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As filed with the Securities and Exchange Commission on November 14, 1995
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Registration No. 33-
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-3
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
PepsiCo, Inc.
(Exact name of registrant as specified in its charter)
North Carolina 5812 13-1584302
(State or other (Primary Standard (I.R.S. Employer
jurisdiction of Industrial Identification No.)
incorporation or Classification Code
organization) Number)
Purchase, New York 10577-1444
(914) 253-2000
(Address, including zip code, and telephone number, including
area code, of registrant's principal executive offices)
DOUGLAS M. CRAM, Esq.
Vice President and Assistant General Counsel
PepsiCo, Inc.
Purchase, New York 10577-1444
(914) 253-2000
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
Copy to:
WILLIAM M. HARTNETT, Esq.
Cahill Gordon & Reindel
80 Pine Street
New York, New York 10005
(212) 701-3000
Approximate date of commencement of proposed sale of the
securities to the public:
From time to time after the effective date of this Registration
Statement as determined in light of market conditions.
If the only securities being registered on this form are being
offered pursuant to dividend or interest reinvestment plans,
please check the following box.
If any of the securities being registered on this form are to
be offered on a delayed or continuous basis pursuant to Rule 415
under the Securities Act of 1933 (the "Act"), other than
securities offered only in connection with dividend or interest
reinvestment plans, check the following box.
PEPSICO, INC.
$4,587,000,000
Debt Securities and Warrants
U.S. DISTRIBUTION AGREEMENT
THIS DISTRIBUTION AGREEMENT, dated as of
_________________, 1995, between PepsiCo, Inc., a corporation
organized under the laws of the State of North Carolina (the
"Company"), and _________________, a corporation organized under
the laws of the State of _________________ (the "Bank").
W I T N E S S E T H:
WHEREAS, the Company has filed with the Securities and
Exchange Commission (the "Commission") a registration statement
on Form S-3, File No. 33-_____________ (the "Registration
Statement"), including a prospectus (the "Prospectus"), relating
to $4,587,000,000 in aggregate offering price of the Company's
Debt Securities and Warrants (as such terms are defined in the
Prospectus); and
WHEREAS, the Bank has agreed to participate in the offer
and sale of Debt Securities and Warrants (sometimes referred to
collectively as the "Securities") to investors on the terms and
conditions set forth herein;
NOW, THEREFORE, the parties hereto agree as follows:
SECTION 1. Definitions. Capitalized terms used in this
Agreement and not otherwise defined herein have the meanings
ascribed to such terms by the Prospectus; provided, however, that
in the event of a conflict between the Prospectus and any
applicable Supplement regarding the definition of any capitalized
term used herein, the definition set forth in the applicable
Supplement will govern; and provided, further, that the terms
"Registration Statement", "Prospectus", "Pricing Supplement", and
"Prospectus Supplement", as used herein, (a) include, in each
case, the documents (if any) incorporated by reference therein,
and (b) refer, in each case, to such document as supplemented or
otherwise amended from time to time.
SECTION 2. Appointment of Bank as Agent. From the date
hereof and until the expiration or earlier termination of this
Agreement, the Bank will be the agent of the Company with respect
to the distribution and sale of the Securities, and will use
reasonable efforts, consistent with standard industry practice,
to solicit offers for the purchase of the Securities upon the
terms and conditions set forth in the Prospectus and, with
respect to Securities of a given series, in the applicable
Pricing Supplement or Prospectus Supplement (each such supplement
a "Supplement" or an "applicable Supplement"), provided, however,
that the Bank will not be required to solicit offers to purchase
Securities issued pursuant to a Supplement that does not name the
Bank as an agent. All sales of Securities resulting from a
solicitation made or an offer to purchase received by the Bank in
its capacity as agent during the term of this Agreement will be
subject to the provisions of this Section 2 and to all other
provisions of this Agreement not specifically limited to sales of
Securities made to the Bank as underwriter and/or as purchaser
for its own account.
(a) Non-Exclusive Agency. The Bank acknowledges and agrees
that its agency hereunder is non-exclusive and that its
obligations as agent hereunder will continue notwithstanding the
offer or sale of Securities by the Company directly to investors
(including the Bank as purchaser for its own account), to
underwriters (including the Bank as underwriter, as contemplated
by Section 3 below), and/or through other agents, as the Company
may, in its sole discretion, elect. The obligations of the Bank
in its capacity as agent hereunder, and the obligations of each
other person that has been authorized by the Company to act as
its agent in soliciting offers to purchase Securities, shall be
several and not joint.
(b) Solicitation of Offers by Bank as Agent; Rights of
Acceptance and Rejection of Offers. The Bank may reject, and
will not be required to communicate to the Company, any offer to
purchase Securities that it reasonably deems unacceptable. The
Company will have the sole right to accept any offer to purchase
Securities and may reject any such offer in whole or in part.
The Company will in no event approve any solicitation of offers
or accept any offers to purchase Securities the aggregate public
offering price of which, together with the aggregate public
offering price of all Securities previously sold by the Company
(whether through or to any agents or underwriters or otherwise),
would exceed the sum of $4,062,000,000, or, with respect to
Securities of a given series, would exceed the maximum aggregate
public offering price stated in the applicable Supplement.
(c) Commissions. As consideration for the sale of Securities
of a given series that occurs as a result of a solicitation made
or an offer to purchase received by the Bank in its capacity as
agent, the Company will pay the Bank the commission identified in
the applicable Supplement, which commission will be expressed as
a percentage of the aggregate public offering price of such
Securities. Payment of the commission will be made on the
Settlement Date (as defined in Section 11(c) hereof), in U.S.
dollars or such other currency as the Company and the Bank may
agree in writing, by discount from the proceeds of the sale of
such Securities or by such other means as may be agreed to in
writing by the Company and the Bank and set forth in the
applicable Terms Agreement (hereinafter defined). Any provision
of this Agreement to the contrary notwithstanding, the Bank will
not be entitled to payment of any commission with respect to the
sale of a given Security unless (i) the sale of such Security
shall have occurred as a result of a solicitation made or an
offer to purchase received by the Bank in its capacity as agent
hereunder, on the terms and conditions set forth herein and in
the applicable Terms Agreement, (ii) the Bank shall have been
named as an agent in the applicable Supplement, and (iii) such
Security shall have been sold by the Company directly to a
third-party investor without the Bank acquiring legal title
thereto.
(d) Termination or Suspension of Solicitations by Bank as
Agent. The Company may at any time require the Bank to terminate
or temporarily suspend the solicitation of offers to purchase
Securities. Upon receipt of written notice from the Company to
the Bank directing the Bank to terminate or suspend solicitations
of offers to purchase Securities, until (in the case of a
temporary suspension) such time as may be indicated in such
notice or in any subsequent notice from the Company to the Bank,
the Bank will forthwith terminate or suspend such solicitations
(as the case may be). The provisions of this paragraph
notwithstanding, the termination or suspension by the Company of
the Bank's solicitation of offers to purchase Securities will not
(except under the circumstances contemplated in Section 6 or
Section 9(b) hereof) relieve or otherwise affect the Bank's
obligation to purchase any Securities the Bank shall have agreed
to purchase in its capacity as underwriter, or the Company's
obligation to sell any Securities it shall have agreed to sell to
a third-party investor through the Bank in its capacity as agent,
in either case as set forth in an applicable Terms Agreement that
shall have been executed and delivered by both the Company and
the Bank.
(e) Scope of Agency. In soliciting offers to purchase
Securities, the Bank will be acting solely as an agent for the
Company. The Bank will use its best efforts consistent with
standard industry practice to assist the Company in obtaining
performance by each purchaser whose offer to purchase Securities
has been solicited by the Bank and accepted by the Company, but
the Bank will not have any liability to the Company in the event
that any such purchase is not consummated for any reason. If the
Company shall default in its obligations to deliver Securities to
a purchaser whose offer it has accepted, the Company will hold
the Bank harmless against any loss, claim, damage, or liability
arising from or as a result of such default and will pay to the
Bank the commission the Bank would have received had such sale
been consummated.
SECTION 3. Purchase and Sale of Securities by Bank as
Underwriter. The Company and the Bank may agree upon one or more
sales of Securities to the Bank as underwriter, for resale to
investors on the terms set forth in the Prospectus and in any
applicable Supplement. All sales of Securities made to the Bank
in its capacity as underwriter during the term of this Agreement
will be subject to the provisions of this Section 3 and to all
other provisions of this Agreement not specifically limited to
sales of Securities through the Bank as agent and/or to the Bank
as purchaser for its own account.
(a) Bank's Obligation to Purchase Securities; Multiple
Underwriters. In the event that the Bank is the sole underwriter
with respect to a particular series of Securities, the Bank will
be obligated to purchase all of the Securities of such series.
In the event that the Bank is one of two or more underwriters
with respect to a particular series of Securities, the applicable
Terms Agreement will specify the aggregate public offering price
of the Securities that each of the Bank and such other
underwriter or underwriters will be obligated to purchase, such
obligations to be several and not joint.
(b) Discounts. All Securities of any series to be sold to
the Bank in its capacity as underwriter will be sold at a
discount from the price at which such Securities are to be sold
to the public. Such discount will be identified in the
applicable Terms Agreement, expressed as a percentage of the
aggregate public offering price of such Securities. Any
provision of this Agreement to the contrary notwithstanding, the
Bank will not be entitled to any discount with respect to the
purchase of a given Security unless (i) the Bank shall have
purchased such Security with a view, at the time of such
purchase, to the immediate resale thereof to a third-party
investor, unless the Company shall have otherwise agreed in the
applicable Terms Agreement, and (ii) the Bank shall have been
named as an underwriter in the applicable Supplement. It is
expressly acknowledged and agreed that the Bank may, in its
capacity as underwriter with respect to any given series of
Securities, sell such Securities to one or more dealers that are
not parties to this Agreement or the applicable Terms Agreement,
and may allow to such dealers a discount from the public offering
price of such Securities, provided that the aggregate of all such
discounts allowed by the Bank to such dealers with respect to
such Securities will not exceed the discount received by the Bank
from the Company with respect to such Securities.
SECTION 4. Terms Agreement; Administrative Procedures. No
agreement for the purchase of Securities by the Bank in its
capacity as underwriter or through the Bank in its capacity as
agent will be deemed to exist until the terms of such agreement
shall have been put in writing, substantially in the form of the
attached Exhibit I, and such writing shall have been signed by
both the Company and the Bank (any such signed writing a "Terms
Agreement"). In the event of a conflict between any provision of
a Terms Agreement with respect to Securities of a given series
and any term of the applicable Supplement, the terms of the
applicable Supplement will govern.
Each of the Company and the Bank agrees that it will perform
its respective administrative obligations with respect to the
offer and sale of Securities as set forth in the Administrative
Procedures attached to this Agreement as Exhibit II. Each Terms
Agreement will incorporate all applicable terms and provisions of
this Agreement and the Administrative Procedures as fully as
though such terms and provisions were expressly stated therein.
SECTION 5. Delivery of Certain Documents, Certificates, and
Opinions. Prior to or contemporaneously with the execution and
delivery of this Agreement by the Bank (or, in respect of
paragraph (g) below, at such later date or dates as indicated in
such paragraph), the Bank has received or will receive the
following documents:
(a) the opinion of Douglas Cram, Esq., Vice President and
Assistant General Counsel of the Company, or such other counsel
as may be selected by the Company and agreed to by the Bank (Mr.
Cram or such other counsel each, successively, the "Company's
Counsel"), dated as of the effective date of the Registration
Statement (the "Effective Date"), substantially in the form of
Annex A hereto,
(b) the opinion of Cahill Gordon & Reindel, special counsel
to the Bank, or such other counsel as may be selected by the Bank
and agreed to by the Company (Cahill Gordon & Reindel or such
other counsel each, successively, the "Bank's Counsel"), dated as
of the Effective Date, substantially in the form of Annex B
hereto,
(c) the opinion of Matthew M. McKenna, Esq., Vice President,
Taxes, of the Company, or such other tax counsel as may be
selected by the Company and agreed to by the Bank (Mr. McKenna or
such other counsel each, successively, the "Tax Counsel"), dated
as of the Effective Date, substantially in the form of Annex C
hereto,
(d) a certificate of the Secretary or the Assistant Secretary
of the Company, dated as of the Effective Date, substantially in
the form of Annex D hereto,
(e) a certificate of the Executive Vice President and Chief
Financial Officer and the Senior Vice President and Treasurer of
the Company, dated as of the Effective Date, substantially in the
form of Annex E hereto, and
(f) an Auditors' Letter (as hereinafter defined) with respect
to the preceding fiscal quarter of the Company, dated as of a
date no later than 14 business days following the date on which
the Company shall have filed its Quarterly Report on Form 10-Q
with respect to such fiscal quarter (or its Annual Report on Form
10-K for the year in which such fiscal quarter occurred, as the
case may be).
(g) At such time as any form of Shelf Warrant Agreement is
filed by the Company as an amendment and/or exhibit to the
Registration Statement, and at such time as any Prospectus
Supplement relating to one or more series of Shelf Warrants is
filed by the Company as a supplement to the Prospectus, the Bank
will receive an opinion of the Company's Counsel, an opinion of
the Bank's Counsel, and an opinion of the Tax Counsel, each dated
as of the date such exhibit is filed or the effective date of
such amendment or supplement, as the case may be, substantially
in the forms attached hereto as Annex A, Annex B, and Annex C,
respectively, modified as appropriate to address such series of
Shelf Warrants and the related Warrant Agreement and Prospectus
Supplement, provided, however, that such opinion of the Company's
Counsel will be limited to the opinions described in paragraphs
(5) and (8) of Annex A hereto, modified as appropriate to address
such Warrant Agreement, and to the opinions described in
paragraphs (6), (7), and (11) of Annex A hereto, modified as
appropriate to address such series of Shelf Warrants and the
applicable Prospectus Supplement. The Bank will also receive a
certificate of the Secretary or an Assistant Secretary of the
Company, dated as of the date such exhibit is filed or the
effective date of such amendment or supplement, as the case may
be, certifying that such series of Shelf Warrants, and the
related Warrant Agreement, Prospectus Supplement, and form of
Warrant Certificate, have been approved by the Board of Directors
of the Company. The receipt by the Bank of such opinions and
certificate will be a condition precedent to the Bank's
obligation to solicit offers for the purchase of such series of
Shelf Warrants, but will not be a condition precedent to the
Bank's continued obligation to solicit offers for the purchase of
any other Securities in its capacity as agent hereunder.
SECTION 6. Certain Conditions Precedent to Bank's
Obligations. The Bank's obligation to solicit offers to purchase
Securities in its capacity as agent, and its obligation to
purchase any Securities in its capacity as underwriter, will in
all cases be subject to the accuracy of the representations and
warranties of the Company set forth in Section 7 hereof or in the
applicable Terms Agreement (as the case may be), to receipt of
the opinions and certificates to be delivered to the Bank
pursuant to the terms of Sections 5 and 9 hereof or the
provisions of the applicable Terms Agreement (as the case may
be), to the accuracy of the statements of the Company's officers
made in each certificate to be furnished as provided herein or in
the applicable Terms Agreement (as the case may be), to the
performance and observance by the Company of all covenants and
agreements contained herein or in the applicable Terms Agreement
(as the case may be) on its part to be performed and observed, in
each case at the time of solicitation by the Bank of offers to
purchase Securities, at the time the Company accepts any offer to
purchase Securities through the Bank in its capacity as agent or
by the Bank in its capacity as underwriter, as the case may be,
and at the time of purchase, and (in each case) to the following
additional conditions precedent, when and as specified:
(a) As of the Settlement Date for any Securities to be
purchased through the Bank in its capacity as agent or by the
Bank in its capacity as underwriter (for purposes of this
paragraph (a), the "Applicable Settlement Date"), and with
respect to the period from the date of the applicable Terms
Agreement to and including the Applicable Settlement Date:
(i) there shall not have occurred (A) any material
adverse change specified in the most recent Auditors' Letter
delivered to the Bank in accordance with the provisions of
paragraph (b) below, or any material adverse change (or
development involving a prospective material adverse change)
in the business, properties, earnings, or financial condition
of the Company and its subsidiaries on a consolidated basis,
(B) any suspension or material limitation of trading in the
Company's capital stock by the Commission or the New York
Stock Exchange, Inc. (the "NYSE"), or (C) any decrease by
Moody's Investors Services, Inc. or Standard & Poor's
Corporation with respect to the ratings of any of the debt
securities issued or guaranteed by the Company (the events
described in the foregoing clauses A through C the
"Company-Specific Events"), the effect of any of which
Company-Specific Events shall have made it impracticable, in
the reasonable judgment of the Bank, to market such
Securities, such judgment to be based on relevant market
conditions;
(ii) there shall not have occurred (A) any suspension
or material limitation of trading in securities generally on
the NYSE or the establishment of minimum prices on the NYSE,
(B) a declaration of a general moratorium on commercial
banking activities in New York by either Federal or New York
State authorities, or (C) any outbreak or material escalation
of hostilities or other national or international calamity or
crisis (the events described in the foregoing clauses A
through C the "Market Events"), the effect of any of which
Market Events shall have made it impracticable, in the
reasonable judgment of the Bank, to market such Securities,
such judgment to be based on relevant market conditions,
including, without limitation, the impact of such Market
Event on debt securities having substantially similar
characteristics; and
(iii) there shall not have been issued any stop order
suspending the effectiveness of the Registration Statement
nor shall any proceedings for that purpose have been
instituted or threatened.
(b) The Bank will receive, upon execution and delivery of
this Agreement and any applicable Terms Agreement and thereafter
on a quarterly basis throughout the term of this Agreement, a
letter from KPMG Peat Marwick LLP ("KPMG"), or such other
independent certified public accountants as may be selected by
the Company (KPMG or such other independent certified public
accountants each, successively, the "Company's Auditors"),
setting forth certain information with respect to the preceding
fiscal quarter of the Company, provided, that on or prior to the
Settlement Date for the first sale of Securities resulting from a
solicitation made or an offer to purchase received by the Bank in
its capacity as agent, or on or prior to the Settlement Date for
the first sale of Securities made to the Bank in its capacity as
underwriter, (1) the Bank shall have delivered to the Company's
Auditors a letter setting forth certain representations in
substantially the form of Annex F hereto, or (2) the Bank's
Counsel shall have delivered to the Company's Auditors an opinion
in substantially the form of Annex G hereto. Each letter from
the Company's Auditors to the Bank will be dated as of a date no
later than 14 business days following the date on which the
Company shall have filed its Quarterly Report on Form 10-Q with
respect to such fiscal quarter (or its Annual Report on Form 10-K
for the year in which such fiscal quarter occurred, as the case
may be) and will state substantially as follows (each such letter
an "Auditors' Letter"):
(i) they are independent certified public accountants
within the meaning of the Securities Act of 1933, as amended
(the "Securities Act"), and the Securities Exchange Act of
1934, as amended (the "Exchange Act"), and the respective
applicable rules and regulations of the Commission
thereunder;
(ii) in their opinion the most recent audited financial
statements of the Company and the financial statement
schedules of the Company audited by them and included or
incorporated in the Registration Statement and/or the
Prospectus comply as to form in all material respects with
the applicable accounting requirements of the Securities Act
and the Exchange Act and the respective applicable published
rules and regulations thereunder;
(iii) on the basis of: a reading of the financial
statements of the Company and its subsidiaries on a
consolidated basis (which may be unaudited) included or
incorporated by reference in the Registration Statement
and/or the Prospectus; a reading of the minutes of the
meetings of the Board of Directors of the Company held
subsequent to the date of the most recent audited financial
statements of the Company included or incorporated by
reference in the Registration Statement and/or the Prospectus
to a specified date not more than five New York Business Days
prior to the date of the applicable Auditors' Letter; and
inquiries of certain officials of the Company who have
responsibility for financial and accounting matters of the
Company and its subsidiaries as to transactions and events
subsequent to the date of the most recent financial
statements of the Company included or incorporated by
reference in the Registration Statement and/or the Prospectus
to a specified date not more than five New York Business Days
prior to the date of such Auditors' Letter (which procedures
and inquiries do not constitute an audit made in accordance
with generally accepted auditing standards), nothing came to
their attention which caused them to believe that:
1. the unaudited financial statements, if
any, included or incorporated by reference in the
Registration Statement and/or the Prospectus do not
comply as to form in all material respects with
applicable accounting requirements of the Securities Act
and the Exchange Act and the respective applicable
published rules and regulations thereunder, or are not
in conformity with generally accepted accounting
principles applied on a basis substantially consistent
with that of the audited consolidated financial
statements included or incorporated by reference in the
Registration Statement and/or the Prospectus;
2. during the period from the first day
following the date of the last financial statements
(which may be unaudited) of the Company included or
incorporated by reference in the Registration Statement
and/or the Prospectus, to a specified date not more than
five New York Business Days from the date of the
applicable Auditors' Letter, there has been any (i)
decrease in the outstanding capital stock of the Company
or in the consolidated shareholders' equity of the
Company other than a decrease resulting from a normal
dividend distribution or change in the foreign currency
translation adjustment account or (ii) increase in the
consolidated long-term debt of the Company resulting
from the issuance of long-term debt, in any case greater
than 3% as compared with amounts shown in the unaudited
condensed consolidated balance sheet at the end of the
Company's immediately preceding fiscal quarter, except
in each case for decreases or increases, as the case may
be, that the Registration Statement and/or the
Prospectus disclose have occurred or may occur or that
are described in such letter; or during such period
there were any decreases in consolidated net sales or in
consolidated total or per share amounts of income from
continuing operations or of net income, as compared with
the corresponding period in the preceding year, except,
in each case, for decreases that the Registration
Statement and/or the Prospectus disclose have occurred
or may occur or that are described in such letter; or
3. the amounts included in any unaudited
"capsule" financial information derived from the general
accounting records of the Company and included or
incorporated by reference in the Registration Statement
and/or the Prospectus and the amounts used to compute
the ratios set forth in the table of "Ratio of Earnings
to Fixed Charges", if any, included in the Registration
Statement and/or the Prospectus do not agree with the
corresponding amounts in the audited or unaudited
financial statements or schedules prepared by the
Company, as the case may be, from which such amounts
were derived or that the computation of the ratios set
forth in the aforementioned table is not arithmetically
correct;
(iv) they have performed certain other specified
procedures as a result of which they determined that certain
information of an accounting, financial or statistical nature
(which is limited to accounting, financial or statistical
information derived from the general accounting records of
the Company and its subsidiaries) set forth in the
Registration Statement and/or the Prospectus and in Exhibit
12 to the Registration Statement, including certain
information included or incorporated in Items 1, 6, 7 and 11
of the Company's most recent Annual Report on Form 10-K,
incorporated by reference in the Registration Statement
and/or the Prospectus, and the information included in the
"Management's Discussion and Analysis of Financial Condition
and Results of Operations" included or incorporated by
reference in the Company's most recent Quarterly Reports on
Form 10-Q, incorporated in the Registration Statement and/or
the Prospectus, agrees with the general accounting records of
the Company and its subsidiaries or schedules prepared by the
Company, excluding any questions of legal interpretation; and
(v) if unaudited pro forma financial statements are
included or incorporated in the Registration Statement and/or
the Prospectus, on the basis of a reading of the unaudited
pro forma financial statements, carrying out certain
procedures specified by the Bank, inquiries of certain
officials of the Company who have responsibility for
financial and accounting matters, and proving the arithmetic
accuracy of the application of the unaudited pro forma
adjustments to the historical amounts in the unaudited pro
forma financial statements, nothing came to their attention
which caused them to believe that the unaudited pro forma
financial statements do not comply in form in all material
respects with the applicable accounting requirements of Rule
11-02 of Regulation S-X or that the unaudited pro forma
adjustments have not been properly applied to the historical
amounts in the compilation of such statements.
