Tender-Offer Solicitation/Recommendation Statement — Schedule 14D-9
Filing Table of Contents
Document/Exhibit Description Pages Size
1: SC 14D9 Tender-Offer Solicitation/Recommendation Statement 17 96K
2: EX-99.1 Agreement and Plan of Merger 57 186K
11: EX-99.10 Letter to Stockholders 1 9K
12: EX-99.11 Option of Houlihan, Lokey, Howard & Zukin 3 15K
3: EX-99.2 Second Amended & Restated Mgmt. Agreement 15 55K
4: EX-99.3 Management Agreement - Rick Ferguson 8 33K
5: EX-99.4 Management Agreement - Roy Breneman 6 26K
6: EX-99.5 Form of Option Agreement Dated February 3, 1997 8 34K
7: EX-99.6 1996-97 Stock Option 8 36K
8: EX-99.7 Form of Option Agreement Dated February 4, 1997 8 32K
9: EX-99.8 Confidentiality Agreement Dated February 26, 1997 4 17K
10: EX-99.9 Press Release 2± 9K
EX-99.7 — Form of Option Agreement Dated February 4, 1997
| EX-99.7 | 1st Page of 8 | TOC | ↑Top | Previous | Next | ↓Bottom | Just 1st |
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EXHIBIT 7
SEVEN-UP/RC BOTTLING COMPANY OF SOUTHERN CALIFORNIA, INC.
February 4, 1997
[NAME OF OPTIONEE]
c/o Seven-Up/RC Bottling Company of Southern California, Inc.
3220 East 26th Street
Vernon, CA 90023
Re: Seven-Up/RC Bottling Company of Southern California, Inc. (the
"Company") Grant of Nonqualified Stock Option
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Dear [NAME OF OPTIONEE]:
The Company is pleased to advise you that its Board of Directors has
granted to you a stock option (an "Option"), as provided below, under the 1996-
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1997 Stock Option Plan (the "Plan"), a copy of which is attached hereto and the
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terms and conditions of which are incorporated herein by reference.
1. Definitions. For the purposes of this Agreement, the following terms
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shall have the meanings set forth below:
"Board" shall mean the Board of Directors of the Company.
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"Cause" shall mean (i) your theft or embezzlement, or attempted theft
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or embezzlement, of money or property of the Company, your perpetration or
attempted perpetration of fraud, or your participation in a fraud or attempted
fraud, on the Company or your unauthorized appropriation of, or your attempt to
misappropriate, any tangible or intangible assets or property of the Company,
(ii) any act or acts of disloyalty, misconduct, or moral turpitude by you
injurious to the interest, property, operations, business, or reputation of the
Company, or your conviction of a crime the commission of which results in injury
to the Company, or (iii) your failure or inability (other than by reason of your
Disability) to carry out effectively your duties and obligations to the Company
or to participate effectively and actively in the management of the Company, as
determined in the reasonable judgment of the Board.
"Code" shall mean the Internal Revenue Code of 1986, as amended, and
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any successor statute.
"Committee" shall mean the Compensation Committee of the Board. The
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membership of the Compensation Committee shall be constituted so as to comply at
all times with the applicable requirements of Rule 16b-3 under the Exchange Act
and Section 162(m) of the Code.
"Common Stock" shall mean the Company's Common Stock, par value $.01
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per share, or, in the event that the outstanding Common Stock is hereafter
changed into or exchanged for different stock or securities of the Company, such
other stock or securities.
"Disability" shall mean your inability, due to illness, accident,
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injury, physical or mental incapacity or other disability, to carry out
effectively your duties and obligations to the Company or to participate
effectively and actively in the management of the Company for a period of at
least 90 consecutive days or for shorter periods aggregating at least 120 days
(whether or not consecutive) during any twelve-month period, as determined in
the reasonable judgment of the Board.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
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"Fair Market Value" of a share of Common Stock means, as of the date
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in question, the officially-quoted closing selling price of such share (or if no
selling price is quoted, the bid price) on the principal securities exchange on
which the Common Stock is then listed for trading (including, for this purpose,
any over-the-counter market) (the "Market") for the immediately preceding
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trading day or, if the Common Stock is not then listed or quoted in the Market,
the Fair Market Value shall be the fair value of the Common Stock determined in
good faith by the Committee or, in the absence of the Committee, by the Board.
