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As filed with the Securities and Exchange Commission on September 16, 1996
Registration No. 33-22970
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
POST-EFFECTIVE AMENDMENT NO. 4
TO
FORM S-8
REGISTRATION STATEMENT
Under
The Securities Act of 1933
PepsiCo, Inc.
(Exact name of registrant as specified in its charter)
North Carolina 13-1584302
(State of Incorporation) (I.R.S. No.)
Purchase, New York 10577
(Address of principal executive offices, including zip code)
Director Stock Plan
(Full title of the Plan)
Kathleen Allen Luke, Esq.
Vice President, Corporate Division Counsel
PepsiCo, Inc.
Purchase, New York 10577
(Name and address of agent for service)
(914) 253-3691
(Telephone number, including area code, of agent for service)
EXPLANATION STATEMENT
This Post-Effective Amendment No. 4 to Registration Statement No. 33-22970
contains the form of reoffer prospectus to be used by certain non-employee
directors of PepsiCo, Inc. in order to permit such persons to sell or otherwise
dispose of securities received as grants under, or upon the exercise of stock
options granted under, the Director Stock Plan.
PROSPECTUS
600,000 Shares
PepsiCo, Inc.
CAPITAL STOCK
(Par Value 1-2/3 Cents Per Share)
This Prospectus relates to an aggregate of 600,000 shares of Capital
Stock, par value 1-2/3 cents per share ("Capital Stock"), of PepsiCo, Inc.
("PepsiCo"), offered by or for the account of certain non-employee directors of
PepsiCo (the "Selling Stockholders") in order to permit such persons to sell or
otherwise dispose of such securities from time to time. Certain information
concerning the Selling Stockholders and their ownership of PepsiCo Capital Stock
is set forth below under the caption "SELLING STOCKHOLDERS".
PepsiCo will not receive any of the proceeds from the sales of shares
offered hereby.
PepsiCo is incorporated under the laws of the State of North Carolina.
The principal executive offices of PepsiCo are located at Purchase, New York
10577 (Telephone No. (914) 253-2000).
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES
AND EXCHANGE COMMISSION, NOR HAS THE COMMISSION PASSED UPON THE ACCURACY OR
ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL
OFFENSE.
No person has been authorized to give any information or to make any
representations, other than those contained or incorporated by reference in this
Prospectus, in connection with the offer contained in this Prospectus and, if
given or made, such information or representations must not be relied upon as
having been authorized by PepsiCo. This Prospectus shall not constitute an offer
to sell or the solicitation of an offer to buy nor shall there be any sales of
these securities in any jurisdiction in which such offer, solicitation or sale
would be unlawful prior to registration or qualification under the securities
laws of any such jurisdiction. Neither delivery of this Prospectus nor any sale
made hereunder shall, under any circumstances, create any implication that the
information herein is correct as of any time subsequent to the date hereof.
The date of this Prospectus is September 16, 1996
AVAILABLE INFORMATION
PepsiCo is subject to the information requirements of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and in accordance
therewith files reports with the Securities and Exchange Commission (the
"Commission"). Such reports, proxy statements and other information filed by
PepsiCo with the Commission can be inspected and copied at the public reference
facilities maintained by the Commission at Room 1024, 450 Fifth Street, N.W.,
Washington, D.C. 20549, and at the Commission's regional offices at 7 World
Trade Center, Suite 1300, New York, New York 10048 and 500 West Madison Street,
Suite 1400, Chicago, Illinois 60661. Copies of such material can also be
obtained from the Public Reference Section of the Commission, 450 Fifth Street,
N.W., Washington, D.C. 20549 at prescribed rates. In addition, such reports,
proxy statements and other information can be inspected at the offices of the
New York Stock Exchange, Inc., 20 Broad Street, New York, New York 10005 and
Chicago Stock Exchange, 440 South LaSalle Street, Chicago, Illinois 60605, on
which shares of PepsiCo's Capital Stock are listed.
PepsiCo has filed a Registration Statement with the Commission under the
Securities Act of 1933, as amended, with respect to the securities offered
hereby. For further information regarding PepsiCo, reference should be made to
the Registration Statement, the documents incorporated by reference therein and
the exhibits relating thereto.
DOCUMENTS INCORPORATED BY REFERENCE
The information listed below, which has been filed by PepsiCo with the
Commission, is specifically incorporated herein by reference:
(a) PepsiCo's Annual Report on Form 10-K for its fiscal year ended
December 30, 1995;
(b) PepsiCo's proxy statement filed pursuant to Section 14 of the
Securities Exchange Act of 1934 in connection with its 1996 Annual
Meeting of Shareholders;
(c) PepsiCo's Quarterly Report on Form 10-Q/A for the twelve weeks ended
March 23, 1996;
(d) PepsiCo's Quarterly Report on Form 10-Q for the twelve and twenty-four
weeks ended June 15, 1996;
(e) PepsiCo's Current Report on Form 8-K dated January 10, 1996;
(f) PepsiCo's Current Report on Form 8-K dated February 7, 1996;
(g) PepsiCo's Current Report on Form 8-K dated May 2, 1996;
(h) PepsiCo's Current Report on Form 8-K dated May 13, 1996; and
(i) PepsiCo's Current Report on Form 8-K dated August 12, 1996.
All documents filed by PepsiCo pursuant to Section 13(a), 13(c), 14 or
15(d) of the Securities Exchange Act of 1934 after the date hereof, and prior to
the filing of a post-effective amendment indicating the termination of the
offering of the securities offered hereby, shall be deemed to be incorporated by
reference herein and to be a part hereof from the date of filing of such
documents.
