AGREEMENT BY AND AMONG CERTAIN WHITE DIRECTOR SHAREHOLDERS, THE COCA-COLA COMPANY COCA-COLA IBERIAN PARTNERS, S.A. And SPARK ORANGE LIMITED DATED AS OF AUGUST 6, 2015
Exhibit 2.4
AGREEMENT
BY AND AMONG
CERTAIN WHITE DIRECTOR SHAREHOLDERS,
THE COCA-COLA COMPANY
COCA-COLA IBERIAN PARTNERS, S.A.
And
SPARK ORANGE LIMITED
DATED AS OF AUGUST 6, 2015
THIS AGREEMENT, dated as of August 6, 2015 (the “Agreement”) by and among each of those persons whose names are listed in the table in the schedule to this Agreement (each of whom, a “White Director Shareholder”), The Coca-Cola Company, a Delaware corporation (“Red”), and Coca-Cola Iberian Partners, S.A., a company incorporated in Spain (registered number A-86.561.412), whose registered office is at Paseo de la Castellana, 000-X (Xxxxx xx Xxxxxxx), Xxxxx 0, 00000, Xxxxxx (“Olive”) and Spark Orange Limited, a private limited company incorporated in England (“Orange”).
RECITALS
WHEREAS, each of the White Director Shareholders are direct or indirect shareholders of Coca-Cola Enterprises, Inc. (“White”), a company incorporated in Delaware;
WHEREAS, in connection with the proposed combination of the businesses of White, Black and Olive (the “Combination Transactions”), White, Red, Olive and Orange have entered into the Transaction Master Agreement, dated as of the date hereof, by and among White, Red, Olive, Orange, Orange U.S. HoldCo, LLC (“US Holdco”) and Orange MergeCo, LLC (“US Mergeco”) (as may be amended from time to time, the “Transaction Master Agreement”). Capitalized terms used herein but not otherwise defined herein shall have the meaning given them in the Transaction Master Agreement;
WHEREAS, in connection with the Combination Transactions, White and Orange have entered into the Merger Agreement, dated as of the date hereof , by and among White, Orange, US Holdco and US Mergeco (as may be amended from time to time, the “Merger Agreement”);
WHEREAS, as a condition to the willingness of each of Olive, Orange and Red to enter into the Merger Agreement and the Transaction Master Agreement, Olive, Orange and Red have requested each White Director Shareholder to enter into this Agreement.
WARRANTIES AND UNDERTAKINGS
1.1 General. Each White Director Shareholder irrevocably and unconditionally undertakes, represents and warrants to each of Red and Olive that:
| (a) | he/she is the record or beneficial owner of (or is otherwise able to control the exercise of all rights attaching to, including voting rights and the ability to procure or prevent the transfer of), the number of shares of the common stock of White, including through the ownership of options and phantom stock units to purchase such common stock, as set out in the table in the schedule to this Agreement (the “Owned Shares”); |
| (b) | he/she does not own, beneficially or of record, any shares of capital stock or other securities convertible or exercisable into capital stock, of White other than the Owned Shares; |
| (c) | he/she shall not, directly or indirectly other than in accordance with the terms of the Transaction Master Agreement sell, transfer, charge, exercise, encumber, grant any option (excluding by way of cashless exercise of options that are permitted to be exercised) over or otherwise dispose of or permit the sale, transfer, charging or other disposition or creation or grant of any other encumbrance or option of or over all or any of the Shares or interest in the Shares between the date of the Transaction Master Agreement and the Completion, except by gift or bequest, pursuant to commitments existing on the date hereof or 10b5-1 stock trading plans in effect on the date hereof; provided that the foregoing shall not prohibit the exercise by a White Director Shareholder of outstanding stock options that have an expiration date prior to Completion; and |
