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1
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INC. FINAL ORDER AND JUDGMENT
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EXTRACTED KEY WORDS
COURT STIPULATION SETTLEMENT CLASS MERGER ATTORNEYS MERGER AGREEMENT ACCORDANCE PLAINTIFFS REPRESENTATIVES SCHEDULING ORDER EXPENSES MEMBERS PARTNERS ADMINISTRATORS ASSERTING DISCLOSURES RELATING DELAWARE ACTION PARTIES PROPOSED SETTLEMENT FEES ADEQUATE MEMBERS OFTHE SETTLEMENT HEREBY LAW DIRECTORS DEFENDANTS CONSUMMATE PREJUDICE |
IN THE COURT OF CHANCERY OF THE STATE OF DE1LAWARE
IN AND FOR NEW CASTLE COUNTY
IN RE PEPSIAMERICAS, INC. 1 Consolidated
SHAREHOLDERS LITIGATION 1 Civil Action No. 18280
FINAL ORDER AND JUDGMENT
A hearing having been held before this Court c-
or&# 2001, pursuant to
I&&L 7J
Court's Order o 7 , 2001, (the "Scheduling Order"), upon a Stipulation and Agreement 05;
Compromise, Settlement and Release, -y
dated l-- ) 2001, (the "Stipulation") of the
captioned action (the "Delaware Action"), which is incorporated herein by reference; due notice og
said hearing having been given in accordance with the Scheduling Order; the respective parties
having appeared by their attorneys of record; the Court having heard and considered the submission
and evidence presented in support of the proposed Settlement (as defined in the Stipulation) and the
application for an award of attorneys' fees and expenses; the attorneys for the respective parties
having been heard; an opportunity to be heard having been given to all other persons requesting to
be heard in accordance with the Scheduling Order; the Court having determined that notice to the
Settlement Class (as defined in the Stipulation) pursuant to the Scheduling Order was adequate and
sufficient; the Court having considered, among other matters, the benefits ofthe proposed
and the risks, complexity, expense and probable duration of further litigation; and the entire
of the proposed Settlement and the application for an award of attorneys' fees and expenses having
been heard and considered by the Court;
IT IS HEREBY ORDERED, ADJUDGED AND DECREED this
2001 that:
1. The form and manner of notice given to the Settlement Class hereby is determined
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2
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INC. STIPULATION AND AGREEMENT OF COMPROMISE SETTLEMENT AND RELEASE
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EXTRACTED KEY WORDS
DEFENDANTS COURT STIPULATION PEPSIAMERICAS DELAWARE PARTIES MERGER MINNESOTA ATTORNEYS PAS COMMON STOCK PLAINTIFFS AGREEMENT CHANCERY DAKOTA TIMES RELEVANT STOCKHOLDERS SETTLED CLAIMS PRESIDENT CONTINGENT PAYMENT OPTION DELAWARE CORPORATION REPRESENTATIVES WHITMAN COMMON STOCK SETTLEMENT HEARING PREJUDICE MATERIALS SHAREHOLDERS PARTIES HERETO CONFIDENTIAL DISCOVERY |
IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE
IN AND FOR NEW CASTLE COUNTY
LT:`-. -
y-:
:
IN RE PEPSIAMERICAS, INC. C o n s o l i d a t e d ;
SHAREHOLDERS LITIGATION Civil Action No. 18280 "'
`-
STIPULATION AND AGREEMENT OF L'
; ._
COMPROMISE, SETTLEMENT AND RELEASE -. r.,
The parties to the above-captioned action, by and through their respective attorneys,
have entered into and propose the following Stipulation and Agreement of Compromise,
Settlement and Release (the "Stipulation") for the Court's approval:
WHEREAS:
A. Defendant PepsiAmericas, Inc ("PepsiAmericas," "PAS" or the "Company")'
was a Delaware corporation with its principal executive offices located in Minneapolis,
Minnesota. At all relevant times, PepsiAmericas had two classes of common stock -- Class
A and Class B. Class A stockholders were entitled to six votes per share on all matters
submitted for stockholder vote. Class B stockholders were entitled to one vote per share;
B. Defendant Robert C. Pohlad ("Pohlad") was, at all times relevant, the CEO
and a director of PepsiAmericas. Since 1987, Pohlad has also served as President of Pohlad
Companies, which owned 66.5% of Dakota Holdings, LLC ("Dakota") at the time of the
Merger (as defined below);
C. Defendant Lionel L. Nowell, III ("Nowell") was a director of PepsiAmericas
`Subsequent to the initiation of this action, PepsiAmericas was merged into Anchor
Merger Sub, Inc. and the surviving corporation first changed its name to PepsiAmericas, Inc.
