As filed with the Securities and Exchange Commission on May 3, 2002
Registration No. 333-______
SECURITIES AND EXCHANGE COMMISSION
450 FIFTH STREET, N.W.
Washington, D.C. 20549
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 or Other Jurisdiction | (I.R.S. Employer Identification No.) |
| of Incorporation or Organization) |
700 Anderson Hill Road
Purchase, New York 10577
(Address of Principal Executive Offices, including zip code)
The PepsiCo Share Award Plan
(Full Title of the Plan)
Thomas H. Tamoney, Jr.
Vice President and Associate General Counsel
PepsiCo, Inc.
700 Anderson Hill Road
Purchase, New York 10577
(914) 253-3623
(Name, Address and Telephone Number, including area code, of Agent for Service)
CALCULATION OF REGISTRATION FEE
| Proposed | ||||
|---|---|---|---|---|
| Proposed Maximum | Maximum | |||
| Title of Securities | Amount to be | Offering Price | Aggregate Offering | Amount of |
| to be Registered |
Registered (1) |
Per Share (2) |
Price (2) |
Registration Fee |
| Common Stock, | 150,000 Shares | $52.23 | $7,834,500 | $720.77 |
| Par value 1 2/3 cents | ||||
| per share |
(1)
In addition, pursuant to Rule 416 under the Securities Act of 1933, this
Registration Statement also covers an indeterminable number of shares
that may be offered and issued pursuant to stock splits, stock dividends or
similar transactions.
(2)
Estimated in accordance with Rule 457(h) of the Securities Act of 1933, as
amended, solely for the purpose of determining the registration fee.
PART I
INFORMATION REQUIRED IN THE SECTION 10(a)
PROSPECTUS
ITEM 1. Plan Information.*
ITEM 2. Registrant Information and Employee Plan's Annual Information.*
*Information required by Part I to be contained in the Section 10(a) prospectus is omitted from this Registration Statement in accordance with Rule 428 under the Securities Act of 1933, as amended (the “Securities Act”), and the Note to Part I of Form S-8.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. Incorporation of Documents by Reference
PepsiCo, Inc. (the "Registrant") and The PepsiCo Share Award Plan (the "Plan") hereby incorporate by reference in this Registration Statement the following documents previously filed with the Securities and Exchange Commission (the "SEC"):
(1) the Registrant's Annual Report on Form 10-K filed pursuant to Section 13 of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), for its fiscal year ended December 29, 2001,
(2) the Registrant's Quarterly Report on Form 10-Q filed for the quarter ended March 23, 2002,
(3) Registrant's Current Reports on Form 8-K filed with the SEC on February 6, 2002, February 11, 2002, February 12, 2002 and April 23, 2002, and
(4) the description of the Registrant's Common Stock, par value 1-2/3 cents per share, contained in the Registrant's Registration Statement on Form 8-A, pursuant to Section 12(b) of the Exchange Act, and all amendments and reports filed for the purpose of updating such description.
All documents subsequently filed by the Registrant with the SEC under Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to the filing of a post-effective amendment to this Registration Statement which indicates that all securities offered have been sold or which deregisters all securities then remaining unsold, shall be deemed to be incorporated by reference in this Registration Statement and to be a part hereof from the date of filing of such documents. Any statement in a document incorporated or deemed to be incorporated by reference herein shall be deemed to be modified or superseded for the purposes of this Registration Statement to the extent that a statement contained herein or in any other subsequently filed document which also is or deemed to be incorporated by reference herein modifies or supersedes such statement. Any statement so modified or superseded shall not be deemed, except as so modified or superseded, to constitute a part of this Registration Statement. Any of the foregoing documents will be furnished to participants in the Plan without charge, upon written or oral request.
ITEM 4. Description of Securities
Not applicable.
ITEM 5. Interests of Named Experts and Counsel
The legality of the shares of Common Stock issuable under the Plan has been passed upon for the Registrant by Thomas H. Tamoney, Jr., Esq., Vice President and Associate General Counsel of the Registrant. Mr. Tamoney holds options to purchase shares of the Registrant's Common Stock.
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:
"Section. 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.
Section 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.