(c) On each Settlement Date, the Bank shall have received
from the Company such appropriate further information,
certificates, and documents as the Company and the Bank shall
have agreed, as reflected in the applicable Terms Agreement.
SECTION 7. Representations and Warranties of the
Company. The Company represents and warrants to the Bank that,
as of the date hereof, as of each date on which the Company and
the Bank execute and deliver a Terms Agreement, as of each date
the Company issues and sells Securities through the Bank in its
capacity as agent or to the Bank in its capacity as underwriter,
and as of each date the Registration Statement or the Prospectus
is amended or supplemented, the following statements are and
shall be true:
(a) (i) The Registration Statement has become effective and
no stop order suspending the effectiveness of the Registration
Statement is in effect nor, to the Company's knowledge, are any
proceedings for such purpose pending before or threatened by the
Commission, (ii) as of the Effective Date, the Company met the
applicable requirements for use of Form S-3 under the Securities
Act with respect to the registration under the Securities Act of
$4,587,000,000 in aggregate public offering price of Debt
Securities and Warrants, and (iii) as of the Effective Date, the
Registration Statement met the requirements set forth in Rule
415(a)(1)(x) under the Securities Act and complied in all
material respects with said Rule.
(b) (i) Each document, if any, filed or to be filed pursuant
to the Exchange Act and incorporated or to be incorporated by
reference in the Prospectus complies or will comply, in all
material respects, with the applicable provisions of the Exchange
Act and the rules and regulations of the Commission thereunder,
(ii) the Registration Statement does not contain any untrue
statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements
therein not misleading, (iii) the Registration Statement and the
Prospectus comply, in all material respects, with the Securities
Act and the rules and regulations of the Commission thereunder,
and (iv) the Prospectus does not contain any untrue statement of
a material fact or omit to state a material fact necessary to
make the statements therein, in light of the circumstances under
which they were made, not misleading; provided, however, that the
Company makes no representations and warranties (1) as to
information contained in or omitted from the Registration
Statement or the Prospectus in reliance upon and in conformity
with information furnished in writing to the Company by the Bank
expressly for use in the Registration Statement or the Prospectus
or any amendment or supplement thereto, or (2) as to that part of
the Registration Statement that constitutes the Statement of
Eligibility and Qualification of the Trustee (the "Form T-1")
under the Trust Indenture Act of 1939, as amended (the "Trust
Indenture Act").
(c) The Company has been duly incorporated and is validly
existing and in good standing under the laws of the State of
North Carolina, has the corporate power and authority to own its
property and to conduct its business as described in the
Prospectus, and is duly qualified to transact business as a
foreign corporation and is in good standing in each jurisdiction
in which the conduct of its business or its ownership or leasing
of property requires such qualification, except to the extent
that the failure to be so qualified or in good standing would not
have a material adverse effect on the Company and its
subsidiaries taken as a whole.
(d) The Indenture has been duly qualified under the Trust
Indenture Act and has been duly authorized, executed, and
delivered by the Company and (assuming due authorization, valid
execution, and delivery thereof by the Trustee) is a valid and
binding agreement of the Company, enforceable against the Company
in accordance with its terms, except as such enforceability may
be limited by the laws of bankruptcy, insolvency, reorganization,
fraudulent conveyance, moratorium, or similar laws relating to
creditors' rights generally, by any other federal or state laws,
by rights of acceleration, by general principles of equity, or by
the discretion of any court before which any proceeding therefor
may be brought.
(e) This Agreement has been duly authorized, executed, and
delivered by the Company and (assuming due authorization, valid
execution, and delivery by the Bank) is a valid and binding
agreement of the Company, enforceable against the Company in
accordance with its terms, except as the enforceability of any
term or provision hereof (including, without limitation, the
Company's indemnity obligations under Section 12 hereof) may be
limited by the laws of bankruptcy, insolvency, reorganization,
fraudulent conveyance, moratorium, or similar laws relating to
creditors' rights generally, by rights of acceleration, by any
other federal or state law. by general principles of equity, or
by the discretion of any court before which any proceeding
therefor may be brought.
(f) The respective forms of Terms Agreement and Debt Warrant
Agreement filed by the Company as exhibits to the Registration
Statement, and the form of any Shelf Warrant Agreement to be
filed by the Company as an exhibit to the Registration Statement,
have been or will be duly authorized by the Company and, assuming
valid execution and delivery by the Company and due
authorization, valid execution, and delivery by each of the other
parties thereto, each such agreement will be a valid and binding
agreement of the Company, enforceable against the Company in
accordance with its respective terms, except as such
enforceability may be limited by the laws of bankruptcy,
insolvency, reorganization, fraudulent conveyance, moratorium, or
similar laws relating to creditors' rights generally, by any
other federal or state laws, by general principles of equity, or
by the discretion of any court before which any proceeding
therefor may be brought.
(g) The Securities have been duly authorized and, when
issued, executed, and authenticated in accordance with the
provisions of the Indenture, or when countersigned by the Warrant
Agent in accordance with the provisions of the applicable Warrant
Agreement, as the case may be, and delivered to and duly paid for
in accordance with the applicable provisions of the Prospectus,
any applicable Supplement, and Section 11(c) hereof, will be
entitled to the benefits of the Indenture or the applicable
Warrant Agreement, as the case may be, and will be valid and
binding obligations of the Company, enforceable against the
Company in accordance with their respective terms, except as such
enforceability may be limited by the laws of bankruptcy,
insolvency, reorganization, fraudulent conveyance, moratorium, or
similar laws relating to creditors' rights generally, by any
other federal or state laws, by rights of acceleration, if
applicable, by general principles of equity, or by the discretion
of any court before which any proceeding therefor may be brought.
(h) The execution and delivery of and performance by the
Company of its obligations under this Agreement, the Securities,
the Indenture, any Warrant Agreement, and any Terms Agreement, as
the case may be, will not contravene any provision of any
applicable law or of the Restated Charter or By-Laws of the
Company, or of any agreement or other instrument binding upon the
Company or any of its subsidiaries that is material to the
Company and its subsidiaries taken as a whole, or of any
judgment, order, or decree of any governmental body, agency, or
court having jurisdiction over the Company or any of its
subsidiaries, and no consent, approval, authorization, or order
of or qualification with any governmental body or agency is, to
the Company's knowledge, required for the performance by the
Company of its obligations under this Agreement, the Securities,
the Indenture, or any Warrant Agreement or Terms Agreement,
except such as may be required by Blue Sky laws or other
securities laws of the various states in which the Securities are
offered and sold.
(i) There has not been any material adverse change (or
development involving a prospective material adverse change) in
the business, properties, earnings, or financial condition of the
Company and its subsidiaries on a consolidated basis from that
set forth in the Company's last periodic report filed with the
Commission under the Exchange Act and the rules and regulations
promulgated thereunder.
(j) There are no legal or governmental proceedings pending
or, to the Company's knowledge, threatened, to which the Company
or any of its subsidiaries is a party or to which any of the
properties of the Company or any of its subsidiaries is subject
that is required to be described in the Registration Statement or
the Prospectus and is not so described, or any applicable
statute, regulation, contract, or other document that is required
to be described in the Registration Statement or the Prospectus
that is not so described.
SECTION 8. Authority, Compliance with Laws. As of the
date hereof, as of each date on which the Company and the Bank
execute and deliver a Terms Agreement, as of each date the
Company issues and sells Securities through the Bank in its
capacity as agent or to the Bank in its capacity as underwriter,
and as of each date the Registration Statement or the Prospectus
is amended or supplemented, the following statements are and
shall be true:
(a) Each of this Agreement and any Terms Agreement has been
duly authorized, executed, and delivered by the Bank and
(assuming due authorization, valid execution, and delivery
thereof by the Company) is a valid and binding agreement of the
Bank, enforceable against the Bank in accordance with its
respective terms, except as the enforceability of any such terms
or provisions (including, without limitation, the Bank's agency
obligations under Section 2 hereof and the Bank's indemnification
obligations under Section 12 hereof) may be limited by the laws
of bankruptcy, insolvency, reorganization, fraudulent conveyance,
moratorium, or similar laws relating to creditors' rights
generally, by any other federal or state laws, by general
principles of equity, or by the discretion of any court before
which any proceeding therefor may be brought.
(b) Neither the execution and delivery of this Agreement or
any Terms Agreement by the Bank nor the performance by the Bank
of its obligations hereunder or thereunder is precluded by any
provision of any applicable federal or state law (including,
without limitation, the Blue Sky laws of any jurisdiction, to the
extent that such laws apply to the Bank), or of any term or
provision of the Charter or By-Laws of the Bank, any agreement
or other instrument binding upon the Bank, or any judgment,
order, or decree of any governmental body, agency, or court
having jurisdiction over the Bank, and all consents, approvals,
authorizations, and orders of and qualifications with all
governmental bodies and agencies that are, to the Bank's
knowledge, required for the performance by the Bank of its
obligations under this Agreement or any Terms Agreement have been
obtained, except such as may be required by Blue Sky laws or
other securities laws of the various states in which the
Securities are offered and sold.
(c) The Bank has delivered and will deliver a copy of the
Prospectus (as the same may be amended as of the date of such
delivery, together with all applicable Supplements), to each
person who has agreed to purchase Securities as to which the Bank
is named as an agent or underwriter, in each case in accordance
with all applicable federal and state laws. The Bank has not
made and will not make any representation, warranty, or other
statement to any third party in connection with the solicitation,
offer, sale, or distribution of any of the Securities that is or,
at the time it is made, will be in violation of any applicable
federal or state law.
SECTION 9. Agreements. The Company and the Bank agree as
follows:
(a) Prior to the filing by the Company of any amendment to
the Registration Statement or of any Supplement that shall name
the Bank as agent or underwriter, the Company will afford the
Bank or the Bank's Counsel a reasonable opportunity to review and
comment on the same, provided, however, that the foregoing
requirement will not apply to any of the Company's filings with
the Commission required to be filed pursuant to Sections 13(a),
13(c), 14, or 15(d) of the Exchange Act. Subject to the
foregoing sentence, the Company will promptly cause each
applicable Supplement to be filed with or transmitted for filing
with the Commission in accordance with Rule 424(b) or 424(c)
under the Securities Act or pursuant to such other rule or
regulation of the Commission as then deemed appropriate by the
Company. The Company will promptly advise the Bank of (i) the
filing and effectiveness of any amendment to the Registration
Statement other than by virtue of the Company's filing any report
required to be filed under the Exchange Act and the filing of any
supplement to the Prospectus other than a Pricing Supplement,
(ii) any request by the Commission for any amendment to the
Registration Statement, for any amendment or supplement to the
Prospectus, or for any information from the Company, (iii) the
issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or the institution or
threatening of any proceeding for that purpose, and (iv) the
receipt by the Company of any notification with respect to the
suspension of the qualification of the Securities for sale in any
jurisdiction or the initiation or threatening of any proceeding
for such purpose. The Company will use reasonable efforts to
prevent the issuance of any such stop order or notice of
suspension of qualification and, if issued, to obtain as soon as
reasonably possible the withdrawal thereof.
(b) If, at any time when a prospectus relating to any series
of Securities is required to be delivered under the Securities
Act, any event occurs or condition exists as a result of which
the Prospectus would include an untrue statement of a material
fact, or omit to state a material fact necessary to make the
statements therein, in the light of the circumstances under which
they were made, not misleading, or if it is necessary to amend or
supplement the Prospectus in order to comply with the Securities
Act, the Exchange Act, the respective rules and regulations of
the Commission thereunder, or any other applicable law, the
Company will promptly notify the Bank, by telephone or by
facsimile (in either case with written confirmation from the
Company by mail), to cease use and distribution of the Prospectus
(and all then existing supplements thereto) and to suspend all
efforts to solicit offers to purchase Securities in its capacity
as agent or to suspend all efforts to resell the Securities in
its capacity as underwriter or dealer, as the case may be, and
the Bank will promptly comply with the terms of such notice. If
the Company thereafter decides to amend or supplement the
Registration Statement or the Prospectus to correct such
statement or omission or to effect such compliance, it will
promptly advise the Bank of such decision, either by telephone or
telecopier (in either case with confirmation from the Company by
mail) and, at the Company's expense, will promptly prepare and
cause to be filed with the Commission an appropriate amendment or
supplement to the Registration Statement or the Prospectus, as
the case may, and will supply the Bank with one signed copy of
any such amended Registration Statement and as many copies of any
such amended or supplemented Prospectus as the Bank may
reasonably request. If such amendment or supplement is
satisfactory in the reasonable judgment of the Bank to correct
such statement or omission or to effect such compliance, then
upon the effective date of such amendment to the Registration
Statement or the filing with the Commission of such amendment or
supplement to the Prospectus, as the case may be, the Bank may
resume solicitation of offers to purchase such Securities or the
resale of such Securities as the case may be, in accordance with
the terms hereof. Any other provision of this Agreement to the
contrary notwithstanding, if any event or condition contemplated
in the first sentence of this paragraph (b) shall occur before
the Settlement Date for any sale of Securities to be made through
the Bank in its capacity as agent, or before the Bank has
completed distribution of any Securities it may have purchased in
its capacity as underwriter, the Company will forthwith prepare
and cause to be filed with the Commission an amendment or
supplement to the Registration Statement or the Prospectus, as
the case may be, satisfactory in the reasonable judgment of the
Bank to correct such statement or omission or to effect such
compliance, and the Company will supply the Bank with one signed
copy of such amended Registration Statement and as many copies of
such amended or supplemented Prospectus as the Bank may
reasonably request, provided, however, that the expense of
preparing, filing, and supplying copies to the Bank of any such
amendment or supplement will be borne by the Company only for the
nine-month period immediately following the purchase of such
Securities by the Bank and thereafter will be borne by the Bank.
(c) The Company will furnish to the Bank, without charge, one
signed copy of the Registration Statement (including exhibits)
and all amendments thereto that shall become effective, and as
many copies of the Prospectus, any documents incorporated by
reference therein, and any supplements and amendments thereto as
the Bank may reasonably request, in each case within a reasonable
period of time following the date on which this Agreement is
executed and delivered by the Company and the Bank, or the date
on which such document becomes effective, or the date on which
such document is requested by the Bank, as applicable.
(d) The Company will, with such assistance from the Bank as
the Company may reasonably request, endeavor to qualify the
Securities for offer and sale under the Blue Sky laws or other
securities laws of such jurisdictions as the Bank shall
reasonably request and will maintain such qualifications for as
long as required with respect to the offer, sale, and
distribution of the Securities.
(e) From the date of any Terms Agreement providing for the
purchase of Securities by the Bank in its capacity as an
underwriter hereunder to and including the corresponding
Settlement Date, the Company will not, without the Bank's prior
consent (which consent may not be unreasonably withheld), offer,
sell, or contract to sell to, or announce any offering of any
Securities to be distributed by, any underwriter other than the
Bank pursuant to any underwriting agreement or other similar
agreement (including a distribution agreement) between the
Company and one or more third parties. It is expressly
understood and agreed that the foregoing will not prohibit or
restrict any sale of Securities outside the United States or any
sale of Securities by the Company directly to one or more
investors, through the Bank as agent hereunder, or through any
other agent of the Company.
(f) The Company will make generally available to its security
holders earnings statements that satisfy the provisions of
Section 11(a) of the Securities Act and Rule 158 promulgated
thereunder.
(g) Each time the Registration Statement or Prospectus is
amended or supplemented by the Company's periodic filings
pursuant to the Exchange Act, or by any means or for any purpose
other than by the filing of a Pricing Supplement or for a change
the Company reasonably deems to be immaterial, the Company will
make available to the Bank, promptly upon request, (i) an
officers' certificate, dated the date of such amendment or
supplement to the Registration Statement or the Prospectus, as
the case may be, in substantially the form of Annex E hereto, and
(ii) a written opinion of the Company's Counsel, dated the date
of such amendment or supplement to the Registration Statement or
the Prospectus, as the case may be, as to the matters addressed
in paragraphs (1), (8), (9), (10) and (11) of Annex A hereto,
provided, however, that in lieu of such opinion, counsel last
furnishing such an opinion to the Bank (including the opinion to
be delivered pursuant to paragraph (a) of Section 5 hereof) may
furnish to the Bank a letter stating that the Bank may rely on
such last opinion to the same extent as though it were dated the
date of such letter (except that statements in such last opinion
will be deemed to relate to the Registration Statement or the
Prospectus as amended and supplemented as of the date of such
letter).
(h) Each time the Registration Statement or the Prospectus is
amended or supplemented to set forth amended or supplemental
financial information, or amended or supplemental financial
information is incorporated by reference in the Registration
Statement or the Prospectus, the Company will cause the Company's
Auditors to forthwith furnish the Bank with a letter
substantially in the form of an Auditors' Letter, dated the
effective date of such amendment or supplement, as the case may
be, as to such amended or supplemental financial information;
provided, however, that the foregoing requirement will not apply
to any of the Company's filings with the Commission required to
be filed pursuant to Sections 13(a), 13(c), 14, or 15(d) of the
Exchange Act, and provided, further, that the delivery of such
letter by the Company's Auditors to the Bank will be in addition
to, and not in lieu of, any Auditors' Letter to be delivered to
the Bank pursuant to paragraph 6(b) of this Agreement.
(i) As of the date hereof, as of each date on which the
Company and the Bank execute and deliver a Terms Agreement, as of
each date the Company issues and sells Securities through the
Bank in its capacity as agent or to the Bank in its capacity as
underwriter, and as of each date the Registration Statement or
the Prospectus is amended or supplemented, the Bank has disclosed
and will disclose to the Company the purchase of any Security
made by the Bank as principal, for its own account, and not with
a view to the immediate sale or resale of such Security to a bona
fide third-party investor.
SECTION 10. Fees and Expenses. The Company will pay all
costs, fees, and expenses arising in connection with the sale of
any Securities through the Bank in its capacity as agent or to
the Bank in its capacity as underwriter and in connection with
the performance by the Bank of its related obligations hereunder
and under any Terms Agreement, including the following: (i)
expenses incident to the preparation and filing of the
Registration Statement and the Prospectus and all amendments and
supplements thereto, (ii) expenses incident to the issuance and
delivery of such Securities, (iii) the fees and disbursements of
the Company's Counsel, the Tax Counsel, the Company's Auditors,
the Trustee, and the Trustee's counsel, (iv) expenses incident to
the qualification of such Securities under Blue Sky laws and
other applicable state securities laws in accordance with the
provisions of Section 9(d) hereof, including related filing fees
and the reasonable fees and disbursements of the Bank's Counsel
in connection therewith and in connection with the preparation of
any survey of Blue Sky laws (a "Blue Sky Survey"), (v) expenses
incident to the printing and delivery to the Bank, in the
quantities hereinabove stated, of copies of the Registration
Statement and all amendments thereto and of the Prospectus and
all amendments and supplements thereto, (vi) expenses incident to
the printing and delivery to the Bank, in such quantities as the
Bank shall reasonably request, of copies of the Indenture, any
Warrant Agreement, and any Blue Sky Survey, (vii) any fees
charged by rating agencies for the rating of such Securities,
(viii) the fees and expenses, if any, incurred with respect to
any applicable filing with the National Association of Securities
Dealers, and (ix) the reasonable fees and disbursements of the
Bank's Counsel incurred in connection with the offering and sale
of such Securities, including reasonable fees for the issuance of
any opinion to be delivered by the Bank's Counsel hereunder;
provided, however, that the Bank will pay all costs, fees, and
expenses incurred by the Bank in connection with the purchase of
Securities by the Bank for its own account or with respect to the
resale of Securities purchased by the Bank in its capacity as
underwriter hereunder, including all transfer taxes, advertising
expenses, and fees and expenses of the Bank's Counsel incident to
the resale of any such Securities. The immediately preceding
proviso notwithstanding, the Company will, upon demand, reimburse
the Bank for all reasonable out-of-pocket expenses incurred by
the Bank in connection with a purchase by the Bank as underwriter
that is not consummated as a result of a material failure by the
Company to perform its obligations hereunder, including, without
limitation, a default by the Company with respect to any of the
representations or warranties set forth in Section 7 hereof.
SECTION 11. Inspection; Place of Delivery; Payment.
(a) Inspection. The Company agrees to have available for
inspection, checking, and packaging by the Bank or its appointed
agent, at the office of the Trustee in Brooklyn, New York, the
Securities to be sold through or to the Bank as agent or
underwriter hereunder, not later than 1:00 P.M. on the New York
Business Day prior to the applicable Settlement Date.
(b) Place of Delivery of Documents, Certificates and
Opinions. The documents, certificates and opinions required to
be delivered to the Bank pursuant to Sections 5 and 6 of this
Agreement will be delivered at the offices of the Bank's Counsel,
or at such other location as may be agreed upon by the Company
and the Bank, not later than 12:00 p.m., New York time, in each
case on the date or dates indicated in the applicable Section, or
at such other time as the Bank and the Company may agree upon in
writing.
(c) Payment. Delivery of Securities sold by or through the
Bank as underwriter or agent will be made to the Bank on the date
that the Company receives payment in full of the aggregate
purchase price therefor, discounted as provided in the applicable
Supplement with respect to Securities purchased by the Bank as
underwriter or (unless otherwise set forth in the applicable
Terms Agreement) discounted as provided in paragraph 2(c) hereof
regarding payment of the commission set forth in the applicable
Supplement with respect to Securities sold through the Bank as
agent (each such date a "Settlement Date"), in the currency
specified in such Securities and in the applicable Supplement, by
wire transfer of immediately available funds to an account
designated in writing by the Company or by such other means as
may be agreed upon by the Company and the Bank and set forth in
the applicable Terms Agreement.
SECTION 12. Indemnification and Contribution.
(a) The Company agrees to indemnify and hold the Bank and
each person, if any, who controls the Bank within the meaning of
either Section 15 of the Securities Act or Section 20 of the
Exchange Act, harmless from and against any and all losses,
claims, damages, or liabilities to which the Bank come subject
under the Securities Act, the Exchange Act, or any other federal
or state law or regulation, at common law or otherwise, insofar
as such losses, claims, damages, or liabilities (and actions in
respect thereof) arise out of, are based upon, or are caused by
any untrue statement or allegedly untrue statement of a material
fact contained in the Registration Statement or the Prospectus or
in any amendment or supplement thereto, or arise out of, are
based upon or are caused by any omission or alleged omission to
state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, and the
Company agrees to reimburse each such indemnified party for any
reasonable legal or other expenses reasonably incurred by them in
connection with investigating or defending any such loss, claim,
damage, liability, or action; provided, however, that the Company
will not be liable to the extent that such losses, claims,
damages, or liabilities (or actions in respect thereof) arise out
of, are based upon, or are caused by any such untrue statement or
omission or allegedly untrue statement or omission included in or
omitted from the Registration Statement or the Prospectus in
reliance upon and in conformity with information furnished to the
Company by the Bank in writing expressly for use in the
Registration Statement or the Prospectus or any amendment or
supplement thereto, and provided, further, that any amount
payable by the Company to the Bank pursuant to the provisions of
this paragraph shall be offset by the amount of any losses,
claims, damages, and liabilities sustained or incurred by the
Company arising out of or in connection with a violation by the
Bank of the provisions of paragraph (c) of Section 8 hereof
(except to the extent that such violation occurs as a direct
result of a violation by the Company of its obligations under
paragraphs (b) or (c) of Section 9 hereof), as such amounts are
finally determined by a court of competent jurisdiction.
