AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
DR PEPPER SNAPPLE GROUP, INC.
Pursuant to Sections 242 and 245
of the Delaware General Corporation Law
Dr Pepper Snapple Group, Inc., a corporation organized and existing under the laws of the
State of Delaware, hereby certifies that:
First: the name of the corporation is Dr Pepper Snapple Group, Inc.;
Second: the original certificate of incorporation of Dr Pepper Snapple Group, Inc. was filed
in the Office of the Secretary of State of the State of Delaware on October 24, 2007 pursuant to
the Delaware General Corporation Law;
Third: pursuant to Sections 242 and 245 of the Delaware General Corporation Law, this Amended
and Restated Certificate of Incorporation restates, integrates and further amends the provisions of
the current Certificate of Incorporation of the corporation;
Fourth: the directors and the stockholders (by written consent of the stockholders in
accordance with Section 228 of the Delaware General Corporation Law) of Dr Pepper Snapple Group,
Inc., in accordance with Sections 242 and 245 of the Delaware General Corporation Law, have duly
adopted and approved this Amended and Restated Certificate of Incorporation; and
Fifth: the certificate of incorporation of Dr Pepper Snapple Group, Inc. is hereby amended
and restated to read in its entirety as follows:
FIRST.
Name
. The name of this corporation is Dr Pepper Snapple Group, Inc. (the
“
Corporation
”).
SECOND.
Registered Office
. The registered office of the Corporation in the State of
Delaware is located at 1209 Orange Street, City of Wilmington, County of New Castle. The name of
the Corporation’s registered agent for service of process in Delaware is The Corporation Trust
Company.
THIRD.
Corporate Purpose
. The nature of the business or purposes of the Corporation
is to engage in any lawful act or activity for which corporations may be organized under the
General Corporation Law of the State of Delaware as it now exists and may hereinafter be amended
(the “
DGCL
”).
FOURTH.
Shares, Classes and Series Authorized
. The total number of shares of all
classes of stock which the Corporation shall have authority to issue is 815,000,000 shares,
consisting of 15,000,000 shares of Preferred Stock, par value $0.01 per share, as more fully
described in Article Fifth, Section A below (the “
Preferred Stock
”), and 800,000,000 shares
of
Dr Pepper Snapple Group, Inc.
Amended and Restated Certificate of Incorporation
1
Common Stock, par value $0.01 per share, as more fully described in Article Fifth, Section B
below (the “
Common Stock
”).
FIFTH. A.
Preferred Stock
.
The shares of Preferred Stock may be divided and issued from time to time in one or more
series as may be designated by the Board of Directors of the Corporation (the “
Board
”),
each such series to be distinctly titled and to consist of the number of shares designated by the
Board. Subject to any limitations prescribed by applicable law or this Certificate of
Incorporation, the Board is hereby expressly vested with authority to fix by resolution the number
of shares constituting such series, the powers, designations, preferences and relative,
participating, optional or other special rights (if any), and the qualifications, limitations or
restrictions thereof (if any), of the Preferred Stock and each series thereof which may be
designated by the Board, including, but without limiting the generality of the foregoing, the
following:
(a) the maximum number of shares to constitute such series, which may
subsequently be increased or decreased (but not below the number of shares of that
series then outstanding) by resolution of the Board, the distinctive designation
thereof and the stated value thereof if different than the par value thereof;
(b) whether the shares of such series shall have voting powers, full or
limited, or no voting powers and, if any, the terms of such voting powers;
(c) the dividend rate, if any, on the shares of such series, the conditions and
dates upon which such dividends shall be payable, the preference or relation which
such dividends shall bear to the dividends payable on any other class or classes or
on any other series of capital stock and whether such dividend shall be cumulative
or noncumulative;
(d) whether the shares of such series shall be subject to redemption by the
Corporation and, if made subject to redemption, the times, prices and other terms,
limitations, restrictions or conditions of such redemption;
(e) the relative amounts and the relative rights or preference, if any, of
payment in respect of shares of such series, which the holders of shares of such
series shall be entitled to receive upon the liquidation, dissolution or winding-up
of the Corporation;
(f) whether or not the shares of such series shall be subject to the operation
of a retirement or sinking fund and, if so, the extent to and manner in which any
such retirement or sinking fund shall be applied to the purchase or redemption of
the shares of such series for retirement or to other corporate purposes and the
terms and provisions relative to the operation thereof;
(g) whether or not the shares of such series shall be convertible into, or
exchangeable for, shares of any other class, classes or series, or other securities,
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whether or not issued by the Corporation, and if so convertible or
exchangeable, the price or prices or the rate or rates of conversion or exchange and
the method, if any, of adjusting same;
(h) the limitations and restrictions, if any, to be effective while any shares
of such series are outstanding upon the payment of dividends or the making of other
distributions on, and upon the purchase, redemption or other acquisition by the
Corporation of, the Common Stock or any other class or classes of stock of the
Corporation ranking junior to the shares of such series either as to dividends or
upon liquidation, dissolution or winding-up;
(i) the conditions or restrictions, if any, upon the creation of indebtedness
of the Corporation or upon the issuance of any additional stock (including
additional shares of such series or of any other series or of any other class)
ranking on a parity with or prior to the shares of such series as to dividends or
distributions of assets upon liquidation, dissolution or winding-up; and
(j) any other preference and relative, participating, optional or other special
rights, and the qualifications, limitations or restrictions thereof, as shall not be
inconsistent with applicable law, this Article Fifth or any resolution of the Board
pursuant hereto.
B.
Common Stock.
All shares of Common Stock shall be identical and shall entitle the holders thereof to the
same rights and privileges. The voting, dividend and liquidation rights of the holders of the
Common Stock are subject to and qualified by the rights of the holders of Preferred Stock of any
series as may be designated from time to time by the Board upon any issuance of Preferred Stock of
any series.
(a)
Dividends
. Dividends may be declared and paid on the Common Stock
then outstanding from funds lawfully available therefor as and when determined by
the Board and subject to any preferential dividend or other rights of any then
outstanding Preferred Stock. The holders of Common Stock then outstanding shall be
entitled to share equally, share for share, in such dividends, whether payable in
cash, in property or in shares of stock of the Corporation.
(b)
Voting Rights
. Each holder of Common Stock then outstanding shall
be entitled to one vote per share held by such holder at all meetings of
stockholders. There shall be no cumulative voting.
(c)
Liquidation
. In the event of any liquidation, dissolution or
winding up of the Corporation, whether voluntary or involuntary, after payment shall
have been made to holders of the Preferred Stock then outstanding of the full
amounts to which they shall be entitled as stated and expressed herein or as may be
stated and expressed pursuant hereto, the holders of Common Stock then outstanding
shall be entitled, to the exclusion of the holders of the Preferred Stock then
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outstanding, to share ratably according to the number of shares of the Common
Stock then outstanding held by them in all remaining assets of the Corporation
available for distribution to its stockholders.
SIXTH.
Perpetual Existence
. The Corporation shall have perpetual existence.
SEVENTH.
Director Liability
.
(a) To the fullest extent permitted by the DGCL, no director of the Corporation
shall be personally liable to the Corporation or its stockholders for monetary
damages for breach of fiduciary duty as a director, except to the extent such
exemption from liability or limitation thereof is not permitted under the DGCL.
(b) No amendment to or repeal of this Article Seventh shall apply to or have
any effect on the liability or alleged liability of any director of the Corporation
for or with respect to any acts or omissions of such director occurring prior to
such amendment.
(c) If the DGCL is amended to authorize corporate action further eliminating or
limiting the liability of directors, then a director of the Corporation shall be
free of liability to the fullest extent permitted by the DGCL.
EIGHTH.
Indemnification
.
(a)
Actions, Suits and Proceedings Other than by or in the Right of the
Corporation
. The Corporation shall indemnify any person who was or is a party
or is threatened to be made a party to any threatened, pending or completed action,
suit or proceeding, whether civil, criminal, administrative or investigative (other
than an action by or in the right of the Corporation) by reason of the fact that the
person is or was a director, officer, employee or agent of the Corporation, or is or
was serving at the request of the Corporation as a director, officer, employee or
agent of another corporation, partnership, joint venture, trust or other entity
(including any employee benefit plan) (all such persons being referred to hereafter
as an “
Indemnitee
”), or by reason of any action alleged to have been taken
or omitted in such person’s capacity as a director, officer, employee or agent of
the Corporation or in any other capacity while serving at the request of the
Corporation as a director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other entity (including any employee benefit
plan), against all expenses (including attorneys’ fees), judgments, fines, taxes or
penalties and amounts paid in settlement actually and reasonably incurred by or on
behalf of Indemnitee in connection with such action, suit or proceeding if
Indemnitee acted in good faith and in a manner which Indemnitee reasonably believed
to be in or not opposed to the best interests of the Corporation, and, with respect
to any criminal action or proceeding, had no reasonable cause to believe the
Indemnitee’s conduct was unlawful. The termination of any action, suit or
proceeding by judgment, order, settlement, conviction, or upon a plea of
nolo
4
contendere
or its equivalent, shall not, of itself, create a
presumption that Indemnitee did not act in good faith and in a manner which
Indemnitee reasonably believed to be in or not opposed to the best interests of the
Corporation, and, with respect to any criminal action or proceeding, had reasonable
cause to believe that the Indemnitee’s conduct was unlawful.
(b)
Actions or Suits by or in the Right of the Corporation
. The
Corporation shall indemnify any Indemnitee who was or is a party or is threatened to
be made a party to any threatened, pending or completed action or suit by or in the
right of the Corporation to procure a judgment in its favor by reason of the fact
that Indemnitee is or was a director, officer, employee or agent of the Corporation,
or is or was serving at the request of the Corporation as a director, officer,
employee or agent of another corporation, partnership, joint venture, trust or other
entity (including any employee benefit plan)
,
or by reason of any action alleged to
have been taken or omitted in such person’s capacity as a director, officer,
employee or agent of the Corporation or in any other capacity while serving at the
request of the Corporation as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other entity (including any
employee benefit plan), against all expenses (including attorneys’ fees) actually
and reasonably incurred by or on behalf of Indemnitee in connection with the defense
or settlement of such action or suit if Indemnitee acted in good faith and in a
manner which Indemnitee reasonably believed to be in or not opposed to the best
interests of the Corporation, except that no indemnification shall be made under
this Article Eighth in respect of any claim, issue or matter as to which Indemnitee
shall have been adjudged to be liable to the Corporation, unless, and only to the
extent that the Court of Chancery of Delaware or the court in which such action or
suit was brought shall determine upon application that, despite the adjudication of
such liability but in view of all the circumstances of the case, Indemnitee is
fairly and reasonably entitled to indemnity for such expenses (including attorneys’
fees) which the Court of Chancery of Delaware or such other court shall deem proper.
(c)
Indemnification for Expenses
. Notwithstanding any other provisions
of this Article Eighth, to the extent that an Indemnitee has been successful on the
merits or otherwise in defense of any action, suit or proceeding referred to in
clauses (a) and (b) of this Article Eighth, or in defense of any claim, issue or
matter therein, Indemnitee shall be indemnified against all expenses (including
attorneys’ fees) actually and reasonably incurred by or on behalf of Indemnitee in
connection therewith. Without limiting the foregoing, if any action, suit or
proceeding is disposed of, on the merits or otherwise (including a disposition
without prejudice), without (i) the disposition being adverse to Indemnitee, (ii) an
adjudication that Indemnitee was liable to the Corporation, (iii) a plea of guilty
or
nolo contendere
by Indemnitee, (iv) an adjudication that Indemnitee did
not act in good faith and in a manner the Indemnitee reasonably believed to be in or
not opposed to the best interests of the Corporation, and (v) with respect to any
criminal proceeding, an adjudication that Indemnitee had reasonable cause to believe
his or her conduct was unlawful, Indemnitee shall be
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considered for the purposes hereof to have been wholly successful with respect
thereto.
(d)
Notification and Defense of Claim
. As a condition precedent to an
Indemnitee’s right to be indemnified, such Indemnitee must notify the Corporation in
writing as soon as practicable of any action, suit or proceeding involving such
Indemnitee for which indemnification will or could be sought. With respect to any
action, suit or proceeding of which the Corporation is so notified, the Corporation
will be entitled to participate therein at its own expense and/or to assume the
defense thereof at its own expense, with legal counsel reasonably acceptable to
Indemnitee. After notice from the Corporation to Indemnitee of its election so to
assume such defense, the Corporation shall not be liable to Indemnitee for any legal
or other expenses subsequently incurred by Indemnitee in connection with such
action, suit or proceeding, other than as provided below in this Article Eighth.
Indemnitee shall have the right to employ his or her own counsel in connection with
such action, suit or proceeding, but the fees and expenses of such counsel incurred
after notice from the Corporation of its assumption of the defense thereof shall be
at the expense of Indemnitee unless (i) the employment of counsel by Indemnitee has
been authorized by the Corporation, (ii) counsel to Indemnitee shall have reasonably
concluded that there may be a conflict of interest or position on any significant
issue between the Corporation and Indemnitee in the conduct of the defense of such
action, suit or proceeding or (iii) the Corporation shall not in fact have employed
counsel to assume the defense of such action, suit or proceeding, in each of which
cases, the fees and expenses of one counsel for Indemnitee shall be at the expense
of the Corporation, except as otherwise expressly provided by this Article Eighth.
The Corporation shall not be required to indemnify Indemnitee under this Article
Eighth for any amounts paid in settlement of any action, suit or proceeding effected
without its written consent. The Corporation shall not settle any action, suit or
proceeding in any manner which would impose any judgment, penalty, admission or
limitation on Indemnitee without Indemnitee’s written consent. Neither the
Corporation nor Indemnitee will unreasonably withhold or delay its consent to any
proposed settlement.
(e)
Advancement of Expenses
. In the event of any threatened or pending
action, suit or proceeding of which the Corporation receives notice under this
Article Eighth, any expenses (including attorneys’ fees for attorneys retained in
accordance with clause (d) above) incurred by or on behalf of any person who was or
is a party or is threatened to be made a party to any threatened, pending or
completed action, suit or proceeding, whether civil, criminal, administrative or
investigative (other than an action by or in the right of the Corporation) by reason
of the fact that the person is or was a director or officer of the Corporation, or
while a director or officer of the Corporation is or was serving at the request of
the Corporation as a director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other entity (including any employee benefit
plan) in defending an action, suit or proceeding or any appeal therefrom shall be
paid by the Corporation in advance of the final disposition of such matter;
6
provided
,
however
, that the payment of such expenses incurred
by or on behalf of such person in advance of the final disposition of such matter
shall be made only upon receipt of an undertaking by or on behalf of such person to
repay all amounts so advanced in the event that it shall ultimately be determined by
final judicial decision from which there is no further right to appeal that such
person is not entitled to be indemnified by the Corporation as authorized in this
Article Eighth. Such undertaking shall be accepted without reference to the
financial ability of such person to make such repayment. Any advances or
undertakings to repay pursuant to this clause (e) shall be unsecured and
interest-free.
(f)
Procedure for Indemnification
. In order to obtain indemnification
or advancement of expenses pursuant to clauses (a), (b), (c), (d) or (e) of this
Article Eighth, an Indemnitee or person entitled to advancement of expenses pursuant
to clause (e) above shall submit to the Corporation a written request. Any such
indemnification or advancement of expenses shall be made as soon as practicable
after written demand by Indemnitee or such person therefor is presented to the
Corporation, and in any event within (i) in the case of indemnification under clause
(c) or advancement of expenses, 20 business days after receipt by the Corporation,
of the written request of Indemnitee or such person, or (ii) in the case of all
other indemnification, 45 business days after receipt by the Corporation of the
written request of Indemnitee, unless with respect to requests under this subclause
(ii), the Corporation (y) has assumed the defense pursuant to clause (d) of this
Article Eighth (and none of the circumstances described in clause (d) of this
Article Eighth that would nonetheless entitle Indemnitee to indemnification for the
fees and expenses of separate counsel have occurred) or (z) determined, by clear and
convincing evidence, within such 45 business day period referred to above that
Indemnitee did not meet the applicable standard of conduct. Such determination in
clause (z), and any determination that advanced expenses must be repaid to the
Corporation, shall be made in each instance (a) by a majority vote of the directors
consisting of persons who are not at that time parties to the action, suit or
proceeding in question (“
disinterested directors
”), whether or not a quorum,
(b) by a committee of disinterested directors designated by majority vote of
disinterested directors, whether or not a quorum, (c) if there are no disinterested
directors, or if the disinterested directors so direct, by independent legal counsel
(who may, to the extent permitted by applicable law, be regular legal counsel to the
Corporation) in a written opinion, or (d) by the stockholders of the Corporation.
Any determination made under this clause (f) shall not create any presumption or
bind any court in determining whether indemnification or repayment of advanced
expenses is required.
(g)
Limitations
. Notwithstanding anything to the contrary in this
Article Eighth, the Corporation shall not indemnify an Indemnitee pursuant to this
Article Eighth (i) in connection with an action, suit or proceeding (or part
thereof) initiated by such Indemnitee unless the initiation thereof was approved by
the Board, or (ii) to the extent such Indemnitee or person entitled to advancement
of expenses pursuant to clause (e) above, is reimbursed from the proceeds of
7
insurance, and in the event the Corporation makes any indemnification or
advancement payments to an Indemnitee or such person and such Indemnitee or such
person is subsequently reimbursed from the proceeds of such insurance, such
Indemnitee or such person shall promptly refund indemnification or advancement
payments to the Corporation to the extent of such insurance reimbursement.
(h)
Subsequent Amendment
. No amendment, termination or repeal of this
Article Eighth or of the relevant provisions of the DGCL or any other applicable
laws shall adversely affect or diminish in any way the rights of any Indemnitee to
indemnification or person entitled to advancements pursuant to clause (e) above to
such advancement under the provisions hereof with respect to any action, suit or
proceeding arising out of or relating to any actions, transactions or facts
occurring prior to the final adoption of such amendment, termination or repeal.
(i)
Other Rights
. The indemnification and advancement of expenses
provided by this Article Eighth shall not be deemed exclusive of any other rights to
which an Indemnitee seeking indemnification or a person seeking advancement of
expenses pursuant to clause (e) above may be entitled under any law (common or
statutory), agreement or vote of stockholders or disinterested directors or
otherwise, both as to action in Indemnitee’s or such person’s official capacity and
as to action in any other capacity while holding office for the Corporation. In
addition, the Corporation may, to the extent authorized from time to time by its
Board, grant indemnification rights to other employees or agents of the Corporation
or other persons serving the Corporation and such rights may be equivalent to, or
greater or less than, those set forth in this Article Eighth.
(j)
Insurance
. The Corporation may purchase and maintain insurance on
behalf of any person who is or was a director or officer of the Corporation, or is
or was serving at the request of the Corporation as a director, officer, manager,
member, employee or agent of another corporation, partnership, limited liability
company, joint venture, trust or other entity against any liability asserted against
him or her and incurred by him or her in any such capacity, or arising out of his or
her status as such, whether or not the Corporation would have the power to indemnify
him or her against such liability under the provisions of Section 145 of the DGCL.
(k)
Savings Clause
. If this Article Eighth or any portion hereof shall
be invalidated on any ground by any court of competent jurisdiction, then the
Corporation shall nevertheless indemnify each Indemnitee as to any expenses
(including attorneys’ fees), liabilities, losses, judgments, fines, ERISA taxes or
penalties and amounts paid in settlement in connection with any action, suit or
proceeding, whether civil, criminal, administrative or investigative, including an
action by or in the right of the Corporation, to the fullest extent permitted by any
applicable portion of this Article Eighth that shall not have been invalidated and
to the fullest extent permitted by applicable law.
8
(l)
Definitions
. For purposes of this Article Eighth references to the
“Corporation” shall include, in addition to the resulting corporation, any
constituent corporation, partnership, limited liability company or joint venture,
trust or other entity (including any constituent of a constituent) absorbed in a
consolidation or merger which, if its separate existence had continued, would have
had power and authority to indemnify its directors, officers, managers, members, and
employees or agents so that any person who is or was a director, officer, manager,
member, employee or agent of such constituent, or is or was serving at the request
of such constituent as a director, officer, manager, member, employee or agent of
another corporation, partnership, limited liability company, joint venture, trust or
other entity, shall stand in the same position under the provisions of this Article
Eighth with respect to the resulting or surviving corporation, partnership, limited
liability company, or joint venture or other enterprise as such person would have
with respect to such constituent if its separate existence had continued.
(m)
Scope
. The Corporation shall indemnify any Indemnitee and advance
expenses to a person pursuant to clause (e) above to the fullest extent permitted by
the DGCL, and if the DGCL is amended after adoption of this Article Eighth to expand
further the indemnification or advancements permitted to Indemnitees or such
persons, then the Corporation shall indemnify such persons to the fullest extent
permitted by the DGCL, as so amended.
(n)
Continuation of Rights
. The indemnification and advancement of
expenses provided by, or granted pursuant to, this Article Eighth shall, unless
otherwise provided when authorized or ratified, continue as to a person who has
ceased to be a director, officer, employee or agent, as applicable, and shall inure
to the benefit of the heirs, executors and administrators of such a person.
NINTH.
Management
. For the management of the business and for the conduct of the
affairs of the Corporation, and in further definition, limitation and regulation of the powers of
the Corporation and of its directors and of its stockholders or any class thereof, as the case may
be, it is further provided that:
(a)
General Powers
. The business and affairs of the Corporation shall
be managed by the Board, which may exercise all such powers of the Corporation and
do all such lawful acts and things as are not by applicable law, this Certificate of
Incorporation or the By-Laws of the Corporation, as amended and restated to date
(the “
By-Laws
”) directed or required to be exercised or done by
stockholders.
(b)
Number of Directors; Election of Directors
. Subject to the rights
of the holders of any series of Preferred Stock then outstanding, the number of
directors which shall constitute the whole Board shall be fixed by or in the manner
provided in the By-Laws. Except as otherwise provided by the By-Laws, the election
of directors need not be by written ballot.