Section 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.
Section 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.
Section 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.
Section 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); or (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.
Section 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.
Section 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 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.
Section 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 3.7 of Article III of the By-Laws of PepsiCo, Inc. 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 3.7 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, Inc. 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, Inc. has entered into indemnification agreements with its directors whereby (with certain exceptions) PepsiCo, Inc. 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 7. Exemption from Registration Claimed
Not applicable.
ITEM 8. Exhibits
| Exhibit No. | Description |
|---|---|
| 4.1 | Amended and Restated Articles of Incorporation of PepsiCo, Inc., which are incorporated |
| herein by reference to Exhibit 4.1 to PepsiCo, Inc.'s Registration Statement on Form S-8 | |
| (Registration No. 333-66632). | |
| 4.2 | By-laws of PepsiCo, Inc., as amended on August 2, 2001, which are incorporated herein by |
| reference to Exhibit 4.2 to PepsiCo, Inc.'s Registration Statement on Form S-8 | |
| (Registration No. 333-66632). | |
| 4.3 | The PepsiCo Share Award Plan. |
| 5 | Opinion and consent of Thomas H. Tamoney, Jr., Esq., Vice President and Associate General |
| Counsel of the Registrant, relating to the legality of securities being registered. | |
| 15 | Letter re: Unaudited Interim Financial Information. |
| 23.1 | Consent of KPMG LLP. |
| 23.2 | Consent of Thomas H. Tamoney, Jr., Esq., Vice President and Associate General Counsel of the |
| Registrant (included in his opinion filed as Exhibit 5 hereto). | |
| 24 | Power of Attorney executed by Steven S Reinemund, Indra K. Nooyi, Peter A. Bridgman, |
| John F. Akers, Robert E. Allen, David R. Andrews, Roger A. Enrico, Peter Foy, Ray L. Hunt, | |
| Arthur C. Martinez, Robert S. Morrison, Franklin D. Raines, Sharon Percy Rockefeller, | |
| Franklin A. Thomas, Cynthia M. Trudell, Solomon D. Trujillo and Daniel Vasella. | |
ITEM 9. Undertakings
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:
| (a) to include any prospectus required by Section 10(a)(3) of the Securities Act; |
| (b) 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. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the SEC pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than a 20% change in the maximum aggregate offering price set forth in the “Calculation of Registration Fee” table in the effective registration statement; and |
| (c) 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 (1)(a) and (1)(b) 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 Exchange Act that are incorporated by reference in this Registration Statement.
(2) That, for the purpose of determining any liability under the Securities Act, 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.
The undersigned Registrant hereby undertakes that, for the purposes of determining any liability under the Securities Act, each filing of the Registrant’s annual report pursuant to Section 13(a) or Section 15(d) of the Exchange Act (and, where applicable, each filing of an employee benefit plan’s annual report pursuant to Section 15(d) of the Exchange Act) that is incorporated by reference in this 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.
Insofar as indemnification for liabilities arising under the Securities Act 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 SEC such indemnification is against public policy as expressed in the Securities Act 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 and will be governed by the final adjudication of such issue.
SIGNATURES
The Registrant. Pursuant to the requirements of the Securities Act, 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 Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Purchase, State of New York, on May 2, 2002.
| PepsiCo, Inc. By: /s/ Thomas H. Tamoney, Jr. Name: Thomas H. Tamoney, Jr. Title: Vice President and Associate General Counsel |
Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed by the following persons in the capacities and on the dates indicated as of May 2, 2002.
