Exhibit 10.1
FORM OF
EMPLOYEE RESTRICTED STOCK AGREEMENT
AGREEMENT made as of the [ ](the "Grant Date"), by and between The
Pepsi Bottling Group, Inc., a Delaware corporation having its principal office
at One Pepsi Way, Somers, New York 10589 ("PBG"), and [ ] ("you" or the
"Grantee").
W I T N E S S E T H:
WHEREAS, the Board of Directors of PBG (the "Board") has approved PBG's
Long Term Incentive Plan (the "Plan"), for the purposes and subject to the
provisions set forth in the Plan; and
WHEREAS, the Compensation and Management Development Committee of the Board
or its delegate (the "Committee") (which is authorized to administer the Plan)
has decided to grant you an award of shares of PBG's Common Stock subject to the
restrictions contained in this Agreement (the "Restricted Stock"); and
WHEREAS, the number of Restricted Stock shares granted under the Plan are
to be evidenced by an Agreement in such form and containing such terms and
conditions, as the Committee shall determine;
NOW, THEREFORE, it is mutually agreed as follows:
1. Grant. In consideration of your remaining in the employ of PBG, or one
of its direct or indirect subsidiaries (collectively, the "Company"), PBG hereby
grants to you, on the terms and conditions set forth herein, an aggregate of
[ ] shares of Restricted Stock subject to, and in accordance with, the
terms set forth in this Agreement.
2. Lapse of Restrictions. Subject to the terms and conditions set forth
herein, your Restricted Stock award shall vest and all restrictions shall lapse
on [ ] so long as you remain an employee of the Company through such date;
provided, however, that if your employment terminates as a result of your
Retirement (as defined below) or Total Disability (as defined below), then you
shall be vested with a portion of the Restricted Stock award which is in
proportion to your active service during the period commencing on the Grant Date
and ending on [ ]; provided further, however, that if such termination occurs by
reason of your death, then your legal representative (or any person to whom the
Restricted Stock may be transferred by will or the applicable laws of descent
and distribution), shall be fully vested in all of the Restricted Stock award.
Notwithstanding anything herein to the contrary, unless otherwise determined by
the Committee, no Restricted Stock award shall become vested after the date your
employment with the Company terminates.
3. Book Account. A book account in respect of your shares of Restricted
Stock shall be maintained by the Company until (i) the delivery of unrestricted
shares to you or your estate, subject to your delivery of any documents which
the Committee may require as a condition to the issuance of shares of PBG Common
Stock and the delivery of such shares to you or your estate, or (ii) the
forfeiture of your Restricted Stock.
4. Rights of Grantee and Dividends. Except as otherwise provided in this
Agreement, you shall have no rights as a shareholder until such time as the
restrictions have lapsed and certificates for shares of Common Stock are issued
to you. All dividends declared and paid by PBG on shares of Restricted Stock
shall be deferred until the restrictions on such shares lapse in accordance with
Section 2. Such deferred dividends shall be held by the
Company for your account. Upon the forfeiture of the Restricted Stock, any
deferred dividends attributable to such Restricted Stock shall also be
forfeited.
5. Misconduct. If the Committee or its delegate determines that the Grantee
has committed "Misconduct" at any time prior to, or within twelve months after,
the vesting or payment of any Restricted Stock, then the Committee may, in its
sole discretion: (i) cancel any outstanding Restricted Stock and/or (ii) require
the Grantee to pay to the Company any and all amounts realized from any
Restricted Stock which was paid within the twelve month period immediately
preceding the date of such cancellation (or if there is no cancellation, the
date on which such claim for payment is made). The Grantee commits Misconduct if
the Committee or its delegate determines that the Grantee: (a) violated any
agreement between the Company and the Grantee, including but not limited to a
violation relating to the disclosure of confidential information or trade
secrets, the solicitation of employees, customers, suppliers, licensors or
contractors, or the performance of competitive services; (b) engaged in any act
which is considered by the Committee to be contrary to the Company's best
interests, including, but not limited to, recruiting or soliciting employees of
the Company; (c) violated the Company's Code of Conduct or engaged in any other
activity which constitutes gross misconduct; (d) engaged in unlawful trading in
the securities of PBG or of any other company based on information gained as a
result of his or her employment with the Company; (e) disclosed to an
unauthorized person or misused confidential information or trade secrets of the
Company; (f) made any statement (whether written, oral or electronic), or
conveyed any information about the Company which is disparaging or which
reflects negatively upon the Company unless required by law or pursuant to a
Company policy; or (g) Competed (as defined below) with the Company. This
paragraph shall also apply if the Grantee commits Misconduct after his or her
employment with the Company terminates.
