EXHIBIT 10.3
VOTING AGREEMENT
VOTING AGREEMENT (this "Agreement"), dated as of June 28, 1999, by and
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among Pepsi-Cola Puerto Rico Bottling Company, a Delaware corporation ("PPR")
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and P-PR Transfer, LLP, a Delaware limited liability partnership ("P-PRT").
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W I T N E S S E T H:
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WHEREAS, concurrently with the execution and delivery of this Agreement,
PPR, Delta Beverage Group, Inc., a Delaware corporation ("Delta") and the
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stockholders of Delta named therein have entered into an Exchange Agreement,
dated as of June 28, 1999 (as such agreement may hereafter be amended from time
to time, the "Delta Exchange Agreement"), pursuant to which, among other things,
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PPR will issue shares of Class B Common Stock, par value $.01 per share, of PPR
("PPR Class B Common Stock") in exchange for shares of Delta common stock held
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by the Delta stockholders;
WHEREAS, concurrently with the execution and delivery of this Agreement and
the Delta Exchange Agreement, PPR, Dakota Beverage Company, Inc. and Pohlad
Companies have entered into an Exchange Agreement, dated as of June 28, 1999 (as
such agreement may hereafter be amended from time to time, the "Dakota Exchange
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Agreement", and together with the Delta Exchange Agreement, the "Exchange
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Agreements"), pursuant to which, among other things, PPR will issue shares of
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PPR Class B Common Stock in exchange for membership interests in DakBev, LLC, a
Delaware limited liability company;
WHEREAS, P-PRT is the owner, beneficially and of record, and has the sole
right to vote and dispose of 4,000,000 shares of PPR Class A Common Stock ("PPR
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Class A Common Stock") and 6,329,000 shares of PPR Class B Common Stock (and
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together with the PPR Class A Common Stock, "PPR Stock") (all PPR Stock owned by
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P-PRT, the "Owned Shares"); and
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WHEREAS, as an inducement and a condition to its entering into the Exchange
Agreements and incurring the obligations set forth therein, PPR has required
that P-PRT enter into this Agreement.
NOW, THEREFORE, in consideration of the foregoing and the mutual promises,
representations, warranties, covenants and agreements contained herein and in
the Exchange Agreements, the parties hereto, intending to be legally bound
hereby, agree as follows:
1. Certain Definitions. Capitalized terms not defined herein have the
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respective meanings ascribed to them in the Exchange Agreements. In addition,
for purposes of this Agreement:
"Affiliate" means, with respect to any specified Person, any Person that
directly, or indirectly through one or more intermediaries, controls, or is
controlled by, or is under common control with, the Person specified.
"Beneficially Own" or "Beneficial Ownership" with respect to any securities
means having "beneficial ownership" of such securities (as determined pursuant
to Rule 13d-3 under the Exchange Act), including pursuant to any agreement,
arrangement or understanding, whether or not in writing. Without duplicative
counting of the same securities by the same holder, securities Beneficially
Owned by a Person shall include securities Beneficially Owned by all Affiliates
of such Person and all other Persons with whom such Person would constitute a
"group" within the meaning of Section 13(d) of the Exchange Act and the rules
promulgated thereunder.
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"Person" means an individual, corporation, partnership, limited liability
company, joint venture, association, trust, unincorporated organization or other
entity.
"Representative" means, with respect to any Person, such Person's officers,
directors, employees, agents and representatives (including any investment
banker, financial advisor, agent, representative or expert retained by or acting
on behalf of such Person or its subsidiaries).
"Transfer" means, with respect to a security, the sale, transfer, pledge,
hypothecation, encumbrance, assignment or disposition of such security or the
Beneficial Ownership thereof, the offer to make such a sale, transfer or other
disposition, and each option, agreement, arrangement or understanding, whether
or not in writing, to effect any of the foregoing. As a verb, "Transfer" shall
have a correlative meaning.
