-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, G84tLJ7od/IeRFP0ypcfU8IjAtaMAnH5xIgIBfYZ+ZFJINjn65fZOXpnoKdocTxP PxKcSV2IjeLDitHXbvFVpA== 0000912057-01-000045.txt : 20010122 0000912057-01-000045.hdr.sgml : 20010122 ACCESSION NUMBER: 0000912057-01-000045 CONFORMED SUBMISSION TYPE: SC 13D/A PUBLIC DOCUMENT COUNT: 5 FILED AS OF DATE: 20010102 GROUP MEMBERS: DAKOTA HOLDING LLC GROUP MEMBERS: PEPSICO, INC. GROUP MEMBERS: POHLAD COMPANIES SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: WHITMAN CORP/NEW/ CENTRAL INDEX KEY: 0001084230 STANDARD INDUSTRIAL CLASSIFICATION: BOTTLED & CANNED SOFT DRINKS CARBONATED WATERS [2086] IRS NUMBER: 136167838 STATE OF INCORPORATION: DE FILING VALUES: FORM TYPE: SC 13D/A SEC ACT: SEC FILE NUMBER: 005-59971 FILM NUMBER: 1500489 BUSINESS ADDRESS: STREET 1: 3501 ALGONQUIN ROAD CITY: ROLLING MEADOWS STATE: IL ZIP: 60008 BUSINESS PHONE: 8478185000 MAIL ADDRESS: STREET 1: 3501 ALGONQUIN ROAD CITY: ROLLING MEADOWS STATE: IL ZIP: 60008 FORMER COMPANY: FORMER CONFORMED NAME: HEARTLAND TERRITORIES HOLDINGS INC DATE OF NAME CHANGE: 19990414 FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: DAKOTA HOLDING LLC CENTRAL INDEX KEY: 0001097830 STANDARD INDUSTRIAL CLASSIFICATION: [] STATE OF INCORPORATION: DE FISCAL YEAR END: 0916 FILING VALUES: FORM TYPE: SC 13D/A BUSINESS ADDRESS: STREET 1: 3800 DAIN RAUCHER PLAZA STREET 2: 60 SOUTH SIXTH STREET CITY: MINNEAPOLIS STATE: MN ZIP: 55402 BUSINESS PHONE: 6126613830 SC 13D/A 1 a2034299zsc13da.txt 13D/A SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 SCHEDULE 13D (RULE 13d-101) INFORMATION TO BE INCLUDED IN STATEMENT FILED PURSUANT TO RULE 13d-1(a) AND AMENDMENTS THERETO FILED PURSUANT TO RULE 13d-2(a) (AMENDMENT NO. 1 )* --------- WHITMAN CORPORATION -------------------------------------------------------- (Name of Issuer) COMMON STOCK, PAR VALUE $0.01 PER SHARE, AND ASSOCIATED PREFERRED SHARE PURCHASE RIGHTS -------------------------------------------------------- (Title of Class of Securities) 96647R107 -------------------------------------------------------- (CUSIP Number) JOHN F. BIERBAUM 60 SOUTH SIXTH STREET SUITE 3800 MINNEAPOLIS, MN 55402 (612) 661-3830 -------------------------------------------------------- (Name, Address and Telephone Number of Person Authorized to Receive Notices and Communications) DECEMBER 29, 2000 -------------------------------------------------------- (Date of Event which Requires Filing of this Statement) If the filing person has previously filed a statement on Schedule 13G to report the acquisition that is the subject of this Schedule 13D, and is filing this schedule because of Rule 13d-1(e), 13d-1(f) or 13d-1(g), check the following box / /. *The remainder of this cover page shall be filled out for a reporting person's initial filing on this form with respect to the subject class of securities, and for any subsequent amendment containing information which would alter disclosures provided in a prior cover page. The information required on the remainder of this cover page shall not be deemed to be "filed" for the purpose of Section 18 of the Securities Exchange Act of 1934 ("Act") or otherwise subject to the liabilities of that section of the Act but shall be subject to all other provisions of the Act (however, SEE the NOTES). (Continued on following pages) Page 1 of 8 CUSIP No. 96647R107 13D Page 2 of 8 Pages --------- --- --- - ------------------------------------------------------------------------------- (1) NAMES OF REPORTING PERSONS I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY) DAKOTA HOLDINGS, LLC - ------------------------------------------------------------------------------- (2) CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) /X/ (b) / / - ------------------------------------------------------------------------------- (3) SEC USE ONLY - ------------------------------------------------------------------------------- (4) SOURCE OF FUNDS* AF - ------------------------------------------------------------------------------- (5) CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d) or 2(e) / / - ------------------------------------------------------------------------------- (6) CITIZENSHIP OR PLACE OF ORGANIZATION DELAWARE - ------------------------------------------------------------------------------- (7) SOLE VOTING POWER 0 NUMBER OF -------------------------------------------------- SHARES (8) SHARED VOTING POWER BENEFICIALLY OWNED BY 14,562,970** EACH REPORTING -------------------------------------------------- PERSON (9) SOLE DISPOSITIVE POWER WITH 0 -------------------------------------------------- (10) SHARED DISPOSITIVE POWER 14,562,970** - ------------------------------------------------------------------------------- (11) AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 14,562,970** - ------------------------------------------------------------------------------- (12) CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES* / / - ------------------------------------------------------------------------------- (13) PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 9.3% - ------------------------------------------------------------------------------- (14) TYPE OF REPORTING PERSON* OO - ------------------------------------------------------------------------------- *SEE INSTRUCTIONS BEFORE FILLING OUT! **Includes a warrant to purchase 377,128 shares of Whitman common stock. CUSIP No. 96647R107 13D Page 3 of 8 Pages --------- --- --- - ------------------------------------------------------------------------------- (1) NAMES OF REPORTING PERSONS I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY) POHLAD COMPANIES - ------------------------------------------------------------------------------- (2) CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (A) /X/ (b) / / - ------------------------------------------------------------------------------- (3) SEC USE ONLY - ------------------------------------------------------------------------------- (4) SOURCE OF FUNDS* OO - ------------------------------------------------------------------------------- (5) CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d) or 2(e) / / - ------------------------------------------------------------------------------- (6) CITIZENSHIP OR PLACE OF ORGANIZATION MINNESOTA - ------------------------------------------------------------------------------- (7) SOLE VOTING POWER 102 NUMBER OF -------------------------------------------------- SHARES (8) SHARED VOTING POWER BENEFICIALLY OWNED BY 14,562,970** EACH REPORTING -------------------------------------------------- PERSON (9) SOLE DISPOSITIVE POWER WITH 102 -------------------------------------------------- (10) SHARED DISPOSITIVE POWER 14,562,970** - ------------------------------------------------------------------------------- (11) AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 14,563,072** - ------------------------------------------------------------------------------- (12) CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES* / / - ------------------------------------------------------------------------------- (13) PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 9.3% - ------------------------------------------------------------------------------- (14) TYPE OF REPORTING PERSON* CO - ------------------------------------------------------------------------------- *SEE INSTRUCTIONS BEFORE FILLING OUT! **Includes a warrant to purchase 377,128 shares of Whitman common stock. CUSIP No. 96647R107 13D Page 4 of 8 Pages --------- --- --- - ------------------------------------------------------------------------------- (1) NAMES OF REPORTING PERSONS I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY) PEPSICO, INC. - ------------------------------------------------------------------------------- (2) CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) /X/ (b) / / - ------------------------------------------------------------------------------- (3) SEC USE ONLY - ------------------------------------------------------------------------------- (4) SOURCE OF FUNDS* OO - ------------------------------------------------------------------------------- (5) CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d) or 2(e) / / - ------------------------------------------------------------------------------- (6) CITIZENSHIP OR PLACE OF ORGANIZATION NORTH CAROLINA - ------------------------------------------------------------------------------- (7) SOLE VOTING POWER 54,794,115 NUMBER OF -------------------------------------------------- SHARES (8) SHARED VOTING POWER BENEFICIALLY OWNED BY 14,562,970** EACH REPORTING -------------------------------------------------- PERSON (9) SOLE DISPOSITIVE POWER WITH 54,794,115 -------------------------------------------------- (10) SHARED DISPOSITIVE POWER 14,562,970** - ------------------------------------------------------------------------------- (11) AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 69,357,085** - ------------------------------------------------------------------------------- (12) CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES* / / - ------------------------------------------------------------------------------- (13) PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 