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-99.6 — 1996-97 Stock Option
| EX-99.6 | 1st Page of 8 | TOC | ↑Top | Previous | Next | ↓Bottom | Just 1st |
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EXHIBIT 6
SEVEN-UP/RC BOTTLING COMPANY OF SOUTHERN CALIFORNIA, INC.
1996-1997 STOCK OPTION PLAN
ARTICLE I
Purpose of Plan
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The 1996-1997 Stock Option Plan (the "Plan") of Seven-Up/RC Bottling
Company of Southern California, Inc. (the "Company"), adopted by the Board of
Directors of the Company on January 30, 1997 (the "Adoption Date"), for
directors, officers, executives, and other key employees of the Company, is
intended to advance the best interests of the Company by providing those persons
who have a substantial responsibility for its management and growth with
additional incentives by allowing them to acquire an ownership interest in the
Company and thereby encouraging them to contribute to the success of the Company
and to remain in its employ. The availability and offering of stock options
under the Plan also increases the Company's ability to attract and retain
individuals of exceptional managerial talent upon whom, in large measure, the
sustained progress, growth, and profitability of the Company depends.
ARTICLE II
Definitions
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For purposes of the Plan, except where the context clearly indicates
otherwise, the following terms 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) a Participant's theft or embezzlement, or
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attempted theft or embezzlement, of money or property of the Company, a
Participant's perpetration or attempted perpetration of fraud, or a
Participant's participation in a fraud or attempted fraud, on the Company or a
Participant's unauthorized appropriation of, or a Participant's 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 a
Participant injurious to the interest, property, operations, business, or
reputation of the Company or a Participant's conviction of a crime the
commission of which results in injury to the Company or (iii) a Participant's
failure or inability (other than by reason of Disability) to carry out
effectively his 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.
"Change of Control" means with respect to the Company and its
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Subsidiaries, (a) the consummation of a sale, transfer, or other disposition of
all or substantially all of the assets of the Company (determined on a
consolidated basis) after the Adoption Date, (b) any transfer of voting power
with respect to the Company's capital stock after the Adoption Date (whether
effected by agreement among stockholders, irrevocable proxy, voting trust,
issuance or transfer of capital stock, merger, consolidation, or other
reorganization or means, including a reorganization under bankruptcy or
insolvency laws) if as a result of such transfer a Person (including a "group,"
as such term is defined under Section 13(d)(3) of the Exchange Act) becomes the
beneficial owner of shares of the Company having 50% or more of the total number
of votes that may be cast for the election of directors of the Company, (c) a
change in the composition of the Board arising as the result of, or in
connection with, any cash tender offer or exchange offer, merger or other
business combination, sale of assets or contested election, or any combination
of the foregoing transactions (a "Transaction"), such that the persons who were
directors of the Company before the Transaction shall cease to constitute a
majority of the Board or the board of directors of any successor to the Company,
or (d) the adoption by the Company of a plan of liquidation or dissolution
(other than pursuant to a bankruptcy or insolvency) after the Adoption Date.
"Code" shall mean the Internal Revenue Code of 1986, as amended,
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and 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 $0.01
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per share, or if 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 the inability, due to illness, accident,
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injury, physical or mental incapacity or other disability, of any Participant to
carry out effectively such Participant's 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
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.
"Options" shall have the meaning set forth in Article IV.
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"Participant" shall mean any director, officer, executive, or other
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key employee of the Company who has been selected to participate in the Plan by
the Committee or the Board.
"Person" means an individual, a partnership, a corporation, a limited
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liability company, an association, a joint stock company, a trust, a joint
venture, an unincorporated organization and a governmental entity or any
department, agency or political subdivision thereof.
"Subsidiary" means a corporation, association, or other business
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entity of which the Company holds, directly or indirectly, fifty percent (50%)
or more of the outstanding capital stock having ordinary voting power to elect a
majority of the board of directors of such corporation (irrespective of whether
any other class or classes of capital stock of such corporation may have voting
power by reason or the happening of any contingencies).
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"Sale of the Company" shall mean (i) a merger or consolidation
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effecting a change in control of the Company with and into another Person
pursuant to which the Company is not the surviving Person of such merger or
consolidation, (ii) a sale of all or substantially all of the Company's assets,
or (iii) a sale of a majority of the Company's outstanding voting securities.