"Option Shares" shall mean (i) all shares of Common Stock issued or
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issuable upon the exercise of the Option and (ii) all shares of Common Stock
issued with respect to the Common Stock referred to in clause (i) above by way
of stock dividend or stock split or in connection with any conversion, merger,
consolidation, or recapitalization or other reorganization affecting the Common
Stock. Option Shares shall continue to be Option Shares in the hands of any
holder other than you (except for the Company), and each such transferee thereof
shall succeed to the rights and obligations of a holder of Option Shares
hereunder.
"Securities Act" shall mean the Securities Act of 1933, as amended,
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and any successor statute.
2. Option.
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(a) Terms. Your Option is for the purchase of up to [_____] shares of
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Common Stock (the "Option Shares") at a price per share of $8.00 (the "Exercise
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Price"), payable upon exercise as set forth in paragraph 2(b) below. Your
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Option shall expire at the close of business on the tenth anniversary of the
date hereof (the "Expiration Date"). Your Option is not intended to be an
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"incentive stock option" within the meaning of Section 422A of the Code.
(b) Payment of Option Price.
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(i) Your Option may be exercised in whole or in part by written notice
to the Company (to the attention of the Company's Secretary) accompanied by
payment in full of an amount (the "Option Price") equal to the product of (A)
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the Exercise Price and (B) the number of Option Shares to be acquired.
(ii) Payment of the Option Price shall be made (A) in cash (including
check, bank draft or money order), (B) by delivery of outstanding shares of
Common Stock with a Fair Market Value on the date of exercise equal to the
Option Price, (C) by simultaneous sale through a broker reasonably acceptable to
the Committee of Option Shares acquired on exercise of your Option, as permitted
under Regulation T of the Federal Reserve Board, (D) by authorizing the Company
to withhold from issuing to you a number of Option Shares which, when multiplied
by the Fair Market Value of a
2
share of Common Stock on the date of exercise of your Option, is equal to the
Option Price, or (E) by any combination of the foregoing. Options may also be
exercised upon payment of the Option Price by delivering your promissory note to
the Company, but only to the extent specifically approved by and in accordance
with the policies of the Committee.
(iii) In the event that you elect to pay the Option Price pursuant
to the provisions of paragraph 2(b)(ii)(B) above, (A) only a whole number of
share(s) of Common Stock (and not fractional shares of Common Stock) may be
tendered in payment thereof, (B) you must present evidence acceptable to the
Company that you have owned any such shares of Common Stock tendered in payment
of the Option Price (and that such tendered shares of Common Stock have not been
subject to any substantial risk of forfeiture) for at least six months prior to
the date of exercise of your Option, and (C) you must deliver Common Stock to
the Company. Delivery for this purpose may, at your election, be made either by
(A) physical delivery of the certificate(s) for all such shares of Common Stock
tendered in payment of the Option Price, accompanied by duly executed
instruments of transfer in a form acceptable to the Company, or (B) direction to
your broker to transfer, by book entry, such shares of Common Stock from your
brokerage account to a brokerage account specified by the Company. When payment
of the Option Price is made by delivery of shares of Common Stock, the
difference, if any, between the Option Price and the Fair Market Value of the
share(s) of Common Stock tendered in payment thereof (plus any applicable taxes)
shall be paid in cash. You may not tender shares of Common Stock having a Fair
Market Value exceeding the Option Price.
(iv) In the event that you elect to pay the Option Price pursuant to
the provisions of paragraph 2(b)(ii)(D) above, (A) only a whole number of Option
Shares (and not fractional Option Shares) may be withheld in payment thereof and
(B) you must present evidence acceptable to the Company that you have owned a
number of shares of Common Stock at least equal to the number of Option Shares
to be withheld in payment of the Option Price (and that such owned shares of
Common Stock have not been subject to any substantial risk of forfeiture) for at
least six months prior to the date of exercise of your Option. When payment of
the Option Price is made by the Company's withholding Option Shares, the
difference, if any, between the Option Price and the Fair Market Value of the
Option Shares withheld in payment thereof (plus any applicable taxes) shall be
paid in cash. You may not authorize the Company to withhold Option Shares
having a Fair Market Value exceeding the Option Price. Any withheld Option
Shares shall no longer be issuable under such Option.
3. Expiration of Option. In no event shall any part of your Option be
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exercisable after the Expiration Date set forth in paragraph 2(a) above.
