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TABLE OF CONTENTS
Table of Contents
As filed with the Securities and Exchange Commission on February 15, 2017
Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
PepsiCo, Inc.
(Exact Name of Registrant as Specified in Its Charter)
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North Carolina
(State or Other Jurisdiction of
Incorporation or Organization)
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13-1584302
(I.R.S. Employer
Identification Number)
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700 Anderson Hill Road
Purchase, New York 10577
(914) 253-2000
(Address, Including Zip Code, and Telephone Number, Including Area Code, of Registrants Principal Executive Offices)
Tony West
Executive Vice President, Government Affairs,
General Counsel and Corporate Secretary
PepsiCo, Inc.
700 Anderson Hill Road
Purchase, New York 10577
(914) 253-2000
Fax: (914) 253-3051
(Name, Address, Including Zip Code, and Telephone Number, Including Area Code, of Agent For Service)
Copy to:
Joseph A. Hall
Davis Polk & Wardwell LLP
450 Lexington Avenue
New York, NY 10017
(212) 450-4000
Fax: (212) 450-4800
Approximate date of commencement of proposed sale to the public:
From time to time after this registration statement becomes effective.
If
the only securities being registered on this Form are being offered pursuant to dividend or interest reinvestment plans, please check the following
box.
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If any of the securities being registered on this Form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest reinvestment plans, check the following box.
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If this Form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of earlier effective registration statement for the same offering.
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If this Form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement for the same offering.
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If this Form is a registration statement pursuant to General Instruction I.D. or a post-effective amendment thereto that shall become effective upon filing
with the Commission pursuant to Rule 462(e) under the Securities Act, check the following box.
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If this Form is a post-effective amendment to a registration statement filed pursuant to General Instruction I.D. filed to register additional securities
or additional classes of securities pursuant to Rule 413(b) under the Securities Act, check the following box.
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Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or a smaller reporting company. See the
definitions of large accelerated filer, accelerated filer and smaller reporting company in
Rule 12b-2 of the Exchange Act.
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Large accelerated filer
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Accelerated filer
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Non-accelerated filer
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(Do not check if a
smaller reporting company)
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Smaller reporting company
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CALCULATION OF REGISTRATION FEE
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Title of Each Class of Securities
to Be Registered
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Amount to Be Registered/
Proposed Maximum Offering Price Per Unit/
Proposed Maximum Aggregate Offering Price(1)
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Amount of
Registration Fee(1)
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Common stock, par value 1-2/3 cents per share
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Debt securities
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Warrants
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Units
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(1)
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An
indeterminate aggregate initial offering price and number or amount of the securities of each identified class is being registered as may from time to time be
sold at indeterminate prices. In accordance with Rules 456(b) and 457(r), the registrant is deferring payment of all of the registration fee.
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PROSPECTUS
PepsiCo, Inc.
COMMON STOCK
DEBT SECURITIES
WARRANTS
UNITS
We may offer from time to time common stock, debt securities, warrants or units. Specific terms of these securities will be provided in
supplements to this prospectus. You should read this prospectus and any supplement carefully before you invest.
Investing in these securities involves certain risks. See the information included and incorporated by reference in this prospectus and the
accompanying prospectus supplement for a discussion of the factors you should carefully consider before deciding to purchase these securities, including the information under Risk
Factors and Our Business Risks included in our annual report on Form 10-K for the fiscal year ended December 31, 2016.
Neither the Securities and Exchange Commission nor any state securities commission has approved or disapproved of these securities, or determined
if this prospectus is truthful or complete. Any representation to the contrary is a criminal offense.
The date of this prospectus is February 15, 2017.
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We have not authorized anyone to provide any information other than that contained or incorporated by reference in this prospectus, in any accompanying prospectus
supplement or in any free writing prospectus filed by us with the Securities and Exchange Commission (the SEC). We take no responsibility for, and can provide no
assurance as to the reliability of, any other information that others may give you. We are not making an offer to sell these securities in any jurisdiction where the offer and sale is not permitted.
You should not assume that the information contained in or incorporated by reference in this prospectus or any accompanying prospectus supplement or in any such free writing prospectus or in any
document incorporated by reference is accurate as of any date other than their respective dates. Our business, financial condition, results of operations and prospects may have changed since those
dates.
As
used in this prospectus, unless otherwise specified or where it is clear from the context that the term only means the issuer, the terms PepsiCo, the
Company, we, us, and our refer to PepsiCo, Inc. and its
consolidated subsidiaries. All references in this prospectus to
$ and dollars are to U.S. dollars.
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THE COMPANY
Our principal executive offices are located at 700 Anderson Hill Road, Purchase, New York 10577 and our telephone number is
(914) 253-2000. We maintain a website at www.pepsico.com where general information about us is available. We are not incorporating the contents of the website into this prospectus or any
accompanying prospectus supplement.
We
were incorporated in Delaware in 1919 and reincorporated in North Carolina in 1986. We are a leading global food and beverage company with a complementary portfolio of enjoyable
brands, including Frito-Lay, Gatorade, Pepsi-Cola, Quaker and Tropicana. Through our operations, authorized bottlers, contract manufacturers and other third parties, we make, market, distribute and
sell a wide variety of convenient and enjoyable beverages, foods and snacks, serving customers and consumers in more than 200 countries and territories.
Our Operations
We are organized into six reportable segments (also referred to as divisions), as follows:
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1)
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Frito-Lay
North America (FLNA), which includes our branded food and snack businesses in the United States and Canada;
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2)
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Quaker
Foods North America (QFNA), which includes our cereal, rice, pasta and other branded food businesses in the United States and Canada;
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3)
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North
America Beverages (NAB), which includes our beverage businesses in the United States and Canada;
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Latin
America, which includes all of our beverage, food and snack businesses in Latin America;
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5)
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Europe
Sub-Saharan Africa (ESSA), which includes all of our beverage, food and snack businesses in Europe and Sub-Saharan Africa; and
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6)
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Asia,
Middle East and North Africa (AMENA), which includes all of our beverage, food and snack businesses in Asia, Middle East and North Africa.
Either independently or in conjunction with third parties, FLNA makes, markets, distributes and sells branded snack foods. These foods include
Lays potato chips, Doritos tortilla chips, Cheetos cheese-flavored snacks, Tostitos tortilla chips, branded dips, Fritos corn chips, Ruffles potato chips and Santitas tortilla chips.
FLNAs branded products are sold to independent distributors and retailers. In addition, FLNAs joint venture with Strauss Group makes, markets, distributes and sells
Sabra refrigerated dips and spreads.
Either independently or in conjunction with third parties, QFNA makes, markets, distributes and sells cereals, rice, pasta and other branded
products. QFNAs products include Quaker oatmeal, Aunt Jemima mixes and syrups, Quaker Chewy granola bars, Capn Crunch cereal, Quaker grits, Life cereal, Rice-A-Roni
side dishes, Quaker rice cakes, Quaker simply granola and Quaker oat squares. These branded products are sold to independent distributors and retailers.
Either independently or in conjunction with third parties, NAB makes, markets, distributes and sells beverage concentrates, fountain syrups and
finished goods under various beverage brands including Pepsi, Gatorade, Mountain Dew, Aquafina, Diet Pepsi, Diet Mountain Dew, Tropicana Pure Premium,
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Mist
Twst and Mug. NAB also, either independently or in conjunction with third parties, makes, markets and sells ready-to-drink tea and coffee products through joint ventures with Unilever (under the
Lipton brand name) and Starbucks, respectively. Further, NAB manufactures and distributes certain brands licensed from Dr Pepper Snapple Group, Inc., including Dr Pepper, Crush
and Schweppes, and certain juice brands licensed from Dole Food Company, Inc. and Ocean Spray Cranberries, Inc. NAB operates its own bottling plants and distribution facilities and sells
branded finished goods directly to
independent distributors and retailers. NAB also sells concentrate and finished goods for our brands to authorized and independent bottlers, who in turn sell our branded finished goods to independent
distributors and retailers in certain markets.
Either independently or in conjunction with third parties, Latin America makes, markets, distributes and sells a number of snack food brands
including Doritos, Cheetos, Marias Gamesa, Lays, Ruffles, Emperador, Saladitas, Rosquinhas Mabel, Sabritas and Tostitos, as well as many Quaker-branded cereals and snacks. Latin
America also, either independently or in conjunction with third parties, makes, markets, distributes and sells beverage concentrates, fountain syrups and finished goods under various beverage brands
including Pepsi, 7UP, Gatorade, Toddy, Mirinda, Manzanita Sol, H2oh! and Diet Pepsi. These branded products are sold to authorized bottlers, independent distributors and retailers. Latin America also,
either independently or in conjunction with third parties, makes, markets and sells ready-to-drink tea through an international joint venture with Unilever (under the Lipton brand name).
Either independently or in conjunction with third parties, ESSA makes, markets, distributes and sells a number of leading snack food brands
including Lays, Walkers, Doritos, Cheetos and Ruffles, as well as many Quaker-branded cereals and snacks, through consolidated businesses as well as through noncontrolled affiliates.
ESSA also, either independently or in conjunction with third parties, makes, markets, distributes and sells beverage concentrates, fountain syrups and finished goods under various beverage brands
including Pepsi, Pepsi Max, 7UP, Mirinda, Diet Pepsi and Tropicana. These branded products are sold to authorized bottlers, independent distributors and retailers. In certain markets, however, ESSA
operates its own bottling plants and distribution facilities. ESSA also, either independently or in conjunction with third parties, makes, markets and sells ready-to-drink tea products through an
international joint venture with Unilever (under the Lipton brand name). In addition, ESSA makes, markets, sells and distributes a number of leading dairy products including Chudo, Agusha and Domik v
Derevne.