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(c)
Classes of Directors
. The Board shall be and is divided into three
classes: Class I, Class II and Class III. The assignment of directors among
classes shall be determined by resolution of the Board.
(d)
Terms of Office
. Each director shall serve for a term ending on
the date of the third annual meeting following the annual meeting at which such
director was elected;
provided
,
however
, that each director
initially appointed to Class I shall serve for a term expiring at the Corporation’s
annual meeting of stockholders held in 2009; each director initially appointed to
Class II shall serve for a term expiring at the Corporation’s annual meeting of
stockholders held in 2010; and each director initially appointed to Class III shall
serve for a term expiring at the Corporation’s annual meeting of stockholders held
in 2011;
provided
further
, that the term of each director shall
continue until the election and qualification of his successor and shall be subject
to his earlier death, resignation, retirement or removal. At each annual election,
the directors chosen to succeed those whose terms then expired shall be of the same
class as the directors they succeed, unless, by reason of any intervening changes in
the authorized number of directors, the Board shall have designated one or more
directorships whose term then expires as directorships of another class in order to
more nearly achieve equality of number of directors among the classes.
(e)
Quorum and Manner of Acting
. Unless otherwise provided by
applicable law, the presence of a majority of the members of the Board shall be
necessary to constitute a quorum for the transaction of business. In the absence of
a quorum, a majority of the directors present may adjourn the meeting from time to
time until the quorum shall be present. Notice of any adjourned meeting need not be
given. At all meetings of the Board at which a quorum is present, all matters shall
be decided by the affirmative vote of the majority of the directors present, except
as otherwise required by law. The Board may hold its meetings at such place or
places within or without the State of Delaware as the Board may from time to time
determine or as shall be specified in the respective notices, or waivers of notice,
thereof.
(f)
Removal
. Subject to the rights of the holders of any series of
Preferred Stock then outstanding, directors may be removed only for cause and only
by the affirmative vote of at least two-thirds of the votes which all the
stockholders would be entitled to cast in any annual election of directors or class
of directors at a special meeting of stockholders called in accordance with this
Certificate of Incorporation and the By-Laws expressly for that purpose;
provided
that, any director may be removed from office by the affirmative
vote of a majority of the Board, at any time prior to the expiration of their term
of office, as provided by applicable law, in the event a director is in breach of
any agreement between such director and the Corporation relating to such director’s
service as a director or employee of the Corporation.
(g)
Vacancies
. Subject to the rights of the holders of any series of
Preferred Stock then outstanding, any vacancy or newly created directorships in
10
the Board, however occurring, shall be filled only by vote of a majority of the
directors then in office, although less than a quorum, or by a sole remaining
director, and shall not be filled by the stockholders. A director elected to fill a
vacancy shall hold office until the next election of the class for which such
director shall have been chosen, subject to the election and qualification of a
successor and to such director’s earlier death, resignation, retirement or removal.
(h)
Stockholder Nominations and Introduction of Business, Etc
. Advance
notice of stockholder nominations for election of directors of the Corporation and
business other than nominations for election of directors of the Corporation shall
be brought by stockholders before a meeting of stockholders shall be given in the
manner provided by the By-laws.
TENTH.
No Action by Written Consent
. No action shall be taken by the stockholders
except at an annual or special meeting of stockholders called in accordance with the By-Laws, and
no action shall be taken by the stockholders by written consent.
ELEVENTH.
Special Meetings
. Special meetings of stockholders may be held at such time
and place, within or without the State of Delaware, as shall be stated in the notice of the meeting
or in a waiver of notice thereof. Special meetings of the stockholders may be called only by the
Chairman of the Board, the Chief Executive Officer or by resolution duly adopted by the affirmative
vote of the majority of the members of the Board, and may not be called by any other person or
persons. Any such resolution shall be sent to the Chairman of the Board or the Chief Executive
Officer and the Secretary or Assistant Secretary and shall state the purpose or purposes of the
proposed meeting. Business transacted at any special meeting is limited to the purposes stated in
the notice.
TWELFTH.
Amendment of By-Laws
. The Board shall have, and is hereby expressly granted,
the power to adopt, amend or repeal the By-Laws at any valid meeting of the Board by the
affirmative vote of a majority of the whole Board. The By-Laws may also be altered, amended or
repealed at any annual meeting of stockholders, or at any special meeting of the holders of shares
of stock entitled to vote thereon called for that purpose, by the affirmative vote of not less than
a majority of the voting power of all outstanding shares of capital stock of the Corporation
entitled to vote thereon;
provided
however
, that with respect to Sections 2, 6, 7
and 11 of Article II, Sections 2, 3, 4, 8, 9 and 11 of Article III and Article VIII of the By-Laws,
such provisions may only be altered, amended or repealed at any annual meeting of stockholders, or
at any special meeting of the holders of shares of stock entitled to vote thereon called for that
purpose, by an affirmative vote of not less than two-thirds of the voting power of all outstanding
shares of capital stock of the Corporation entitled to vote thereon.
THIRTEENTH.
Amendment of Certification of Incorporation
. The Corporation reserves the
right at any time, and from time to time, to amend, alter, change or repeal any provision contained
in this Certificate of Incorporation, in the manner now or hereafter prescribed by law, and all
rights, preferences and privileges conferred upon stockholders, directors or any other persons
herein are granted subject to this reservation. In addition to any affirmative vote required by
law and/or provided to the holders of any series of Preferred Stock then outstanding, if any, with
respect to Articles Seventh, Eighth, Ninth, Tenth, Eleventh,
11
Twelfth and this Thirteenth, such provisions may only be altered, amended or repealed at any
annual meeting of stockholders, or at any special meeting of the stockholders called for that
purpose, by an affirmative vote of not less than two-thirds of the voting power of all outstanding
shares of capital stock of the Corporation entitled to vote thereon, voting as a single class.
[signature page follows]
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IN WITNESS WHEREOF, the Corporation has caused this Amended and Restated Certificate of
Incorporation to be executed and acknowledged by the Executive Vice President and General Counsel of the
Corporation to be effective as of the 6th day of May 2008.
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DR PEPPER SNAPPLE GROUP, INC.
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By:
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/s/ James L. Baldwin, Jr.
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Name:
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James L. Baldwin, Jr.
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Title:
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Executive Vice President and General Counsel
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AMENDED AND RESTATED
BY-LAWS
OF
DR PEPPER SNAPPLE GROUP, INC.
As of May 6, 2008
ARTICLE I
OFFICES
Section 1.
Registered Office
. The registered office of Dr Pepper Snapple Group, Inc.
(the “
Corporation
”) shall be in the City of Wilmington, County of New Castle, State of
Delaware.
Section 2.
Other Offices
. The Corporation may also have offices at such other places
both within and without the State of Delaware as the Board of Directors of the Corporation (the
“
Board
”) may from time to time determine or the business of the Corporation may require.
ARTICLE II
MEETINGS OF STOCKHOLDERS
Section 1.
Annual Meeting
. The annual meeting of the stockholders of the Corporation
shall be held for the purpose of electing directors and conducting such other business as may
properly come before the meeting. The date, time and place, within or without the State of
Delaware, of the annual meeting shall be determined by the Board and stated in the notice of the
meeting or in a waiver of notice of such annual meeting.
Section 2.
Special Meetings
. Special meetings of stockholders may be held at such
date, time and place, within or without the State of Delaware, as shall be stated in the notice of
the meeting or in a waiver of notice thereof. Special meetings of the stockholders may be called
only by the Chairman of the Board, the Chief Executive Officer or by resolution duly adopted by the
affirmative vote of the majority of the members of the Board, and may not be called by any other
person or persons. Any such resolution shall be sent to the Chairman of the Board or the Chief
Executive Officer and the Secretary or Assistant Secretary and shall state the purpose or purposes
of the proposed meeting. Business transacted at any special meeting is limited to the purposes
stated in the notice.
Section 3.
Notice
. (a) Except as otherwise provided by applicable law, notice of each
meeting of stockholders, whether annual or special, shall be given not less than 10 nor more than
60 days before the date of the meeting to each stockholder entitled to vote at such meeting.
Without limiting the manner by which notice otherwise may be given to stockholders,
Dr Pepper Snapple Group, Inc.
Amended and Restated By-Laws
1
any notice
shall be effective if given by a form of electronic transmission consented to (in a manner
consistent with the General Corporation Law of the State of Delaware as it now exists and may
hereinafter be amended (the “
DGCL
”)) by the stockholder to whom the notice is given. The
notices of all meetings shall state the place, date and time of the meeting and the means of remote
communications, if any, by which stockholders and proxyholders may be deemed to be present in
person and vote at such meeting. The notice of a special meeting shall state, in addition, the
purpose or purposes for which the meeting is called.
(b) When a meeting is adjourned to another place, date or time, written notice need
not be given of the adjourned meeting if the place, date and time thereof are announced at
the meeting at which the adjournment is taken;
provided
,
however
, that if
the adjournment is for more than 30 days, or if after the adjournment, a new record date is
fixed for the adjourned meeting, written notice of the new place, date and time of the
adjourned meeting shall be given in conformity herewith.
(c) If notice is given by mail, such notice shall be deemed given when deposited in
the United States mail, postage prepaid, directed to the stockholder at such stockholder’s
address as it appears on the records of the Corporation. If notice is given by electronic
transmission, such notice shall be deemed given at the time specified in Section 232 of the
DGCL.
Section 4.
Stockholders List
. The officer having charge of the stock ledger of the
Corporation shall make available, at least 10 days before every meeting of the stockholders, a
complete list of the stockholders entitled to vote at such meeting arranged in alphabetical order,
specifying the address of and the number of shares registered in the name of each stockholder.
Such list shall be open to the examination of any stockholder, for any purpose germane to the
meeting, during ordinary business hours, for a period of at least 10 days prior to the meeting, at
the principal place of business of the Corporation. The list shall also be produced and kept open
at the time and place of the meeting during the whole time thereof, and may be inspected by any
stockholder who is present.
Section 5.
Quorum
. The holders of a majority of the stock issued and outstanding and
entitled to vote thereat, present in person or represented by proxy, shall constitute a quorum at
all meetings of the stockholders, except as otherwise provided by law or by the Certificate of
Incorporation of the Corporation, as amended and restated to date (the “
Certificate of
Incorporation
”). If a quorum is not present, the holders of the shares present in person or
represented by proxy at the meeting, and entitled to vote thereat, shall have the power, by the
affirmative vote of the holders of a majority of such shares, to adjourn the meeting to another
time and/or place, without notice, other than as required in Section 3(b) above and other than
announcement at the meeting at which the adjournment was taken, until a quorum shall be present or
represented. At such adjourned meeting at which a quorum shall be present or represented, any
business may be transacted which might have been transacted at the meeting as originally notified.
Section 6.
Advance Notice Provisions for Business (other than Nominations for Election of
Directors) to be Transacted at Annual Meeting
. (a) No business (other than
2
Nominations (as defined below)) (“
Business
”) may be transacted at an annual meeting of
stockholders, other than Business that is either (A) specified in the notice of meeting (or any
supplement thereto) given by or at the direction of the Board (or any duly authorized committee
thereof), (B) otherwise properly brought before the annual meeting by or at the direction of the
Board (or any duly authorized committee thereof) or (C) otherwise properly brought before the
annual meeting by any stockholder of the Corporation who (1) is a stockholder of record on both (x)
the date of the giving of the notice provided for in this Section 6 and (y) the record date for the
determination of stockholders entitled to vote at such annual meeting and (2) complies with the
notice procedures set forth in this Section 6.
(b) In addition to any other applicable requirements, for Business to be properly brought
before an annual meeting by a stockholder, such stockholder must have given timely notice thereof
in proper written form to the Secretary and the Business must constitute a proper matter under
Delaware law for stockholder action.
(c) To be timely, a stockholder’s notice regarding any proposed Business shall be delivered to
the Secretary at the principal executive offices of the Corporation and received not less than 90
days nor more than 120 days prior to the first anniversary of the date of the preceding year’s
annual meeting;
provided
,
however
, that in the event that the date of the annual
meeting is advanced by more than 30 days or delayed by more than 60 days from the anniversary of
the preceding year’s annual meeting, notice by the stockholder to be timely must be delivered not
earlier than the 120th day prior to such annual meeting and not later than the close of business on
the later of (i) the 90th day prior to such annual meeting or (ii) the 10th day following the day
on which notice of such annual meeting was mailed or public announcement of the date of such
meeting is first made, whichever first occurs;
provided
,
further
, that for purposes
of the annual meeting of stockholders held following the end of the fiscal year 2008, the date of
the preceding year’s annual meeting shall be deemed to be May 1, 2008.
(d) To be in proper written form, a stockholder’s notice to the Secretary must set forth as to
the Business such stockholder proposes to bring before the annual meeting (1) a brief description
of such Business desired to be brought before the annual meeting, including the complete text of
any resolutions to be presented at the annual meeting, and the reasons for proposing such Business
at the annual meeting, (2) the name and record address of such stockholder, and beneficial owner,
if any, on whose behalf the Business is proposed (for purposes of this Section 6, “
beneficial
owner
”), (3) the class or series and number of shares of capital stock of the Corporation which
are owned beneficially and of record by such stockholder or beneficial owner, (4) a description of
all arrangements or understandings between such stockholder or beneficial owner and any other
person or persons (including their names) in connection with the proposal of such Business by such
stockholder or beneficial owner and any material interest of such stockholder or beneficial owner
in such Business, (5) a representation that such stockholder (or a qualified representative of such
stockholder) intends to appear in person or by proxy at the annual meeting to bring such Business
before the meeting and (6) a representation whether the stockholder or the beneficial owner,
intends or is part of a group which intends (x) to deliver a proxy statement and/or form of proxy
to holders of at least the percentage of the Corporation’s outstanding capital stock required to
approve or adopt the
3
proposed Business and/or (y) otherwise to solicit proxies from stockholders in support of such
proposed Business. For purposes of this Section 6 and Section 7 below, a person or entity is the
“
beneficial owner
” of all shares which such person is deemed to beneficially own pursuant
to Rules 13d-3 and 13d-5 under the Securities Exchange Act of 1934, as amended (the “
Exchange
Act
”).
(e) If the presiding officer of an annual meeting determines that any Business was not
properly brought before the annual meeting in accordance with the foregoing procedures, the
presiding officer shall declare to the meeting that such Business was not properly brought before
the meeting and such Business shall not be transacted.
(f)
Adjournment
. In no event shall the adjournment of an annual meeting of
the stockholders, or any announcement thereof, commence a new period for the giving of
notice under this Section 6.
Section 7.
Advance Notice Provisions for Nominations for Election of Directors
. (a)
For a nomination for election of a director of the Corporation (each, a “
Nomination
”) to be
made by a stockholder of the Corporation at an annual or special meeting of stockholders, such
stockholder must (A) be a stockholder of record on both (1) the date of the giving of the notice
provided for in this Section 7 and (2) the record date for the determination of stockholders
entitled to vote at such annual or special meeting and (B) comply with the notice procedures set
forth in this Section 7. If a stockholder is entitled to vote only for a specific class or
category of directors at an annual or special meeting of the stockholders, such stockholder’s right
to make a Nomination pursuant to this Section 7 shall be limited to such class or category of
directors.
(b) To be timely in connection with the annual meeting of the stockholders, a stockholder’s
notice regarding a Nomination shall be delivered to the Secretary at the principal executive
offices of the Corporation and received not less than 90 days nor more than 120 days prior to the
first anniversary of the preceding year’s annual meeting;
provided
,
however
, that
in the event that the date of the annual meeting is advanced by more than 30 days or delayed by
more than 60 days from the anniversary of the preceding year’s annual meeting, notice by the
stockholder to be timely must be delivered not earlier than the 120th day prior to such annual
meeting and not later than the close of business on the later of (i) the 90th day prior to such
annual meeting or (ii) the 10th day following the day on which notice of such annual meeting was
mailed or public announcement of the date of such meeting is first made, whichever first occurs;
provided
,
further
, that for purposes of the annual meeting of stockholders held
following the end of the fiscal year 2008, the date of the preceding year’s annual meeting shall be
deemed to be May 1, 2008. In the event the Corporation calls a special meeting of stockholders for
the purpose of electing one or more directors to the Board, any stockholder entitled to vote for
the election of such director(s) at such meeting and otherwise satisfying the requirements
specified in Section 7(a) may make a Nomination to such position(s) as are specified in the
Corporation’s notice of such meeting, but only if the stockholder’s notice regarding a Nomination
shall be delivered to the Secretary at the principal executive office of the Corporation not
earlier than the 120th day prior to such special meeting and not later than the close of business
on the later of (x) the 90th day prior to such special meeting and (y) the 10th day following the
day on which notice
4
of the date of such special meeting was mailed or public disclosure of the date of such
special meeting was made, whichever first occurs.
(c) To be in proper written form, a stockholder’s notice to the Secretary must be set forth
(A) as to each person whom the stockholder proposes to be subject to such stockholder’s Nomination,
(for purposes of this Section 7, each a “nominee”), (1) the name, age, business address and
residence address of the nominee, (2) the principal occupation or employment of the nominee, (3)
the class or series and number of shares of capital stock of the Corporation, if any, which are
owned beneficially and of record by the nominee and (4) any other information relating to the
nominee that would be required to be disclosed in a proxy statement or other filings required to be
made in connection with solicitations of proxies for election of directors pursuant to Section 14
of the Exchange Act and the rules and regulations promulgated thereunder; and (B) as to both the
stockholder giving notice and the beneficial owner, if any, on whose behalf the Nomination is made
(for the purpose of this Section 7, a “
beneficial owner
”), (1) the name and record address
of such stockholder and beneficial owner, (2) the class or series and number of shares of capital
stock of the Corporation which are owned beneficially and of record by such stockholder or
beneficial owner, (3) a description of all arrangements or understandings between such stockholder
or beneficial owner and each nominee and any other person or persons (including their names)
pursuant to which the Nomination(s) are to be made by such stockholder, (4) a representation that
such stockholder (or a qualified representative of such stockholder) intends to appear in person or
by proxy at the annual meeting to make the Nomination of the nominee(s) named in its notice and (5)
any other information relating to such stockholder that would be required to be disclosed in a
proxy statement or other filings required to be made in connection with solicitations of proxies
for election of directors pursuant to Section 14 of the Exchange Act and the rules and regulations
promulgated thereunder. Such notice must be accompanied by a written consent of each nominee to
being named as a nominee and to serve as a director if elected.
(d) If the presiding officer of an annual meeting determines that such a stockholder
Nomination was not made in accordance with the foregoing procedures, the presiding officer shall
declare to the meeting that the Nomination was defective and such defective Nomination and such
nominee shall be disregarded.
(e)
Adjournment
. In no event shall the adjournment of an annual or special meeting of
the stockholders, or any announcement thereof, commence a new period for the giving of notice under
this Section 7.
(f)
Definition of Publicly Announced
. For purposes of Section 6 above and this
Section 7, a matter shall be deemed to have been “publicly announced” if such matter is disclosed
in a press release reported by the Dow Jones News Service, the Associated Press or a comparable
national news service or in a document publicly filed by the Corporation with Securities and
Exchange Commission and a “public announcement” shall be deemed to have been made on such date.
Section 8.
Inspectors
. The Board shall appoint inspectors of election to act as
judges of the voting and to determine those entitled to vote at any meeting of stockholders, or any
5
adjournment thereof, in advance of such meeting, but if the Board fails to make such
appointments or if an appointee fails to serve, the presiding officer of the meeting of
stockholders may appoint substitute inspectors.
Section 9.
Voting
. Except as otherwise provided by applicable law or in the
Certificate of Incorporation, each stockholder entitled to vote at any meeting of stockholders
shall be entitled to one vote for each share of stock held by such stockholder on the record date
for the meeting. The ability of the stockholders to engage in cumulative voting is specifically
denied. If the Certificate of Incorporation provides for more or less than one vote for any share
on any matter, every reference in these By-Laws to a majority or other proportion of shares of
stock shall refer to such majority or other proportion of the votes of such shares of stock. Each
stockholder entitled to vote at a meeting of stockholders may authorize another person or persons
to act for such stockholder by proxy, but no such proxy shall be voted or acted upon after three
years from its date, unless the proxy provides for a longer period. Such proxy shall be filed with
the Secretary before the vote at such meeting of stockholders. A duly executed proxy shall be
irrevocable if it states that it is irrevocable and if, and only as long as, it is coupled with an
interest sufficient in law to support an irrevocable power, regardless of whether the interest with
which it is coupled is an interest in the stock itself or an interest in the Corporation generally.
A stockholder may revoke any proxy which is not irrevocable by attending the meeting and voting in
person or by filing an instrument in writing revoking the proxy or another duly executed proxy
bearing a later date with the Secretary. When a quorum is present at any meeting, the vote of the
holders of a majority of the stock which has voting power present in person or represented by proxy
and which has actually voted shall decide any question properly brought before such meeting.
Voting at meetings of stockholders need not be by written ballot unless so directed by the
presiding officer of the meeting or the Board.
Section 10.
Order of Business
. (a) Unless otherwise determined by the Board prior to
the meeting, the presiding officer of the meeting of stockholders shall determine the order of
business and shall have the authority in his or her discretion to regulate the conduct of any such
meeting, including, without limitation, by imposing restrictions on the persons (other than
stockholders of the Corporation or their duly appointed proxies) who may attend any such meeting of
stockholders, by ascertaining whether any stockholder or his or her proxy may be excluded from any
meeting of stockholders based upon any determination by the presiding officer, in his or her sole
discretion, that any such person has unduly disrupted or is likely to disrupt the proceedings
thereat, and by determining the circumstances in which any person may make a statement or ask
questions at any meeting of stockholders.