4. Procedure for Exercise. You may exercise all or any portion of your
----------------------
Option at any time and from time to time prior to its expiration, by delivering
written notice to the Company (to the attention of the Company's Secretary) and
your written acknowledgment that you have read and have been afforded an
opportunity to ask questions of management of the Company regarding all
financial and other information provided to you regarding the Company, together
with payment of the Option Price in accordance with the provisions of paragraph
2(b) above. As a condition to any exercise of your Option, you shall permit the
Company to deliver to you all financial and other information regarding the
Company it believes necessary to enable you to make an informed investment
decision, and you shall make all customary investment representations which the
Company requires.
5. Securities Laws Restrictions and Other Restrictions on Transfer of
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Option Shares. You represent that when you exercise your Option you shall be
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purchasing Option Shares for your own
3
account and not on behalf of others. You understand and acknowledge that
federal and state securities laws govern and restrict your right to offer, sell,
or otherwise dispose of any Option Shares unless your offer, sale, or other
disposition thereof is registered under the Securities Act and state securities
laws, or in the opinion of the Company's counsel, such offer, sale, or other
disposition is exempt from registration or qualification thereunder. You agree
that you shall not offer, sell or otherwise dispose of any Option Shares in any
manner that would: (i) require the Company to file any registration statement
with the Securities and Exchange Commission (or any similar filing under state
law) or to amend or supplement any such filing or (ii) violate or cause the
Company to violate the Securities Act, the rules and regulations promulgated
thereunder or any other state or federal law. You further understand that the
certificates for any Option Shares you purchase shall bear such legends as the
Company deems necessary or desirable in connection with the Securities Act or
other rules, regulations, or laws.
6. Non-Transferability of Option. Your Option is personal to you and is
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not transferable by you other than by will or the laws of descent and
distribution. During your lifetime only you (or your guardian or legal
representative) may exercise your Option. In the event of your death, your
Option may be exercised only (i) by the executor or administrator of your estate
or the person or persons to whom your rights under the Option shall pass by will
or the laws of descent and distribution and (ii) to the extent that you were
entitled hereunder at the date of your death.
7. Conformity with Plan. Your Option is intended to conform in all
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respects with, and is subject to all applicable provisions of, the Plan (which
is incorporated herein by reference). Inconsistencies between this Option and
the Plan shall be resolved in accordance with the terms of the Plan. By
executing and returning the enclosed copy of this Option, you acknowledge your
receipt of this Option and the Plan and agree to be bound by all of the terms of
this Option and the Plan.
8. Rights of Participants. Nothing in this Option shall interfere with
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or limit in any way the right of the Company to terminate your employment at any
time (with or without Cause), nor confer upon you any right to continue in the
employ of the Company for any period of time or to continue your present (or any
other) rate of compensation, and in the event of your termination of employment
(including, but not limited to, termination by the Company without Cause) any
portion of your Option that was not previously vested and exercisable shall be
forfeited. Nothing in this Agreement shall confer upon you any right to be
selected again as a Plan participant, and nothing in the Plan or this Agreement
shall provide for any adjustment to the number of Option Shares subject to your
Option upon the occurrence of subsequent events except as provided in paragraph
10 below.
9. Withholding of Taxes. The Company shall be entitled, if necessary or
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desirable, to withhold from you from any amounts due and payable by the Company
to you (or secure payment from you in lieu of withholding) the amount of any
withholding or other tax due from the Company with respect to any Option Shares
issuable under this Plan, and the Company may defer such issuance unless
indemnified by you to its satisfaction.
10. Adjustments. In the event of a reorganization, recapitalization,
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stock dividend or stock split, or combination or other change in the shares of
Common Stock, the Board or the Committee may, in order to prevent the dilution
or enlargement of rights under your Option, make such adjustments in the number
and type of shares authorized by the Plan, the number and type of shares covered
by your Option and the Exercise Price specified herein as may be determined to
be appropriate and equitable.
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11. Additional Restrictions on Transfer.
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(a) Restrictive Legend. The certificates representing the Option
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Shares shall bear the following legend:
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE WERE ORIGINALLY ISSUED ON
________, HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "ACT"), OR UNDER ANY STATE SECURITIES LAWS AND MAY NOT BE SOLD
OR TRANSFERRED IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT UNDER
THE ACT AND APPLICABLE STATE SECURITIES LAWS OR AN EXEMPTION FROM
REGISTRATION THEREUNDER."