ARTICLE III
Administration
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The Plan shall be administered by the Committee; provided, that the
Board may, in its discretion, at any time and from time to time, resolve to
administer the Plan, in which case the term "Committee" shall be deemed to mean
the Board for all purposes herein. Subject to the limitations of the Plan, the
Committee shall be authorized to: (i) select Participants, (ii) grant Options
(as defined in Article IV below) to Participants in such forms and amounts as it
shall determine, (iii) impose such limitations, restrictions, and conditions
upon such Options as it shall deem appropriate, (iv) interpret the Plan and
adopt, amend, or rescind administrative guidelines and other rules and
regulations relating to the Plan, (v) correct any defect or omission or
reconcile any inconsistency in the Plan or in any Option granted hereunder, and
(vi) make all other determinations and take all other actions necessary or
advisable for the implementation and administration of the Plan. Decisions of
the Committee on all matters within its authority and relating to the Plan shall
be conclusive and binding upon the Participants, the Company, and all other
Persons. All expenses associated with the administration of the Plan shall be
borne by the Company. No member of the Committee and no officer of the Company
shall be liable for any action taken or omitted to be taken by such member or
officer, by any other member of the Committee, or by any officer of the Company
in connection with the performance of such Person's duties under the Plan,
except for such Person's own willful misconduct or as expressly provided by
statute.
ARTICLE IV
Limitation on Aggregate Shares
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The number of shares of Common Stock with respect to which options may
be granted under the Plan (the "Options") and which may be issued upon the
exercise thereof shall not exceed, in the aggregate, 417,693 shares; provided,
that the type and the aggregate number of shares of Common Stock that may be
subject to Options shall be subject to adjustment in accordance with the
provisions of paragraph 6.8 below; provided further, that to the extent any
Options expire unexercised or are canceled, terminated, or forfeited in any
manner without the issuance of Common Stock thereunder, or if any Options are
exercised and the shares of Common Stock issued thereunder are repurchased by
the Company, such shares shall again be available under the Plan. The shares of
Common Stock available under the Plan may be either authorized and unissued
shares, treasury shares, or a combination thereof, as the Committee shall
determine in its sole discretion.
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ARTICLE V
Awards
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5.1 Options. The Committee may grant Options to Participants
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in accordance with this Article V.
5.2 Form of Option. Options granted under this Plan shall be
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nonqualified stock options and are not intended to be "incentive stock options"
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within the meaning of Section 422A of the Code or any successor provision.
5.3 Exercise Price. The option exercise price per share of Common
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Stock shall be fixed by the Committee from time to time at $8.00 (the "Exercise
Price").
5.4 Exercisability. Options shall be exercisable at such time or
--------------
times as the Committee shall determine at or subsequent to the time of grant.
5.5 Payment of Exercise Price.
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(a) Options shall 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 the Exercise Price. Payment of the Exercise Price shall be
made in (i) in cash (including check, bank draft or money order), (ii) by
delivery of outstanding shares of Common Stock with a Fair Market Value on the
date of exercise equal to the aggregate Exercise Price payable with respect to
the exercise of such Options, (iii) by simultaneous sale through a broker
reasonably acceptable to the Committee of shares of Common Stock acquired on
exercise, as permitted under Regulation T of the Federal Reserve Board, (iv) by
authorizing the Company to withhold from issuance a number of shares of Common
Stock issuable upon exercise of the Options which, when multiplied by the Fair
Market Value of a share of Common Stock on the date of exercise is equal to the
aggregate Exercise Price payable with respect to the Options so exercised, or
(v) by any combination of the foregoing. Options may also be exercised upon
payment of the Exercise Price of the shares of Common Stock to be acquired by
delivery of the Participant's promissory note, but only to the extent
specifically approved by and in accordance with the policies of the Committee.
(b) In the event that a Participant elects to pay the Exercise Price
payable with respect to an Option pursuant to Section 5.5(a)(ii) 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) such Participant must present
evidence acceptable to the Company that such Participant has owned any such
shares of Common Stock tendered in payment of the Exercise 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, and (C)
Common Stock must be delivered to the Company. Delivery for this purpose may,
at the election of the Participant, be made either by (A) physical delivery of
the certificate(s) for all such shares of Common Stock tendered in payment of
the Exercise Price, accompanied by duly executed instruments of transfer in a
form acceptable to the Company, or (B) direction to the Participant's broker to
transfer, by book entry, such shares of Common Stock from a brokerage account of
the Participant to a brokerage account specified by the Company. When payment
of the Exercise Price is made by delivery of Common Stock, the difference, if
any, between the aggregate Exercise Price payable with respect to the Option
being exercised and the Fair Market Value of the share(s) of Common Stock
tendered in payment thereof (plus any applicable taxes) shall be paid
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in cash. No Participant may tender shares of Common Stock having a Fair Market
Value exceeding the aggregate Exercise Price payable with respect to the Option
being exercised.
