EXHIBIT 3.3
AMENDMENT NO. 1 TO
AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT OF
BOTTLING GROUP, LLC
BY AND AMONG
PEPSI BOTTLING HOLDINGS, INC.,
BOTTLING GROUP HOLDINGS, INC. AND
THE PEPSI BOTTLING GROUP, INC.
AMENDMENT NO. 1 TO LIMITED LIABILITY COMPANY AGREEMENT
This Amendment No. 1 is entered into as of the 1st day of January, 2002
by and among Pepsi Bottling Holdings, Inc. ("Pepsi Holdings"), a Delaware
corporation, Bottling Group Holdings, Inc. ("PBG Holdings"), a Delaware
corporation, and The Pepsi Bottling Group, Inc. ("PBG"), a Delaware corporation.
W I T N E S S E T H:
WHEREAS, the parties have previously entered into that certain Amended
and Restated Limited Liability Company Agreement dated as of March 30, 1999 (the
"LLC Agreement"); and
WHEREAS, Pepsi Holdings, PBG Holdings and PBG desire to amend the
provisions of the LLC Agreement in the manner set forth in this Amendment;
NOW, THEREFORE, in consideration of the mutual covenants and agreements
hereinafter set forth, the parties agree as follows:
1. DEFINITIONS. Terms used herein and not otherwise defined herein shall
have the meanings set forth in the LLC Agreement.
2. CERTAIN SPECIAL PROVISIONS REGARDING CERTAIN OPTIONS. The following
provision is hereby added to the LLC Agreement as Section 6.8:
"Section 6.8. Special Provisions Regarding Certain Options.
(a) Upon the exercise of any option to purchase stock of
PepsiCo, Inc. ("PepsiCo") granted to any employee or former employee of
the Company (other than Company employees currently employed by
PepsiCo, PepsiAmericas, Inc., Pepsi Bottling Ventures, LLC or, upon
notice to PBG, any other entity that PepsiCo designates as an anchor
bottler) and which are exercised on or after January 1, 2002, (i) in
accordance with Treasury Regulations Section 1.1032-3, Pepsi Holdings
will be treated as making a Capital Contribution to the Company in an
amount equal to the deduction described in clause (ii) below and,
accordingly, Pepsi Holding's Capital Account will be
increased by such amount; and (ii) the deduction attributable to such
exercise will be claimed by the Company and allocated to Pepsi Holdings
and, accordingly, Pepsi Holding's Capital Account will be decreased by
the amount of such deduction.
(b) Upon the exercise of any option to purchase stock of
PepsiCo granted to any employee or former employee of New Bern
Transport Corporation, a wholly owned subsidiary of the Company ("New
Bern") (other than former New Bern employees currently employed by
PepsiCo, PepsiAmericas, Inc., Pepsi Bottling Ventures, LLC or, upon
notice to PBG, any other entity that PepsiCo designates as an anchor
bottler) and which are exercised on or after January 1, 2002, (i) in
accordance with Treasury Regulations Section 1.1032-3, Pepsi Holdings
will be treated as making a Capital Contribution to the Company in an
amount equal to the amount described in clause (ii) below and,
accordingly, Pepsi Holding's Capital Account will be increased by such
amount (and the Company, in turn, will be treated as making a capital
contribution to New Bern in the same amount); and (ii) an amount of
items of loss or deduction of the Company equal to the New Bern
Deduction will be allocated to Pepsi Holdings and, accordingly, Pepsi
Holding's Capital Account will be decreased by the amount of such items
of loss or deduction. "New Bern Deduction" means, with respect to the
exercise of any option described in the preceding sentence, the
deduction claimed by New Bern that is attributable to such exercise.
(c) If, as a result of a Final Determination (as defined
below), the adjustments to Pepsi Holdings' Capital Account pursuant to
Section 6.8(a) or (b) are not respected, then, beginning in the Fiscal
Year in which such Final Determination occurs (i) if the net adjustment
results in a decrease to Pepsi Holdings' Capital Account, items of
income or gain of the Company equal in amount to such decrease will be
allocated to Pepsi Holdings and (ii) if the net adjustment results in
an increase to Pepsi Holdings' Capital Account, then items of loss or
deduction of the Company equal in amount to such increase will be
allocated to Pepsi Holdings. "Final Determination" means (A) a
"determination" as defined in Section 1313 (a) of the Code, (B) the
date of acceptance by or on behalf of the IRS of Form 870-AD (or any
successor form thereto), as a final resolution of Tax liability for any
Taxable period, except that a Form 870-AD (or successor form thereto)
that reserves the right of the taxpayer to file a claim for refund or
the right of the IRS to assert a further deficiency shall not
constitute a Final Determination with respect to the item or items so
reserved; or (C) the payment of Tax, or the filing of an amended Tax
return, by the Company or any party to this Agreement, whichever is
responsible for payment of such Tax or filing of such return, with
respect to any item disallowed or adjusted by a Taxing authority,
provided that the party paying such Tax or filing such return has
notified the other parties to this Agreement that it has determined
that no action should be taken to recoup such disallowed or adjusted
item."
3. DISTRIBUTIONS. Section 6.6 of the LLC Agreement is hereby amended by
adding the following after subsection (b);
"(c) The aggregate cash distributions referred to in the first
proviso of Section 6.6(a) shall be determined and made on an
annual basis and the Company shall distribute to Pepsi
Holdings its pro rata share of such annual distributions no
later than 30 days after the date on which the members are
furnished with tax information, as provided in Section 7.2(b),
for the taxable year with respect to which such distributions
were determined."
4. MISCELLANEOUS. (a) The provisions of Articles XIII and XIV of the LLC
Agreement shall be incorporated by reference herein and each reference therein
to the LLC Agreement shall apply to this Amendment as if this Amendment were
referred to therein.
(b) Except to the extent amended or supplemented as set forth in this
Amendment, all provisions of the LLC Agreement are and shall remain in full
force and effect and are hereby ratified and confirmed in all respects, and the
execution, delivery and effectiveness of this Amendment shall not operate as a
waiver or amendment of any provision of the LLC Agreement not specifically
amended or supplemented by this Amendment.
IN WITNESS WHEREOF, the parties have executed and delivered this
Amendment as of the day and year first written above.
Pepsi Bottling Holdings, Inc.
By: /s/ Matthew M. McKenna
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Its: President
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Bottling Group Holdings, Inc.
By: /s/ Geoffrey Kupferschmid
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Its: Vice President
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Pepsi Bottling Group, Inc.
By: /s/ Steven M. Rapp
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Its: Vice President
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