EXHIBIT 1.1
Coca-Cola Bottling Co. Consolidated
UNDERWRITING AGREEMENT
New York, New York
November 1, 1995
To the Representatives
named in Schedule I
hereto of the Under-
writers named in
Schedule II hereto
Dear Sirs:
Coca-Cola Bottling Co. Consolidated, a Delaware
corporation (the "Company"), proposes to sell to the underwriters named
in Schedule II hereto (the "Underwriters"), for whom you (the
"Representatives") are acting as representatives, (1) the principal
amount, if any, of its debt securities (including debt securities
convertible into common stock or preferred stock of the Company
("Convertible Debt") identified in Schedule I hereto (such debt
securities, including Convertible Debt, the "Debt Securities"), to be
issued under an indenture (the "Indenture") dated as of July 20, 1994,
between the Company and NationsBank of Georgia, National Association, as
trustee (the "Trustee"), as supplemented and restated by a Supplemental
Indenture dated March 3, 1995 between the Company and the Trustee (all
references herein to the "Indenture" are to the Indenture as so
supplemented, and all references to the "Trustee" are to Citibank, N.A.,
which succeeded to all of the rights, powers, duties and obligations of
the initial Trustee under the Indenture by agreement of all parties,
effective September 15, 1995); (2) the shares of common stock, $1.00 par
value, of the Company, if any, identified in Schedule I hereto (the
Common Stock"); (3) the shares of Class C common stock, $1.00 par value,
of the Company, if any, identified in Schedule I hereto (the "Class C
Common Stock"); (4) the shares of preferred stock, $0.01 par value, of
the Company, if any, identified in Schedule I hereto (the "Preferred
Stock"); (5) the shares of convertible preferred stock, $100.00 par
value, of the
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Company, if any, identified in Schedule I hereto (the "Convertible Preferred
Stock"); and/or (6) the shares of non-convertible preferred stock, $100.00 par
value, of the Company, if any, identified in Schedule I hereto (the
"Nonconvertible Preferred Stock"). The Debt Securities, Common Stock, Class C
Common Stock, Preferred Stock, Convertible Preferred Stock, and Nonconvertible
Preferred Stock may be sold either separately or as units (the "Units") together
with any of the foregoing. The Debt Securities, Common Stock, Class C Common
Stock, Preferred Stock, Convertible Preferred Stock, and Nonconvertible
Preferred Stock described in Schedule I hereto shall collectively be referred to
herein as the "Securities". The Common Stock, Class C Common Stock, Preferred
Stock, Convertible Preferred Stock, and Nonconvertible Preferred Stock described
in Schedule I hereto shall collectively be referred to herein as the "Equity
Securities." If the firm or firms listed in Schedule II hereto include only the
firm or firms listed in Schedule I hereto, then the terms "Underwriters" and
"Representatives", as used herein, shall each be deemed to refer to such firm or
firms.
1. Representations and Warranties. The Company
represents and warrants to, and agrees with, each Underwriter as set
forth below in this Section 1. Certain terms used in this Section 1 are
defined in paragraph (c) hereof.
(a) If the offering of the Securities is a Delayed
Offering (as specified in Schedule I hereto), paragraph (i)
below is applicable and, if the offering of the Securities is a
Non-Delayed Offering (as so specified), paragraph (ii) below is
applicable.