Any statement contained herein, or in a document all or a portion of
which is incorporated by reference herein, shall be deemed to be modified or
superseded for purposes hereof to the extent that a statement contained herein
(or in any other subsequently filed document which also is or is deemed to be
incorporated by reference herein) modifies or supersedes such statement. Any
statement so modified or superseded shall not be deemed to constitute a part
hereof except as so modified or superseded.
PepsiCo will furnish without charge to each person to whom this
Prospectus is delivered, upon written or oral request, a copy of any or all of
the documents incorporated herein by reference (not including exhibits to such
documents, unless such exhibits are specifically incorporated by reference in
such documents). Requests should be addressed to: PepsiCo, Inc., Purchase, New
York 10577, Attention: Manager of Shareholder Relations, (914) 253-3055.
THE OFFERING
The shares covered by this Prospectus were, or are expected to be,
acquired by the Selling Stockholders through the grant of PepsiCo Capital Stock
or as a result of the exercise of stock options granted under PepsiCo's Director
Stock Plan (the "Plan").
The shares of Capital Stock being offered hereby may be sold from time
to time in transactions on national securities exchanges, or in privately
negotiated transactions, at market prices prevailing at the time of sale or at
negotiated prices.
Selling Stockholders may sell some or all of the shares in transactions
involving broker-dealers, who may act solely as agent and/or may acquire shares
as principal. Broker-dealers participating in such transactions as agent may
receive commissions from Selling Stockholders (and, if they act as agent for the
purchaser of such shares, from such purchaser) computed in appropriate cases in
accordance with the applicable rules of the national securities exchange on
which such transactions are consummated, which commissions may be at negotiated
rates where permissible under such rules. Participating broker-dealers may agree
with Selling Stockholders to sell a specified number of shares at a stipulated
price per share, and, to the extent such a broker-dealer is unable to do so
acting as agent for Selling Stockholders, to purchase as principal any unsold
shares at the price required to fulfill the broker-dealer's commitment to
Selling Shareholders.
In addition or alternatively, shares may be sold by Selling Stockholders
and/or by or through broker-dealers in special offerings, exchange distributions
or secondary distributions pursuant to and in compliance with the governing
rules of an appropriate national securities exchange, and in connection
therewith commissions in excess of the customary commission prescribed by the
rules of such securities exchange may be paid to participating broker-dealers,
or, in the case of certain secondary distributions, a discount or concession
from the offering price may be allowed to participating broker-dealers in excess
of such customary commission.
Selling Stockholders and broker-dealers effecting sales on their behalf
may be deemed to be "underwriters" within the meaning of the Securities Act of
1933. Any commissions paid or any discounts or concessions allowed to any such
broker-dealers, and, if any of such broker-dealers purchase such shares as
principal, any profits received on the resale of such shares, may be deemed to
be underwriting discounts and commissions within the meaning of the Securities
Act of 1933.
INDEMNIFICATION FOR SECURITIES ACT LIABILITIES
Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers and controlling persons of
the registrant pursuant to the foregoing provisions, or otherwise, the
registrant has been advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as expressed in the
Securities Act of 1933 and is, therefore, unenforceable. In the event that a
claim for indemnification against such liabilities (other than the payment by
the registrant of expenses incurred or paid by a director, officer or
controlling person of the registrant in the successful defense of any action,
suit or proceeding) is asserted by such director, officer or controlling person
in connection with the securities being registered, the registrant will, unless
in the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in the
Securities Act of 1933 and will be governed by the final adjudication of such
issue.
SELLING STOCKHOLDERS
Information regarding each of the Selling Stockholders, their ownership
of PepsiCo Capital Stock and the amount of PepsiCo Capital Stock which may be
offered for each Selling Shareholder's account will be provided in a supplement
to this Prospectus.
EXPERTS
The consolidated financial statements and schedule of PepsiCo as of
December 30, 1995 and for each of the fiscal years in the three-year period
ended December 30, 1995, included in PepsiCo's Annual Report on Form 10-K for
the fiscal year ended December 30, 1995, have been audited by KPMG Peat Marwick
LLP, independent auditors, as set forth in their report thereon included in such
Annual Report and incorporated herein by reference. The report of KPMG Peat
Marwick LLP covering the December 30, 1995 consolidated financial statements
refers to PepsiCo's adoption of the Financial Accounting Standards Board's
Statement of Financial Accounting Standards No. 121, "Accounting for the
Impairment of Long-Lived Assets and for Long-Lived Assets to Be Disposed Of" in
1995 and PepsiCo's adoption of the Financial Accounting Standards Board's
Statement of Financial Accounting Standards No. 112, "Employers' Accounting for
Postemployment Benefits" and PepsiCo's change in the method of calculating the
market-related value of pension plan assets used in the determination of pension
expense in 1994. Such consolidated financial statements and schedules are
incorporated herein by reference in reliance upon such report given upon the
authority of such firm as experts in accounting and auditing.
With respect to the unaudited condensed consolidated interim financial
information of PepsiCo for the twelve weeks ended March 23, 1996, and for the
twelve and twenty-four weeks ended June 15, 1996, incorporated by reference
herein, KPMG Peat Marwick LLP have reported that they have applied limited
procedures in accordance with professional standards for a review of such
information. However, their separate reports included in PepsiCo's quarterly
reports on Form 10-Q/A for the twelve weeks ended March 23, 1996, and on Form
10-Q for the twelve and twenty-four weeks ended June 15, 1996, incorporated by
reference herein, state that they did not audit and they do not express an
opinion on that condensed consolidated interim financial information.
Accordingly, the degree of reliance on their reports on such information should
be restricted in light of the limited nature of the review procedures applied.
KPMG Peat Marwick LLP are not subject to the liability provisions of Section 11
of the Securities Act for their reports on the unaudited condensed consolidated
interim financial information because those reports are not "reports" or a
"part" of the Registration Statement prepared or certified by accountants within
the meaning of Sections 7 and 11 of the Securities Act.
