VOTING TRUST AGREEMENT AND IRREVOCABLE PROXY
VOTING TRUST AGREEMENT AND IRREVOCABLE PROXY dated September 28,
1996, by and among the individuals set forth in the signature pages hereof
(collectively referred to herein as the "Shareholders"), ▇▇. ▇▇▇▇▇▇ ▇▇▇, as
trustee (the "Trustee"), Pepsi-Cola Puerto Rico Bottling Company (the
"Corporation").
WHEREAS the Shareholders own Class A shares of stock of the
Corporation set forth opposite their names on the signature pages hereof;
and
WHEREAS the Shareholders believe that it is in the best interest
of the Corporation that they grant to the Trustee the irrevocable powers
hereinafter set forth;
NOW, THEREFORE, in consideration of the premises and other good
and valuable consideration, the receipt and adequacy of which are hereby
acknowledged, each of the parties herein, intending to be legally bound,
agrees as follows:
1. VOTING TRUST. The Shareholders hereby create and
irrevocable voting trust (the "Trust") under the following terms and
conditions:
(a) The Shareholders shall, upon execution of this Agreement,
deposit the stock certificates representing the shares of stock of the
Corporation set forth opposite their names on the signature pages hereof
with the Trustee.
(b) The shares of stock of the Corporation so deposited with the
Trustee shall be transferred in the stock ledger of the Corporation to the
name of "▇▇. ▇▇▇▇▇▇ ▇▇▇, Trustee". During the period when the Trust shall
be in force, the Trustee shall possess legal title to such shares of stock
deposited with him (but not the beneficial ownership of such shares), and
shall be entitled to exercise all rights of every kind (other than the
right to retain dividends paid and other distributions made with respect to
such shares, except to the extent necessary to reimburse the Trustee as set
forth in Section 1(j) hereof), including without limitation the right to
vote in person or by proxy and such shares of stock deposited within upon
any and all matters that are brought up for vote to the Corporation's
shareholders; provided, however, that, in the case of any proposed
transaction between the Corporation and the Trustee or in which the Trustee
has a personal pecuniary interest (other than an interest shared generally
by shareholders of the Corporation) the Trustee shall not vote such shares
but shall grant a proxy to one or more disinterested directors of the
Corporation or any committee of disinterested directors of the Corporation,
in each case selected by the Board of Directors of the Corporation (without
the participation of the Trustee); and provided further that, in the case
of the proposed issuance of options to purchase approximately 1,516,666
shares of common stock of the Corporation to ▇▇. ▇▇▇▇▇▇ ▇▇▇, the
Shareholders hereby instruct the Trustee and the holder of any proxy
granted by the Trustee to vote in favor of such issuance.
(c) The Trust shall be effective and remain in full force and
effect for a period of five (5) years from the date of execution hereof
(the "Original Term") which term shall be automatically renewed for an
additional five (5) year period (the "Renewal Term") unless either PepsiCo
Inc. or the Trustee notify the other party of non-renewal at least six (6)
months prior to the end of the initial five (5) year period; provided,
however, that such non-renewal by PepsiCo., Inc. shall not be unreasonably
withheld. Anything herein to the contrary notwithstanding, ▇▇. ▇▇▇▇▇▇ ▇▇▇
may earlier terminate this Agreement during the Original Term or the
Renewal Term, as the case may be, (i) at any time at this sole and
exclusive discretion upon written notice thereof to the Corporation, (ii)
upon the death or incapacity of ▇▇. ▇▇▇▇▇▇ ▇▇▇ and (iii) as provided in
paragraph (g) below. In addition, the Trustee may, at his sole and
exclusive discretion upon notice to the Corporation, release some of the
shares subject to the Trust, either unconditionally or subject to the stock
option agreement being executed substantially simultaneously herewith or to
such other restrictions and conditions as may be agreed between the Trustee
and the beneficial owner of such shares. In addition to the foregoing, in
the event of non-renewal by ▇▇. ▇▇▇▇▇▇ ▇▇▇, or the Corporation, or in the
event of ▇▇. ▇▇▇▇▇▇ ▇▇▇'▇ notice of termination, death or incapacity during
the Original Term or the Renewal Term, as the case may be, PepsiCo., Inc.
shall, for a period of ninety (90) days after such termination, have the
right to appoint a substitute Trustee, subject to the consent of the
beneficial owners of a majority of the Class A shares, which consent will
not be unreasonably withheld or delayed. During the time between such
notice, death or incapacity and the appointment of the substitute Trustee,
the Board of Directors shall elect a committee of three members of such
Board which shall vote the shares within the Trust, by decision of the
majority thereof, as Interim Trustee of the Trust. The designation by the
Board of such committee of three members of the Board shall become the
substitute Trustee for a term not greater than ninety (90) days. In the
event PepsiCo, Inc. and the Shareholders are unable to agree to a
substitute Trustee within such ninety (90) days term, the Trust will
effectively terminate.