(i) The Company meets the
requirements for the use of Form S-3 under
the Securities Act of 1933 (the "Act") and
has filed with the Securities and Exchange
Commission (the "Commission") a registration
statement (the file number of which is set
forth in Schedule I hereto) on such Form,
including a basic prospectus, for
registration under the Act of the offering
and sale of the Securities. The Company may
have filed one or more amendments thereto,
and may have used a Preliminary Final
Prospectus, each of which has previously been
furnished to you. Such registration
statement, as so amended, has become
effective. The offering of the
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Securities is a Delayed Offering and,
although the Basic Prospectus may not include
all the information with respect to the
Securities and the offering thereof required
by the Act and the rules thereunder to be
included in the Final Prospectus, the Basic
Prospectus includes all such information
required by the Act and the rules thereunder
to be included therein as of the Effective
Date. The Company will next file with the
Commission pursuant to Rules 415 and
424(b)(2) or (5) a final supplement to the
form of prospectus included in such
registration statement relating to the
Securities and the offering thereof. As
filed, such final prospectus supplement shall
include all required information with respect
to the Securities and the offering thereof
and, except to the extent the Representatives
shall agree in writing to a modification,
shall be in all substantive respects in the
form furnished to you prior to the Execution
Time or, to the extent not completed at the
Execution Time, shall contain only such
specific additional information and other
changes (beyond that contained in the Basic
Prospectus and any Preliminary Final
Prospectus) as the Company has advised you,
prior to the Execution Time, will be included
or made therein.
(ii) The Company meets the
requirements for the use of Form S-3 under
the Act and has filed with the Commission a
registration statement (the file number of
which is set forth in Schedule I hereto) on
such Form, including a basic prospectus, for
registration under the Act of the offering
and sale of the Securities. The Company may
have filed one or more amendments thereto,
including a Preliminary Final Prospectus,
each of which has previously been furnished
to you. The Company will next file with the
Commission either (x) a final prospectus
supplement relating to the Securities in
accordance with Rules 430A and 424(b)(1) or
(4), or (y) prior to the effectiveness of
such registration statement, an amendment to
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such registration statement, including the
form of final prospectus supplement. In the
case of clause (x), the Company has included
in such registration statement, as amended at
the Effective Date, all information (other
than Rule 430A Information) required by the
Act and the rules thereunder to be included
in the Final Prospectus with respect to the
Securities and the offering thereof. As
filed, such final prospectus supplement or
such amendment and form of final prospectus
supplement shall contain all Rule 430A
Information, together with all other such
required information, with respect to the
Securities and the offering thereof and,
except to the extent the Representatives
shall agree in writing to a modification,
shall be in all substantive respects in the
form furnished to you prior to the Execution
Time or, to the extent not completed at the
Execution Time, shall contain only such
specific additional information and other
changes (beyond that contained in the Basic
Prospectus and any Preliminary Final
Prospectus) as the Company has advised you,
prior to the Execution Time, will be included
or made therein.
(b) On the Effective Date, the Registration Statement
did or will, and when the Final Prospectus is first filed (if
required) in accordance Rule 424(b) and on the Closing Date,
the Final Prospectus (and any supplement thereto) will, comply
in all material respects with the applicable requirements of
the Act, the Securities Exchange Act of 1934 (the "Exchange
Act") and the Trust Indenture Act of 1939 (the "Trust Indenture
Act") and the respective rules thereunder; on the Effective
Date, the Registration Statement did not or will not contain
any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary in
order to make the statements therein not misleading; on the
Effective Date and on the Closing Date the Indenture did or
will comply in all material respects with the requirements of
the Trust Indenture Act and the rules thereunder; and, on the
Effective Date, the Final Prospectus, if not filed pursuant to
Rule 424(b), did not or will not, and on the date of any filing
pursuant to Rule 424(b)
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and on the Closing Date, the Final Prospectus (together with any
supplement thereto) will not, include any untrue statement of a
material fact or omit to state a material fact necessary in
order to make the statements therein, in the light of the
circumstances under which they were made, not misleading;
provided, however, that the Company makes no representations or
warranties as to (i) that part of the Registration Statement
which shall constitute the Statement of Eligibility and
Qualification (Form T-1) under the Trust Indenture Act of the
Trustee or (ii) the information contained in or omitted from
the Registration Statement or the Final Prospectus (or any
supplement thereto) in reliance upon and in conformity with
information furnished in writing to the Company by or on behalf
of any Underwriter through the Representatives specifically for
inclusion in the Registration Statement or the Final Prospectus
(or any supplement thereto).