The financial statements incorporated herein by reference to all
documents subsequently filed by PepsiCo pursuant to Sections 13(a), 13(c), 14,
or 15(d) of the Exchange Act prior to the filing of a post-effective amendment
that indicates that all securities offered hereby have been sold or that
deregisters all securities then remaining unsold, are or will be so incorporated
in reliance upon the reports of KPMG Peat Marwick LLP and any other independent
public accountants relating to such financial information and upon the authority
of such independent public accountants as experts in accounting and auditing in
giving such reports to the extent that the particular firm has audited such
financial statements and consented to the use of their reports thereon.
SUPPLEMENTAL INFORMATION THROUGH USE OF AN
APPENDIX
The information contained in this Prospectus, including, without
limitation, information relating to the Selling Stockholders, may be updated
from time to time by means of an Appendix containing updating information.
DIRECTOR STOCK PLAN
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference
The information listed below, which has been filed by PepsiCo, Inc.
("PepsiCo") with the Securities and Exchange Commission (the "Commission"), is
specifically incorporated herein by reference:
(a) PepsiCo's Annual Report on Form 10-K for its fiscal year
ended December 30, 1995;
(b) PepsiCo's proxy statement filed pursuant to Section 14 of
the Securities Exchange Act of 1934 in connection with its
1996 Annual Meeting of Shareholders;
(c) PepsiCo's Quarterly Report on Form 10-Q/A for the twelve
weeks ended March 23, 1996;
(d) PepsiCo's Quarterly Report on Form 10-Q for the twelve and
twenty-four weeks ended June 15, 1996;
(e) PepsiCo's Current Report on Form 8-K dated January 10, 1996;
(f) PepsiCo's Current Report on Form 8-K dated February 7, 1996;
(g) PepsiCo's Current Report on Form 8-K dated May 2, 1996;
(h) PepsiCo's Current Report on Form 8-K dated May 13, 1996; and
(i) PepsiCo's Current Report on Form 8-K dated August 12, 1996.
All documents filed by PepsiCo pursuant to Section 13(a), 13(c), 14 or
15(d) of the Securities Exchange Act of 1934 after the date hereof, and prior to
the filing of a post-effective amendment indicating the termination of the
offering of the securities offered hereby, shall be deemed to be incorporated by
reference herein and to be a part hereof from the date of filing of such
documents.
Any statement contained in a document incorporated by reference herein
shall be deemed to be modified or superseded for purposes hereof to the extent
that a statement contained herein (or in any other subsequently filed document
which also is or is deemed to be incorporated by reference herein) modifies or
supersedes such statement. Any statement so modified or superseded shall not be
deemed to constitute a part hereof except as so modified or superseded.
Item 5. Interests of Named Experts and Counsel
Legal Opinion
Kathleen Allen Luke, Esq., Vice President, Corporate Division Counsel of
PepsiCo, has rendered an opinion stating that the shares of PepsiCo Capital
Stock registered by Registration Statement No. 33-22970, will, when issued
pursuant to the Plan, be duly and validly issued, fully paid and nonassessable.
Ms. Luke is a full-time employee of PepsiCo and beneficially owns certain
PepsiCo securities, including PepsiCo Capital Stock and options to purchase
PepsiCo Capital Stock.
Experts
The consolidated financial statements and schedule of PepsiCo as of
December 30, 1995 and for each of the fiscal years in the three-year period
ended December 30, 1995, included in PepsiCo's Annual Report on Form 10-K for
the fiscal year ended December 30, 1995, have been audited by KPMG Peat Marwick
LLP, independent auditors, as set forth in their report thereon included in such
Annual Report and incorporated herein by reference. The report of KPMG Peat
Marwick LLP covering the December 30, 1995 consolidated financial statements
refers to PepsiCo's adoption of the Financial Accounting Standards Board's
Statement of Financial Accounting Standards No. 121, "Accounting for the
Impairment of Long-Lived Assets and for Long-Lived Assets to Be Disposed Of" in
1995 and PepsiCo's adoption of the Financial Accounting Standards Board's
Statement of Financial Accounting Standards No. 112, "Employers' Accounting for
Postemployment Benefits" and PepsiCo's change in the method of calculating the
market-related value of pension plan assets used in the determination of pension
expense in 1994. Such consolidated financial statements and schedules are
incorporated herein by reference in reliance upon such report given upon the
authority of such firm as experts in accounting and auditing.
With respect to the unaudited condensed consolidated interim financial
information of PepsiCo for the twelve weeks ended March 23, 1996, and for the
twelve and twenty-four weeks ended June 15, 1996, incorporated by reference
herein, KPMG Peat Marwick LLP have reported that they have applied limited
procedures in accordance with professional standards for a review of such
information. However, their separate reports included in PepsiCo's quarterly
reports on Form 10-Q/A for the twelve weeks ended March 23, 1996, and on Form
10-Q for the twelve and twenty-four weeks ended June 15, 1996, incorporated by
reference herein, state that they did not audit and they do not express an
opinion on that condensed consolidated interim financial information.
Accordingly, the degree of reliance on their reports on such information should
be restricted in light of the limited nature of the review procedures applied.
KPMG Peat Marwick LLP are not subject to the liability provisions of Section 11
of the Securities Act for their reports on the unaudited condensed consolidated
interim financial information
because those reports are not "reports" or a "part" of the Registration
Statement prepared or certified by accountants within the meaning of Sections 7
and 11 of the Securities Act.
The financial statements incorporated herein by reference to all
documents subsequently filed by PepsiCo pursuant to Sections 13(a), 13(c), 14,
or 15(d) of the Exchange Act prior to the filing of a post-effective amendment
that indicates that all securities offered hereby have been sold or that
deregisters all securities then remaining unsold, are or will be so incorporated
in reliance upon the reports of KPMG Peat Marwick LLP and any other independent
public accountants relating to such financial information and upon the authority
of such independent public accountants as experts in accounting and auditing in
giving such reports to the extent that the particular firm has audited such
financial statements and consented to the use of their reports thereon.