Asia, Middle East and North Africa
Either independently or in conjunction with third parties, AMENA makes, markets, distributes and sells a number of leading snack food brands
including Lays, Kurkure, Chipsy, Cheetos, Doritos and Crunchy through consolidated businesses, as well as through noncontrolled affiliates. Further, either independently or in
conjunction with third parties, AMENA makes, markets, distributes and sells many Quaker-branded cereals and snacks. AMENA also makes, markets, distributes and sells beverage concentrates, fountain
syrups and finished goods under various beverage brands including Pepsi, Mirinda, 7UP, Aquafina, Mountain Dew, and Tropicana. These branded products are sold to authorized bottlers, independent
distributors and retailers. In certain markets, however, AMENA operates its own bottling plants and distribution facilities. AMENA also, either independently or in conjunction with third parties,
makes, markets, distributes and sells ready-to-drink tea products through an international joint venture with Unilever (under the Lipton brand name). Further, we license the Tropicana brand for use in
China on co-branded juice products in connection with a strategic alliance with Tingyi (Cayman Islands) Holding Corp.
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ABOUT THIS PROSPECTUS
This prospectus is part of a registration statement that we filed with the SEC utilizing a shelf registration
process. Under this shelf process, we may sell any combination of the securities described in this prospectus in one or more offerings. This prospectus provides you with a general description of the
securities we may offer. Each time we sell securities, we will provide a prospectus supplement that will contain specific information about the terms of that offering. The prospectus supplement may
also add, update or change information contained in this prospectus. You should read both this prospectus and any prospectus supplement together with additional information described under the heading
Where You Can Find More Information.
WHERE YOU CAN FIND MORE INFORMATION
We file annual, quarterly and current reports, proxy statements and other information with the SEC. You may read and copy any document that we
file at the Public Reference Room of the SEC at 100 F Street, N.E., Washington, D.C. 20549. You may obtain information on the operation of the Public Reference Room by calling the SEC at
1-800-SEC-0330. In addition, the SEC maintains an Internet site that contains reports, proxy and information statements and other information that we file electronically with the SEC at
http://www.sec.gov, from which interested persons can electronically access the registration statement, of which this prospectus is a part, including the exhibits and schedules thereto.
The
SEC allows us to incorporate by reference information into this prospectus, which means that we can disclose important information to you by referring
you to documents that we file with the SEC. The information incorporated by reference is an important part of this prospectus, and information that we file later with the SEC will automatically
update, modify and, where applicable, supersede the information contained in this prospectus or incorporated by reference into this prospectus. We incorporate by reference the documents listed below
and any future filings we make with the SEC under Sections 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934, as amended (the Exchange Act) (other
than, in each case, documents or information deemed to have been furnished and not filed in accordance with SEC rules), on or after the date of this prospectus until we sell all of the securities
covered by our registration statement, of which this prospectus forms a part:
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(a)
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Annual
report of PepsiCo, Inc. on Form 10-K for the fiscal year ended December 31, 2016; and
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(b)
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Definitive
proxy statement of PepsiCo, Inc. on Schedule 14A filed with the SEC on March 18, 2016.
You
may request a copy of these filings at no cost, by writing or telephoning the office of Manager, Shareholder Relations, PepsiCo, Inc., 700 Anderson Hill Road, Purchase, New
York 10577, (914) 253-3055, investor@pepsico.com.
SPECIAL NOTE ON FORWARD-LOOKING STATEMENTS
This prospectus and any accompanying prospectus supplement, including the documents incorporated by reference herein and therein, contain
statements reflecting our views about our future performance that constitute forward-looking statements within the meaning of the Private Securities Litigation Reform
Act of 1995 (the Reform Act). Statements that constitute forward-looking statements within the meaning of the Reform Act are generally identified through the inclusion
of words such as aim, anticipate, believe, drive,
estimate, expect, expressed confidence, forecast,
future, goal, guidance, intend, may,
objective, outlook, plan, position,
potential, project, seek, should,
strategy, target, will or similar statements or variations of such words and other similar expressions.
All statements addressing our future operating
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performance,
and statements addressing events and developments that we expect or anticipate will occur in the future, are forward-looking statements within the meaning of the Reform Act. These
forward-looking statements are based on currently available information, operating plans and projections about future events and trends. They inherently involve risks and uncertainties that could
cause actual results to differ materially from those predicted in any such forward-looking statement. These risks and uncertainties include, but are not limited to, those described in
Risk Factors and Our Business Risks in our annual report on Form 10-K for the fiscal year ended December 31, 2016, and in
any subsequent annual report on Form 10-K, quarterly report on Form 10-Q or current report on Form 8-K incorporated by reference herein or in any accompanying prospectus
supplement. Investors are cautioned not to place undue reliance on any such forward-looking statements, which speak only as of the date they are made. We undertake no obligation to update any
forward-looking statement, whether as a result of new information, future events or otherwise. The discussion of risks included or incorporated by reference in this prospectus or any accompanying
prospectus supplement is by no means all-inclusive but is designed to highlight what we believe are important factors to consider when evaluating our future performance.
USE OF PROCEEDS
Unless otherwise indicated in a prospectus supplement, the net proceeds from the sale of the securities will be used for general corporate
purposes.
RATIO OF EARNINGS TO FIXED CHARGES
The following table sets forth our ratio of earnings to fixed charges for the periods indicated. Fixed charges
consist of interest expense, including net amortization of debt premium/discount, capitalized interest, and the interest portion of rent expense which is deemed to be representative of the interest
factor (i.e. one-third of rent expense). The ratio of earnings to fixed charges is calculated as income from continuing operations, before provision for income taxes and cumulative effect of
accounting changes, where applicable, less net unconsolidated affiliates interests, plus fixed charges (excluding capitalized interest), plus amortization of capitalized interest, with
the sum divided by fixed charges.
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Year Ended
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December 31,
2016
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December 26,
2015
(3)
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December 27,
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December 28,
2013
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December 29,
2012
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Ratio of Earnings to Fixed Charges
(1), (2)
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7.25
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7.09
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8.49
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8.84
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Based
on unrounded amounts.
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Interest
expense excludes interest related to our reserves for income taxes as such interest is included in provision for income taxes. Interest expense for the year
ended December 31, 2016 excludes pre-tax charges of $233 million related to our redemption of certain debt securities.
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Income
before income taxes for the year ended December 26, 2015 included a pre-tax charge of $1.4 billion related to our change in accounting for our
investments in our wholly-owned Venezuelan subsidiaries and beverage joint venture.
DESCRIPTION OF CAPITAL STOCK
The following description of our capital stock is based upon our Amended and Restated Articles of Incorporation, effective as of May 9,
2011 (Articles of Incorporation), our By-Laws, as amended and restated, effective as of January 11, 2016 (By-Laws) and applicable
provisions of law. We have summarized certain portions of the Articles of Incorporation and By-Laws below. The summary is not complete. The Articles of Incorporation and By-Laws are incorporated by
reference as exhibits to the
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registration
statement of which this prospectus forms a part. You should read the Articles of Incorporation and By-Laws for the provisions that are important to you.
Authorized Capital Stock
Our Articles of Incorporation authorizes us to issue 3,600,000,000 shares of common stock, par value one and two-thirds cents (1-2/3 cents) per
share and 3,000,000 shares of convertible preferred stock, no par value per share.
Common Stock
Common Stock Outstanding.
As of February 7, 2017 there were 1,427,214,232 shares of common stock outstanding which were held of
record by
125,692 shareholders.
Voting Rights.
Each holder of a share of PepsiCo common stock is entitled to one vote for each share held of record on the applicable
record date on
each matter submitted to a vote of shareholders. Action on a matter generally requires that the votes cast in favor of the action exceed the votes cast in opposition. A plurality vote is required in
an election of the Board of Directors where the number of director nominees exceeds the number of directors to be elected.
Proxy Access.
Our By-Laws contain proxy access provisions which give an eligible shareholder (or a group of up to 20
shareholders aggregating their shares) that has owned 3% or more of the outstanding common stock continuously for at least three years the right to nominate the greater of two nominees and 20% of the
number of directors to be elected at the applicable annual general meeting, and to have those nominees included in our proxy materials, subject to the other terms and conditions of our By-Laws.
Dividend Rights.
Holders of PepsiCo common stock are entitled to receive dividends as may be declared from time to time by
PepsiCos
Board of Directors out of funds legally available therefor.
Rights Upon Liquidation.
Holders of PepsiCo common stock are entitled to share pro rata, upon any liquidation, dissolution or winding
up of PepsiCo,
in all remaining assets available for distribution to shareholders after payment or providing for PepsiCos liabilities and the liquidation preference of any outstanding PepsiCo
convertible preferred stock.
Preemptive Rights.
Holders of PepsiCo common stock do not have the right to subscribe for, purchase or receive new or additional
capital stock or
other securities.
Convertible Preferred Stock
As of February 7, 2017, there were 122,553 shares of convertible preferred stock outstanding, which were held of record by one
shareholder, Fidelity Management Trust Company, and which were beneficially owned by 1,112 persons. The convertible preferred stock was issued in connection with our merger with the Quaker Oats
Company, to Fidelity Trust Management Co., as trustee of the Quaker 401(k) plans for hourly and salaried employees, which subsequently merged into the PepsiCo 401(k) Plan for
Salaried Employees and the PepsiCo 401(k) Plan for Hourly Employees, now known as the PepsiCo Savings Plan. These shares are held in the employee stock option plan portion of these plans, which
we refer to as the PepsiCo ESOP. If the shares of convertible preferred stock are transferred to any person other than a successor trustee, the shares of convertible preferred stock will automatically
convert into shares of common stock.
Dividends.
Subject to the rights of the holders of any capital stock ranking senior to convertible preferred stock, holders of
convertible preferred
stock will receive cumulative cash dividends when, as and if declared by our Board of Directors. Dividends of $5.46 per share per year accrue on a daily basis, payable quarterly in arrears on the
fifteenth of January, April, July and October of each year to holders of record at the start of business on that dividend payment date.
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So
long as any shares of convertible preferred stock are outstanding, no dividend may be declared, paid or set apart on any other series of stock of the same rank as to dividends, unless
all accrued dividends on the convertible preferred stock have been declared, paid or set apart. Generally, if full cumulative dividends on the convertible preferred stock have not been paid, we will
not pay any dividends or make any other distributions on any other class of stock or series of our capital stock ranking junior to the convertible preferred stock until full cumulative dividends on
the convertible preferred stock have been paid.
Ranking.
The convertible preferred stock ranks ahead of our common stock with respect to the payment of dividends and the distribution
of assets in
the event of our liquidation, dissolution or winding up.
Voting Rights.