(c) The terms which follow, when used in this Agreement, shall
have the meanings indicated. The term "the Effective Date"
shall mean each date that the Registration Statement and any
post-effective amendment or amendments thereto became or become
effective and each date after the date hereof on which a
document incorporated by reference in the Registration
Statement is filed. "Execution Time" shall mean the date and
time that this Agreement is executed and delivered by the
parties hereto. "Basic Prospectus" shall mean the prospectus
referred to in paragraph (a) above contained in the
Registration Statement at the Effective Date including, in the
case of a Non-Delayed Offering, any Preliminary Final
Prospectus. "Preliminary Final Prospectus" shall mean any
preliminary prospectus supplement to the Basic Prospectus which
describes the Securities and the offering thereof and is used
prior to filing of the Final Prospectus. "Final Prospectus"
shall mean the prospectus supplement relating to the Securities
that is first filed pursuant to Rule 424(b) after the Execution
Time, together with the Basic Prospectus or, if, in the case of
a Non-Delayed Offering, no filing pursuant to Rule 424(b) is
required, shall mean the form of final prospectus relating to
the Securities, including the Basic Prospectus, included in the
Registration Statement at the Effective Date. "Registration
Statement" shall mean the registration statement referred to in
paragraph (a) above, including incorporated documents,
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exhibits and financial statements, as amended at the Execution Time
(or, if not effective at the Execution Time, in the form in
which it shall become effective) and, in the event any
post-effective amendment thereto becomes effective prior to the
Closing Date (as hereinafter defined), shall also mean such
registration statement as so amended. Such term shall include
any Rule 430A Information deemed to be included therein at the
Effective Date as provided by Rule 430A. "Rule 415", "Rule
424", "Rule 430A" and "Regulation S-K" refer to such rules or
regulation under the Act. "Rule 430A Information" means
information with respect to the Securities and the offering
thereof permitted to be omitted from the Registration Statement
when it becomes effective pursuant to Rule 430A. Any reference
herein to the Registration Statement, the Basic Prospectus, any
Preliminary Final Prospectus or the Final Prospectus shall be
deemed to refer to and include the documents incorporated by
reference therein pursuant to Item 12 of Form S-3 which were
filed under the Exchange Act on or before the Effective Date of
the Registration Statement or the issue date of the Basic
Prospectus, any Preliminary Final Prospectus or the Final
Prospectus, as the case may be; and any reference herein to the
terms "amend", "amendment" or "supplement" with respect to the
Registration Statement, the Basic Prospectus, any Preliminary
Final Prospectus or the Final Prospectus shall be deemed to
refer to and include the filing of any document under the
Exchange Act after the Effective Date of the Registration
Statement or the issue date of the Basic Prospectus, any
Preliminary Final Prospectus or the Final Prospectus, as the
case may be, deemed to be incorporated therein by reference. A
"Non-Delayed Offering" shall mean an offering of securities
which is intended to commence promptly after the effective date
of a registration statement, with the result that, pursuant to
Rules 415 and 430A, all information (other than Rule 430A
Information) with respect to the securities so offered must be
included in such registration statement at the effective date
thereof. A "Delayed Offering" shall mean an offering of
securities pursuant to Rule 415 which does not commence
promptly after the effective date of a registration statement,
with the result that only information required pursuant to Rule
415 need be included in such registration statement at the
effective date thereof with respect to the securities so
offered. Whether the
7
offering of the Securities is a Non-Delayed Offering or a Delayed
Offering shall be set forth in Schedule I hereto.
2. Purchase and Sale. (a) Subject to the terms and conditions
and in reliance upon the representations and warranties herein set
forth, the Company agrees to sell to each Underwriter, and each
Underwriter agrees, severally and not jointly, to purchase from the
Company, at the purchase price set forth in Schedule I hereto the
principal amount or number of shares or Units of Securities set forth
opposite such Underwriter's name in Schedule II hereto, except that, in
the case of Debt Securities, if Schedule I hereto provides for the sale
of such Debt Securities pursuant to delayed delivery arrangements, the
respective principal amount of Securities to be purchased by the
Underwriters shall be as set forth in Schedule II hereto less the
respective amounts of Contract Securities determined as provided below.