(b) Opinion of Counsel. You may not sell, transfer, or dispose of any
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Option Shares (except pursuant to an effective registration statement under the
Securities Act) without first delivering to the Company an opinion of counsel
reasonably acceptable in form and substance to the Company that registration
under the Securities Act or any applicable state securities law is not required
in connection with such transfer.
12. Remedies. The parties hereto shall be entitled to enforce their
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rights under this Option specifically, to recover damages by reason of any
breach of any provision of this Option and to exercise all other rights existing
in their favor. The parties hereto acknowledge and agree that money damages
would not be an adequate remedy for any breach of the provisions of this Option
and that any party hereto may, in its sole discretion, apply to any court of law
or equity of competent jurisdiction for specific performance and/or injunctive
relief (without posting bond or other security) in order to enforce or prevent
any violation of the provisions of this Agreement.
13. Amendment. Except as otherwise provided herein, any provision of this
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Agreement may be amended or waived only with the prior written consent of you
and the Company.
14. Successors and Assigns. Except as otherwise expressly provided
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herein, all covenants and agreements contained in this Agreement by or on behalf
of any of the parties hereto shall bind and inure to the benefit of the
respective successors and permitted assigns of the parties hereto whether so
expressed or not.
15. Severability. Whenever possible, each provision of this Option shall
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be interpreted in such manner as to be effective and valid under applicable law,
but if any provision of this Option is held to be prohibited by or invalid under
applicable law, such provision shall be ineffective only to the extent of such
prohibition or invalidity, without invalidating the remainder of this Option.
16. Counterparts. This Option may be executed simultaneously in two or
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more counterparts, each of which shall constitute an original, but all of which
taken together shall constitute one and the same Option.
17. Descriptive Headings. The descriptive headings of this Option are
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inserted for convenience only and do not constitute a part of this Option.
5
18. Governing Law. The corporate law of Delaware shall govern all
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questions concerning the relative rights of the Company and its stockholders.
All other questions concerning the construction, validity and interpretation of
this Option shall be governed by the internal law, and not the law of conflicts,
of New York.
19. Notices. All notices, demands or other communications to be given or
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delivered under or by reason of the provisions of this Option shall be in
writing and shall be deemed to have been given when delivered personally or
mailed by certified or registered mail, return receipt requested and postage
prepaid, to the recipient. Such notices, demands and other communications shall
be sent to you and to the Company at the addresses indicated below:
(a) If to the Optionee:
[NAME OF OPTIONEE]
c/o Seven-Up/RC Bottling Company of Southern California, Inc.
3220 East 26th Street
Vernon, CA 90023
(b) If to the Company:
Seven-Up/RC Bottling Company of Southern California, Inc.
3220 East 26th Street
Vernon, CA 90023
Attention: Louis Janicich
or to such other address or to the attention of such other person as the
recipient party has specified by prior written notice to the sending party.
20. Entire Option. This Option constitutes the entire understanding
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between you and the Company, and supersedes all other Options, whether written
or oral, with respect to the acquisition by you of Common Stock of the Company.
* * * *
6
Please execute this Option in the space on the following page and
return it to the Company's Secretary at its executive offices to confirm your
understanding and acceptance of the agreements contained in this Option.
Very truly yours,
Seven-Up/RC Bottling Company of Southern
California, Inc.
By: ____________________________________________
Name
Title
Enclosures: Copy of the Plan
The undersigned hereby acknowledges having read this Option and the
Plan and hereby agrees to be bound by all provisions set forth herein and in the
Plan.
Dated as of: OPTIONEE
____________, 1997
___________________________________
Name ______________________________
[Provision for Community Property Jurisdiction]
CONSENT
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The undersigned spouse of ___________hereby acknowledges that I have
read the foregoing Option and that I understand its contents. I am aware that
the provides for the repurchase of my spouse's shares of Common Stock under
certain circumstances and imposes other restrictions on the transfer of such
Common Stock. I agree that my spouse's interest in the Common Stock is subject
to the terms and provisions of this Option and any interest I may have in such
Common Stock shall be irrevocably bound by this Option and further that my
community property interest, if any, shall be similarly bound by this Option.
I am aware that the legal, financial and other matters contained in
this Option are complex and I am free to seek advice with respect thereto from
independent counsel. I have either sought such advice or determined after
carefully reviewing this Option that I will waive such right.
______________________________
[Spouse]
______________________________
Witness
Dates Referenced Herein and Documents Incorporated by Reference
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