(b) Meetings of stockholders shall be presided over by the Chairman of the Board or, in the
Chairman’s absence, by the Chief Executive Officer, or in the Chief Executive Officer’s absence, by
an officer of the Corporation designated by the Board, or in the absence of such designation by a
Chairman chosen by vote of the stockholders at the meeting. The Secretary or Assistant Secretary
shall act as secretary of the meeting, but in the Secretary’s or Assistant Secretary’s absence, the
Chairman of the meeting may appoint any person to act as secretary of the meeting.
6
Section 11.
Action without a Meeting
. No action shall be taken by the stockholders
except at an annual or special meeting of stockholders called in accordance with these By-Laws, and
no action shall be taken by the stockholders by written consent.
Section 12.
Waiver of Notice
. Whenever notice is required to be given by law, by the
Certificate of Incorporation or by these By-Laws, a written waiver signed by the person entitled to
notice, or a waiver by electronic transmission by the person entitled to notice, whether before, at
or after the time stated in such notice, shall be deemed equivalent to notice. Attendance of a
person at a meeting shall constitute a waiver of notice of such meeting, except when the person
attends a meeting for the express purpose of objecting at the beginning of the meeting, to the
transaction of any business because the meeting is not lawfully called or convened.
ARTICLE III
BOARD OF DIRECTORS
Section 1.
Powers
. The business and affairs of the Corporation shall be managed by
the Board, which may exercise all such powers of the Corporation and do all such lawful acts and
things as are not by law, the Certificate of Incorporation or these By-Laws directed or required to
be exercised or done by stockholders.
Section 2.
Number, Election and Qualification
. Subject to the rights of the holders
of any series of Preferred Stock then outstanding to elect directors, the number of directors of
the Corporation shall be established by resolution of the Board. Except as otherwise provided by
the Certificate of Incorporation or these By-Laws, the election of directors need not be by written
ballot. Directors need not be stockholders of the Corporation.
Section 3.
Classes of Directors
. The Board shall be and is divided into three
classes: Class I, Class II and Class III. The assignment of directors among classes shall be
determined by resolution of the Board.
Section 4.
Terms of Office
. Each director shall serve for a term ending on the date
of the third annual meeting following the annual meeting at which such director was elected;
provided
,
that
each director initially appointed to Class I shall serve for a term
expiring at the Corporation’s annual meeting of stockholders held in 2009; each director initially
appointed to Class II shall serve for a term expiring at the Corporation’s annual meeting of
stockholders held in 2010; and each director initially appointed to Class III shall serve for a
term expiring at the Corporation’s annual meeting of stockholders held in 2011;
provided
further
, that the term of each director shall continue until the election and qualification
of a successor and shall be subject to such director’s earlier death, resignation, retirement or
removal.
Section 5.
Quorum and Manner of Acting
. Unless otherwise provided by law or the
Certificate of Incorporation, the presence of a majority of the members of the Board shall be
necessary to constitute a quorum for the transaction of business. In the absence of a quorum, a
majority of the directors present may adjourn the meeting from time to time until the quorum
7
shall be present. Notice of any adjourned meeting need not be given. At all meetings of the
Board at which a quorum is present, all matters shall be decided by the affirmative vote of the
majority of directors present, except as otherwise required by law. The Board may hold its
meetings at such place or places within or without the State of Delaware as the Board may from time
to time determine or as shall be specified in the respective notices, or waivers of notice,
thereof.
Section 6.
Annual Board Meeting
. In connection with each annual meeting of
stockholders for the election of directors, the Board shall meet at the place of the annual meeting
of the stockholders for the purpose of organization, the election of officers and the transaction
of other business. Notice of such meeting need not be given. If such meeting is held at any other
time or place, notice thereof must be given as hereinafter provided for special meetings of the
Board, subject to the execution of a waiver of the notice thereof signed by, or the attendance at
such meeting of, all directors who may not have received such notice.
Section 7.
Regular Meetings
. Regular meetings of the Board may be held, without
notice, at such time and place, within or without the State of Delaware, as shall from time to time
be determined by resolution of the Board. At such meetings, the Board may transact such business
as may be brought before the meeting.
Section 8.
Special Meetings
. Special meetings of the Board shall be held whenever
called by the Chairman of the Board, the Chief Executive Officer or the President or by a majority
of the directors. Notice of each such meeting shall be given orally or in writing, by telephone,
including a voice messaging system or other system or technology designed to record and communicate
messages, facsimile, telegraph or telex, or by electronic mail or other electronic means, at least
24 hours before the date and time of the meeting, or sent in writing to each director either by
first class mail, charges prepaid, at least three days before the date of the meeting or by a
reputable overnight delivery service, at least two days before the date of the meeting. Each such
notice shall state the time and place of the meeting and need not state the purpose or purposes
thereof. Notice of any meeting of the Board need not be given to any director if he or she shall
sign a written waiver thereof either before or after the time stated therein for such meeting, or
if he or she shall be present at the meeting. Unless limited by law, the Certificate of
Incorporation, these By-Laws or terms of the notice thereof, any and all business may be transacted
at any meeting even though no notice shall have been given.
Section 9.
Removal
. Subject to the rights of the holders of any series of Preferred
Stock then outstanding, directors may be removed only for cause and only by the affirmative vote of
the holders of at least two-thirds of the votes which all the stockholders would be entitled to
cast in any annual election of directors or class of directors at a special meeting of stockholders
called in accordance with the Certificate of Incorporation and these By-Laws expressly for that
purpose;
provided
that, any director may be removed from office by the affirmative vote of
a majority of the Board, at any time prior to the expiration of their term of office, as provided
by applicable law, in the event a director is in breach of any agreement between such director and
the Corporation relating to such director’s service as a director or employee of the Corporation.
8
Section 10.
Resignations
. Any director may resign at any time by giving notice to the
Chairman of the Board, the President, the Secretary or any committee to which the Board has
delegated the authority to accept resignations. The resignation of any director shall take effect
upon receipt of notice thereof or at such later time, including without limitation, upon the
happening of a specified event, as shall be specified in such notice, and acceptance of such
resignation shall not be necessary to make it effective.
Section 11.
Vacancies
. Subject to the rights of the holders of any series of
Preferred Stock then outstanding, any vacancy or newly created directorships in the Board, however
occurring, shall be filled only by vote of a majority of the directors then in office, although
less than a quorum, or by a sole remaining director and shall not be filled by the stockholders. A
director elected to fill a vacancy shall hold office until the next election of the class for which
such director shall have been chosen, subject to the election and qualification of a successor and
to such director’s earlier death, resignation, retirement or removal.
Section 12.
Compensation
. Unless otherwise restricted by the Certificate of
Incorporation or these By-Laws, directors shall be entitled to such compensation for their
services, in the form of cash or equity of the Corporation or other compensation, or a combination
thereof, as may be approved by the Board from time to time, including, if so approved, reasonable
annual fees and reasonable fees for attending meetings of the Board and meetings of any committee
of the Board. Directors may also be reimbursed by the Corporation for all reasonable expenses
incurred in traveling to and from any such meetings. Nothing herein contained shall be construed
to preclude any director from serving the Corporation in any other capacity as an officer, agent,
employee, or otherwise and receiving compensation therefor.
Section 13.
Action without a Meeting
. Any action required or permitted to be taken at
any meeting of the Board (including any committee) may be taken without a meeting if written
consent thereto is signed or transmitted electronically by all members of the Board (or all members
of such committee), and such written consent is filed with the minutes or proceedings of the Board
or committee, as applicable.
Section 14.
Telephonic Participation in Meetings
. Any member of the Board, or any
committee thereof, may participate in a meeting of the Board or any committee thereof by means of
conference telephone or similar communications equipment by means of which all persons
participating in the meeting can hear each other, and such participation shall constitute presence
in person at such meetings.
ARTICLE IV
COMMITTEES OF DIRECTORS
Section 1.
Designation of Committees
. The Board may, by resolution passed thereby,
designate one or more committees, each committee to consist of one or more of the directors. The
Board may designate one or more directors as alternate members of any committee, who may replace
any absent or disqualified member at any meeting of the
9
committee. Except as otherwise provided in the Certificate of Incorporation, these By-Laws or
the resolution of the Board designating the committee, a committee may create one or more
subcommittees, each subcommittee to consist of one or more members of the committee, and delegate
to a subcommittee any or all of the powers and authority of the committee.
Section 2.
Vacancies
. In the absence or disqualification of a member of a committee,
the member or members thereof present at any meeting and not disqualified from voting, whether or
not he or she or they constitute a quorum, may unanimously appoint another member of the Board to
act at the meeting in the place of any such absent or disqualified member.
Section 3.
Powers
. Any such committee, to the extent provided in the resolution of
the Board, shall have and may exercise all the powers and authority of the Board to the extent
provided by Section 141(c) of the DGCL as it exists now or may hereafter be amended.
Section 4.
Minutes
. Each committee of the Board shall keep regular minutes of its
meetings and report the same to the Board when required.
ARTICLE V
OFFICERS
Section 1.
Principal Officers
. The Board shall elect, if and when designated by the
Board, a Chairman of the Board, a Chief Executive Officer, a President, a Secretary and a
Treasurer, and may in addition elect one or more Executive Vice Presidents, Senior Vice Presidents,
Vice Presidents or one or more Assistant Secretaries and Assistant Treasurers and such other
officers as it deems fit; the Chairman of the Board, the Chief Executive Officer, the President,
the Secretary, the Treasurer, the Executive Vice President(s), if any, being the principal officers
of the Corporation. No officer need be a stockholder and one person may hold, and perform the
duties of, any two or more of the said offices.
Section 2.
Election and Term of Office
. The principal officers of the Corporation
shall be elected annually by the Board at the meeting thereof held in connection with the annual
meeting of stockholders. Each such officer shall hold office until his or her successor shall have
been elected and shall qualify, or until his or her earlier death, resignation, retirement or
removal.
Section 3.
Other Officers
. In addition, the Board may elect, or the Chairman of the
Board or Chief Executive Officer may appoint, such other officers as they deem fit. Any such other
officers chosen by the Board shall be subordinate officers and shall hold office for such period,
have such authority and perform such duties as the Board, the Chairman of the Board or the Chief
Executive Officer may from time to time determine.
Section 4.
Removal and Resignation
. Any officer may be removed, either with or
without cause, at any time, by resolution adopted by the Board at any regular meeting of the Board,
or at any special meeting of the Board called for that purpose, at which a quorum is present. Any
officer may resign at any time by giving written notice to the Chairman of the Board, the Chief
Executive Officer, the President, the Secretary or the Board. Any such
10
resignation shall take effect upon receipt of such notice or at any later time specified
therein, and the acceptance of such resignation shall not be necessary to make it effective.
Except as the Board may otherwise determine, no officer who resigns or is removed shall have any
right to any compensation as an officer for any period following such officer’s resignation or
removal, or any right to damages on account of such removal, whether such officer’s compensation be
by the month or by the year or otherwise, unless such compensation is expressly provided for in a
duly authorized written agreement with the Corporation.
Section 5.
Vacancies
. A vacancy in any office may be filled for the unexpired portion
of the term in the manner prescribed in these By-Laws for election or appointment to such office
for such term.
Section 6.
Chairman of the Board
. The Chairman of the Board shall have general powers
and duties of supervision and management usually vested in the office of the Chairman of the Board
of a corporation. The Chairman of the Board shall preside, if present, at all meetings of the
Board and at all meetings of the stockholders. He or she shall have and perform such other duties
as from time to time may be assigned to him by the Board.
Section 7.
Chief Executive Officer
. The Chief Executive Officer shall be the chief
executive officer of the Corporation and shall have general supervision, direction and control of
the business of the Corporation. He or she shall, in the absence of the Chairman, preside at all
meetings of the stockholders and the Board. The Chief Executive Officer shall have such other
powers and be subject to such other duties as the Board or the Chairman of the Board may from time
to time assign and as may be provided by applicable law.
Section 8.
President
. Unless some other officer has been elected Chief Executive
Officer, the President shall be the chief executive officer of the Corporation with the powers and
duties set forth in Section 7 of Article V. If a Chief Executive Officer has been elected, the
President shall have such powers and shall perform such duties as shall be assigned to him or her
by the Board, the Chairman of or the Chief Executive Officer and as may be provided by applicable
law.
Section 9.
Vice President(s)
. Each Executive Vice President, Senior Vice President
and Vice President shall have such powers and shall perform such duties as shall be assigned to him
or her by the Board, the Chairman of the Board, the Chief Executive Officer or the President.
Section 10.
Treasurer and Assistant Treasurers
. (a) The Treasurer shall have charge
and custody of, and be responsible for, all funds and securities of the Corporation and shall keep
full and accurate accounts of receipts and disbursements in books belonging to the Corporation and
shall deposit all moneys and other valuable effects in the name and to the credit of the
Corporation. He or she shall exhibit at all reasonable times his or her books of account and
records to any of the directors upon application during business hours at the office of the
Corporation where such books and records shall be kept; when requested by the Board, he or she
shall render a statement of the condition of the finances of the Corporation at any meeting of the
Board or at the annual meeting of stockholders; he or she shall receive, and give receipt for,
moneys due and payable to the Corporation from any source whatsoever; in general, he or she
11
shall perform all the duties incident to the office of Treasurer and such other duties as from
time to time may be assigned to him or her by the Board, the Chairman of the Board, the Chief
Executive Officer or the President. The Treasurer shall give such bond, if any, for the faithful
discharge of his or her duties as the Board may require.
(b) The Assistant Treasurers shall perform such duties and possess such powers as the Board,
the Chief Executive Officer, the President or the Treasurer may from time to time prescribe. In
the event of the absence, inability or refusal to act of the Treasurer, the Assistant Treasurer (or
if there shall be more than one, the Assistant Treasurers in the order determined by the Board or,
if there be no such determination, in the order of their election) shall perform the duties and
exercise the powers of the Treasurer.
Section 11.
Secretary and Assistant Secretaries
. (a) The Secretary, if present, shall
act as secretary at all meetings of the Board and of the stockholders and keep the minutes thereof
in a book or books to be provided for that purpose; he or she shall see that all notices required
to be given by the Corporation are duly given and served; he or she shall have charge of the stock
records of the Corporation, he or she shall see that all reports, statements and other documents
required by law are properly kept and filed; and in general he or she shall perform all the duties
incident to the office of Secretary and such other duties as from time to time may be assigned to
him or her by the Board, the Chairman of the Board, the Chief Executive Officer or the President.
(b) The Assistant Secretaries shall perform such duties and possess such powers as the Board,
the Chief Executive Officer, the President or the Secretary may from time to time prescribe. In
the event of the absence, inability or refusal to act of the Secretary, the Assistant Secretary (or
if there shall be more than one, the Assistant Secretaries in the order determined by the Board)
shall perform the duties and exercise the powers of the Secretary.
(c) In the absence of the Secretary or any Assistant Secretary at any meeting of stockholders
or directors, the Chairman of the meeting shall designate a temporary secretary to keep a record of
the meeting.
ARTICLE VI
TRANSFERS OF STOCK
Section 1.
General
. Unless otherwise provided by resolution of the Board, each class
or series of the shares of capital stock in the Corporation shall be issued in certificated form.
Shares that are uncertificated shall be transferable only on the books of the Corporation by the
holder thereof in person or by attorney or legal representative upon presentment of proper evidence
of succession, assignation or authority to transfer in accordance with the customary procedures for
transferring shares in uncertificated form.
Section 2.
Record Date
. In order that the Corporation may determine the stockholders
entitled to notice of or to vote at any meeting of stockholders or any adjournment thereof or
entitled to receive payment of any dividend or other distribution, or allotment of any
12
rights, or entitled to exercise any rights in respect of any change, conversion or exchange of
stock or for the purpose of any other lawful action, the Board may fix, in advance, a record date,
which, unless otherwise required by law, shall not be more than 60 nor less than 10 days before the
date of such meetings, nor more than 60 days prior to any other action. A determination of
stockholders of record entitled to notice of or to vote at a meeting of stockholders shall apply to
any adjournment of the meeting;
provided
,
however
, that the Board may fix a new
record date for the adjourned meeting.
Section 3.
Registered Stockholders
. The Corporation shall be entitled to recognize
the exclusive right of a person registered on its books as the owner of shares to receive
dividends, and to vote as such owner, and to hold liable for calls and assessments a person
registered on its books as the owner of shares, and shall not be bound to recognize any equitable
or other claim to or interest in such share or shares on the part of any other person, whether or
not it shall have express or other notice thereof, except as otherwise provided by law.
Section 4.
Lost, Stolen or Destroyed Certificates
. In the event the Corporation
issues certificated shares, the Board may direct a new certificate or certificates to be issued in
place of any certificate or certificates theretofore issued by the Corporation alleged to have been
lost, stolen or destroyed upon the making of an affidavit of that fact by the person claiming the
certificate to be lost, stolen or destroyed. When authorizing such issuance of a new certificate
or certificates, the Board, in its discretion and as a condition precedent to the issuance thereof,
may require the owner of such lost, stolen or destroyed certificate or certificates, or his or her
legal representative, to present reasonable evidence of such loss, theft or destruction in such
manner as it shall require and/or to give the Corporation a bond in such sum as it may direct as
indemnity against any claim that may be made against the Corporation with respect to the
certificate alleged to have been lost, stolen or destroyed or the issuance of such new certificate.
ARTICLE VII
MISCELLANEOUS
Section 1.
Corporate Seal
. The Board shall provide a corporate seal, which shall be
in the form of a circle and shall bear the name of the Corporation and words and figures showing
that it was incorporated in the State of Delaware. The Secretary shall be the custodian of the
seal. The Board may authorize a duplicate seal to be kept and used by any other officer.
Section 2.
Voting of Stock Owned by the Corporation
. The Board may authorize any
person on behalf of the Corporation to attend, vote and grant proxies to be used at any meeting of
stockholders of any corporation (except the Corporation) in which the Corporation may hold stock.
Section 3.
Dividends
. Subject to applicable law and the provisions of the Certificate
of Incorporation, the Board may, out of funds legally available therefor, at any regular or special
meeting, declare dividends upon the capital stock of the Corporation as and when they deem
expedient. Before declaring any dividend, there may be set apart out of any funds of the
13
Corporation available for dividends such sum or sums as the directors from time to time in
their discretion deem proper for working capital or as a reserve fund to meet contingencies or for
equalizing dividends or for such other purposes as the Board shall deem conducive to the interests
of the Corporation.
Section 4.
Fiscal Year
. Except as from time to time otherwise designated by the
Board, the fiscal year of the Corporation shall begin on the first day of January of each year and
end on the last day of December in each year.
Section 5.
Certificate of Incorporation
. All references in these By-Laws to the
Certificate of Incorporation shall be deemed to refer to the Certificate of Incorporation of the
Corporation, as amended and in effect from time to time.
Section 6.
Severability
. If any provision of these By-Laws is illegal or
unenforceable as such, such illegality or unenforceability shall not affect any other provision of
these By-Laws and such other provisions shall continue in full force and effect.
ARTICLE VIII
AMENDMENTS
Section 1.
General
. The Board shall have the power to adopt, amend or repeal these
By-Laws at any valid meeting by the affirmative vote of a majority of the whole Board. These
By-Laws may also be altered, amended or repealed at any annual meeting of stockholders, or at any
special meeting of holders of shares of stock entitled to vote thereon called for that purpose, by
the affirmative vote of not less than a majority of the voting power of all outstanding shares of
capital stock of the Corporation entitled to vote thereon;
provided
however
, that
with respects to Sections 2, 6, 7 and 11 of Article II, Sections 2, 3, 4, 8, 9 and 11 of Article
III and this Article VIII, such provisions may only be altered, amended or repealed at any annual
meeting of stockholders, or at any special meeting called for that purpose of holders of shares of
stock entitled to vote thereon, by an affirmative vote of not less than two-thirds of the voting
power of all outstanding shares of capital stock of the Corporation entitled to vote thereon.
14
SUPPLEMENTAL INDENTURE
This Supplemental Indenture, dated as of May 7, 2008 (this “
Supplemental Indenture
”),
among the subsidiary guarantors listed in Exhibit A (the “Subsidiary Guarantors”), DR PEPPER
SNAPPLE GROUP, INC. (together with its successors and assigns, the “Company”) and Wells Fargo Bank,
N.A., as Trustee under the Indenture referred to below.
W I T N E S S E T H:
WHEREAS, the Company and the Trustee have heretofore executed and delivered an Indenture,
dated as of April 30, 2008 (as amended, supplemented, waived or otherwise modified, the
“
Indenture
”), providing for the issuance $250,000,000 principal amount of the Company’s
6.12% Senior Notes due 2013 (the “
2013 Notes
”), $1,200,000,000 principal amount of the Company’s
6.82% Senior Notes due 2018 (the “
2018 Notes
”) and $250,000,000 principal amount of the Company’s
7.45% Senior Notes due 2038 (the “
2038 Notes
” and together with the 2013 Notes, the 2018 Notes, any
Additional Notes of any Initial Series and the Notes of any Additional Series, the
“Notes
”) issued
under the Indenture;
WHEREAS, Section 4.12 of the Indenture provides that the Company shall cause any Subsidiary of
the Company that Guarantees, directly or indirectly, any Indebtedness of the Company (including any
Indebtedness under any Credit Agreement) to at the same time, execute and deliver to the Trustee a
supplement to this Indenture pursuant to which such Subsidiary shall Guarantee payment of the Notes
on the same terms and conditions as those set forth in this Indenture; and
WHEREAS, pursuant to Section 9.01(e) of the Indenture, the Trustee, the Company and the
Subsidiary Guarantors are authorized to execute and deliver this Supplemental Indenture to amend or
supplement the Indenture, without the consent of any Holder of Notes.
NOW, THEREFORE, in consideration of the foregoing and for other good and valuable
consideration, the receipt of which is hereby acknowledged, the Subsidiary Guarantor, the Company,
the other Guarantors and the Trustee mutually covenant and agree for the equal and ratable benefit
of the Holders of the Notes as follows:
ARTICLE I
Definitions
SECTION 1.1
Defined Terms.
As used in this Supplemental Indenture, terms defined in
the Indenture or in the preamble or recital hereto are used herein as therein defined.