Holders of convertible preferred stock are entitled to vote as one voting group with the holders of common stock on all
matters
submitted to a vote of the shareholders. The holder of each share of convertible preferred stock is entitled to a number of votes equal to the number of shares of common stock into which each share of
convertible preferred stock could be converted on the relevant record date, rounded to the nearest one-tenth of a vote. Whenever the conversion price is adjusted for dilution, the voting rights of the
convertible preferred stock will be similarly adjusted.
Except
as otherwise required by law, holders of the convertible preferred stock do not have any special voting rights and their consent will not be required, except to the extent that
they are entitled to vote with the holders of the common stock, for the taking of any corporate action. The approval of at least two-thirds of the outstanding shares of the convertible preferred
stock, voting separately as one voting group, will be required if an alteration, amendment or repeal of any provision of our Articles of Incorporation would adversely affect their powers, preferences
or special rights.
Rights upon Liquidation, Dissolution or Winding Up.
In the event of any voluntary or involuntary liquidation, dissolution or winding up
of PepsiCo,
the holders of convertible preferred stock will be entitled to receive, before any distribution is made to the holders of common stock or any other series of stock ranking junior to the convertible
preferred stock, a liquidation preference in the amount of $78.00 per share, plus accrued and unpaid dividends. If the amounts payable with respect to convertible preferred stock and any other stock
of the same rank are not paid in full, the holders of convertible preferred stock and any stock of equal rank will share pro rata in any distribution of assets. After payment of the full amount to
which they are entitled, the holders of shares of convertible preferred stock will not be entitled to any further right or claim to any of our remaining assets.
Mandatory Redemption by PepsiCo.
We must redeem the convertible preferred stock upon termination of the PepsiCo ESOP in accordance with
the PepsiCo
ESOPs terms. We will redeem all then outstanding shares of convertible preferred stock for a per share amount equal to the greater of $78.00 plus accrued and unpaid dividends or the
fair market value of the convertible preferred stock. We, at our option, may make payment in cash or in shares of our common stock or in a combination of shares and cash.
Optional Redemption by the Holders.
Holders of the convertible preferred stock may elect to redeem their shares if we enter into any
consolidation or
merger or similar business combination in which we exchange our common stock for property other than employer securities or qualifying employer securities. Upon notice from us of the agreement and the
material terms of the transaction, each holder of convertible preferred stock will have the right to elect, by written notice to us, to receive a cash payment upon consummation of the transaction
equal to the greater of the fair market value of the shares of convertible preferred stock to be so redeemed or $78.00 per share plus accrued and
unpaid dividends. Additionally, holders of convertible preferred stock may redeem their shares under other limited circumstances more fully described in the Articles of Incorporation.
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Conversion.
On or prior to any date fixed for redemption, a holder of convertible preferred stock may elect to convert any or all of
his or her
shares into shares of common stock at a conversion ratio (which is subject to adjustment for a number of dilutive events) more fully described in the Articles of Incorporation.
Preemptive Rights.
Holders of the convertible preferred stock do not have the right to subscribe for, purchase or receive new or
additional capital
stock or other securities.
Transfer Agent and Registrar
Computershare Trust Company, N.A. is the transfer agent and registrar for PepsiCo common stock.
Stock Exchange Listing
The New York Stock Exchange is the principal market for PepsiCos common stock, which is also listed on the Chicago and SIX Swiss
stock exchanges.
Certain Provisions of PepsiCos Articles of Incorporation and By-Laws; Director
Indemnification Agreements
Advance Notice of Proposals and Nominations.
Our By-Laws provide that shareholders must provide timely written notice to bring business
before an
annual meeting of shareholders or to nominate candidates for election as directors at an annual meeting of shareholders. Notice for an annual meeting is generally timely if it is received at our
principal office not less than 90 days nor more than 120 days prior to the first anniversary of the preceding years annual meeting. However, if the date of the annual
meeting is advanced by more than 30 days or delayed more than 60 days from this anniversary date, or if no annual meeting was held in the preceding year, such notice by the shareholder
must be delivered not earlier than the 120th day prior to the annual meeting and not later than the close of business on the later of the 90th day prior to such annual meeting or the
tenth day following the day on which public announcement of the date of such annual meeting was first made. Shareholders utilizing proxy access must meet separate
deadlines. The By-Laws also specify the form and content of a shareholders notice. These provisions may prevent shareholders from bringing matters before an annual meeting of
shareholders or from nominating candidates for election as directors at an annual meeting of shareholders.
Limits on Special Meetings.
A special meeting of the shareholders may be called by our corporate secretary upon written request of one
or more
shareholders holding shares of record representing at least twenty percent in the aggregate of our outstanding common stock entitled to vote at such meeting. Any such special meeting called at the
request of our shareholders will be held at such date, time and place as may be fixed by our Board, provided that the date of such special meeting may not be more than 90 days from the receipt
of such request by the corporate secretary. The By-Laws specify the form and content of a shareholders request for a special meeting.
Indemnification of Directors, Officers and Employees.
Our By-Laws provide that unless the Board determines otherwise, we shall indemnify,
to the full
extent permitted by law, any person who was or is, or who is threatened to be made, a party to an action, suit or proceeding (including appeals), whether civil, criminal, administrative, investigative
or arbitrative, by reason of the fact that such person, such persons testator or intestate, is or was one of our directors, officers or employees, or is or was serving at our request
as a director, officer or employee of another enterprise, against expenses (including attorneys fees), judgments, fines and amounts paid in settlement actually and reasonably incurred
by such person in connection with such action, suit or proceeding. Pursuant to our By-Laws this
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indemnification
may, at the Boards discretion, also include advancement of expenses related to such action, suit or proceeding.
In
addition, we have entered into indemnification agreements with each of our directors, pursuant to which we have agreed to indemnify and hold harmless, to the full extent permitted by
law, each director against any and all liabilities and assessments (including attorneys fees and other costs, expenses and obligations) arising out of or related to any threatened,
pending or completed action, suit, proceeding, inquiry or investigation, whether civil, criminal, administrative, or other, including, but not limited to, judgments, fines, penalties and amounts paid
in settlement (whether with or without court approval), and any interest, assessments, excise taxes or other charges paid or payable in connection with or in respect of any of the foregoing, incurred
by the director and arising out of his status as a director or member of a committee of our Board, or by reason of anything done or not done by the director in such capacities. After receipt of an
appropriate request by a director, we will also advance all expenses, costs and other obligations (including attorneys fees) arising out of or related to such matters. We will not be
liable for payment of any liability or expense incurred by a director on account of acts which, at the time taken, were known or believed by such director to be clearly in conflict with our best
interests.
Certain Anti-Takeover Effects of North Carolina Law
The North Carolina Shareholder Protection Act generally requires the affirmative vote of 95% of a public corporations voting
shares to approve a business combination with any entity that a majority of continuing directors determines beneficially owns, directly or indirectly, more than 20% of
the voting shares of the corporation (or ever owned, directly or indirectly, more than 20% and is still an affiliate of the corporation) unless the fair price
provisions and the procedural provisions of the North Carolina Shareholder Protection Act are satisfied.
Business
combination is defined by the North Carolina Shareholder Protection Act as (i) any merger, consolidation or conversion of a corporation
with or into any other entity, or (ii) any sale or lease of all or any substantial part of the corporations assets to any other entity, or (iii) any payment, sale or
lease to the corporation or any subsidiary thereof in exchange for securities of the corporation of any assets having an aggregate fair market value equal to or greater than $5,000,000 of any other
entity.
The
North Carolina Shareholder Protection Act contains provisions that allowed a corporation to opt out of the applicability of the North Carolina
Shareholder Protection Acts voting provisions within specified time periods that generally have expired. The Act applies to PepsiCo since we did not opt out within these time periods.
This
statute could discourage a third party from making a partial tender offer or otherwise attempting to obtain a substantial position in our equity securities or seeking to obtain
control of us. It also might limit the price that certain investors might be willing to pay in the future for our shares of common stock and may have the effect of delaying or preventing a change of
control of us.
DESCRIPTION OF DEBT SECURITIES
This prospectus describes certain general terms and provisions of the debt securities. The debt securities will be issued under an indenture
between us and The Bank of New York Mellon, as trustee. When we offer to sell a particular series of debt securities, we will describe the specific terms for the securities in a supplement to this
prospectus. The prospectus supplement will also indicate whether the general terms and provisions described in this prospectus apply to a particular series of debt securities.
We
have summarized certain terms and provisions of the indenture. The summary is not complete. The indenture has been incorporated by reference as an exhibit to the registration
statement for these
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securities
that we have filed with the SEC. You should read the indenture for the provisions which may be important to you. The indenture is subject to and governed by the Trust Indenture Act of 1939,
as amended.
The
indenture does not limit the amount of debt securities which we may issue. We may issue debt securities up to an aggregate principal amount as we may authorize from time to time. The
prospectus supplement will describe the terms of any debt securities being offered, including:
-
-
classification as senior or subordinated debt securities;
-
-
ranking of the specific series of debt securities relative to other outstanding indebtedness, including subsidiaries debt;
-
-
if the debt securities are subordinated, the aggregate amount of outstanding indebtedness, as of a recent date, that is senior to the
subordinated securities, and any limitation on the issuance of additional senior indebtedness;
-
-
the designation, aggregate principal amount and authorized denominations;
-
-
the maturity date;
-
-
the interest rate, if any, and the method for calculating the interest rate;
-
-
the interest payment dates and the record dates for the interest payments;
-
-
any mandatory or optional redemption terms or prepayment, conversion, sinking fund or exchangeability or convertibility provisions;
-
-
the place where we will pay principal and interest;
-
-
if other than denominations of $1,000 or multiples of $1,000, the denominations the debt securities will be issued in;
-
-
whether the debt securities will be issued in the form of global securities or certificates;
-
-
the inapplicability of and additional provisions, if any, relating to the defeasance of the debt securities;
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-
the currency or currencies, if other than the currency of the United States, in which principal and interest will be paid;
-
-
any material United States federal income tax consequences;
-
-
the dates on which premium, if any, will be paid;
-
-
our right, if any, to defer payment of interest and the maximum length of this deferral period;
-
-
any listing on a securities exchange;
-
-
the initial public offering price; and
-
-
other specific terms, including any additional events of default or covenants.
