 42 SOLDOTNA
70 43 JUNEAU
70 44 WASILLA
7
Exhibit "C"
PBG Holdings Capital Contribution
Capital Contribution Relating to the Domestic Bottling Business
PBG Holdings is contributing all of its assets and liabilities, including but
not limited to those assets specifically related to the franchise locations
set forth below and its equity ownership of New Bern Transport Company and
Grayhawk Leasing Company and the liabilities associated with the assets or
otherwise arising out of the bottling operations at the franchise locations
set forth below. PBG Holdings is also contributing all of its assets and
liabilities relating to the bottling operations in the territories of
Watertown, New York; Marion, Virginia; and Princeton, West Virginia.
Franchise Location Name
- --------- -------- ----
81 10 BURNSVILLE (MINN)
81 11 CONTRACT BEVERAGES (MINN)
81 14 EAU CLAIRE (WIS)
81 17 GRAND RAPIDS (MINN)
81 22 BRAINERD (MINN)
81 24 DULUTH (MINN)
81 26 MINN CONSOLIDATED (MINN)
81 27 AREA ADMINISTRATION (MINN)
81 28 NEW AGE
82 11 HARRISON (ARK)
82 12 SPRINGDALE (ARK)
82 14 FT SMITH (ARK)
82 41 JOPLIN (MO)
82 43 MONETT (INVENTORY ONLY) (MO)
82 60 TULSA ADMIN (OK)
82 70 TULSA CAN PLANT (OK)
82 71 TULSA (OK)
82 72 VINITA (OK)
82 73 BARTLESVILLE/DEWEY (OK)
82 74 STILLWATER (OK)
82 75 COFFEYVILLE (OK)
82 76 MUSKOGEE (OK)
82 77 TAHLEQUAH (OK)
8
Exhibit "C"
Franchise Location Name
- --------- -------- ----
83 10 KANSAS NEBRASKA HQ ADMIN (KA)
83 20 WICHITA (KA)
83 21 HUTCHINSON (NEWTON) (KA)
83 23 EMPORIA (KA)
83 24 OMAHA (NB)
83 25 SHENANDOAH (IO)
83 26 SCHUYLER (MO)
83 27 HAYS (KA)
83 28 GREAT BEND (KA)
83 29 COLBY (KA)
83 30 HOLDREGE (CLOSED-HIST)
83 31 NORTH PLATT (NB)
83 32 MCCOOK (NB)
83 33 DODGE CITY (KA)
83 34 GARDEN CITY (KA)
83 35 LIBERAL (KA)
83 36 GRAND ISLAND (NB)
83 37 WELLINGTON WATER PRODUCTION
83 53 DODGE CITY WATER
88 73 BEVERAGE PRODUCT INC. (LOAN)
26 10 COLUMBIA (DP)
26 11 SUMTER
26 12 ORANGEBURG
26 13 GREENWOOD
26 14 AUGUSTA
26 16 WEST COLUMBIA
26 25 ATLANTIC CONSOL.
26 40 CHARLESTON
26 41 BEAUFORT
26 42 JEDBURG
26 50 SPARTANBURG
26 51 ROCK HILL
26 52 LANCASTER
26 53 FOREST CITY
26 54 ANDERSON
26 60 KNOXVILLE
26 61 ROCKWOOD
26 62 TENN ADMIN
9
Exhibit "C"
Franchise Location Name
- --------- -------- ----
26 63 MORRISTOWN
26 64 SWEETWATER
26 66 COOKEVILLE
26 67 ALBANY
26 70 A.P.I. -PLANT-
26 71 A.P.C. -PLANT-
26 80 AREA ADMIN ALT SD
47 15 STATESBORO
47 20 WAYCROSS
47 24 VIDALIA
47 43 GAINSVILLE
88 92 ATLANTIC SOFT DRINK CO. INC. (LOAN)
26 30 WILMINGTON N.C.
26 31 WALLACE
25 81 WINSTON-SALEM
25 82 GREENSBURO
25 83 ELKIN
25 84 STATESVILLE
25 85 GLENOLA
25 86 REIDSVILLE
25 87 MT. AIRY
25 88 SPENSER
25 89 N/CAR ADMIN
24 40 MIAMI-1
34 1 ORLANDO
39 11 30TH ST WAREHOUSE (PLANT)
47 41 JACKSONVILLE
10 45 ROANOKE (HOLLINS) (GCC)
10 46 LYNCHBURG VA (GCC)
10 47 GLASGOW VA (GCC)
10 48 FARMVILLE VA (GCC)
10 49 COVINGTON VA (GCC)
10 85 STUART VA (GCC)
10 86 CHRISTIANBURG VA (GCC)
19 24 GCB VIRGINIA
10 20 CHEVERLY VA (GCC)
10 21 MONTGOMERY VA (GCC)
10 42 LA PLATA VA (GCC)
10
Exhibit "C"
Franchise Location Name
- --------- -------- ----
10 44 FAIRFAX VA (GCC)
19 23 GCB WASHINGTON DC
26 90 AREA ADMIN RICE
26 91 JOHNSON CITY TENN.