(b) The Bank agrees to indemnify and hold harmless the
Company, its directors, its officers who sign the Registration
Statement, and each person, if any, who controls the Company
within the meaning of either Section 15 of the Securities Act or
Section 20 of the Exchange Act, to the same extent as the
foregoing indemnity from the Company to the Bank, but only with
respect to such losses, claims, damages, and liabilities (and
actions in respect thereof) that arise out of, are based upon, or
are caused by any untrue statement or omission or allegedly
untrue statement or omission included in or omitted from the
Registration Statement or the Prospectus in reliance upon and in
conformity with information furnished to the Company by the Bank
in writing expressly for use in the Registration Statement or the
Prospectus or any amendment or supplement thereto.
(c) In case any proceeding (including any governmental
investigation) shall be instituted involving any person in
respect of which indemnity may be sought pursuant to either
paragraph (a) or (b) of this Section 12, such person (the
"indemnified party") will promptly notify the person against whom
such indemnity may be sought (the "indemnifying party") in
writing and the indemnifying party, upon request of the
indemnified party, will retain counsel reasonably satisfactory to
the indemnified party to represent the indemnified party and any
others the indemnifying party may designate in such proceeding
and will pay the fees and disbursements of such counsel related
to such proceeding. In any such proceeding, any indemnified
party will have the right to retain its own counsel, but the fees
and expenses of such counsel will be borne by the indemnified
party unless (i) the indemnifying party and the indemnified party
shall have mutually agreed to the retention of such counsel or
(ii) the named parties to any such proceeding (including any
impleaded parties) include both the indemnifying party and the
indemnified party and representation of both parties by the same
counsel would be inappropriate due to actual or potential
differing interests between them. It is understood that the
indemnifying party will not, in connection with any proceeding or
related proceedings in the same jurisdiction, be liable for the
fees and expenses of more than one separate firm (in addition to
any local counsel) for all such indemnified parties and that all
such reasonable fees and expenses will be reimbursed as they are
incurred. Such firm will be designated in writing by the Bank
(in the case of parties indemnified pursuant to the second
preceding paragraph) or by the Company (in the case of parties
indemnified pursuant to the first preceding paragraph), as the
case may be. The indemnifying party will not be liable for any
settlement of any proceeding effected without its written
consent, but if settled with such consent, or if there shall be a
final judgment for the plaintiff, the indemnifying party agrees
to indemnify the indemnified party from and against any loss or
liability by reason of such settlement or judgment. The
immediately preceding sentence notwithstanding, if at any time an
indemnified party shall have requested an indemnifying party to
reimburse the indemnified party for reasonable fees and expenses
of counsel as contemplated by the third sentence of this
paragraph, the indemnifying party agrees that it will be liable
for any settlement of any proceeding effected without its written
consent if (i) such settlement is entered into more than 30 days
after receipt by such indemnifying party of the aforesaid request
and (ii) such indemnifying party shall not have reimbursed the
indemnified party in accordance with such request prior to the
date of such settlement. No indemnifying party will, without the
prior written consent of the indemnified party, effect any
settlement of any pending or threatened proceeding in respect of
which any indemnified party is or could have been a party and
indemnity could have been sought hereunder by such indemnified
party, unless such settlement includes an unconditional release
of such indemnified party from all liability on claims that are
the subject matter of such proceeding. Any provision of this
paragraph (c) to the contrary notwithstanding, no failure by an
indemnified party to notify the indemnifying party as required
hereunder will relieve the indemnifying party from any liability
it may have had to an indemnified party otherwise than under this
Section 12.
(d) If the indemnification provided for in paragraph (a) or
(b) of this Section 12 is unavailable to an indemnified party or
is insufficient in respect of any losses, claims, damages, or
liabilities referred to therein, then each indemnifying party
under such paragraph, in lieu of indemnifying the indemnified
party thereunder, will contribute to the amount paid or payable
by such indemnified party as a result of such losses, claims,
damages, or liabilities (i) in such proportion as is appropriate
to reflect the relative benefits received by the Company, on the
one hand, and the Bank, on the other, from the offering of
Securities as to which the Bank was a named agent or underwriter,
or (ii) if the allocation provided by clause (i) is not permitted
by applicable law, in such proportion as is appropriate to
reflect not only the relative benefits referred to in clause (i)
above but also the relative fault of the Company, on the one
hand, and the Bank, on the other, in connection with the
statements or omissions that resulted in such losses, claims,
damages, or liabilities, as well as any other relevant equitable
considerations. The relative benefits received by the Company,
on the one hand, and the Bank, on the other, in connection with
the offering of Securities as to which the Bank was a named agent
or underwriter will be deemed to be in the same proportion as the
total net proceeds received by the Company from the offering of
such Securities bears to the total discounts and commissions
received by the Bank from the Company in respect thereof. The
relative fault of the Company, on the one hand, and of the Bank,
on the other, will be determined by reference to, among other
things, whether the untrue or allegedly untrue statement of a
material fact or the omission or alleged omission to state a
material fact relates to information supplied or to be supplied
by the Company or by the Bank and the parties' relative intent,
knowledge, access to information, and opportunity to correct or
prevent such statement or omission.
(e) The Company and the Bank agree that it would not be just
or equitable if contribution pursuant to paragraph (d) above were
determined by pro rata allocation or by any other method of
allocation that does not take account of the equitable
considerations referred to therein. The amount paid or payable
by an indemnified party as a result of the losses, claims,
damages, and liabilities referred to in paragraph (d) above will
be deemed to include, subject to the limitations set forth above,
any reasonable legal or other expenses reasonably incurred by
such indemnified party in connection with investigating or
defending any such action or claim. Any other provisions of this
Section 12 to the contrary notwithstanding, (i) the Bank will not
be required to contribute to the Company any amount in excess of
the amount by which the aggregate public offering price of all
Securities as to which the Bank was a named agent or underwriter
exceeds the amount of losses, claims, damages, and liabilities
sustained or incurred by the Bank arising out of, based upon, or
caused by any untrue statement or omission or allegedly untrue
statement or omission included in or omitted from the
Registration Statement or the Prospectus (other than in reliance
upon and in conformity with information furnished to the Company
by the Bank in writing expressly for use in the Registration
Statement or the Prospectus or any amendment or supplement
thereto), (ii) any amount payable by the Company or the Bank, as
the case may be (the "Contributing Party"), pursuant to the
provisions of this paragraph or paragraph (d) of this Section 12
shall be offset by the amount of any losses, claims, damages, and
liabilities sustained or incurred by the other party arising out
of or in connection with a violation (x) by the Bank of the
provisions of paragraph (c) of Section 8 hereof (if the Company
is the Contributing Party) or (y) by the Company of its
obligations under paragraphs (b) or (c) of Section 9 hereof (if
the Bank is the Contributing Party), in each case as such amounts
are finally determined by a court of competent jurisdiction, and
(iii) no person guilty of fraudulent misrepresentation (within
the meaning of Section 11(f) of the Securities Act) will be
entitled to contribution from any person who was not guilty of
such fraudulent misrepresentation.
(f) The remedies provided for in this Section 12 are not
exclusive and will not limit any rights or remedies that may
otherwise be available to any indemnified party at law or in
equity.
SECTION 13. Termination. This Agreement will
automatically terminate upon the expiration of the offering to
which the Prospectus relates and may be earlier terminated by the
Company or the Bank upon the giving of written notice of such
termination to the other party hereto in accordance with the
provisions of Section 15 hereof, provided, however, that if the
Company and the Bank shall have executed a Terms Agreement for
the purchase of Securities by the Bank in its capacity as
underwriter, this Agreement may not be terminated by the Bank
prior to delivery of and payment for such Securities except upon
the failure of any of the conditions precedent described in
Section 6(a) hereof, and provided, further, that if the Company
and the Bank shall have executed a Terms Agreement for the
purchase of Securities through the Bank as agent, this Agreement
may not be terminated by the Bank prior to delivery of and
payment for such Securities unless and until the Bank shall have
exercised best efforts consistent with standard industry practice
to assist the Company in obtaining performance by each purchaser
whose offer to purchase such Securities is reflected in such
Terms Agreement.
SECTION 14. Representations and Indemnities to Survive.
The respective agreements of the Company and the Bank set forth
in Sections 2(e),4, 9(b), 9(f), 10, 12, and 18 hereof, the
representations and warranties of the Company set forth in
Section 7 hereof, the representations and warranties of the Bank
set forth in Section 8 hereof, and the statements and opinions of
the Company and its officers set forth in the documents to be
delivered by the Company to the Bank as provided in paragraphs
5(a), 5(c), 5(d), 5(e), and 6(c) hereof, will survive delivery of
and payment for any Securities as contemplated hereunder and will
survive termination of this Agreement in accordance with the
provisions of Section 13 above.
SECTION 15. Notices. Except as otherwise specifically
provided herein, all communications hereunder will be in writing
and will be effective one business day after having been
delivered by hand, mailed via Express Mail, deposited with
Federal Express or any nationally recognized commercial courier
service for "next day" delivery, or telecopied and confirmed in
writing (by telecopied facsimile or otherwise) to the respective
addresses or telecopier numbers set forth on the signature page
hereto, or to such other address or telecopier number as either
party may hereafter designate to the other in writing. The
foregoing notwithstanding, copies of any Terms Agreement and of
any certificate or opinion to be delivered by the Company to the
Bank under paragraphs 5(a), 5(c), 5(d), 5(e), 5(f), or 9(g)
hereof will be deemed delivered if executed by all required
signatories and telecopied to the Company and/or the Bank, as the
case may be, with receipt confirmed in writing (by telecopied
facsimile or otherwise). In the event that any Terms Agreement
or any such certificate or opinion is delivered via telecopier as
contemplated in the preceding sentence, the parties will use best
efforts to ensure that "original" copies of such documents will
be distributed promptly thereafter.
SECTION 16. Successors; Non-Transferability. This
Agreement will inure to the benefit of and be binding upon the
parties hereto, their respective successors, and the officers,
directors, and controlling persons referred to in Section 12
hereof. No other person will have any right or obligation
hereunder. Neither party to this Agreement may assign its rights
hereunder without the written consent of the other party.
SECTION 17. Counterparts. This Agreement may be signed
in any number of counterparts, each of which will be an original,
with the same effect as if the signatures thereto and hereto were
upon the same instrument.
SECTION 18. Applicable Law. This Agreement will be
governed by and construed in accordance with the laws of the
State of New York without regard to principles of conflicts of
law.
SECTION 19. Headings. The headings of the sections of
this Agreement have been inserted for convenience of reference
only and will not affect the construction of any of the terms or
provisions hereof.
IN WITNESS WHEREOF, the parties hereto have executed this
Distribution Agreement as of the __ day of _________________.
PEPSICO, INC.
By:
Name: _________________
Title: _________________
Notice Information:
PepsiCo, Inc.
700 Anderson Hill Road
Purchase, New York 10577
Telephone No.:
Facsimile No.:
Attention:
[NAME OF BANK]
By:
Name: _________________
Title: _________________
Notice Information:
[NAME OF BANK]
[ADDRESS]
Telephone No.: _________________
Facsimile No.: _________________
Attention: _________________
ANNEX A
[PEPSICO LETTERHEAD]
_______________, 199
[Name and Address of Bank]
Dear Sirs:
I am Vice President and Assistant General Counsel of
PepsiCo, Inc., a corporation organized under the laws of the
State of North Carolina (the "Company"). I have acted as counsel
for the Company in connection with the registration of
$4,587,000,000 in aggregate offering price of the Company's Debt
Securities and Warrants (collectively, the "Securities") that
may, from time to time, be issued by the Company (i) with respect
to Debt Securities, under the Indenture, dated as of December
14, 1994, between the Company and The Chase Manhattan Bank
(National Association), as Trustee (the "Indenture"), (ii) with
respect to Debt Warrants, under the Debt Warrant Agreement
(hereinafter defined) to be entered into by the Company and The
Chase Manhattan Bank (National Association), as Warrant Agent,
and (iii) with respect to Shelf Warrants, under one or more
warrant agreements to be entered into by the Company and one or
more warrant agents.
You have requested my opinion pursuant to Section 5(a)
of the Distribution Agreement to be executed and delivered by you
and the Company in substantially the form attached hereto as
Exhibit A (the "Distribution Agreement"). In connection with
such opinion, I have examined the Registration Statement on Form
S-3, File No. 33-___________ (the "Registration Statement"),
filed by the Company with the Securities and Exchange Commission
(the "Commission") with respect to the Securities, and have
examined such records, certificates, and other documents,
certified or otherwise authenticated to my satisfaction, have
made such inquiries of officers and employees of the Company, and
have made such other examinations as, in each case, I have deemed
necessary or appropriate. I have assumed the genuineness of all
signatures on all documents examined by me and the conformity to
originals of all copies submitted to me.
Capitalized terms used herein and not otherwise defined
have the meanings ascribed to those terms by the Prospectus filed
as part of the Registration Statement (the "Prospectus").
[Name of Bank]
_____________, 199
Page 2
On the basis of the foregoing and having regard for
such legal considerations as I have deemed relevant, it is my
opinion that:
1. The Company has been duly incorporated and is
validly existing as a corporation in good standing under the laws
of the State of North Carolina, has the corporate power and
authority to own its properties and to conduct its business as
described in the Prospectus, and is duly qualified to do business
as a foreign corporation in each jurisdiction where the conduct
of its business or its ownership or leasing of property requires
such qualification, except to the extent that the failure to be
so qualified would not have a material adverse effect on the
financial condition of the Company and its subsidiaries taken as
a whole.
2. The Distribution Agreement has been duly
authorized and, when executed and delivered by the Company,
assuming due authorization and execution by you, will be a valid
and binding obligation of the Company, enforceable against the
Company in accordance with its terms, except as limited by (i)
the laws of bankruptcy, insolvency, reorganization, fraudulent
conveyance, moratorium, or similar laws affecting creditors'
rights generally, (ii) any other applicable federal or state law,
including any law limiting rights of indemnity or contribution,
(iii) equitable principles of general applicability, and (iv) the
discretion of any court in which a proceeding for enforceability
may be brought.
3. The Indenture has been duly authorized, executed,
and delivered by the Company and, assuming due authorization and
execution by the Trustee, is qualified under the Trust Indenture
Act of 1939, as amended, and is a valid and binding obligation of
the Company, enforceable against the Company in accordance with
its terms, except as limited by (i) the laws of bankruptcy,
insolvency, reorganization, fraudulent conveyance, moratorium, or
similar laws affecting creditors' rights generally, (ii) any
other applicable federal or state law, (iii) rights of
acceleration in accordance with the terms of the Indenture, (iv)
equitable principles of general applicability, and (v) the
discretion of any court in which a proceeding for enforceability
may be brought.
4. The forms of Debt Securities included as Exhibits
4(b) and 4(c) to the Registration Statement were established in
accordance with the provisions of Section 202(iii) of the
Indenture.
5. The form of Debt Warrant Agreement included as
Exhibit 4(e) to the Registration Statement (the "Debt Warrant
Agreement") has been duly authorized and, assuming valid
execution and delivery by the Company and due authorization,
valid execution, and delivery by the Warrant Agent, will be a
valid and binding obligation of the Company, enforceable against
the Company in accordance with its terms, except as limited by
(i) the laws of bankruptcy, insolvency, reorganization,
fraudulent conveyance, moratorium, or similar laws affecting
creditors' rights generally, (ii) any other applicable federal or
state law, (iii) equitable [Name of Bank]
_____________, 199
Page 3
principles of general applicability, and (iv) the discretion of
any court in which a proceeding for enforceability may be
brought.
6. The form of Debt Warrant Certificate included as
Exhibit 4(f) to the Registration Statement complies with the
provisions of Section 1.02 of the Debt Warrant Agreement.
7. The Debt Securities and Debt Warrants have been
duly authorized and, when issued by the Company and (i)
authenticated by the Trustee in accordance with the applicable
provisions of the Indenture (with respect to Debt Securities) or
(ii) countersigned by the Warrant Agent in accordance with the
applicable provisions of the Debt Warrant Agreement and (iii)
delivered to and duly paid for by the purchasers thereof in
accordance with the applicable provisions of the Prospectus, any
applicable Supplement, and the Distribution Agreement, will be
valid and binding obligations of the Company, enforceable against
the Company in accordance with their respective terms, except as
limited by (a) the laws of bankruptcy, insolvency,
reorganization, fraudulent conveyance, moratorium, or similar
laws affecting creditors' rights generally, (b) any other
applicable federal or state law, (c) rights of acceleration in
accordance with the terms of the Indenture (with respect to Debt
Securities), (d) equitable principles of general applicability,
and (e) the discretion of any court in which a proceeding for
enforceability may be brought.
8. The execution and delivery of and performance by
the Company of its obligations under the Distribution Agreement,
the Indenture, the Debt Warrant Agreement, the Debt Securities,
and the Debt Warrants will not contravene any provision of the
Restated Charter or By-Laws of the Company, or of any agreement
or other instrument binding upon the Company or any of its
subsidiaries that is material to the Company and its subsidiaries
taken as a whole, or, to my knowledge after due inquiry, of any
judgment, order, or decree of any governmental body, agency, or
court having jurisdiction over the Company or any of its
subsidiaries. No consent, approval, authorization, or order of
or qualification with any governmental body or agency is required
for the performance by the Company of its obligations under the
Distribution Agreement, the Indenture, the Debt Warrant
Agreement, the Debt Securities, or the Debt Warrants, except as
may be required by the Blue Sky laws or other securities laws of
the various states in which the Debt Securities and Warrants may
be offered and sold.
[Name of Bank]
_____________, 199
Page 4
9. To the extent that each of the statements
described below constitutes a summary of the legal matters,
documents, or proceedings referred to therein, such statements
fairly present the information called for with respect thereto
and fairly summarize the matters referred to therein:
(i) statements in the Prospectus under
the captions "Description of Debt Securities",
"Description of Warrants--Debt Warrants", and
"Plan of Distribution";
(ii) statements in the Registration
Statement under the caption "Item
15--Indemnification of Directors and Officers";
(iii) statements in the Company's
annual report on Form 10-K for the fiscal year
ended December 31, 1994 under the caption "Item
3--Legal Proceedings"; and
(iv) statements in Part II of the
Company's quarterly reports on Form 10-Q for the
twelve weeks ended March 25, 1995, the
twelve and twenty-four weeks ended June 17,
1995 and the twelve and thirty-six weeks
ended September 9, 1995, respectively, under the
caption "Item 1--Legal Proceedings".
10. To my knowledge after due inquiry, there is no
legal or governmental proceeding pending or threatened, no
statute or regulation, and no agreement, instrument, or other
document to which, in any case, the Company or any of its
subsidiaries is a party, or by which, in any case, any of the
properties of the Company or its subsidiaries is bound, that is
required to be described in the Registration Statement, the
Prospectus, or any applicable Pricing Supplement or Prospectus
Supplement, or that is required to be filed as an exhibit to the
Registration Statement, that is not so described or filed.
11. Based solely upon my participation in the
preparation of the Registration Statement and the documents
included or incorporated by reference therein, and without
independent check or verification I am (i) of the opinion that
each document incorporated by reference in the Prospectus (except
for financial statements and schedules, as to which I express no
opinion), at the time it was filed with the Commission, complied
as to form and in all material respects with the Securities
Exchange Act of 1934, as amended, and with the rules and
regulations of the Commission thereunder, (ii) of the opinion
that the Registration Statement (except for the financial
statements and schedules included or incorporated by reference
therein and except for that part of the Registration Statement
that constitutes the Statement of Eligibility and Qualification
of the Trustee (the "Form T-1"), as to which I express no
opinion), at the time it became effective, complied as to form
and in all material respects with the Securities Act of 1933, as
amended, and with the rules and regulations of the Commission
thereunder, and (ii) of
[Name of Bank]
_____________, 199
Page 5
the belief that each part of the Registration Statement (except
for financial statements and
schedules included or incorporated by reference therein and
except for that part of the Registration Statement that
constitutes the Form T-1, as to which I express no belief), did
not, at the time the Registration Statement became effective,
contain any untrue statement of a material fact or omit to state
a material fact required to be stated therein or necessary to
make the statements therein, in light of the circumstances under
which they were made, not misleading.
The opinions and belief expressed in paragraph 7 above
(except as to due authorization of the Debt Securities and Debt
Warrants), in paragraph 9 above as to the statements in the
Prospectus under the captions "Description of Debt Securities",
"Description of Warrants--Debt Warrants", and "Plan of
Distribution", and in paragraph 11 above do not, in any case,
address any provision of the Commodity Exchange Act, as amended,
or the rules, regulations, or interpretations of the Commodity
Futures Trading Commission, as may be applicable to any Debt
Securities whose principal and/or interest payments will be
determined by reference to one or more currency exchange rates,
commodity prices, equity indices, or other variable factors, or
as may be applicable to any Debt Warrants relating to any such
Debt Securities. None of the opinions and beliefs expressed
herein address, or should in any way be deemed to apply to, Shelf
Warrants or any warrant agreement relating to any one or more
series of Shelf Warrants.
The opinions expressed above do not address, and should
in no way be deemed to address, compliance with any laws other
than the laws of the State of New York, the corporation laws of
the State of North Carolina, and the federal laws of the United
States of America.
This opinion is being furnished to you in accordance
with the provisions of Section 5(a) of the Distribution Agreement
and is solely for the benefit of, and may be relied upon solely
by, you and your counsel. This opinion is not intended for, and
may not be relied upon by, any other person or entity without my
prior written consent.