44.5% - ------------------------------------------------------------------------------- (14) TYPE OF REPORTING PERSON* CO - ------------------------------------------------------------------------------- *SEE INSTRUCTIONS BEFORE FILLING OUT! **Includes a warrant to purchase 377,128 shares of Whitman common stock. PRELIMINARY STATEMENT Dakota Holdings, LLC (the "LLC"), Pohlad Companies ("Pohlad") and PepsiCo, Inc. ("PepsiCo") (the "Reporting Persons") hereby amend their statement on Schedule 13D, originally filed on December 11, 2000 (the "Schedule 13D"), with respect to their beneficial ownership of shares of common stock, par value $0.01 per share, and associated preferred purchase rights, of Whitman Corporation (the "Company" or "Whitman"), which class of shares is registered under Section 12(b) of the Securities Exchange Act of 1934, as amended. The Reporting Persons hereby amend Items 2 and 6 of Schedule 13D, and restate Items 3, 4, 5 and 7 of Schedule 13D, as follows: ITEM 2. IDENTITY AND BACKGROUND. The LLC's members are Pohlad, Beverages, Foods & Service Industries, Inc., a Delaware corporation ("BFSI"), which is a wholly owned subsidiary of PepsiCo, Pepsi-Cola Metropolitan Bottling Co., Inc., a New Jersey corporation ("Metro"), which is also a wholly owned subsidiary of PepsiCo, Beverage Investment, LLC, a Minnesota limited liability company, a company under common control with Pohlad ("Beverage Investment"), and Midwest Beverage Holdings, LLC, a Minnesota limited liability company, which is also a company under common control with Pohlad ("Midwest"). Robert C. Pohlad, the Chief Executive Officer and a director of Whitman, is the President of Pohlad and the owner of one-third of the stock of Pohlad. The LLC is governed by the Amended and Restated Limited Liability Company Agreement, dated November 30, 2000, as amended, by and among Pohlad, BFSI, Metro, Beverage Investment, Midwest and PepsiCo (the "LLC Agreement"). Copies of the First and Second Amendments to the LLC Agreement are attached hereto as Exhibits E and F. ITEM 3. SOURCE AND AMOUNT OF FUNDS OR OTHER CONSIDERATION. On November 30, 2000, PepsiAmericas, Inc. ("PepsiAmericas") merged into a wholly owned subsidiary of Whitman pursuant to an Agreement and Plan of Merger dated August 18, 2000 (the "Merger"). In connection with the Merger, Whitman agreed to sell an aggregate of up to 1,710,863 shares of its common stock, at a price of $14.6125 per share, to the PepsiAmericas shareholders who participated in the contingent payment alternative and wished to purchase such shares (the "Subscription Shares"). The LLC had the right to purchase any Subscription Shares that were not purchased by the PepsiAmericas shareholders initially entitled to purchase them. Also in connection with the Merger, Pohlad separately negotiated the right to acquire from PepsiCo up to $25 million of Whitman common stock at a price of $14.6125 per share. This amendment is filed to reflect (1) the acquisition of 1,707,551 Subscription Shares by the LLC in exchange for $24,951,588.99 in cash paid to Whitman and (2) the acquisition of a membership interest in the LLC by Midwest in exchange for $24,998,685.08 in cash paid to Metro. Pursuant to the transaction between Midwest and Metro, Pohlad effectively acquired approximately $25 million of Whitman common stock from PepsiCo. ITEM 4. PURPOSE OF TRANSACTION. The transactions described herein were effected in connection with the Merger. Upon the effectiveness of the Merger, Robert C. Pohlad became the Chief Executive Officer and a director Page 5 of 8 of Whitman, Kenneth E. Keiser became the President and Chief Operating Officer of Whitman's United States operations, John F. Bierbaum became the Executive Vice President of Corporate Growth and Strategic Planning of Whitman, G. Michael Durkin became the Senior Vice President and Chief Financial Officer of Whitman, and Larry Young became the President and Chief Operating Officer of Whitman's International Operations. Due to the LLC's election of the contingent payment alternative in the Merger, it has the right to receive in the future up to 6,669,747 shares of Whitman common stock if PepsiAmericas meets certain performance levels for the years 2000 through 2002. Due to Pohlad's election of the contingent payment alternative in the Merger, it has the right to receive in the future up to 54 additional shares of Whitman common stock if PepsiAmericas meets the specified