7 26 CLARK BUILDING
7 70 MCKEES ROCKS
7 71 CENTRAL BDM
7 72 SLIPPERY ROCK
7 73 KITTANNING
7 74 BURGETTSTOWN/WAYNESBURG
7 75 APOLLO
7 76 BURNS
7 77 BURGTOWN
7 79 ALEPPO
8 74 NIAGARA (LAUREL) (NY)
8 88 JAMESTOWN (ACQ 3/91)
11 40 SACRAMENTO CA (GCC)
11 41 AUBURN CA (GCC)
21 20 PHILADELPHIA PLANT
21 21 ALLENTOWN
21 22 EASTWICK (S PHIL)
21 27 AREA TEAM (PHIL SALES)
21 28 READING
21 29 SCHYULKILL HAVEN
21 30 WILLIAMSPORT (CONFAIR)
21 31 BERWICK (CONFAIR)
21 34 WEST CHESTER
21 35 WELLSBORO (INACTIVE)
21 36 MILESBURG (DIVESTED)
21 37 CENPRO (CONFAIR)
21 38 CENTRAN
21 39 MT. CARMEL (DIVESTED)
21 42 WILKES BARRE
21 43 SCRANTON
28 78 FRANKLIN
49 80 BAKERSFIELD HDQS
49 82 SAN DIEGO
49 83 BRAWLEY
11
Exhibit "C"
Franchise Location Name
- --------- -------- ----
49 88 VENTURA
49 89 SANTA MARIA
52 14 ERIE PA
55 30 FRESNO
55 31 VISALIA
55 32 MERCED
55 33 MODESTO
55 34 STOCKTON
55 35 SALINAS (FRESNO)
55 36 AREA ADMIN
55 37 CENTRAL VALLEY BEVERAGE
55 38 SANTA CRUZ
56 10 YOUNGWOOD
56 11 UNIONTOWN
56 12 MORGANTOWN VA
56 13 LAUREL SPRINGS (ADMIN)
57 15 JOHNSTOWN
57 16 ST MARY'S
57 17 ALTOONA
57 18 LEWISTOWN
57 22 EAST BDM
57 23 UNI-BEV ADMIN
88 63 PC LAUREL BTTL. CO. (LOAN)
92 92 LAUREL PACKAGING
0 0 MICHIGAN DIVISION H.Q.
0 3 CENTRAL DIV HQ MANF
0 4 UNALLOCATED DIV
0 99 MICHIGAN DIVISION B/S
1 10 DETROIT PLANT
1 11 PONTIAC
1 12 WARREN
1 14 CHESTERFIELD
1 20 TROY BU OFFICE
1 21 ROMULUS
1 22 MILAN
1 26 DEARBORN WAREHOUSE (401)
1 40 FLINT PLANT
1 43 FLINT WAREHOUSE
12
Exhibit "C"
Franchise Location Name
- --------- -------- ----
1 50 HOWELL PLANT
1 51 HOWELL DPC (RENAMED)
1 52 HOWELL REMANUFACTURING
1 71 SEM NEW AGE PRODUCTS
2 23 JACKSON
2 24 COLDWATER
2 25 JACKSON PLASTIC OPERATION
2 30 GRAND RAPIDS PLANT
2 31 GRAND RAPIDSWAREHOUSE
2 32 MUSKEGON
2 33 ST JOSEPH
2 34 KALAMAZOO
2 35 KENTWOOD
2 36 BRANCH
2 37 TRAVERSE CITY
2 38 PETOSKEY
2 41 SAGINAW
2 42 WEST BRANCH
2 44 ALPENA
2 45 LANSING
2 46 MT. PLEASANT
2 72 MEM MICHIGAN
2 81 OSM-NEW AGE PRODUCTS
23 90 ATLANTA PLANT (GCC)
23 91 SOUTHSIDE (GCC)
23 92 OMEGA (GCC)
23 93 GAINSVILLE GA (GCC)
23 94 JASPER GA (GCC)
23 95 ATHENS GA (GCC)
23 96 AREA ADMIN FOR ATLANTA GA
24 40 MIAMI-1
24 51 MIAMI-2
24 52 MIAMI AREA ADMIN
34 1 ORLANDO
34 2 MELBOURNE
34 3 WINTER HAVEN
34 4 DAYTONA
34 6 ORLANDO ADMIN
13
Exhibit "C"
Franchise Location Name
- --------- -------- ----
34 7 FT. PIERCE
39 10 CYPRUS (ADMINISTRATION)
39 11 30TH WAREHOUSE (PLANT)
39 12 BROOKSVILLE
39 13 HOLIDAY
39 14 ST. PETERSBURG FLA
39 15 SARASOTA
39 16 50TH ST WAREHOUSE
39 17 50TH ST WAREHOUSE FLEET
39 46 FT. MEYERS
39 47 NAPLES
47 41 JACKSONVILLE
47 42 PALATKA
47 44 OCALA
47 45 LAKE CITY
47 48 SAVANNAH
47 49 BRUNSWICK
47 50 JACKSONVILLE AREA ADMIN
53 1 SAN FRANCISCO
53 2 SUNNYVALE
53 3 LIVERMORE
53 4 EMERYVILLE
53 5 AREA TEAM
53 6 SANTA ROSA
53 7 BENCIA
53 8 HAYWARD