2. Voting of Owned Shares; Proxy. (a) During the period commencing on the
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date hereof and continuing until the earlier of (x) the Closing and (y) the
termination of the Exchange Agreements in accordance with their terms (such
period being referred to as the "Voting Period"), at any meeting (whether annual
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or special, and whether or not an adjourned or postponed meeting) of PPR's
stockholders, however called, or in connection with any written consent of PPR's
stockholders, subject to the absence of a preliminary or permanent injunction or
other final order by any United States federal, state or foreign court barring
such action, P-PRT shall vote (or cause to be voted) all of its Owned Shares:
(a) in favor of the issuance of PPR Class B Common Stock pursuant to the
Exchange Agreements;
(b) in favor of each of the other actions contemplated by the Exchange
Agreements and this Agreement and any actions required in furtherance
thereof and hereof;
(c) in favor of the amendment to the Certificate of Incorporation of PPR to
increase the authorized shares of capital stock of PPR required to
effect the issuances pursuant to the Exchange Agreements;
(d) in favor of the amendment to the Certificate of Incorporation of PPR to
change the name of PPR; and
(e) against any action or agreement that would (A) result in a breach of
any covenant, representation or warranty or any other obligation or
agreement under the Exchange Agreements or of P-PRT under this
Agreement or (B) impede, interfere with, delay, postpone, or adversely
affect the Exchange or the transactions contemplated by the Exchange
Agreements or hereby.
(b) IRREVOCABLE PROXY. P-PRT HEREBY GRANTS TO, AND APPOINTS ▇▇▇▇▇▇
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POHLAD AND ▇▇▇▇ ▇▇▇▇▇▇▇▇ IN THEIR RESPECTIVE CAPACITIES AS OFFICERS OF PPR, AND
ANY INDIVIDUAL WHO SHALL HEREAFTER SUCCEED TO ANY SUCH OFFICE OF PPR, AND ANY
OTHER DESIGNEE OF PPR, EACH OF THEM INDIVIDUALLY, P-PRT's IRREVOCABLE (UNTIL THE
END OF THE VOTING PERIOD) PROXY AND ATTORNEY-IN-FACT (WITH FULL POWER OF
SUBSTITUTION) TO VOTE THE OWNED SHARES OF P-PRT AS INDICATED IN SECTION 2(a)
ABOVE. P-PRT INTENDS THIS PROXY TO BE IRREVOCABLE (UNTIL THE END OF THE VOTING
PERIOD) COUPLED WITH AN INTEREST AND SHALL TAKE SUCH FURTHER ACTIONS AND EXECUTE
SUCH OTHER INSTRUMENTS AS MAY BE NECESSARY TO EFFECTUATE THE INTENT OF THIS
PROXY AND HEREBY REVOKES ANY PROXY PREVIOUSLY GRANTED BY P-PRT WITH RESPECT TO
THE OWNED SHARES.
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3. Restrictions on Transfer, Other Proxies. P-PRT shall not, until the
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expiration of the Voting Period, directly or indirectly: (i) Transfer to any
Person any or all of its Owned Shares other than to Dakota LLC immediately prior
to the Closing; (ii) except as provided in Section 2(b), grant any proxies or
powers of attorney, deposit any Owned Shares into a voting trust or enter into a
voting agreement, understanding or arrangement with respect to such Owned
Shares; or (iii) take any action that would make any representation or warranty
of P-PRT contained herein untrue or incorrect or would result in a breach by P-
PRT of its obligations under this Agreement or a breach by PPR of its
obligations under the Exchange Agreements.
4. Certain Events. In the event of any stock split, stock dividend,
merger, reorganization, recapitalization or other change in the capital
structure of PPR affecting the PPR Stock, or the acquisition of additional
shares of PPR Stock or other securities or rights of PPR by P-PRT, the number of
Owned Shares shall be adjusted appropriately, and this Agreement and the
obligations hereunder shall attach to any additional PPR Stock or other
securities or rights of PPR issued to or acquired by P-PRT.
5. Representations and Warranties of P-PRT. P-PRT hereby represents,
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warrants and covenants as follows:
(1) Due Authorization, Etc. P-PRT has all necessary power and
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authority to enter into and perform this Agreement and perform its obligations
hereunder, and no other proceedings or actions on the part of P-PRT is necessary
to authorize the execution, delivery or performance of this Agreement or the
consummation of the transactions contemplated hereby. P-PRT currently has good,
valid and marketable title to the Owned Shares, free and clear of all security
interests, liens, claims, charges, encumbrances, equities and options of any
nature whatsoever, and with no restriction on the voting rights pertaining
thereto. P-PRT further warrants that there are no outstanding options, warrants
or rights to purchase or acquire, or agreements relating to, any of the Owned
Shares.
(2) Enforceability. This Agreement constitutes a valid and binding
agreement of P-PRT, enforceable against P-PRT in accordance with its terms.