ARTICLE II
Agreement to be Bound; Subsidiary Guarantee
SECTION 2.1
Agreement to be Bound.
Each Subsidiary Guarantor hereby becomes a party
to the Indenture as a Subsidiary Guarantor and as such shall have all of the rights and be subject
to all of the obligations and agreements of a Subsidiary Guarantor under the Indenture. The
Subsidiary Guarantor agrees to be bound by all of the provisions of the Indenture applicable to a
Subsidiary Guarantor and to perform all of the obligations and agreements of a Subsidiary Guarantor
under the Indenture.
SECTION 2.2
Guarantee.
Each Subsidiary Guarantor hereby unconditionally guarantees,
jointly and severally with each other Subsidiary Guarantor, to each Holder of a Note authenticated
and delivered by the Trustee and to the Trustee and its successors and assigns, the full and
punctual payment when due, whether at Stated Maturity, by redemption, acceleration or otherwise, of
the obligations of the Company under the Notes and the other guaranteed obligations of the Company
set forth in Article 10. The terms of each Subsidiary Guarantee are more fully set forth in
Article 10 of the Indenture and each Subsidiary Guarantor agrees to be bound by such terms.
ARTICLE III
Miscellaneous
SECTION 3.1
Notices.
All notices and other communications to the Subsidiary
Guarantor shall be given as provided in the Indenture.
SECTION 3.2
Parties.
Nothing expressed or mentioned herein is intended or shall be
construed to give any Person, other than the Holders of Notes and the Trustee, any legal or
equitable right, remedy or claim under or in respect of this Supplemental Indenture or the
Indenture or any provision herein or therein contained.
SECTION 3.3
Governing Law.
THE INTERNAL LAW OF THE STATE OF NEW YORK SHALL GOVERN AND
BE USED TO CONSTRUE THIS SUPPLEMENTAL INDENTURE WITHOUT GIVING EFFECT TO APPLICABLE PRINCIPLES OF
CONFLICTS OF LAW TO THE EXTENT THAT THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION WOULD BE
REQUIRED THEREBY.
SECTION 3.4
Ratification of Indenture; Supplemental Indentures Part of Indenture
.
Except as expressly amended hereby, the Indenture is in all respects ratified and confirmed and all
of the terms, conditions and provisions thereof shall remain in full force and effect. This
Supplemental Indenture shall form a part of the Indenture for all purposes, and every Holder of
Notes heretofore or hereafter authenticated and delivered shall be bound hereby.
SECTION 3.5
Trustee Not Responsible
. The Trustee shall not be responsible in any
manner whatsoever for or in respect of the validity or sufficiency of this Supplemental Indenture
or for or in respect of the recitals contained herein, all of which are made solely by the Company
and the Subsidiary Guarantors.
SECTION 3.6
Counterparts.
The parties may sign any number of copies of this
Supplemental Indenture. Each signed copy shall be an original, but all of them together shall
represent the same agreement.
SECTION 3.7
Headings.
The headings in this Supplemental Indenture have been inserted
for convenience of reference only, are not to be considered a part of this Indenture and shall in
no way modify or restrict any of the terms or provisions hereof.
SECTION 3.8
No Adverse Interpretation of Other Agreements.
This Supplemental
Indenture may not be used to interpret any other indenture, loan or debt agreement of the Company
or its Subsidiaries or of any other Person (other than the Indenture). Any such indenture, loan or
debt agreement may not be use to interpret this Supplemental Indenture or the Indenture.
[Signature pages follow]
IN WITNESS WHEREOF, the parties hereto have caused this First Supplemental Indenture to be
duly executed as of the date first written above.
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COMPANY
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DR PEPPER SNAPPLE GROUP, INC.
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By:
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/s/ James L. Baldwin
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Name:
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James L. Baldwin
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Title:
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Executive Vice President and Secretary
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Supplemental Indenture Signature Page
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TRUSTEE
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WELLS FARGO BANK, N.A.
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By:
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/s/ Patrick T. Giordano
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Name:
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Patrick T. Giordano
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Title:
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Vice President
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Supplemental Indenture Signature Page
SUBSIDIARY GUARANTORS
A&W CONCENTRATE COMPANY
AMTRANS, INC.
AMERICAS BEVERAGES MANAGEMENT GP
BERKELEY SQUARE US, INC.
BEVERAGE INVESTMENTS LLC
BEVERAGE MANAGEMENT, INC.
CADBURY ADAMS FINANCE CORPORATION
CADBURY BEVERAGES DELAWARE, INC.
CADBURY BEVERAGES INC.
CADBURY SCHWEPPES AMERICAS BEVERAGES, INC.
CADBURY SCHWEPPES AMERICAS INC.
CADBURY SCHWEPPES AMERICAS INVESTMENTS INC.
CADBURY SCHWEPPES BOTTLING GROUP, INC.
CADBURY SCHWEPPES FINANCE, INC.
CADBURY SCHWEPPES HOLDINGS (U.S.)
CADBURY SCHWEPPES SBS, INC.
CBI HOLDINGS INC.
DR PEPPER BOTTLING COMPANY OF TEXAS
DR PEPPER BOTTLING OF SPOKANE, INC.
DR PEPPER COMPANY
DR PEPPER/SEVEN-UP BEVERAGE SALES COMPANY
DR PEPPER/SEVEN UP MANUFACTURING COMPANY
DR PEPPER/SEVEN UP, INC.
HIGH RIDGE INVESTMENTS US, INC.
INTERNATIONAL BEVERAGE INVESTMENTS GP
INTERNATIONAL INVESTMENTS MANAGEMENT LLC
MOTT’S GENERAL PARTNERSHIP
MOTT’S LLP
MSSI LLC
NANTUCKET ALLSERVE, INC.
NUTHATCH TRADING US, INC.
PACIFIC SNAPPLE DISTRIBUTORS, INC.
ROYAL CROWN COMPANY, INC.
SEVEN-UP / RC BOTTLING COMPANY, INC.
SEVEN UP BOTTLING COMPANY OF SAN FRANCISCO
SNAPPLE BEVERAGE CORP.
SNAPPLE DISTRIBUTORS, INC.
SOUTHEAST-ATLANTIC BEVERAGE CORPORATION
THE AMERICAN BOTTLING COMPANY
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By:
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/s/ James L. Baldwin
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Name:
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James L. Baldwin
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Title:
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Authorized Representative
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Supplemental Indenture Signature Page
Exhibit A
List of Subsidiary Guarantors
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•
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A&W Concentrate Company
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•
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Americas Beverages Management GP
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•
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Berkeley Square US, Inc.
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•
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Beverage Investments LLC
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•
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Beverage Management, Inc.
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•
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Cadbury Adams Finance Corporation
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•
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Cadbury Beverages Delaware, Inc.
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•
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Cadbury Schweppes Americas Beverages, Inc.
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•
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Cadbury Schweppes Americas Inc.
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•
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Cadbury Schweppes Americas Investments Inc.
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Cadbury Schweppes Bottling Group, Inc.
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Cadbury Schweppes Finance, Inc.
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Cadbury Schweppes Holdings (U.S.)
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Cadbury Schweppes SBS, Inc.
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Dr Pepper Bottling Company of Texas
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Dr Pepper Bottling of Spokane, Inc.
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Dr Pepper/Seven-Up Beverage Sales Company
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•
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Dr Pepper/Seven Up Manufacturing Company
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Dr Pepper/Seven Up, Inc.
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•
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High Ridge Investments US, Inc.
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•
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International Beverage Investments GP
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•
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International Investments Management LLC
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•
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Mott’s General Partnership
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•
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Nantucket Allserve, Inc.
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•
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Nuthatch Trading US, Inc.
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•
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Pacific Snapple Distributors, Inc.
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•
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Royal Crown Company, Inc.
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•
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Seven-Up / RC Bottling Company, Inc.
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•
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Seven Up Bottling Company of San Francisco
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•
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Snapple Distributors, Inc.
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•
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Southeast-Atlantic Beverage Corporation
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•
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The American Bottling Company
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GUARANTY AGREEMENT
GUARANTY, dated as of May 7, 2008 (this “
Guaranty
”), by each of the Subsidiaries of
the Borrower executing a signature page hereto (each, a “
Subsidiary Guarantor
”), in favor
of the Administrative Agent (as defined below), each Lender, and each other holder of a Obligation
(as each such term is defined in the Credit Agreement referred to below) (each, a “
Guaranteed
Party
” and, collectively, the “
Guaranteed Parties
”).
W I T N E S S E T H:
WHEREAS, pursuant to the Credit Agreement dated as of March 10, 2008 among Dr Pepper Snapple
Group, Inc. (the “
Borrower
”), the Lenders and Issuing Banks party thereto, JPMorgan Chase
Bank N.A., as administrative agent (the “
Administrative Agent
”), Bank of America, N.A., as
syndication agent, Goldman Sachs Credit Partners L.P., Morgan Stanley Senior Funding, Inc., and UBS
Securities LLC as documentation agents, and the other parties thereto (together with all
appendices, exhibits, and schedules thereto and as the same may be amended, restated, supplemented
or otherwise modified from time to time, the “
Credit Agreement
”); the Lenders have
severally agreed to make extensions of credit to the Borrower upon the terms and subject to the
conditions set forth therein. Capitalized terms defined in the Credit Agreement and used (but not
otherwise defined) herein are used herein as so defined.
WHEREAS, each Subsidiary Guarantor is a direct or indirect Subsidiary of the Borrower; and
WHEREAS, each Subsidiary Guarantor will receive substantial direct and indirect benefits from
the making of the Loans and the granting of the other financial accommodations to the Borrower
under the Credit Agreement;
NOW, THEREFORE, in consideration of the premises set forth above, the terms and conditions
contained herein, and other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the parties hereto hereby agree as follows:
ARTICLE I
Guaranty
(a) Each Subsidiary Guarantor hereby absolutely, unconditionally and irrevocably guarantees,
jointly with the other guarantors and severally, as primary obligor and not merely as surety, the
full and punctual payment when due and in the currency due, whether at stated maturity or earlier,
by reason of acceleration, mandatory prepayment or otherwise in accordance herewith or any other
Loan Document, of all the Obligations, whether or not from time to time reduced or extinguished or
hereafter increased or incurred, whether or not recovery may be or hereafter may become barred by
any statute of limitations, whether or not enforceable as against the Borrower, whether now or
hereafter existing, and whether due or to become due, including principal, interest (including
interest at the contract rate applicable upon default accrued or accruing after the commencement of
any proceeding under Title 11 of the United States Code (the “
Bankruptcy Code
”), or any
applicable provisions of comparable state or foreign law, whether or not such interest is an
allowed claim in such proceeding), fees and costs of collection. This Guaranty constitutes a
guaranty of payment and not of collection.
(b) Each Subsidiary Guarantor further agrees that, if any payment made by the Borrower or any
other Person and applied to the Obligations is at any time annulled, avoided, set aside, rescinded,
invalidated, declared to be fraudulent or preferential or otherwise required to be refunded or
repaid, then, to the extent of such payment or repayment, the Subsidiary Guarantor’s liability
hereunder shall be and remain in full force and effect, as fully as if such payment had never been
made. If, prior to any of the foregoing, this Guaranty shall have been cancelled or surrendered,
this Guaranty shall be reinstated in full force and effect, and such prior cancellation or
surrender shall not diminish, release, discharge, impair or otherwise affect the obligations of the
Subsidiary Guarantor in respect of the amount of such payment; provided, however, that any such
reinstated Guaranty shall be released immediately upon the Obligations being indefeasibly paid in
full.
ARTICLE II
Limitation of Guaranty
Any term or provision of this Guaranty or any other Loan Document to the contrary
notwithstanding, the maximum aggregate amount of the Obligations for which any Subsidiary Guarantor
shall be liable shall not exceed the maximum amount for which such Subsidiary Guarantor can be
liable without rendering this Guaranty or any other Loan Document, as it relates to such Subsidiary
Guarantor, subject to avoidance under applicable law relating to fraudulent conveyance or
fraudulent transfer (including Section 548 of the Bankruptcy Code or any applicable provisions of
comparable state law) (collectively, “
Fraudulent Transfer Laws
”), in each case after giving
effect (a) to all other liabilities of such Subsidiary Guarantor, contingent or otherwise, that are
relevant under such Fraudulent Transfer Laws (specifically excluding, however, any liabilities of
such Subsidiary Guarantor in respect of intercompany Indebtedness to the Borrower to the extent
that such Indebtedness would be discharged in an amount equal to the amount paid by such Subsidiary
Guarantor hereunder) and (b) to the value as assets of such Subsidiary Guarantor (as determined
under the applicable provisions of such Fraudulent Transfer Laws) of any rights to subrogation,
contribution, reimbursement, indemnity or similar rights held by such Subsidiary Guarantor pursuant
to (i) applicable federal, state, local and foreign laws, rules and regulations, orders, judgments,
decrees and other determinations of any Governmental Authority or arbitrator and common law, (ii)
Article III (Contribution) of this Guaranty or (iii) any other obligation, agreement, undertaking
or similar provisions of any security or any agreement, undertaking, contract, lease, indenture,
mortgage, deed of trust or other instrument (excluding a Loan Document) providing for an equitable
allocation among such Subsidiary Guarantor and other Subsidiaries or Affiliates of the Borrower of
obligations arising under this Guaranty or other guaranties of the Obligations by such parties.
ARTICLE III
Contribution
To the extent that any Subsidiary Guarantor shall be required hereunder to pay a portion of
the Obligations exceeding the greater of (a) the amount of the economic benefit actually received
by such Subsidiary Guarantor from the Loans and the other financial accommodations provided to the
Borrower under the Loan Documents and (b) the amount such Subsidiary Guarantor would otherwise have
paid if such Subsidiary Guarantor had paid the
2
aggregate amount of the Obligations (excluding the amount thereof repaid by the Borrower) in
the same proportion as such Subsidiary Guarantor’s net worth at the date enforcement is sought
hereunder bears to the aggregate net worth of all the other Guarantors at the date enforcement is
sought hereunder, then such Subsidiary Guarantor shall be reimbursed by such other Guarantors for
the amount of such excess, pro rata, based on the respective net worths of such other Guarantors at
the date enforcement hereunder is sought.
ARTICLE IV
Authorization; Other Agreements
The Guaranteed Parties are hereby authorized, without notice to, or demand upon, any
Subsidiary Guarantor, which notice and demand requirements, to the fullest extent permitted by
applicable law, each are expressly waived hereby, and without discharging or otherwise affecting
the obligations of any Subsidiary Guarantor hereunder (which obligations shall remain absolute and
unconditional notwithstanding any such action or omission to act), from time to time, to do each of
the following:
(a) supplement, renew, extend, accelerate or otherwise change the time for payment of, or
other terms relating to, the Obligations, or any part of them, or otherwise modify, amend or change
the terms of any promissory note or other agreement, document or instrument (including the other
Loan Documents) now or hereafter executed by the Borrower and delivered to the Guaranteed Parties
or any of them, including any increase or decrease of principal or the rate of interest thereon, in
each case to the extent permitted by the Loan Documents;
(b) waive or otherwise consent to noncompliance with any provision of any instrument
evidencing the Obligations, or any part thereof, or any other instrument or agreement in respect of
the Obligations (including the other Loan Documents) now or hereafter executed by the Borrower and
delivered to the Guaranteed Parties or any of them, in each case to the extent permitted by the
Loan Documents;
(c) accept partial payments on the Obligations;
(d) receive, take and hold security or collateral for the payment of the Obligations or any
part of them from any Person with the consent of such Person and exchange, enforce, waive,
substitute, liquidate, terminate, abandon, fail to perfect, subordinate, transfer, otherwise alter
and release any such security or collateral;
(e) settle, release, compromise, collect or otherwise liquidate the Obligations or accept,
substitute, release, exchange or otherwise alter, affect or impair any security or collateral for
the Obligations or any part of them or any other guaranty therefor, in any manner;
(f) add, release or substitute any one or more other guarantors, makers or endorsers of the
Obligations or any part of them with the consent of such guarantor, maker or endorser and otherwise
deal with the Borrower or any other guarantor, maker or endorser;
(g) apply to the Obligations any payment or recovery (x) from the Borrower, from any other
guarantor, maker or endorser of the Obligations or any part of them or (y) from the Subsidiary
Guarantors in such order as provided herein, in each case whether such Obligations are secured or
unsecured or guaranteed or not guaranteed by others;
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(h) apply to the Obligations any payment or recovery from the Subsidiary Guarantors of the
Obligations or any sum realized from security furnished by the Subsidiary Guarantors upon their
indebtedness or obligations to the Guaranteed Parties or any of them, in each case whether or not
such indebtedness or obligations relate to the Obligations; and
(i) refund at any time any payment received by any Guaranteed Party in respect of any
Obligations with the consent of the Person receiving such refund, and payment to such Guaranteed
Party of the amount so refunded shall be fully guaranteed hereby even though prior thereto this
Guaranty shall have been cancelled or surrendered, and such prior cancellation or surrender shall
not diminish, release, discharge, impair or otherwise affect the obligations of the Subsidiary
Guarantors hereunder in respect of the amount so refunded;
even if any right of reimbursement or subrogation or other right or remedy of the Subsidiary
Guarantors are extinguished, affected or impaired by any of the foregoing (including any election
of remedies by reason of any judicial, non judicial or other proceeding in respect of the
Obligations that impairs any subrogation, reimbursement or other right of the Subsidiary
Guarantors).
ARTICLE V
Guaranty Absolute and Unconditional
The Subsidiary Guarantor hereby waives, to the fullest extent permitted by applicable law, any
defense of a surety or guarantor or any other obligor on any obligations arising in connection with
or in respect of any of the following and hereby agrees that its obligations under this Guaranty
are absolute and unconditional and shall not be discharged or otherwise affected as a result of any
of the following (in each case to the fullest extent permitted by applicable law):
(a) the invalidity or unenforceability of any of the Borrower’s obligations under the Credit
Agreement or any other Loan Document or any other agreement or instrument relating thereto, or any
other guaranty of the Obligations or any part of them;
(b) the absence of any attempt to collect the Obligations or any part of them from the
Borrower or other action to enforce the same;
(c) any Guaranteed Party’s election, in any proceeding instituted under chapter 11 of the
Bankruptcy Code, of the application of Section 1111(b)(2) of the Bankruptcy Code or any applicable
provisions of comparable state or foreign law;
(d) any borrowing or grant of a Lien by the Borrower, as debtor in possession, or extension of
credit, under Section 364 of the Bankruptcy Code or any applicable provisions of comparable state
or foreign law;
(e) the disallowance, under Section 502 of the Bankruptcy Code, of all or any portion of any
Guaranteed Party’s claim (or claims) for repayment of the Obligations;
(f) any use of cash collateral under Section 363 of the Bankruptcy Code;
4
(g) any agreement or stipulation as to the provision of adequate protection in any bankruptcy
proceeding;
(h) any bankruptcy, insolvency, reorganization, arrangement, readjustment of debt, liquidation
or dissolution proceeding commenced by or against the Borrower, any Subsidiary Guarantor or any of
the Borrower’s other Subsidiaries, including any discharge of, or bar or stay against collecting,
any Obligations (or any part of them or interest thereon) in or as a result of any such proceeding;
(i) failure by any Guaranteed Party to file or enforce a claim against the Borrower or its
estate in any bankruptcy or insolvency case or proceeding;
(j) any action taken by any Guaranteed Party if such action is authorized hereby; or
(k) any other circumstance that might otherwise constitute a legal or equitable discharge or
defense of a surety or guarantor or any other obligor on any obligations, other than the payment in
full of the Obligations.
ARTICLE VI
Waivers
Each Subsidiary Guarantor hereby waives, to the fullest extent permitted by applicable law,
diligence, promptness, presentment, demand for payment or performance and protest and notice of
protest, notice of acceptance and any other notice in respect of the Obligations or any part of
them, and any defense arising by reason of any disability or other defense of the Borrower or any
of its Subsidiaries. No Subsidiary Guarantor shall, until the Obligations are irrevocably paid in
full and the Commitments have been terminated, assert any claim or counterclaim it may have against
the Borrower or, except in the case of the netting of intercompany balances in the ordinary course
of business, set off any of its obligations to the Borrower against any obligations of the Borrower
to it. The Borrower shall not, until the Obligations are irrevocably paid in full and the
Commitments have been terminated, assert any claim or counterclaim it may have against any
Subsidiary Guarantor or, except in the case of the netting of intercompany balances in the ordinary
course of business, set off any of its obligations to any Subsidiary Guarantor against any
obligations of the Subsidiary Guarantor to it. In connection with the foregoing, each Subsidiary
Guarantor covenants that its obligations hereunder shall not be discharged, except by complete
performance, or the termination or release of such Subsidiary Guarantor’s obligations hereunder in
accordance with the terms hereof.
ARTICLE VII
Reliance
Each Subsidiary Guarantor hereby assumes responsibility for keeping itself informed of the
financial condition of the Borrower and any endorser and other guarantor of all or any part of the
Obligations, and of all other circumstances bearing upon the risk of nonpayment of the Obligations,
or any part thereof, that diligent inquiry would reveal, and such Subsidiary
5
Guarantor hereby agrees that no Guaranteed Party shall have any duty to advise it of
information known to it regarding such condition or any such circumstances. In the event any
Guaranteed Party, in its sole discretion, undertakes at any time or from time to time to provide
any such information to any Subsidiary Guarantor, such Guaranteed Party shall be under no
obligation (a) to undertake any investigation not a part of its regular business routine, (b) to
disclose any information that such Guaranteed Party, pursuant to accepted or reasonable commercial
finance or banking practices, wishes to maintain confidential or (c) to make any other or future
disclosures of such information or any other information to such Subsidiary Guarantor.