and then subsequently changed its name to P-Americas, Inc. As used herein, the term
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3
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AMENDED CONSOLIDATED CLASS ACTION COMPLAINT
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EXTRACTED KEY WORDS
SHAREHOLDERS DAKOTA COMMON STOCK PLAINTIFFS DEFENDANTS WHITMAN COMMON STOCK CONTROLS SHARES MERGER UNITED STATES VOTING POWER PEPSICO MINORITY SHAREHOLDERS SELLS DRINK PRODUCTS POHLAD COMPANIES CONTINGENT PAYMENT OPTION DELAWARE CORPORATION MAJORITY SHAREHOLDER PROPOSED MERGER STOCKHOLDERS BOTTLED WATER CONTROLLER CONTINGENT PAYMENT SPECIAL COMMITTEE FIDUCIARY DUTIES PROXY STATEMENT/PROSPECTUS RELEVANT TIMES INDIVIDUAL DEFENDANTS |
IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE
IN AND FOR NEW CASTLE COUNTY
---------------------------------------------x
IN RE PEPSIAMERICAS, INC. : CA. No. 18280 NC
SHAREHOLDERS LITIGATION :
AMENDED CONSOLIDATED CLASS ACTION COMPLAINT
Plaintiffs, Gene Kilham and Randy Cox, by their attorneys, allege upon information and
belief, except with respect to their ownership of Class B common stock of PepsiAmericas, Inc.
("PAS" or the "Company") and their suitability to serve as class representatives, which is alleged
upon personal knowledge, as follows:
NATURE OF THE ACTION
1. Plaintiffs bring this action on their own behalf and as a stockholders' class
behalf of all shareholders of PAS Class B common stock (the "Class").
2. PAS is a Delaware corporation which manufactures, packages, sells, and distributes
a variety ofcarbonated and non-carbonated soIt drink products and bottled water in the United
and the Caribbean. The Company is controlled by its majority shareholder, Dakota Holdings LLC
("Dakota")which controls approximately 72% of PAS's voting power. The owners of Dakota are
PepsiCo, Inc. ("PepsiCo") and Pohlad Companies, with 33% and 67%, respectively.
Companies is directed and controlled by Robert C. Pohlad, PAS's Chief Executive Officer and
director.
3. On August 2 1,2000, PAS announced that it had entered into an agreement and plan
of merger with Whitman Corporatj on ("Whitman") pursuant to which PAS will become a wholly-
owned subsidiary of Whitman (the "Merger"). Dakota has entered into a voting agreement in which
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4
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CLASS ACTION COMPLAINT
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EXTRACTED KEY WORDS
PLAINTIFF PEPSIAMERICAS PAS MEMBERS SHARES SHAREHOLDERS WHITMAN COMMON STOCK RELEVANT TIMES TRANSACTION DAKOTA PEPSICO INDIVIDUAL DEFENDANTS PLAN COUNSEL PRICE DELAWARE PROSPECTS PROPOSED MERGER CONTROLLING SHAREHOLDER STOCKHOLDERS BREACH FIDUCIARY DUTIES DAMAGES CLOSING EARN-OUT COURT EXECUTIVE OFFICER DIRECTORS |
IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE
IN AND FOR NEW CASTLE COUNTY /
__-_---_---_-_-------------------------------- X
GENE KILHAM, on behalf of himself and all
others similarly situated,
Plaintiff,
-against- Civil Action No. 1x2 $0
PEPSIAMERICAS, INC., CHRISTOPHER E. CLOUSER, : :
PHILIP N. HUGHES, LIONEL L. NOWELL III, t-?. / .j i *
r
ROBERT C. POHLAD, DIEGO SUAREZ, JR., BASIL I
K. VASILIOU, MICHAEL D. WHITE, JOHN F. 8'.
WOODHEAD, RAYMOND W. ZEHR, DAKOTA HOLDINGS, : ; c >
- 1
LLC and WHITMAN CORPORATION, - 1
- - -
Defendants. *"
____________-_----_--------------------------- K :_..: : c:
c- <
CLASS ACTION COMPLAINT
Plaintiff, by his attorneys, alleges upon information and
belief, based, in part, upon an investigation conducted by and
through the undersigned counsel, except with respect to his owner-
ship of PepsiAmericas, Inc. ("PepsiAmericas", "PAS" or the
l'Company") common stock and his suitability to serve as class
representative, which is alleged upon personal knowledge, as
follows:
1. Plaintif:E is, and has been at all relevant times, the
owner of shares of the common stock of the Company.
2. Defendant PepsiAmericas, is incorporated in Delaware and
has its executive offices located at 3800 Dain Rauscher Plaza, 60
South Sixth Street, Minneapolis, MN 55402. PepsiAmericas, which
manufacturers, distributes and markets PepsiCo soft drinks,
announced on August 21, 2000 that its Board of Directors approved
a plan to merge with Whitman Corporation ("Whitman").
3. Defendant Christopher E. Clouser ("Clouserl') was, at all
relevant times, a director of PAS.
4. Defendant Philip N. Hughes ("Hughes") was, at all
relevant times, a director of PAS.
5. Defendant Lionel L. Nowell III (flNowellff) was, at all
relevant times, a director of PAS.
6. Defendant Robert C. Pohlad ("Pohlad") was, at all
relevant times, Chief Executive Officer and a director of PAS.
7. Defendant Diego Suarez, Jr. ("Suarez") was, at all
relevant times, a director of PAS.
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