Item 6. Indemnification of Directors and Officers
(i)Sections 55-8-50 through 55-8-58 of the North Carolina Business
Corporation Act provide as follows:
ss. 55-8-50. Policy statement and definitions.
(a) It is the public policy of this State to enable corporations
organized under this Chapter to attract and maintain responsible,
qualified directors, officers, employees and agents, and, to that end,
to permit corporations organized under this Chapter to allocate the risk
of personal liability of directors, officers, employees and agents
through indemnification and insurance as authorized in this Part.
(b) Definitions in this Part:
(1)'Corporation' includes any domestic or foreign corporation
absorbed in a merger which, if its separate existence had
continued, would have had the obligation or power to indemnify
its directors, officers, employees, or agents, so that a person
who would have been entitled to receive or request
indemnification from such corporation if its separate existence
had continued shall stand in the same position under this Part
with respect to the surviving corporation.
(2)'Director' means an individual who is or was a director of a
corporation or an individual who, while a director of a
corporation, is or was serving at the corporation's request as a
director, officer, partner, trustee, employee, or agent of
another foreign or domestic corporation, partnership, joint
venture, trust, employee benefit plan, or other enterprise. A
director is considered to be serving an employee benefit plan at
the corporation's request if his duties to the corporation also
impose duties on, or otherwise involve services by, him to the
plan or to participants in or beneficiaries of
the plan. 'Director' includes, unless the context requires
otherwise, the estate or personal representative of a director.
(3)'Expenses' means expenses of every kind incurred in defending
a proceeding, including counsel fees.
(4)'Liability' means the obligation to pay a judgment,
settlement, penalty, fine (including an excise tax assessed with
respect to an employee benefit plan), or reasonable expenses
incurred with respect to a proceeding.
(4a) 'Officer', 'employee' or 'agent' includes, unless the
context requires otherwise, the estate or personal representative
of a person who acted in that capacity.
(5)'Official capacity' means: (i) when used with respect to a
director, the office of director in a corporation; and (ii) when
used with respect to an individual other than a director, as
contemplated in G.S. 55-8-56, the office in a corporation held by
the officer or the employment or agency relationship undertaken
by the employee or agent on behalf of the corporation. 'Official
capacity' does not include service for any other foreign or
domestic corporation or any partnership, joint venture, trust,
employee benefit plan, or other enterprise.
(6)'Party' includes an individual who was, is, or is threatened
to be made a named defendant or respondent in a proceeding.
(7)'Proceeding' means any threatened, pending, or completed
action, suit, or proceeding, whether civil, criminal,
administrative, or investigative and whether formal or informal.
ss. 55-8-51. Authority to Indemnify.
(a) Except as provided in subsection (d), a corporation may indemnify
an individual made a party to a proceeding because he is or was a
director against liability incurred in the proceeding if:
(1)He conducted himself in good faith; and
(2)He reasonably believed (i) in the case of conduct in his
official capacity with the corporation, that his conduct was in
its best interests; and (ii) in all other cases, that his conduct
was at least not opposed to its best interests; and
(3)In the case of any criminal proceeding, he had no reasonable
cause to believe his conduct was unlawful.
(b) A director's conduct with respect to an employee benefit plan for
a purpose he reasonably believed to be in the interests of the
participants in and beneficiaries of the plan is conduct that satisfies
the requirement of subsection (a)(2)(ii).
(c) The termination of a proceeding by judgment, order, settlement,
conviction, or upon a plea of no contest or its equivalent is not, of
itself, determinative that the director did not meet the standard of
conduct described in this section.
(d) A corporation may not indemnify a director under this section:
(1)In connection with a proceeding by or in the right of the
corporation in which the director was adjudged liable to the
corporation; or
(2)In connection with any other proceeding charging improper
personal benefit to him, whether or not involving action in his
official capacity, in which he was adjudged liable on the basis
that personal benefit was improperly received by him.
(e) Indemnification permitted under this section in connection with a
proceeding by or in the right of the corporation that is concluded
without a final adjudication on the issue of liability is limited to
reasonable expenses incurred in connection with the proceeding.
(f) The authorization, approval or favorable recommendation by the
board of directors of a corporation of indemnification, as permitted by
this section, shall not be deemed an act or corporate transaction in
which a director has a conflict of interest, and no such indemnification
shall be void or voidable on such ground.
ss. 55-8-52. Mandatory indemnification.
Unless limited by its articles of incorporation, a corporation shall
indemnify a director who was wholly successful, on the merits or
otherwise, in the defense of any proceeding to which he was a party
because he is or was a director of the corporation against reasonable
expenses incurred by him in connection with the proceeding.
ss. 55-8-53. Advance for expenses.
Expenses incurred by a director in defending a proceeding may be paid
by the corporation in advance of the final disposition of such
proceeding as authorized by the board of directors in the specific case
or as authorized or required under any provision in the articles of
incorporation or bylaws or by any applicable resolution or contract upon
receipt of an undertaking by or on behalf of the
director to repay such amount unless it shall ultimately be determined
that he is entitled to be indemnified by the corporation against such
expenses.
ss. 55-8-54. Court-ordered indemnification.
Unless a corporation's articles of incorporation provide otherwise, a
director of the corporation who is a party to a proceeding may apply for
indemnification to the court conducting the proceeding or to another
court of competent jurisdiction. On receipt of an application, the court
after giving any notice the court considers necessary may order
indemnification if it determines:
(1)The director is entitled to mandatory indemnification under
G.S. 55-8-52, in which case the court shall also order the
corporation to pay the director's reasonable expenses incurred to
obtain court-ordered indemnification; or
(2)The director is fairly and reasonably entitled to
indemnification in view of all the relevant circumstances,
whether or not he met the standard of conduct set forth in G.S.