| Principal Executive Officer: | |
| Steven S Reinemund* | Chairman of the Board |
| and Chief Executive Officer | |
| Principal Financial Officer: | |
| Indra K. Nooyi* | President, |
| Chief Financial Officer and | |
| Director | |
| Principal Accounting Officer: | |
| Peter A. Bridgman* | Senior Vice President |
| and Controller | |
| Directors: | |
| John F. Akers | ) |
| Robert E. Allen | ) |
| Roger A. Enrico | ) |
| Peter Foy | ) |
| Ray L. Hunt | ) |
| Arthur C. Martinez | ) |
| Robert S. Morrison | )* |
| Franklin D. Raines | ) |
| Sharon Percy Rockefeller | ) |
| Franklin A. Thomas | ) |
| Cynthia M. Trudell | ) |
| Solomon D. Trujillo | ) |
| Daniel Vasella | ) |
| * By: /s/ Thomas H. Tamoney, Jr. Thomas H. Tamoney, Jr. Attorney-in-Fact |
EXHIBIT INDEX
| Exhibit No. | Description |
|---|---|
| 4.1 | Amended and Restated Articles of Incorporation of PepsiCo, Inc., which are incorporated |
| herein by reference to Exhibit 4.1 to PepsiCo, Inc.'s Registration Statement on Form S-8 | |
| (Registration No. 333-66632). | |
| 4.2 | By-laws of PepsiCo, Inc., as amended on August 2, 2001, which are incorporated herein by |
| reference to Exhibit 4.2 to PepsiCo, Inc.'s Registration Statement on Form S-8 | |
| (Registration No. 333-66632). | |
| 4.3 | The PepsiCo Share Award Plan. |
| 5 | Opinion and consent of Thomas H. Tamoney, Jr., Esq., Vice President and Associate General |
| Counsel of the Registrant, relating to the legality of securities being registered. | |
| 15 | Letter re: Unaudited Interim Financial Information. |
| 23.1 | Consent of KPMG LLP. |
| 23.2 | Consent of Thomas H. Tamoney, Jr., Esq., Vice President and Associate General Counsel of the |
| Registrant (included in his opinion filed as Exhibit 5 hereto). | |
| 24 | Power of Attorney executed by Steven S Reinemund, Indra K. Nooyi, Peter A. Bridgman, |
| John F. Akers, Robert E. Allen, David R. Andrews, Roger A. Enrico, Peter Foy, Ray L. Hunt, | |
| Arthur C. Martinez, Robert S. Morrison, Franklin D. Raines, Sharon Percy Rockefeller, | |
| Franklin A. Thomas, Cynthia M. Trudell, Solomon D. Trujillo and Daniel Vasella. | |
EXHIBIT 4.3
THE PEPSICO
SHARE AWARD PLAN
(effective
May 1, 2002)
1. Purpose.
The purposes of The PepsiCo Share Award Plan (the “Plan”) are to provide long-term incentives to certain non-employee advisors and consultants with significant responsibility for the success and growth of PepsiCo, Inc. and its subsidiaries, divisions and affiliated businesses (collectively, “PepsiCo”), to assist PepsiCo in attracting and retaining such advisors and consultants, and to associate the interests of such advisors and consultants with those of PepsiCo’s shareholders.
2. Administration of the Plan.
The Plan shall be administered by the Chief Executive Officer and Senior Vice President, Personnel of PepsiCo, Inc. (the "Plan Administrators").
The Plan Administrators shall have all the powers vested in it by the terms of the Plan, such powers to include the authority (within the limitations described herein) to select the advisors or consultants to be granted awards under the Plan, to determine the size and terms of awards to be made to each advisor and consultant selected, to determine the time when awards will be granted and any conditions which must be satisfied by the advisor or consultant before an award is made, to establish objectives and conditions for earning awards, to determine whether such conditions have been met and whether awards will be paid at the end of the award period, and to determine whether payment of an award should be reduced or eliminated.
The Plan Administrators 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 businesses the Plan Administrators deem necessary or advisable. The Plan Administrators’ interpretations of the Plan, and all actions taken and determinations made by the Plan Administrators pursuant to the powers vested in them hereunder, shall be conclusive and binding on all parties concerned, including PepsiCo, its shareholders and any person receiving an award under the Plan.
The Plan Administrators may, in their sole and absolute discretion, delegate any or all of the foregoing powers and authorities to such person or persons as they deem necessary or advisable for the proper administration of the Plan.
3. Eligibility.
Key advisors and consultants of PepsiCo are eligible to be granted awards under the Plan. An advisor or consultant is eligible to be granted awards under the Plan only if such advisor or consultant is a natural person who provides bona fide services to PepsiCo and such services are not in connection with the offer or sale of securities in a capital-raising transaction and do not directly or indirectly promote or maintain a market for PepsiCo securities. Employees and directors of PepsiCo are not eligible for awards under the Plan.