6. Adjustment for Change in Common Stock. In the event of (a) any change in
the outstanding shares of PBG Common Stock by reason of any split, stock
dividend, recapitalization, merger, reorganization, consolidation, combination
or exchange of shares, (b) any separation of a corporation (including a spin-off
or other distribution of assets of the Company to its shareholders), (c) any
partial or complete liquidation, or (d) other similar corporate change, such
equitable adjustments shall be made in your Restricted Stock award as the
Committee determines are necessary and appropriate, including, if necessary, an
adjustment in the maximum number or kind of shares subject to the Restricted
Stock award (including the conversion of shares subject to the Restricted Stock
award from PBG Common Stock to stock of another entity). Such adjustment shall
be conclusive and binding for all purposes of the Plan and this Agreement.
7. Registration, Listing and Qualification of Shares. The Restricted Stock
shall be subject to the requirements that if, at any time, the Committee
determines that the registration, listing or qualification of shares covered
hereby upon any securities exchange or under any foreign, federal, state or
local law, or the consent or approval of any governmental regulatory body, is
necessary or desirable as a condition of, or in conjunction with, the granting
of the Restricted Stock, no shares shall be issued until such registration,
listing, qualification, consent or approval shall have been effected or obtained
free of any condition not acceptable to the Committee. The Committee may require
that you make such representations and agreements and furnish such information
as the Committee deems appropriate to assure compliance with or exemption from
the foregoing or any other applicable legal requirement, and may cause the
certificate or certificates issued to you to bear a legend indicating the
existence of any restriction resulting from such representations or agreements.
8. Nontransferability. Unless the Committee specifically determines
otherwise: (a) the Restricted Stock is personal to the Grantee and, during his
or her lifetime, may be exercised
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only by the Grantee, and (b) the Restricted Stock shall not be transferable or
assignable, other than by will or the laws of descent and distribution, and any
such purported transfer or assignment shall be null and void.
9. Definitions. As used in this Agreement, the following terms shall have
the meanings set forth below:
(a) "Competed" shall mean (i) worked for, managed, operated, controlled or
participated in the ownership, arrangement, operation, or control of, or be
connected with or served on the board of directors of any company or entity
which engages in the production, marketing or sale of any product or service
produced, marketed or sold by the Company; or (ii) any action or omission which
is injurious to the Company or which diverts customers or suppliers from the
Company.
(b) "Retirement" shall have the meaning (i) used in the PBG Salaried
Employees Retirement Plan (the "Retirement Plan"), as then in effect, whether it
occurs (without limitation) on the Grantee's Early Retirement Date, Normal
Retirement Date or Late Retirement Date (each as defined in the Retirement
Plan), or (ii) in the absence of such Retirement Plan being applicable to the
Grantee, as determined by the Committee in its sole discretion.
(c) "Total Disability" shall mean becoming totally and permanently
disabled, as determined for purposes of the Company's Long Term Disability Plan
(or in the absence of such Disability Plan being applicable to the Grantee, as
determined by the Committee in its sole discretion).
10. Notices. Any notice to be given to PBG under the terms of this
Agreement shall be addressed to PBG's Executive Compensation Group at One Pepsi
Way, Somers, New York 10589, or such other address as PBG may hereafter
designate to the Grantee. Any such notice shall be deemed to have been duly
given when personally delivered, addressed as aforesaid, or when enclosed in a
properly sealed envelope or wrapper, addressed as aforesaid, and deposited,
postage prepaid, with the federal postal service.
11. Binding Effect.
(a) This Agreement shall be binding upon and inure to the benefit of any
assignee or successor in interest to PBG, whether by merger, consolidation or
the sale of all or substantially all of PBG's assets. PBG will require any
successor (whether direct or indirect, by purchase, merger, consolidation or
otherwise) to all or substantially all of the business and/or assets of PBG to
expressly assume and agree to perform this Agreement in the same manner and to
the same extent that PBG would be required to perform it if no such succession
had taken place.
(b) This Agreement shall be binding upon and inure to the benefit of the
Grantee or his legal representative and any person to whom the Restricted Stock
award may be transferred by will or the applicable laws of descent and
distribution.
12. No Contract of Employment; Agreement's Survival. This Agreement is not
a contract of employment, nor does it impose on the Company any obligation to
retain the Grantee in its employ. This Agreement shall survive the termination
of the Grantee's employment for any reason.
13. Amendment; Waiver. No provision of this Agreement may be amended or
waived unless agreed to in writing and signed by the Committee. Any such
amendment
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to this Agreement that is adverse to the Grantee shall not be effective unless
and until the Grantee consents, in writing, to such amendment. The failure to
exercise, or any delay in exercising, any right, power or remedy under this
Agreement shall not waive any right, power or remedy which the Company has under
this Agreement.