| (d) | he/she has full power and authority and the right (free from any legal or other restrictions), and will at all times continue to have all relevant power and authority and the right, to enter into and perform his/her obligations under this Agreement in accordance with its terms, and this Agreement constitutes a legal, valid and binding obligation of such White Director Shareholder, enforceable against such White Director Shareholder in accordance with its terms. |
| 1.2 | Miscellaneous |
| (a) | This Agreement shall terminate with respect to all White Director Shareholders upon the valid termination of the Transaction Master Agreement in accordance with the terms thereof. |
| (b) | This Agreement shall terminate, with respect to each individual White Director Shareholder, upon the earlier of such White Director Shareholder ceasing to be a director of White or it is publicly disclosed that such director will not become a director of Orange. |
| (c) | This Agreement shall be governed by, construed and interpreted in accordance with the laws of the State of Delaware. Any matter, claim or dispute, whether contractual or non-contractual, arising out of or in connection with this Agreement is to be governed by and determined in accordance with the laws of the State of Delaware and shall be subject to the exclusive jurisdiction of: (i) the Delaware Court of Chancery, and (ii) any state appellate court therefrom within the State of Delaware (or, only if the Delaware Court of Chancery declines to accept jurisdiction over a particular matter, any state or federal court within the State of Delaware). |
SCHEDULE
| Director |
Number of Owned Shares of common stock of White and Registered Owner |
Number of Owned Shares that are beneficially owned1 |
||||||
| Xxxx X. Xxxxx |
1,299,367 | 5,335,325 | 2 | |||||
| Xxx Xxxxxxx |
0 | 19,097 | ||||||
| Xxxxxx Xxxxxx |
0 | 77,980 | ||||||
| L. Xxxxxxx Xxxxxx |
39,172 | 190,868 | 3 | |||||
| Xxxxx X. Xxxxxx |
10,000 | 64,758 | ||||||
| Xxxxxx X. Xxxxxxx |
10,000 | 48,359 | ||||||
| Xxxxxxx X. Xxxxxxx |
0 | 67,719 | 4 | |||||
| Xxxxxxxxx Xxxxxx |
0 | 23,140 | ||||||
| Xxxxxx X. Xxxx |
1,000 | 19,185 | ||||||
| Xxxxx Xxxxx |
0 | 17,750 | ||||||
| Xxxxxx X. Xxxxxxx |
10,000 | 66,394 | ||||||
| Xxxxxx X. Xxxx |
0 | 41,799 | ||||||
| 1 | Except as otherwise noted, represents stock units in the White Directors’ Deferred Compensation Plan that are vested but not distributable until the director has departed the board |
| 2 | Does not include stock units under the Directors’ Plan, but represents stock options, stock units and shares held in an irrevocable trust of which his spouse is trustee |
| 3 | Includes 12,399 stock options |
| 4 | Total includes 2,000 shares held indirectly by 1323876 Ontario, Inc. by Xxxxxxx Xxxxxxx |
IN WITNESS WHEREOF, the undersigned have executed this Agreement as of the day and year first above written.
| By: | /s/ Xxxx X. Xxxxx | |
| Xxxx X. Xxxxx | ||
| By: | /s/ Xxx Xxxxxxx | |
| Xxx Xxxxxxx | ||
| By: | /s/ Xxxxxx Xxxxxx | |
| Xxxxxx Xxxxxx | ||
| By: | /s/ L. Xxxxxxx Xxxxxx | |
| L. Xxxxxxx Xxxxxx | ||
| By: | /s/ Xxxxx X. Xxxxxx XX | |
| Xxxxx X. Xxxxxx XX | ||
| By: | /s/ Xxxxxx X. Xxxxxxx | |
| Xxxxxx X. Xxxxxxx | ||
| By: | /s/ Xxxxxxx X. Xxxxxxx | |
| Xxxxxxx X. Xxxxxxx | ||
| By: | /s/ Xxxxxxxxx Xxxxxx | |
| Xxxxxxxxx Xxxxxx | ||
| By: | /s/ Xxxxxx X. Xxxx | |
| Xxxxxx X. Xxxx | ||
| By: | /s/ Xxxxx Xxxxx | |
| Xxxxx Xxxxx | ||
| By: | /s/ Xxxxxx X. Xxxxxxx | |
| Xxxxxx X. Xxxxxxx | ||
| By: | /s/ Xxxxxx Xxxx | |
| Xxxxxx Xxxx | ||
| COCA-COLA IBERIAN PARTNERS, S.A. | ||
| By: | /s/ Sol Daurella Comadran | |
| Name: Sol Daurella Comadran | ||
| Title: Chairman | ||
| THE COCA-COLA COMPANY | ||
| By: | /s/ Xxxxxx X. Xxxxxx, Xx. | |
| Name: Xxxxxx X. Xxxxxx, Xx. | ||
| Title: Vice President | ||
| SPARK ORANGE LIMITED | ||
| By: | /s/ Xxxxxxx Xxxxx Nivela | |
| Name: Xxxxxxx Xxxxx Nivela | ||
| Title: Director | ||