4. Awards.
Awards under the Plan include only shares of PepsiCo Common Stock.
5. Shares of Stock Subject to the Plan.
The shares that may be delivered or purchased under the Plan shall not exceed an aggregate of 150,000 shares of Common Stock, as adjusted, if appropriate, pursuant to Section 6 hereof.
6. Dilution and Other Adjustments.
In the event of any change in the outstanding shares of Common Stock by reason of any split, stock dividend, recapitalization, merger, consolidation, combination or exchange of shares or other similar corporate change, such equitable adjustments shall be made in the Plan and the awards thereunder as the Plan Administrators determine are necessary and appropriate, including, if necessary, an adjustment in the maximum number or kind of shares subject to the Plan. Such adjustment shall be conclusive and binding for all purposes of the Plan.
7. Miscellaneous Provisions.
(a) Rights as Shareholder. A participant in the Plan shall have no rights as a holder of Common Stock with respect to awards hereunder, unless and until certificates for shares of Common Stock are issued to the participant.
(b) Assignment or Transfer. Unless the Plan Administrators shall specifically determine otherwise, no award under the Plan shall be assignable or transferable by a participant prior to the time such award is made and certificates for shares of Common Stock are issued to the participant.
(c) Requirements for Transfer. No share of Common Stock shall be issued or transferred under the Plan until all legal requirements applicable to the issuance or transfer of such shares have been complied with to the satisfaction of the Plan Administrators. The Plan Administrators shall have the right to condition any issuance of shares of Common Stock made to any participant upon such participant’s written undertaking to comply with such restrictions on his subsequent disposition of such shares as the Plan Administrators or PepsiCo shall deem necessary or advisable as a result of any applicable law, regulation or official interpretation thereof, and certificates representing such shares may be legended to reflect any such restrictions.
(d) Withholding Taxes. With respect to any award, PepsiCo shall have the right to require the participant to pay (through withholding from payments owed to the participant or otherwise) any taxes required to be withheld under applicable law. The obligations of PepsiCo to make delivery of awards shall be subject to any other restrictions imposed by any government.
(e) No Rights to Awards. Except as set forth herein, no person shall have any claim or right to be granted an award under the Plan. Neither the Plan nor any action taken hereunder shall be construed as giving any person any right to be retained in the employ of PepsiCo.
(f) Costs and Expenses. The cost and expenses of administering the Plan shall be borne by PepsiCo and not charged to any award nor to any person receiving an award.
(g) Funding of Plan. 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.
8. Effective Date, Amendments and Termination.
(a) Effective Date. The Plan shall become effective on May 1, 2002 (or, if later, the date the Plan is approved by PepsiCo's Board of Directors).
(b) Amendments. The Plan Administrators may at any time terminate or from time to time amend the Plan in whole or in part, but no such action shall adversely affect any rights or obligations with respect to any awards theretofore made under the Plan. Unless the Board of Directors of PepsiCo shall have first approved thereof, no amendment of the Plan shall be effective which would increase the maximum number of shares of PepsiCo Common Stock which may be delivered under the Plan (except to the extent such amendment is made pursuant to Section 6 hereof) or modify the requirements as to eligibility for participation in the Plan.
(c) Termination. No awards shall be made under the Plan after May 1, 2012.
EXHIBIT 5
OPINION AND CONSENT OF THOMAS H. TAMONEY, JR.
[PepsiCo, Inc. Letterhead]
May 2, 2002
The Board of Directors
PepsiCo, Inc.
700 Anderson Hill Road
Purchase, New York 10577
Dear Ladies and Gentlemen:
I have acted as counsel to PepsiCo, Inc., a North Carolina corporation (the “Company”), in connection with the registration on Form S-8 (the “Registration Statement”) under the Securities Act of 1933, as amended (the “Act”), of 150,000 shares of the Company’s Common Stock (the “Shares”), to be issued in accordance with the terms of The PepsiCo Share Award Plan (the “Plan”).
I have reviewed such corporate records, documents and questions of law and fact I have considered necessary or appropriate for the purposes of this opinion.