Very truly yours,
ANNEX B
[FORM OF OPINION OF CAHILL GORDON & REINDEL]
, 199
(212) 701-3000
To the Bank Named in the
Attached Distribution Agreement
Gentlemen:
This opinion is being furnished to you (the "Bank")
pursuant to Section 5(b) of the Distribution Agreement dated as
of ___________________, 199_ (the "Distribution Agreement";
capitalized terms used and not otherwise defined herein shall
have the meanings ascribed to such terms in the Distribution
Agreement) between the Bank and PepsiCo, Inc. (the "Company")
relating to the proposed issuance and sale from time to time by
the Company of up to $4,062,000,000 aggregate principal amount of
the Company's debt securities (the "Debt Securities") and
warrants to purchase debt securities (the "Debt Warrants" and,
together with the Debt Securities, the "Securities"), to be
issued under the Indenture dated as of December 14, 1994 (the
"Indenture"), between the Company and The Chase Manhattan Bank
(National Association), as Trustee (the "Trustee") or the Debt
Warrant Agreement to be entered into by the Company and one or
more agents (each a "Warrant Agent") in substantially the form
filed as an exhibit to the Registration Statement (the "Debt
Warrant Agreement"). A registration statement on Form S-3 (File
No. 33-___________) (such registration statement, including all
documents filed as part thereof or incorporated by reference
therein, is herein called the "Registration Statement"),
including a prospectus (such prospectus, including the documents
incorporated therein by reference, is herein called the
"Prospectus"), relating to the Securities was filed by the
Company with the Securities and Exchange Commission (the
"Commission") on _________________, 1995. The Registration
Statement was declared effective by the Commission on
_________________, 1995.
We advise you that in our opinion:
1. each of the Distribution Agreement and the Debt Warrant
Agreement, when duly authorized, executed and delivered by the
Company (assuming the due authorization, valid execution and
delivery thereof by the other parties thereto) will be a valid
and binding agreement of the Company, enforceable against the
Company in accordance with its terms except as the
enforceability thereof may be limited by the laws of bankruptcy,
insolvency, reorganization, fraudulent conveyance, moratorium or
other similar laws now or hereafter in effect relating to
creditors' rights generally, by any other federal or state laws
or by general principles of equity or the discretion of the court
before which any proceeding therefor may be brought;
2. the Indenture has been duly qualified under the Trust
Indenture Act of 1939, as amended, and has been duly authorized,
executed and delivered by the Company and (assuming due
authorization, valid execution and delivery thereof by the
Trustee) is a valid and binding agreement of the Company,
enforceable in accordance with its terms except as the
enforceability thereof may be limited by the laws of bankruptcy,
insolvency, reorganization, fraudulent conveyance, moratorium or
other similar laws now ore hereafter in effect relating to
creditors' rights generally, by any other federal or state laws,
rights of acceleration, or by general principles of equity or the
discretion of the court before which any proceeding therefor may
be brought;
3. the Securities have been duly authorized and when
issued and delivered by the Company and authenticated by the
Trustee or the Warrant Agent, as the case may be, in accordance
with the provisions of the Indenture or the Debt Warrant
Agreement, as the case may, and duly paid for by the purchasers
thereof, will be entitled to the benefits of the Indenture or the
Debt Warrant Agreement, as the case may be, and will be valid and
binding obligations of the Company, enforceable in accordance
with their respective terms except as the enforceability thereof
may be limited by the laws of bankruptcy, insolvency,
reorganization, fraudulent conveyance, moratorium or other
similar laws now or hereafter in effect relating to creditors'
rights generally, by any other federal or state laws, rights of
acceleration, or by general principles of equity or the
discretion of the court before which any proceeding may be
brought;
4. The statements in the Prospectus under the captions
"Description of Debt Securities", "Description of Warrants --
Debt Warrants" and "Plan of Distribution" in each case insofar as
such statements constitute a summary of the legal matters,
documents or proceedings referred to therein, fairly present the
information called for with respect to such legal matters,
documents and proceedings and fairly summarize the matters
referred to therein;
5. the Registration Statement has become effective under
the Securities Act of 1933, as amended (the "Act") and no
proceedings for a stop order are pending or, to the best of our
knowledge, threatened;
6. except for financial statements, schedules and other
financial or statistical data and the Statement of Eligibility
and Qualification on Form T-1 of the Trustee, as to which we have
not been requested to, and do not express any opinion, the
Registration Statement and Prospectus comply as to form in all
material respects with the requirements of the Act and all
applicable rules and regulations thereunder.
We have participated in conferences with officers and other
representatives of the Company, counsel for the Company,
representatives of the Company's Accountant and the Bank's
representatives at which the contents of the Registration
Statement and the Prospectus and related matters were discussed
and, although we are not passing upon and do not assume any
responsibility for the accuracy, completeness or fairness of any
of the statements contained in the Registration Statement and the
Prospectus (except to the extent stated in paragraph 4 above), on
the basis of the foregoing, relying as to materiality to a large
extent upon the opinions of officers and other representatives of
the Company, no facts have come to our attention which lead us to
believe that (A) the Registration Statement at the time such
Registration Statement became effective contained an untrue
statement of a material fact or omitted to state a material fact
required to be stated therein or necessary to make the statements
therein not misleading or (B) the Prospectus, as of its date,
contained an untrue statement of a material fact required to be
stated therein or necessary to make the statements therein, in
light of the circumstances under which they were made, not
misleading (it being understood that we have not been requested
to and do not express any comment on (i) financial statements,
related schedules and other financial and statistical data, or
(ii) the Statement to Eligibility and Qualification on Form T-1
of the Trustee).
The opinion in paragraph (3) above (except as to due
authorization of the Securities), the opinions in paragraph (4)
above as to the statements in the Prospectus under the captions
"Description of Debt Securities" and "Description of Debt
Warrants" and the opinion and belief in paragraph (6) and clause
(B) above do not address any application of the Commodity
Exchange Act, as amended (or amending legislation now pending
before Congress), or the rules, regulations orders or
interpretations of the Commodity Futures Trading Commission to
Securities the payments of principal or interest on which will be
determined by reference to one or more currency exchange rates,
commodity prices, equity indices or other factors. In addition,
for the purpose of the opinions in paragraphs (3) and (4) above,
we have assumed that (a) the Securities will conform both in form
and with the requirements set forth in the Indenture or the Debt
Warrant Agreement, as the case may be, and (b) none of the terms
of the Securities not contained in the forms examined by us will
violate any applicable law or be unenforceable. The opinions in
paragraph (4) above are based solely on our participation in the
preparation of the Registration Statement and Prospectus and any
amendments or supplements thereto (but not including documents
incorporated therein by reference) and are without independent
check or verification except as specified. In connection with
our opinion in paragraph (3) above, we note that, as of the date
of this opinion, a judgment for money in any action based upon an
obligation denominated in a currency other than currency of the
United States, a federal or state court in New York shall render
or enter a judgment or decree in the foreign currency of the
underlying obligation. Such judgment or decree shall be
converted into currency of the United States at the rate of
exchange prevailing on the date of entry of the judgment or
decree.
Very truly yours,
ANNEX C
_________________, 199
[To the Bank Named on the Attached Schedule A]
Dear Sirs:
I am Vice President, Taxes of PepsiCo, Inc., a corporation
organized under the laws of the State of North Carolina (the
"Company"). I have acted as tax counsel for the Company in
connection with the registration of $4,587,000,000 in aggregate
offering price of the Company's Debt Securities and Warrants
(collectively, the "Securities") that may, from time to time, be
issued by the Company.
You have requested my opinion pursuant to Section 5(c) of the
Distribution Agreement to be executed and delivered by you and
the Company in substantially the form attached hereto as Exhibit
A (the "Distribution Agreement"). In connection with such
opinion, I have examined the Registration Statement on Form S-3,
File No. 33-_________________ (the "Registration Statement"),
filed by the Company with the Securities and Exchange Commission
(the "Commission") with respect to the Securities, including the
form of prospectus contained therein (the "Prospectus"). All
capitalized terms used herein and not otherwise defined have the
meanings ascribed to such terms by the Prospectus.
On the basis of my review of the Registration Statement, it is my
opinion that if the offering of the Securities is conducted in
the manner described in the Prospectus, and if the terms of any
series of Securities are as contemplated by the Prospectus, then
the statements contained in the section of the Prospectus
entitled "United States Tax Considerations" accurately describe
certain United States federal income tax consequences of
ownership and disposition of the Securities, except with respect
to Debt Warrants and Shelf Warrants, which consequences will be
discussed in the applicable Prospectus Supplement to be filed
hereafter.
I do not purport to be expert in, or to express any opinion
concerning, the laws of any jurisdiction other than the federal
laws of the United States of America.
This opinion is being furnished to you in accordance with the
provisions of Section 5(c) of the Distribution Agreement and is
solely for the benefit of, and may be relied upon solely by, you
and your counsel. This opinion is not intended for, and may not
be relied upon by, any other person or entity without my prior
written consent.
Very truly yours,
SECRETARY'S CERTIFICATE
I, Edward V. Lahey, Jr., the duly qualified, elected,
and acting Secretary of PepsiCo, Inc., a company organized
under the laws of the State of North Carolina (the
"Company"), hereby certify as follows:
1. Attached hereto as Exhibit A is a true and complete
copy of the Restated Articles of Incorporation of the
Company, certified as of _________________ by the Secretary
of State of the State of North Carolina. No further
amendments or supplements to the Restated Articles of
Incorporation have been proposed to or approved by the Board
of Directors or shareholders of the Company.
2. Attached hereto as Exhibit B is a true, correct,
and complete copy of the By-Laws of the Company. Such
By-Laws have been in effect at all times since January 22,
1987.
3. Attached hereto as Exhibits C-1 and C-2 are copies
of resolutions adopted by the Board of Directors of the
Company on _______________-_ relating to the issuance of
short-term and long-term debt securities, which resolutions
are in effect as of the date hereof.
4. The documents described below have been duly
authorized, executed (except as otherwise indicated below),
and filed by the Company with the Securities and Exchange
Commission:
(a) the Registration Statement on Form S-3, File No.
33-_________________, filed by the Company on
_________________, 1995 (the "Registration Statement"),
relating to $_________________ in aggregate offering price
of the Company's Debt Securities and Warrants (as such terms
are defined in the Registration Statement), a copy of which
is attached hereto as Exhibit D;
(b) the Indenture, dated as of December 14, 1994,
between the Company and The Chase Manhattan Bank (National
Association), as trustee, which is incorporated by reference
from Exhibit 4(a) to PepsiCo's Registration Statement on
Form S-3 (Registration No. 57181);
(c) the form of Debt Warrant Agreement that may be
entered into by the Company and The Chase Manhattan Bank
(National Association), as warrant agent, a copy of which is
incorporated by reference from Exhibit 4(e) to PepsiCo's
Registration Statement on Form S-3 (Registration No. 33-
57181); and
(d) the form of Distribution Agreement that may be
entered into by the Company and one or more agents and
underwriters in connection with the offer and sale of the
Debt Securities and Warrants, a copy of which is attached as
Exhibit 1 to the Registration Statement.
5. The Debt Securities may be issued from time to
time, in substantially the forms attached hereto as Exhibit
E (with respect to Fixed Rate Debt Securities) and Exhibit F
(with respect to Floating Rate Debt Securities), on such
terms as shall be determined by any two of the following
officers of the Company: (i) the Chairman of the Board and
Chief Executive Officer (the "Chairman"), (ii) the Executive
Vice President and Chief Financial Officer (the "Executive
Vice President"), (iii) the Senior Vice President and
Treasurer (the "Treasurer"), and (iv) such other officer of
the Company as may be designated by the Chairman, the
Executive Vice President, or the Treasurer pursuant to the
Delegation of Authority attached hereto as Exhibit G (any
two of the Chairman, the Executive Vice President, the
Treasurer, and such other officer hereinafter referred to as
the "Authorized Persons"), provided, that such terms will in
no event violate or conflict with the terms and provisions
set forth in the Indenture or the Prospectus or (to the
extent that the terms of an applicable Pricing Supplement
supersede the terms and provisions of the Prospectus) the
applicable Pricing Supplement.
6. The Debt Warrants may be issued from time to time,
alone or together with one or more series of Debt
Securities, in substantially the form attached hereto as
Exhibit H, on such terms as shall be determined by any two
Authorized Persons, provide- that such terms will in no
event violate or conflict with the terms and provisions of
the Debt Warrant Agreement or the Prospectus or (to the
extent that the terms of an applicable Prospectus Supplement
supersede the terms and provisions of the Prospectus) the
applicable Prospectus Supplement.
7. The persons named below are duly qualified,
elected, and acting officers of the Company, have been duly
elected or appointed to the offices set forth opposite their
respective names, have held such offices at all times
relevant to the preparation of the Registration Statement,
and hold such offices as of the date hereof. The signatures
set forth below opposite the names of such persons are the
genuine signatures of such persons.
Randall C. Barnes Senior Vice
President and __________________
Treasurer
D. Wayne Calloway Chairman of the
Board and Chief
Executive _______________
Officer
Douglas Cram Vice President
and Assistant
General Counsel _______________
Robert G. Dettmer Executive Vice
President and
Chief Financial _______________
Officer
Lawrence F. Dickie Vice President
and Associate _______________
General Counsel
Karen L. Halby Vice President
and Tax Counsel _______________
Matthew M. McKenna Vice President,
Taxes _______________
Sandra Wijnberg Vice President,
Corporate
Finance and _______________
Assistant
Treasurer
IN WITNESS WHEREOF, I have hereunto set my hand and
affixed the seal of the Company as of the day of
______________, 1995.
________________________
Edward V. Lahey, Jr.
Secretary
I, Douglas Cram, a Vice President of the Company,
hereby certify that Edward V. Lahey, Jr. is the duly
qualified, elected, and acting Senior Vice President,
General Counsel, and Secretary of the Company, has been duly
elected or appointed to such offices, has held such offices
at all times relevant to the preparation of the Registration
Statement, holds such offices as of the date hereof, and
that the signature set forth below is his genuine signature.
Edward V. Lahey, Jr. Senior Vice
President,
General Counsel __________________
and Secretary
IN WITNESS WHEREOF, I have hereunto set my hand as of
the ___ day of ______________, 1995.
________________________
Douglas Cram
Vice President
ANNEX E
OFFICERS' CERTIFICATE
Robert G. Dettmer, Executive Vice President and Chief
Financial Officer, and Randall C. Barnes, Senior Vice President
and Treasurer, of PepsiCo, Inc., a corporation organized under
the laws of the State of North Carolina (the "Company"), each
hereby certifies as follows:
1. I have examined the Company's Registration Statement on
Form S-3, File No. 33-_________________ (the "Registration
Statement"), as filed by the Company with the Securities and
Exchange Commission (the "Commission") on _________________,
including all of the documents filed as exhibits thereto.
Capitalized terms used herein and not otherwise defined have the
meanings ascribed to such terms by the prospectus filed as part
of the Registration Statement (such prospectus hereinafter the
"Prospectus").
2. To the best of my knowledge, no proceedings for the
merger, consolidation, liquidation, or dissolution of the Company
or the sale of all or substantially all of its assets are pending
or contemplated.
3. To the best of my knowledge, there has not been any
material adverse change in the financial condition, earnings,
business, or operations of the Company and its subsidiaries,
taken as a whole, from that described in the Registration
Statement.
4. To my knowledge, after due inquiry, I am of the belief
that the Registration Statement (i) contains no untrue statement
of a material fact regarding the Company or any of its
consolidated subsidiaries and (ii) does not omit to state any
material fact necessary to make any such statement, in light of
the circumstances under which it was made, not misleading.
IN WITNESS WHEREOF, I have hereunto set my hand as of the
___ of ______________, 1995.
______________________
Name:
Title:
______________________
Name:
Title:
ANNEX F
[Letterhead of Bank]
Gentlemen:
In connection with the placement of any debt securities or
warrants to purchase debt securities (the "Securities") to be
issued by PepsiCo, Inc., [Name of financial intermediary(ies)],
as principal or agent, will be reviewing certain information
relating to PepsiCo, Inc. that will be included (or incorporated
by reference) in the Registration Statement on Form S-3 (File No.
33-_________________) of PepsiCo, Inc. pursuant to which the
Securities have been registered (the "Registration Statement"),
which may be delivered to investors and utilized by them as a
basis for their investment decision. This review process,
applied to the information relating to PepsiCo, Inc., is
substantially consistent with the due diligence review process
that an underwriter would perform in connection with this
placement of securities. We are knowledgeable with respect to
the due diligence review process that an underwriter would
perform in connection with a placement of securities registered
pursuant to the Securities Act of 1933. We hereby request that
you deliver to us a "comfort" letter in substantially the same
form as the "draft" comfort letter delivered to PepsiCo, Inc. for
the immediately preceding fiscal quarter of PepsiCo, Inc.
concerning the financial statements of PepsiCo, Inc. and certain
statistical and other data included in the Registration
Statement.
Very truly yours,
[Name of financial
intermediary]
ANNEX G
[Letterhead of Cahill Gordon & Reindel]
Gentlemen:
In connection with the placement of any debt securities or
warrants to purchase debt securities (the "Securities") to be
issued by PepsiCo, Inc., [Name of financial intermediary(ies)],
as principal or agent, will be reviewing certain information
relating to PepsiCo, Inc. that will be included (or incorporated
by reference) in the Registration Statement on Form S-3 (File No.
33-_________________) of PepsiCo, Inc. pursuant to which the
Securities have been registered (the "Registration Statement"),
which may be delivered to investors and utilized by them as a
basis for their investment decision. In our opinion, [Name of
financial intermediary(ies)] has a statutory due diligence
defense under Section 11 of the Securities Act of 1933 (the
"Act"). We are knowledgeable with respect to the due diligence
review process that an underwriter would perform in connection
with a placement of securities registered pursuant to the Act.
We hereby request that you deliver to [Name of financial
intermediary(ies)] a "comfort" letter in substantially the same
form as the "draft" comfort letter delivered to PepsiCo, Inc. for
the immediately preceding fiscal quarter of PepsiCo, Inc.
concerning the financial statements of PepsiCo, Inc. and certain
statistical and other data included in the Registration
Statement.
Very truly yours,
Cahill Gordon & Reindel
Exhibit 4(c)
Fixed Rate Note
REGISTERED REGISTERED
No. $
CUSIP:
Unless this certificate is presented by an authorized
representative of The Depository Trust Company (55 Water Street,
New York, New York) to the issuer or its agent for registration
of transfer or exchange or for payment, then this certificate
shall be registered in the name of Cede & Co. (or such other name
as may be requested by an authorized representative of The
Depository Trust Company), and ANY TRANSFER, PLEDGE, OR OTHER USE
HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL.
Unless and until this certificate is exchanged in whole or
in part for Notes in certificated form, this certificate may not
be transferred except as a whole by The Depository Trust Company
to a nominee thereof or by a nominee thereof to The Depository
Trust Company or another nominee of The Depository Trust Company
or by The Depository Trust Company or any nominee to a successor
depository or nominee of such successor depository.
PEPSICO, INC.
FIXED RATE NOTE
ISSUE PRICE:
INTEREST RATE: MATURITY DATE:
INTEREST ACCRUES FROM: INTEREST PAYMENT DATES:
REDEEMABLE: SPECIFIED CURRENCY:
Yes ( ) No ()
INITIAL REDEMPTION DATE: APPLICABILITY OF MODIFIED
PAYMENT UPON ACCELERATION:
INITIAL REDEMPTION
PERCENTAGE: If yes, state Issue Price:
ANNUAL REDEMPTION
PERCENTAGE REDUCTION: SINKING FUND:
OPTION TO ELECT REPAYMENT: APPLICABILITY OF ANNUAL
INTEREST PAYMENTS:
Yes ( ) No ( )
OPTIONAL REPAYMENT
DATE(S):
OPTIONAL REPAYMENT
PRICE(S):
PepsiCo, Inc., a North Carolina corporation (together with
its successors and assigns, the "Issuer"), for value received,
hereby promises to pay to Cede & Co., or the registered assignees
thereof, the principal sum of ______________ dollars on the
Scheduled Maturity Date specified above (except to the extent
redeemed or repaid prior to such Scheduled Maturity Date) and to
pay interest thereon at the Interest Rate per annum specified
above from the Interest Accrual Date specified above until the
principal hereof is paid or duly made available for payment
(except as provided below) on the Scheduled Maturity Date, such
interest payments to commence on the Interest Payment Date next
succeeding the Interest Accrual Date specified above, and on the
Scheduled Maturity Date (or any redemption or repayment date);
provided, however, that if the Interest Accrual Date occurs
between a Record Date, as defined below, and the next succeeding
Interest Payment Date, interest payments will commence on the
second Interest Payment Date succeeding the Interest Accrual Date
to the registered holder of this Note on the Record Date with
respect to such second Interest Payment Date; and provided,
further, that if this Note is subject to "Annual Interest
Payments", interest payments shall be made annually in arrears.
Interest on this Note will accrue from the most recent
Interest Payment Date to which interest has been paid or duly
provided for, or, if no interest has been paid or duly provided
for, from the Interest Accrual Date, until the principal hereof
has been paid or duly made available for payment (except as
provided below). The interest so payable and punctually paid or
duly provided for on any Interest Payment Date will, subject to
certain exceptions described herein, be paid to the person in
whose name this Note (or one or more predecessor Notes) is
registered at the close of business on the date 15 calendar days
prior to an Interest Payment Date (whether or not a New York
Business Day) (each such date a "Record Date"); provided,
however, that interest payable on the Maturity Date (or any
redemption or repayment date) will be payable to the person in
whose name this Note is registered on such date.
Payment of the principal and any premium and interest due on
this Note at the Scheduled Maturity Date (or any redemption or
repayment date) will be made in immediately available funds upon
surrender of this Note at the office or agency of the Trustee, as
defined on the reverse hereof, maintained for that purpose in The
City of New York, or at such other paying agency as the Issuer
may determine. Payment of the principal of and premium, if any,
and interest on this Note will be made in the currency indicated
above; provided, however, that U.S. dollar payments of interest,
other than interest due at maturity or any date of redemption or
repayment, will be made by U.S. dollar check mailed to the
address of the person entitled thereto as such address shall
appear in the Security Register on the applicable Record Date. A
Holder of U.S. $10,000,000 or more in aggregate principal amount
of Notes having the same Interest Payment Date will be entitled
to receive payments of interest, other than interest due at
maturity or any date of redemption or repayment, by wire transfer
of immediately available funds if appropriate wire transfer
instructions have been received by the Trustee in writing not
less than 15 calendar days prior to the applicable Interest
Payment Date. If this Note is denominated in a Specified
currency, payments of interest hereon will be made by wire
transfer of immediately available funds to an account maintained
by the Holder hereof with a bank located outside the United
States, if appropriate wire transfer instructions have been
received by the Trustee in writing not less than 15 calendar days
prior to the applicable Interest Payment Date. If such wire
transfer instructions are not so received, such interest payments
will be made by check payable in such Specified Currency mailed
to the address of the person entitled thereto as such address
shall appear in the Security Register on the applicable Record
Date.
Reference is hereby made to the further provisions of this
Note set forth after the caption reading "Further Provisions of
Note", which further provisions shall for all purposes have the
same effect as if set forth at this place. In the event of an
inconsistency between any provision set forth above and any
provision set forth in "Further Provisions of Note", the
description above shall govern.
Unless the certificate of authentication hereon has been
executed by the Trustee referred to on the reverse hereof by
manual signature, this Note shall not be entitled to any benefit
under the Indenture, as defined in Further Provisions of Note, or
be valid or obligatory for any purpose.
IN WITNESS WHEREOF, the Issuer has caused this Note to be
duly executed
under its corporate seal.
DATED: PEPSICO, INC.
By:
_
Authorized Officer
By:
_
Authorized Officer
TRUSTEE'S CERTIFICATE
OF AUTHENTICATION
This is one of the Notes referred
to in the within-mentioned
Indenture.