Senior Debt
Senior debt securities will rank equally and
pari passu
with all other unsecured and
unsubordinated debt of PepsiCo.
Subordinated Debt
Subordinated debt securities will be subordinate and junior in right of payment, to the extent and in the manner set forth in the indenture, to
all senior indebtedness of PepsiCo. The indenture
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defines
senior indebtedness as obligations or indebtedness of, or guaranteed or assumed by, PepsiCo for borrowed money whether or not represented by bonds, debentures,
notes or other similar instruments, and amendments, renewals, extensions, modifications and refundings of any such indebtedness or obligation. Senior indebtedness does
not include nonrecourse obligations, the subordinated debt securities or any other obligations specifically designated as being subordinate in right of payment to senior indebtedness.
In
general, the holders of all senior indebtedness are first entitled to receive payment of the full amount unpaid on senior indebtedness before the holders of any of the subordinated
debt securities or coupons are entitled to receive a payment on account of the principal or interest on the indebtedness evidenced by the subordinated debt securities in certain events. These events
include:
-
-
any insolvency or bankruptcy proceedings, or any receivership, liquidation, reorganization or other similar proceedings which concern PepsiCo
or a substantial part of its property;
-
-
a default having occurred for the payment of principal, premium, if any, or interest on or other monetary amounts due and payable on any senior
indebtedness or any other default having occurred concerning any senior indebtedness, which permits the holder or holders of any senior indebtedness to accelerate the maturity of any senior
indebtedness with notice or lapse of time, or both. Such an event of default must have continued beyond the period of grace, if any, provided for such event of default, and such an event of default
shall not have been cured or waived or shall not have ceased to exist; or
-
-
the principal of, and accrued interest on, any series of the subordinated debt securities having been declared due and payable upon an event of
default pursuant to section 5.02 of the indenture. This declaration must not have been rescinded and annulled as provided in the indenture.
If
this prospectus is being delivered in connection with a series of subordinated debt securities, the accompanying prospectus supplement or the information incorporated in this
prospectus by reference will set forth the approximate amount of senior indebtedness outstanding as of the end of the most recent fiscal quarter.
Floating Rate Notes
When the debt securities of any U.S. dollar-denominated series bear interest at a floating rate (referred to below as floating
rate notes), the following provisions will apply to the calculation of interest in respect of such floating rate notes.
The Bank of New York Mellon will act as calculation agent for the floating rate notes under an Amended and Restated Calculation Agency Agreement
between the issuer and The Bank of New York Mellon dated as of May 10, 2011.
Interest on the floating rate notes will be payable quarterly in arrears on the interest payment dates set forth in the applicable prospectus
supplement, commencing on the date set forth in the applicable prospectus supplement to the persons in whose names the notes are registered at the close of business on each record date set forth in
the applicable prospectus supplement, as the case may be (whether or not a New York business day (as defined below)). If any interest payment date (other than the maturity date or any earlier
repayment date) falls on a day that is not a New York business day, the payment of interest that would otherwise be payable on such date will be postponed to the next succeeding New York business day,
except that if such New York business day falls in the next
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succeeding
calendar month, the applicable interest payment date will be the immediately preceding New York business day. If the maturity date or any earlier repayment date of the floating rate notes
falls on a day that is not a New York business day, the payment of principal, premium, if any, and interest, if any, otherwise payable on such date will be postponed to the next succeeding New York
business day, and no interest on such payment will accrue from and after the maturity date or earlier repayment date, as applicable.
A
New York business day is any day other than a Saturday, Sunday or other day on which commercial banks are required or permitted by law, regulation or
executive order to be closed in New York City.
The interest rate will be reset quarterly on the interest reset dates set forth in the applicable prospectus supplement, commencing on the date
set forth in the applicable prospectus supplement. However, if any interest reset date would otherwise be a day that is not a New York business day, such interest reset date will be the next
succeeding day that is a New York business day, except that if the next succeeding New York business day falls in the next succeeding calendar month, the applicable interest reset date will be the
immediately preceding New York business day.
The initial interest period will be the period from and including the date set forth in the applicable prospectus supplement to but excluding
the first interest reset date. The interest rate in effect during the initial interest period will be equal to LIBOR plus the amount set forth in the applicable prospectus supplement, determined two
London business days prior to the date set forth in the applicable prospectus supplement. A London business day is a day on which dealings in deposits in U.S. dollars
are transacted in the London interbank market.
After
the initial interest period, the interest periods will be the periods from and including an interest reset date to but excluding the immediately succeeding interest reset date,
except that the final interest period will be the period from and including the interest reset date immediately preceding the maturity date to but excluding the maturity date. The interest rate per
annum for the floating rate notes in any interest period will be equal to LIBOR plus the amount set forth in the applicable prospectus supplement, as determined by the calculation agent. The interest
rate in effect for the 15 calendar days prior to any repayment date earlier than the maturity date will be the interest rate in effect on the fifteenth day preceding such earlier repayment
date.
The
interest rate on the floating rate notes will be limited to the maximum rate permitted by New York law, as the same may be modified by United States law of general application.
Upon
the request of any holder of floating rate notes, the calculation agent will provide the interest rate then in effect and, if determined, the interest rate that will become
effective on the next interest reset date.
The
calculation agent will determine LIBOR for each interest period on the second London business day prior to the first day of such interest period.
LIBOR,
with respect to any interest determination date, will be the offered rate for deposits of U.S. dollars having a maturity of three months that appears on Reuters
Page LIBOR 01 at approximately 11:00 a.m., London time, on such interest determination date. If on an interest determination date, such rate does not appear on the
Reuters Page LIBOR 01 as of 11:00 a.m., London time, or if Reuters Page LIBOR 01 is not available on such date, the calculation
agent will obtain such rate from Bloomberg L.P.s page BBAM.
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If
no offered rate appears on Reuters Page LIBOR 01 or Bloomberg L.P. page BBAM on an interest determination date,
LIBOR will be determined for such interest determination date on the basis of the rates at approximately 11:00 a.m., London time, on such interest determination date at which deposits in U.S.
dollars are offered to prime banks in the London inter-bank market by four major banks in such market selected by PepsiCo, for a term of three months commencing on the applicable interest reset date
and in a principal amount equal to an amount that in the judgment of the calculation agent is representative for a single transaction in U.S. dollars in such market at such time. The calculation agent
will request the principal London office of each of such banks to provide a quotation of its rate. If at least two such quotations are provided, LIBOR for such interest period will be the arithmetic
mean of such quotations. If fewer than two such quotations are provided, LIBOR for such interest period will be the arithmetic mean of the rates quoted at approximately 11:00 a.m. in New York
City on such interest determination date by three major banks in New York City, selected by PepsiCo, for loans in U.S. dollars to leading European banks, for a term of three months commencing on the
applicable interest reset date and in a principal amount equal to an amount that in the judgment of the calculation agent is representative for a single transaction in U.S. dollars in such market at
such time; provided, however, that if the banks so selected are not quoting as mentioned above, the then-existing LIBOR rate will remain in effect for such interest period, or, if none, the interest
rate will be the initial interest rate.
All
percentages resulting from any calculation of any interest rate for the floating rate notes will be rounded, if necessary, to the nearest one hundred thousandth of a percentage
point, with five one-millionths of a percentage point rounded upward (e.g., 5.876545% (or .05876545) would be rounded to 5.87655% (or .0587655)), and all U.S. dollar amounts will be rounded to
the nearest cent, with one-half cent being rounded upward. Each calculation of the interest rate on the floating rate notes by the calculation agent will (in the absence of manifest error) be final
and binding on the noteholders and PepsiCo.
Accrued interest on the floating rate notes will be calculated by multiplying the principal amount of the floating rate notes by an accrued
interest factor. This accrued interest factor will be computed by adding the interest factors calculated for each day in the period for which interest is being paid. The interest factor for each day
is computed by dividing the interest rate applicable to that day by 360. For these calculations, the interest rate in effect on any reset date will be the applicable rate as reset on that date. The
interest rate applicable to any other day is the interest rate from the immediately preceding reset date or, if none, the initial interest rate.
Events of Default
When we use the term Event of Default in the indenture with respect to the debt securities of any series, here
are some examples of what we mean:
(1) default
in paying interest on the debt securities when it becomes due and the default continues for a period of 30 days or more;
(2) default
in paying principal, or premium, if any, on the debt securities when due;
(3) default
is made in the payment of any sinking or purchase fund or analogous obligation when the same becomes due, and such default continues for 30 days or more;
(4) default
in the performance, or breach, of any covenant or warranty of PepsiCo in the indenture (other than defaults specified in clause (1), (2) or
(3) above) and the default or breach continues for a period of 90 days or more after we receive written notice from the trustee or we
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and
the trustee receive notice from the holders of at least 51% in aggregate principal amount of the outstanding debt securities of the series;
(5) certain
events of bankruptcy, insolvency, reorganization, administration or similar proceedings with respect to PepsiCo have occurred; or
(6) any
other Events of Default set forth in the prospectus supplement.
If
an Event of Default (other than an Event of Default specified in clause (5) with respect to PepsiCo) under the indenture occurs with respect to the debt securities of any
series and is continuing, then the trustee or the holders of at least 51% in principal amount of the outstanding debt securities of that series may by written notice require us to repay immediately
the entire principal amount of the outstanding debt securities of that series (or such lesser amount as may be provided in the terms of the securities), together with all accrued and unpaid interest
and premium, if any.
If
an Event of Default under the indenture specified in clause (5) with respect to PepsiCo occurs and is continuing, then the entire principal amount of the outstanding debt
securities (or such lesser amount as may be provided in the terms of the securities) will automatically become due and payable immediately without any declaration or other act on the part of the
trustee or any holder.
After
a declaration of acceleration, the holders of not less than 51% in aggregate principal amount of outstanding debt securities of any series may rescind this accelerated payment
requirement if all existing Events of Default, except for nonpayment of the principal and interest on the debt securities of that series that has become due solely as a result of the accelerated
payment requirement, have been cured or waived and if the rescission of acceleration would not conflict with any judgment or decree. The holders of a majority in principal amount of the outstanding
debt securities of any series also have the right to waive past defaults, except a default in paying principal, premium or interest on any outstanding debt security, or in respect of a covenant or a
provision that cannot be modified or amended without the consent of all holders of the debt securities of that series.