55-8-51 or was adjudged liable as described in G.S. 55-8-51(d),
but if he was adjudged so liable his indemnification is limited
to reasonable expenses incurred.
ss. 55-8-55. Determination and authorization of indemnification.
(a) A corporation may not indemnify a director under G.S.
55-8-51 unless authorized in the specific case after a
determination has been made that indemnification of the
director is permissible in the circumstances because he has
met the standard of conduct set forth in G.S. 55-8-51.
(b) The determination shall be made:
(1)By the board of directors by majority vote of a quorum
consisting of directors not at the time parties to the
proceeding;
(2)If a quorum cannot be obtained under subdivision (1), by
majority vote of a committee duly designated by the board of
directors (in which designation directors who are parties may
participate), consisting solely of two or more directors not at
the time parties to the proceeding;
(3)By special legal counsel (i) selected by the board of
directors or its committee in the manner prescribed in
subdivision (1) or (2); (ii) if a quorum of the board of
directors cannot be obtained under subdivision (1) and a
committee cannot be designated under subdivision (2), selected by
majority vote of the full board of directors (in which selection
directors who are parties may participate); or
(4)By the shareholders, but shares owned by or voted under the
control of directors who are at the time parties to the
proceeding may not be voted on the determination.
(c) Authorization of indemnification and evaluation as to
reasonableness of expenses shall be made in the same manner as the
determination that indemnification is permissible, except that if the
determination is made by special legal counsel, authorization of
indemnification and evaluation as to reasonableness of expenses shall be
made by those entitled under subsection (b)(3) to select counsel.
ss. 55-8-56. Indemnification of officers, employees, and agents.
Unless a corporation's articles of incorporation provide otherwise:
(1)An officer of the corporation is entitled to mandatory
indemnification under G.S. 55-8-52, and is entitled to apply for
court-ordered indemnification under G.S. 55-8-54, in each case to
the same extent as a director;
(2)The corporation may indemnify and advance expenses under this
Part to an officer, employee, or agent of the corporation to the
same extent as to a director; and
(3)A corporation may also indemnify and advance expenses to an
officer, employee, or agent who is not a director to the extent,
consistent with public policy, that may be provided by its
articles of incorporation, bylaws, general or specific action of
its board of directors, or contract.
ss. 55-8-57. Additional indemnification and insurance.
(a) In addition to and separate and apart from the indemnification
provided for in G.S. 55-8-51, 55-8-52, 55-8-54, 55-8-55 and 55-8-56, a
corporation may in its articles of incorporation or bylaws or by
contract or resolution indemnify or agree to indemnify any one or more
of its directors, officers, employees, or agents against liability and
expenses in any proceeding (including without limitation a proceeding
brought by or on behalf of the corporation itself) arising out of their
status as such or their activities in any of the foregoing capacities;
provided, however, that a corporation may not indemnify or agree to
indemnify a person against liability or expenses he may incur on account
of his activities which were at the time taken known or believed by him
to be clearly in conflict with the best interests of the corporation. A
corporation may likewise and to the same extent indemnify or agree to
indemnify any person who, at the request of the corporation, is or was
serving as a director, officer, partner, trustee, employee, or agent of
another foreign or domestic corporation, partnership, joint venture,
trust or other enterprise or as a trustee or administrator under an
employee benefit plan. Any provision in any articles of incorporation,
bylaw, contract, or resolution permitted under this section may include
provisions for recovery from the corporation of reasonable costs,
expenses, and attorneys' fees in connection with the enforcement of
rights to indemnification granted therein and may further include
provisions establishing reasonable procedures for determining and
enforcing the rights granted therein.
(b) The authorization, adoption, approval, or favorable
recommendation by the board of directors of a public corporation of any
provision in any articles of incorporation, bylaw, contract or
resolution, as permitted in this section, shall not be deemed an act or
corporate transaction in which a director has a conflict of interest,
and no such articles of incorporation or bylaw provision or contract or
resolution shall be void or voidable on such grounds. The authorization,
adoption, approval, or favorable recommendation by the board of
directors of a nonpublic corporation of any provision in any articles of
incorporation, bylaw, contract or resolution, as permitted in this
section, which occurred on or prior to July 1, 1990, shall not be deemed
an act or corporate transaction in which a director has a conflict of
interest, and no such articles of incorporation, bylaw provision,
contract or resolution shall be void or voidable on such grounds. Except
as permitted in G.S. 55-8-31, no such bylaw, contract, or resolution not
adopted, authorized, approved or ratified by shareholders shall be
effective as to claims made or liabilities asserted against any director
prior to its adoption, authorization, or approval by the board of
directors.
(c) A corporation may purchase and maintain insurance on behalf of an
individual who is or was a director, officer, employee, or agent of the
corporation, or who, while a director, officer, employee, or agent of
the corporation, is or was serving at the request of the corporation as
a director, officer, partner, trustee, employee, or agent of another
foreign or domestic corporation, partnership, joint venture, trust,
employee benefit plan, or other enterprise, against liability asserted
against or incurred by him in that capacity or arising from his status
as a director, officer, employee, or agent, whether or not the
corporation would have power to indemnify him against the same liability
under any provision of this Chapter.
ss. 55-8-58. Application of Part.
(a) If articles of incorporation limit indemnification or advance for
expenses, indemnification and advance for expenses are valid only to the
extent consistent with the articles.
(b) This Part does not limit a corporation's power to pay or
reimburse expenses incurred by a director in connection with his
appearance as a witness in
a proceeding at a time when he has not been made a named defendant or
respondent to the proceeding.