THE CHASE MANHATTAN BANK (NATIONAL ASSOCIATION),
as Trustee
By:
_
Authorized Officer
[FURTHER PROVISIONS OF NOTE]
This Note is one of a duly authorized issue of Notes having
maturities not less than nine months from the date of issue (the
"Notes"). The Notes are issuable under an Indenture, dated as of
December 14, 1994 (herein called the "Indenture"), between the
Issuer and The Chase Manhattan Bank (National Association), as
Trustee (herein called the "Trustee," which term includes any
successor trustee under the Indenture), to which Indenture and
all indentures supplemental thereto reference is hereby made for
a statement of the respective rights, limitations of rights,
duties, and immunities of the Issuer, the Trustee, and Holders of
the Notes, the terms upon which the Notes are, and are to be,
authenticated and delivered, and the definitions of capitalized
terms used herein and not otherwise defined herein. The terms of
individual Notes may vary with respect to interest rates,
interest rate formulas, issue dates, maturity dates, or
otherwise, all as provided in the Indenture. To the extent not
inconsistent herewith, the terms of the Indenture are hereby
incorporated by reference herein.
The Notes will not be subject to any sinking fund and,
unless otherwise provided on the face hereof in accordance with
the provisions of the following two paragraphs, will not be
redeemable or subject to repayment at the option of the holder
prior to maturity.
Unless otherwise indicated on the face of this Note, this
Note may not be redeemed prior to the Scheduled Maturity Date.
If so indicated on the face of this Note, this Note may be
redeemed in whole or in part at the option of the Issuer on or
after the Initial Redemption Date specified on the face hereof on
the terms set forth on the face hereof, together with interest
accrued and unpaid hereon to the date of redemption (except as
provided below). If this Note is subject to "Annual Redemption
Percentage Reduction," the Initial Redemption Percentage
indicated on the face hereof will be reduced on each anniversary
of the Initial Redemption Date by the Annual Redemption
Percentage Reduction specified on the face hereof until the
redemption price of this Note is 100% of the principal amount
hereof, together with interest accrued and unpaid hereon to the
date of redemption (except as provided below). Notice of
redemption shall be mailed to the registered Holders of the Notes
designated for redemption at their addresses as the same shall
appear on the Security Register not less than 30 nor more than 60
days prior to the date fixed for redemption, subject to all the
conditions and provisions of the Indenture. In the event of
redemption of this Note in part only, a new Note or Notes for the
amount of the unredeemed portion hereof shall be issued in the
name of the holder hereof upon the cancellation hereof.
Unless otherwise indicated on the face of this Note, this
Note shall not be subject to repayment at the option of the
holder prior to the Maturity Date. If so indicated on the face of
this Note, this Note will be subject to repayment at the option
of the holder on the Optional Repayment Date or Dates specified
on the face hereof on the terms set forth herein. On any
Optional Repayment Date, this Note will be repayable in whole or
in part in increments of ________ or, if this Note is denominated
in ____________, in increments of ___ units of such Specified
Currency (provided that any remaining principal amount hereof
shall not be less than the minimum authorized denomination
hereof) at the option of the holder hereof at a price equal to
100% of the principal amount to be repaid, together with interest
accrued and unpaid hereon to the date of repayment (except as
provided below). For this Note to be repaid at the option of the
holder hereof, the Trustee must receive at its Corporate Trust
Office in the Borough of Manhattan, The City of New York, at
least 15 but not more than 30 days prior to the date of
repayment, (i) this Note with the form entitled "Option to Elect
Repayment" below duly completed or (ii) a telegram, telex,
facsimile transmission, or a letter from a member of a national
securities exchange or the National Association of Securities
Dealers, Inc. or a commercial bank or a trust company in the
United States setting forth the name of the Holder of this Note,
the principal amount hereof, the certificate number of this Note
or a description of this Note's tenor and terms, the principal
amount hereof to be repaid, a statement that the option to elect
repayment is being exercised thereby, and a guarantee that this
Note, together with the form entitled "Option to Elect Repayment"
duly completed, will be received by the Trustee not later than
the fifth New York Business Day after the date of such telegram,
telex, facsimile transmission, or letter; provided, that such
telegram, telex, facsimile transmission, or letter shall only be
effective if this Note and form duly completed are received by
the Trustee by such fifth New York Business Day. Exercise of such
repayment option by the holder hereof shall be irrevocable. In
the event of repayment of this Note in part only, a new Note or
Notes for the amount of the unpaid portion hereof shall be issued
in the name of the holder hereof upon the cancellation hereof.
Interest payments on this Note will include interest accrued
to but excluding the Interest Payment Dates or the Maturity Date
(or any earlier redemption or repayment date), as the case may
be. Interest payments for this Note will be computed and paid on
the basis of a 360-day year of twelve 30-day months. If any
Interest Payment Date or Principal Payment Date (including the
Maturity Date) on this Note would fall on a day that is not a New
York Business Day, the payment of interest and/or principal (and
premium, if any) that would otherwise be payable on such date
will be postponed to the next succeeding New York Business Day,
and no additional interest on such payment will accrue as a
result of such postponement.
In the case where the Interest Payment Date or the Scheduled
Maturity Date (or any redemption or repayment date) does not fall
on a New York Business Day, payment of interest, premium, if any,
or principal otherwise payable on such date need not be made on
such date, but may be made on the next succeeding New York
Business Day with the same force and effect as if made on such
Interest Payment Date or on the Scheduled Maturity Date (or any
redemption or repayment date), and no interest shall accrue for
the period from and after such Interest Payment Date or the
Scheduled Maturity Date (or any redemption or repayment date) to
such next succeeding New York Business Day.
This Note and all the obligations of the Issuer hereunder
are direct, unsecured obligations of the Issuer and rank without
preference or priority among themselves and pari passu with all
other existing and future unsecured and unsubordinated
indebtedness of the Issuer, subject to certain statutory
exceptions in the event of liquidation upon insolvency.
This Note, and any Note or Notes issued upon transfer or
exchange hereof, is issuable only in fully registered form,
without coupons, and, if denominated in U.S. dollars, is issuable
only in denominations of U.S. $ ______ and any integral multiple
of U.S. $1,000 in excess thereof. If this Note is denominated in
a Specified Currency, then, unless a higher minimum denomination
is required by applicable law, it is issuable only in
denominations of the equivalent of U.S. $ ________ (rounded down
to an integral multiple of 1,000 units of such Specified
Currency), or any amount in excess thereof which is an integral
multiple of 1,000 units of such Specified Currency, as determined
by reference to the noon dollar buying rate in New York City for
cable transfers of such Specified Currency published by the
Federal Reserve Bank of New York (the "Market Exchange Rate") on
the New York Business Day immediately preceding the date of
issuance.
Except as set forth below, if the principal of, premium, if
any, or interest on, this Note is payable in a Specified Currency
and such Specified Currency is not available to the Issuer for
making payments hereon due to the imposition of exchange controls
or other circumstances beyond the control of the Issuer or is no
longer used by the government of the country issuing such
currency or for the settlement of transactions by public
institutions within the international banking community, then the
Issuer will be entitled to satisfy its obligations to the Holder
of this Note by making such payments in U.S. dollars on the basis
of the noon buying rate in the City of New York for cable
transfers of such Specified Currency published by the Federal
Reserve Bank of New York (the "Market Exchange Rate") on the
second New York Business Day prior to the applicable payment date
or, if the Market Exchange Rate in effect on such date cannot by
readily determined, then on the basis of the highest bid
quotation (assuming European-style quotation -- i.e., Specified
Currency per U.S. dollar) on the second New York Business Day
prior to the applicable payment date from three recognized
foreign exchange dealers in the City of New York (one of which
may be the Company) for the purchase of the aggregate amount of
the Specified Currency payable on such payment date, for
settlement on such payment date, and at which the applicable
dealer timely commits to execute a contract. Any payment made
under such circumstances in U.S. dollars where the required
payment is in a Specified Currency other than U.S. dollars will
not constitute an Event of Default.
If payments of principal, premium, if any, or interest, if
any, with respect to this Note are required to be made in a
composite currency and the composition of such composite currency
is at any time altered (whether by the addition, elimination,
combination, or subdivision of one or more components, by
adjustment of the ratio of any component to the composite unit,
or by any combination of such events), then the company will be
entitled to satisfy its payment obligations hereunder by making
such payments in such composite currency as altered.
All determinations referred to above made by the Issuer or
its agent shall be at its sole discretion and shall, in the
absence of manifest error, be conclusive to the extent permitted
by law for all purposes and binding on the Holder of this Note.
The Indenture permits, with certain exceptions as therein
provided, the amendment thereof and the modification of the
rights and obligations of the Issuer and the rights of the
Holders of the Notes of each series under the Indenture at any
time by the Company and the Trustee with the consent of the
Holders of a majority in aggregate principal amount of the Notes
at the time Outstanding of each series to be affected by such
amendment or modification. The Indenture also contains provisions
permitting the Holders of a majority in aggregate principal
amount of the Notes of each series at the time Outstanding, on
behalf of the Holders of all Notes of such series, to waive
compliance by the Issuer with certain provisions of the Indenture
and certain past defaults under the Indenture and their
consequences. Any such consent or waiver by the Holder of this
Note shall be conclusive and binding upon such Holder and upon
all future Holders of this Note and of any Note issued upon the
registration of transfer hereof or in exchange herefor or in lieu
hereof, whether or not notation of such consent or waiver is made
upon this Note.
The Indenture contains provisions setting forth certain
conditions to the institution of proceedings by Holders of Notes
with respect to the Indenture or for any remedy under the
Indenture.
If an Event of Default with respect to the Notes shall occur
and be continuing, the principal amount hereof may be declared
due and payable in the manner and with the effect provided in the
Indenture.
If the face hereof indicates that this Note is subject to
"Modified Payment upon Acceleration," then (i) if the principal
hereof is declared to be due and payable as referred to in the
preceding paragraph, the amount of principal due and payable with
respect to this Note shall be limited to the aggregate principal
amount hereof multiplied by the sum of the Issue Price specified
on the face hereof (expressed as a percentage of the aggregate
principal amount) plus the original issue discount amortized from
the Original Issue Date to the date of declaration, which
amortization shall be calculated using the "interest method"
(computed in accordance with generally accepted accounting
principles in effect on the date of declaration), (ii) for the
purpose of any vote of Securityholders taken pursuant to the
Indenture prior to the acceleration of payment of this Note, the
principal amount hereof shall equal the amount that would be due
and payable hereon, calculated as set forth in clause (i) above,
if this Note were declared to be due and payable on the date of
any such vote and (iii) for the purpose of any vote of
Securityholders taken pursuant to the Indenture following the
acceleration of payment of this Note, the principal amount hereof
shall equal the amount of principal due and payable with respect
to this Note, calculated as set forth in clause (i) above.
No reference herein to the Indenture and no provision of
this Note or of the Indenture shall alter or impair the
obligation of the Issuer, which is absolute and unconditional, to
pay the principal of and interest on this Note at the times,
place, and rate, and in the coin or currency, herein prescribed.
So long as this Note shall be outstanding, the Issuer will
cause to be maintained an office or agency for the payment of the
principal of and premium, if any, and interest on this Note as
herein provided in the City of New York, and an office or agency
in said City of New York for the registration of transfer or
exchange of the Notes. The Issuer may designate other agencies
for the payment of said principal, premium, if any, and interest
at such place or places (subject to applicable laws and
regulations) as the Issuer may decide. So long as there shall be
such an agency, the Issuer shall keep the Trustee advised of the
names and locations of such agencies, if any are so designated.
As provided in the Indenture and subject to certain
limitations therein set forth, the transfer of this Note is
registrable in the Security Register, upon surrender of this Note
for registration of transfer at the Corporate Trust Office or any
other applicable Place of Payment, duly endorsed, or accompanied
by a written instrument of transfer in form satisfactory to the
Issuer and the Security Registrar duly executed, by the Holder
hereof or his or her attorney duly authorized in writing, and
thereupon one or more new Notes, of authorized denominations and
for the same aggregate principal amount, will be issued to the
designated transferee or transferees.
No service charge shall be made for any such registration or
transfer or exchange, but the Issuer may require payment of a sum
sufficient to cover any tax or other governmental charge payable
in connection therewith.
The Issuer, the Trustee, and any agent of the Issuer or the
Trustee may treat the Person in whose name this Note is
registered as the owner hereof for the purpose of receiving
payments as herein provided and for all other purposes, whether
or not this Note is overdue, and neither the Issuer, the Trustee,
nor any such agent shall be affected by notice to the contrary.
This Note shall for all purposes be governed by, and
construed in accordance with, the laws of the State of New York.
ABBREVIATIONS
The following abbreviations, when used in the inscription on
the face of this instrument, shall be construed as though they
were written out in full according to applicable laws or
regulations:
TEN COM-as tenants in common
TEN ENT-as tenants by the entireties
JT TEN-as joint tenants with right of survivorship
and not as tenants in common
UNIF GIFT MIN ACT
.................Custodian.......................
(Cust) (Minor)
Under Uniform Gifts to Minors Act
.................................................
(State)
Additional abbreviations may also be used though not in the above
list.
_________________
FOR VALUE RECEIVED, the undersigned hereby sell(s),
assign(s) and transfer(s) unto
[PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE]
:
:
- -----------------------------------------------------------------
[PLEASE PRINT OR TYPE NAME AND ADDRESS, INCLUDING ZIP CODE OF
ASSIGNEE]
the within Note and all rights thereunder, hereby irrevocably
constituting and appointing such person attorney to transfer such
note on the books of the Issuer, with full power of substitution
in the premises.
Dated:
NOTE: The signature to this assignment must correspond with
the name as written upon the face of the within Note in every
particular without alteration or enlargement or any change
whatsoever.
OPTION TO ELECT REPAYMENT
The undersigned hereby irrevocably requests and instructs
the Issuer to repay the within Note (or portion thereof specified
below) pursuant to its terms at a price equal to the principal
amount thereof, together with interest to the Optional Repayment
Date, to the undersigned at
_________________________________________________________________
_________________________________________________________________
_________________________________________________________________
(Please print or typewrite name and address of the undersigned)
If less than the entire principal amount of the within Note
is to be repaid, specify the portion thereof which the holder
elects to have repaid: ___________________; and specify the
denomination or denominations (which shall not be less than the
minimum authorized denomination) of the Notes to be issued to the
holder for the portion of the within Note not being repaid (in
the absence of any such specification, one such Note will be
issued for the portion not being repaid):
____________________________.
Dated: ____________________
_______________________________________
The signature on this Option to
Elect Repayment must correspond with the name as written upon the
face of the within instrument in every particular without
alteration or enlargement.
Exhibit 4(d)
Floating Rate Note
REGISTERED REGISTERED
No. $
CUSIP:
Unless this certificate is presented by an authorized
representative of The Depository Trust Company (55 Water Street,
New York, New York) to the issuer or its agent for registration
of transfer or exchange or for payment, then this certificate
shall be registered in the name of Cede & Co. (or such other name
as may be requested by an authorized representative of The
Depository Trust Company), and ANY TRANSFER, PLEDGE OR OTHER USE
HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL
since the registered owner hereof, Cede & Co., has an interest
herein.
Unless and until this certificate is exchanged in whole or
in part for Notes in certificated form, this certificate may not
be transferred except as a whole by The Depository Trust Company
to a nominee thereof or by a nominee thereof to The Depository
Trust Company or another nominee of The Depository Trust Company
or by The Depository Trust Company or any nominee to a successor
depository or nominee of such successor depository.
PEPSICO, INC.
FLOATING RATE NOTE
ISSUE PRICE: ORIGINAL ISSUE DATE: MATURITY DATE:
BASE RATE: SPREAD (PLUS OR SPREAD
MINUS): MULTIPLIER:
INTEREST ACCRUES INTEREST PAYMENT INTEREST RESET
FROM: PERIOD: PERIOD:
INDEX MATURITY: INITIAL INTEREST INITIAL INTEREST
RESET DATE: RATE:
INTEREST PAYMENT INTEREST DETERMIN- INTEREST RESET DATES:
DATES: ATION DATES:
MINIMUM INTEREST MAXIMUM INTEREST SPECIFIED CURRENCY:
RATE: RATE:
REDEEMABLE: OPTION TO ELECT CALCULATION AGENT:
YES ____ NO____ REPAYMENT:
YES____ NO____
INITIAL REDEMP- OPTIONAL REPAYMENT ALTERNATIVE RATE
TION DATE: DATE(S): EVENT SPREAD:
INITIAL REDEMP- OPTIONAL REPAY-
TION PERCENTAGE: MENT PRICE(S):
ANNUAL REDEMP- SINKING FUND: ORIGINAL YIELD TO
TION PERCENTAGE MATURITY:
REDUCTION:
PepsiCo, Inc., a North Carolina corporation (together with
its successors and assigns, the "Issuer"), for value received,
hereby promises to pay to Cede & Co., or the registered assignees
thereof, the principal sum of _______________dollars on the
Scheduled Maturity Date specified above (except to the extent
redeemed or repaid prior to such Scheduled Maturity Date) and to
pay interest thereon, from the Interest Accrual Date specified
above, at a rate per annum equal to the Initial Interest Rate
specified above until the Initial Interest Reset Date specified
above, and thereafter at a rate per annum determined in
accordance with the Formula Rate set forth above, or to the
extent not specified above, as determined in accordance with the
provisions set forth under the Further Provisions of Note hereof
until the principal hereof is paid or duly made available for
payment. The Issuer will pay interest in arrears monthly,
quarterly, semiannually, or annually as specified above on each
Interest Payment Date (as specified above), such interest
payments to commence on the first Interest Payment Date next
succeeding the Interest Accrual Date specified above, and on the
Scheduled Maturity Date (or any redemption or repayment date);
provided, however, that if the Interest Accrual Date occurs
between a Record Date, as defined below, and the next succeeding
Interest Payment Date, interest payments will commence on the
second Interest Payment Date succeeding the Interest Accrual Date
to the registered Holder of this Note on the Record Date with
respect to such second Interest Payment Date; and provided,
further, that if an Interest Payment Date or the Maturity Date or
redemption or repayment date would fall on a day that is not a
Business Day, as defined under the Further Provisions of Note
hereof, such Interest Payment Date, Scheduled Maturity Date or
redemption or repayment date shall be the following day that is a
New York Business Day.
Interest on this Note will accrue from the most recent date
to which interest has been paid or duly provided for, or, if no
interest has been paid or duly provided for, from the Interest
Accrual Date, until the principal hereof has been paid or duly
made available for payment. The interest so payable and
punctually paid or duly provided for on any Interest Payment Date
will, subject to certain exceptions described herein, be paid to
the person in whose name this Note (or one or more predecessor
Notes) is registered at the close of business on the date 15
calendar days prior to an Interest Payment Date (whether or not a
New York Business Day) (each such date a "Record Date");
provided, however, that interest payable on the Scheduled
Maturity Date (or any redemption or repayment date) will be
payable to the person in whose name this Note is registered on
such date.
Payment of the principal and any premium and interest due on
this Note at the Scheduled Maturity Date (or any redemption or
repayment date) will be made in immediately available funds upon
surrender of this Note at the Corporate Trust Office of the
Trustee, as defined on the reverse hereof, maintained for that
purpose in The City of New York, or at such other paying agency
as the Issuer may determine. Payment of the principal of and
premium, if any, and interest on this Note will be made in the
currency indicated above; provided, however, that U.S. dollar
payments of interest, other than interest due at maturity or any
date of redemption or repayment, will be made by U.S. dollar
check mailed to the address of the person entitled thereto as
such address shall appear in the Security Register on the
applicable Record Date. A Holder of U.S. $10,000,000 or more in
aggregate principal amount of Notes having the same Interest
Payment Date will be entitled to receive payments of interest,
other than interest due at maturity or any date of redemption or
repayment, by wire transfer of immediately available funds if
wire transfer instructions have been received by the Trustee in
writing not less than 15 calendar days prior to the applicable
Interest Payment Date. If this Note is denominated in a currency
other than U.S. dollars, payments of Interest hereon will be made
by wire transfer of immediately available funds to an account
maintained by the Holder hereof with a bank located outside the
United States, if appropriate wire transfer instructions have
been received by the Trustee in writing not less than 15 calendar
days prior to the applicable Interest Payment Date. If such wire
transfer instructions are not so received, such interest payments
will be made by check payable in such Specified Currency marked
to the address of the person entitled thereto as such address
shall appear in the Security Register on the applicable Record
Date.
Reference is hereby made to the further provisions of this
Note set forth after the caption reading "Further Provisions of
Note", which further provisions shall for all purposes have the
same effect as if set forth at this place. In the event of an
inconsistency between any provision set forth above and any
provision set forth in "Further Provisions of Note", the
description above shall govern.
Unless the certificate of authentication hereon has been
executed by the Trustee referred to under the Further Provisions
of Note hereof by manual signature, this Note shall not be
entitled to any benefit under the Indenture, as defined under the
Further Provisions of Note hereof, or be valid or obligatory for
any purpose.
IN WITNESS WHEREOF, the Issuer has caused this Note to be
duly executed under its corporate seal.
DATED: PEPSICO, INC.
By: Authorized Officer
By:
Authorized Officer
TRUSTEE'S CERTIFICATE
OF AUTHENTICATION
This is one of the Notes
referred to in the within-
mentioned Indenture.
THE CHASE MANHATTAN BANK (NATIONAL ASSOCIATION), as Trustee
By:
_________________________________
Authorized Officer
[FURTHER PROVISIONS OF NOTE]
This Note is one of a duly authorized issue of Notes having
maturities not less than nine months from the date of issue (the
"Notes"). The Notes are issuable under an Indenture, dated as of
December 14, 1994 (herein called the "Indenture"), between the
Issuer and The Chase Manhattan Bank (National Association), as
Trustee (herein called the "Trustee," which term includes any
successor trustee under the Indenture), to which Indenture and
all indentures supplemental thereto reference is hereby made for
a statement of the respective rights, limitations of rights,
duties and immunities of the Issuer, the Trustee and the Holders
of the Notes, the terms upon which the Notes are, and are to be,
authenticated and delivered, and the definitions of capitalized
terms used herein and not otherwise defined herein. The terms of
individual Notes may vary with respect to interest rates,
interest rate formulas, issue dates, maturity dates, or
otherwise, all as provided in the Indenture. To the extent not
inconsistent herewith, the terms of the Indenture are hereby
incorporated by reference herein.
The Notes will not be subject to any sinking fund and,
unless otherwise provided on the face hereof in accordance with
the provisions of the following two paragraphs, will not be
redeemable or subject to repayment at the option of the holder
prior to maturity.
Unless otherwise indicated on the face of this Note, this
Note may not be redeemed prior to the Scheduled Maturity Date.
If so indicated on the face of this Note, this Note may be
redeemed in whole or in part at the option of the Issuer on or
after the Initial Redemption Date specified on the face hereof on
the terms set forth on the face hereof, together with interest
accrued and unpaid hereon to the date of redemption. If this Note
is subject to "Annual Redemption Percentage Reduction," the
Initial Redemption Percentage indicated on the face hereof will
be reduced on each anniversary of the Initial Redemption Date by
the Annual Redemption Percentage Reduction specified on the face
hereof until the redemption price of this Note is 100% of the
principal amount hereof, together with interest accrued and
unpaid hereon to the date of redemption. Notice of redemption
shall be mailed to the registered Holders of the Notes designated
for redemption at their addresses as the same shall appear on the
Security Register not less than 30 nor more than 60 days prior to
the date fixed for redemption, subject to all the conditions and
provisions of the Indenture. In the event of redemption of this
Note in part only, a new Note or Notes for the amount of the
unredeemed portion hereof shall be issued in the name of the
Holder hereof upon the cancellation hereof.