performance levels. Other than as described above, the reporting persons have no plans or proposals that relate to or would result in the actions listed under Items 4(a)-(j) of Schedule 13D. ITEM 5. INTEREST IN SECURITIES OF THE ISSUER. (a) As of December 29, 2000, (1) the LLC beneficially owned 14,562,970 shares (9.3%), including 377,128 shares which the LLC has a right to acquire upon exercise of a warrant, (2) Pohlad beneficially owned 14,563,072 shares (9.3%), including the shares beneficially owned by the LLC and 102 shares owned directly by Pohlad, and (3) PepsiCo beneficially owned 69,357,085 (44.5%), including the shares beneficially owned by the LLC, 54,000,000 shares owned directly by PepsiCo and 794,115 shares owned by Midland Bottling Co., a wholly owned subsidiary of PepsiCo. (b) The responses of each reporting person to Items (7) through (10) on the cover pages of this Schedule 13D are incorporated herein by reference. By virtue of their interest in the LLC, Pohlad and PepsiCo may be deemed to beneficially own the shares held by the LLC. Such shares are included in the beneficial ownership totals of Pohlad and PepsiCo presented above. (c) See Item 3. (d) Not applicable. (e) Not Applicable. ITEM 6. CONTRACTS, ARRANGEMENTS, UNDERSTANDING OR RELATIONSHIPS WITH RESPECT TO SECURITIES OF THE ISSUER. Pursuant to the First Amendment to the LLC Agreement, Midwest became a member of the LLC. The LLC is governed by the LLC Agreement, as amended, by and among Pohlad, BFSI, Metro, Beverage Investment, Midwest and PepsiCo. Copies of the First and Second Amendments to the LLC Agreement are attached hereto as Exhibits E and F. Page 6 of 8 ITEM 7. MATERIAL TO BE FILED AS EXHIBITS. Exhibit A - Amended and Restated Limited Liability Company Agreement of Dakota Holdings, LLC, dated November 30, 2000.* Exhibit B - Amended and Restated Shareholder Agreement, between Whitman Corporation and PepsiCo., Inc., dated November 30, 2000.* Exhibit C - Shareholder Agreement, between Whitman Corporation, Pohlad Companies, Dakota Holdings, LLC and Robert C. Pohlad, dated November 30, 2000.* Exhibit D - Membership Interest Purchase Agreement, by and between Pepsi-Cola Metropolitan Bottling Company, PepsiCo, Inc., and Midwest Beverage Holdings, LLC, dated December 27, 2000. Exhibit E - First Amendment to the Amended and Restated Limited Liability Company Agreement of Dakota Holdings, LLC, dated December 27, 2000. Exhibit F - Second Amendment to the Amended and Restated Limited Liability Company Agreement of Dakota Holdings, LLC, dated December 29, 2000. Exhibit G - Agreement to File Joint Statement on Schedule 13D, dated January 2, 2001. - -------------------------------------------------------------------------------- * Previously filed. Page 7 of 8 SIGNATURE After reasonable inquiry and to the best of my knowledge and belief, I certify that the information set forth in this statement is true, complete and correct. DAKOTA HOLDINGS, LLC By Its Members: POHLAD COMPANIES Dated: January 2, 2001 By: /s/ John F. Bierbaum --------------------- John F. Bierbaum, Vice President and Chief Financial Officer BEVERAGES, FOODS & SERVICE INDUSTRIES, INC. Dated: January 2, 2001 By: /s/ Robert K. Biggart ------------------------ Robert K. Biggart, Vice President PEPSI-COLA METROPOLITAN BOTTLING CO., INC. Dated: January 2, 2001 By: /s/ W. Timothy Heaviside ------------------------- W. Timothy Heaviside, Vice President BEVERAGE INVESTMENT, LLC Dated: January 2, 2001 By: /s/ John F. Bierbaum ---------------------- John F. Bierbaum, Vice President MIDWEST BEVERAGE HOLDINGS, LLC Dated: January 2, 2001 By: /s/ John F. Bierbaum ---------------------- John F. Bierbaum, Vice President POHLAD COMPANIES Dated: January 2, 2001 By: /s/ John F. Bierbaum --------------------- John F. Bierbaum, Vice President and Chief Financial Officer PEPSICO, INC. Dated: January 2, 2001 By: /s/ W. Timothy Heaviside ------------------------- W. Timothy Heaviside, Vice President Page 8 of 8 EX-99.D 2 a2034299zex-99_d.txt EX-99.D EXHIBIT D MEMBERSHIP INTEREST PURCHASE AGREEMENT This Membership Interest Purchase Agreement (the "Agreement") is made as of this 27th day of December, 2000, by and between Pepsi-Cola Metropolitan Bottling Company, a New Jersey corporation ("Metro"), PepsiCo, Inc., a North Carolina corporation ("PepsiCo"), and Midwest Beverage Holdings, LLC, a Minnesota limited liability company ("Midwest"). R E C I T A L S FIRST, Metro currently owns thirty and one-tenth percent (30.1%) of the issued and outstanding Class A membership interest ("Class A Membership Interest") in