Securities to be purchased by the Underwriters are herein sometimes
called the "Underwriters' Securities" and Securities to be purchased
pursuant to Delayed Delivery Contracts as hereinafter provided are
herein called "Contract Securities".
(b) If so provided in Schedule I hereto, the
Underwriters are authorized to solicit offers to purchase Securities
from the Company pursuant to delayed delivery contracts ("Delayed
Delivery Contracts"), substantially in the form of Schedule II hereto
but with such changes therein as the Company may authorize or approve.
The Underwriters will endeavor to make such arrangements and, as
compensation therefor, the Company will pay to the Representatives, for
the account of the Underwriters, on the Closing Date, the percentage set
forth in Schedule I hereto of the principal amount of the Debt
Securities for which such Delayed Delivery Contracts are made. Delayed
Delivery Contracts are to be with institutional investors, including
commercial and savings banks, insurance companies, pension funds,
investment companies, educational and charitable institutions. The
Company will enter into Delayed Delivery Contracts in all cases where
such sales of Contract Securities arranged by the Underwriters have been
approved by the Company (it being understood that the Company may
reasonably withhold such approval) but, except as the Company may
otherwise agree, each such Delayed Delivery Contract must be for not
less than the minimum principal amount set forth in Schedule I hereto
and the aggregate principal amount set forth in Schedule I hereto and
the
8
aggregate principle amount of Contract Securities may not exceed the
maximum aggregate principal amount set forth in Schedule I hereto. The
Underwriters will not have any responsibility in respect of the validity
or performance of Delayed Delivery Contracts. The principal amount of
Securities to be purchased by each Underwriter as set forth in Schedule
II hereto shall be reduced by an amount which shall bear the same
proportion to the total principal amount of Contract Securities as the
principal amount of Securities set forth opposite the name of such
Underwriter bears to the aggregate principal amount set forth in
Schedule II hereto, except to the extent that you determine that such
reduction shall be otherwise than in such proportion and so advise the
Company in writing; provided, however, that the total principal amount
of Securities to be purchased by all Underwriters shall be the aggregate
principal amount set forth in Schedule II hereto less the aggregate
principal amount of Contract Securities.
3. Delivery and Payment. Delivery of and payment for
the Underwriter's Securities shall be made on the date and at the time
specified in Schedule I hereto (or such later date not later than five
business days after such specified date as the Representatives shall
designate), which date and time may be postponed by agreement between
the Representatives and the Company or as provided in Section 8 hereof
(such date and time of delivery and payment for the Underwriter's
Securities being herein called the "Closing Date"). Delivery of the
Underwriter's Securities shall be made to the Representatives for the
respective accounts of the several Underwriters against payment by the
several Underwriters through the Representatives of the purchase price
thereof to or upon the order of the Company by certified or official
bank check or checks drawn on or by a New York Clearing House bank and
payable in next day funds. Delivery of the Underwriter's Securities
shall be made at such location as the Representatives shall reasonably
designate at least one business day in advance of the Closing Date and
payment for the Securities shall be made at the office specified in
Schedule I hereto. Certificates for the Underwriter's Securities shall
be registered in such names and in such denominations as the
Representatives may request not less than three full business days in
advance of the Closing Date.
The Company agrees to have the Underwriter's
Securities available for inspection, checking and packaging
9
by the Representatives in New York, New York, not later than 1:00 PM on the
business day prior to the Closing Date.