(c) In the event that a Participant elects to pay the Exercise Price
payable with respect to an Option pursuant to Section 5.5(a)(iv) above, (A) only
a whole number of share(s) of Common Stock (and not fractional shares of Common
Stock) may be withheld in payment thereof and (B) such Participant must present
evidence acceptable to the Company that such Participant has owned a number of
shares of Common Stock at least equal to the number of shares of Common Stock to
be withheld in payment of the aggregate Exercise 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. When payment
of the aggregate Exercise Price is made by the Company's withholding shares of
Common Stock, the difference, if any, between the aggregate Exercise Price
payable with respect to the Option being exercised and the Fair Market Value of
the share(s) of Common Stock withheld in payment thereof (plus any applicable
taxes) shall be paid in cash. No Participant may authorize the withholding of
shares of Common Stock having a Fair Market Value exceeding the aggregate
Exercise Price payable with respect to the Option being exercised. Any withheld
shares of Common Stock shall no longer be issuable under such Option.
5.6 Terms of Options. The Committee shall determine the term of
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each Option, which term shall in no event exceed ten years from the date of
grant.
ARTICLE VI
General Provisions
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6.1 Conditions and Limitations on Exercise. Options may be made
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exercisable in one or more installments, upon the happening of certain events,
upon the passage of a specified period of time, upon the fulfillment of certain
conditions or upon the achievement by the Company of certain performance goals,
as the Committee shall decide in each case when the Options are granted. Unless
otherwise provided herein or in the terms of the related Option Agreement (as
defined below), a Participant may exercise an Option only if such Participant
is, and has been continuously since the date the Option was granted to such
Participant, a director, officer, or employee of the Company.
6.2 Sale of the Company. In the event of a Sale of the Company or a
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Change of Control, the Committee may provide, in its discretion, that the
Options shall become immediately exercisable by any Participants who are
employed by the Company at the time of the Sale of the Company and that such
Options shall terminate if not exercised as of the date of the Sale of the
Company or other prescribed period of time.
6.3 Written Agreement. Each Option granted hereunder to a
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Participant shall be embodied in a written agreement (an "Option Agreement")
which shall be signed by the Participant and by the Chairman or the President of
the Company for and in the name and on behalf of the Company and shall be
subject to the terms and conditions of the Plan prescribed in the Agreement
(including, but not limited to, (i) the right of the Company and such other
Persons as the Committee shall designate ("Designees") to repurchase from each
Participant, and such Participant's transferees, all shares of Common Stock
issued or issuable to such Participant on the exercise of an Option in the event
of such Participant's termination of employment, (ii) rights of first refusal
granted to the Company and Designees, (iii) holdback and other registration
right restrictions in the event of a public registration of any equity
securities of the Company, and (iv) any other terms and conditions which the
Committee shall deem necessary and desirable).
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6.4 Listing, Registration, and Compliance with Laws and Regulations.
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Options shall be subject to the requirement that if at any time the Committee
shall determine, in its discretion, that the listing, registration, or
qualification of the shares of Common Stock subject to the Options upon any
securities exchange or under any state or federal securities law or other law or
regulation, or the consent or approval of any governmental regulatory body, is
necessary or desirable as a condition to or in connection with the granting of
the Options or the issuance or purchase of shares of Common Stock thereunder, no
Options may be granted or exercised, in whole or in part, unless such listing,
registration, qualification, consent, or approval shall have been effected or
obtained free of any conditions not acceptable to the Committee. The holders of
such Options shall supply the Company with such certificates, representations,
and information as the Company shall request and shall otherwise cooperate with
the Company in obtaining such listing, registration, qualification, consent or
approval. In the case of officers of the Company and other Persons subject to
Section 16(b) of the Exchange Act, the Committee may, at any time, impose any
limitations upon the exercise of an Option that, in the Committee's sole
discretion, are necessary or desirable in order to comply with such Section
16(b) and the rules and regulations promulgated thereunder. If the Company, as
part of an offering of securities or otherwise, finds it desirable because of
federal or state regulatory requirements to reduce the period during which any
Options may be exercised, the Committee, may, in its sole discretion and without
the Participant's consent, so reduce such period on not less than 15 days
written notice to the holders thereof.
6.5 Nontransferability. Options may not be transferred other than
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by will or the laws of descent and distribution and, during the lifetime of the
Participant, may be exercised only by such Participant (or his legal guardian or
legal representative). In the event of the death of a Participant, exercise of
Options granted hereunder shall be made only:
(i) by the executor or administrator of the estate of the deceased
Participant or the Person or Persons to whom the deceased Participant's rights
under the Option shall pass by will or the laws of descent and distribution; and
(ii) to the extent that the deceased Participant was entitled thereto
at the date of his death, unless otherwise provided by the Committee in such
Participant's Option Agreement.