Holders
of at least 51% in principal amount of the outstanding debt securities of a series may seek to institute a proceeding only after they have notified the Trustee of a continuing
Event of Default in writing and made a written request, and offered reasonable indemnity, to the trustee to institute a proceeding and the trustee has failed to do so within 60 days after it
received this notice. In addition, within this 60-day period the trustee must not have received directions inconsistent with this written request by holders of a majority in principal amount of the
outstanding debt securities of that series. These limitations do not apply, however, to a suit instituted by a holder of a debt security for the enforcement of the payment of principal, interest or
any premium on or after the due dates for such payment.
During
the existence of an Event of Default, the trustee is required to exercise the rights and powers vested in it under the indenture and use the same degree of care and skill in its
exercise as a prudent man would under the circumstances in the conduct of that persons own affairs. If an Event of Default has occurred and is continuing, the trustee is not under any
obligation to exercise any of its rights or powers at the request or direction of any of the holders unless the holders have offered to the trustee reasonable security or indemnity. Subject to certain
provisions, the holders of a majority in principal amount of the outstanding debt securities of any series have the right to direct the time, method and place of conducting any proceeding for any
remedy available to the trustee, or exercising any trust, or power conferred on the trustee.
The
trustee will, within 90 days after any default occurs, give notice of the default to the holders of the debt securities of that series, unless the default was already cured or
waived. Unless there is a default in paying principal, interest or any premium when due, the trustee can withhold giving notice to the holders if it determines in good faith that the withholding of
notice is in the interest of the holders.
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Modification and Waiver
The indenture may be amended or modified without the consent of any holder of debt securities in order
to:
-
-
evidence a succession to the Trustee;
-
-
cure ambiguities, defects or inconsistencies;
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-
provide for the assumption of our obligations in the case of a merger or consolidation or transfer of all or substantially all of our assets;
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-
make any change that would provide any additional rights or benefits to the holders of the debt securities of a series;
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-
add guarantors with respect to the debt securities of any series;
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-
secure the debt securities of a series;
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-
establish the form or forms of debt securities of any series;
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-
maintain the qualification of the indenture under the Trust Indenture Act; or
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-
make any change that does not adversely affect in any material respect the interests of any holder.
Other
amendments and modifications of the indenture or the debt securities issued may be made with the consent of the holders of not less than a majority of the aggregate principal
amount of the outstanding debt securities of each series affected by the amendment or modification. However, no modification or amendment may, without the consent of the holder of each outstanding
debt security affected:
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-
reduce the principal amount, interest or premium payable, or extend the fixed maturity, of the debt securities;
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-
alter or waive the redemption provisions of the debt securities;
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-
change the currency in which principal, any premium or interest is paid;
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-
reduce the percentage in principal amount outstanding of debt securities of any series which must consent to an amendment, supplement or waiver
or consent to take any action;
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impair the right to institute suit for the enforcement of any payment on the debt securities;
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-
waive a payment default with respect to the debt securities or any guarantor;
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reduce the interest rate or extend the time for payment of interest on the debt securities;
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adversely affect the ranking of the debt securities of any series; or
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release any guarantor from any of its obligations under its guarantee or the indenture, except in compliance with the terms of the indenture.
Covenants
The indenture provides that with respect to senior debt securities, unless otherwise provided in a particular series of senior debt securities,
we will not, and will not permit any of our restricted subsidiaries to, incur, suffer to exist or guarantee any debt secured by a lien on any principal property or on any shares of stock of (or other
interests in) any of our restricted subsidiaries unless we or that first-mentioned restricted subsidiary secures or causes such restricted subsidiary to secure the senior
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debt
securities (and any of its or such restricted subsidiarys other debt, at its option or such restricted subsidiarys option, as the case may be, not subordinate to
the
senior debt securities), equally and ratably with (or prior to) such secured debt, for as long as such secured debt will be so secured.
These
restrictions will not, however, apply to debt secured by:
-
(1)
-
any
liens existing prior to the issuance of such senior debt securities;
-
(2)
-
any
lien on property of or shares of stock of (or other interests in) or debt of any entity existing at the time such entity becomes a restricted subsidiary;
-
(3)
-
any
liens on property, shares of stock of (or other interests in) or debt of any entity (a) existing at the time of acquisition of such property or shares (or
other interests) (including acquisition through merger or consolidation), (b) to secure the payment of all or any part of the purchase price of such property or shares (or other interests) or
construction or improvement of such property or (c) to secure any debt incurred prior to, at the time of, or within 365 days after the later of the acquisition, the completion of
construction or the commencement of full operation of such property or within 365 days after the acquisition of such shares (or other interests) for the purpose of financing all or any part of
the purchase price of such shares (or other interests) or construction thereon;
-
(4)
-
any
liens in favor of us or any of our restricted subsidiaries;
-
(5)
-
any
liens in favor of, or required by contracts with, governmental entities; or
-
(6)
-
any
extension, renewal, or refunding of liens referred to in any of the preceding clauses (1) through (5).
Notwithstanding
the foregoing, we or any of our restricted subsidiaries may incur, suffer to exist or guarantee any debt secured by a lien on any principal property or on any shares of
stock of (or other interests in) any of our restricted subsidiaries if, after giving effect thereto, the aggregate amount of such debt does not exceed 15% of our consolidated net tangible assets.
The
indenture does not restrict the transfer by us of a principal property to any of our unrestricted subsidiaries or our ability to change the designation of a subsidiary owning
principal property from a restricted subsidiary to an unrestricted subsidiary and, if we were to do so, any such unrestricted subsidiary would not be restricted from incurring secured debt nor would
we be required, upon such incurrence, to secure the debt securities equally and ratably with such secured debt.
Definitions.
The following are definitions of some terms used in the above description. We refer you to the indenture for a full
description of all
of these terms, as well as any other terms used herein for which no definition is provided.
Consolidated
net tangible assets means the total amount of our assets and our restricted subsidiaries assets
minus:
-
-
all applicable depreciation, amortization and other valuation reserves;
-
-
all current liabilities of ours and our restricted subsidiaries (excluding any intercompany liabilities); and
-
-
all goodwill, trade names, trademarks, patents, unamortized debt discount and expenses and other like intangibles, all as set forth on our and
our restricted subsidiaries latest consolidated balance sheets prepared in accordance with U.S. generally accepted accounting principles.
Debt
means any indebtedness for borrowed money.
Principal
property means any single manufacturing or processing plant, office building or warehouse owned or leased by us or any of our restricted
subsidiaries other than a plant, warehouse,
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office
building or portion thereof which, in the opinion of our Board of Directors, is not of material importance to the business conducted by us and our restricted subsidiaries taken as an entirety.
Restricted
subsidiary means, at any time, any subsidiary which at the time is not an unrestricted subsidiary of ours.
Subsidiary
means any entity, at least a majority of the outstanding voting stock of which shall at the time be owned, directly or indirectly, by us or by
one or more of our subsidiaries, or both.
Unrestricted
subsidiary means any subsidiary of ours (not at the time designated as our restricted subsidiary) (1) the major part of whose business
consists of finance, banking, credit, leasing, insurance, financial services or other similar operations, or any combination thereof, (2) substantially all the assets of which consist of the
capital stock of one or more subsidiaries engaged in the operations referred to in the preceding clause (1), or (3) designated as an unrestricted subsidiary by our Board of Directors.
Consolidation, Merger or Sale of Assets
The indenture provides that we may consolidate or merge with or into, or convey or transfer all or substantially all of our assets to, any
entity (including, without limitation, a limited partnership or a limited liability company);
provided
that:
-
-
we will be the surviving corporation or, if not, that the successor will be a corporation that is organized and validly existing under the laws
of any state of the United States of America or the District of Columbia and will expressly assume by a supplemental indenture our obligations under the indenture and the debt securities;
-
-
immediately after giving effect to such transaction, no event of default, and no default or other event which, after notice or lapse of time,
or both, would become an event of default, will have happened and be continuing; and
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-
we will have delivered to the trustee an opinion of counsel, stating that such consolidation, merger, conveyance or transfer complies with the
indenture.
In
the event of any such consolidation, merger, conveyance, transfer or lease, any such successor will succeed to and be substituted for us as obligor on the debt securities with the same effect as if
it had been named in the indenture as obligor, and we will be released from all obligations under the indenture and under the debt securities.
There
are no other restrictive covenants contained in the indenture. The indenture does not contain any provision that will restrict us from entering into one or more additional
indentures providing for the issuance of debt securities or warrants, or from incurring, assuming, or becoming liable with respect to any indebtedness or other obligation, whether secured or
unsecured, or from paying dividends or making other distributions on our capital stock, or from purchasing or redeeming our capital stock. The indenture does not contain any financial ratios or
specified levels of net worth or liquidity to which we must adhere. In addition, the indenture does not contain any provision that would require us to repurchase, redeem, or otherwise modify the terms
of any of the debt securities upon a change in control or other event involving us that may adversely affect our creditworthiness or the value of the debt securities.
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Satisfaction, Discharge and Covenant Defeasance
We may terminate our obligations under the indenture, when:
-
-
either:
-
-
all debt securities of any series issued that have been authenticated and delivered have been delivered to the trustee for
cancellation; or
-
-
all the debt securities of any series issued that have not been delivered to the trustee for cancellation have become due and
payable, will become due and payable within one year, or are to be called for redemption within one year and we have made arrangements satisfactory to the trustee for the giving of notice of
redemption by such trustee in our name and at our expense, and in each case, we have irrevocably deposited or caused to be deposited with the trustee sufficient funds to pay and discharge the entire
indebtedness on the series of debt securities to pay principal, interest and any premium; and
-
-
we have paid or caused to be paid all other sums then due and payable under the indenture; and
-
-
we have delivered to the trustee an officers certificate and an opinion of counsel, each stating that all conditions precedent
under the indenture relating to the satisfaction and discharge of the indenture have been complied with.
We
may elect to have our obligations under the indenture discharged with respect to the outstanding debt securities of any series (legal defeasance).
