EXHIBIT D (99.4)
MASTER AMENDMENT
TO PARTNERSHIP AGREEMENT, MANAGEMENT AGREEMENT
AND DEFINITION AND ADJUSTMENT AGREEMENT
THIS MASTER AMENDMENT (the "Amendment") with respect to the Partnership
Agreement, Management Agreement and Definition and Adjustment Agreement referred
to below is made and entered into as of the 2nd day of January, 2002 by and
among PIEDMONT COCA-COLA BOTTLING PARTNERSHIP (formerly known as Carolina
Coca-Cola Bottling Partnership), a Delaware general partnership (the
"Partnership"), CCBC OF WILMINGTON, INC., a Delaware corporation and
wholly-owned subsidiary of the Partnership ("CCBC Wilmington"), THE COCA-COLA
COMPANY, a Delaware corporation ("KO"), PIEDMONT PARTNERSHIP HOLDING COMPANY, a
Delaware corporation, indirect wholly-owned subsidiary of KO and successor in
interest to Carolina Coca-Cola Holding Company, The Coastal Coca-Cola Bottling
Company and Eastern Carolina Coca-Cola Bottling Company, Inc. ("KO Sub"),
COCA-COLA BOTTLING CO. CONSOLIDATED, a Delaware corporation and successor in
interest to Coca-Cola Bottling Co. Affiliated, Inc. ("CCBCC") and COCA-COLA
VENTURES, INC., a Delaware corporation, wholly-owned subsidiary of CCBCC and
successor in interest to Palmetto Bottling Company and Fayetteville Coca-Cola
Bottling Company ("CCBCC Sub").
Statement of Purpose
KO Sub and CCBCC Sub are equal partners in the Partnership and are parties
to that certain Partnership Agreement, dated as of July 2, 1993 (as amended by
that certain First Amendment, dated August 5, 1993, and by that certain Second
Amendment, dated August 12, 1993, the "Partnership Agreement"). CCBCC serves as
the manager of the day-to-day operation of the business of the Partnership
pursuant to the terms and conditions of that certain Management Agreement, dated
as of July 2, 1993, by and among CCBCC, the Partnership, CCBC Wilmington, KO Sub
and CCBCC Sub (as amended by that certain First Amendment, dated as of January
1, 2001, the "Management Agreement").
Simultaneously with the execution and delivery of the Partnership Agreement
and the Management Agreement, the Partnership, CCBC Wilmington, CCBCC, CCBCC
Sub, KO and KO Sub entered into that certain Definition and Adjustment
Agreement, dated as of July 2, 1993 (the "DAA Agreement"), which contains
certain defined terms used in the Partnership Agreement and the Management
Agreement and provided for certain adjustments that were made in connection with
the initial capitalization of the Partnership.
Pursuant to that certain Securities Purchase Agreement, dated as of even
date herewith, between CCBCC Sub and KO Sub, CCBCC Sub will purchase from KO
Sub, and KO Sub will sell to CCBCC Sub, a 4.651% interest in the capital,
profits and losses of the Partnership, including, without limitation, 9.302% of
KO Sub's Capital Account, KO Sub's rights to allocations of net profit and net
loss and distributions of cash flow and capital items of the Partnership (the
"Purchase Transaction"), such that immediately after the consummation of the
Purchase Transaction, CCBCC Sub and KO Sub will have a 54.651% and 45.349%
respective interest in the capital, profits and losses of the Partnership. In
connection with the Purchase Transaction, the parties hereto desire to consent
to the Purchase Transaction and to amend the Partnership Agreement, the
Management Agreement and the DAA Agreement to, among other things, (a) update
certain addresses contained therein, (b) adjust the relative ownership
percentages of the Partners to give effect to the Purchase Transaction as more
fully described herein, (c) revise the liquidation mechanics upon dissolution of
the Partnership to reflect the current intention of the
parties and (d) amend the definition of "Xxxxxxxx Change of Control" to
address certain estate planning changes in the Xxxxxxxx family's holdings.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto hereby agree as
follows:
1. Capitalized Terms. All capitalized terms used and not defined herein
shall have the meanings given thereto in the Partnership Agreement.
2. Consent to Purchase Transaction. Each of the parties hereto hereby
consents to the Purchase Transaction and each of the Partnership, KO Sub and
CCBCC Sub hereby waives any right to object to the Purchase Transaction under
Section 16.1(a) of the Partnership Agreement as a transfer of less than KO Subs
entire Interest.