Upon termination of the Trustee or upon release of any shares
from the Trust, the Trustee shall surrender the stock certificates held by
the Trust, or the stock certificates relating to the shares being released,
as the case may be, duly endorsed in the name of the Shareholders or their
designees, to the Corporation so that the Corporation may issue the
corresponding stock certificates to the Shareholders of their designees.
This Agreement may not be terminated by any Shareholder.
(d) The Shareholders will not sell, transfer, encumber, or
otherwise dispose of their respective shares of stock deposited with the
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Trustee under this Trust or any beneficial interest therein.
(e) The Shareholders will, severally, in proportion to the
number of shares beneficially owned by them which are subject to this
Voting Trust Agreement, indemnify and hold the Trustee harmless from any
and all claims, demands, causes of action, losses, liabilities, damages,
judgments or charges of any kind, including without limitation the cost of
defending any action against him, together with any reasonable attorneys'
fees and investigation costs incurred in connection therewith or in
connection with any potential claim or loss, or any other expenses, fees,
or charges of any character or nature, arising in connection with this
Voting Trust Agreement, unless and until it is determined in a final
unappealable judgment that such claim, demand, damage or expense arises as
a direct result of the willful misconduct or gross negligence of the
Trustee. To the extent that the Trustee is unable to enforce this
indemnity against any Shareholder, the Corporation shall indemnify the
Trustee to the same extent required from such Shareholder.
(f) The Trustee shall cause all dividends (except stock
dividends, which shall be deposited and subject to the Trust) and other
distributions paid by the Company to the Trustee with respect to the shares
of stock held in the Trust to be distributed among the Shareholders in
accordance with their interests in the Trust, after deducting expenses
reimbursable to the Trustee.
(g) In the event of a merger or consolidation involving the
Corporation and in which the Corporation is not the surviving entity, the
Trust shall terminate on the effective date of said consolidation or merger
unless the Trustee gives notice not later than thirty (30) days after said
merger or consolidation to the Shareholders of an election to continue this
Agreement for its full term, substituting where appropriate the voting
shares issued in said consolidation or merger for the shares initially
deposited with the Trustee.
(h) In voting on all matters which may be voted on by the
shareholders of the Corporation and in discharging his responsibilities and
exercising his rights hereunder, the Trustee shall incur no liability to
any Shareholder, by reason of any error of law or otherwise, unless it
shall have been determined by a final unappealable judgment that the
Trustee acted with gross negligence or engaged in willful misconduct.
(i) The Shareholders agree to cooperate fully with the Trustee
and to do all further acts and things requested by the Trustee to more
fully carry out and give effect to this Agreement and to permit the Trustee
to comply with applicable laws and regulations in all matters related to
the shares deposited with the Trustee, including without limitation the
execution of proxies in favor of the Trustee, the execution of any public
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deeds that may be required under applicable law and the preparation and
filing of any reports required by any applicable law or regulation.
(j) The Trustee shall be entitled to reimbursement from the
Trust or, in the event that the Trust shall have no cash, from the
Corporation, of all expenses incurred in connection with this Agreement and
to deduct any such expenses from amounts distributable to Shareholders, but
shall not be otherwise entitled to any compensation for his services as
Trustee.
2. ACKNOWLEDGMENT BY SHAREHOLDERS. The Shareholders hereby
acknowledge and agree to all of the terms and conditions contained in the
PepsiCo, Inc. consent letter dated September 24, 1996, attached hereto.
3. PROXY. The Shareholders hereby grant to the Trustee a proxy
to vote the shares held by the Trustee pursuant to this Voting Trust
Agreement which, being coupled with an interest, shall be irrevocable until
the termination of the Trustee.
4. ENTIRE AGREEMENT. This Agreement constitutes the entire
agreement between the parties on the subject matter of this Agreement, and
supersedes any and all prior negotiations, correspondence, agreements and
understandings.
5. SEVERABILITY. If any provision of this Agreement is held to
be unenforceable, the remainder of this Agreement shall not be affected
thereby.
6. AMENDMENTS. This Agreement may not be amended or modified
except by a written agreement signed by the affected parties hereto.
7. ASSIGNMENT. This Agreement may not be assigned by any party
without the consent of the other parties hereto. This Agreement shall be
binding upon the heirs, successors, administrators, executors and assigns
of each of the parties hereto.
8. NO WAIVER. Any waiver by a party of a breach of any
provision of this Agreement shall not operate as or be construed to be a
waiver of any other breach of such provision or of any other provision of
this Agreement. The failure of a party to insist on strict adherence to
any term of this Agreement shall not be considered a waiver or deprive that
party of the right thereafter to insist upon strict adherence to that term
or any other term of this Agreement.