Legal defeasance
means that we will be deemed to have paid and discharged the entire indebtedness represented by the outstanding debt securities of such series under the indenture, except
for:
-
-
the rights of holders of the debt securities to receive principal, interest and any premium when due;
-
-
our obligations with respect to the debt securities concerning issuing temporary debt securities, registration of transfer of debt securities,
mutilated, destroyed, lost or stolen debt securities and the maintenance of an office or agency for payment for security payments held in trust;
-
-
the rights, powers, trusts, duties and immunities of the trustee; and
-
-
the defeasance provisions of the indenture.
In
addition, we may elect to have our obligations released with respect to certain covenants in the indenture (covenant defeasance). Any omission to
comply with these obligations will not constitute a default or an event of default with respect to the debt securities of any series. In the event covenant defeasance occurs, certain events, not
including non-payment, bankruptcy and insolvency events, described under Events of Default above will no longer constitute an event of default for that series.
In
order to exercise either legal defeasance or covenant defeasance with respect to outstanding debt securities of any series:
-
-
we must irrevocably have deposited or caused to be deposited with the trustee as trust funds for the purpose of making the following payments,
specifically pledged as security for, and dedicated solely to the benefit of the holders of the debt securities of a series:
-
-
money in an amount;
-
-
U.S. government obligations (or equivalent government obligations in the case of debt securities denominated in other than U.S.
dollars or a specified currency) that will provide, not later than one day before the due date of any payment, money in an amount; or
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-
-
a combination of money and U.S. government obligations (or equivalent government obligations, as applicable),
in
each case sufficient, in the written opinion (with respect to U.S. or equivalent government obligations or a combination of money and U.S. or equivalent government obligations, as applicable) of a
nationally recognized firm of independent registered public accountants, to pay and discharge, and which shall be applied by the trustee to pay and discharge, all of the principal (including mandatory
sinking fund payments), interest and any premium at the due date or maturity;
-
-
in the case of legal defeasance, we must have delivered to the trustee an opinion of counsel stating that, under then applicable Federal income
tax law, the holders of the debt securities of that series will not recognize income, gain or loss for federal income tax purposes as a result of the deposit, defeasance and discharge to be effected
and will be subject to the same federal income tax as would be the case if the deposit, defeasance and discharge did not occur;
-
-
in the case of covenant defeasance, we must have delivered to the trustee an opinion of counsel to the effect that the holders of the debt
securities of that series will not recognize income, gain or loss for U.S. federal income tax purposes as a result of the deposit and covenant defeasance to be effected and will be subject to the same
federal income tax as would be the case if the deposit and covenant defeasance did not occur;
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no event of default or default with respect to the outstanding debt securities of that series has occurred and is continuing at the time of
such deposit after giving effect to the deposit or, in the case of legal defeasance, no default relating to bankruptcy or insolvency has occurred and is continuing at any time on or before the
91st day after the date of such deposit, it being understood that this condition is not deemed satisfied until after the 91st day;
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-
the legal defeasance or covenant defeasance will not cause the trustee to have a conflicting interest within the meaning of the Trust Indenture
Act, assuming all debt securities of a series were in default within the meaning of such Act;
-
-
the legal defeasance or covenant defeasance will not result in a breach or violation of, or constitute a default under, any other agreement or
instrument to which we are a party;
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-
the legal defeasance or covenant defeasance will not result in the trust arising from such deposit constituting an investment company within
the meaning of the Investment Company Act of 1940, as amended, unless the trust is registered under such Act or exempt from registration; and
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-
we must have delivered to the trustee an officers certificate and an opinion of counsel stating that all conditions precedent
with respect to the legal defeasance or covenant defeasance have been complied with.
Concerning our Relationship with the Trustee
We and our subsidiaries maintain ordinary banking relationships and credit facilities with The Bank of New York Mellon, which serves as trustee
under certain indentures related to other securities that we have issued or guaranteed.
DESCRIPTION OF WARRANTS
We may issue warrants to purchase our debt or equity securities or securities of third parties or other rights, including rights to receive
payment in cash or securities based on the value, rate or price of one or more specified commodities, currencies, securities or indices, or any combination of the foregoing. Warrants may be issued
independently or together with any other securities and may be attached to, or separate from, such securities. Each series of warrants will be issued under a separate
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warrant
agreement to be entered into between us and a warrant agent. The terms of any warrants to be issued and a description of the material provisions of the applicable warrant agreement will be set
forth in the applicable prospectus supplement.
The
applicable prospectus supplement will describe the following terms of any warrants in respect of which this prospectus is being delivered:
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-
the title of such warrants;
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the aggregate number of such warrants;
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the price or prices at which such warrants will be issued;
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the currency or currencies in which the price of such warrants will be payable;
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the securities or other rights, including rights to receive payment in cash or securities based on the value, rate or price of one or more
specified commodities, currencies, securities or indices, or any combination of the foregoing, purchasable upon exercise of such warrants;
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the price at which and the currency or currencies in which the securities or other rights purchasable upon exercise of such warrants may be
purchased;
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the date on which the right to exercise such warrants shall commence and the date on which such right shall expire;
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if applicable, the minimum or maximum amount of such warrants which may be exercised at any one time;
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if applicable, the designation and terms of the securities with which such warrants are issued and the number of such warrants issued with each
such security;
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if applicable, the date on and after which such warrants and the related securities will be separately transferable;
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information with respect to book-entry procedures, if any;
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if applicable, a discussion of any material United States Federal income tax considerations; and
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any other terms of such warrants, including terms, procedures and limitations relating to the exchange and exercise of such warrants.
DESCRIPTION OF UNITS
As specified in the applicable prospectus supplement, we may issue units consisting of one or more warrants, debt securities, shares of common
stock or any combination of such securities. The applicable prospectus supplement will describe:
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the terms of the units and of the warrants, debt securities and common stock comprising the units, including whether and under what
circumstances the securities comprising the units may be traded separately;
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a description of the terms of any unit agreement governing the units; and
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a description of the provisions for the payment, settlement, transfer or exchange of the units.
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FORMS OF SECURITIES
Each debt security, warrant, and unit will be represented either by a certificate issued in definitive form to a particular investor or by one
or more global securities representing the entire issuance of securities. Certificated securities will be issued in definitive form and global securities will be issued in registered form. Definitive
securities name you or your nominee as the owner of the security, and in order to transfer or exchange these securities or to receive payments other than interest or other interim payments, you or
your nominee must physically deliver the securities to the trustee, registrar, paying agent or other agent, as applicable. Global securities name a depositary or its nominee as the owner of the debt
securities, warrants, or units represented by these global securities. The depositary maintains a computerized system that will reflect each investors beneficial ownership of the
securities through an account maintained by the investor with its broker/dealer, bank, trust company or other representative, as we explain more fully below.
Global Securities
Registered Global Securities.
We may issue the registered debt securities, warrants, and units in the form of one or more fully
registered global
securities that will be deposited with a depositary or its nominee identified in the applicable prospectus supplement and registered in the name of that depositary or nominee. In those cases, one or
more registered global securities will be issued in a denomination or
aggregate denominations equal to the portion of the aggregate principal or face amount of the securities to be represented by registered global securities. Unless and until it is exchanged in whole
for securities in definitive registered form, a registered global security may not be transferred except as a whole by and among the depositary for the registered global security, the nominees of the
depositary or any successors of the depositary or those nominees.
If
not described below, any specific terms of the depositary arrangement with respect to any securities to be represented by a registered global security will be described in the
prospectus supplement relating to those securities. We anticipate that the following provisions will apply to all depositary arrangements.
Ownership
of beneficial interests in a registered global security will be limited to persons, called participants, that have accounts with the depositary or persons that may hold
interests through participants. Upon the issuance of a registered global security, the depositary will credit, on its book-entry registration and transfer system, the participants
accounts with the respective principal or face amounts of the securities beneficially owned by the participants. Any dealers, underwriters or agents participating in the distribution of the securities
will designate the accounts to be credited. Ownership of beneficial interests in a registered global security will be shown on, and the transfer of ownership interests will be effected only through,
records maintained by the depositary, with respect to interests of participants, and on the records of participants, with respect to interests of persons holding through participants. The laws of some
states may require that some purchasers of securities take physical delivery of these securities in definitive form. These laws may impair your ability to own, transfer or pledge beneficial interests
in registered global securities.
So
long as the depositary, or its nominee, is the registered owner of a registered global security, that depositary or its nominee, as the case may be, will be considered the sole owner
or holder of the securities represented by the registered global security for all purposes under the applicable indenture, warrant agreement or unit agreement. Except as described below, owners of
beneficial interests in a registered global security will not be entitled to have the securities represented by the registered global security registered in their names, will not receive or be
entitled to receive physical delivery of the securities in definitive form and will not be considered the owners or holders of the securities under the applicable indenture, warrant agreement or unit
agreement. Accordingly, each person owning a beneficial interest in a registered global security must rely on the procedures of the depositary for that
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registered
global security and, if that person is not a participant, on the procedures of the participant through which the person owns its interest, to exercise any rights of a holder under the
applicable indenture, warrant agreement or unit agreement. We understand that under existing industry practices, if we request any action of holders or if an owner of a beneficial interest in a
registered global security desires to give or take any action that a holder is entitled to give or take under the applicable indenture, warrant agreement or unit agreement, the depositary for the
registered global security would authorize the participants holding the relevant beneficial interests to give or take that action, and the
participants would authorize beneficial owners owning through them to give or take that action or would otherwise act upon the instructions of beneficial owners holding through them.
Principal,
premium, if any, and interest payments on debt securities, and any payments to holders with respect to warrants or units, represented by a registered global security
registered in the name of a depositary or its nominee will be made to the depositary or its nominee, as the case may be, as the registered owner of the registered global security. None of PepsiCo, the
trustee, the warrant agents, the unit agents or any other agent of PepsiCo, agent of the trustee or agent of the warrant agents or unit agents will have any responsibility or liability for any aspect
of the records relating to payments made on account of beneficial ownership interests in the registered global security or for maintaining, supervising or reviewing any records relating to those
beneficial ownership interests.
We
expect that the depositary for any of the securities represented by a registered global security, upon receipt of any payment of principal, premium, interest or other distribution of
underlying securities or other property to holders on that registered global security, will immediately credit participants accounts in amounts proportionate to their respective
beneficial interests in that registered global security as shown on the records of the depositary. We also expect that payments by participants to owners of beneficial interests in a registered global
security held through participants will be governed by standing customer instructions and customary practices, as is now the case with the securities held for the accounts of customers in bearer form
or registered in street name, and will be the responsibility of those participants.