3. Amendments to Partnership Agreement.
(a) Section 3.2 of the Partnership Agreement is hereby amended by deleting
the existing Section 3.2 in its entirety and inserting the following in lieu
thereof:
3.2. Principal Office. The principal office of the Partnership shall
be located at 0000 Xxxx-Xxxx Xxxxx, Xxxxxxxxx, Xxxxx Xxxxxxxx
00000-0000, or at such other place as may be designated from time to
time by the Executive Committee.
(b) Section 6 of the Partnership Agreement is hereby amended by deleting
the existing Section 6 in its entirety and inserting the following in lieu
thereof:
Section 6. Partnership Interests. Notwithstanding any adjustment in
the Partners Capital Account balances, each Partners Interest in the
Partnership shall be as follows:
KO Sub 45.349%
Ventures 54.651%
(c) Paragraphs (b) and (c) of Section 16.2 of the Partnership Agreement are
hereby amended by deleting the existing paragraphs (b) and (c) in their entirety
and inserting the following in lieu thereof:
(b) The Partner receiving the Sale Notice shall have an option for a
period of one hundred twenty (120) days from receipt of the Sale
Notice to agree to purchase from the Selling Party the Interest
proposed to be transferred at the same price (whether in cash or the
same type of non-cash consideration as is offered by the Third Party)
and upon the same terms and subject to the conditions contained in the
Sale Notice; provided, however, that if the specified consideration is
not cash and the Partner receiving the Sale Notice does not agree with
the Selling Partners good faith determination of the fair market value
of such non-cash consideration, then the Partner receiving the Sale
Notice shall require that the fair market value of such non-cash
consideration (and the resultant purchase price for the offered
Interest) be
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determined by an appraisal firm appropriate for the type
of specified non-cash consideration by giving written notice to the
Selling Partner to such effect prior to the thirtieth (30th) day after
that date that it received such Sale Notice. Such appraisal firm shall
be selected in the same manner provided for the selection of
investment banking firms in Section 18.3. In the event an appraisal
firm is retained to determine the purchase price for the offered
Interest, the option period described in this Section 16.2(b) shall
expire on the later of (i) the date that is thirty (30) days after the
date the opinion of the appraisal firm regarding the value of the
Interests is delivered to the Partner receiving the Sale Notice and
(ii) the date that is one hundred twenty (120) days from receipt of
the Sale Notice. The costs and expenses of such appraisal firm shall
be borne by the Partnership.
(c) The Partner receiving the Sale Notice may exercise the purchase
option described in Section 16.2(b) by giving written notice to the
Selling Partner to such effect, prior to the expiration of the option
period described in Section 16.2(b). Such written notice shall specify
the date for the closing of the purchase of such Interests which shall
be at least ten (10) days, but no more than thirty (30) days, after
the date such Partner gives such written notice. The closing of such
sale shall occur as provided in Section 19.3.
(e) Paragraph (d) of Section 16.2 of the Partnership Agreement is hereby
amended by deleting the words "thirty (30) day" contained therein.
(f) Section 20.3 of the Partnership Agreement is hereby amended by deleting
the existing Section 20.3 in its entirety and inserting the following in lieu
thereof:
20.3. Intentionally Deleted.
(g) Section 20.4 of the Partnership Agreement is hereby amended by deleting
the existing Section 20.4 in its entirety and inserting the following in lieu
thereof:
20.4. Intentionally Deleted.
(h) Section 20.5 of the Partnership Agreement is hereby amended by deleting
the existing Section 20.5 in its entirety and inserting the following in lieu
thereof:
20.5. Procedures on Liquidation. Upon the occurrence of a Dissolving
Event, the Partnership shall continue solely for the purposes of
winding up its affairs in an orderly manner, liquidating its assets
and satisfying the claims of its creditors and Partners, and the
Executive Committee shall not take any action that is inconsistent
with, or not necessary to or appropriate for, the winding up of the
Partnership's business and affairs. The Executive Committee shall be
responsible for overseeing the winding up and dissolution of the
Partnership, shall take full account of the Partnership's liabilities
and the Partnership's
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assets, shall cause the Partnerships assets to be liquidted as
promptly as is consistent with obtaining the fair value thereof,
subject to any tax or legal considerations and shall cause
the proceeds therefrom, to the extent sufficient therefor, to be
applied or distributed in the following order and priority:
(a) to the payment of the debts and liabilities of the Partnership and
to the expenses of liquidation in the order of priority as provided by
law, and to the establishment of any reserves which the Executive
Committee deems necessary for any contingent or unforeseen liabilities
or obligations of the Partnership; then to
(b) the repayment of any liabilities or debts, other than Capital
Accounts, of the Partnership to any of the Partners; then to
(c) each Partner in proportion to and to the extent of its positive
Capital Account balances after the Capital Accounts of the Partners
have been adjusted for the allocation of net profits and net loss
under Section 9 and other adjustments as may be required under Code
regulation 1.704-1(b)(2)(iv); then to
(d) the Partners in proportion to their Interests in the Partnership.
(i) Section 20.6 of the Partnership Agreement is hereby amended by deleting
the reference to "Sections 20.3 and 20.4" in the existing Section 20.6 and
inserting a reference to "Section 20.5" in lieu thereof.
(j) Paragraph (b) of Section 25.2 of the Partnership Agreement is hereby
amended by deleting the existing paragraph (b) in its entirety and inserting the
following in lieu thereof:
(b) If to Ventures:
Coca-Cola Bottling Co. Consolidated
Coca-Cola Corporate Center
0000 Xxxx-Xxxx Xxxxx (28211-3481)
X.X. Xxx 00000
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000-0000
Attention: Chief Financial Officer
Telecopy No.: (000) 000-0000
with a copy to:
Xxxxxxx Xxxxxxxxx Xxxxxxx & Xxxxxxx, L.L.P.
Bank of America Corporate Center
000 Xxxxx Xxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000-0000
Attention: Xxxxx X. Xxxxx, Esq.
Telecopy No.: (000) 000-0000
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4. Amendments to Management Agreement.
(a) Paragraph (a) of Section 15.01 of the Management Agreement is hereby
amended by deleting the existing paragraph (a) in its entirety and inserting the
following in lieu
thereof:
(a) If to Partnership:
Coca-Cola Bottling Co. Consolidated
Coca-Cola Corporate Center
0000 Xxxx-Xxxx Xxxxx (28211-3481)
X.X. Xxx 00000
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000-0000
Attention: Chief Financial Officer
Telecopy No.: (000) 000-0000
With a copy to the addresses listed in (b) below.
(b) Paragraph (c) of Section 15.01 of the Management Agreement is hereby
amended by deleting the existing paragraph (c) in its entirety and inserting the
following in lieu thereof:
(c) If to Manager or Ventures:
Coca-Cola Bottling Co. Consolidated
Coca-Cola Corporate Center
0000 Xxxx-Xxxx Xxxxx (28211-3481)
X.X. Xxx 00000
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000-0000
Attention: Chief Financial Officer
Telecopy No.: (000) 000-0000
with a copy to:
Xxxxxxx Xxxxxxxxx Xxxxxxx & Xxxxxxx, L.L.P.
Bank of America Corporate Center
000 Xxxxx Xxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000-0000
Attention: Xxxxx X. Xxxxx, Esq.
Telecopy No.: (000) 000-0000
5. Amendments to DAA Agreement.
(a) Section 1.1 of the DAA Agreement is hereby amended by deleting the
existing definition of "Xxxxxxxx Change of Control" in its entirety and
inserting the following in lieu thereof:
A "Xxxxxxxx Change of Control" shall be deemed to have occurred if (i)
J. Xxxxx Xxxxxxxx, Xx., the executors and/or trustees under
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his will, J. Xxxxx Xxxxxxxx, III, and/or any family limited
partnerships, limited liability companies and/or corporations owned
and controlled directly or indirectly by such persons do not
collectively own all of the 712,796 shares of Class B Common Stock of
CCBCC owned by J. Xxxxx Xxxxxxxx, , Jr. as of the date of the DAA
Agreement, or (ii) the trusts which are parties to that certain
Shareholder's Agreement dated as of December 13, 1988 among KO, J.
Xxxxx Xxxxxxxx, Xx., J. Xxxxx Xxxxxxxx, III and such trusts, together
with any family limited partnerships, limited liability companies
and/or corporations owned directly or indirectly by the trusts and/or
beneficiaries of such trusts, hold less than fifty percent (50%) of
the shares of Class B Common Stock of CCBCC held by them, in the
aggregate, as of January 27, 1989. For purposes of this definition,
"own" means right to control and not necessarily beneficial ownership.