ARTICLE VIII
Deferral of Subrogation and Contribution Rights
Until the Obligations have been irrevocably paid in full and the Commitments have been
terminated, no Subsidiary Guarantor shall enforce or otherwise exercise any right of subrogation to
any of the rights of the Guaranteed Parties or any part of them against the Borrower or any right
of reimbursement or contribution or similar right against the Borrower by reason of this Guaranty
or by any payment made by such Subsidiary Guarantor in respect of the Obligations.
ARTICLE IX
Subordination
Each Subsidiary Guarantor hereby agrees that any Indebtedness of the Borrower now or hereafter
owing to the Subsidiary Guarantor, whether heretofore, now or hereafter created (the “
Guarantor
Subordinated Debt
”), is hereby subordinated to all of the Obligations; provided that, until (x)
the occurrence and during the continuation of any Event of Default, under clauses (a), (b) (with
respect to interest only), (h) or (i) of Article VII of the Credit Agreement, and (y) notice is
given by the Administrative Agent to the Borrower, the Borrower and the Subsidiary Guarantors shall
be permitted to make payments in respect of the Guarantor Subordinated Debt in accordance with the
terms thereof. Each payment on the Guarantor Subordinated Debt received in violation of any of the
provisions hereof shall be deemed to have been received by the applicable Subsidiary Guarantor as
trustee for the Guaranteed Parties and shall be paid over to the Administrative Agent immediately
on account of the Obligations, but without otherwise affecting in any manner such Subsidiary
Guarantor’s liability hereof. Each Subsidiary Guarantor agrees to file all claims against the
Borrower in any bankruptcy or other proceeding in which the filing of claims is required by law in
respect of any Guarantor Subordinated Debt, and the Administrative Agent shall be entitled to all
of such Subsidiary Guarantor’s rights thereunder. If for any reason a Subsidiary Guarantor fails
to file such claim at least ten Business Days prior to the last date on which such claim should be
filed, each Subsidiary Guarantor hereby irrevocably appoints the Administrative Agent as its true
and lawful attorney-in-fact and is hereby authorized to act as attorney-in-fact in such Subsidiary
Guarantor’s name to file such claim or, in the Administrative Agent’s discretion, to assign such
claim to and cause proof of claim to be filed in the name of the Administrative Agent or its
nominee. In all such cases, whether in administration, bankruptcy or otherwise, the person or
persons authorized to pay such claim shall pay to the Administrative Agent the full amount payable
on the claim in the proceeding, and, to the full extent necessary for that purpose, each Subsidiary
Guarantor hereby assigns to the Administrative Agent all of its rights to any payments or
distributions to which it otherwise would be entitled. If the amount so
6
paid is greater than such Subsidiary Guarantor’s liability hereunder, the Administrative Agent
shall pay the excess amount to the party entitled thereto.
ARTICLE X
Default; Remedies
The obligations of the Subsidiary Guarantors hereunder are independent of and separate from
the Obligations. If any Obligation is not paid when due, the Administrative Agent may, at its sole
election, proceed directly and at once, without notice, against any Subsidiary Guarantor to collect
and recover the full amount or any portion of the Obligations then due, without first proceeding
against the Borrower or any other guarantor of the Obligations or joining the Borrower or any other
guarantor in any proceeding against any guarantor.
ARTICLE XI
Irrevocability, Termination or Release
With respect to any Subsidiary Guarantor, this Guaranty shall be irrevocable as to the
Obligations (or any part thereof) until the Commitments have been terminated and all monetary
Obligations then outstanding have been irrevocably repaid in cash, at which time this Guaranty
shall automatically be terminated and cancelled. A Subsidiary Guarantor shall be automatically
released from its obligations hereunder upon the consummation of any transaction permitted by the
Loan Documents, as a result of which such Subsidiary Guarantor ceases to be a Subsidiary, becomes
an Excluded Subsidiary or is otherwise relieved of its obligations to provide the guarantee
hereunder. Upon such termination or cancellation of this Guaranty, or upon such release of a
Subsidiary Guarantor from its obligations hereunder, and at the written request of such Subsidiary
Guarantor or its successors or assigns, and at the cost and expense of such Subsidiary Guarantor or
its successors or assigns, the Administrative Agent shall execute in a timely manner a
satisfaction, termination or release of this Guaranty and such instruments, documents or agreements
as are necessary or desirable to evidence the termination of this Guaranty with respect to such
Subsidiary Guarantor.
ARTICLE XII
Setoff
If an Event of Default shall have occurred and be continuing, each Guaranteed Party and each
of its Affiliates is hereby authorized at any time and from time to time, to the fullest extent
permitted by law, to set off and apply any and all deposits (general or special, time or demand,
provisional or final) at any time held and other obligations at any time owing by such Guaranteed
Party or Affiliate to or for the credit or the account of any Subsidiary Guarantor against any of
and all the obligations of the Subsidiary Guarantor now or hereafter existing under this Guaranty
held by such Guaranteed Party to the extent then due and owing, irrespective of whether or not such
Guaranteed Party shall have made any demand under this Guaranty. Each Guaranteed Party agrees to
notify such Subsidiary Guarantor promptly of its exercise of any rights under this Article, but the
failure to provide such notice shall not otherwise limit its rights under this Article or result in
any liability to such Guaranteed Party. The rights of each Guaranteed Party under this Article are
in addition to other rights and remedies (including other rights of setoff) which such Guaranteed
Party may have.
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ARTICLE XIII
No Marshalling
Each Subsidiary Guarantor consents and agrees that no Guaranteed Party or Person acting for or
on behalf of any Guaranteed Party shall be under any obligation to marshal any assets in favor of
such Subsidiary Guarantor or against or in payment of any or all of the Obligations.
ARTICLE XIV
Enforcement; Waivers; Amendments
(a) No delay on the part of any Guaranteed Party in the exercise of any right or remedy
arising under this Guaranty, the Credit Agreement, any other Loan Document or otherwise with
respect to all or any part of the Obligations or any other guaranty of or security for all or any
part of the Obligations shall operate as a waiver thereof, and no single or partial exercise by any
such Person of any such right or remedy shall preclude any further exercise thereof. Failure by
any Guaranteed Party at any time or times hereafter to require strict performance by the Borrower,
any Subsidiary Guarantor, any other guarantor of all or any part of the Obligations or any other
Person of any provision, warranty, term or condition contained in any Loan Document now or at any
time hereafter executed by any such Persons and delivered to any Guaranteed Party shall not waive,
affect or diminish any right of any Guaranteed Party at any time or times hereafter to demand
strict performance thereof and such right shall not be deemed to have been waived by any act
(except by a written instrument pursuant to Section 9.02 of the Credit Agreement) or knowledge of
any Guaranteed Party, or its respective agents, officers or employees. No action by any Guaranteed
Party permitted hereunder shall in any way affect or impair any Guaranteed Party’s rights and
remedies or the obligations of any Subsidiary Guarantor under this Guaranty. Any determination by
a court of competent jurisdiction of the amount of any principal or interest owing by the Borrower
to a Guaranteed Party shall be conclusive and binding on the Subsidiary Guarantors irrespective of
whether any Subsidiary Guarantor was a party to the suit or action in which such determination was
made.
(b) None of the terms or provisions of this Guaranty may be waived, amended, supplemented or
modified except pursuant to an agreement in writing entered into by each Subsidiary Guarantor, the
Borrower and the Required Lenders or by each Subsidiary Guarantor, the Borrower and the
Administrative Agent with the consent of the Required Lenders.
ARTICLE XV
Successors and Assigns
This Guaranty shall be binding upon each Subsidiary Guarantor and upon the successors and
assigns of such Subsidiary Guarantor and shall inure to the benefit of the Guaranteed Parties and
their respective successors and assigns; all references herein to the Borrower and to the
Subsidiary Guarantors shall be deemed to include their respective successors and assigns. The
successors and assigns of the Subsidiary Guarantors and the Borrower shall
8
include, without limitation, their respective receivers, trustees and debtors in possession.
All references to the singular shall be deemed to include the plural where the context so requires.
ARTICLE XVI
[Reserved]
ARTICLE XVII
Governing Law
This Guaranty and the rights and obligations of the parties hereto shall be governed by, and
construed and interpreted in accordance with, the law of the State of New York.
ARTICLE XVIII
Submission to Jurisdiction; Service of Process
(a) Each Subsidiary Guarantor hereby irrevocably and unconditionally submits, for itself and
its property, to the nonexclusive jurisdiction of the Supreme Court of the State of New York
sitting in New York County and of the United States District Court of the Southern District of New
York, and any appellate court from any thereof, in any action or proceeding arising out of or
relating to this Guaranty, or for recognition or enforcement of any judgment, and each of the
parties hereto hereby irrevocably and unconditionally agrees that all claims in respect of any such
action or proceeding may be heard and determined in such New York State or, to the extent permitted
by law, in such Federal court. Each of the parties hereto agrees that a final judgment in any such
action or proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the
judgment or in any other manner provided by law. Nothing in this Guaranty shall affect any right
that the Administrative Agent may otherwise have to bring any action or proceeding relating to this
Guaranty against any Subsidiary Guarantor or its properties in the courts of any jurisdiction.
(b) Each Subsidiary Guarantor hereby irrevocably consents to the service of any and all legal
process, summons, notices and documents in any suit, action or proceeding brought in the United
States of America arising out of or in connection with this Guaranty or any other Loan Document by
the mailing (by registered or certified mail, postage prepaid) or delivering of a copy of such
process to such Subsidiary Guarantor care of the Borrower at the Borrower’s address specified in
Section 9.01 of the Credit Agreement. Each Subsidiary Guarantor agrees that a final judgment in
any such action or proceeding shall be conclusive and may be enforced in other jurisdictions by
suit on the judgment or in any other manner provided by law.
(c) Nothing contained in this Article XVIII shall affect the right of the Administrative Agent
or any other Guaranteed Party to serve process in any other manner permitted by law or commence
legal proceedings or otherwise proceed against any Subsidiary Guarantor in any other jurisdiction.
9
ARTICLE XIX
Waiver of Judicial Bond
To the fullest extent permitted by applicable law, each Subsidiary Guarantor waives the
requirement to post any bond that otherwise may be required of any Guaranteed Party in connection
with any judicial proceeding to enforce such Guaranteed Party’s rights to payment hereunder or in
connection with any other legal or equitable action or proceeding arising out of, in connection
with, or related to this Guaranty and the Loan Documents to which it is a party.
ARTICLE XX
Certain Terms
The following rules of interpretation shall apply to this Guaranty: (a) the terms “herein,”
“hereof,” “hereto” and “hereunder” and similar terms refer to this Guaranty as a whole and not to
any particular Article, Section, subsection or clause in this Guaranty, (b) unless otherwise
indicated, references herein to an Exhibit, Article, Section, subsection or clause refer to the
appropriate Exhibit to, or Article, Section, subsection or clause in this Guaranty and (c) the term
“including” means “including without limitation” except when used in the computation of time
periods.
ARTICLE XXI
Waiver of Jury Trial
EACH PARTY HERETO HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT
IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR
RELATING TO THIS GUARANTY OR THE TRANSACTIONS CONTEMPLATED HEREBY (WHETHER BASED ON CONTRACT, TORT
OR ANY OTHER THEORY). EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF
ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE
EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE
OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE
MUTUAL WAIVERS AND CERTIFICATIONS IN THIS ARTICLE.
ARTICLE XXII
Notices
Any notice or other communication herein required or permitted shall be given as provided in
Section 9.01 of the Credit Agreement and, in the case of any Subsidiary Guarantor, to such
Subsidiary Guarantor in care of the Borrower.
10
ARTICLE XXIII
Severability
Wherever possible, each provision of this Guaranty shall be interpreted in such manner as to
be effective and valid under applicable law, but if any provision of this Guaranty shall be
prohibited by or invalid under such law, such provision shall be ineffective to the extent of such
prohibition or invalidity without invalidating the remainder of such provision or the remaining
provisions of this Guaranty.
ARTICLE XXIV
Costs and Expenses
In accordance with the provisions of Section 9.03 of the Credit Agreement, each Subsidiary
Guarantor agrees to pay or reimburse the Administrative Agent and each of the other Guaranteed
Parties upon demand for all out-of-pocket costs and expenses, including reasonable attorneys’ fees
(including allocated costs of internal counsel and costs of settlement), incurred by the
Administrative Agent and such other Guaranteed Parties in enforcing this Guaranty against such
Subsidiary Guarantor or exercising or enforcing any other right or remedy available in connection
herewith or therewith.
ARTICLE XXV
Waiver of Consequential Damages
EACH SUBSIDIARY GUARANTOR HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES, TO THE MAXIMUM EXTENT
NOT PROHIBITED BY LAW, ANY RIGHT IT MAY HAVE TO CLAIM OR RECOVER ANY SPECIAL, EXEMPLARY, PUNITIVE
OR CONSEQUENTIAL DAMAGE IN ANY LEGAL ACTION OR PROCEEDING IN RESPECT OF THIS GUARANTY OR ANY OTHER
LOAN DOCUMENT.
ARTICLE XXVI
Entire Agreement
This Guaranty, taken together with all of the other Loan Documents executed and delivered by
the Subsidiary Guarantor, represents the entire agreement and understanding of the parties hereto
and supersedes all prior understandings, written and oral, relating to the subject matter hereof.
[SIGNATURE PAGES FOLLOW]
11
IN WITNESS WHEREOF, this Guaranty has been duly executed by each Guarantor as of the day and
year first set forth above.
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A&W CONCENTRATE COMPANY
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AMTRANS, INC.
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BERKELEY SQUARE US, INC.
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BEVERAGE MANAGEMENT, INC.
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BEVERAGE INVESTMENTS LLC
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CADBURY ADAMS FINANCE CORPORATION
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CADBURY BEVERAGES INC.
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CADBURY BEVERAGES DELAWARE INC.
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CADBURY SCHWEPPES AMERICAS INC.
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CADBURY SCHWEPPES AMERICAS BEVERAGES, INC.
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CADBURY SCHWEPPES AMERICAS INVESTMENTS INC.
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CADBURY SCHWEPPES BOTTLING GROUP, INC.
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CADBURY SCHWEPPES FINANCE, INC.
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CADBURY SCHWEPPES HOLDINGS (U.S.)
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CADBURY SCHWEPPES SBS, INC.
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CBI HOLDINGS INC.
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DR PEPPER BOTTLING COMPANY OF TEXAS
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DR PEPPER BOTTLING OF SPOKANE, INC.
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DR PEPPER COMPANY
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DR PEPPER/SEVEN-UP BEVERAGE SALES COMPANY
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DR PEPPER/SEVEN UP MANUFACTURING COMPANY
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DR PEPPER/SEVEN UP, INC.
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DR PEPPER SNAPPLE GROUP, INC.
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HIGH RIDGE INVESTMENTS US, INC.
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INTERNATIONAL INVESTMENTS MANAGEMENT LLC
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By:
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/s/ James L. Baldwin
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Name:
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James L. Baldwin
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Title:
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Executive Vice President
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MOTT’S GENERAL PARTNERSHIP
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MOTT’S LLP
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MSSI LLC
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NANTUCKET ALLSERVE, INC.
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NUTHATCH TRADING US, INC.
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PACIFIC SNAPPLE DISTRIBUTORS, INC.
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ROYAL CROWN COMPANY, INC.
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SEVEN UP BOTTLING COMPANY OF SAN FRANCISCO
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SEVEN-UP/RC BOTTLING COMPANY, INC.
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SOUTHEAST-ATLANTIC BEVERAGE CORPORATION
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SNAPPLE BEVERAGE CORP.
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SNAPPLE DISTRIBUTORS, INC.
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THE AMERICAN BOTTLING COMPANY
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By:
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/s/ James L. Baldwin
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Name:
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James L. Baldwin
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Title:
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Executive Vice President
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AMERICAS BEVERAGES MANAGEMENT GP
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INTERNATIONAL BEVERAGE INVESTMENTS GP
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By:
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/s/ James L. Baldwin
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Name:
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James L. Baldwin
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Title:
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Designated Representative
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ACKNOWLEDGED AND AGREED
as of the date first above written:
JPMORGAN CHASE BANK, N.A.,
as Administrative Agent
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By:
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/s/ Thomas H. Kozlark
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Name: Thomas H. Kozlark
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Title: Executive Director
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[SIGNATURE PAGE TO GUARANTY]
DR PEPPER SNAPPLE GROUP, INC.
OMNIBUS STOCK INCENTIVE PLAN OF 2008
1.
Plan
. This Dr Pepper Snapple Group, Inc. Omnibus Stock Incentive Plan of 2008 (this “Plan”) was
adopted by Dr Pepper Snapple Group, Inc., a Delaware corporation (the “Company”), to reward certain
employees, consultants and nonemployee directors of the Company or its Subsidiaries by enabling
them to acquire shares of common stock of the Company.
2.
Objectives
. This Plan is designed to attract and retain employees and consultants of the
Company and its Subsidiaries, to attract and retain qualified nonemployee directors of the Company,
to encourage the sense of proprietorship of such employees, consultants and nonemployee directors
and to stimulate the active interest of such persons in the development and financial success of
the Company and its Subsidiaries. These objectives are to be accomplished by making Awards under
this Plan and thereby providing Participants with a proprietary interest in the growth and
performance of the Company and its Subsidiaries. All Performance Awards payable under the Plan to
Executive Officers are intended to be deductible by the Company under Section 162(m) (as such terms
are defined below).
3.
Definitions
. As used herein, the terms set forth below shall have the following respective
meanings:
“Authorized Officer” means the Chairman of the Board or the Chief Executive Officer of the
Company (or any other senior officer of the Company to whom either of them shall delegate the
authority to execute any Award Agreement).
“Award” means the grant of any Option, Stock Appreciation Right, Stock Award or Performance
Award, whether granted singly, in combination or in tandem, to a Participant pursuant to such
applicable terms, conditions and limitations as the Committee may establish in accordance with the
objectives of the Plan.
“Award Agreement” means any written agreement (including in electronic form) between the
Company and a Participant setting forth the terms, conditions and limitations applicable to an
Award.
“Board” means the board of directors of the Company.
“Cadbury Board” means the board of directors of Cadbury Schweppes plc.
“Code” means the Internal Revenue Code of 1986, as amended from time to time.
“Committee” means, on and after the Separation Date, the Compensation Committee of the Board,
any successor committee thereto or such other committee of the Board as may be designated by the
Board to administer the Plan and, prior to the Separation Date, a committee of the Cadbury Board
appointed by the Cadbury Board.
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“Common Stock” means the Common Stock, par value $.01 per share, of the Company.
“Consultant” means any consultant or independent contractor of the Company or any Subsidiary,
but not including any Employee or Nonemployee Director.
“Dividend Equivalents” means, with respect to shares of Restricted Stock or Restricted Stock
Units, with respect to which shares are to be issued at the end of the Restriction Period, an
amount equal to all dividends and other distributions (or the economic equivalent thereof) that are
payable to shareholders of record during the Restriction Period on a like number of shares of
Common Stock.
“Employee” means an employee of the Company or any of its Subsidiaries and an individual who
has agreed to become an employee of the Company or any of its Subsidiaries and actually becomes
such an employee within the following six months.
“Executive Officer” means a “covered employee” within the meaning of Section 162(m)(3) or any
other executive officer designated by the Committee for purposes of exempting compensation payable
under the Plan from the deduction limitations of Section 162(m).
“Fair Market Value” of a share of Common Stock means, as of a particular date, (i) if shares
of Common Stock are listed on a national securities exchange, the closing sales price per share of
Common Stock on the consolidated transaction reporting system for the principal national securities
exchange on which shares of Common Stock are listed on that date, or, if there shall have been no
such sales reported on that date, on the last preceding date on which such a sale was so reported,
(ii) if the Common Stock is not so listed but is traded on an over-the-counter market, the mean
between the closing bid and asked price on that date, or, if there are no such prices available for
such date, on the last preceding date on which such prices shall be available, as reported by the
National Quotation Bureau Incorporated, or (iii) if shares of Common Stock are not publicly traded,
the most recent value determined by an independent appraiser appointed by the Company for such
purpose. Notwithstanding the foregoing, in the case of any Initial Award the price shall be equal
to the Company’s fair market value, as determined by the Committee in good faith based upon the
available facts and circumstances at the time.
“Incentive Option” means an Option that is intended to comply with the requirements set forth
in Section 422 of the Code.
“Initial Awards” means those Awards granted by the Committee prior to but contingent upon and
effective only as of the Publicly Traded Date.
“Option” means a right to purchase a specified number of shares of Common Stock at a specified
price.
“Nonemployee Director” means an individual serving as a member of the Board who is not an
employee of the Company or any of its Subsidiaries.
“Nonqualified Option” means an Option that is not intended to comply with the requirements set
forth in Section 422 of the Code.
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“Participant” means an Employee, Consultant or Nonemployee Director to whom an Award has been
made under this Plan.
“Performance Award” means an award made pursuant to this Plan to a Participant who is an
Employee, which Award is subject to the attainment of one or more Performance Goals.
“Performance Goal” means a standard established by the Committee, to determine in whole or in
part whether a Performance Award shall be earned.
“Publicly Traded Date” means the first day the U.S. Securities and Exchange Commission
declares the Form 10 registration statement effective.
“Restricted Stock” means any Common Stock that is restricted or subject to forfeiture
provisions.
“Restricted Stock Unit” means a unit evidencing the right to receive one share of Common Stock
or equivalent value (as determined by the Committee) that is restricted or subject to forfeiture
provisions.
“Restriction Period” means a period of time beginning as of the date upon which an Award of
Restricted Stock or Restricted Stock Units is made pursuant to this Plan and ending as of the date
upon which the Common Stock subject to such Award is issued (if not previously issued) no longer
restricted or subject to forfeiture provisions.
“Section 162(m)” means Section 162(m) of the Code and any Treasury Regulations and guidance
promulgated thereunder.
“Section 409A” means Section 409A of the Code and any Treasury Regulations and guidance
promulgated thereunder.
“Separation Date” means May 7, 2008.
“Stock Appreciation Right” means a right to receive a payment, in cash or Common Stock, equal
to the excess of the Fair Market Value or other specified valuation of a specified number of shares
of Common Stock on the date the right is exercised over a specified strike price, in each case, as
determined by the Committee.