Unless otherwise indicated on the face of this Note, this
Note shall not be subject to repayment at the option of the
Holder prior to the scheduled Maturity Date. If so indicated on
the face of this Note, this Note will be subject to repayment at
the option of the Holder on the Optional Repayment Date or Dates
specified on the face hereof on the terms set forth herein. On
any Optional Repayment Date, this Note will be repayable in whole
or in part in increments of $_____ or, if this Note is
denominated in _________________ in increments of _____ units of
such Specified Currency (provided that any remaining principal
amount hereof shall not be less than the minimum authorized
denomination hereof) at the option of the holder hereof at a
price equal to 100% of the principal amount to be repaid,
together with interest accrued and unpaid hereon to the date of
repayment. For this Note to be repaid at the option of the Holder
hereof, the Trustee must receive at its Corporate Trust Office in
the Borough of Manhattan, the City of New York, at least 15 but
not more than 30 days prior to the date of repayment, (i) this
Note with the form entitled "Option to Elect Repayment" below
duly completed or (ii) a telegram, telex, facsimile transmission,
or a letter from a member of a national securities exchange or
the National Association of Securities Dealers, Inc. or a
commercial bank or a trust company in the United States setting
forth the name of the Holder of this Note, the principal amount
hereof, the certificate number of this Note or a description of
this Note's tenor and terms, the principal amount hereof to be
repaid, a statement that the option to elect repayment is being
exercised thereby and a guarantee that this Note, together with
the form entitled "Option to Elect Repayment" duly completed,
will be received by the Trustee not later than the fifth New York
Business Day after the date of such telegram, telex, facsimile
transmission, or letter; provided, that such telegram, telex,
facsimile transmission, or letter shall only be effective if this
Note and form duly completed are received by the Trustee by such
fifth New York Business Day. Exercise of such repayment option
by the Holder hereof shall be irrevocable. In the event of
repayment of this Note in part only, a new Note or Notes for the
amount of the unpaid portion hereof shall be issued in the name
of the holder hereof upon the cancellation hereof.
This Note will bear interest at the rate determined in
accordance with the applicable provisions below by reference to
the Base Rate shown on the face hereof based on the Index
Maturity, if any, shown on the face hereof (i) plus or minus the
Spread, if any, or (ii) multiplied by the Spread Multiplier, if
any, specified on the face hereof. Commencing with the Initial
Interest Reset Date specified on the face hereof, the rate at
which interest on this Note is payable shall be reset as of each
Interest Reset Date (as used herein, the term "Interest Reset
Date" shall include the Initial Interest Reset Date). The
Interest Reset Dates will be the Interest Reset Dates specified
on the face hereof; provided, however, that (i) the interest rate
in effect for the period from the Interest Accrual Date to the
Initial Interest Reset Date will be the Initial Interest Rate and
(ii) the interest rate in effect hereon for the 15 days
immediately prior to the Schedule Maturity Date hereof (or, with
respect to any principal amount to be redeemed or repaid, any
redemption or repayment date) shall be that in effect on the
fifteenth calendar day preceding the Schedule Maturity Date
hereof or such date of redemption or repayment, as the case may
be. If any Interest Reset Date would otherwise be a day that is
not a New York Business Day, such Interest Reset Date shall be
postponed to the next succeeding day that is a New York Business
Day, except that if the Base Rate specified on the face hereof is
LIBOR and such New York Business Day is in the next succeeding
calendar month, such Interest Reset Date shall be the next
preceding New York Business Day.
"Business Day" when used in conjunction with a designated
city means any day other than a Saturday or Sunday that is
neither a legal holiday nor a day on which banking institutions
are authorized or required by law or regulation to be closed in
(i) London, England (with respect to a Debt Security the
principal of or interest on which will be determined by reference
to LIBOR), (ii) Brussels, Belgium (with respect to a Debt
Security dominated in ECUs or whose principal or interest will be
determined by reference to the relative value of the ECU), or
(iii) the financial center of the country issuing the Specified
Currency (with respect to a Debt Security denominated in a
Specified Currency other than the ECU or whose principal or
interest will be determined by reference to the relative value of
any Specified Currency other than the ECU). See also "New York
Business Day".
"Business Day Convention" means the convention for adjusting
any relevant date if it would otherwise fall on a day that is not
a Business Day. The following terms, when used in conjunction
with the term "Business Day Convention" and a date, shall mean
that an adjustment will be made if that date would otherwise fall
on a day that is not a Business Day so that:
(i) if "Following" is specified, that date will be the
first following day that is a Business Day;
(ii) if "Modified Following" or "Modified" is
specified, that date will be the first following day that is a
Business Day unless that day falls in the next calendar month, in
which case that date will be the first preceding day that is a
Business Day; and
(iii) if "Preceding" is specified, that date will be
the first preceding day that is a Business Day.
"CD Rate" with respect to any Interest Determination Date
means the rate set forth in H.15(519) for the period for the
specified Index Maturity under the caption "CDs (Secondary
Market)". If such rate does not appear in H.15(519) by 9:00 a.m.,
New York City time, on the Calculation Date relating to such
Interest Determination Date, the rate for such Interest
Determination Date will be the rate set forth in Composite 3:30
P.M. Quotations for U.S. Government Securities for such Interest
Determination Date for the Index Maturity under the caption
"Certificates of Deposit". If such rate does not appear in either
H.15(519) or Composite 3:30 P.M. Quotations for U.S. Government
Securities by 3:00 p.m., New York City time, on the Calculation
Date relating to such Interest Determination Date, the rate for
such Interest Determination Date will be the arithmetic mean of
the secondary market offered rates of three leading nonbank
dealers in negotiable U.S. dollar certificates of deposit in New
York City as of 10:00 a.m., New York City time, for such Interest
Determination Date for negotiable U.S. Dollar certificates of
deposit of major United States money market banks with a
remaining maturity closest to the Index Maturity and in an amount
that is representative for a single transaction in the relevant
market at the relevant time.
"Calculation Date" when used with respect to any Interest
Determination Date means the date by which the applicable
interest rate must be determined, which date will be the earlier
of (i) the tenth calendar day following such Interest
Determination Date or, if such date is not a New York Business
Day, the first New York Business Day occurring after such 10-day
period, or (ii) the New York Business Day immediately preceding
the applicable Interest Payment Date or Scheduled Maturity Date,
as the case may be.
"Commercial Paper Rate" with respect to any Interest
Determination Date means the Money Market Yield (see below) of
the rate set forth in H.15(519) for that day opposite the Index
Maturity under the caption "Commercial Paper". If such rate does
not appear in H.15(519) by 9:00 a.m., New York City time, on the
Calculation Date relating to such Interest Determination Date,
the rate for such Interest Determination Date will be the Money
Market Yield of the rate set forth in Composite 3:30 P.M.
Quotations for U.S. Government Securities for such Interest
Determination Date in respect of the Index Maturity under the
caption "Commercial Paper" (with an Index Maturity of one month
or three months being deemed to be equivalent to an Index
Maturity of 30 days or 90 days, respectively). If such rate does
not appear in either H.15(519) or Composite 3:30 P.M. Quotations
for U.S. Government Securities by 3:00 p.m., New York City time,
on the Calculation Date relating to such Interest Determination
Date, the rate for such Interest Determination Date will be the
Money Market Yield of the arithmetic mean of the offered rates of
three leading dealers of U.S. commercial paper in New York City
as of 11:00 a.m., New York City time, for such Interest
Determination Date for U.S. dollar commercial paper of the Index
Maturity placed for industrial issuers whose bond rating is "AA"
or the equivalent from a nationally recognized rating agency.
"Composite 3:30 P.M. Quotations for U.S. Government
Securities" means the daily statistical release designated as
such, or any successor publication, published by the Federal
Reserve Bank of New York.
"Federal Funds Rate" with respect to any Interest
Determination Date means the rate set forth in H.15(519) for that
day opposite the caption "Federal Funds (Effective)". If such
rate does not appear in H.15(519) by 9:00 a.m., New York City
time, on the Calculation Date relating to such Interest
Determination Date, the rate for such Interest Determination Date
will be the rate set forth in Composite 3:30 P.M. Quotations for
U.S. Government Securities for such Interest Determination Date
under the caption "Federal Funds/Effective Rate". If such rate
does not appear in either H.15(519) or Composite 3:30 P.M.
Quotations for U.S. Government Securities by 3:00 p.m., New York
City time, on the Calculation Date relating to such Interest
Determination Date, the rate for such Interest Determination Date
will be the Money Market Yield of the arithmetic mean for the
last transaction in overnight U.S. dollar Federal Funds by three
leading brokers of U.S. dollar Federal Funds transactions in New
York City as of 11:00 a.m., New York City time, for such Interest
Determination Date.
"H.15(519)" means the weekly statistical release designated
as such, or any successor publication, published by the Board of
Governors of the Federal Reserve System.
"Index Maturity" means the period of maturity of the
applicable instrument or obligation.
"Interest Determination Date" with respect to any Interest
Reset Date means the date two Business Days prior to such
Interest Reset Date.
"Libor" with respect to any Interest Determination Date will
be the rate for deposits in U.S. dollars or the Specified
Currency (as the case may be) for a period of the Index Maturity
that which appears on the Telerate Page: (a) 3740 (for
Australian Dollars); (b) 3740 (for Canadian Dollars); (c) 3750
(for Swiss Francs); (d) 3750 (for Deutsche Marks); (e) 3740 (for
French Francs); (f) 3750 (for Pound Sterling); (g) 3740 (for
Italian Lire); (h) 3750 (for Japanese Yen); (i) 3740 (for Spanish
Pesetas); (j) 3750 (for U.S. dollars), and (k) 3750 (for European
Currency Units) as of 11:00 a.m., London Time, on such Interest
Determination Date. If such rate does not appear on the specified
Telerate Page by 9:00 a.m., New York City time, on such Interest
Determination Date, the rate for such Interest Determination Date
will be determined on the basis of the rates at which deposits in
U.S. dollars or the Specified Currency (as the case may be) are
offered by four major banks in the London interbank market as of
approximately 11:00 a.m., London time, on such Interest
Determination Date to prime banks in the London interbank market
for a period of the Index Maturity commencing on the applicable
Interest Reset Date and in an amount that is representative for a
single transaction in the relevant market at the relevant time.
The Calculation Agent will request the principal London office of
each such bank to provide a quotation of its rate. If at least
two quotations are provided, the rate for such Interest
Determination Date will be the arithmetic mean of the quotations.
If fewer than two quotations are provided as requested, the rate
for such Interest Reset Date will be the arithmetic mean of the
rates quoted by major banks in New York City or in the relevant
financial center of the country issuing the Specified Currency
(as the case may be) as of 11:00 a.m., local time in New York
City or in such financial center (as the case may be), on such
Interest Determination Date for loans in U.S. dollars or in the
Specified Currency (as the case may be) to leading European banks
for a period of the Index Maturity commencing on such Interest
Reset Date and in an amount that is representative for a single
transaction in the relevant market at the relevant time.
"Maturity Date" means the date on which the entire principal
amount outstanding under a Debt Security becomes due and payable,
whether on the Scheduled Maturity Date or by declaration of
acceleration, call for redemption, or otherwise.
"Money Market Yield" means, in respect of any security with
a maturity of nine months or less, the rate for which is quoted
on a bank discount basis, a yield (expressed as a percentage)
calculated in accordance with the following formula:
Money Market Yield = D X 360 X 100
360 - (D X M)
where "D" refers to the per annum rate for a security, quoted on
a bank discount basis and expressed as a decimal, and "M" refers
to the actual number of days in the applicable Interest Period.
"New York Business Day" means any day other than a Saturday
or Sunday that is neither a legal holiday nor a day on which
banking institutions are authorized or required by law,
regulation, or executive order, to be closed in the City of New
York and: (i) with respect to any Debt Security denominated or
payable in ECUs, that is also a Brussels Business Day, (ii) with
respect to any Debt Security denominated or payable in any other
Specified Currency, that is also a Business Day in the financial
center of the country issuing such Specified Currency, and (iii)
with respect to any Debt Security the principal of or interest on
which will be determined by reference to LIBOR, that is also a
London Business Day. See also "Business Day".
"Prime Rate" with respect to any Interest Determination Date
means the rate set forth in H.15(519) for that day opposite the
caption "Bank Prime Loan". If such rate does not appear in
H.15(519) by 9:00 a.m., New York City time, on the Calculation
Date relating to such Interest Determination Date, the rate for
such Interest Determination Date will be the arithmetic mean of
the rates of interest publicly announced by each bank that
appears on the Reuters Screen NYMF Page as such bank's prime rate
or base lending rate as in effect for that Interest Determination
Date as quoted on the Reuters Screen NYMF Page for such Interest
Determination Date or, if fewer than four rates appear on the
Reuters Screen NYMF Page for such Interest Determination Date,
the rate will be the arithmetic mean of the rates of interest
publicly announced by three major banks in New York City as its
U.S. dollar prime rate or base lending rate as in effect for such
Interest Determination Date. Each change in the prime rate or
base lending rate of any bank so announced by such bank will be
effective as of the effective date of the announcement or, if no
effective date is specified, as of the date of the announcement.
"US Treasury Bill Rate" with respect to any Interest
Determination Date means the rate at which United States Treasury
bills are auctioned, as set forth in H.15(519) for that day
opposite the Index Maturity under the caption "U.S. Government
Security/Treasury Bills/Auction Average (Investment)". If such
rate does not appear in H.15(519) by 9:00 a.m., New York City
time, on the Calculation Date relating to such Interest
Determination Date, the rate for such Interest Determination Date
will be the Bond Equivalent Yield (as defined below) of the
auction average rate for those Treasury bills as announced by the
United States Department of the Treasury. If United States
Treasury bills of the Index Maturity are not auctioned during any
period of seven consecutive calendar days ending on and including
any Friday, and a U.S. Treasury Bill Rate would have been
available on the applicable Interest Determination Date if such
Treasury bills had been auctioned during that seven day period,
an Interest Determination Date will be deemed to have occurred on
the day during that seven-day period on which such Treasury bills
would have been auctioned in accordance with the usual practices
of the United States Department of the Treasury, and the rate for
that Interest Determination Date will be the Bond Equivalent
Yield of the rate set forth in H.15(519) for that day opposite
the Index Maturity under the caption "U.S. Government
Securities/Treasury Bills/Secondary Market". If such interest
rate does not appear in H.15(519) by 3:00 p.m., New York City
time, on the Calculation Date relating to such Interest
Determination Date, the rate for such Interest Determination Date
will be the Bond Equivalent Yield of the arithmetic mean of the
secondary market bid rates of three primary United States
Government dealers in New York City as of approximately 3:30
p.m., New York City time, for such Interest Determination Date
for the issue of United States Treasury bills with a remaining
maturity closest to the Index Maturity.
For the purposes of this definition, the term "Bond
Equivalent Yield" is to be calculated in accordance with the
following formula:
Bond Equivalent Yield = D X N X 100
360 - (D X M)
where "D" refers to the per annum rate for the security, quoted
on a bank discount basis and expressed as a decimal, "N" refers
to 365 or 366, as the case may be, and "M" refers to the actual
number of days in the applicable Interest Period.
Notwithstanding the foregoing, the interest rate hereon
shall not be greater than the Maximum Interest Rate, if any, or
less than the Minimum Interest Rate, if any, specified on the
face hereof. The Calculation Agent shall calculate the interest
rate hereon in accordance with the foregoing on or before each
Calculation Date. The Trustee shall have no responsibility for
determinations made by the Calculation Agent of the interest
rates hereon. The interest rate on this Note will in no event be
higher than the maximum rate permitted by New York law, as the
same may be modified by United States Federal law of general
application.
At the request of the Holder hereof, the Calculation Agent
will provide to the Holder hereof the interest rate hereon then
in effect and, if determined, the interest rate that will become
effective as of the next Interest Reset Date.
Interest payments on this Note will be equal to the amount
of interest accrued from (and including) the Interest Accural
Date or from (and including) the last date to which interest has
been paid, as the case may be, to (but excluding) the applicable
Interest Payment Date, except that interest payable on the
Maturity Date will include interest accrued to (but excluding)
the Maturity Date. If any Interest Payment Date (other than the
Maturity Date) for any Floating Rate Debt Security would
otherwise be a day that is not a New York Business Day, the
payment of interest that would otherwise be payable on such date
will be postponed to the next succeeding New York Business Day
provided, however, that if the interest rate is determined by
reference to LIBOR and such next succeeding New York Business Day
falls in the next succeeding calendar month, such Interest
Payment Date will be the immediately preceding New York Business
Day. If the Maturity Date falls on this Note on a day that is
not a New York Business Day, the payment of principal, premium,
if any, and interest, if any, otherwise payable on such date will
be postponed to the next succeeding New York Business Day, and no
interest on such payment will accrue as a result of such
postponement.
Accrued interest on this Note will be calculated by
multiplying the principal amount hereof by an accrued interest
factor. The accrued interest factor will be computed as the sum
of the interest factors calculated for each day in the period for
which interest is being paid. The interest factor for any day in
such period will be computed by dividing the interest rate in
effect on such day by ________.
This Note and all the obligations of the Issuer hereunder
are direct, unsecured obligations of the Issuer and rank without
preference or priority among themselves and pari passu with all
other existing and future unsecured and unsubordinated
indebtedness of the Issuer, subject to certain statutory
exceptions in the event of liquidation upon insolvency.
This Note, and Note or Notes issued upon transfer or
exchange hereof, is issuable only in fully registered form,
without coupons, and, if denominated in U.S. dollars, is issuable
only in denominations of U.S. $_______ and any integral multiple
of U.S. $1,000 in excess thereof. If this Note is denominated in
a Specified Currency, then, unless a higher minimum denomination
is required by applicable law, it is issuable only in
denominations of the equivalent of U.S. $_______ (rounded down to
an integral multiple of 1,000 units of such Specified Currency),
or any amount in excess thereof which is an integral multiple of
1,000 units of such Specified Currency, as determined by
reference to the noon dollar buying rate in New York City for
cable transfers of such Specified Currency published by the
Federal Reserve Bank of New York (the "Market Exchange Rate") on
the New York Business Day immediately preceding the date of
issuance.
Except as set forth below, if the principal of, premium, if
any, or interest on, this Note is payable in a Specified Currency
and such Specified Currency is not available to the Issuer for
making payments hereon due to the imposition of exchange controls
or other circumstances beyond the control of the Issuer or is no
longer used by the government of the country issuing such
currency or for the settlement of transactions by public
institutions within the international banking community, then the
Issuer will be entitled to satisfy its obligations to the Holder
of this Note by making such payments in U.S. dollars on the basis
of the highest bid quotation (assuming European-style quotation
- -- i.e., Specified Currency per U.S. dollar) on the second New
York Business Day prior to the applicable payment date from the
recognized foreign exchange dealers in the City of New York (one
of which may be the Company) for the purchase of the aggregate
amount of the Specified Currency payable on such payment date,
for settlement on such payment date, and at which the applicable
dealer timely commits to execute a contract. If no such bid
quotations are available, payments will be made in the Specified
Currency. Any payment made under such circumstances in U.S.
dollars where the required payment is in a Specified Currency
other than U.S. dollars will not constitute an Event of Default.
If payments of principal, premium, if any, or interest, if
any, with respect to this Note are required to be made in a
composite currency and the composition of such composite currency
is at any time altered (whether by the addition, elimination,
combination, or subdivision of one or more components, by
adjustment of the ratio of any component to the composite unit,
or by any combination of such events), then the Company will be
entitled to satisfy its payment obligations hereunder by making
such payments in such composite currency as altered.
All determinations referred to above made by the Issuer or
its agent shall be at its sole discretion and shall, in the
absence of manifest error, be conclusive to the extent permitted
by law for all purposes and binding on the Holder of this Note.
The Indenture permits, with certain exceptions as therein
provided, the amendment thereof and the modification of the
rights and obligations of the Issuer and the rights of the
Holders of the Notes of each series under the Indenture at any
time by the Issuer and the Trustee with the consent of the
Holders of a majority in aggregate principal amount of the Notes
at the time Outstanding of each series to be affected by such
amendment or modification. The Indenture also contains provisions
permitting the Holders of a majority in aggregate principal
amount of the Notes of each series at the time Outstanding, on
behalf of the Holders of all Notes of such series, to waive
compliance by the Issuer with certain provisions of the Indenture
and certain past defaults under the Indenture and their
consequences. Any such consent or waiver by the Holder of this
Note shall be conclusive and binding upon such Holder and upon
all future Holders of this Note and of any Note issued upon the
registration of transfer hereof or in exchange herefor or in lieu
hereof, whether or not notation of such consent or waiver is made
upon this Note.
The Indenture contains provisions setting forth certain
conditions to the institution of proceedings by Holders of Notes
with respect to the Indenture or for any remedy under the
Indenture.
If an Event of Default with respect to the Notes shall occur
and be continuing, the principal amount hereof may be declared
due and payable in the manner and with the effect provided in the
Indenture.
No reference herein to the Indenture and no provisions of
this Note or of the Indenture shall alter or impair the
obligation of the Issuer, which is absolute and unconditional, to
pay the principal of and interest on this Note at the times,
place, and rate, and in the coin or currency, herein prescribed.
So long as this Note shall be outstanding, the Issuer will
cause to be maintained an office or agency for the payment of the
principal of and premium, if any, and interest on this Note as
herein provided in the City of New York, and an office or agency
in said City of New York for the registration, transfer, or
exchange of the Notes. The Issuer may designate other agencies
for the payment of said principal, premium, if any, and interest
at such place or places (subject to applicable laws and
regulations) as the Issuer may decide. So long as there shall be
such an agency, the Issuer shall keep the Trustee advised of the
names and locations of such agencies, if any are so designated.
As provided in the Indenture and subject to certain
limitations therein set forth, the transfer of this Note is
registerable in the Security Register, upon surrender of this
Note for registration of transfer at the Corporate Trust Office
of the Trustee or any other applicable Place of Payment, duly
endorsed, or accompanied by a written instrument of transfer in
form satisfactory to the Issuer and the Security Registrar duly
executed, by the Holder hereof or his or her attorney duly
authorized in writing, and thereupon one or more new Notes, of
authorized denominations and for the same aggregate principal
amount, will be issued to the designated transferee or
transferees.
No service charge shall be made for any such registration or
transfer or exchange, but the Issuer may require payment of a sum
sufficient to cover any tax or other governmental charge payable
in connection therewith.
The Issuer, the Trustee, and any agent of the Issuer or the
Trustee may treat the Person in whose name this Note is
registered as the owner hereof for the purpose of receiving
payment as herein provided and for all other purposes, whether or
not this Note is overdue, and neither the Issuer, the Trustee,
nor any such agent shall be affected by notice to the contrary.
ABBREVIATIONS
The following abbreviations, when used in the inscription on
the face of this instrument, shall be construed as though they
were written out in full according to applicable laws or
regulations:
TEN COM - as tenants in common
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with right of survivorship
and not as tenants in common
UNIF GIFT MIN ACT -
...................Custodian............................
(Cust) (Minor)
Under Uniform Gifts to Minors
Act....................................
(State)
Additional abbreviations may also be used though not in the
above list.