(b) Section 7.8 of the DAA Agreement is hereby amended by deleting the
addresses for CCBCC, Ventures, Fayetteville and Palmetto set forth in the
existing Section 7.8 in their entirety and inserting the following in lieu
thereof:
If to CCBCC or Ventures to:
Coca-Cola Bottling Co. Consolidated
Coca-Cola Corporate Center
0000 Xxxx-Xxxx Xxxxx (28211-3481)
X.X. Xxx 00000
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000-0000
Attention: Chief Financial Officer
Telecopy No.: (000) 000-0000
with a copy to:
Xxxxxxx Xxxxxxxxx Xxxxxxx & Xxxxxxx, L.L.P.
Bank of America Corporate Center
000 Xxxxx Xxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000-0000
Attention: Xxxxx X. Xxxxx, Esq.
Telecopy No.: (000) 000-0000
6. Effect of the Amendment. Except for the amendments contemplated hereby,
the Partnership Agreement, the Management Agreement and the DAA Agreement shall
be and remain in full force and effect. The amendments granted herein are
specific and limited and shall not constitute a modification, acceptance or
waiver of any other provision of the Partnership Agreement, the Management
Agreement, the DAA Agreement or any other document or instrument entered into in
connection therewith or a further modification, acceptance or waiver of the
provisions set forth therein.
7. Captions. The captions and section numbers appearing in this Amendment
are inserted only as a matter of convenience and in no way define, limit,
construe or otherwise describe the scope or intent of the sections of this
Amendment.
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8. Binding Effect. This Amendment shall inure to the benefit of and be
binding upon the parties hereto and their successors and permitted assigns.
9. Severability. If any one or more provisions of this Amendment shall be
invalid, illegal or unenforceable in any respect, the validity, legality and
enforceability of the remaining provisions contained herein shall not in any way
be affected or impaired; provided, however, that in such case the parties hereto
agree to use their best efforts to achieve the purpose of the invalid provision
by a new legally valid provision.
10. Counterparts. This Amendment may be executed in separate counterparts,
each of which when executed and delivered is an original but all of which taken
together constitute one and the same instrument.
11. Fax Transmission. A facsimile, telecopy or other reproduction of this
Amendment may be executed by one or more parties hereto, and an executed copy of
this Amendment may be delivered by one or more parties hereto by facsimile or
similar instantaneously electronic transmission devise pursuant to which the
signature of or on behalf of such party can be seen, and such execution and
delivery shall be considered valid, binding and effective for all purposes. At
the request of any party hereto, all parties hereto agree to execute an original
of this Amendment as well as any facsimile, telecopy or other reproduction
hereof.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed as of the date and year first above written.
PIEDMONT COCA-COLA BOTTLING PARTNERSHIP
By: PIEDMONT PARTNERSHIP HOLDING
COMPANY, its General Partner
By: /s/ XXXX X. XXXXXX
-----------------------------------------
Name: Xxxx X. Xxxxxx
Title: President
By: COCA-COLA VENTURES, INC., its General
Partner
By: /s/ XXXXX X. XXXXXX
-----------------------------------------
Xxxxx X. Xxxxxx
Vice President
CCBC OF WILMINGTON, INC.
By: /s/ XXXXX X. XXXXXX
-----------------------------------------
Xxxxx X. Xxxxxx
Vice President
THE COCA-COLA COMPANY
By: /s/ XXXX X. XXXXXX
-----------------------------------------
Name: Xxxx X. Xxxxxx
Title: Senior Vice President and
Chief Financial Officer
PIEDMONT PARTNERSHIP HOLDING COMPANY
By: /s/ XXXX X. XXXXXX
-----------------------------------------
Name: Xxxx X. Xxxxxx
Title: President
[Signature Pages Continue]
COCA-COLA BOTTLING CO. CONSOLIDATED
By: /s/ XXXXX X. XXXXXX
-----------------------------------------
Xxxxx X. Xxxxxx
Vice President
COCA-COLA VENTURES, INC.
By: /s/ XXXXX X. XXXXXX
-----------------------------------------
Xxxxx X. Xxxxxx
Vice President