“Stock Award” means an award in the form of shares of Common Stock or units denominated in
shares of Common Stock.
“Subsidiary” means (i) in the case of a corporation, any corporation of which the Company
directly or indirectly owns shares representing 50% or more of the combined voting
power of the shares of all classes or series of capital stock of such corporation which have
the right to vote generally on matters submitted to a vote of the shareholders of such corporation
and (ii) in the case of a partnership or other business entity not organized as a corporation, any
such business entity of which the Company directly or indirectly owns 50% or more of the voting,
capital or profits interests (whether in the form of partnership interests, membership interests or
otherwise).
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“Substitute Award” means a Stock Award granted by the Committee (i) prior to but contingent
upon and effective only as of the Publicly Traded Date in replacement for an equity based award
previously granted by Cadbury Schweppes plc (or any predecessor) or (ii) as a replacement or
substitute, in whole or in part, for compensation granted by a former employer or service provider
that is forfeited or foregone by a Participant in connection with his or her employment or
engagement by the Company.
4.
Eligibility
.
(a)
Employees
. All Employees are eligible for Awards under this Plan in the sole
discretion of the Committee.
(b)
Consultants
. Consultants are eligible for Awards under this Plan in the sole
discretion of the Committee.
(c)
Nonemployee Directors
. Nonemployee Directors are eligible for Awards under this
Plan, in their capacities as directors.
5.
Common Stock Available for Awards.
Subject to the provisions of paragraph 15 hereof, there
shall be available for Awards under this Plan granted wholly or partly in Common Stock (including
rights or options that may be exercised for or settled in Common Stock) an aggregate of 9,000,000
shares of Common Stock plus any shares that are subject to Substitute Awards. In the sole
discretion of the Committee, 2,000,000 shares of Common Stock may be granted as Incentive Options.
Additionally, the number of shares of Common Stock that are the subject of Awards under this Plan,
that are cancelled, forfeited, terminated, expire unexercised or that are settled through issuance
or consideration other than shares of Common Stock (including, without limitation, cash), shall
again immediately become available for Awards hereunder. The number of shares reserved for
issuance under the Plan shall be reduced only to the extent that shares of Common Stock are
actually issued in connection with the exercise or settlement of an Award. The Committee may from
time to time adopt and observe such procedures concerning the counting of shares against the Plan
maximum as it may deem appropriate. The Committee and the appropriate officers of the Company
shall be authorized to, from time to time, take all such actions as any of them may determine are
necessary or appropriate to file any documents with governmental authorities, stock exchanges and
transaction reporting systems as may be required to ensure that shares of Common Stock are
available for issuance pursuant to Awards.
6.
Administration
.
(a)
Authority of the Committee
. Subject to the provisions hereof, this Plan shall be
administered and interpreted by the Committee. The Committee shall have full and exclusive
power and authority to administer this Plan and to take all actions that are specifically
contemplated hereby or are necessary or appropriate in connection with the administration
hereof. The Committee shall also have full and exclusive power to interpret this Plan and
to make factual and legal determinations and to adopt such rules, regulations and guidelines
for carrying out this Plan as it may deem necessary or proper, all of which powers shall be
exercised in the best interests of the Company and in
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keeping with the objectives of this
Plan. Subject to paragraph 6(c) hereof, the Committee may, in its sole discretion, provide
for the extension of the exercisability of an Award, accelerate the vesting or
exercisability of an Award, eliminate or make less restrictive any restrictions contained in
an Award, waive any restriction or other provision of this Plan or an Award or otherwise
amend or modify an Award in any manner that is (i) not materially adverse to the Participant
to whom such Award was granted, (ii) consented to by such Participant or (iii) authorized by
paragraph 15(c) hereof; provided, however, that no such action shall permit the term of any
Option to be greater than ten years from the applicable grant date. The Committee may make
an Award to an individual who it expects to become an employee of the Company or any of its
Subsidiaries within the next six months, with such Award being subject to the individual’s
actually becoming an employee within such time period, and subject to such other terms and
conditions as may be established by the Committee. The Committee may correct any defect or
supply any omission or reconcile any inconsistency in this Plan or in any Award in the
manner and to the extent the Committee deems necessary or desirable to further the Plan
purposes. Any decision of the Committee in the interpretation and administration of this
Plan shall lie within its sole discretion and shall be final, conclusive and binding on all
parties concerned.
(b)
Limitation of Liability.
No member of the Committee or officer of the Company to
whom the Committee has delegated authority in accordance with the provisions of paragraph 7
of this Plan shall be liable for anything done or omitted to be done by him or her, by any
member of the Committee or by any officer of the Company in connection with the performance
of any duties under this Plan, except for his or her own willful misconduct or as expressly
provided by statute.
(c)
Prohibition on Repricing of Awards
. No Award may be repriced, replaced, regranted
through cancellation or modified without shareholder approval (except in connection with a
change in the Company’s capitalization), if the effect would be to reduce the exercise price
for the shares underlying such Award.
7.
Delegation of Authority
. Except with respect to matters under Section 162(m) that are required
to be determined or established by the Committee to qualify Awards to Executive Officers as
qualified “performance-based compensation,” the Committee may delegate to the Chief Executive
Officer and to other senior officers of the Company or to such other committee of the Board its
duties under this Plan pursuant to such conditions or limitations as the Committee may establish.
8.
Awards
. (a) The Committee shall determine the type or types of Awards to be made under this
Plan and shall designate from time to time the Participants who are to be the recipients of such
Awards. Each Award shall be embodied in an Award Agreement, which shall contain such terms,
conditions and limitations as shall be determined by the Committee in its sole discretion and may
be signed by the Participant to whom the Award is made and by an Authorized Officer for and on
behalf of the Company. Awards may consist of those listed in this paragraph 8(a) and may be
granted singly, in combination or in tandem. Awards may also be made in combination or in tandem
with, in replacement of, or as alternatives to, grants or rights under this Plan or any other plan
of the Company or any of its Subsidiaries, including the plan of
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any acquired entity; provided
that, except as contemplated in paragraph 15 hereof, no Option may be issued in exchange for the
cancellation of an Option with a higher exercise price nor may the exercise price of any Option be
reduced. All or part of an Award may be subject to conditions established by the Committee, which
may include, but are not limited to, continuous service with the Company and its Subsidiaries,
achievement of specific business objectives, increases in specified indices, attainment of
specified growth rates and other comparable measurements of performance. Upon the termination of
employment by a Participant, any unexercised, deferred, unvested or unpaid Awards shall be treated
as set forth in the applicable Award Agreement.
(i)
Option
. An Award may be in the form of an Option. An Option awarded pursuant to
this Plan may consist of an Incentive Option or a Nonqualified Option. Incentive Options
may not be awarded to Nonemployee Directors. The price at which shares of Common Stock may
be purchased upon the exercise of an Option shall be not less than the Fair Market Value of
the Common Stock on the date of grant. The term of an Option shall not exceed ten years
from the date of grant. Subject to the foregoing provisions, the terms, conditions and
limitations applicable to any Options awarded pursuant to this Plan, including the term of
any Options and the date or dates upon which they become exercisable, shall be determined by
the Committee.
(ii)
Stock Appreciation Right
. An Award may be in the form of a Stock Appreciation
Right. The strike price for a Stock Appreciation Right shall not be less than the Fair
Market Value of the Common Stock on the date on which the Stock Appreciation Right is
granted. The term of a Stock Appreciation Right shall not exceed ten years from the date of
grant. Subject to the foregoing limitations, the terms, conditions and limitations
applicable to any Stock Appreciation Rights awarded pursuant to this Plan, including the
term of any Stock Appreciation Rights and the date or dates upon which they become
exercisable, shall be determined by the Committee.
(iii)
Stock Award
. An Award may be in the form of a Stock Award. The terms,
conditions and limitations applicable to any Stock Awards granted pursuant to this Plan
shall be determined by the Committee, subject to the limitations specified below. Any Stock
Award which is not a Performance Award shall have a minimum Restriction Period of three
years from the date of grant, provided that (i) the Committee may provide for earlier
vesting following a change in control or other specified events involving the Company or
upon an Employee’s termination of employment by reason of death, disability or retirement,
(ii) such three-year minimum Restricted Period shall not apply to
a Stock Award that is granted in lieu of salary or bonus, and (iii) vesting of a Stock
Award may occur incrementally over the three-year minimum Restricted Period; provided,
however, that such three-year minimum Restricted Period shall not apply to any Substitute
Award.
(iv)
Performance Award.
Without limiting the type or number of Awards that may be made
under the other provisions of this Plan, an Award may be in the form of a Performance Award.
The terms, conditions and limitations applicable to any Performance Awards granted to
Participants pursuant to this Plan shall be determined by the Committee, subject to the
limitations specified below. Any Stock Award which is a
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Performance Award shall have a
minimum Restriction Period of one year from the date of grant, provided that the Committee
may provide for earlier vesting following a change in control or other specified events
involving the Company, or upon a termination of employment by reason of death, disability or
retirement, subject to the limitations specified below. The Committee shall set Performance
Goals in its sole discretion which, depending on the extent to which they are met, will
determine the value and/or amount of Performance Awards that will be paid out to the
Participant and/or the portion of an Award that may be exercised.
(A)
Nonqualified Performance Awards
. Performance Awards granted to Employees or
Nonemployee Directors that are not intended to qualify as qualified performance-based
compensation under Section 162(m) shall be based on achievement of such Performance Goals
and be subject to such terms, conditions and restrictions as the Committee or its delegate
shall determine.
(B)
Qualified Performance Awards
. Performance Awards granted to Executive Officers
under the Plan that are intended to qualify as qualified performance-based compensation
under Section 162(m) shall be paid, vested or otherwise deliverable solely on account of the
attainment of one or more pre-established, objective Performance Goals established and
administered by the Committee in accordance with Section 162(m) prior to the earlier to
occur of (x) 90 days after the commencement of the period of service to which the
Performance Goal relates and (y) the lapse of 25% of the period of service (as scheduled in
good faith at the time the goal is established), and in any event while the outcome is
substantially uncertain. A Performance Goal is objective if a third party having knowledge
of the relevant facts could determine whether the goal is met. Such a Performance Goal may
be based on one or more business criteria that apply to an Executive Officer, one or more
business units, divisions or sectors of the Company, or the Company as a whole, and if so
desired by the Committee, by comparison with a peer group of companies. A Performance Goal
may include one or more of the following and need not be the same for each Executive
Officer:
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revenue and income measures (which include revenue, gross margin, income
from operations, net income, net sales and earnings per share);
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expense measures (which include costs of goods sold, selling, general and
administrative expenses and overhead costs);
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operating measures (which include volume, margin, productivity and market
share);
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cash flow measures (which include net cash flow from operating activities
and working capital);
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liquidity measures (which include earnings before or after the effect of
certain items such as interest, taxes, depreciation and amortization, and free
cash flow);
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leverage measures (which include debt-to-equity ratio and net debt);
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market measures (which include stock price, total shareholder return and
market capitalization measures);
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return measures (which include return on equity, return on assets and return
on invested capital);
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corporate value measures (which include compliance, safety, environmental
and personnel matters); and
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other measures such as those relating to acquisitions, dispositions or
customer satisfaction.
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Unless otherwise stated, such a Performance Goal need not be based upon an increase or
positive result under a particular business criterion and could include, for example,
maintaining the
status quo
, performance relative to a peer group determined by the Committee
or limiting economic losses (measured, in each case, by reference to specific business
criteria). In interpreting Plan provisions applicable to Performance Goals and qualified
Performance Awards, it is the intent of the Plan to conform with Section 162(m), including,
without limitation, Treasury Regulation §1.162-27(e)(2)(i), as to grants to Executive
Officers and the Committee in establishing such goals and interpreting the Plan shall be
guided by such provisions. Prior to the payment of any compensation based on the
achievement of Performance Goals applicable to qualified Performance Awards, the Committee
must certify in writing that applicable Performance Goals and any of the material terms
thereof were, in fact, satisfied. Subject to the foregoing provisions, the terms,
conditions and limitations applicable to any qualified Performance Awards made pursuant to
this Plan shall be determined by the Committee to the extent permitted by Section 162(m).
(b) The Committee shall adjust the Performance Goals (either up or down) and the level
of the Performance Award that a Participant may earn under this Plan, to the extent
permitted pursuant to Section 162(m), if it determines that the occurrence of external
changes or other unanticipated business conditions have materially affected the fairness of
the goals and have unduly influenced the Company’s ability to meet them, including without
limitation, events such as material acquisitions, changes in the capital
structure of the Company, and extraordinary accounting changes. In addition,
Performance Goals and Performance Awards shall be calculated without regard to any changes
in accounting standards that may be required by the Financial Accounting Standards Board
after such Performance Goals are established. Further, in the event a period of service to
which a Performance Goal relates is less than twelve months, the Committee shall have the
right, in its sole discretion, to adjust the Performance Goals and the level of Performance
Award opportunity.
(c) Notwithstanding anything to the contrary contained in this Plan, the following
limitations shall apply to Awards that are not Substitute Awards made hereunder:
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(i) no Participant may be granted, during any one-year period, Awards
consisting of Options or Stock Appreciation Rights that are exercisable for more
than 500,000 shares of Common Stock; and
(ii) no Participant may be granted, during any one-year period, Stock Awards
covering or relating to more than 250,000 shares of Common Stock (the limitation set
forth in this clause (ii), together with the limitation set forth in clause (i)
above, being hereinafter collectively referred to as the “Stock-based Awards
Limitations”).
9.
Awards to Nonemployee Directors
. The Committee may grant a Nonemployee Director of the
Company one or more Awards and establish the terms thereof in accordance with paragraph 8
consistent with the provisions therein for the granting of Awards to Employees and subject to the
applicable terms, conditions and limitations set forth in this Plan and the applicable Award
Agreement.
10.
Award Payment; Dividends; Substitution; Fractional Shares
.
(a)
General
. Payment of Awards may be made in the form of cash or Common Stock, or a
combination thereof, and may include such restrictions as the Committee shall determine,
including, in the case of Common Stock, restrictions on transfer and forfeiture provisions.
If payment of an Award is made in the form of Restricted Stock, the applicable Award
Agreement relating to such shares shall specify whether they are to be issued at the
beginning or end of the Restriction Period. In the event that shares of Restricted Stock
are to be issued at the beginning of the Restriction Period, the certificates evidencing
such shares (to the extent that such shares are so evidenced) shall contain appropriate
legends and restrictions that describe the terms and conditions of the restrictions
applicable thereto. In the event that shares of Restricted Stock are to be issued at the
end of the Restricted Period, the right to receive such shares shall be evidenced by book
entry registration or in such other manner as the Committee may determine.
(b)
Deferral
. With the approval of the Committee, amounts payable in respect of Awards
may be deferred and paid either in the form of installments or as a lump-sum payment;
provided, however, that if deferral is permitted, each provision of the
Award shall be interpreted to permit the deferral only as allowed in compliance with
the requirements of Section 409A and any provision that would conflict with such
requirements shall not be valid or enforceable. The Committee intends that any Awards under
the Plan satisfy or qualify as exempt from the applicable requirements of Section 409A to
avoid imposition of applicable taxes thereunder. The Committee may permit selected
Participants to elect to defer payments of some or all types of Awards in accordance with
procedures established by the Committee. Any deferred payment of an Award, whether elected
by the Participant or specified by the Award Agreement or by the Committee, may be forfeited
if and to the extent that the Award Agreement so provides.
(c)
Dividends and Interest
. Rights to dividends or Dividend Equivalents may be
extended to and made part of any Award consisting of shares of Common Stock or
-9-
units
denominated in shares of Common Stock, subject to such terms, conditions and restrictions as
the Committee may establish. The Committee may also establish rules and procedures for the
crediting of interest on deferred cash payments and Dividend Equivalents for Awards
consisting of shares of Common Stock or units denominated in shares of Common Stock.
(d)
Fractional Shares
. No fractional shares shall be issued or delivered pursuant to
any Award under this Plan. The Committee shall determine whether cash, Awards or other
property shall be issued or paid in lieu of fractional shares, or whether fractional shares
or any rights thereto shall be forfeited or otherwise eliminated.
11.
Stock Option Exercise
. The price at which shares of Common Stock may be purchased under an
Option shall be paid in full at the time of exercise in cash or, if elected by the Participant, the
Participant may purchase such shares by means of tendering Common Stock or surrendering another
Award, including Restricted Stock, valued at Fair Market Value on the date of exercise, or any
combination thereof. The Committee, in its sole discretion, shall determine acceptable methods for
Participants to tender Common Stock or other Awards. In accordance with the rules and procedures
established by the Committee for this purpose and subject to applicable law, Options may also be
exercised through “cashless exercise” procedures approved by the Committee involving a broker or
dealer approved by the Committee. Unless otherwise provided in the applicable Award Agreement, in
the event shares of Restricted Stock are tendered as consideration for the exercise of an Option, a
number of the shares issued upon the exercise of the Option, equal to the number of shares of
Restricted Stock used as consideration thereof, shall be subject to the same restrictions as the
Restricted Stock so submitted as well as any additional restrictions that may be imposed by the
Committee.
12.
Taxes
. The Company shall have the right to deduct applicable taxes from any Award payment and
withhold, at the time of delivery or vesting of cash or shares of Common Stock under this Plan, an
appropriate amount of cash or number of shares of Common Stock or a combination thereof for payment
of taxes required by law or to take such other action as may be necessary in the opinion of the
Company to satisfy all obligations for withholding of such taxes. The Committee
may also permit withholding to be satisfied by the transfer to the Company of shares of Common
Stock theretofore owned by the holder of the Award with respect to which withholding is required.
If shares of Common Stock are used to satisfy tax withholding, such shares shall be valued based on
the Fair Market Value when the tax withholding is required to be made.
13.
Amendment, Modification, Suspension or Termination
. The Board or the Committee may amend,
modify, suspend or terminate this Plan for the purpose of meeting or addressing any changes in
legal requirements or for any other purpose permitted by law, except that (i) no amendment or
alteration that would materially adversely affect the rights of any Participant under any Award
previously granted to such Participant shall be made without the consent of such Participant and
(ii) no amendment or alteration shall be effective prior to its approval by the shareholders of
the Company to the extent shareholder approval is otherwise required by applicable legal
requirements.
-10-
14.
Assignability
. Unless otherwise determined by the Committee in the Award Agreement, no Award
or any other benefit under this Plan shall be assignable or otherwise transferable. Any attempted
assignment of an Award or any other benefit under this Plan in violation of this paragraph 14 shall
be null and void.
15.
Adjustments
.
(a) The existence of outstanding Awards shall not affect in any manner the right or
power of the Company or its shareholders to make or authorize any or all adjustments,
recapitalizations, reorganizations or other changes in the capital stock of the Company or
its business or any merger or consolidation of the Company, or any issue of bonds,
debentures, preferred or prior preference stock (whether or not such issue is prior to, on a
parity with or junior to the Common Stock) or the dissolution or liquidation of the Company,
or any sale or transfer of all or any part of its assets or business, or any other corporate
act or proceeding of any kind, whether or not of a character similar to that of the acts or
proceedings enumerated above.
(b) In the event of any subdivision or consolidation of outstanding shares of Common
Stock, declaration of a dividend payable in shares of Common Stock or other stock split,
then (i) the number of shares of Common Stock reserved under this Plan, (ii) the number of
shares of Common Stock covered by outstanding Awards in the form of Common Stock or units
denominated in Common Stock, (iii) the exercise or other price in respect of such Awards,
(iv) the Stock-based Award Limitations described in paragraph 8(c) hereof, (v) the number of
shares of Common Stock covered by Awards to Nonemployee Directors granted pursuant to
paragraph 9 hereof, and (vi) the appropriate Fair Market Value and other price
determinations for such Awards shall each be proportionately adjusted by the Board to
reflect such transaction. In the event of any other recapitalization or capital
reorganization of the Company, any consolidation or merger of the Company with another
corporation or entity, the adoption by the Company of any plan of exchange affecting the
Common Stock or any distribution to holders of
Common Stock of securities or property (other than normal cash dividends or dividends
payable in Common Stock), the Board shall make appropriate adjustments to (i) the number of
shares of Common Stock covered by Awards in the form of Common Stock or units denominated in
Common Stock, (ii) the exercise or other price in respect of such Awards, and (iii) the
appropriate Fair Market Value and other price determinations for such Awards, (iv) the
number of shares of Common Stock covered by Awards to Nonemployee Directors automatically
granted pursuant to paragraph 9 hereof and (v) the Stock-based Award Limitations described
in paragraph 8(b) hereof, to give effect to such transaction shall each be proportionately
adjusted by the Board to reflect such transaction; provided that such adjustments shall only
be such as are necessary to maintain the proportionate interest of the holders of the Awards
and preserve, without exceeding, the value of such Awards.
(c) In the event of a corporate merger, consolidation, acquisition of property or
stock, separation, reorganization or liquidation, the Board may make such adjustments to
Awards or other provisions for the disposition of Awards as it deems equitable, and shall be
authorized, in its sole discretion, (i) to provide for the substitution of a new
-11-
Award or
other arrangement (which, if applicable, may be exercisable for such property or stock as
the Board determines) for an Award or the assumption of the Award, regardless of whether in
a transaction to which Section 424(a) of the Code applies, (ii) to provide, prior to the
transaction, for the acceleration of the vesting and exercisability of, or lapse of
restrictions with respect to, the Award and, if the transaction is a cash merger, provide
for the termination of any portion of the Award that remains unexercised at the time of such
transaction or (iii) to cancel any such Awards and to deliver to the Participants cash in an
amount that the Board shall determine in its sole discretion is equal to the fair market
value of such Awards on the date of such event, which in the case of Options or Stock
Appreciation Rights shall be the excess of the Fair Market Value of Common Stock on such
date over the exercise price of such Award (for the avoidance of doubt, if the exercise
price is less than Fair Market Value the Option or Stock Appreciation Right may be canceled
for no consideration).
