Exhibit 10.1


 


Repurchase Plan


 


10b5-1 Repurchase Plan


 


Repurchase Plan,
dated February 28, 2006 (this “Repurchase Plan”), between PepsiAmericas, Inc.
(the “Issuer”) and Banc of America Securities LLC. (“BAS”).


 


WHEREAS, the
Issuer desires to establish this Repurchase Plan to repurchase shares of its
common stock (the “Stock”); and


 


WHEREAS, the
Issuer desires to engage BAS to effect repurchases of shares of Stock in
accordance with this Repurchase Plan;


 


NOW, THEREFORE,
the Issuer and BAS hereby agree as follows:


 


1.                                       (a) Subject to the Issuer’s continued
compliance with Section 2 hereof, BAS shall effect a purchase or purchases
(each, a “Purchase”) of up to 2,000,000 shares of the Stock (the “Total Plan
Shares”) as set forth in Annex 1.


 


(b) Purchases
may be made in the open market or through privately negotiated
transactions. BAS shall comply with the requirements of paragraphs (b)(2), (b)(3) and
(b)(4) of Rule 10b-18 under the Securities Exchange Act of 1934, as
amended (the “Exchange Act”), in connection with Purchases of Stock in the open
market pursuant to this Repurchase Plan. The Issuer agrees not to take any
action that would cause Purchases not to comply with Rule 10b-18, Rule 10b5-1
or Regulation M.


 


2.                                       The Issuer shall pay to BAS a commission of $.02
cents per share of Stock repurchased pursuant to this Repurchase Plan. In
accordance with BAS’s customary procedures, BAS will deposit shares of Stock
purchased hereunder into an account established by BAS for the Issuer against
payment to BAS of the purchase price therefor and commissions and other amounts
in respect thereof payable pursuant to this Section. The Issuer will be
notified of all transactions pursuant to customary trade confirmations.


 

















 


3.                                       (a)          This
Repurchase Plan shall become effective immediately and shall terminate upon the
first to occur of the following:


 


(1) the ending of the Trading Period, as set forth in Annex 1;


 


(2) the
purchase of the number of Total Plan Shares pursuant to this Repurchase Plan;


 


(3) the end
of the second business day following the date of receipt by BAS of notice of
early termination substantially in the form of Appendix A hereto,
delivered by telecopy, transmitted to (212) 230-8610, Attention: Chip Gibbs,
and confirmed by telephone to Chip Gibbs at (212) 583-8554;


 


(4) the
commencement of any voluntary or involuntary case or other proceeding seeking
liquidation, reorganization or other relief under any bankruptcy, insolvency or
similar law or seeking the appointment of a trustee, receiver or other similar
official, or the taking of any corporate action by the Issuer to authorize or
commence any of the foregoing;


 


(5) the
public announcement of a tender or exchange offer for the Stock or of a merger,
acquisition, recapitalization or other similar business combination or
transaction as a result of which the Stock would be exchanged for or converted
into cash, securities or other property; or


 


(6) the
failure of the Issuer to comply with Section 2 hereof.


 


(b) Sections
2 and 13 of this Repurchase Plan shall survive any termination hereof. In
addition, the Issuer’s obligation under Section 2 hereof in respect of any
shares of Stock purchased prior to any termination hereof shall survive any
termination hereof.


 


4.                                       The
Issuer understands that BAS may not be able to effect a Purchase due to a
market disruption or a legal, regulatory or contractual restriction or internal
policy applicable to BAS or otherwise. If any Purchase cannot be executed as
required by Section 1 due to a market disruption, a legal, regulatory or
contractual restriction or internal policy applicable to BAS or any other
event, such Purchase shall be cancelled and shall not be effected pursuant to
this Repurchase Plan.


 


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5.                                       The Issuer represents and warrants, on the date
hereof and on the date of any amendment hereto, that: (a) it is not aware
of material, nonpublic information with respect to the Issuer or any securities
of the Issuer (including the Stock), (b) it is entering into or amending,
as the case may be, this Repurchase Plan in good faith and not as part of
a plan or scheme to evade the prohibitions of Rule 10b5-1 under the
Exchange Act or other applicable securities laws and (c) its execution of
this Repurchase Plan or amendment hereto, as the case may be, and the
Purchases contemplated hereby do not and will not violate or conflict with the
Issuer’s certificate of incorporation or by-laws or, if applicable, any similar
constituent document, or any law, rule regulation or agreement binding on or
applicable to the Issuer or any of its subsidiaries or any of its of their
property or assets.


 


6.                                       It is the intent of the parties that this
Repurchase Plan comply with the requirements of Rule 10b5-1(c)(1)(i)(B) and  Rule 10b-18 under the Exchange Act, and
this Repurchase Plan shall be interpreted to comply with the requirements
thereof.