Based on such review, I am of the opinion that the Shares registered pursuant to the Registration Statement to which this opinion is an exhibit, when issued in accordance with the terms of the Plan, will be validly issued, fully paid and nonassessable.
I consent to the filing of this opinion letter as an exhibit to the Registration Statement.
This opinion letter is rendered as of the date above and I disclaim any obligation to advise you of facts, circumstances, events or developments which may alter, affect or modify the opinion expressed herein.
| Very truly yours, /s/ Thomas H. Tamoney, Jr. Thomas H. Tamoney, Jr. Vice President and Associate General Counsel |
EXHIBIT 15
Accountants’ Acknowledgment
PepsiCo, Inc.
Purchase, New York
Ladies and Gentlemen:
Re: Registration Statement on Form S-8 of PepsiCo, Inc. pertaining to The PepsiCo Share Award Plan.
With respect to the subject registration statement, we acknowledge our awareness of the use therein of our report dated April 23, 2002 related to our review of interim financial information.
Pursuant to Rule 436 under the Securities Act of 1933, such report is 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.
| Very truly yours, /s/ KPMG LLP |
New York, New York
May 2, 2002
EXHIBIT 23.1
Consent of KPMG LLP
We consent to the use of our audit report dated February 6, 2002, with respect to the Consolidated Balance Sheet of PepsiCo, Inc. and Subsidiaries as of December 29, 2001 and December 30, 2000, and the related Consolidated Statements of Income, Cash Flows and Common Shareholders’ Equity for each of the years in the three-year period ended December 29, 2001, incorporated herein by reference in the Registration Statement on Form S-8 of PepsiCo, Inc. pertaining to The PepsiCo Share Award Plan.
| /s/ KPMG LLP |
New York, New York
May 2, 2002
EXHIBIT 24
POWER OF ATTORNEY
PepsiCo, Inc. ("PepsiCo") and each of the undersigned, an officer or director, or both, of PepsiCo, do hereby appoint David R. Andrews and Thomas H. Tamoney, Jr. and each of them severally, its, his or her true and lawful attorney-in-fact to execute on behalf of PepsiCo and the undersigned the following document and any and all amendments thereto (including post-effective amendments):
| Form S-8 Registration Statement required to be filed by PepsiCo and any of its subsidiaries for The PepsiCo Share Award Plan; |
and to file the same, with all exhibits thereto and other documents in connection therewith, and each of such attorneys shall have the power to act hereunder with or without the other.
IN WITNESS WHEREOF, the undersigned has executed this instrument on May 1, 2002
By: |
PepsiCo, Inc. /s/ David R. Andrews David R. Andrews Senior Vice President, Government Affairs General Counsel and Secretary | |
| /s/ Steven S Reinemund | /s/ Arthur C. Martinez | |
| Steven S Reinemund | Arthur C. Martinez | |
| Chairman of the Board and | Director | |
| Chief Executive Officer |
||
| /s/ Indra K. Nooyi | /s/ Robert S. Morrison | |
| Indra K. Nooyi | Robert S. Morrison | |
| Director, President, | Vice Chairman of the Board | |
| and Chief Financial Officer | ||
| /s/ Peter A. Bridgman | /s/ Franklin D. Raines | |
| Peter A. Bridgman | Franklin D. Raines | |
| Senior Vice President and Controller (Chief Accounting Officer) |
Director | |
| /s/ John F. Akers | /s/ Sharon Percy Rockefeller | |
| John F. Akers Director |
Sharon Percy Rockefeller Director | |
| /s/ Robert E. Allen | /s/ Franklin A. Thomas | |
| Robert E. Allen Director |
Franklin A. Thomas Director | |
| /s/ Roger A. Enrico | /s/ Cynthia M. Trudell | |
| Roger A. Enrico Director |
Cynthia M. Trudell Director | |
| /s/ Peter Foy | /s/ Solomon D. Trujillo | |
| Peter Foy Director |
Solomon D. Trujillo Director | |
| /s/ Ray L. Hunt | /s/ Daniel Vasella | |
| Ray L. Hunt Director |
Daniel Vasella Director |