(c) This Part shall not affect rights or liabilities arising out of
acts or omissions occurring before July 1, 1990.
(ii) Section 3.07 of Article III of the By-Laws of PepsiCo provides
as follows:
Unless the Board of Directors shall determine otherwise, the
Corporation shall indemnify, to the full extent permitted by law, any
person who was or is, or who is threatened to be made, a party to an
action, suit or proceeding, whether civil, criminal, administrative or
investigative, by reason of the fact that he, his testator or intestate,
is or was a director, officer or employee of the Corporation, or is or
was serving at the request of the Corporation as a director, officer or
employee of another enterprise, against expenses (including attorneys'
fees), judgments, fines and amounts paid in settlement actually and
reasonably incurred by him in connection with such action, suit or
proceeding. Such indemnification may, in the discretion of the Board,
include advances of a director's, officer's or employee's expenses prior
to final disposition of such action, suit or proceeding. The right of
indemnification provided for in this Section 3.07 shall not exclude any
rights to which such persons may otherwise be entitled by contract or as
a matter of law.
(iii) Officers and directors of PepsiCo are presently covered by
insurance which (with certain exceptions and within certain limitations)
indemnifies them against any losses arising from any alleged wrongful act
including any alleged error or misstatement or misleading statement or wrongful
act or omission or neglect of duty.
(iv) PepsiCo has entered into indemnification agreements with its
directors whereby (with certain exceptions) PepsiCo will, in general, indemnify
directors, to the extent permitted by law, against liabilities, costs or
expenses arising out of his or her status as a director by reason of anything
done or not done as a director.
Item 8. Exhibits
The Index to Exhibits is incorporated herein by reference.
Item 9. Undertakings
(a)The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this Registration Statement:
(i) To include any prospectus required by Section 10(a)(3) of
the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising
after the effective date of the Registration Statement (or the most
recent post-effective amendment thereof) which, individually or in
the aggregate, represent a fundamental change in the information set
forth in the Registration Statement;
(iii) To include any material information with respect to the
plan of distribution not previously disclosed in the Registration
Statement or any material change to such information in the
Registration Statement;
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply
if the information required to be included in a post-effective amendment
by those paragraphs is contained in periodic reports filed by the
registrant pursuant to Section 13 or Section 15(d) of the Securities
Exchange Act of 1934 that are incorporated by reference in the
Registration Statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be
deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time shall
be deemed to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at
the termination of the offering.
(b)The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Securities Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to Section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by reference in the
Registration Statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
(c)Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and controlling
persons of the registrant pursuant to the foregoing provisions, or otherwise,
the registrant has been advised that in the opinion of the Securities and
Exchange Commission such indemnification is against public policy as expressed
in the Securities Act of 1933 and is, therefore, unenforceable. In the event
that a claim for indemnification against such liabilities (other than the
payment by the registrant of expenses incurred or paid by a director, officer or
controlling person of the registrant in the successful defense of any action,
suit or proceeding) is asserted by such director, officer or controlling person
in connection with the securities being registered, the registrant will, unless
in the opinion of its counsel the matter has
been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Securities Act of 1933 and will be governed by the
final adjudication of such issue.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-8 and has duly caused this
Post-Effective Amendment No. 4 to Registration Statement No. 33-22970 to be
signed on its behalf by the undersigned, thereunto duly authorized, in Purchase,
New York, on the 16th day of September, 1996.
PepsiCo, Inc.
By: /S/ LAWRENCE F. DICKIE
----------------------------------
Lawrence F. Dickie
Vice President, Associate General
Counsel and Assistant Secretary
Pursuant to the requirements of the Securities Act of 1933, this
Post-Effective Amendment No. 4 to the Registration Statement has been signed by
the following persons in the capacities and on the date indicated.
Signature Title Date
- ----------------------- ------------------------- ----------------
Wayne Calloway * Chairman of the Board Sept. 16, 1996
- ----------------- and Director
(Wayne Calloway)
Roger A. Enrico * Vice Chairman of the Board, Sept. 16, 1996
- -------------------- Chief Executive Officer
(Roger A. Enrico) and Director
Robert G. Dettmer * Executive Vice President Sept. 16, 1996
- -------------------- and Chief Financial
(Robert G. Dettmer) Officer
Robert L. Carleton * Senior Vice President Sept. 16, 1996
- -------------------- and Controller (Chief
(Robert L. Carleton) Accounting Officer)
John F. Akers * Director Sept. 16, 1996
- ----------------
(John F. Akers)
Robert E. Allen * Director Sept. 16, 1996
- ------------------
(Robert E. Allen)
Ray L. Hunt * Director Sept. 16, 1996
- --------------
Ray L. Hunt
John J. Murphy * Director Sept. 16, 1996
- ----------------
(John J. Murphy)
Steven S Reinemund * Director Sept. 16, 1996
- ---------------------
(Steven S Reinemund)
Sharon Percy Rockefeller * Director Sept. 16, 1996
- ---------------------------
(Sharon Percy Rockefeller)
Franklin A. Thomas * Director Sept. 16, 1996
- ---------------------
(Franklin A. Thomas)
P. Roy Vagelos * Director Sept. 16, 1996
- -----------------
(P. Roy Vagelos)
Craig E. Weatherup * Director Sept. 16, 1996
- ---------------------
(Craig E. Weatherup)
Arnold R. Weber * Director Sept. 16, 1996
- ---------------------
(Arnold R. Weber)
*By /s/ LAWRENCE F. DICKIE
-------------------------------
(Lawrence F. Dickie)
Attorney-in-Fact
INDEX TO EXHIBITS
Exhibit No. Description
4(i) Restated Articles of Incorporation of PepsiCo, Inc., filed as
Exhibit 3(i) to PepsiCo, Inc.'s Quarterly Report on Form 10-Q
for the twelve and twenty-four week period ended June 15, 1996,
is incorporated herein by reference
4(ii) Copy of By-Laws of PepsiCo, Inc., as amended to July 25, 1996,
filed as Exhibit 3(ii) of PepsiCo, Inc.'s Quarterly Report on
Form 10-Q for the twelve and twenty-four week period ended June
15, 1996, is incorporated herein by reference
4(iii) Director Stock Plan
5 Opinion and consent of Kathleen Allen Luke, Esq., Vice
President and Corporate Division Counsel of PepsiCo, Inc.
