Exhibit 10.1
Repurchase Plan
10b5-1 Repurchase
Plan
Repurchase Plan, dated
September 6, 2005 (this “Repurchase Plan”),
between PepsiAmericas, Inc. (the “Issuer”) and
Citigroup Global Markets, Inc.
(“CGMI”).
WHEREAS, the Issuer desires to
establish this Repurchase Plan to repurchase shares of its common
stock (the “Stock”); and
WHEREAS, the Issuer desires to
engage CGMI to effect repurchases of shares of Stock in accordance
with this Repurchase Plan;
NOW, THEREFORE, the Issuer and CGMI
hereby agree as follows:
1.
(a) Subject to the
Issuer’s continued compliance with Section 2 hereof,
CGMI shall effect a purchase or purchases (each, a
“Purchase”) of up to 2,000,000 shares of the Stock (the
“Total Plan Shares”) as set forth in Annex
1.
(b) Purchases may be made in
the open market or through privately negotiated transactions.
CGMI shall comply with the requirements of paragraphs (b)(2),
(b)(3) and (b)(4) of Rule 10b-18 under the
Securities Exchange Act of 1934, as amended (the “Exchange
Act”), in connection with Purchases of Stock in the open
market pursuant to this Repurchase Plan. The Issuer agrees
not to take any action that would cause Purchases not to comply
with Rule 10b-18, Rule 10b5-1 or Regulation M.
2.
The Issuer shall pay to CGMI a
commission of $.02 cents per share of Stock repurchased pursuant to
this Repurchase Plan. In accordance with CGMI’s customary
procedures, CGMI will deposit shares of Stock purchased hereunder
into an account established by CGMI for the Issuer against payment
to CGMI of the purchase price therefor and commissions and other
amounts in respect thereof payable pursuant to this Section.
The Issuer will be notified of all transactions pursuant to
customary trade confirmations.
3.
(a) This Repurchase Plan shall
become effective immediately and shall terminate upon the first to
occur of the following:
(1) the ending of the Trading
Period, as set forth in Annex 1;
(2) the purchase of the number
of Total Plan Shares pursuant to this Repurchase Plan;
(3) the end of the second
business day following the date of receipt by CGMI of notice of
early termination substantially in the form of Appendix A hereto,
delivered by telecopy, transmitted to (212) 723-8019, Attention:
Andrew Geissler, and confirmed by telephone to Andrew Geissler at
(212) 723-7022;
(4) the commencement of any
voluntary or involuntary case or other proceeding seeking
liquidation, reorganization or other relief under any bankruptcy,
insolvency or similar law or seeking the appointment of a trustee,
receiver or other similar official, or the taking of any corporate
action by the Issuer to authorize or commence any of the
foregoing;
(5) the public announcement of
a tender or exchange offer for the Stock or of a merger,
acquisition, recapitalization or other similar business combination
or transaction as a result of which the Stock would be exchanged
for or converted into cash, securities or other property;
or
(6) the failure of the Issuer
to comply with Section 2 hereof.
(b) Sections 2 and 13 of this
Repurchase Plan shall survive any termination hereof. In
addition, the Issuer’s obligation under Section 2 hereof
in respect of any shares of Stock purchased prior to any
termination hereof shall survive any termination hereof.
4.
The Issuer understands that CGMI may
not be able to effect a Purchase due to a market disruption or a
legal, regulatory or contractual restriction or internal policy
applicable to CGMI or otherwise. If any Purchase cannot be
executed as required by Section 1 due to a market disruption,
a legal, regulatory or contractual restriction or internal policy
applicable to CGMI or any other event, such Purchase shall be
cancelled and shall not be effected pursuant to this Repurchase
Plan.
2
5.
The Issuer represents and warrants,
on the date hereof and on the date of any amendment hereto, that:
(a) it is not aware of material, nonpublic information with
respect to the Issuer or any securities of the Issuer (including
the Stock), (b) it is entering into or amending, as the case
may be, this Repurchase Plan in good faith and not as part of a
plan or scheme to evade the prohibitions of
Rule 10b5-1