Neither the execution and delivery of this Agreement by P-PRT nor the
consummation by P-PRT of the transactions contemplated hereby shall conflict
with or constitute a violation of or default under any contract, commitment,
agreement, arrangement or restriction of any kind to which P-PRT is a party or
by which P-PRT is bound.
(3) Voting Rights. Except as provided in Section 2(b) hereof, P-PRT
has sole power to vote and to dispose of the Owned Shares, and sole power to
issue instructions with respect to the Owned Shares to the extent appropriate in
respect of the matters set forth in this Agreement, sole power to demand
appraisal rights and sole power to agree to all of the matters set forth in this
Agreement, in each case with respect to all of the Owned Shares, with no
limitations, qualifications, or restrictions on such rights, subject to
applicable securities laws and the terms of this Agreement.
(4) No Filings. No filing with, and no permit, authorization, consent
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or approval of, any state or federal governmental body or authority is necessary
for the execution of this Agreement by P-PRT and the consummation by P-PRT of
the transactions contemplated hereby, and none of the execution and delivery of
this Agreement by P-PRT, the consummation by P-PRT of the transactions
contemplated hereby or compliance by P-PRT with any of the provisions hereof
shall (A) conflict with or result in any breach of the organizational documents
of P-PRT, (B) result in a violation or breach of, or constitute (with or without
notice or lapse of time or both) a default (or give rise to any third party
right of termination, cancellation, material modification or acceleration) under
any of the terms, conditions or provisions of any note, loan agreement, bond,
mortgage, indenture, license, contract, commitment, arrangement, understanding,
agreement or other instrument or obligation of any kind to which P-PRT is a
party or by which P-PRT or any
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of its properties or assets (including the Owned Shares) may be bound, or (C)
violate any order, writ, injunction, decree, judgment, statute, rule or
regulation applicable to P-PRT or any of its properties or assets.
(5) Reliance. P-PRT understands and acknowledges that PPR is entering
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into the Exchange Agreements, and is incurring the obligations set forth
therein, in reliance upon P-PRT's execution and delivery of this Agreement.
6. Representations and Warranties of PPR. PPR hereby represents,
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warrants and covenants to P-PRT as follows:
(1) Due Authorization, Etc. PPR has all necessary power and authority
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to enter into and perform this Agreement and perform its obligations hereunder,
and no other proceedings or actions on the part of PPR is necessary to authorize
the execution, delivery or performance of this Agreement or the consummation of
the transactions contemplated hereby.
(2) Enforceability. This Agreement constitutes a valid and binding
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agreement of PPR, enforceable against PPR in accordance with its terms. Neither
the execution and delivery of this Agreement by PPR nor the consummation by PPR
of the transactions contemplated hereby shall conflict with or constitute a
violation of or default under any contract, commitment, agreement, arrangement
or restriction of any kind to which PPR is a party or by which PPR is bound.
(3) No Filings. Except for filings, authorizations, consents and
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approvals as may be required under the Exchange Agreements, (i) no filing with,
and no permit, authorization, consent or approval of, any state or federal
public body or authority is necessary for the execution of this Agreement by PPR
and the consummation by PPR of the transactions contemplated hereby and (ii)
none of the execution and delivery of this Agreement by PPR, the consummation by
PPR of the transactions contemplated hereby or compliance by PPR with any of the
provisions hereof shall (A) conflict with or result in any breach of the
Certificate of Incorporation or By-laws of PPR, or (B) result in a violation or
breach of, or constitute (with or without notice or lapse of time or both) a
default (or give rise to any third party right of termination, cancellation,
material modification or acceleration) under any of the terms, conditions or
provisions of any note, loan agreement, bond, mortgage, indenture, license,
contract, commitment, arrangement, understanding, agreement or other instrument
or obligation of any kind to which PPR is a party or by which PPR or any of its
properties or assets may be bound, or violate any order, writ, injunction,
decree, judgment, statute, rule or regulation applicable to PPR or any of its
respective properties or assets.
7. Certain Covenants.
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(1) No Sale. P-PRT shall not sell, transfer, assign, pledge,
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hypothecate or otherwise dispose of or limit its right to vote in any manner any
of the Owned Shares which are the subject matter of this Agreement except
pursuant to the terms hereof.
(2) Further Assurances. From time to time, at the other party's
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request and without further consideration, each party hereto shall execute and
deliver such additional documents and take all such further lawful action as may
be necessary or desirable to consummate and make effective, in the most
expeditious manner practicable, the transactions contemplated by this Agreement.