Dakota Holdings, LLC, a Minnesota limited liability company ("Dakota Holdings"). SECOND, Dakota Holdings owns 12,478,291 shares of common stock of Whitman Corporation and 2,201,445 shares of common stock of PepsiCo. THIRD, the rights of the Class B membership interest in Dakota Holdings to income, profits and distributions are determined solely by reference to the PepsiCo stock owned by Dakota Holdings and the rights of Class A Membership Interests in profits, losses and distributions are determined by excluding the profits, losses and value of the PepsiCo stock. FOURTH, Metro's investment in Dakota Holdings is evidenced by and subject to the terms and conditions of the Amended and Restated Limited Liability Company Agreement of Dakota Holdings, LLC dated November 30, 2000(the "LLC Agreement"). FIFTH, Midwest desires to purchase, and Metro desires to sell, that portion of Metro's Class A Membership Interest in Dakota Holdings equal to thirteen and seventy one one-hundredths percent (13.71%) of the issued and outstanding Class A Membership interest in Dakota Holdings, subject to all terms and conditions set forth in this Agreement (the "Transfer"). NOW, THEREFORE, in consideration of the foregoing premises and the covenants and agreements set forth hereinafter, and for other good and valuable consideration, it is hereby agreed as follows: 1. RECITALS. The Recitals hereto are incorporated by reference and form a part of this Agreement. 2. PURCHASE PRICE FOR CLASS A MEMBERSHIP INTEREST. Metro does hereby sell, transfer and deliver to Midwest, and Midwest hereby purchases from Metro, that portion of Metro's Class A Membership Interest in Dakota Holdings equal to thirteen and seventy one one-hundredths percent (13.71%) (the "Transferred Membership Interest") of the issued and outstanding Class A Membership interests in Dakota Holdings for an aggregate purchase price of $24,998,685.08. 3. METHOD OF PAYMENT FOR INTEREST. Midwest shall pay Metro for the Transferred Membership Interest by wire transfer concurrently with the execution of this Agreement. D-1 4. DELIVERY OF DOCUMENTS. Contemporaneously with the signing of this Agreement, Metro shall deliver to Midwest: (a) an Assignment of Membership Interest in the form of Exhibit A attached hereto, which Midwest agrees to execute simultaneously with the execution of this Agreement, and (b) a consent of members of Dakota Holdings to the Transfer as required under section 9.1 of the LLC Agreement and to the making of section 754 election as required by section 8.3(f) of the LLC Agreement ("Consent") signed by Metro, PepsiCo and Beverages, Food & Service Industries, Inc. ("BFSI"). Midwest shall deliver a Consent signed by Pohlad Companies and Beverage Investment, LLC. Additionally, Metro, Midwest and the other members of Dakota Holdings shall, simultaneously with execution of this Agreement, enter into an Amendment to the Limited Liability Company Agreement for Dakota Holdings (the "Amendment") reflecting the admission of Midwest as a Member of Dakota Holdings. 5. REPRESENTATIONS OF METRO AND PEPSICO. Metro and PepsiCo represent and warrant to Midwest that: a. AUTHORIZATION AND ENFORCEABILITY. All corporate action on the part of Metro and PepsiCo necessary for the authorization, execution and delivery of this Agreement and the Amendment and the documents and instruments executed in connection therewith has been taken, and this Agreement, the Amendment and all documents and instruments executed in connection therewith constitute valid and legally binding obligations of Metro and PepsiCo, enforceable against Metro and PepsiCo in accordance with their respective terms, except as limited by applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance and other laws of general application affecting enforcement of creditors rights generally, or as limited by laws relating to the availability of specific performance, injunctive relief or other equitable remedies. b. TITLE TO TRANSFERRED MEMBERSHIP INTEREST. Metro is the owner, free and clear of any security interests, mortgages or liens, of the Transferred Membership Interest. c. NO CONSENTS. No consent, order, or authorization of, or registration, declaration or filing with, any person, is required to be made or received by PepsiCo or Metro in connection with the execution and delivery of this Agreement or the consummation of the Transfer. 