15 Letters from KPMG Peat Marwick LLP regarding unaudited
financial information, incorporated by reference from Exhibit
15 to PepsiCo, Inc.'s Quarterly Report on Form 10-Q/A for the
twelve weeks ended March 23, 1996 and PepsiCo, Inc.'s Quarterly
Report on Form 10-Q for the twelve and twenty-four weeks ended
June 15, 1996, are incorporated herein by reference
23 (a) Consent of KPMG Peat Marwick
(b) The consent of Kathleen Allen Luke, Esq. is contained in
her opinion filed as Exhibit 5 to this Post-Effective
Amendment No. 4 to Registration Statement No. 33-22970
24 (a) Power of Attorney of PepsiCo, Inc. and certain of its
officers and directors, filed as Exhibit 24 to PepsiCo,
Inc.'s Annual Report on Form 10-K for the fiscal year
ended December 30, 1995, is incorporated herein by
reference
(b) Powers of Attorney of Ray L. Hunt, Steven S Reinemund and
Craig E. Weatherup, directors of PepsiCo, Inc., filed as
Exhibit 24(b) to Registration Statement No. 333-09363, is
incorporated herein by reference
EXHIBIT 4(iii)
PEPSICO, INC.
Director Stock Plan
(Effective as of July 1, 1996)
1. Purposes
The principal purposes of the Director Stock Plan (the "Plan") are to
provide compensation to those members of the Board of Directors of PepsiCo, Inc.
("PepsiCo") who are not also employees of PepsiCo, to assist PepsiCo in
attracting and retaining outside directors with experience and ability on a
basis competitive with industry practices, and to associate more fully the
interests of such directors with those of PepsiCo's shareholders.
2. Effective Date
The Plan was unanimously approved by the disinterested
(non-participating) members of the Board of Directors of PepsiCo on July 28,
1988. This amendment and restatement of the Plan reflects the Plan as amended
through July 1, 1996.
3. Administration
The Plan shall be administered and interpreted by the Directors of
PepsiCo who are also employed by PepsiCo ("Employee Directors"). The Employee
Directors are not eligible to participate in the Plan, but shall be eligible to
participate in other PepsiCo benefit and compensation plans.
The Employee Directors shall have full power and authority to administer
and interpret the Plan and to adopt such rules, regulations, agreements,
guidelines and instruments for the administration of the Plan and for the
conduct of its business as the Employee Directors deem necessary or advisable.
The Employee Directors' interpretations of the Plan, and all actions taken and
determinations made by the Employee Directors pursuant to the powers vested in
them hereunder, shall be conclusive and binding on all parties concerned,
including PepsiCo, its directors and shareholders and any employee of PepsiCo.
The costs and expenses of administering the Plan shall be borne by PepsiCo and
not charged against any award or to any participant.
4. Eligibility
Directors of PepsiCo who are not employees of PepsiCo ("Non-Employee
Directors") are eligible to receive awards under the Plan.
5. Awards
Under the Plan Non-Employee Directors shall receive an annual grant of
options to purchase shares of PepsiCo Capital Stock ("Options"), at a fixed
price (the "Exercise Price"), a portion of which award may be converted into the
right to receive shares of PepsiCo Capital Stock, as described herein. Awards
shall be made annually on July 1 of each year or on such other date as is
determined by the Employee Directors. The shares granted or delivered under the
Plan may be newly issued shares of Capital Stock or treasury shares.
The number of Options to be included in each award shall be determined
by dividing $120,000 by the Fair Market Value (as defined below) of a share of
PepsiCo Capital Stock on the grant date, or if such day is not a trading day on
the New York Stock Exchange, on the immediately preceding trading day. "Fair
Market Value" shall mean the average of the high and
low per share sale price for PepsiCo Capital Stock on the composite tape for
securities listed on the New York Stock Exchange for the day in question.
Options shall vest and become immediately exercisable on the grant date
and, unless the Employee Directors specifically determine otherwise, shall not
be assignable or transferable except by will or the laws of descent and
distribution. Each Option shall have an Exercise Price equal to the Fair Market
Value of PepsiCo Capital Stock on the grant date, and shall have a term of ten
years, provided, however, in the event the holder thereof shall cease to be a
director of PepsiCo, or its successor, for a reason other than death, disability
or retirement, such Options shall thereupon immediately terminate and expire.
Each Option shall also be evidenced by a written agreement setting forth the
terms thereof.
With respect to each award, participants may elect to convert up to
three quarters (3/4) of their Options into shares of PepsiCo Capital Stock at
the ratio of three Options for one share.
7. Shares of Stock Subject to the Plan
The shares that may be delivered under this Plan shall not exceed an
aggregate of 600,000 shares of Capital Stock, adjusted, if appropriate, in
accordance with Section 9 below.
