FORM OF EMPLOYEE RESTRICTED STOCK UNIT AGREEMENT
EXHIBIT 10.1
AGREEMENT
made as of the [ ] (the “Grant Date”), by and between The Pepsi Bottling
Group, Inc., a Delaware corporation having its principal office at ▇▇▇ ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇ (“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
restricted stock units as described herein pursuant to the Plan (the “Restricted Stock Units”); and
WHEREAS, the Restricted Stock Units 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 [ ] Restricted
Stock Units 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
Units shall become fully vested on
[ ] [subject to achievement of one or more
pre-established performance condition(s) permitted by the Plan] so long as you remain an employee
of the Company through such date and shall be payable as soon as
practicable [after such date]
[[or alternatively] following a period of
[insert
period] after such date]; provided, however,
that if your employment terminates as a result of your [Retirement (as defined below [and provided
the performance condition(s) is (are) met]),] Total Disability (as defined below), or death,
then you, or in the event of your death, your legal representative (or any person to whom the
Restricted Stock Units may be transferred by will or the applicable laws of descent and
distribution), shall be vested as of the date of such employment termination with a portion of
the Restricted Stock Units which is in proportion to your active service during the period
commencing on the Grant Date and ending on
[ ] and such vested portion of
Restricted Stock Units shall be paid as soon as practicable after such accelerated vesting date
(except as provided in Section 9)[; and provided
further, however, that with respect to
Restricted Stock Units that are not subject to section 409A of the Internal Revenue Code of
1986 as amended (the “Code”), if you become eligible for Retirement (as defined below) during the
vesting period, then with respect to each calendar year during the vesting period after you become
eligible for Retirement, the portion of Restricted Stock Units that would have vested had you
retired on the last day of such calendar year shall vest as of such day and shall be paid to you
within two and one-half months following the end of such calendar year, solely to the extent that
nonpayment would cause the Restricted Stock Units to be subject to
section 409A of the Code.]
Notwithstanding anything herein to the contrary (except as provided in Section 16 hereof), unless
otherwise determined by the Committee, no Restricted Stock Units shall become vested after the
date your employment with the Company terminates.
3. Payment. Restricted Stock Units that vest and become payable shall be settled in
shares of PBG Common Stock [[or alternatively], cash]. You shall receive one share of PBG Common Stock for each vested
Restricted Stock Unit. Any amount that the Company may be required to withhold upon the settlement
of Restricted Stock Units and/or the payment of dividend equivalents in respect of applicable
foreign, federal (including FICA), state and local taxes, must be paid in full at the time of the
issuance of shares. The Company may, in its discretion, establish procedures to ensure
proper withholding of applicable taxes, which may include issuance of the number of shares remaining net
of the minimum withholding obligation.
4. Dividend Equivalents. During the vesting period and any deferral period, you shall
accumulate dividend equivalents with respect to the Restricted Stock Units, which dividend
equivalents shall be paid in cash (without interest) to you only if and when the applicable
Restricted Stock Units vest and become payable. Dividend equivalents shall equal the dividends
actually paid with respect to PBG Common Stock during the vesting period and any deferral period.
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 payment of any
Restricted Stock Units, then the Committee may, in its sole discretion: (i) cancel any outstanding
Restricted Stock Units and/or (ii) require the Grantee to pay to the Company the value of any
Restricted Stock Units 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 Unit 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 Unit award (including the conversion of shares subject to
the Restricted Stock Unit 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 Units
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 Units, 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, the
Restricted Stock Units are personal to the Grantee and 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.] [Notwithstanding the preceding
sentence, if the Restricted Stock Units are covered by section 409A
of the Code, then for purposes of determining the time of payment (but not
vesting), Retirement shall not be deemed to occur unless the Grantee has incurred a “separation
from service,” as that term is defined in Code section 409A, and the age and service requirements
for Retirement shall be those specified under the Retirement Plan on the Grant Date (and these shall
apply without regard to whether the Retirement Plan is applicable to the Grantee). If a Retirement
occurs for vesting at a time when Retirement has not occurred for payment, payment will be made as
soon as practicable after the date payment would have been made if the Grantee had remained in
employment until vesting without regard to Retirement. If the Grantee is a “key employee” within
the meaning of Code section 409A, the time of payment that is related to Retirement will be delayed
as required by Code section 409A.]
(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).
[Notwithstanding the preceding sentence, if the Restricted Stock Units are covered by Code section
409A, then for purposes of time of payment but not for vesting “Total Disability” shall mean
becoming “disabled” within the meaning of Code section 409A(a)(2)(C).
If a Disability occurs for vesting at a time when Disability has not occurred for payment,
payment will be made as soon as practicable after the date payment would have been made if the
Grantee had remained in employment until vesting without regard to Disability. ]
(d)
“Change in Control” shall mean the occurrence of an event
described in the Plan.
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 ▇▇▇ ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, 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 Unit 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, and no such amendment or waiver shall cause the
Agreement to violate Code section 409A. Any such amendment to this Agreement that is adverse to
the Grantee shall not be effective unless and until the Grantee consents, in writing, to such
amendment (provided that any amendment that is required to comply with Code section 409A shall be
effective without consent unless the Grantee expressly denies consent to such amendment in
writing). 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 Unit Agreement. The
Grantee also consents to receive stockholder information, including copies of any annual report,
proxy and Form 10K, from the investor relations section of the PBG web site at ▇▇▇.▇▇▇.▇▇▇. 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 Unit 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 (“Plan
Guidelines”), which shall be controlling, except to the extent this Agreement is more restrictive
than is required under the Plan or Plan Guidelines and except to the extent provided in this
Section 16. [Notwithstanding Section 4(c)(i) of the Plan, a Company approved transfer to an allied
organization shall not result in immediate vesting, but employment with the allied organization
shall be treated as employment with the Company for purposes of vesting.] If the Restricted Stock
Units are covered by Code section 409A, then notwithstanding Section 9 of the Plan, payment of the
Restricted Stock Units shall not be accelerated in connection with any change in control that is
not a change event described in Code section 409A(a)(2)(A)(v). 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 Unit award outstanding under the Plan at the time of
such action shall not be adversely affected thereby and such amendment shall not cause the
Agreement to violate Code section 409A. 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 Unit award) on any question
arising hereunder or under the Plan, the Plan 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 Units 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
Unit award 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 Unit award
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, rights and stock and the payment of the Restricted
Stock Units, including, without limitation, currency and exchange laws, rules and regulations.
19. Data Transfer. By accepting the Restricted Stock Units, 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 number or other employee identification number, salary, nationality, job title, and
details of the Restricted Stock Units 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 Unit award described above subject
to the terms and conditions described herein.
and accept the Restricted Stock Unit award described above subject
to the terms and conditions described herein.