6.6 Expiration of Options.
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(a) Normal Expiration. In no event shall any part of any Option be
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exercisable after the date of expiration thereof (the "Expiration Date"), as
determined by the Committee pursuant to paragraph 5.6 above.
(b) Early Expiration Upon Termination of Employment. Except as
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otherwise provided by the Committee in the Option Agreement, any portion of a
Participant's Option that was not vested and exercisable on the date of the
termination of such Participant's employment with the Company shall expire and
be forfeited as of such date, and any portion of a Participant's Option that was
vested and exercisable on the date of the termination of such Participant's
employment with the Company shall expire and be forfeited as of such date,
except that: (i) if any Participant dies or becomes subject to any Disability,
such Participant's Option shall expire 180 days after the date of his death or
Disability, but in no event after the Expiration Date, (ii) if any Participant
retires (with the approval of the Board), his Option shall expire 90 days after
the date of his retirement, but in no event after the Expiration Date, and (iii)
if any Participant is discharged other than for Cause, such Participant's Option
shall expire 30 days after the date of his discharge, but in no event after the
Expiration Date.
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6.7 Withholding Taxes. The Company shall be entitled, if
-----------------
necessary or desirable, to withhold from any Participant from any amounts due
and payable by the Company to such Participant (or secure payment from such
Participant in lieu of withholding) the amount of any withholding or other tax
due from the Company with respect to any shares of Common Stock issuable under
the Options, and the Company may defer such issuance unless indemnified to its
satisfaction.
6.8 Adjustments. In the event of a reorganization,
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recapitalization, 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 outstanding Options, make
such adjustments in the number and type of shares authorized by the Plan, the
number and type of shares covered by outstanding Options, and the Exercise
Prices specified therein as may be determined to be appropriate and equitable.
6.9 Rights of Participant. Nothing in this Option shall
---------------------
interfere with or limit in any way the right of the Company to terminate any
Participant's employment with the Company at any time (with or without Cause),
nor confer upon any Participant any right to continue in the employ of the
Company for any period of time or to continue his present (or any other) rate of
compensation, and except as otherwise provided under this Plan or by the
Committee in the Option Agreement, in the event of any Participant's termination
of employment with the Company (including, but not limited to, the termination
of such Participant's employment by the Company without Cause) any portion of
such Participant's Option that was not previously vested and exercisable shall
expire and be forfeited as of the date of such termination. No employee shall
have a right to be selected as a Participant or, having been so selected, to be
reselected as a Participant.
6.10 Amendment, Suspension, and Termination of Plan. The
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Board or the Committee may suspend or terminate the Plan (or any portion
thereof) at any time and may amend the Plan from time to time in such respects
as the Board or the Committee may deem advisable; provided, that no such
amendment shall be made without approval of the Company's Stockholders to the
extent such approval is required by law, agreement, or the rules of any exchange
upon which the Common Stock is then listed, and no such amendment, suspension,
or termination shall impair the rights of Participants under outstanding Options
without the consent of the Participants affected thereby. No Options shall be
granted hereunder after the tenth anniversary of the adoption by the Company of
the Plan.
6.11 Amendment, Modification, and Cancellation of Outstanding
--------------------------------------------------------
Options. The Committee may amend or modify any Option in any manner to the
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extent that the Committee would have had the authority under the Plan initially
to grant such Option; provided, that no such amendment or modification shall
impair the rights of any Participant under any Option without the consent of
such Participant. With the Participant's consent, the Committee may cancel any
Option and issue a new Option to such Participant.
6.12 Indemnification. In addition to such other rights of
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indemnification as they may have as members of the Board or the Committee, the
members of the Committee shall be indemnified by the Company against all costs
and expenses reasonably incurred by them in connection with any action, suit, or
proceeding to which they or any of them may be party by reason of any action
taken or failure to act under or in connection with the Plan or any Option
granted thereunder, and against all amounts paid by them in settlement thereof
(provided such settlement is approved by independent legal counsel selected by
the Company) or paid by them in satisfaction of a judgment in any such action,
suit, or proceeding; provided, that any such Committee member shall be entitled
to the indemnification rights set forth in this paragraph 6.12 only if such
member has acted in good faith and in a manner that such member reasonably
believed to be in
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or not opposed to the best interests of the Company and, with respect to any
criminal action or proceeding, had no reasonable cause to believe that such
conduct was unlawful, and further provided that upon the institution of any such
action, suit or proceeding a Committee member shall give the Company written
notice thereof and an opportunity, at its own expense, to handle and defend the
same before such Committee member undertakes to handle and defend it on his own
behalf.
* * * *
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Dates Referenced Herein and Documents Incorporated by Reference
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