16.
Restrictions
. No Common Stock or other form of payment shall be issued with respect to any
Award unless the Company shall be satisfied based on the advice of its counsel that such issuance
will be in compliance with applicable federal and state securities laws. Certificates evidencing
shares of Common Stock delivered under this Plan (to the extent that such shares are so evidenced)
may be subject to such stop transfer orders and other restrictions as the Committee may deem
advisable under the rules, regulations and other requirements of the Securities and Exchange
Commission, any securities exchange or transaction reporting system upon which the Common Stock is
then listed or to which it is admitted for quotation and any applicable federal or state securities
law. The Committee may cause a legend or legends to be placed upon such certificates (if any) to
make appropriate reference to such restrictions.
17.
Unfunded Plan
. Insofar as it provides for Awards of cash, Common Stock or rights thereto, this
Plan shall be unfunded. Although bookkeeping accounts may be established with respect to
Participants who are entitled to cash, Common Stock or rights thereto under this Plan, any such
accounts shall be used merely as a bookkeeping convenience. The Company shall not be required to
segregate any assets that may at any time be represented by cash, Common Stock or rights thereto,
nor shall this Plan be construed as providing for such segregation, nor shall the Company, the
Board or the Committee be deemed to be a trustee of any cash, Common Stock or rights thereto to be
granted under this Plan. Any liability or obligation of the Company to any Participant with
respect to an Award of cash, Common Stock or rights thereto under this Plan shall be based solely
upon any contractual obligations that may be created by this Plan and any Award Agreement, and no
such liability or obligation of the Company shall be deemed to be secured by any pledge or other
encumbrance on any property of the Company. Neither the Company nor the Board nor the Committee
shall be required to give any security or bond for the performance of any obligation that may be
created by this Plan.
18.
Section 409A of the Code
. Notwithstanding anything in this Plan to the contrary, if any Plan
provision or Award under the Plan would result in the imposition of an applicable tax under Section
409A, that Plan provision or Award shall be reformed to avoid imposition of the applicable tax and
no such action shall be deemed to adversely affect the Participant’s rights to an Award.
-12-
19.
Governing Law
. This Plan and all determinations made and actions taken pursuant hereto, to the
extent not otherwise governed by mandatory provisions of the Code or the securities laws of the
United States, shall be governed by and construed in accordance with the laws of the State of
Delaware.
20.
No Right to Employment or Directorship
. Nothing in the Plan or an Award Agreement shall
interfere with or limit in any way the right of the Company or a Subsidiary to terminate any
Participant’s employment or other service relationship at any time, nor confer upon any Participant
any right to continue in the capacity in which he or she is employed or otherwise serves the
Company or any Subsidiary. Further, nothing in the Plan or an Award Agreement constitutes any
assurance or obligation of the Board to nominate any Nonemployee Director for re-election by the
Company’s shareholders.
21.
Successors
. All obligations of the Company under the Plan with respect to Awards granted
hereunder shall be binding on any successor to the Company, whether the existence of such successor
is the result of a direct or indirect purchase, merger, consolidation, or otherwise, of all or
substantially all of the business and/or assets of the Company.
22.
Effectiveness
. This Plan is effective May 7, 2008, the date on which it was approved by the shareholders of the
Company. The Plan shall continue in effect for a term of ten years after the date on which the
shareholders of the Company approve the Plan, unless sooner terminated by action of the Board.
-13-
IN WITNESS WHEREOF, the Company has caused this Plan to be executed by its duly authorized
officer, effective as provided herein.
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DR PEPPER SNAPPLE GROUP, INC.
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By:
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/s/ James L. Baldwin, Jr.
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Corporate Secretary
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DR PEPPER SNAPPLE GROUP, INC.
ANNUAL CASH INCENTIVE PLAN
1.
Plan
. This Dr Pepper Snapple Group, Inc. Annual Cash Incentive Plan (this “Plan”) was adopted
by Dr Pepper Snapple Group, Inc., a Delaware corporation (the “Company”), to reward certain
employees of the Company or its Subsidiaries by enabling them to receive performance-based cash
compensation.
2.
Objectives
. This Plan is designed to attract and retain employees of the Company and its
Subsidiaries and to stimulate the active interest of such persons in the development and financial
success of the Company and its Subsidiaries. These objectives are to be accomplished by making
cash awards under this Plan based on the achievement of certain performance goals. All awards
payable under the Plan to Executive Officers are intended to be deductible by the Company under
Section 162(m) (as such terms are defined below).
3.
Definitions
. As used herein, the terms set forth below shall have the following respective
meanings:
“Authorized Officer” means the Chairman of the Board or the Chief Executive Officer of the
Company (or any other senior officer of the Company to whom either of them shall delegate the
authority to execute any Award Agreement).
“Award Agreement” means any written agreement (including in electronic form) between the
Company and a Participant setting forth the terms, conditions and limitations applicable to a
Performance Cash Award.
“Board” means the board of directors of the Company.
“Cadbury Board” means the board of directors of Cadbury Schweppes plc.
“Code” means the Internal Revenue Code of 1986, as amended from time to time.
“Committee” means, on and after the Separation Date, the Compensation Committee of the Board,
any successor committee thereto or such other committee of the Board as may be designated by the
Board to administer the Plan and, prior to the Separation Date, a committee of the Cadbury Board
appointed by the Cadbury Board.
“Employee” means an employee of the Company or any of its Subsidiaries and an individual who
has agreed to become an employee of the Company or any of its Subsidiaries and actually becomes
such an employee within the following six months.
“Executive Officer” means a “covered employee” within the meaning of Section 162(m)(3) or any
other executive officer designated by the Committee for purposes of exempting compensation payable
under the Plan from the deduction limitations of Section 162(m).
“Participant” means an Employee to whom a Performance Cash Award has been made under this
Plan.
“Performance Cash Award” or “Award” means the grant of any award to a Participant pursuant to
such applicable terms, conditions and limitations as the Committee may establish in accordance with
the objectives of the Plan, which award is subject to the attainment of one or more Performance
Goals.
“Performance Goal” means a standard established by the Committee, to determine in whole or in
part whether a Performance Cash Award shall be earned.
“Publicly Traded Date” means the first day the U. S. Securities and Exchange Commission
declares the Form 10 registration statement effective.
“Section 162(m)” means Section 162(m) of the Code and any Treasury Regulations and guidance
promulgated thereunder.
“Section 409A” means Section 409A of the Code and any Treasury Regulations and guidance
promulgated thereunder.
“Separation Date” means May 7, 2008.
“Subsidiary” means (i) in the case of a corporation, any corporation of which the Company
directly or indirectly owns shares representing 50% or more of the combined voting power of the
shares of all classes or series of capital stock of such corporation which have the right to vote
generally on matters submitted to a vote of the shareholders of such corporation and (ii) in the
case of a partnership or other business entity not organized as a corporation, any such business
entity of which the Company directly or indirectly owns 50% or more of the voting, capital or
profits interests (whether in the form of partnership interests, membership interests or
otherwise).
4.
Eligibility
. All Employees are eligible for Performance Cash Awards under this Plan in the
sole discretion of the Committee.
5.
Administration
.
(a)
Authority of the Committee
. Subject to the provisions hereof, this Plan shall be
administered and interpreted by the Committee. The Committee shall have full and exclusive
power and authority to administer this Plan and to take all actions that are specifically
contemplated hereby or are necessary or appropriate in connection with the
administration hereof. The Committee shall also have full and exclusive power to
interpret this Plan and to make factual and legal determinations and to adopt such rules,
regulations and guidelines for carrying out this Plan as it may deem necessary or proper,
all of which powers shall be exercised in the best interests of the Company and in keeping
with the objectives of this Plan. The Committee may, in its sole discretion, provide for
the acceleration of vesting of a Performance Cash Award, eliminate or make less restrictive
any restrictions contained in a Performance Cash Award, waive any restriction or other
provision of this Plan or a Performance Cash Award or otherwise
-2-
amend or modify a
Performance Cash Award in any manner that is (i) not materially adverse to the Participant
to whom such Performance Cash Award was granted, or (ii) consented to by such Participant.
The Committee may make a Performance Cash Award to an individual who it expects to become an
employee of the Company or any of its Subsidiaries within the next six months, with such
Performance Cash Award being subject to the individual’s actually becoming an employee
within such time period, and subject to such other terms and conditions as may be
established by the Committee. The Committee may correct any defect or supply any omission
or reconcile any inconsistency in this Plan or in any Performance Cash Award in the manner
and to the extent the Committee deems necessary or desirable to further the Plan purposes.
Any decision of the Committee in the interpretation and administration of this Plan shall
lie within its sole discretion and shall be final, conclusive and binding on all parties
concerned.
(b)
Limitation of Liability.
No member of the Committee or officer of the Company to
whom the Committee has delegated authority in accordance with the provisions of paragraph 6
of this Plan shall be liable for anything done or omitted to be done by him or her, by any
member of the Committee or by any officer of the Company in connection with the performance
of any duties under this Plan, except for his or her own willful misconduct or as expressly
provided by statute.
6.
Delegation of Authority
.
Except with respect to matters under Section 162(m) that are required
to be determined or established by the Committee to qualify Performance Cash Awards to Executive
Officers as qualified “performance-based compensation” the Committee may delegate to the Chief
Executive Officer and to other senior officers of the Company or to such other committee of the
Board its duties under this Plan pursuant to such conditions or limitations as the Committee may
establish.
7.
Performance Cash Awards
.
(a) The Committee shall determine the type or types of Performance Cash Awards to be
made under this Plan and shall designate from time to time the Participants who are to be
the recipients of such Performance Cash Awards. Each Performance Cash Award shall be
embodied in an Award Agreement, which shall contain such terms, conditions and limitations
as shall be determined by the Committee in its sole discretion and may be signed by the
Participant to whom the Performance Cash Award is made and
by an Authorized Officer for and on behalf of the Company. All or part of a
Performance Cash Award may be subject to conditions established by the Committee, which may
include, but are not limited to, continuous service with the Company and its Subsidiaries.
Upon the termination of employment by a Participant, any deferred, unvested or unpaid
Performance Cash Awards shall be treated as set forth in the applicable Award Agreement.
The terms, conditions and limitations applicable to any Performance Cash Awards granted to
Participants pursuant to this Plan shall be determined by the Committee, subject to the
limitations specified below. The Committee shall set Performance Goals in its sole
discretion which, depending on the extent to which they are met, will determine the amount
of Performance Cash Awards that will be paid out to the Participant.
-3-
(i)
Nonqualified Performance Cash Awards
. Performance Cash Awards granted to Employees
that are not intended to qualify as qualified performance-based compensation under Section
162(m) shall be based on achievement of such Performance Goals and be subject to such terms,
conditions and restrictions as the Committee or its delegate shall determine.
(ii)
Qualified Performance Cash Awards
. Performance Cash Awards granted to Executive
Officers under the Plan that are intended to qualify as qualified performance-based
compensation under Section 162(m) shall be paid on account of the attainment of one or more
pre-established, objective Performance Goals established and administered by the Committee
in accordance with Section 162(m) prior to the earlier to occur of (x) 90 days after the
commencement of the period of service to which the Performance Goal relates and (y) the
lapse of 25% of the period of service (as scheduled in good faith at the time the goal is
established), and in any event while the outcome is substantially uncertain. A Performance
Goal is objective if a third party having knowledge of the relevant facts could determine
whether the goal is met. Such a Performance Goal may be based on one or more business
criteria that apply to an Executive Officer, one or more business units, divisions or
sectors of the Company, or the Company as a whole, and if so desired by the Committee, by
comparison with a peer group of companies. A Performance Goal may include one or more of
the following and need not be the same for each Executive Officer:
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revenue and income measures (which include revenue, gross margin, income
from operations, net income, net sales and earnings per share);
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expense measures (which include costs of goods sold, sales, general and
administrative expenses and overhead costs);
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operating measures (which include volume, margin, productivity and market
share);
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cash flow measures (which include net cash flow from operating activities
and working capital);
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liquidity measures (which include earnings before or after the effect of
certain items such as interest, taxes, depreciation and amortization, and free
cash flow);
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leverage measures (which include equity ratio and net debt);
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market measures (including those relating to stock price, total shareholder
return and market capitalization measures);
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return measures (which include return on equity, return on assets and return
on invested capital);
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corporate value measures (which include compliance, safety, environmental
and personnel matters); and
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other measures such as those relating to acquisitions, dispositions or
customer satisfaction.
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Unless otherwise stated, such a Performance Goal need not be based upon an increase or
positive result under a particular business criterion and could include, for example,
maintaining the
status quo
, performance relative to a peer group determined by the Committee
or limiting economic losses (measured, in each case, by reference to specific business
criteria). In interpreting Plan provisions applicable to Performance Goals and qualified
Performance Cash Awards, it is the intent of the Plan to comply with Section 162(m),
including, without limitation, Treasury Regulation §1.162-27(e)(2)(i), as to grants to
Executive Officers and the Committee in establishing such goals and interpreting the Plan
shall be guided by such provisions. Prior to the payment of any compensation based on the
achievement of Performance Goals applicable to qualified Performance Cash Awards, the
Committee must certify in writing that applicable Performance Goals and any of the material
terms thereof were, in fact, satisfied. Subject to the foregoing provisions, the terms,
conditions and limitations applicable to any qualified Performance Cash Awards made pursuant
to this Plan shall be determined by the Committee to the extent permitted under Section
162(m).
(b) The Committee shall adjust the Performance Goals (either up or down) and the level
of the Performance Cash Award that a Participant may earn under this Plan, to the extent
permitted pursuant to Section 162(m), if it determines that the occurrence of external
changes or other unanticipated business conditions have materially affected the fairness of
the goals and have unduly influenced the Company’s ability to meet them, including without
limitation, events such as material acquisitions, changes in the capital structure of the
Company, and extraordinary accounting changes. In addition, Performance Goals and
Performance Cash Awards shall be calculated without regard to any changes in accounting
standards that may be required by the Financial Accounting Standards Board after such
Performance Goals are established. Further, in the event a period of service to which a
Performance Goal relates is less than 12 months, the
Committee shall have the right, in its sole discretion, to adjust the Performance Goals
and the level of Performance Cash Award opportunity.
(c) Notwithstanding anything to the contrary contained in this Plan, the amount payable
to a Participant under this Plan in respect of any one-year period shall not exceed
$5,000,000.
8.
Performance Cash Award Payment
.
(a)
General
. Payment of Performance Cash Awards shall be made in the form of cash, and
may include such restrictions as the Committee shall determine.
(b)
Deferral
. With the approval of the Committee, amounts payable in respect of
Performance Cash Awards may be deferred and paid either in the form of
-5-
installments or as a
lump-sum payment; provided, however, that if deferral is permitted, each provision of the
Performance Cash Award shall be interpreted to permit the deferral only as allowed in
compliance with the requirements of Section 409A and any provision that would conflict with
such requirements shall not be valid or enforceable. The Committee intends that any
Performance Cash Awards under the Plan satisfy or qualify as exempt from the applicable
requirements of Section 409A to avoid imposition of applicable taxes thereunder. The
Committee may permit selected Participants to elect to defer payments of Performance Cash
Awards in accordance with procedures established by the Committee. Any deferred payment of
a Performance Cash Award, whether elected by the Participant or specified by the Award
Agreement or by the Committee, may be forfeited if and to the extent that the Award
Agreement so provides.
9.
Taxes
. The Company shall have the right to deduct applicable taxes from any Performance Cash
Award payment and withhold, at the time of delivery or vesting of cash under this Plan, an
appropriate amount of cash for payment of taxes required by law or to take such other action as may
be necessary in the opinion of the Company to satisfy all obligations for withholding of such
taxes.
10.
Amendment, Modification, Suspension or Termination
. The Board or the Committee may amend,
modify, suspend or terminate this Plan for the purpose of meeting or addressing any changes in
legal requirements or for any other purpose permitted by law, except that (i) no amendment or
alteration that would materially adversely affect the rights of any Participant under any
Performance Cash Award previously granted to such Participant shall be made without the consent of
such Participant and (ii) no amendment or alteration shall be effective prior to its approval by
the shareholders of the Company to the extent shareholder approval is otherwise required by
applicable legal requirements.
11.
Assignability
. Unless otherwise determined by the Committee in the Award Agreement, no
Performance Cash Award or any other benefit under this Plan shall be assignable or otherwise
transferable. Any attempted assignment of a Performance Cash Award or any other benefit under this Plan in
violation of this paragraph 11 shall be null and void.
12.
Adjustments
. In the event of a corporate merger, consolidation, acquisition of property or
stock, separation, reorganization or liquidation, the Board may make such adjustments to
Performance Cash Awards or other provisions for the disposition of Awards as it deems equitable,
and shall be authorized, in its sole discretion, (i) to provide for the substitution of a new
Performance Cash Award or other arrangement (which, if applicable, may be exercisable for such
property or stock as the Board determines) for a Performance Cash Award or the assumption of the
Performance Cash Award, (ii) to provide, prior to the transaction, for the acceleration of the
vesting of the Performance Cash Award or (iii) to cancel any such Performance Cash Awards and to
deliver to the Participants cash in an amount that the Board shall determine in its sole
discretion.
13.
Unfunded Plan
. This Plan shall be unfunded. Although bookkeeping accounts may be established
with respect to Participants who are entitled to cash, any such accounts shall be used merely as a
bookkeeping convenience. The Company shall not be required to segregate any assets that may at any
time be represented by cash or rights thereto, nor
-6-
shall this Plan be construed as providing for
such segregation, nor shall the Company, the Board or the Committee be deemed to be a trustee of
any cash or rights thereto to be granted under this Plan. Any liability or obligation of the
Company to any Participant with respect to a Performance Cash Award of cash or rights thereto under
this Plan shall be based solely upon any contractual obligations that may be created by this Plan
and any Award Agreement, and no such liability or obligation of the Company shall be deemed to be
secured by any pledge or other encumbrance on any property of the Company. Neither the Company nor
the Board nor the Committee shall be required to give any security or bond for the performance of
any obligation that may be created by this Plan.
14.
Section 409A of the Code
. Notwithstanding anything in this Plan to the contrary, if any Plan
provision or Performance Cash Award under the Plan would result in the imposition of an applicable
tax under Section 409A, that Plan provision or Performance Cash Award shall be reformed to avoid
imposition of the applicable tax and no such action shall be deemed to adversely affect the
Participant’s rights to a Performance Cash Award.
15.
Governing Law
. This Plan and all determinations made and actions taken pursuant hereto, to the
extent not otherwise governed by mandatory provisions of the Code or the securities laws of the
United States, shall be governed by and construed in accordance with the laws of the State of
Delaware.
16.
No Right to Employment
. Nothing in the Plan or an Award Agreement shall interfere with or
limit in any way the right of the Company or a Subsidiary to terminate any Participant’s employment
or other service relationship at any time, nor confer upon any Participant any right to continue in the capacity in
which he or she is employed or otherwise serves the Company or any Subsidiary.
17.
Successors
. All obligations of the Company under the Plan with respect to Performance Cash
Awards granted hereunder shall be binding on any successor to the Company, whether the existence of
such successor is the result of a direct or indirect purchase, merger, consolidation, or otherwise,
of all or substantially all of the business and/or assets of the Company.
18.
Effectiveness
. This Plan is effective May 6, 2008. The Plan shall continue in effect for a
term of 10 years, unless sooner terminated by action of the Board.
-7-
IN WITNESS WHEREOF, the Company has caused this Plan to be executed by its duly authorized
officer, effective as provided herein.
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DR PEPPER SNAPPLE GROUP, INC.
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By:
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/s/ James L. Baldwin, Jr.
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Corporate Secretary
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-8-
DR PEPPER SNAPPLE GROUP, INC.
EMPLOYEE STOCK PURCHASE PLAN
Section 1
PURPOSE
The purpose of the Dr Pepper Snapple Group, Inc. Employee Stock Purchase Plan is to provide
Employees of the Company and its Designated Subsidiaries with an opportunity to acquire a
proprietary interest in the Company’s long-term performance and success through the purchase of
shares of Common Stock at a price that may be less than the Fair Market Value of the stock on the
date of purchase from funds accumulated through payroll deductions.
Section 2
BACKGROUND
The Plan is intended to qualify as an “employee stock purchase plan” under Code Section 423.
The Plan will, accordingly, be construed so as to extend and limit participation in a manner within
the requirements of that Code section. The terms of the Plan as contained in this document will
apply with respect to Purchase Periods beginning on and after the Effective Date.
Section 3
DEFINITIONS
As used in the Plan, the following terms, when capitalized, have the following meanings:
“Board”
means the Board of Directors of the Company.
“Business Day”
means a day that the New York Stock Exchange, or such other principal
exchange on which the Common Stock is traded, is open for trading.
“Code”
means the Internal Revenue Code of 1986, as amended.
“Committee”
means the committee described in Section 11.
“Common Stock”
means the common stock, par value $.01 per share, of the Company, or any
stock into which that common stock may be converted, reclassified or exchanged.
“Company”
means Dr Pepper Snapple Group, Inc., a Delaware corporation, and any
successor entity.
“Compensation”
means (a) for salaried Employees, the regular base salary or wages, and
commissions, paid by the Company or a Designated Subsidiary for services
performed by such Employees which are computed on a weekly, biweekly, monthly, annual
or other comparable basis, before any payroll deductions for taxes or any other purposes;
and (b) for hourly Employees, wages paid by the Company or a Designated Subsidiary for
services performed by such Employees which are computed on a biweekly or other comparable
basis, before any payroll deductions for taxes or any other purposes. However, in the case
of both (a) and (b) above, Compensation shall not include overtime, shift premium, bonuses
and other special payments, incentive payments, pension, severance pay, foreign service
premiums or other foreign assignment uplifts or any other extraordinary compensation, nor
Company or Designated Subsidiary contributions to a retirement plan or any other deferred
compensation or employee benefit plan or program of the Company or any Designated
Subsidiary.