53 9 EXPORT
53 10 SALINAS
53 11 OAKLAND
53 12 EUREKA
53 14 UKIAH
53 15 MILPITAS
53 16 DIMINION
53 17 BENCIA CENTRAL
53 21 AREA ADMINISTRATION
53 22 EXPORT REVERSAL
53 23 DIMINION REVERSAL
87 89 NCB SWEETNERS
14
Exhibit "C"
Franchise Location Name
- --------- -------- ----
54 18 RENO (NV)
54 19 FALLON (NV)
54 20 LAKE TAHOE (CA)
70 1 NORTHWEST GM
70 10 SEATTLE
70 11 TACOMA
70 50 HONOLULU
70 51 BIG ISLAND
49 85 BAKERSFIELD
49 86 MOJAVE
50 35 LOS ANGELES HEADQUARTERS
50 51 BALDWIN PARK
50 52 TORRENCE PLANT
50 53 SAN FERNANDO
50 54 INDIO
50 56 SAN BERNADINO
50 57 BUENA PARK SYRUP
50 58 BUENA PARK B/C
50 64 RIVERSIDE MFG DPC
50 65 LAGUNA HILLS
50 66 VICTORVILLE
50 55 PUB REALTY
21 23 YORK (PA)
21 24 LANCASTER (PA)
21 25 SELINSGROVE (PA)
21 26 HARRISBURG (PA)
21 61 NEWVILLE, PA
69 83 ANNAPOLIS BALT
69 84 ANNAPOLIS CHEV
74 11 BALTIMORE (MD)
76 62 WILLIAMSPORT (MD)
76 64 THURMONT (MD)
77 41 RICHMOND (VA)
77 43 FREDERICKSBURG (VA)
78 36 NORFOLK (VA)
78 37 SUFFOLK (VA)
78 51 NEWPORT NEWS PRODUCTION (VA)
79 12 CHESAPEAKE HQ BALTIMORE (MD)
15
Exhibit "C"
Franchise Location Name
- --------- -------- ----
88 74 PC OPER OF CHES&INDY (LOAN)
98 22 OPCO TAX
8 72 BANGOR MA (ACQ 7/90)
8 83 CRANSTON DPC
46 40 ROSWELL (PLANT)
21 32 WILMINGTON, DEL
41 27 DURANGO
8 60 ALBANY
8 61 LATHAM
8 62 BINGHAMPTON
8 63 KEESVILLE
8 64 SYRACUSE
8 65 ROCHESTER
8 66 UTICA
8 67 HARTFORD
8 68 NEW HAVEN
Capital Contribution Relating to the International Bottling Business
PBG Holdings will contribute the equity interests it will receive in the
following entities:
Pepsi-Cola Bottling Global B.V. ("PCBG")
PCBG's direct and indirect subsidiaries will include:
Pepsi-Cola Bottling Finance B.V.
Centro-Mediterranea De Bebidas Carbonicas PepsiCo, S.A.
Dornfell
International Bottlers LLC
International Bottlers Management Co. LLC
Pepsi International Bottlers (Kraspoyarsk)
Pepsi International Bottlers (Nizhny Novgorod)
Pepsi International Bottlers (Novosibirsk)
Pepsi International Bottlers (Samara)
Pepsi International Bottlers (Yekaterinburg)
PepsiCo Holdings OOO Russia
Pepsi-Cola Soft Drink Factory of Sochi
International Bottlers Employment Co. LLC
16
Exhibit "C"
Pepsi International Bottlers LLC
Neva Holdings LLC
GB Russia LLC
PepsiCo IVI S.A.
PBG Spirituosen Holdings, LLC ("Spirituosen")
Spirituosen's direct and indirect subsidiaries will include:
Pepsi-Cola de Espana, S.L.
Arrobi, S.A.
Catalana de Bebides Carbonicas, S.A.
Compania de Bebidas PepsiCo, S.A.
Kas, S.L.
PepsiCo Ventas Andalucia, S.A.
Pet-Iberia, S.A.
Spirituosen S.A.
Seven-Up Espana S.A.
Spirituosen e Cia
17
Exhibit "D"
PBG Capital Contribution
PBG will contribute (1) shares of The Pepsi Bottling Group NRO Ltd. worth $571
million, (2) its shares of PBG Spirituosen Holdings, LLC, and (3) its shares
of New Bern Transport Corporation.
18