8. Deferral
Commencing in 1993, participants may elect to defer some or all of any
stock award into phantom stock units. Participants who elect to defer receipt of
a stock award will be credited with a number of phantom stock units equal to
that number of shares of PepsiCo Capital Stock which they would have received
had they not elected to defer. During the deferral period, the value of these
phantom shares will fluctuate based on the market value of PepsiCo Capital
Stock. Participants will be credited with dividends on phantom shares at the
same rate and time as dividends are declared on PepsiCo Capital Stock. At the
end of the deferral term, participants will receive the value of their phantom
stock units and the amounts credited to them in respect of dividends. The value
of phantom shares will be determined by multiplying the number of phantom shares
by the Fair Market Value of PepsiCo Capital Stock on the last trading day of the
deferral period. All payments of deferred awards will be made in cash.
9. Dilution and Other Adjustments
The number and kind of shares of PepsiCo Capital Stock issuable under
the Plan, or which may be awarded to any participant, may be adjusted
proportionately by the Employee Directors to reflect stock dividends, stock
splits, recapitalizations, mergers, consolidations, combinations or exchanges of
shares or other similar corporate changes.
10. Death, Disability or Retirement
In the event of the death, disability or retirement of a participant
prior to the granting of an award in respect of the fiscal year in which such
event occurred, an award may, in the discretion of a majority of the Employee
Directors, be granted in respect of such fiscal year to the retired or disabled
participant or his or her estate. If any participant shall cease to be a
director for any reason other than death, disability or retirement, his or her
rights to any award in respect of the fiscal year during which such cessation
occurred shall terminate unless the Employee Directors shall determine
otherwise.
11. Withholding Taxes
PepsiCo shall have the right to require the payment (through withholding
from the participant's retainer or otherwise) of any withholding taxes required
by federal, state, local or foreign law in respect of any award.
12. Resale Restrictions, Assignment and Transfer
No rights to receive awards under the Plan shall be assignable or
transferable by a participant except by will or the laws of descent and
distribution.
Once awarded, the shares of Capital Stock received by Plan participants
may be freely transferred, assigned, pledged or otherwise subjected to lien,
subject to restrictions imposed by the Securities Act of 1933, as amended, and
subject to the trading restrictions imposed by Section 16 of the Securities
Exchange Act of 1934. Phantom stock units may not be transferred or assigned
except by will or the laws of descent and distribution.
13. Funding
The Plan shall be unfunded. PepsiCo shall not be required to establish
any special or separate fund or to make any other segregation of assets to
assure the payment of any award under the Plan.
14. Duration, Amendments and Terminations
The Employee Directors may terminate or amend the Plan in whole or in
part, provided, however, that no such action shall adversely affect any rights
or obligations with respect to any awards theretofore granted under the Plan.
The Plan shall continue until terminated.
EXHIBIT 5
September 16, 1996
PepsiCo, Inc.
700 Anderson Hill Road
Purchase, New York 10577
Dear Sir or Madam:
As Vice President, Corporate Division Counsel of PepsiCo, Inc.
("PepsiCo"), I have acted as counsel to PepsiCo in connection with the
Post-Effective Amendment No. 4 (the "Post-Effective Amendment") to Registration
Statement No. 33-22970 on Form S-8 (the "Registration Statement"), which
Post-Effective Amendment is being filed today with the Securities and Exchange
Commission in connection with a resale prospectus for the resale of shares of
PepsiCo Capital Stock, par value 1-2/3 cents per share (the "Shares") granted or
to be granted under, or issued upon the exercise of stock options granted under,
PepsiCo's Director Stock Plan (the "Plan").
In connection with the opinion set forth below, I have examined such
records and documents and have made such investigations of law and fact as I
have deemed necessary.
Based upon the foregoing, it is my opinion that the Shares previously
registered pursuant to the Registration Statement, when sold in accordance with
the terms of the Plan, will be legally issued, fully paid and nonassessable.
I hereby consent to the filing of this opinion as an exhibit to the
Post-Effective Amendment to the Registration Statement and to the use of my name
in the Post-Effective Amendment under the caption "Legal Opinion". 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/ KATHLEEN ALLEN LUKE
----------------------------
Kathleen Allen Luke
Vice President
Corporate Division 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 6, 1996 on the
consolidated financial statements and schedule of PepsiCo, Inc. and Subsidiaries
as of December 30, 1995 and for each of the fiscal years in the three-year
period ended December 30, 1995 incorporated herein by reference in the
Post-Effective Amendment No. 4 to Form S-8 of PepsiCo, Inc. pertaining to the
Director Stock Plan and to the reference to our firm under the heading "Experts"
in the Registration Statement.
Our audit report refers to PepsiCo, Inc.'s adoption of the Financial Accounting
Standards Board's Statement of Financial Accounting Standards No. 121,
"Accounting for the Impairment of Long-Lived Assets and for Long-Lived Assets to
Be Disposed Of" in 1995 and the Company's adoption of the Financial Accounting
Standards Board's Statement of Financial Accounting Standards No. 112,
"Employers' Accounting for Postemployment Benefits" and the Company's change in
the method of calculating the market-related value of pension plan assets used
in the determination of pension expense in 1994.
Further, we acknowledge our awareness of the use therein of our review reports
dated April 30, 1996 and July 23, 1996 related to our review of interim
financial information. Our review reports refer to PepsiCo, Inc.'s adoption of
the Financial Accounting Standards Board's Statement of Financial Accounting
Standards No. 121, "Accounting for the Impairment of Long-Lived Assets and for
Long-Lived Assets to Be Disposed Of" in 1995 and the Company's adoption of the
Financial Accounting Standards Board's Statement of Financial Accounting
Standards No. 112, "Employers' Accounting for Postemployment Benefits" and the
Company's change in the method of calculating the market-related value of
pension plan assets used in the determination of pension expense in 1994.
Pursuant to Rule 436(c) under the Securities Act of 1933, such review reports
are not considered part of a registration statement prepared or certified by an
accountant or a report prepared or certified by an accountant within the meaning
of sections 7 and 11 of the Act.
/s/ KPMG PEAT MARWICK LLP
New York, New York
September 16, 1996