 


7.                                       The
Issuer shall, on the business day prior to the intended date of such purchase,
notify BAS of the intention on the part of any affiliated purchaser, as
defined in Rule 10b-18, of the Issuer to purchase the Stock on any day if
such purchase is to be effected otherwise than through BAS pursuant to this
Repurchase Plan and BAS shall refrain from purchasing any Stock hereunder on
the day following receipt of such notice. The Issuer shall be solely
responsible for any purchases made by BAS as the Issuer’s agent prior to BAS’s
receipt of such written notice. Notwithstanding the foregoing, if BAS receives
such notice, BAS may nevertheless be entitled to make, and the Issuer
shall be solely responsible for, a purchase hereunder pursuant to a bid made
before such notice is received by BAS. The Issuer shall be solely responsible
for notifying BAS of any purchases of the Stock by any such affiliated
purchaser, and, without limiting the generality of Section 14 hereof, the
Issuer agrees to indemnify and hold harmless BAS for any failure to so notify
BAS or any error in any such notification. The Issuer also acknowledges that
any action that it takes that causes or influences any such affiliated
purchaser to purchase the Stock may cause the Daily Share Purchase Amount
to be reduced.


 


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8.                                       At the time of the Issuer’s execution of this
Repurchase Plan, the Issuer has not entered into a similar agreement with
respect to the Stock. The Issuer agrees not to enter into any such agreement
while this Repurchase Plan remains in effect.


 


9.                                       Except as specifically contemplated hereby, the
Issuer shall be solely responsible for compliance with all statutes, rules and
regulations applicable to the Issuer and the transactions contemplated hereby,
including, without limitation, reporting and filing requirements.


 


10.                                 This Repurchase Plan shall be governed by and
construed in accordance with the laws of the State of New York and may be
modified or amended only by a writing signed by the parties hereto.


 


11.                                 The Issuer represents and warrants that the
transactions contemplated hereby are consistent with the Issuer’s publicly
announced stock repurchase program (“Program”) and said Program has been duly
authorized by the Issuers’ board of directors.


 


12.                                 The
number of Total Plan Shares, other share amounts and prices, if applicable, set
forth in section 1(a) shall be adjusted automatically on a proportionate
basis to take into account any stock split, reverse stock split or stock
dividend with respect to the Stock or any change in capitalization with respect
to the Issuer that occurs during the term of this Repurchase Plan.


 


13.                                 Except
as contemplated by Section 3 (a) (3) of this Repurchase Plan,
the Issuer acknowledges and agrees that it does not have authority, influence
or control over any Purchase effected by BAS pursuant to this Repurchase Plan
and the Issuer will not attempt to exercise any authority, influence or control
over Purchases. BAS agrees not to seek advice from the Issuer with respect to
the manner in which it effects Purchases under this Repurchase Plan.


 


14.                                 The Issuer agrees to indemnify and hold harmless BAS
and its affiliates and their officers, directors employees and representatives
against any loss, claim,


 


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damage or liability, including
legal fees and expenses, arising out of any action or proceeding relating to
this Repurchase Plan or any Purchase, except to the extent that any such loss,
claim, damage or liability is determined in a non-appealable determination of a
court of competent jurisdiction to be solely the result of the indemnified
person’s willful misconduct.


 


15.                                 This
Repurchase Plan may be executed in any number of counterparts, all of
which, taken together, shall constitute one and the same agreement.


 


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IN WITNESS WHEREOF, the undersigned have signed this
Repurchase Plan as of the date first written above.


 


 


	
  Banc of America Securities
  LLC

  
	
   

  
	
   

  
	
  By: 

  	
  /s/ David Moran

  	
   

  	
   

  
	
   

  	
  Name:  David Moran

  	
   

  
	
   

  	
  Title:    Managing
  Director

  	
   

  
					



 


 


	
  PepsiAmericas, Inc.

  
	
   

  
	
   

  
	
  By:

  	
  /s/ Andrew R. Stark

  	
   

  	
   

  
	
   

  	
  Name: Andrew R. Stark

  	
   

  
	
   

  	
  Title:   Vice
  President and Treasurer

  	
   

  
					



 


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Appendix A


 


Request for Early Termination of Repurchase Plan


 


 


To: Banc of America Securities LLC


 


As of the date
hereof, PepsiAmericas, Inc. hereby requests termination of the Repurchase
Plan, dated February 28, 2006, in good faith and not as part of a
plan or scheme to evade the prohibitions of Rule 10b5-1 or other
applicable securities laws.


 


IN WITNESS WHEREOF, the undersigned has signed this Request for Early
Termination of Plan as of the date specified below.


 


 


	
  PepsiAmericas, Inc.

  	
  Banc of America Securities
  LLC

  
	
   

  	
   

  
	
   

  	
   

  
	
  By:

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Name:

  	
  Name:

  
	
   

  	
  Title:

  	
  Title:

  
						



 

















 


ANNEX 1


 


TRADING PARAMETERS


 


Trading Period: From and
including March 13,
2006 through May 5, 2006


 


Daily Share Purchase
Amount Lesser of  (a) 70,000 shares; (b) Exchange Act
Rule 10b-18(b)(4) limit; and (c) 33% of current trading day’s
volume.


 


TRADE ORDER


 


Subject to Paragraph 4 and Paragraph 6 of the
Repurchase Plan dated February 28, 2006 (the “Repurchase Plan”) to which
this Annex I is attached, each day during the Trading Period on which the New
York Stock Exchange is open for business, BAS shall use its best efforts to
effect a purchase or purchases (each, a “Purchase”) of the Daily Share Purchase
Amount, such Purchases cumulatively not to exceed the Total Plan Shares. Capitalized
terms used but not otherwise defined herein shall have the meaning assigned
thereto in the Repurchase Plan.


 


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