4. Agreements. The Company agrees with the
several Underwriters that:
(a) The Company will use its best efforts to cause the
Registration Statement, if not effective at the Execution Time,
and any amendment thereto, to become effective. Prior to the
termination of the offering of the Securities, the Company will
not file any amendment of the Registration Statement or
supplement (including the Final Prospectus or any Preliminary
Final Prospectus) to the Basic Prospectus unless the Company
has furnished you a copy for your review prior to filing and
will not file any such proposed amendment or supplement to
which you reasonably object. Subject to the foregoing sentence,
the Company will cause the Final Prospectus, properly
completed, and any supplement thereto to be filed with the
Commission pursuant to the applicable paragraph of Rule 424(b)
within the time period prescribed and will provide evidence
satisfactory to the Representatives of such timely filing. The
Company will promptly advise the Representatives (i) when the
Registration Statement, if not effective at the Execution Time,
and any amendment thereto, shall have become effective, (ii)
when the Final Prospectus, and any supplement thereto, shall
have been filed with the Commission pursuant to Rule 424(b),
(iii) when, prior to termination of the offering of the
Securities, any amendment to the Registration Statement shall
have been filed or become effective, (iv) of any request by the
Commission for any amendment of the Registration Statement or
supplement to the Final Prospectus or for any additional
information, (v) of the issuance by the Commission of any stop
order suspending the effectiveness of the Registration
Statement or the institution or threatening of any proceeding
for that purpose and (vi) of the receipt by the Company of any
notification with respect to the suspension of the
qualification of the Securities for sale in any jurisdiction or
the initiation or threatening of any proceeding for such
purpose. The Company will use its best efforts to prevent the
issuance of any such stop order and, if issued, to obtain as
soon as possible the withdrawal thereof.
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(b) If, at any time when a prospectus relating to the
Securities is required to be delivered under the Act, any event
occurs as a result of which the Final Prospectus as then
supplemented would include any untrue statement of a material
fact or omit to state any material fact necessary to make the
statements therein in the light of the circumstances under
which they were made not misleading, or if it shall be
necessary to amend the Registration Statement or supplement the
Final Prospectus to comply with the Act or the Exchange Act or
the respective rules thereunder, the Company promptly will (i)
prepare and file with the Commission, subject to the second
sentence of paragraph (a) of this Section 4, an amendment or
supplement which will correct such statement or omission or
effect such compliance and (ii) supply any supplemented
Prospectus to you in such quantities as you may reasonably
request.
(c) As soon as practicable, the Company will make generally
available to its security holders and to the Representatives an
earnings statement or statements of the Company and its
subsidiaries which will satisfy the provisions of Section 11(a)
of the Act and Rule 158 under the Act.
(d) The Company will furnish to the Representatives and
counsel for the Underwriters, without charge, copies of the
Registration Statement (including exhibits thereto) and, so
long as delivery of a prospectus by an Underwriter or dealer
may be required by the Act, as many copies of any Preliminary
Final Prospectus and the Final Prospectus and any supplement
thereto as the Representatives may reasonably request. The
Company will pay the expenses of printing or other production
of all documents relating to the offering.
(e) The Company will arrange for the qualification of the
Securities and any Debt Securities, Common Stock, Class C
Common Stock, Preferred Stock, Convertible Preferred Stock, or
Nonconvertible Preferred Stock that may be issuable pursuant to
the exercise, conversion or exchange, as the case may be, of
the Securities offered by the Company, for sale under the laws
of such jurisdictions as the Representatives may designate
(provided, however, that in connection therewith, the Company
will
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not be required to (i) qualify generally to do business in any
jurisdiction where it is not then so qualified, (ii) subject
itself to taxation in any such jurisdiction or (iii) consent to
general service of process in any such jurisdiction where it is
not then so subject), will maintain such qualifications in
effect so long as required for the distribution of the
Securities, will arrange for the determination of the legality
of the Securities for purchase by institutional investors, and
will pay the fee of the National Association of Securities
Dealers, Inc., in connection with its review, if any, of the
offering.
(f) Until the business date set forth on Schedule I hereto,
the Company will not, without the consent of the
Representatives, offer, sell or contract to sell, or otherwise
dispose of, directly or indirectly, or announce the offering
of, any securities issued or guaranteed by the Company (other
than the Securities) and other than (i) as specified in
Schedule I, or (ii) sales of Equity Securities to The Coca-Cola
Company pursuant to its rights under the Stock Rights and
Restrictions Agreement (the "Stock Agreement") dated as of
January 27, 1989.