____________________
FOR VALUE RECEIVED, the undersigned hereby sell(s),
assign(s) and transfer(s) unto
[PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE]
:
- -----------------------------------------------------------------
[PLEASE PRINT OR TYPE NAME AND ADDRESS, INCLUDING ZIP CODE OF
ASSIGNEE]
the within Note and all rights thereunder, hereby irrevocably
constituting and appointing such person attorney to transfer such
note on the books of the Issuer, with full power of substitution
in the premises.
Dated:
NOTE: The signature to this assignment must correspond with
the name as written upon the face of the within Note in every
particular without alteration or enlargement or any change
whatsoever.
Exhibit 4(e)
PEPSICO, INC.
and
THE CHASE MANHATTAN BANK
(National Association),
Debt Warrant Agent
_______________________
DEBT WARRANT AGREEMENT
Dated as of _________________
DEBT WARRANT AGREEMENT, dated as of ______________, between
PEPSICO, INC., a North Carolina corporation (hereinafter the
"Company"), and THE CHASE MANHATTAN BANK (National
Association), as Debt Warrant Agent (hereinafter the "Debt
Warrant Agent").
WHEREAS, the Company has filed with the Securities and
Exchange Commission a Registration Statement on Form S-3 (the
"Registration Statement") providing for the issuance of up to
$2,500,000,000 in aggregate public offering price of its debt
securities, consisting of note, bonds, and other evidences of
unsecured indebtedness (the "Debt Securities"), warrants to
purchase Debt Securities (the "Debt Warrants"), and other
warrants, options, and unsecured contractual obligations of the
Company (the "Shelf Warrants");
WHEREAS, any Debt Warrants will be represented by one or
more warrant certificates in global or definitive form (each
such certificate a "Debt Warrant Certificate"); and
WHEREAS, the Company desires the Debt Warrant Agent to act
on behalf of the Company in connection with the issuance,
exchange, exercise, and replacement of the Debt Warrant
Certificates, and in this Agreement wishes to set forth, among
other things, the form and provisions of the Debt Warrant
Certificates and the terms and conditions on which they may be
issued, exchanged, exercised, and replaced;
NOW, THEREFORE, in consideration of the premises and of
the mutual agreements herein contained, the parties hereto
agree as follows (all capitalized terms used herein and not
otherwise defined have the meanings ascribed to such terms in
the Prospectus filed as part of the Registration Statement):
ARTICLE I
ISSUANCE OF DEBT WARRANTS AND EXECUTION AND DELIVERY
OF DEBT WARRANT CERTIFICATES
SECTION 1.01. Issuance of Debt Warrants. The designation
and particular terms of any Debt Warrant shall be as set forth
in the applicable Prospectus Supplement and in the Debt Warrant
Certificate relating thereto. Debt Warrants may be issued
separately or together with one or more Debt Securities of any
series and, if issued together with any such Debt Securities,
may be separately transferable after the date indicated in the
applicable Prospectus Supplement and in the Debt Warrant
Certificate relating thereto (such date the "Detachability
Date"). A Debt Warrant Certificate may evidence one or more
Debt Warrants. Each Debt Warrant evidenced by a a Debt Warrant
Certificate shall represent the right, subject to the
provisions contained herein and therein, to purchase one or
more Debt Securities of a designated series in such principal
amount as shall be designated therein.
SECTION 1.02. Execution and Delivery of Debt Warrant
Certificates. Debt Warrant Certificates may be issued in
global or definitive form, payable to the order of the bearer
or the registered holder thereof, in substantially the form set
forth in Annex A hereto. Each Debt Warrant Certificate will be
dated the date of its authentication by the Debt Warrant Agent
and may have such letters, numbers, or other marks of
identification or designation and such legends or endorsements
printed, lithographed, or engraved thereon as may be approved
by the officers of the Company executing the same (such
execution to be conclusive evidence of such approval) and as
are not inconsistent with the provisions of this Agreement, or
as may be required to comply with any law, rule, or regulation
applicable thereto, including any rule or regulation of any
stock exchange on which the Debt Warrants may be listed. The
Debt Warrant Certificates shall be signed on behalf of the
Company by any two of its Chairman of the Board and Chief
Executive Officer (the "Chairman"), its Executive Vice
President and Chief Financial Officer (the "Executive Vice
President"), or any of its Vice Presidents, under its corporate
seal, and attested by its Secretary or Assistant Secretary.
Such signatures may be manual or facsimile signatures of such
authorized officers and may be imprinted or otherwise
reproduced on the Debt Warrant Certificates. The seal of the
Company may be in the form of a facsimile thereof and may be
impressed, affixed, imprinted, or otherwise reproduced on the
Debt Warrant Certificates.
No Debt Warrant Certificate shall be valid for any
purpose, and no Debt Warrant evidenced thereby shall be
exercisable, until such Debt Warrant Certificate has been
countersigned by the manual signature of the Debt Warrant
Agent. Such signature by the Debt Warrant Agent upon any Debt
Warrant Certificate executed by the Company shall be conclusive
evidence that the Debt Warrant Certificate so countersigned has
been duly issued hereunder.
In case any officer of the Company who shall have signed
any of the Debt Warrant Certificates shall cease to be such
officer before the Debt Warrant Certificates so signed shall
have been countersigned and delivered by the Debt Warrant
Agent, such Debt Warrant Certificates may be countersigned and
delivered notwithstanding that the person who signed such Debt
Warrant Certificates ceased to be such officer of the Company;
and any Debt Warrant Certificate may be signed on behalf of the
Company by such persons as, at the actual date of the execution
of such Debt Warrant Certificate, shall be the proper officers
of the Company, although at the date of the execution of this
Agreement any such person was not such officer.
The terms "holder" or "holder of a Debt Warrant
Certificate" as used herein shall mean:
1. with respect to any Debt Warrant Certificate in
bearer form: (a) if the Debt Warrants represented thereby were
issued together with Debt Securities that are not immediately
detachable, the registered owner of the Debt Securities to
which such Debt Warrant Certificate was initially attached, and
(b) after the Detachability Date, the bearer of such Debt
Warrant Certificate;
2. with respect to any Debt Warrant Certificate in
registered form: (a) if the Debt Warrants represented thereby
were issued together with Debt Securities that are not
immediately detachable, the registered owner of the Debt
Securities to which such Debt Warrant Certificate was initially
attached, and (b) after the Detachability Date, the person in
whose name the Debt Warrant Certificate shall be registered
upon the books to be maintained by the Debt Warrant Agent for
that purpose.
The Company will or will cause the registrar of the Debt
Securities to at all times make available to the Debt Warrant
Agent such information regarding the holders of the any Debt
Securities to which any Debt Warrants are attached as may be
necessary to keep the records of the Debt Warrant Agent up to
date.
SECTION 1.03. Issuance of Debt Warrant Certificates.
Debt Warrant Certificates evidencing the right to purchase up
to [$2,500,000,000] in aggregate public offering price of Debt
Securities (except as provided in Section 2.03(c), 3.02, or
3.04 hereof) may be executed by the Company and delivered to
the Debt Warrant Agent upon the execution of this Agreement or
from time to time thereafter. The Debt Warrant Agent shall,
upon receipt of Debt Warrant Certificates duly executed on
behalf of the Company in accordance with the terms hereof,
countersign such Debt Warrant Certificates and deliver the same
to the holders thereof upon and in accordance with the order of
the Company. Subsequent to such original issuance of the Debt
Warrant Certificates, the Debt Warrant Agent shall countersign
a Debt Warrant Certificate only if such Debt Warrant
Certificate is issued in exchange or substitution for one or
more previously countersigned Debt Warrant Certificates or,
with respect to Debt Warrant Certificates in registered form,
in connection with the transfer thereof, as provided in Section
2.03(c) below.
ARTICLE II
EXERCISE PRICE, DURATION, AND EXERCISE
OF DEBT WARRANTS
SECTION 2.01. Exercise Price. During the period from and
including
, 19 , to and including
, 19 , the exercise price of each Debt Warrant will be [
% of the principal amount of the Debt Securities] [$
] [plus [accrued amortization of the original issue discount]
[accrued interest] from the most recently preceding
]. [During the period from , 19
, to and including , 19 ,
the exercise price of each Debt Warrant will be [ % of the
principal amount of the Debt Securities] [$ ] [plus
[accrued amortization of the original issue discount] [accrued
interest] from the most recently preceding
].] [In each case the original issue discount will be
amortized at a % annual rate, computed on [an annual] [a
semi-annual] basis using a 360-day year consisting of twelve 30-
day months.] Such purchase price of Debt Securities is
referred to in this Agreement as the "Exercise Price". [The
original issue discount for each $ in
aggregate principal amount of Debt Securities is $
.]
SECTION 2.02. Duration of Debt Warrants. Each Debt
Warrant may be exercised in whole [at any time, as specified
herein, on or after [the date hereof] [
19 ,] and at or before 5:00 PM New York time on
, 19 (each day during such period may hereinafter be
referred to as an "Exercise Date")] [on the following specific
dates: [list of dates] (each an "Exercise Date")], or such
later date as may be selected by the Company, in a written
statement to the Debt Warrant Agent and with notice to the
holders of the Debt Warrants (such date of expiration is herein
referred to as the "Expiration Date"). Each Debt Warrant not
exercised at or before 5:00 PM New York time on the Expiration
Date shall become void, and all rights of the holder of the
Debt Warrant Certificate evidencing such Debt Warrant under
this Agreement shall cease.
SECTION 2.03. Exercise of Debt Warrants.
(a) On any Exercise Date specified in Section 2.02, any
whole number of Debt Warrants may be exercised by delivery to
the Debt Warrant Agent of the applicable Debt Warrant
Certificate, together with the form of election to purchase
Debt Securities set forth on the reverse side of the Debt
Warrant Certificate properly completed and duly executed, and
by paying in full, in U.S. dollars or in the Specified
Currency, as the case may be, [by certified check or official
bank check or by bank wire transfer] [by bank wire transfer]
[in immediately available funds] to the Debt Warrant Agent the
Exercise Price for each Debt Warrant, such delivery and payment
to be made at [the corporate trust office of the Debt Warrant
Agent] or such other place as the Company and the Debt Warrant
Agent shall hereafter agree in writing. The date on which the
duly completed and executed Debt Warrant Certificate and
payment in full of the Exercise Price are received by the Debt
Warrant Agent shall be deemed to be the date on which the
applicable Debt Warrant is exercised. The Debt Warrant Agent
shall deposit all funds received by it in payment of the
Exercise Price in an account of the Company maintained with it
and shall advise the Company by telephone or by facsimile
transmission or other form of electronic communication
available to both parties at the end of each day on which a
[payment] [wire transfer] for the exercise of such Debt
Warrants is received of the amount so deposited to its account.
The Debt Warrant Agent shall promptly confirm such telephone
advice to the Company in writing.
(b) The Debt Warrant Agent shall, from time to time, as
promptly as practicable, advise the Company and the Trustee of
(i) the number of Debt Warrants exercised, (ii) the
instructions of the holders of the Debt Warrant Certificates
evidencing such Debt Warrants with respect to delivery of the
Debt Securities, (iii) delivery of Debt Warrant Certificates
evidencing the balance, if any, of the Debt Warrants remaining
after such exercise, and (iv) such other information as the
Company or the Trustee shall reasonably require.
(c) As soon as practicable after the exercise of any Debt
Warrant, the Company shall issue, pursuant to the Indenture, in
authorized denominations, to or upon the order of the holder of
the Debt Warrant Certificate evidencing such Debt Warrant, the
Debt Securities to which such holder is entitled, registered in
[such name or names as may be directed by such holder] [the
name of the registered holder of such Debt Securities]. If
fewer than all of the Debt Warrants evidenced by such Debt
Warrant Certificate are exercised, the Company shall execute,
and an authorized officer shall manually countersign and
deliver, a new Debt Warrant Certificate evidencing the number
of such Debt Warrants remaining unexercised.
(d) The Company shall not be required to pay any stamp or
other tax or other governmental charge required to be paid in
connection with any transfer involved in the issuance of Debt
Securities and the Company shall not be required to issue or
deliver any Debt Security unless or until the person requesting
the issuance thereof shall have paid to the Company the amount
of such tax or governmental charge or shall have established to
the satisfaction of the Company that such tax or other
governmental charge has been paid or that no such tax or other
governmental charge is payable.
ARTICLE III
OTHER PROVISIONS RELATING TO RIGHTS OF HOLDERS
OF DEBT WARRANT CERTIFICATES
SECTION 3.01. No Rights as a Holder of Debt Securities
Conferred by Debt Warrants or Debt Warrant Certificates. No
Debt Warrant Certificate or Debt Warrant evidenced thereby
shall entitle the holder thereof to any of the rights of a
holder of Debt Securities, including, without limitation, the
right to receive payments of principal, premium, if any, or
interest, if any, on the Debt Securities to which such Debt
Warrant or Debt Warrant Certificate relates, or to enforce any
of the covenants in the Indenture with respect to such Debt
Securities.
SECTION 3.02. Lost, Stolen, Mutilated, or Destroyed Debt
Warrant Certificates. Upon receipt by the Debt Warrant Agent
of evidence reasonably satisfactory to it of the ownership and
loss, theft, destruction, or mutilation of any Debt Warrant
Certificate and of indemnity reasonably satisfactory to the
Debt Warrant Agent and, in the case of mutilation, upon
surrender of such Debt Warrant Certificate to the Debt Warrant
Agent for cancellation, in the absence of notice to the Company
and the Debt Warrant Agent that such Debt Warrant Certificate
has been transferred or acquired, and subject to the provisions
of Section 3.03 below, such Debt Warrant Certificate shall be
replaced by a new Debt Warrant Certificate reflecting the
identical terms of such lost, stolen, destroyed, or mutilated
Debt Warrant Certificate.
SECTION 3.03. Transfer, Exchange or Replacement of Debt
Warrants and Debt Warrant Certificates. Any Debt Warrant
Certificate attached to one or more Debt Securities will be
transferred, exchanged, or replaced only together with the Debt
Security or Debt Securities to which such Debt Warrant
Certificate is attached, and only for the purpose of affecting,
or in conjunction with, a transfer, exchange, or replacement of
such Debt Security or Debt Securities. Prior to the
Detachability Date, each transfer, exchange, or replacement of
an attached Debt Security by the Trustee shall operate also to
transfer the related Debt Warrants. After the Detachability
Date, each transfer of an attached Debt Security shall be made
only upon surrender, at the corporate trust office of the Debt
Warrant Agent, of the Debt Warrant Certificates evidencing the
related Debt Warrants and of such appropriate instruments of
registration or transfer and of such written transfer
instructions as shall be in form and substance satisfactory to
the Company and the Debt Warrant Agent. Debt Warrant
Certificates may be transferred or exchanged, after the
Detachability Date, for Debt Warrant Certificates in other
denominations evidencing the related Debt Warrants, provided
that such other Debt Warrant Certificates evidence the same
number of Debt Warrants as the Debt Warrant Certificates so
surrendered. The Debt Warrant Agent shall keep, at its
corporate trust office, books in which it shall register Debt
Warrant Certificates and all exchanges and transfers of
outstanding Debt Warrant Certificates. No service charge shall
be made for any exchange [or registration of transfer] of Debt
Warrant Certificates, but the Company may require payment of a
sum sufficient to cover any stamp or other tax or other
governmental charge that may be imposed in connection with any
such exchange [or registration of transfer]. Whenever any Debt
Warrant Certificates are so surrendered for exchange [or
registration of transfer], an authorized officer of the Debt
Warrant Agent shall manually countersign and deliver to the
person or persons entitled thereto a Debt Warrant Certificate
or Debt Warrant Certificates duly authorized and executed by
the Company, as so requested. The Debt Warrant Agent shall not
be required to effect any exchange [or registration of
transfer] which will result in the issuance of a Debt Warrant
Certificate evidencing a fraction of a Debt Warrant. All Debt
Warrant Certificates issued upon any exchange [or registration
of transfer] of Debt Warrant Certificates shall be valid
obligations of the Company, evidencing the same obligations and
entitled to the same benefits under this Agreement as the Debt
Warrant Certificates surrendered for such exchange [or
registration of transfer].
SECTION 3.04. Treatment of Holders of Debt Warrant
Certificates. Debt Warrants issued in bearer form shall be
transferable by delivery and shall be deemed negotiable by the
bearer of the related Debt Warrant Certificate, which bearer
may be treated by the Company, the Debt Warrant Agent, and all
other persons dealing with such bearer as the absolute owner
thereof for all purposes and as the person entitled to exercise
the rights represented by the Debt Warrants evidenced thereby,
any notice to the contrary notwithstanding. Debt Warrants
issued in registered form shall be transferable only on the
books of the Debt Warrant Agent and in accordance with the
applicable terms and conditions hereof, and every holder of
such a Debt Warrant Certificate, by accepting the same,
consents and agrees with the Company, the Debt Warrant Agent,
and with every subsequent holder of such Debt Warrant
Certificate that until the transfer of the Debt Warrant
Certificate is registered on the books of the Debt Warrant
Agent (or, prior to the Detachability Date, on the register
maintained by the registrar of the related Debt Securities),
the Company and the Debt Warrant Agent (or the registrar of the
related Debt Securities, as the case may be), may treat such
registered holder as the absolute owner thereof for all
purposes and as the person entitled to exercise the rights
represented by the Debt Warrants evidenced thereby, any notice
to the contrary notwithstanding.
SECTION 3.05. Cancellation of Debt Warrant Certificates.
Any Debt Warrant Certificate surrendered for exchange or
registration of transfer, or for exercise of the Debt Warrants
evidenced thereby, shall be delivered to the Debt Warrant
Agent, and all Debt Warrant Certificates so surrendered or
delivered to the Debt Warrant Agent shall be promptly canceled
by the Debt Warrant Agent and shall not be reissued and, except
as expressly provided otherwise by this Agreement, no Debt
Warrant Certificate shall be issued in exchange or in lieu
thereof. The Debt Warrant Agent shall destroy all canceled
Debt Warrant Certificates and deliver a certificate of such
destruction to the Company.
ARTICLE IV
CONCERNING THE DEBT WARRANT AGENT
SECTION 4.01. Debt Warrant Agent. The Company hereby
appoints The Chase Manhattan Bank (National Association) as
Debt Warrant Agent of the Company in respect of the Debt
Warrants and the related Debt Warrant Certificates upon the
terms and subject to the conditions herein set forth, and The
Chase Manhattan Bank (National Association) hereby accepts such
appointment. The Debt Warrant Agent shall have the powers and
authority granted to and conferred upon it in the Debt Warrant
Certificates and hereby and such further powers and authority
to act on behalf of the Company as the Company may hereafter
grant to or confer upon it by a signed, written instrument.
All of the terms and provisions with respect to such powers and
authority contained in the Debt Warrant Certificates are
subject to and governed by the terms and provisions hereof.
SECTION 4.02. Conditions of Debt Warrant Agent's
Obligations. The Debt Warrant Agent accepts its obligations
herein set forth upon the terms and conditions hereof,
including the following, to all of which the Company agrees and
to all of which the rights of the holders the Debt Warrant
Certificates shall at all times be subject.
(a) Compensation and Indemnification. The Company agrees
promptly to pay the Debt Warrant Agent the compensation to be
agreed upon with the Company for all services rendered by the
Debt Warrant Agent and to reimburse the Debt Warrant Agent for
reasonable out-of-pocket expenses (including counsel fees)
incurred by the Debt Warrant Agent in connection with the
services rendered by it hereunder. The Company also agrees to
indemnify the Debt Warrant Agent for, and to hold it harmless
against, any loss, liability, or expense incurred without
negligence or bad faith on the part of the Debt Warrant Agent,
arising out of or in connection with its acting as Debt Warrant
Agent hereunder, as well as the costs and expenses of defending
against any claim of such liability.
(b) Agent for the Company. In acting under this
Agreement and in connection with the Debt Warrants and Debt
Warrant Certificates, the Debt Warrant Agent is acting solely
as agent of the Company and does not assume any fiduciary
obligation or relationship of agency or trust for or with any
of the holders of Debt Warrants or Debt Warrant Certificates or
the beneficial owners thereof.
(c) Counsel. The Debt Warrant Agent may consult with
counsel satisfactory to it, and the advice of such counsel
shall be full and complete authorization and protection in
respect of any action taken, suffered, or omitted by it
hereunder in good faith and in accordance with the advice of
such counsel.
(d) Documents. The Debt Warrant Agent shall be protected
and shall incur no liability for or in respect of any action
taken or thing suffered by it in reliance upon any provision of
any Debt Warrant or Debt Warrant Certificate or any notice,
direction, consent, certificate, affidavit, statement, or other
paper or document delivered to it in accordance with the
provisions hereof reasonably believed by it to be genuine and
to have been presented or signed by the proper parties.
(e) Certain Transactions. The Debt Warrant Agent and its
officers, directors, and employees may own or acquire any
interest in Debt Warrants with the same rights that it or they
would have if it were not the Debt Warrant Agent hereunder,
and, to the extent permitted by applicable law, it or they may
engage or be interested in any financial or other transaction
with the Company and may act on, or as depository, trustee, or
agent for, any committee or body of holders of Debt Securities
or any other obligations of the Company as freely as if it were
not the Debt Warrant Agent hereunder. Nothing in this Debt
Warrant Agreement shall be deemed to prevent the Debt Warrant
Agent from acting as Trustee under the Indenture.
(f) No Liability for Invalidity. The Debt Warrant Agent
shall have no liability with respect to any invalidity of this
Agreement or any of the Debt Warrants or Debt Warrant
Certificates.
(g) No Liability for Interest. The Debt Warrant Agent
shall have no liability for interest on any monies at any time
received by it pursuant to any of the provisions of this
Agreement or of the Debt Warrants or Debt Warrant Certificates.
(h) No Responsibility for Representations. The Debt
Warrant Agent shall not be responsible for any of the Company's
recitals or representations herein or in the Debt Warrant
Certificates.
(i) No Implied Obligations. The Debt Warrant Agent shall
be obligated to perform only such duties as are specifically
set forth herein and in the Debt Warrant Certificates and no
implied duties or obligations shall be read into this Agreement
or the Debt Warrant Certificates against the Debt Warrant
Agent. The Debt Warrant Agent shall not be under any
obligation to take any action hereunder which may tend to
involve it in any expense or liability, the payment of which
within a reasonable time is not, in its reasonable opinion,
assured to it. The Debt Warrant Agent shall not be accountable
or under any duty or responsibility for the use by the Company
of any of the Debt Warrant Certificates authenticated by the
Debt Warrant Agent and delivered by it to the Company pursuant
to this Agreement, or for the application by the Company of the
proceeds of the Debt Warrants. The Debt Warrant Agent shall
have no duty or responsibility in case of any default by the
Company in the performance of its covenants or agreements
contained herein or in the Debt Warrant Certificates or in the
case of the receipt of any written demand from a holder of any
Debt Warrant with respect to such default, including, without
limiting the generality of the foregoing, any duty or
responsibility to initiate or attempt to initiate any
proceedings at law or otherwise or, except as provided in
Section 5.02 hereof, to make any demand upon the Company.
SECTION 4.03. Resignation and Appointment of Successor.
(a) The Company agrees, for the benefit of the holders of
the Debt Warrants, that there shall at all times be a Debt
Warrant Agent hereunder until all the Debt Warrants issued
hereunder have expired or are otherwise no longer exercisable.