If
the depositary for any of these securities represented by a registered global security is at any time unwilling or unable to continue as depositary or ceases to be a clearing agency
registered under the Exchange Act, and a successor depositary registered as a clearing agency under the Exchange Act is not appointed by us within 90 days, we will issue securities in
definitive form in exchange for the registered global security that had been held by the depositary. Any securities issued in definitive form in exchange for a registered global security will be
registered in the name or names that the depositary gives to the relevant trustee, warrant agent, unit agent or other relevant agent of ours or theirs. It is expected that the
depositarys instructions will be based upon directions received by the depositary from participants with respect to ownership of beneficial interests in the registered global security
that had been held by the depositary.
VALIDITY OF SECURITIES
The validity of the securities in respect of which this prospectus is being delivered will be passed on for us by Davis Polk &
Wardwell LLP, New York, New York, as to New York law, and by Womble Carlyle Sandridge & Rice, LLP, Research Triangle Park, North Carolina, as to North Carolina law.
EXPERTS
The consolidated financial statements of PepsiCo, Inc. as of December 31, 2016 and December 26, 2015, and for each of the
fiscal years in the three-year period ended December 31, 2016, and managements assessment of the effectiveness of internal control over financial reporting as of
December 31, 2016, are incorporated by reference herein in reliance upon the reports of KPMG LLP, independent registered public accounting firm, incorporated by reference herein, and
upon the authority of said firm as experts in accounting and auditing.
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PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution
The following table sets forth the costs and expenses payable by the registrant in connection with the sale of the securities being registered
hereby.
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Amount to be Paid
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Registration fee
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Printing
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*
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Legal fees and expenses
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*
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Trustee fees
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*
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Accounting fees and expenses
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*
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Miscellaneous
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*
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Total
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*
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Deferred
in reliance upon Rule 456(b) and Rule 457(r).
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*
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Not
presently determinable.
Item 15. Indemnification of Directors and Officers
PepsiCo, Inc. (PepsiCo) does not have any provisions for indemnification of directors or officers in its
Amended and Restated Articles of Incorporation. Article III, Section 3.7 of the By-Laws, as amended and restated, effective as of January 11, 2016, provides that unless the Board
of Directors shall determine otherwise, PepsiCo shall indemnify, to the full extent permitted by law, any person who was or is, or who is threatened to be made, a party to an action, suit or
proceeding (and any appeal therein), whether civil, criminal, administrative, investigative or arbitrative, by reason of the fact that such person, such persons testator or intestate,
is or was a director, officer or employee of PepsiCo, or is or was serving at the request of PepsiCo as a director, officer or employee of another enterprise, against expenses (including
attorneys fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by such person in connection with such action, suit or proceeding. At the
Boards discretion, such indemnification may also include advances of a directors, officers or employees expenses prior to final
disposition of such action, suit or proceeding.
Section 55-2-02
of the North Carolina Business Corporation Act (the North Carolina Act) enables a corporation in its articles of incorporation to
eliminate or limit, with certain exceptions, the personal liability of directors arising out of an action whether by or in the right of the corporation or otherwise for monetary damages for breach of
their duties as directors. No such provision is effective to eliminate or limit a directors liability for: (1) acts or omissions that the director at the time of the breach knew
or believed to be clearly in conflict with the best interests of the corporation; (2) improper distributions as described in Section 55-8-33 of the North Carolina Act; (3) any
transaction from which the director derived an improper personal benefit; or (4) acts or omissions occurring prior to the date the exculpatory provision became effective. As noted above,
PepsiCos Amended and Restated Articles of Incorporation do not contain a provision that eliminates or limits such personal liability.
Sections 55-8-50
through 55-8-58 of the North Carolina Act permit a corporation to indemnify its directors, officers, employees or agents under either or both a statutory or
nonstatutory scheme of indemnification. Under the statutory scheme, a corporation may, with certain exceptions, indemnify a director, officer, employee or agent of the corporation who was, is, or is
threatened to be made, a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative, or investigative and whether formal or informal, because of
the fact that such person
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was
or is a director, officer, agent or employee of the corporation, or is or was serving at the request of such corporation as a director, officer, employee or agent of another corporation,
partnership, joint venture, trust, employee benefit plan, or other enterprise. This indemnity may include the obligation to pay any judgment, settlement, penalty, fine (including an excise tax
assessed with respect to an employee benefit plan) or reasonable expenses incurred in connection with a proceeding (including counsel fees), but no such indemnification may be granted unless such
director, officer, employee or agent (1) conducted himself in good faith, (2) reasonably believed (a) that any action taken in his official capacity with the corporation was in
the best interests of the corporation or (b) that in all other cases his conduct was at least not opposed to the corporations best interests, and (3) in the case of any
criminal proceeding, had no reasonable cause to believe his conduct was unlawful. Whether a director has met the requisite standard of conduct for the type of indemnification set forth above is
determined by a majority vote of a quorum of the board of directors who are not parties to the proceeding in question, a duly designated committee of directors if a quorum of the full board cannot be
established, special legal counsel selected by the board or duly designated committee of directors, or the shareholders (excluding shares owned or controlled by directors who are parties to the
proceeding in question) in accordance with Section 55-8-55 of the North Carolina Act. A corporation may not indemnify a director under the statutory scheme in connection with a proceeding by or
in the right of the corporation in which a director was adjudged liable to the corporation or in connection with any other proceeding charging improper personal benefit in which a director was
adjudged liable (whether or not involving action in his official capacity) on the basis of having received an improper personal benefit.
Sections 55-8-52
and 55-8-56 of the North Carolina Act require a corporation, unless its articles of incorporation provide otherwise, to indemnify a director or officer who has
been wholly successful, on the merits or otherwise, in the defense of any proceeding to which such director or officer was, or was threatened to be, made a party because he is or was a director or
officer of the corporation against reasonable expenses incurred by him in connection with the proceeding. Unless prohibited by the articles of incorporation, a director or officer also may make
application for and obtain court-ordered indemnification if the court determines that such director or officer is (1) entitled to mandatory indemnification under Section 55-8-52, in
which case the court will also order the corporation to pay the directors or officers reasonable expenses incurred to obtain court-ordered indemnification, and
(2) fairly and reasonably entitled to indemnification in view of all relevant circumstances, whether or not he met the standard of conduct set forth in Section 55-8-51 or was adjudged
liable as described in Section 55-8-51.
In
addition to, and notwithstanding the conditions of and limitations on, the indemnification described above under the statutory scheme, Section 55-8-57 of the North Carolina Act
permits a corporation to indemnify, or agree to indemnify, any of its directors, officers, employees or agents against liability and expenses (including attorneys fees) in any
proceeding (including proceedings brought by or on behalf of the corporation) arising out of their status as such or their activities in such capacities, except for any liabilities or expenses
incurred on account of activities that were, at the time taken, known or believed by the person to be clearly in conflict with the best interests of the corporation. Consistent with the foregoing,
PepsiCo has entered into indemnification agreements with each of its directors, pursuant to which PepsiCo has agreed to indemnify and hold harmless, to the full extent permitted by law, each director
against any and all liabilities and assessments (including attorneys fees and other costs, expenses and obligations) arising out of or related to any threatened, pending or completed
action, suit, proceeding, inquiry or investigation, whether civil, criminal, administrative, or other, including, but not limited to, judgments, fines, penalties and amounts paid in settlement
(whether with or without court approval), and any interest, assessments, excise taxes or other charges paid or payable in connection with or in respect of any of the foregoing, incurred by the
director and arising out of his status as a director or member of a committee of the Board of PepsiCo, or by reason of anything done or not done by the director in such capacities. After receipt of an
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appropriate
request by a director, PepsiCo will also advance all expenses, costs and other obligations (including attorneys fees) arising out of or related to such matters. PepsiCo
will not be liable for payment of any liability or expense incurred by a director on account of acts which, at the time taken, were known or believed by such director to be clearly in conflict with
PepsiCos best interests.
Additionally,
Section 55-8-57 of the North Carolina Act authorizes a corporation to purchase and maintain insurance on behalf of an individual who is or was a director, officer,
employee or agent of the corporation against certain liabilities incurred by such a person, whether or not the corporation is
otherwise authorized by the North Carolina Act to indemnify that person. PepsiCo has purchased and maintains such insurance.
The
form of underwriting agreement incorporated by reference to Exhibit 1.1 to this registration statement provides for indemnification of directors and officers of the registrant
by the underwriters against certain liabilities.
Item 16. Exhibits and Financial Statement Schedules
(a) The
list of exhibits is incorporated herein by reference to the Exhibit Index following the signature pages.
Item 17. Undertakings
(a) The
undersigned registrant hereby undertakes:
(1) To
file, during any period in which offers or sales are being made of securities registered hereby, a post-effective amendment to this registration statement:
(i) to
include any prospectus required by Section 10(a)(3) of the Securities Act of 1933;
(ii) to
reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the most recent post-effective amendment thereof)
which, individually or in the aggregate, represent a fundamental change in the information set forth in the registration statement. Notwithstanding the foregoing, any increase or decrease in volume of
securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from
the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the Securities and Exchange Commission pursuant to Rule 424(b) if, in the
aggregate, the changes in volume and price represent no more than a 20 percent change in the maximum aggregate offering price set forth in the Calculation of Registration
Fee table in the effective registration statement;
(iii) to
include any material information with respect to the plan of distribution not previously disclosed in the registration statement or any material change to such
information in the registration statement;
provided
,
however
, that paragraphs (i), (ii) and (iii) above do not apply if the
information required to be included in a post-effective amendment by those paragraphs is contained in reports filed with or furnished to the Securities and Exchange Commission by the registrant
pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of 1934 that are incorporated by reference in this registration statement, or is contained in a form of prospectus
filed pursuant to Rule 424(b) that is part of the registration statement.
(2) That,
for the purpose of determining any liability under the Securities Act of 1933, each such post-effective amendment shall be deemed to be a new registration
statement relating to the securities offered herein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
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(3) To
remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering.