“Contributions”
means all amounts contributed by a Participant to the Plan in
accordance with Section 6.
“Designated Subsidiary”
means a Subsidiary that has been designated by the Board or the
Committee as eligible to participate in the Plan as to its eligible Employees.
“Effective Date”
means May 7, 2008.
“Employee”
means any person who performs services as an employee for, and who is
classified as an employee on the payroll records of, the Company or a Designated Subsidiary.
“Fair Market Value”
of a share of Common Stock means, as of a particular date, (i) if
shares of Common Stock are listed on a national securities exchange, the closing sales price
per share of Common Stock on the consolidated transaction reporting system for the principal
national securities exchange on which shares of Common Stock are listed on that date, or, if
there shall have been no such sales reported on that date, on the last preceding date on
which such a sale was so reported, (ii) if the Common Stock is not so listed, but is traded
on an over the counter market, the mean between the closing bid and asked price on that
date, or, if there are no such prices available for such date, on the last preceding date on
which such prices shall be available, as reported by the National Quotation Bureau
Incorporated, or (iii) if shares of Common Stock are not publicly traded, the most recent
value determined by an independent appraiser appointed by the Company for such purpose.
“Offering Date”
means the first Business Day of each Purchase Period.
“Participant”
means a participant in the Plan as described in Section 5.
“Payroll Deduction Account”
means the bookkeeping account established for a Participant
in accordance with Section 6.
“Plan”
means the Dr Pepper Snapple Group, Inc. Employee Stock Purchase Plan, as set
forth herein, and as amended and restated from time to time.
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“Purchase Date”
means the last Business Day of each Purchase Period or such other date
as required by administrative operational requirements.
“Purchase Period”
means a period of twelve months commencing on January 1 of each
calendar year and ending on the following December 31, or such other period as determined by
the Committee; provided that in no event may a Purchase Period exceed 27 months. The
initial Purchase Period following the Effective Date may be a short Purchase Period
beginning on the date selected by the Committee (but no earlier than the date of
effectiveness of the initial registration statement on Form S-8 filed by the Company with
respect to the Plan), and ending on a date selected by the Committee.
“Purchase Price”
means an amount equal to 85% to 100% of the Fair Market Value of a
Share on one of the following dates: (i) the Offering Date, (ii) the Purchase Date or (iii)
the lower of the Offering Date or the Purchase Date, as the Committee in its sole discretion
shall determine and communicate to the Participants.
“Share”
means a share of Common Stock, as adjusted in accordance with Section 13.
“Subsidiary”
means each corporation in an unbroken chain of corporations beginning or
ending with the Company if, on or after the Effective Date, each of the corporations other
than the last corporation in the chain owns stock possessing fifty percent (50%) or more of
the total combined voting power of all classes of stock in one of the other corporations in
the chain.
Section 4
ELIGIBILITY
(a)
Eligible Employees.
Any person who is an Employee as of an Offering Date in a given
Purchase Period will be eligible to participate in the Plan for that Purchase Period, subject to
the requirements of Section 5 and the limitations imposed by Code Section 423(b). Notwithstanding
the foregoing, the Committee may, on a prospective basis, (i) exclude from participation in the
Plan any or all Employees whose customary employment is 20 hours per week or less or is not for
more than five months in a calendar year, and (ii) impose an eligibility service requirement of up
to two years of employment. The Committee may also determine that a designated group of highly
compensated employees (within the meaning of Code Section 414(q)) are ineligible to participate in
the Plan.
(b)
Five Percent Shareholders.
Notwithstanding any other provision of the Plan, no Employee
will be eligible to participate in the Plan if the Employee (or any other person whose stock would
be attributed to the Employee pursuant to Code Section 424(d)) owns an amount of capital stock of
the Company and/or holds outstanding options to purchase stock which equals or exceeds five percent
(5%) of the total combined voting power or value of all classes of stock of the Company or a
Designated Subsidiary.
3
Section 5
PARTICIPATION
An Employee may elect to become a Participant in the Plan by completing such enrollment
documents as are provided by the Committee or its designee, including where applicable a payroll
deduction authorization form, and submitting them to the Committee or its designee in accordance
with the administrative requirements and any limitations established by the Committee. The
enrollment documents will set forth the amount of the Participant’s Contributions, which may be
established as a percentage of the Participant’s Compensation or a specific dollar amount;
provid
e
d, however,
in no event shall a Participant’s Contributions exceed an amount of compensation
which would give the Participant the right to purchase a number of shares at an annual rate which
exceeds the accrual limit specified in Code Section 423(b)(8) for a calendar year. Contributions
to the Plan may be also subject to such other limits designated by the Committee, including any
minimum Contribution amount or percentage.
The Plan is a discretionary plan. Participation by any Employee is purely voluntary.
Participation in the Plan with respect to any Purchase Period shall not entitle any Participant to
participate with respect to any other Purchase Period.
Section 6
CONTRIBUTIONS
(a)
Payroll Deductions.
A Participant’s Contributions with respect to a Purchase Period will
begin on the first payroll paid with respect to such Purchase Period and will end on the last
payroll paid on or before the Purchase Date of said Purchase Period, unless the Participant elects
to withdraw from the Plan as provided in Section 9. A Participant’s enrollment documents will not
remain in effect for successive Purchase Periods unless the Committee otherwise provides.
(b)
Payroll Deduction Account.
For each payroll for which the Participant has elected to make
Contributions to the Plan by means of payroll deduction or otherwise (as approved by the
Committee), the Committee will credit the amount of each Participant’s Contributions to the
Participant’s Payroll Deduction Account. A Participant may not make any additional payments to the
Participant’s Payroll Deduction Account, except as expressly provided in the Plan or as authorized
by the Committee.
(c)
No Interest.
No interest or other earnings will accrue on a Participant’s Contributions
to the Plan or be payable to a Participant upon any payment to or withdrawal by such Participant of
funds from such Participant’s Payroll Deduction Account.
(d)
Non-U.S. Contributions.
In countries where payroll deductions are not permissible or
feasible, the Committee may, in its sole discretion, permit an Employee to participate in the Plan
by alternative means. Except as otherwise specified by the Committee, Contributions (including
payroll deductions) made with respect to Employees paid in currencies other than U.S. dollars will
be accumulated in local currency and converted to U.S. dollars as of the Purchase Date.
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Section 7
STOCK PURCHASES
(a)
Automatic Purchase.
Effective as of the close of business on each Purchase Date, but
subject to the limitations of Section 8, each Participant will be deemed, without further action,
to have automatically purchased the number of whole Shares that the Participant’s Payroll Deduction
Account balance can purchase at the Purchase Price specified by the Committee as applicable for
that Purchase Period on that Purchase Date and such Shares will be considered to be issued and
outstanding. Except as otherwise specified by the Committee, any amounts that are not sufficient
to purchase a whole Share will be returned to each Participant following the Purchase Period.
(b)
Delivery of Shares.
Purchased Shares shall be credited in book entry form as soon as
practicable after each Purchase Date to an account administered by a designated custodian, bank or
financial institution. The Committee may require that Shares be retained by the account
administrator for a specified period of time and may restrict dispositions during that period, and
the Committee may establish other procedures to permit tracking of disqualifying dispositions of
the Shares or to restrict transfer of the Shares. A Participant shall not be permitted to pledge,
transfer, or sell Shares until they are issued in book entry, except as otherwise permitted by the
Committee and subject to the Company’s policies regarding securities trading.
(c)
Notice Restrictions.
The Committee may require, as a condition of participation in the
Plan, that each Participant agree to notify the Company if the Participant sells or otherwise
disposes of any Shares within two years of the Offering Date or one year of the Purchase Date for
the Purchase Period in which the Shares were purchased.
(d)
Shareholder Rights.
A Participant will have no interest or voting right in a Share until
a Share has been purchased on the Participant’s behalf under the Plan.
Section 8
LIMITATION ON PURCHASES
(a)
Limitations on Aggregate Shares Available During a Purchase Period.
With respect to each
Purchase Period, the Committee, at its discretion, may specify the maximum number of Shares that
may be purchased or such other limitations that it may deem appropriate, subject to the aggregate
number of Shares authorized under Section 12 of this Plan. If the number of Shares to be purchased
on a Purchase Date exceeds the number of Shares available for purchase under the Plan, the Shares
purchased on such Purchase Date shall be reduced to an amount determined by the Committee not to
exceed the number of Shares so available for purchase and shall be allocated by the Committee pro
rata among the Participants in the Purchase Period in proportion to the relative amounts credited
to their accounts. Any amounts not thereby applied to the purchase of Shares under the Plan shall
be refunded to the Participants after the end of the Purchase Period, without interest.
(b)
Limitations on Participant Purchases.
Participant purchases are subject to the following
limitations:
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(1)
Purchase Period Limitation.
Subject to the calendar year limits provided in (2)
below, the maximum number of Shares that a Participant will have the right to purchase in
any Purchase Period will be determined by dividing (i) the accrual limit specified in Code
Section 423(b)(8) by (ii) the Fair Market Value of one Share on the Offering Date for such
Purchase Period.
(2)
Calendar Year Limitation.
No right to purchase Shares under the Plan will be
granted to an Employee if such right, when combined with all other rights and options
granted under all of the Code Section 423 employee stock purchase plans of the Company, its
Subsidiaries or any parent corporation (within the meaning of Code Section 424(e)), would
permit the Employee to purchase Shares with a Fair Market Value (determined at the time the
right or option is granted) in excess of the accrual limit specified in Code Section
423(b)(8) for each calendar year in which the right or option is outstanding at any time,
determined in accordance with Code Section 423(b)(8).
(c)
Refunds.
As of the first Purchase Date on which this Section 8 limits a Participant’s
ability to purchase Shares, the Participant’s payroll deductions will terminate, and the unused
balance will be returned to such Participant without interest.
Section 9
WITHDRAWAL FROM PARTICIPATION
Subject to the Company’s policies regarding securities trading, a Participant may cease
participation in a Purchase Period at any time prior to the Purchase Date and withdraw all, but not
less than all, of the Contributions credited to the Participant’s Payroll Deduction Account by
providing at least 15 days’ prior written notice in the form and manner prescribed by the
Committee. Partial cash withdrawals shall not be permitted. If a Participant elects to withdraw,
the Participant may not make any further Contributions to the Plan for the purchase of Shares
during that Purchase Period. A Participant’s voluntary withdrawal during a Purchase Period will
not have any effect upon the Participant’s eligibility to participate in the Plan during a
subsequent Purchase Period.
Section 10
EMPLOYMENT TERMINATION
(a)
In General.
If a Participant’s employment with the Company or a Designated Subsidiary
terminates for any reason, the Participant will cease to participate in the Plan and the Company or
its designee will refund the balance in the Participant’s Payroll Deduction Account without
interest.
(b)
Leaves of Absence.
The Committee may establish administrative policies regarding a
Participant’s rights to continue to participate in the Plan in the event of such Participant’s
leave of absence.
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Section 11
PLAN ADMINISTRATION AND AMENDMENTS
The Plan will be administered by the Committee, which will be appointed by the Board. The
Committee will initially be the Compensation Committee of the Board unless and until the Board
appoints another committee to administer the Plan;
provided, however,
that such committee shall
satisfy the independence requirements under Section 16 of the Securities Exchange Act of 1934, as
amended, and as prescribed by any stock exchange on which the Common Stock is listed.
Subject to the express provisions of the Plan, the Committee will have the discretionary
authority to interpret the Plan and to make factual and legal determinations; to take any actions
necessary to implement the Plan; to prescribe, amend, and rescind rules and regulations relating to
the Plan; and to make all other determinations necessary or advisable in administering the Plan.
All such determinations will be final and binding upon all persons. The Committee may request
advice or assistance or employ or designate such other persons as are necessary or appropriate for
proper administration of the Plan.
To the fullest extent permitted by law, the Company shall indemnify and hold harmless any
member of the Board or any Committee and other individuals performing services on behalf of the
Committee, against any liability, cost or expense arising as a result of any claim asserted by any
person or entity under applicable laws with respect to any action or failure to act of such
individuals taken in connection with this Plan, except claims or liabilities arising on account of
the willful misconduct or bad faith of such Board member, Committee member or individual.
Section 12
RESERVED SHARES
Subject to adjustments as provided in Section 13, the maximum number of Shares available for
purchase under the Plan on or after the Effective Date is 2,250,000 Shares. Shares issued under
the Plan may be Shares of original issuance, Shares held in treasury, or Shares that have been
reacquired by the Company.
Section 13
CAPITAL CHANGES
(a)
Changes in Capitalization
. Subject to any required action by the shareholders of the
Company, the right to purchase Shares covered by a current Purchase Period and the number of Shares
which have been authorized for issuance under the Plan for any future Purchase Period, the maximum
number of Shares each Participant may purchase each Purchase Period (pursuant to Section 8), as
well as the price per Share and the number of Shares covered by each right under the Plan which
have not yet been purchased shall be proportionately adjusted, as determined by the Committee, for
any increase or decrease in the number of issued Shares resulting from a stock split, reverse stock
split, stock dividend, combination or reclassification of the Common Stock, or any other increase
or decrease in the number of Shares effected without receipt of consideration by the Company.
Except as expressly provided in the immediately
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preceding sentence and unless otherwise determined by the Committee, no issuance by the
Company of shares of stock of any class, or securities convertible into or exchangeable for shares
of stock of any class, shall affect, and no adjustment by reason thereof shall be made with respect
to, the number or price of Shares hereunder.
(b)
Dissolution or Liquidation
. In the event of the proposed dissolution or liquidation of
the Company, the Purchase Period then in progress shall be shortened by the Committee’s setting a
new Purchase Date and shall terminate immediately prior to the consummation of such proposed
dissolution or liquidation, unless provided otherwise by the Committee. The new Purchase Date
selected by the Committee shall be before the date of the Company’s proposed dissolution or
liquidation. Each Participant will be notified in writing, at least 10 business days prior to the
new Purchase Date or such shorter period as the Committee may determine, that the Purchase Date for
the Participant’s right to purchase Shares has been changed to the new Purchase Date and that the
applicable number of Shares will automatically be purchased on the new Purchase Date, unless prior
to such date the Participant has withdrawn from the Plan as provided in Section 9 hereof.
(c)
Merger or Asset Sale
. In the event of a proposed sale of all or substantially all of the
assets of the Company, or the merger or consolidation of the Company with or into another entity,
unless provided otherwise by the Committee each outstanding right to purchase Shares shall be
assumed, or an equivalent right to purchase shares substituted, by the successor or resulting
entity or a parent or subsidiary of the such entity. In the event that the successor or resulting
entity refuses to assume or substitute the right to purchase Shares or if so determined by the
Committee, any Purchase Period then in progress shall be shortened by the Committee’s setting a new
Purchase Date and any Purchase Period then in progress shall end on the new Purchase Date. The new
Purchase Date selected by the Committee shall be before the effective date of such proposed sale,
merger or consolidation. Each Participant will be notified in writing at least 10 business days
prior to the new Purchase Date or such shorter period as the Committee may determine that the
Purchase Date for the Participant’s right to purchase Shares has been changed to the new Purchase
Date and that the applicable number of Shares will be purchased automatically on the new Purchase
Date, unless prior to such date the Participant has withdrawn from the Plan as provided in Section
9 hereof.
Section 14
AMENDMENT OR TERMINATION OF THE PLAN
The Board or the Committee, in its sole discretion, may suspend or terminate the Plan, or
amend the Plan in any respect;
provided, however,
that the stockholders of the Company must approve
any amendment to the extent required by Code Section 423 or the requirements of any stock exchange
on which the Common Stock is listed.
The Plan and all rights of Employees under the Plan will terminate: (a) immediately following
the Purchase Date on which the number of Shares purchased on such date has been reduced pursuant to
Section 8(a), unless otherwise determined by the Board, or (b) at any date at the discretion of the
Board or the Committee. Upon termination of the Plan, each Participant will receive the balance in
the Participant’s Payroll Deduction Account, without interest.
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Section 15
REGULATORY AND TAX COMPLIANCE; LISTING OF SHARES
The Plan, the grant and exercise of the rights to purchase Shares under the Plan, and the
Company’s obligation to sell and deliver Shares upon the exercise of rights to purchase Shares,
will be subject to all applicable federal, state and foreign laws, rules and regulations, and to
such approvals by any regulatory or government agency as may be required or desirable. The Plan is
intended to comply with Rule 16b-3 under the U.S. Securities Exchange Act of 1934, as amended. Any
provision inconsistent with such Rule shall be inoperative and shall not affect the validity of the
Plan.
If at any time the Board or the Committee shall determine that the listing, registration or
qualification of the Shares covered by the Plan upon any national securities exchange or reporting
system or under any applicable law is necessary or desirable as a condition of, or in connection
with, the sale or purchase of Shares under the Plan, no Shares will be sold, issued or delivered
unless and until such listing, registration or qualification shall have been effected or obtained,
or otherwise provided for.
Section 16
NON-U.S. JURISDICTIONS
The Committee may, in its sole discretion, adopt such rules or procedures to accommodate the
requirements of local laws of non-U.S. jurisdictions, including rules or procedures relating to the
handling of payroll deductions, conversion of local currency, payroll taxes and withholding
procedures, as the Committee in its sole discretion deems appropriate. The Committee may also
adopt rules and procedures different from those set forth in the Plan applicable to Participants
who are employed by specific Designated Subsidiaries or at certain non-U.S. locations that are not
intended to be within the scope of Code Section 423, subject to the provisions of Section 12, and
may where appropriate establish one or more sub-plans for this purpose.
Section 17
MISCELLANEOUS
(a)
Nontransferability
. Except by the laws of descent and distribution, no benefit provided
hereunder, including a right to purchase Shares, shall be subject to alienation, assignment, or
transfer by a Participant (or by any person entitled to such benefit pursuant to the terms of this
Plan), nor shall it be subject to attachment or other legal process of whatever nature, and any
attempted alienation, assignment, attachment, or transfer shall be void and of no effect whatsoever
and, upon any such attempt, the benefit shall terminate and be of no force or effect. During a
Participant’s lifetime, rights granted to the Participant hereunder shall be exercisable only by
the Participant. Shares of Common Stock shall be delivered only to the Participant or, in the
event of his death, his properly designated beneficiary entitled to receive the same or, in the
absence of such designation, to the executor, administrator or other legal representative of the
Participant’s estate.
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(b)
Tax Withholding.
The Company or any Designated Subsidiary shall have the right to
withhold from all payments hereunder any federal, state, local, or non-U.S. income, social
insurance, or other taxes that it deems are required by law to be withheld with respect to such
payments. If such withholding is insufficient to satisfy such Federal, state, local or non-U.S.
taxes, the Participant shall be required to pay to the Company or Designated Subsidiary, as the
case may be, such amount required to be withheld or make such other arrangements satisfactory to
the Company or such Designated Subsidiary, as the Committee shall determine.
(c)
No Employment Right.
Nothing contained in this Plan nor any action taken hereunder shall
be construed as giving any right to any individual to be retained as an officer or Employee of the
Company or any other employer or subsidiary or affiliate of the Company.
(d)
Equal Rights and Privileges.
All eligible Employees shall have equal rights and
privileges with respect to the Plan so that the Plan qualifies as an “employee stock purchase plan”
within the meaning of Section 423 or any successor provision of the Code and related regulations.
Any provision of the Plan which is inconsistent with Section 423 or any successor provision of the
Code shall without further act or amendment by the Company be reformed to comply with the
requirements of Section 423.
(e)
No Rights as Shareholder.
A Participant shall not be considered a shareholder with
respect to Shares to be purchased until the Purchase Date. Thus, a Participant shall not have a
right to any dividend or distribution on Shares subject to purchase during a Purchase Period.
(f)
Relationship to Other Benefits.
It is not intended that any rights or benefits provided
under this Plan be considered part of normal or expected compensation for purposes of calculating
any severance, redundancy, termination indemnity, end of service awards, pension, retirement,
profit sharing, or group insurance plan or similar benefits or payments. No payment under this
Plan shall be taken into account in determining any benefits under any severance, termination, end
of service awards, pension, retirement, profit sharing, or group insurance plan of the Company or
any Designated Subsidiary or subsidiary or affiliate of the Company.
(g)
Expenses.
The expenses of implementing and administering this Plan shall be borne by the
Company. Any brokerage fees for the subsequent transfer or sale of Shares acquired under this Plan
shall be paid by the Participant (or his beneficiary or estate, if applicable).
(h)
Titles and Headings.
The titles and headings of the Sections and subsections in this Plan
are for convenience of reference only, and in the event of any conflict, the text of this Plan,
rather than such titles or headings, shall control.
(i)
Application of Funds.
All funds received by the Company under the Plan shall constitute
general funds of the Company.
(j)
Nonexclusivity of Plan.
Neither the adoption of the Plan by the Board nor the submission
of the Plan to the stockholders of the Company for approval shall be construed as creating any
limitations on the power of the Board to adopt such other incentive arrangements as it may deem
desirable, including, without limitation, the granting of stock options otherwise than
10
under the Plan, and such arrangements may be either applicable generally or only in specific
cases.
(k)
Duration of Plan.
Notwithstanding any provision in the Plan, no rights to purchase Shares
shall be granted hereunder prior to the Effective Date. Following termination of the Plan in
accordance with Section 14, the Plan shall remain in effect until all rights granted under the Plan
prior to such termination have been exercised or expired, vested or forfeited, and/or otherwise
satisfied.
(l)
Governing Law.
This Plan and all determinations made and actions taken pursuant hereto,
to the extent not otherwise governed by mandatory provisions of the Code or the securities laws of
the United States, shall be governed by and construed in accordance with the laws of the State of
Delaware.
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IN WITNESS WHEREOF, the Company has caused this Plan to be executed by its duly authorized
officer, effective as provided herein.
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DR PEPPER SNAPPLE GROUP, INC.
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By:
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/s/ James L. Baldwin, Jr.
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Corporate Secretary
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