(b) The Debt Warrant Agent may at any time resign as such
agent by giving written notice to the Company of such intention
on its part, specifying the date on which its desired
resignation shall become effective; provided that such date
shall not be less than three months after the date on which
such notice is given unless the Company otherwise agrees in
writing. The Debt Warrant Agent hereunder may be removed at
any time by the filing with it an instrument in writing signed
by or on behalf of the Company and specifying such removal and
the date upon which such removal shall become effective. Such
resignation or removal shall take effect upon the appointment
by the Company, as hereinafter provided, of a successor Debt
Warrant Agent (which shall be a bank or trust company
authorized under the laws of the jurisdiction of its
organization to exercise corporate trust powers) and the
acceptance of such appointment by such successor Debt Warrant
Agent. The obligation of the Company under Section 4.02(a)
shall continue to the extent set forth therein notwithstanding
the resignation or removal of the Debt Warrant Agent.
(c) In case at any time the Debt Warrant Agent shall
resign, be removed, or shall for any reason be incapable of
acting hereunder, or shall be adjudged a bankrupt or insolvent,
or shall file a petition seeking relief under the Federal
Bankruptcy Code, as now constituted or hereafter amended, or
under any other applicable Federal or State bankruptcy law or
similar law, or make an assignment for the benefit of its
creditors or consent to the appointment of a receiver or
custodian of all or any substantial part of its property, or
shall admit in writing its inability to pay or meet its debts
as they mature, or if a receiver or custodian of it or of all
or any substantial part of its property shall be appointed, or
if an order of any court shall be entered for relief against it
under the provisions of the Federal Bankruptcy Code, as now
constituted or hereafter amended, or under any other applicable
Federal or State bankruptcy or similar law, or if any public
officer shall have taken charge or control of the Debt Warrant
Agent or of its property or affairs for the purpose of
rehabilitation, conservation, or liquidation, a successor Debt
Warrant Agent, qualified as aforesaid, shall be appointed by
the Company by an instrument in writing, filed with such
successor Debt Warrant Agent. Upon the appointment as
aforesaid of a successor Debt Warrant Agent and acceptance by
such successor Debt Warrant Agent of such appointment, the Debt
Warrant Agent shall cease to be Debt Warrant Agent hereunder.
(d) Any successor Debt Warrant Agent appointed hereunder
shall execute, acknowledge, and deliver to its predecessor and
to the Company a signed instrument accepting such appointment
hereunder, and thereupon such successor Debt Warrant Agent,
without any further act, deed, or conveyance, shall become
vested with all the authority, rights, powers, trusts,
immunities, duties, and obligations of such predecessor with
like effect as if originally named as Debt Warrant Agent
hereunder, and such predecessor, upon payment of its charges
and disbursements then unpaid, shall thereupon become obligated
to transfer, deliver, and pay over, and such successor Debt
Warrant Agent shall be entitled to receive, all monies,
securities, and other property on deposit with or held by such
predecessor in its capacity as Debt Warrant Agent hereunder.
(e) Any corporation into which the Debt Warrant Agent may
be merged or converted or any corporation with which the Debt
Warrant Agent may be consolidated, or any corporation resulting
from any merger, conversion, or consolidation to which the Debt
Warrant Agent shall be a party, or any corporation to which the
Debt Warrant Agent shall sell or otherwise transfer all or
substantially all of its assets and business, shall be the
successor Debt Warrant Agent under this Agreement without the
execution or filing of any paper or any further act on the part
of any of the parties hereto, provided that such corporation is
qualified as aforesaid.
ARTICLE V
MISCELLANEOUS
SECTION 5.01. Amendment. This Agreement may be amended
by the parties hereto, without the consent of the holders of
any Debt Warrants issued hereunder, for the purpose of curing
any ambiguity, or of curing, correcting, or supplementing any
defective provision contained herein, or for the purpose of
making any other provisions with respect to matters or
questions arising under this Agreement as the Company and the
Debt Warrant Agent may deem necessary or desirable; provided
that such action shall not adversely affect the interests of
such holders.
SECTION 5.02. Notices and Demands to the Company and Debt
Warrant Agent. If the Debt Warrant Agent shall receive any
notice or demand addressed to the Company by the holder of a
Debt Warrant pursuant to the provisions hereof or of the
related form of Debt Warrant Certificate, the Debt Warrant
Agent shall promptly forward such notice or demand to the
Company.
SECTION 5.03. Addresses. Any communication from the Debt
Warrant Agent to the Company with respect to this agreement
shall be addressed to PepsiCo, Inc., 700 Anderson Hill Road,
Purchase, New York 10577, Attention: __________, and any
communication from the Company to the Debt Warrant Agent with
respect to this Agreement shall be addressed to the principal
corporate trust office of the Debt Warrant Agent, Attention:
Corporate Trust Department (or such other address as shall be
hereafter specified in writing by the Debt Warrant Agent or the
Company, as the case may be).
SECTION 5.04. Notices to Holders of Debt Warrants. Any
notice to holders of Debt Warrants that are required or
permitted by the provisions of this Agreement to be given shall
be given (a) with respect to Debt Warrants issued in registered
form, by first class mail postage prepaid to such holder's
address as appears on the books of the Debt Warrant Agent (or,
prior to the Detachability Date, on the books of the registrar
of the Debt Securities), or (b) with respect to Debt Warrants
issued in bearer form, by publication at least once in a daily
morning newspapers in New York City and in London.
SECTION 5.05. Applicable Law. The validity,
interpretation, and performance of the terms and provisions of
this Agreement and of each Debt Warrant and Debt Warrant
Certificate issued hereunder shall be governed by and construed
in accordance with the laws of the State of New York.
SECTION 5.06. Delivery of Prospectus. The Company will
furnish to the Debt Warrant Agent sufficient copies of the
Prospectus and of each applicable Prospectus Supplement and
Pricing Supplement relating to the Debt Warrants and the
related Debt Securities, and the Debt Warrant Agent agrees that
upon the exercise of any Debt Warrant the Debt Warrant Agent
will deliver to the holder of such Debt Warrant, prior to or
concurrently with the delivery of the Debt Securities issued
upon such exercise, copies of the Prospectus (as amended or
supplemented as of such date), together with all such
applicable Supplements.
SECTION 5.07. Obtaining of Governmental Approvals. The
Company will obtain, file, and keep effective any and all
permits, consents, and approvals of governmental agencies and
authorities and all securities acts filings under United States
Federal and state laws as shall be necessary for the valid
issuance, sale, and transfer of the Debt Warrants and the
related Debt Securities.
SECTION 5.08. Persons Having Rights under this Agreement.
Nothing in this Agreement shall give to any person other than
the Company, the Debt Warrant Agent, and the holders of the
Debt Warrants any right, remedy, or claim under or by reason of
this Agreement.
SECTION 5.09. Headings. The captions and headings used
herein are inserted for convenience only and shall not control
or affect the meaning or construction of any of the provisions
hereof.
SECTION 5.10. Counterparts. This Agreement may be
executed in any number of counterparts, each of which as so
executed shall be deemed to be an original, but shall together
constitute but one and the same instrument.
SECTION 5.11. Inspection of Agreement. A copy of this
Agreement shall be available at all reasonable times at the
principal corporate trust office of the Debt Warrant Agent for
inspection by the holder of any Debt Warrant.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be signed by one of their respective authorized
officers as of the day and year first above written.
PEPSICO, INC.
By____________________________________
Title:
THE CHASE MANHATTAN BANK
(National Association)
By____________________________________
Title:
ANNEX A
FORM OF DEBT WARRANT CERTIFICATE
[Face of Debt Warrant Certificate]
[Form of Legend if Debt Warrants are not immediately detachable
from Debt Securities: This Debt Warrant cannot be transferred
or exchanged prior to__________, 19__, unless attached to the
[designate Debt Securities] to which this Debt Warrant
relates.]
THIS DEBT WARRANT SHALL BE EXERCISABLE ONLY
IF COUNTERSIGNED BY THE DEBT WARRANT
AGENT AS PROVIDED BELOW
PEPSICO, INC.
WARRANT TO PURCHASE
$______ in aggregate principal amount of ____________Debt
Securities due _______________, 19__
VOID AFTER 5:00 P.M., NEW YORK TIME, ON_____________, 19__
No. [CUSIP No. ]
This certifies that [the bearer] [_______________or its
registered assigns] is the [owner] [registered owner] of the
Warrant[s] identified above (the "Debt Warrant[s]"), [each]
such Debt Warrant entitling such [bearer] [registered owner] to
purchase, at any time after 5:00 p.m., New York time,
on___________, 19__, and on or before 5:00 p.m., New York time,
on___________, 19__, (or such later date as may be designated
by the Company by written notice to the holder as provided in
the Debt Warrant Agreement, dated as of ___________, 19__ (the
"Debt Warrant Agreement") between PepsiCo, Inc. (the "Company")
and The Chase Manhattan Bank (National Association) as debt
warrant agent (the "Debt Warrant Agent")), $________ in
aggregate principal amount of the Debt Securities, [designate
series] (the "Debt Securities") to be issued by the Company
under the Indenture, dated as of December 2, 1993 (the
"Indenture"), between the Company and The Chase Manhattan Bank
(National Association) as trustee (the "Trustee").
The Debt Warrant[s] represented hereby shall be
exercisable only in accordance with the terms and provisions
set forth herein, in the Debt Warrant Agreement, and in the
Indenture. Copies of the Debt Warrant Agreement and the
Indenture may be obtained at the corporate trust office of the
Debt Warrant Agent located at ___________________. All
capitalized terms used herein and not otherwise defined shall
have the meanings ascribed to such terms by the Debt Warrant
Agreement.
[Reverse of Debt Warrant Certificate]
The exercise price of [each] [such] Debt Warrant shall be
calculated as follows: (a) during the period from and including
_______________ 19__, to and including _______________, 19__,
the exercise price of [each] [such] Debt Warrant will be [___%
of the principal amount of the underlying Debt Securities]
[$___________] [plus [accrued amortization of the original
issue discount] [accrued interest] from the most recently
preceding __________], (b) during the period from
_____________, 19__, to and including _______________, 19__,
the exercise of [each] [such] Debt Warrant will be [___% of the
principal amount of the related Debt Securities] [$___________]
[plus [accrued amortization of the original issue discount]
[accrued interest] from the most recently preceding _________],
and (c) in each case (as applicable), [the original issue
discount will be amortized at an annual rate of ___%, computed
on [an annual] [a semi-annual] basis, using a [360-day year
consisting of twelve 30-day months] [the original issue
discount for each $__________ in aggregate principal amount of
Debt Securities will be _________] (such exercise price the
"Exercise Price").
The [holder] [registered holder] may exercise the Debt
Warrant[s] evidenced hereby by delivery to the Debt Warrant
Agent of this Debt Warrant Certificate, together with the form
of election to purchase set forth below properly completed and
duly executed, and by paying in full, in lawful money of [the
United States] [________________], [$]_____________, by
[certified check or official bank check or by] bank wire
transfer, in each case, in immediately available funds, the
Exercise Price for [such Debt Warrant] [each Debt Warrant to be
exercised], payable to the [order of] [an account designated in
writing by] the Company, such delivery and payment to be made
at the corporate trust office of Debt Warrant Agent at the
address specified below, or to such successor debt warrant
agent at such other address as the Company may hereafter notify
the [holder] [registered holder] in writing.
Any whole number of Debt Warrants evidenced by this Debt
Warrant Certificate may be exercised to purchase Debt
Securities in registered form upon such terms and conditions as
are set forth in the Prospectus and [the] [any] applicable
Supplement[s]. [Upon exercise of fewer than all of the Debt
Warrants evidenced hereby, there shall be issued to the
[holder] [registered holder] a new Debt Warrant Certificate
evidencing the number of Debt Warrants remaining unexercised.]
[If the Debt Warrant[s] represented hereby is not
immediately detachable from the underlying Debt Securities,
[each] such Debt Warrant may be exchanged or transferred prior
to __________, 19__,only together with the underlying Debt
Securities and only for the purpose of effecting, or in
conjunction with, an exchange or transfer of such Debt
Securities. After such date, [each] such Debt Warrant and all
rights hereunder, may be transferred by delivery as hereinabove
provided and the Company and the Debt Warrant Agent may treat
the bearer hereof as the owner for all purposes.]
[If the Debt Warrant[s] represented hereby are immediately
detachable from the underlying Debt Securities, [each] such
Debt Warrant may be registered for transfer or exchange upon
delivery of this Debt Warrant Certificate as hereinabove
provided.]
This Debt Warrant Certificate shall not entitle the
[holder] [registered holder] hereof to any of the rights of a
holder of the underlying Debt Securities, including, without
limitation, the right to receive payments of principal,
premium, if any, or interest, if any, on such Debt Securities
or to enforce any of the covenants of the Indenture.
Neither this Debt Warrant Certificate nor the Debt
Warrant[s] represented hereby shall be valid or obligatory for
any purpose until countersigned by the Debt Warrant Agent.
Dated as of ___________, 19__
PEPSICO, INC.
By_____________________
Title:
[ ], as Debt Warrant Agent,
By______________________________________
Authorized Officer
Further Instructions for Exercise of Debt Warrant[s]
To exercise the Debt Warrants evidenced hereby, the holder
must complete the information required below and present this
Debt Warrant Certificate in person or by [registered] mail to
the Debt Warrant Agent at the address set forth below. This
Debt Warrant Certificate, completed and duly executed, must be
received by the Debt Warrant Agent together with payment in
full of the Exercise Price in accordance with the terms hereof.
The undersigned hereby irrevocably elects to exercise
[the] [___ of the] Debt Warrant[s] evidenced hereby and to
purchase [$]________ in aggregate principal amount of the
underlying Debt Securities to which such Debt Warrant[s]
relate[s]. By executing this instrument as indicated below,
the undersigned represents that [he/she/it] has tendered
payment for such Debt Securities in accordance with the
provisions set forth herein. The undersigned requests that
said principal amount of Debt Securities be in the authorized
denominations, registered in such names, and delivered as
specified below.
Dated:
_____________________________
Name _________________________________
[ ]
_____________________________
Address
_______________________________
(Insert Social Security or Other
Identifying Number of Holder)
_______________________________
Signature ______________________________
The Debt Warrants evidenced hereby may be exercised at the
following address:
Attention:
[Instructions as to form and delivery of Debt Securities
and Debt Warrant Certificates evidencing unexercised Debt
Warrants to be provided as appropriate.]
[If Registered Debt Warrant]
Assignment
(Form of Assignment To Be Executed Upon
Transfer of Debt Warrants Evidenced Hereby)
FOR VALUE RECEIVED, _____________________________ hereby sells,
assigns and transfers unto
Please insert social security or other
identifying number
____________________________________
_____________________________
____________________________________
(Please print name and address
including zip code)
_______________________________________________________________
__________
[__________ of] the Debt Warrant[s] represented by the within
Debt Warrant Certificate and does hereby irrevocably constitute
and appoint _________________________________ as Attorney to
transfer said Debt Warrant[s] on the books of the Debt Warrant
Agent with full power of substitution in the premises.
Dated:
_____________________________________
Signature
(Signature must conform in all respects
to name of holder as specified on the face
of this Debt Warrant Certificate and must bear
a signature guaranteed by a bank, trust
company, or member broker of the New York,
Midwest, or Pacific Stock Exchange.)
Signature Guaranteed:
_______________________________
November 14, 1995
PepsiCo, Inc.
700 Anderson Hill Road
Purchase, New York 10577
Dear Sir or Madam:
I am Vice President and Assistant General Counsel of
PepsiCo, Inc. (the "Company"), and have acted as its counsel
in connection with the registration under the Securities Act
of 1933, as amended (the "Act") of $4,587,000,000 of (i) the
Company's debt securities, consisting of notes, debentures,
and other evidences of unsecured indebtedness (the "Debt
Securities"), proposed to be issued under an Indenture,
dated as of December 14, 1994, between the Company and the
Chase Manhattan Bank (National Association), as Trustee (the
"Indenture"), included as an exhibit to the Registration
Statement (as defined below), (ii) warrants to purchase Debt
Securities (the "Debt Warrants"), proposed to be issued
under a debt warrant agreement to be entered into between
the Company and The Chase Manhattan Bank, (National
Association), as Debt Warrant Agent (the "Debt Warrant
Agreement"), in substantially the form included as an
exhibit to the Registration Statement, and (iii) other
warrants, options, and unsecured contractual obligations of
the Company (the "Shelf Warrants"), proposed to be issued
under one or more shelf warrant agreements to be entered
into between the Company and The Chase Manhattan Bank
(National Association), or such other bank or trust company
as may be identified in any supplement to the Prospectus
filed as part of the Registration Statement (any such
agreement a "Shelf Warrant Agreement"), in substantially the
form to be filed as an exhibit to the Registration Statement
at or prior to the issuance of any Shelf Warrants subject
thereto.
You have requested my opinion in connection with the
Registration Statement on Form S-3 relating to the Debt
Securities, Debt Warrants and Shelf Warrants (collectively,
the "Securities"), which Registration Statement is being
filed by the Company with the Securities and Exchange on
this date (the "Registration Statement").
It is my opinion that the Securities have been duly
authorized and will be duly, validly and legally issued and
will be binding obligations of the Company when (i) with
respect to the Debt Warrants, the Debt Warrant Agreement
shall have been duly authorized, executed, and delivered,
(ii) with respect to any Shelf Warrant, the applicable Shelf
Warrant Agreement shall have been duly authorized, executed,
and delivered, (iii) the applicable provisions of the Act,
of any other federal securities laws, and of the laws
of such other jurisdictions as may be applicable to the
Securities, shall have been complied with, and (iv) the
Securities shall have been duly executed, authenticated, and
delivered against payment therefore in the manner described
in the aforementioned Registration Statement after it has
become effective under the Act.
The opinion expressed above should not be deemed to
encompass compliance with any laws other than those of the
State of New York, the corporation laws of the State of
North Carolina, and the federal laws of the United States of
America.
I hereby consent to the filing of this opinion as an
exhibit to the Registration Statement and to the use of my
name in the Registration Statement under the caption "Legal
Matters". In giving this consent, I do not admit that I am
in the category of persons whose consent is required under
Section 7 of the Act or the rules and regulations of the
Securities and Exchange Commission thereunder.
Very truly yours,
/s/ DOUGLAS CRAM
Douglas Cram
Vice President and Assistant General
Counsel
Exhibit 23 (a)
Consent of Independent Auditors
The Board of Directors
PepsiCo, Inc.
We consent to the use of our audit report dated February 7,
1995 on the consolidated financial statements and schedule
of PepsiCo, Inc. and subsidiaries as of December 31, 1994
and December 25, 1993 and for each of the years in the three
year period ended December 31, 1994 incorporated herein by
reference in the Registration Statement on Form S-3 and in
the related prospectus of PepsiCo, Inc. pertaining to the
registration of $2,500,000,000 principal amount of debt
securities and warrants for PepsiCo, Inc. and to the
reference to our Firm under the heading "Experts" in the
Registration Statement.
Our report refers to PepsiCo Inc.'s adoption of the
Financial Accounting Standards Board's Statement of
Financial Accounting Standards No. 112, "Employers'
Accounting for Postemployment Benefits," and the change in
the method of calculating the market-related value of
pension plan assets used in the determination of pension
expense in 1994, and PepsiCo's adoption of the Financial
Accounting Standards Board's Statements of Financial
Accounting Standards No. 106, "Employers' Accounting for
Postretirement Benefits Other Than Pensions" and No. 109,
"Accounting for Income Taxes" in 1992.
/s/ KPMG PEAT MARWICK LLP
New York, New York
November 14, 1995
EXHIBIT 12
PEPSICO, INC. AND SUBSIDIARIES
Computation of Ratio of Earnings to Fixed Charges (page 1 of 2)
(in millions except ratio amounts, unaudited)
36 Weeks Ended
9/9/95 9/3/94
Earnings:
Income before income taxes and
cumulative effect of accounting
changes $2,132.8 $1,940.9
Joint ventures and minority
interests, net (a) (11.7) (17.2)
Amortization of capitalized
interest 3.5 3.4
Interest expense 481.5 433.9
Amortization of debt
discount 0.3 0.2
Interest portion of rent
expense (b) 111.0 99.6
-------- ------
Earnings available for fixed
charges $2,717.4 $2,460.8
-------- --------
-------- --------
Fixed Charges:
Interest expense $ 481.5 $ 433.9
Capitalized interest 5.8 4.0
Amortization of
debt discount 0.3 0.2
Interest portion of
rent expense (b) 111.0 99.6
----- -----
Total fixed charges $ 598.6 $ 537.7
----- -----
----- -----
Ratio of Earnings
to Fixed Charges 4.54 4.58
---- ----
---- ----
(a) Prior year amounts have been restated to adjust for the effects
of joint ventures and minority interests. The inclusion of
these items did not have a material impact on the previously
reported ratio of earnings to fixed charges.
(b) One-third of net rent expense is the portion deemed
representative of the interest factor.
PEPSICO, INC. AND SUBSIDIARIES
Computation of Ratio of Earnings to Fixed Charges (page 2 of 2)
(in millions except ratio amounts, unaudited)
53 Weeks
Ended 52 Weeks Ended
-------------------------
12/31/94 12/25/93 12/26/92 12/28/91 12/29/90
Earnings: (c) (c)
Income from continuing
operations before income
taxes and cumulative
effect of accounting
changes $2,664.4 $2,422.5 $1,898.8 $1,659.7 $1,653.8
Joint ventures and
minority interests,
net (a) (19.6) (5.8) (0.6) (6.1) (17.9)
Amortization of
capitalized interest 5.2 5.0 5.0 4.5 5.3
Interest expense 645.0 572.7 586.1 613.7 686.0
Amortization of
debt discount 0.3 0.2 0.3 0.3 0.3
Interest portion of net
rent expense (b) 150.0 134.4 121.4 103.4 87.4
----- ----- ----- ----- ----
Earnings available for
fixed charges $3,445.3 $3,129.0 $2,611.0 $2,375.5 $2,414.9
------- ------- ------- ------- -------
------- ------- ------- ------- -------
Fixed Charges:
Interest expense $ 645.0 $ 572.7 $ 586.1 $ 613.7 $686.0
Capitalized interest 4.7 6.5 6.6 10.0 8.6
Amortization of
debt discount 0.3 0.2 0.3 0.3 0.3
Interest portion of net
rent expense (b) 150.0 134.4 121.4 103.4 87.4
----- ----- ----- ----- ----
Total fixed charges $ 800.0 $ 713.8 $ 714.4 $ 727.4 $782.3
----- ----- ----- ----- -----
----- ----- ----- ----- -----
Ratio of Earnings
to Fixed Charges 4.31 4.38 3.65 3.27 3.09
---- ---- ---- ---- ----
---- ---- ---- ---- ----
(a) Prior year amounts have been restated to adjust for the effects
of joint ventures and minority interests. The inclusion of
these items did not have a material impact on the previously
reported ratio of earnings to fixed charges.
(b) One-third of net rent expense is the portion deemed
representative of the interest factor.
(c) To improve comparability, the 1991 and 1990 amounts have been
restated to report, under the equity method of accounting, the
results of previously consolidated snack food businesses in
Spain, Portugal and Greece, which were contributed to the Snack
Ventures Europe joint venture with General Mills, Inc. in late
1992.