6. REPRESENTATIONS OF MIDWEST. Midwest represents and warrants to Metro that: a. AUTHORIZATION AND ENFORCEABILITY. All corporate action on the part of Midwest necessary for the authorization, execution and delivery of this Agreement and the Amendment and the documents and instruments executed in connection therewith has been taken, and this Agreement, the Amendment and all documents and instruments executed in connection therewith constitute valid and legally binding obligations of Midwest, enforceable against Midwest in accordance with their respective terms, except as limited by applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance and other laws of general application affecting enforcement of creditors rights generally, or as limited by laws relating to the availability of specific performance, injunctive relief or other equitable remedies. D-2 b. INVESTMENT REPRESENTATIONS. The Transferred Membership Interest is being acquired for Midwest's own account and for investment and without the intention of reselling or redistributing the Transferred Membership Interest. Midwest has made no agreement with others regarding the Transferred Membership Interest except as set forth in this Agreement and in the Second Restated Partnership Agreement. Midwest will not transfer the Transferred Membership Interest or any fraction thereof to any person who does not similarly represent and warrant that it will not transfer such interest or fraction thereof to any person who does not similarly represent and warrant. Midwest realizes that its investment in Dakota Holdings is a long term investment and that its financial condition is such that it is not likely that it will be necessary for Midwest to dispose of the Transferred Membership Interest in the foreseeable future. Midwest understands that an investment in Dakota Holdings is speculative, but because the owners of Midwest have substantial experience in evaluating and investing in transactions similar to Dakota Holdings, it is capable of evaluating the merits and risks of its investment in Dakota Holdings and has the capacity to protect its own interests, and believes that this investment is suitable for it based upon its investment objectives and financial needs. c. NO CONSENTS. No consent, order, or authorization of, or registration, declaration or filing with, any person, is required to be made or received by Midwest in connection with the execution and delivery of this Agreement or the consummation of the Transfer. 7. MISCELLANEOUS. a. SURVIVAL OF WARRANTIES. The representations and warranties contained in or made pursuant to this Agreement shall survive the execution and delivery of this Agreement and the delivery of the Transferred Membership Interest to Midwest hereunder, and shall be binding upon and inure to the benefit of the parties hereto and their successors and assigns. b. GOVERNING LAW. This Agreement and the rights and obligations of the parties hereunder and all other instruments or documents delivered pursuant hereto shall be construed in accordance with and governed by the laws of the state of Minnesota, and may be executed in counterparts, each of which shall be deemed an original and all of which when taken together shall constitute one and the same document. c. ENTIRETY OF AGREEMENT. This Agreement, together with the Amendment, states the entire agreement of the parties with respect to the subject matter hereof, and merges and supersedes all prior negotiations, agreements, understandings and letters of intent, if any there be. d. AMENDMENT. This Agreement may be modified or amended only by an instrument in writing duly signed by the parties hereto. e. TITLES AND SUBTITLES. The titles and subtitles used in this Agreement are used for convenience only and are not to be considered in construing or interpreting this Agreement. D-3 f. BROKERS OR FINDERS. Each of Metro and Midwest hereby represent and warrant to the other that neither has incurred, directly or indirectly, any liability for brokerage or finders fees or agent's commissions or similar charges in connection with the transaction contemplated by this Agreement. g. EXPENSES. Each of Metro and Midwest shall bear their own expenses incurred with respect to the this Agreement and the transaction contemplated hereby. h. SEVERABILITY. If one or more provisions of this Agreement are held to be unenforceable under applicable law such provisions, to the extent necessary, shall be severed from this Agreement and the balance of this Agreement shall be interpreted as if such provision were so excluded and shall be enforceable in accordance with its terms. (Remainder of page left intentionally blank) D-4 IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first above written. PEPSI-COLA