(4) That,
for the purpose of determining liability under the Securities Act of 1933 to any purchaser:
(A) Each
prospectus filed by the registrant pursuant to Rule 424(b)(3) shall be deemed to be part of the registration statement as of the date the filed prospectus
was deemed part of and included in the registration statement; and
(B) Each
prospectus required to be filed pursuant to Rule 424(b)(2), (b)(5), or (b)(7) as part of a registration statement in reliance on Rule 430B relating to
an offering made pursuant to Rule 415(a)(1)(i), (vii) or (x) for the purpose of providing the information required by Section 10(a) of the
Securities Act of 1933 shall be deemed to be part of and included in the registration statement as of the earlier of the date such form of prospectus is first used after effectiveness or the date of
the first contract of sale of securities in the offering described in the prospectus. As provided in Rule 430B, for liability purposes of the issuer and any person that is at that date an
underwriter, such date shall be deemed to be a new effective date of the registration statement relating to the securities in the registration statement to which that prospectus relates, and the
offering of such securities at that time shall be deemed to be the initial
bona fide
offering thereof.
Provided
,
however
, that no statement made in a registration statement or prospectus that is part of the
registration statement or made in a document incorporated or deemed incorporated by reference into the registration statement or prospectus that is part of the registration statement will, as to a
purchaser with a time of contract of sale prior to such effective date, supersede or modify any statement that was made in the registration statement or prospectus that was part of the registration
statement or made in any such document immediately prior to such effective date.
(5) That,
for the purpose of determining liability of the registrant under the Securities Act of 1933 to any purchaser in the initial distribution of the securities:
The
undersigned registrant undertakes that in a primary offering of securities of the undersigned registrant pursuant to this registration statement, regardless of the underwriting
method used to sell the securities to the purchaser, if the securities are offered or sold to such purchaser by means of any of the following communications, the undersigned registrant will be a
seller to the purchaser and will be considered to offer or sell such securities to such purchaser:
(i) Any
preliminary prospectus or prospectus of the undersigned registrant relating to the offering required to be filed pursuant to Rule 424;
(ii) Any
free writing prospectus relating to the offering prepared by or on behalf of the undersigned registrant or used or referred to by the undersigned registrant;
(iii) The
portion of any other free writing prospectus relating to the offering containing material information about the undersigned registrant or its securities provided
by or on behalf of the undersigned registrant; and
(iv) Any
other communication that is an offer in the offering made by the undersigned registrant to the purchaser.
(b) The
undersigned registrant hereby undertakes that, for purposes of determining any liability under the Securities Act of 1933, each filing of the
registrants annual report pursuant to Section 13(a) or Section 15(d) of the Securities Exchange Act of 1934 (and, where applicable, each filing of an employee benefit
plans annual report pursuant to Section 15(d) of the Securities Exchange Act of 1934) that is incorporated by reference in the registration statement shall be deemed to
be a new
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registration
statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial
bona
fide
offering thereof.
(c) Insofar
as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers and controlling persons of the registrant
pursuant to the foregoing provisions, or otherwise, the registrant has been advised that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as
expressed in the Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the registrant of expenses incurred or paid by
a director, officer or controlling person of the registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with
the securities being registered, the registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the
question whether such indemnification by it is against public policy as expressed in the Act and will be governed by the final adjudication of such issue.
(d) The
undersigned registrant hereby undertakes that:
(1) For
purposes of determining any liability under the Securities Act of 1933, the information omitted from the form of prospectus filed as part of this registration
statement in reliance upon Rule 430A and contained in a form of prospectus filed by the registrant pursuant to Rule 424(b)(1) or (4) or 497(h) under the Securities Act shall be
deemed to be part of this registration statement as of the time it was declared effective; and
(2) For
the purpose of determining any liability under the Securities Act of 1933, each post-effective amendment that contains a form of prospectus shall be deemed to be a
new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, the registrant certifies that it has reasonable grounds to believe that
it meets all of the requirements for filing on Form S-3 and has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of
Purchase, State of New York, on February 15, 2017.
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PEPSICO, INC.
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By:
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/s/ Indra K. Nooyi
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Name:
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Indra K. Nooyi
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Title:
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Chairman of the Board of Directors and Chief Executive Officer
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KNOW
ALL MEN BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints Tony West, Cynthia Nastanski and Heather A. Hammond, and each of them severally,
his or her true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for him or her and in his or her name, place and stead, in any and all capacities, to sign
any and all amendments (including post-effective amendments) to this registration statement and any and all additional registration statements pursuant to Rule 462(b) under the Securities Act
of 1933, as amended, and to file the same, with all exhibits thereto, and all other documents in connection therewith, with the Securities and Exchange Commission, granting unto each said
attorney-in-fact and agent full power and authority to do and perform each and every act in person, hereby ratifying and confirming all that said attorneys-in-fact and agents or any of them or their
or his or her substitute or substitutes may lawfully do or cause to be done by virtue hereof.
Pursuant
to the requirements of the Securities Act of 1933, as amended, this registration statement has been signed by the following persons in the capacities and on the dates indicated.
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Signature
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Title
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Date
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/s/ Indra K. Nooyi
Indra K. Nooyi
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Chairman of the Board of Directors and Chief Executive Officer
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February 15, 2017
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/s/ Hugh F. Johnston
Hugh F. Johnston
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Vice Chairman, Executive Vice President and Chief Financial Officer
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February 15, 2017
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/s/ Marie T. Gallagher
Marie T. Gallagher
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Senior Vice President and Controller (principal accounting officer)
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February 15, 2017
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/s/ Shona L. Brown
Shona L. Brown
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Director
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February 15, 2017
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Signature
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Title
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Date
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/s/ George W. Buckley
George W. Buckley
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Director
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February 15, 2017
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/s/ Cesar Conde
Cesar Conde
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Director
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February 15, 2017
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/s/ Ian M. Cook
Ian M. Cook
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Director
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February 15, 2017
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/s/ Dina Dublon
Dina Dublon
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Director
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February 15, 2017
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/s/ Rona A. Fairhead
Rona A. Fairhead
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Director
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February 15, 2017
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/s/ Richard W. Fisher
Richard W. Fisher
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Director
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February 15, 2017
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/s/ William R. Johnson
William R. Johnson
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Director
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|
February 15, 2017
|
/s/ David C. Page
David C. Page
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|
Director
|
|
February 15, 2017
|
/s/ Robert C. Pohlad
Robert C. Pohlad
|
|
Director
|
|
February 15, 2017
|
/s/ Lloyd G. Trotter
Lloyd G. Trotter
|
|
Director
|
|
February 15, 2017
|
/s/ Daniel Vasella
Daniel Vasella
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|
Director
|
|
February 15, 2017
|
II-7
Table of Contents
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Signature
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Title
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Date
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|
|
|
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/s/ Darren Walker
Darren Walker
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|
Director
|
|
February 15, 2017
|
/s/ Alberto Weisser
Alberto Weisser
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|
Director
|
|
February 15, 2017
|
II-8
Table of Contents
EXHIBIT INDEX
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|
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Exhibit No.
|
|
Document
|
|
1.1
|
|
Form of underwriting agreement (common stock and debt securities) (incorporated herein by reference to exhibit 1.1 to the registrants registration statement on Form S-3 (File No. 333-177307) filed on
October 13, 2011)
|
|
|
|
|
|
1.2
|
|
Form of distribution agreement (debt securities, warrants and units) (incorporated herein by reference to exhibit 1.2 to the registrants registration statement on Form S-3 (File No. 333-177307) filed
on October 13, 2011)
|
|
|
|
|
|
4.1
|
|
Articles of Incorporation of PepsiCo, Inc., as amended and restated, effective as of May 9, 2011 (incorporated herein by reference to exhibit 3.1 to the registrants current report on Form 8-K
filed on May 9, 2011)
|
|
|
|
|
|
4.2
|
|
By-Laws of PepsiCo, Inc., as amended and restated, effective as of January 11, 2016 (incorporated herein by reference to exhibit 3.2 to the registrants current report on Form 8-K filed on
January 11, 2016)
|
|
|
|
|
|
4.3
|
|
Indenture dated as of May 21, 2007, between PepsiCo, Inc. and The Bank of New York, as trustee (incorporated herein by reference to exhibit 4.3 to the registrants registration statement on
Form S-3 (File No. 333-154314) filed on October 15, 2008)
|
|
|
|
|
|
4.4
|
|
Form of note (included in exhibit 4.3; forms for individual issuances of offered securities to be filed by amendment or as an exhibit to a document to be incorporated by reference herein in connection with the
offering of such offered securities)
|
|
|
|
|
|
4.5*
|
|
Form of warrant agreement
|
|
|
|
|
|
4.6*
|
|
Form of unit agreement
|
|
|
|
|
|
4.7
|
|
Board of Directors Resolutions Authorizing PepsiCo Inc.s Officers to Establish the Terms of the Notes (incorporated herein by reference to exhibit 4.4 to the registrants current report on
Form 8-K filed on February 28, 2013)
|
|
|
|
|
|
5.1
|
|
Opinion of Davis Polk & Wardwell LLP
|
|
|
|
|
|
5.2
|
|
Opinion of Womble Carlyle Sandridge & Rice, LLP
|
|
|
|
|
|
12.1
|
|
Statement regarding computation of ratio of earnings to fixed charges (incorporated herein by reference to exhibit 12 to the registrants annual report on Form 10-K for the fiscal year ended
December 31, 2016)
|
|
|
|
|
|
23.1
|
|
Consent of KPMG LLP
|
|
|
|
|
|
23.2
|
|
Consent of Davis Polk & Wardwell LLP (included in exhibit 5.1)
|
|
|
|
|
|
23.3
|
|
Consent of Womble Carlyle Sandridge & Rice, LLP (included in exhibit 5.2)
|
|
|
|
|
|
24.1
|
|
Power of attorney (included on the signature page of this registration statement)
|
|
|
|
|
|
25.1
|
|
Statement of eligibility on Form T-1 of The Bank of New York Mellon with respect to the Indenture dated as of May 21, 2007
|
-
*
-
To
be filed by amendment or as an exhibit to a document to be incorporated by reference herein in connection with an offering of the offered securities.
II-9
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