14. Severability or Reform by Court. In the event that any provision of
this Agreement is deemed by a court to be broader than permitted by applicable
law, then such provision shall be reformed (or otherwise revised or narrowed) so
that it is enforceable to the fullest extent permitted by applicable law. If any
provision of this Agreement shall be declared by a court to be invalid or
unenforceable to any extent, the validity or enforceability of the remaining
provisions of this Agreement shall not be affected.
15. Prospectus. The Grantee consents to receive copies of the Plan, the
Plan Prospectus and other Plan information, including, if applicable,
information prepared to comply with laws outside the United States, from the
Company's employee intranet at http:\\.execcomp.pbg.pvt, following the receipt
of the Restricted Stock Agreement. The Grantee also consents to receive
stockholder information, including copies of any annual report, proxy and Form
10-K, from the investor relations section of the PBG web site at www.pbg.com.
The Grantee acknowledges that this consent may be withdrawn only by written
notice in accordance with Section 10, which notice may be given at any time, and
that written copies of the Plan, Plan Prospectus, other Plan information and
stockholder information are available by written request to the Company
secretary.
16. Plan Controls. The Restricted Stock award and the terms and conditions
set forth herein are subject in all respects to the terms and conditions of the
Plan and any operating guidelines or other policies or regulations which govern
administration of the Plan, which shall be controlling. PBG reserves its rights
to amend or terminate the Plan at any time without the consent of the Grantee;
provided, however, that the Restricted Stock award outstanding under the Plan at
the time of such action shall not be adversely affected thereby. All
interpretations or determinations of the Committee or its delegate shall be
final, binding and conclusive upon the Grantee (and his legal representatives
and any recipient of a transfer of the Restricted Stock award) on any question
arising hereunder or under the Plan, the operating guidelines or other policies
or regulations which govern administration of the Plan.
17. Rights to Future Grants. By entering into this Agreement, the Grantee
acknowledges and agrees that (i) the award and acceptance of Restricted Stock
pursuant to this Agreement does not entitle the Grantee to future grants of
stock options or other awards in the future under the Plan or any other plan;
(ii) the Plan is established voluntarily by the Company, is discretionary in
nature, and may be modified, amended or terminated by the Company at any time
unless otherwise provided in the Plan or in this Agreement; (iii) this
restricted stock grant is not part of normal or expected compensation or salary
for any purposes, including, but not limited to calculating any severance,
termination, redundancy, bonuses, retirement payments or similar payment insofar
as permitted by law; (iv) no claim or entitlement to compensation or damages
shall arise from termination or diminution in value of this restricted stock
grant resulting from the termination of Grantee's employment by the Company.
18. Compliance with Law. The Grantee further agrees to seek all necessary
approval under, make all required notifications under and comply with all laws,
rules and regulations applicable to the ownership of stock options and stock and
the exercise of stock options, including, without limitation, currency and
exchange laws, rules and regulations.
19. Data Transfer. By accepting the Restricted Stock, the Grantee has
voluntarily consented to the collection, use, processing and transfer of
personal data about the Grantee, including the Grantee's name, home address and
telephone number, date of birth, social security
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number or other employee identification number, salary, nationality, job title,
and details of the Restricted Stock and all other equity awards from the Company
for the purpose of managing and administering the Plan ("Plan Administration
Data"). The Company will transfer Plan Administration Data internally as
necessary for the purpose of implementation, administration and management of
the Grantee's participation in the Plan, and PBG and any subsidiary included in
the Company may each further transfer Plan Administration Data to any third
parties assisting the Company in the implementation, administration and
management of the Plan, including the transfer of Plan Administration Data
within and outside of the Grantee's country of residence.
20. Governing Law and Documents. This Agreement shall be governed by,
construed and enforced in accordance with the laws of the state of Delaware,
without giving effect to conflict of laws principles. If the Grantee has
received this or any other document related to the Plan translated into a
language other than English (and if the translated version is different than the
English version), the English version will control in all cases.
Please indicate your understanding and acceptance of the foregoing by
signing and returning a copy of this Agreement.
The Pepsi Bottling Group, Inc.
BY:______________________
I confirm my understanding of the foregoing
and accept the Restricted Stock award described above subject
to the terms and conditions described herein.
______________________________
Grantee
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PLEASE RETURN AN ORIGINALLY SIGNED AGREEMENT TO PBG'S EXECUTIVE COMPENSATION
GROUP IN THE ENCLOSED ENVELOPE BY [ ].
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