METROPOLITAN BOTTLING COMPANY By: /s/ W. Timothy Heaviside Its: Vice President PEPSICO, INC. By: /s/ W. Timothy Heaviside Its: Vice President MIDWEST BEVERAGE HOLDINGS, LLC By: /s/ John F. Bierbaum Its: Vice President D-5 EXHIBIT A ASSIGNMENT OF MEMBERSHIP UNITS For value received, the undersigned, Pepsi-Cola Metropolitan Bottling Company, a New Jersey Corporation, hereby sells, assigns and transfers unto Midwest Beverage Holdings, LLC, a Minnesota limited liability company, its rights and interests in thirteen and seventy one one-hundredths percent (13.71%) of the Class A membership interest in Dakota Holdings, LLC, a Delaware limited liability company (the "Company"), standing in its name on the books of the Company and does hereby irrevocably constitute and appoint ________________________ as attorney to transfer the said Class A Membership Interest on the books of the Company with full power of substitution in the premises. Dated: PEPSI-COLA METROPOLITAN BOTTLING COMPANY ---------------------------- By: ------------------------ Its: ----------------------- D-6 EX-99.E 3 a2034299zex-99_e.txt EX-99.E EXHIBIT E FIRST AMENDMENT TO THE AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT OF DAKOTA HOLDINGS, LLC THIS AGREEMENT is made effective as of the 27th day of December, 2000, by and among PEPSI-COLA METROPOLITAN BOTTLING COMPANY, a corporation formed under the laws of the State of New Jersey (hereinafter referred to as "Metro"), BEVERAGES, FOOD & SERVICE INDUSTRIES, INC., a corporation formed under the laws of the State of Delaware (hereinafter referred to as "BFSI"), BEVERAGE INVESTMENT, LLC, a limited liability company formed under the laws of the State of Minnesota (hereinafter referred to as "Beverage Investment"), and POHLAD COMPANIES, a corporation formed under the laws of the State of Minnesota (hereinafter referred to as "Pohlad Companies") (each a "Member" and collectively, the "Members"), and PEPSICO, INC., a corporation formed under the laws of the State of North Carolina ("PepsiCo"). All capitalized terms which are not defined herein shall have the meaning ascribed to them in the LLC Agreement. WHEREAS, Metro and Midwest Beverage Holdings, LLC, a Minnesota limited liability company ("Midwest"), have entered into that certain Membership Interest Purchase Agreement dated December 27, 2000, pursuant to which Midwest will acquire from Metro thirteen and seventy one one-hundredths percent (13.71%) of the Class A Membership Interest in the Company (the "Transfer"); and WHEREAS, the parties now wish to amend the Agreement in order to reflect the changes noted above; NOW, THEREFORE, the parties agree as follows: 1. Following the Transaction each Member of Dakota shall have the respective percentage interest in the Company as set forth on the attached Schedule I. 2. All other provisions of the Agreement shall remain unchanged by this Amendment. 3. The effective date of the provisions herein shall be as of December 27, 2000. 4. This Amendment may be executed in several counterparts, each of which shall be deemed to be an original copy and all of which together shall constitute one agreement binding on all parties hereto, notwithstanding that all of the parties shall not have signed the same counterpart. E-1 IN WITNESS WHEREOF, the parties hereto have subscribed and sworn to this Agreement as of the day and year first written above. MEMBERS: PEPSI-COLA METROPOLITAN BOTTLING COMPANY By: /s/ W. Timothy Heaviside Its: Vice President BEVERAGES, FOOD & SERVICE INDUSTRIES, INC. By: /s/ Robert K. Biggart Its: Vice President BEVERAGE INVESTMENT, LLC By: /s/ John F. Bierbaum Its: Vice President POHLAD COMPANIES By: /s/ John F. Bierbaum Its: Vice President and Chief Financial Officer PEPSICO, INC. By: /s/ W. Timothy Heaviside Its: Vice President MIDWEST BEVERAGE HOLDINGS, LLC By: /s/ John F. Bierbaum Its: Vice President E-2 SCHEDULE 1 CLASS A MEMBERSHIP INTERESTS Pepsi-Cola Metropolitan Bottling Company, Inc. 16.39% Beverages, Food & Service Industries, Inc. 3.4% Pohlad Companies 66.5% Midwest Beverage Holdings, LLC 13.71%
CLASS B MEMBERSHIP INTERESTS Pepsi-Cola Metropolitan Bottling Company, Inc. 5.0% Pohlad Companies 95.0%