9. GOVERNING LAW. This Agreement shall be governed by and
construed in accordance with the laws of the Commonwealth of Puerto Rico
and, with respect to matters covered by the Delaware General Corporation
Law, including without limitation the validity of this Voting Trust
Agreement and the formalities related thereto, by the Delaware General
Corporation Law.
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10. CAPTIONS. The captions of the various sections of the
Agreement are included for convenience of reference only and shall in no
way affect the construction or interpretation of this Trust.
11. NOTICES. All notices which may or are required to be given
under this Agreement or with respect to it shall be in writing and shall be
given by personal delivery or by certified or registered mail, and shall be
deemed to have been given or made when personally delivered or five
business days after being deposited in the mail, return receipt requested,
in the case of notice by certified or registered mail, to the following
addresses:
(a) If to the Trustee:
▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇. ▇
▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
(b) If to the Corporation:
▇▇ ▇▇▇ ▇▇▇▇
▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: President
(c) If to any Shareholder, to the address set forth below their
names on the signature pages hereof.
The parties may, by written notice given hereunder, designate any
further or different address to which subsequent notices shall be sent or
persons to whose attention the same shall be directed.
12. EFFECTIVENESS. Anything to the contrary herein
notwithstanding, this Agreement shall not be effective until (i) PepsiCo.
Inc. and Banco Popular de Puerto Rico have consented to the transactions
contemplated hereby and (ii) the Corporation receives an endorsement to its
Directors and officers liability insurance policy providing that such
policy will remain in effect after the consummation of the transactions
contemplated hereby.
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the day and year first written above.
Number and Class
Name of Shareholders of Shares being
and Address for Deposited in the
Notices Trust Signature
------------------------------------------------------ --------------------------- -----------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ INVESTMENT LTD 396,315
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ INVESTMENT LTD 323,845
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ IRREVOCABLE TRUST 36,234
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ IRREVOCABLE TRUST 36,234
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Number and Class
Name of Shareholders of Shares being
and Address for Deposited in the
Notices Trust Signature
------------------------------------------------------ --------------------------- -----------------------
▇▇▇▇ ▇▇▇▇▇▇▇ 126,821
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ TRUSTEE OFANITA ▇. ▇▇▇▇▇▇▇ TRUST NO. 1 24,156
▇▇▇▇▇ ▇. AND ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ 66,430
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, TRUSTEE FOR ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ 12,078
IRREVOCABLE GENERATION SKIPPING TRUST
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, TRUSTEE FOR ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ 12,078
IRREVOCABLE GENERATION SKIPPING TRUST
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ 5,661
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ 5,661
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ 5,661
▇▇▇▇▇ ▇. ▇'▇▇▇▇▇ ESTATE 5,661
▇▇▇▇ ▇▇ ▇▇▇▇ 339,698
▇▇▇▇▇▇▇ ▇. & ▇▇▇▇▇▇▇▇ ▇. Beach 2,131,439
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ 943,605
Lamiye Int. S.A. 264,210
c/o Elmac ▇.▇.
▇▇▇▇▇▇▇ Family Investments Ltd. 209,355
c/o Atlantic Development & Management Inc., SE
Via ▇▇▇▇▇▇ Financial Plaza
▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇ Family Investments Ltd. 6,039
c/o Atlantic Development & Management Inc., SE
Via ▇▇▇▇▇▇ Financial Plaza
▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇ Irrevocable Generation 18,117
Skipping Trust
c/o Atlantic Development & Management Inc., SE
Via ▇▇▇▇▇▇ Financial Plaza
▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ Irrevocable 18,117
Generation Skipping Trust
c/o Atlantic Development & Management Inc., SE
Via ▇▇▇▇▇▇ Financial Plaza
▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ Family Investments Ltd. 203,315
c/o Atlantic Development & Management Inc., SE
Via ▇▇▇▇▇▇ Financial Plaza
▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇ ▇. ▇▇▇▇▇▇ Irrevocable 24,156
Generation Skipping Trust
c/o Atlantic Development & Management Inc., SE
Via ▇▇▇▇▇▇ Financial Plaza
▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
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▇▇▇▇▇ ▇. ▇▇▇▇▇▇ Irrevocable 24,156
Generation Skipping Trust
c/o Atlantic Development & Management Inc., SE
Via ▇▇▇▇▇▇ Financial Plaza
▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇'▇▇▇▇▇▇ 251,628
c/o Atlantic Development & Mgmt. Corp.
▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇.▇. ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇ Financial Corp. 531,250 Shares
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ Class B
New York, N.Y. 10169
/S/ ▇▇▇▇▇▇ ▇▇▇
----------------------------------
▇▇▇▇▇▇ ▇▇▇, as Trustee
PEPSI-COLA PUERTO RICO
BOTTLING COMPANY
By: /S/ ▇▇▇▇▇▇ ▇▇▇
-------------------------------
▇▇▇▇▇▇ ▇▇▇
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