EX-10.5






Exhibit 10.5




AMENDMENT NO. 1 TO LIMITED LIABILITY COMPANY AGREEMENT




     This Amendment No.1 is entered into as of the 1st day of January, 2002 by and among
Pepsi Bottling Holdings, Inc. (“Pepsi Holdings”), a Delaware corporation, Bottling Group Holdings,
Inc. (“PBG Holdings”), a Delaware corporation, and The Pepsi Bottling Group, Inc. (“PBG”), a
Delaware corporation.



WITNESSETH:




     WHEREAS, the parties have previously entered into that certain Amended and Restated Limited
Liability Company Agreement dated as of March 30, 1999 (the “LLC Agreement”); and



     WHEREAS, Pepsi Holdings, PBG Holdings and PBG desire to amend the provisions of the LLC
Agreement in the manner set forth in this Amendment;



     NOW, THEREFORE, in consideration of the mutual covenants and agreements hereinafter set forth,
the parties agree as follows:




	1.	 	Definitions. Terms used herein and not otherwise defined herein shall have the
meanings set forth in the LLC Agreement.
	 
	2.	 	Certain Special Provisions Regarding Certain Options. The following provision is
hereby added to the LLC Agreement as Section 6.8:
	 
	 	 	“Section 6.8. Special Provisions Regarding Certain Options.






	 	(a)	 	Upon the exercise of any option to purchase stock of PepsiCo, Inc. (“PepsiCo”) granted
to any employee or former employee of the Company (other than Company employees currently
employed by PepsiCo, PepsiAmericas, Inc., Pepsi Bottling Ventures, LLC or, upon notice to
PBG, any other entity that PepsiCo designates as an anchor bottler) and which are exercised
on or after January 1, 2002, (i) in accordance with Treasury Regulations Section 1.1032-3,
Pepsi Holdings will be treated as making a Capital Contribution to the Company in an amount
equal to the deduction described in clause (ii) below and, accordingly, Pepsi Holding’s
Capital Account will be increased by such amount; and (ii) the deduction attributable to
such exercise will be claimed by the Company and allocated to Pepsi Holdings and,
accordingly, Pepsi Holding’s Capital Account will be decreased by the amount of such
deduction.
	 
	 	(b)	 	Upon the exercise of any option to purchase stock of PepsiCo granted to any employee or
former employee of New Bern Transport Corporation, a wholly owned subsidiary of the Company
(“New Bern”) (other than former New Bern employees currently employed by PepsiCo,
PepsiAmericas, Inc., Pepsi Bottling Ventures, LLC or, upon notice to PBG, any other entity
that PepsiCo designates as an anchor bottler) and which are exercised on or after January
1,2002, (i) in accordance with Treasury Regulations Section 1.1032-3, Pepsi Holdings will
be treated as making a Capital Contribution to the Company in an amount equal to the amount
described in clause (ii) below and, accordingly, Pepsi Holding’s Capital Account will be
increased by such amount (and the Company, in turn, will be treated as making a capital
contribution to New Bern in the same amount); and (ii) an amount of items of loss or
deduction of the Company equal to the New Bern Deduction will be allocated to Pepsi
Holdings and, accordingly, Pepsi Holding’s Capital Account will be decreased by the amount
of such items of loss or deduction. “New Bern Deduction” means, with respect to the
exercise of any option described in the preceding sentence, the deduction claimed by New
Bern that is attributable to such exercise.
	 
	 	(c)	 	If, as a result of a Final Determination (as defined below), the adjustments to Pepsi
Holdings’ Capital Account pursuant to Section 6.8(a) or (b) are not respected, then,
beginning in the Fiscal Year in which such Final Determination occurs (i) if the net
adjustment results in a decrease to Pepsi 




 









 






	 	 	 	Holdings’ Capital Account, items of income or
gain of the Company equal in amount to such decrease will be allocated to Pepsi Holdings
and (ii) if the net adjustment results in an increase to Pepsi Holdings’ Capital Account,
then items of loss or deduction of the Company equal in amount to such increase will be
allocated to Pepsi Holdings. “Final Determination” means (A) a “determination” as defined
in Section 1313 (a) of the Code, (B) the date of acceptance by or on behalf of the IRS of
Form 870-AD (or any successor form thereto), as a final resolution of Tax
liability for any Taxable period, except that a Form 870-AD (or successor form thereto) that
reserves the right of the taxpayer to file a claim for refund or the right of the IRS to
assert a further deficiency shall not constitute a Final Determination with respect to the
item or items so reserved; or (C) the payment of Tax, or the filing of an amended Tax
return, by the Company or any party to this Agreement, whichever is responsible for payment
of such Tax or filing of such return, with respect to any item disallowed or adjusted by a
Taxing authority, provided that the party paying such Tax or filing such return has notified
the other parties to this Agreement that it has determined that no action should be taken to
recoup such disallowed or adjusted item.”






	3.	 	Distributions. Section 6.6 of the LLC Agreement is hereby amended by adding the
following after subsection (b);






	 	“(c) 	 	The aggregate cash distributions referred to in the first proviso of Section 6.6(a)
shall be determined and made on an annual basis and the Company shall distribute to Pepsi
Holdings its pro rata share of such annual distributions no later than 30 days after the
date on which the members are furnished with tax information, as provided in Section
7.2(b), for the taxable year with respect to which such distributions were determined.”






	4.	 	Miscellaneous. (a) The provisions of Articles XIII and XIV of the LLC Agreement shall
be incorporated by reference herein and each reference therein to the LLC Agreement shall
apply to this Amendment as if this Amendment were referred to therein.
	 
	 	 	(b) Except to the extent amended or supplemented as set forth in this Amendment, all provisions
of the LLC Agreement are and shall remain in full force and effect and are hereby ratified and
confirmed in all respects, and the execution, delivery and effectiveness of this Amendment shall
not operate as a waiver or amendment of any provision of the LLC Agreement not specifically
amended or supplemented by this Amendment.




 









 










IN WITNESS WHEREOF, the parties have executed and delivered this Amendment as of the day and year
first written above.




	 	 	 	 	 
	 	Pepsi Bottling Holdings, Inc.

 	 
	 	By:  	/s/ Matthew M. McKenna
 	 
	 	 	Its:      President 	 
	 	 	 	 
	 
	 	Bottling Group Holdings, Inc.

 	 
	 	By:  	/s/ Geoffrey Kupferschmid
 	 
	 	 	Its:      Vice President 	 
	 	 	 	 
	 
	 	Pepsi Bottling Group, Inc.

 	 
	 	By:  	/s/ Steven M. Rapp
 	 
	 	 	Its:      Vice President