E-3 EX-99.F 4 a2034299zex-99_f.txt EX-99.F EXHIBIT F SECOND AMENDMENT TO THE AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT OF DAKOTA HOLDINGS, LLC THIS AGREEMENT is made effective as of the 29th day of December, 2000, by and among PEPSI-COLA METROPOLITAN BOTTLING COMPANY, a corporation formed under the laws of the State of New Jersey, BEVERAGES, FOOD & SERVICE INDUSTRIES, INC., a corporation formed under the laws of the State of Delaware, BEVERAGE INVESTMENT, LLC, a limited liability company formed under the laws of the State of Minnesota (hereinafter referred to as "Beverage Investment"), MIDWEST BEVERAGE HOLDINGS, LLC, a Minnesota limited liability company, and POHLAD COMPANIES, a corporation formed under the laws of the State of Minnesota (each a "Member" and collectively, the "Members"), and PEPSICO, INC., a corporation formed under the laws of the State of North Carolina. All capitalized terms which are not defined herein shall have the meaning ascribed to them in that certain Amended and Restated Limited Liability Company Agreement of Dakota Holdings, LLC dated November 30, 2000, as amended by the First Amendment to the Amended and Restated Limited Liability Company Agreement of Dakota Holdings, LLC dated December 27, 2000 (the "LLC Agreement"). WHEREAS, pursuant to that certain Contribution Agreement dated November 30, 2000, by and between Beverage Investment and the Dakota Holdings, LLC (the "Company"), Beverage Investment has contributed $24,951,588.99 to the Company (the "Contribution"), which amount shall be used by the Company to purchase 1,707,551 shares of common stock of Whitman Corporation; and WHEREAS, pursuant to Section 2 of the Contribution Agreement, Beverage Investment will receive a Class A Membership Interest of 12.04% in exchange for such capital contribution; and WHEREAS, the parties now wish to amend the LLC Agreement in order to reflect the changes noted above; NOW, THEREFORE, the parties agree as follows: 1. Following the Contribution each Member of the Company shall have the respective percentage interest in the Company as set forth on the attached Schedule I. 2. All other provisions of the LLC Agreement shall remain unchanged by this Amendment. 3. The effective date of the provisions herein shall be as of December 29, 2000. 4. This Amendment may be executed in several counterparts, each of which shall be deemed to be an original copy and all of which together shall constitute one agreement binding on all parties hereto, notwithstanding that all of the parties shall not have signed the same counterpart. F-1 IN WITNESS WHEREOF, the parties hereto have subscribed and sworn to this Agreement as of the day and year first written above. MEMBERS: PEPSI-COLA METROPOLITAN BOTTLING COMPANY By: /s/ W. Timothy Heaviside Its: Vice President BEVERAGES, FOOD & SERVICE INDUSTRIES, INC. By: /s/ Robert K. Biggart Its: Vice President BEVERAGE INVESTMENT, LLC By: /s/ John F. Bierbaum Its: Vice President POHLAD COMPANIES By: /s/ John F. Bierbaum Its: Vice President and Chief Financial Officer PEPSICO, INC. By: /s/ W. Timothy Heaviside Its: Vice President MIDWEST BEVERAGE HOLDINGS, LLC By: /s/ John F. Bierbaum Its: Vice President F-2 SCHEDULE 1 CLASS A MEMBERSHIP INTERESTS Pepsi-Cola Metropolitan Bottling Company, Inc. 14.42% Beverages, Food & Service Industries, Inc. 2.99% Pohlad Companies 58.49% Midwest Beverage Holdings, LLC 12.06% Beverage Investment, LLC 12.04%
CLASS B MEMBERSHIP INTERESTS Pepsi-Cola Metropolitan Bottling Company, Inc. 5.0% Pohlad Companies 95.0%
F-3 EX-99.G 5 a2034299zex-99_g.txt EX-99.G EXHIBIT G AGREEMENT TO FILE JOINT STATEMENT ON SCHEDULE 13D The undersigned hereby agree to file a joint statement on Schedule 13D on behalf of each of the undersigned pursuant to Rule 13d-1(f) under the Securities Exchange Act of 1934. DAKOTA HOLDINGS, LLC By Its Members POHLAD COMPANIES Dated: January 2, 2001 By: /s/ John F. Bierbaum ------------------------------------ John F. Bierbaum, Vice President and Chief Financial Officer BEVERAGES, FOODS & SERVICE INDUSTRIES, INC. Dated: January 2, 2001 By: /s/ Robert K. Biggart ------------------------------------ Robert K. Biggart, Vice President PEPSI-COLA METROPOLITAN BOTTLING CO., INC. Dated: January 2, 2001 By: /s/ W. Timothy Heaviside ------------------------------------ W. Timothy Heaviside, Vice President BEVERAGE INVESTMENT, LLC Dated: January 2, 2001 By: /s/ John F. Bierbaum ------------------------------------ John F. Bierbaum, Vice President MIDWEST BEVERAGE HOLDINGS, LLC Dated: January 2, 2001 By: /s/ John F. Bierbaum ------------------------------------ John F. Bierbaum, Vice President G-1 POHLAD COMPANIES Dated: January 2, 2001 By: /s/ John F. Bierbaum ------------------------------------ John F. Bierbaum, Vice President and Chief Financial Officer PEPSICO, INC. Dated: January 2, 2001 By: /s/ W. Timothy Heaviside ------------------------------------ W. Timothy Heaviside, Vice President G-2 -----END PRIVACY-ENHANCED MESSAGE-----