8. Enforcement. The parties agree that irreparable damage would occur in
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the event that any of the provisions of this Agreement were not performed in
accordance with their specific terms or were otherwise breached. It is
accordingly agreed that the parties shall be entitled to an injunction or
injunctions to prevent breaches of this Agreement and to enforce specifically
the terms and provisions of this Agreement
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in any court of the United States located in the State of Delaware or in any
Delaware State court, this being in addition to any other remedy to which they
are entitled at law or in equity. In addition, each of the parties hereto (a)
consents to submit itself (without making such submission exclusive) to the
personal jurisdiction of any federal court located in the State of Delaware or
any Delaware State court in the event any dispute arises out of this Agreement
or any of the transactions contemplated by this Agreement and (b) agrees that it
will not attempt to deny or defeat such personal jurisdiction by motion or other
request for leave from any such court.
9. Miscellaneous.
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(1) Assignment. Neither this Agreement nor any of the rights,
interests or obligations under this Agreement shall be assigned or delegated, in
whole or in part, by operation of law or otherwise, by any of the parties hereto
without the prior written consent of the other parties, except that PPR may
assign its rights and obligations, in whole or in part, to any of its
Affiliates, but no such assignment shall relieve PPR of its obligations
hereunder if such assignee does not perform such obligations. Subject to the
preceding sentence, this Agreement will be binding upon, inure to the benefit
of, and be enforceable by, the parties and their respective successors and
assigns.
(2) Amendments. This Agreement may be amended, modified, or
supplemented only by a written agreement among each of the parties hereto.
(3) Notices. All notices and other communications hereunder shall be
in writing and shall be deemed to have been duly given when delivered in person,
by facsimile, receipt confirmed, or on the next business day when sent by
overnight courier or on the second succeeding business day when sent by
registered or certified mail (postage prepaid, return receipt requested) to the
respective parties at the following addresses (or at such other address for a
party as shall be specified by like notice):
if to PPR, to
Pepsi-Cola Puerto Rico Bottling Company
▇.▇. ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇. ▇▇▇ ▇▇ 0.4
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: President
with a copy to:
▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
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and
(ii) if to P-PRT, to
Pohlad Companies
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
with a copy to:
▇▇▇▇▇▇ and ▇▇▇▇▇▇, P.A.
2400 IDS Center
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
(4) GOVERNING LAW. THIS AGREEMENT SHALL BE DEEMED TO BE MADE IN, AND
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IN ALL RESPECTS SHALL BE INTERPRETED, CONSTRUED AND GOVERNED BY AND IN
ACCORDANCE WITH THE INTERNAL LAWS OF, THE STATE OF DELAWARE.
(5) Counterparts. This Agreement may be executed in one or more
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counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
(6) Interpretation. When a reference is made in this Agreement to a
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Section, such reference shall be to a Section of this Agreement unless otherwise
indicated. The headings contained in this Agreement are for reference purposes
only and shall not affect in any way the meaning or interpretation of this
Agreement. Whenever the words "include", "includes" or "including" are used in
this Agreement, they shall be deemed to be followed by the words "without
limitation."
(7) Entire Agreement; No Third-Party Beneficiaries. This Agreement and
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the Exchange Agreements (together with the other documents and instruments
referred to in the Exchange Agreements, and the exhibits and disclosure
schedules thereto) (a) constitute the entire agreement and supersedes all prior
agreements and understandings, both written and oral, between the parties with
respect to the subject matter of this Agreement and, (b) are not intended to
confer upon any person other than the parties hereto any rights or remedies.
(8) Severability. In case any provision in this Agreement shall be
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held invalid, illegal or unenforceable in a jurisdiction, such provision shall
be modified or deleted, as to the jurisdiction involved, only to the extent
necessary to render the same valid, legal and enforceable, and the validity,
legality and enforceability of the remaining provisions hereof shall not in any
way be affected or impaired thereby nor shall the validity, legality or
enforceability of such provision be affected thereby in any other jurisdiction.
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IN WITNESS WHEREOF, this Agreement has been duly executed and delivered by
the parties hereto on the date first above written.
PEPSI-COLA PUERTO RICO BOTTLING COMPANY
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Its: Vice President and Chief Financial
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Officer
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P-PR TRANSFER, LLP
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Its: President
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