(g) The Company will arrange for the listing of any Equity
Securities upon notice of issuance on any national securities exchange
or automated quotation system designated in Schedule I hereto.
(h) The Company confirms as of the date hereof that it is in
compliance with all provisions of Section 1 of Laws of Florida,
Chapter 92-198, An Act Relating to Disclosure of Doing Business
with Cuba, and the Company further agrees that if it commences
engaging in business with the government of Cuba or with any
person or affiliate located in Cuba after the date the
Registration Statement becomes or has become effective with the
Securities and Exchange Commission or with the Florida
Department of Banking and Finance (the "Department"), whichever
date is later, or if the information reported in the
Prospectus, if any, concerning the Company's business with Cuba
or with any person or affiliate located in Cuba changes in any
material way, the Company will provide the Department notice of
such business or change, as appropriate, in a form acceptable
to the Department.
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5. Conditions to the Obligations of the Underwriters. The
obligations of the Underwriters to purchase the Underwriters' Securities
shall be subject to the accuracy of the representations and warranties
on the part of the Company contained herein as of the Execution Time and
the Closing Date, to the accuracy of the statements of the Company made
in any certificates pursuant to the provisions hereof, to the
performance by the Company of its obligations hereunder and to the
following additional conditions:
(a) If the Registration Statement has not become effective
prior to the Execution Time, unless the Representatives agree
in writing to a later time, the Registration Statement will
become effective not later than (i) 6:00 PM New York City time,
on the date of determination of the public offering price, if
such determination occurred at or prior to 3:00 PM New York
City time on such date or (ii) 12:00 Noon on the business day
following the day on which the public offering price was
determined, if such determination occurred after 3:00 PM New
York City time on such date; if filing of the Final Prospectus,
or any supplement thereto, is required pursuant to Rule 424(b),
the Final Prospectus, and any such supplement, shall have been
filed in the manner and within the time period required by Rule
424(b); and no stop order suspending the effectiveness of the
Registration Statement shall have been issued and no
proceedings for that purpose shall have been instituted or
threatened.
(b) The Company shall have furnished to the Representatives
the opinion of Xxxx, Xxxxxxx & Xxxxxxxx, P.C., counsel for the
Company, dated the Closing Date, to the effect that:
(i) each of the Company, Coca-Cola Bottling Co.
Affiliated, Inc., Coca-Cola Bottling Company of
Mobile, Inc., Coca-Cola Bottling Company of Nashville,
Inc., Coca-Cola Bottling Company of Roanoke, Inc.,
Columbus Coca-Cola Bottling Company, Panama City
Coca-Cola Bottling Company, Tennessee Soft Drink
Production Company, The Coca-Cola Bottling Company of
West Virginia, Inc., Metrolina Bottling Company, COBC,
Inc., ECBC, Inc., MOBC, Inc., NABC, Inc., PCBC, Inc.,
ROBC, Inc., WCBC, Inc., and WVBC, Inc. (individually a
"Subsidiary" and collectively the "Subsidiaries"),
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is duly incorporated and validly exists as a corporation in
good standing under the laws of the jurisdiction in
which it is chartered or organized, with full
corporate power and authority to own, lease and
operate its properties, and conduct its business as
described in the Final Prospectus, and is duly
qualified to do business as a foreign corporation and
is in good standing under the laws of each
jurisdiction which requires such qualification wherein
it owns or leases material properties or conducts
material business, other than jurisdictions, except
where the failure so to qualify would not have a
material adverse effect.
(ii) the Company's 50% owned general partnership,
Piedmont Coca-Cola Bottling Partnership ("Piedmont")
is duly organized and validly existing under the laws
of the State of Delaware, with full power and
authority to own, lease and operate its properties,
and to conduct its business as described in the Final
Prospectus and each of its corporate partners is duly
registered and qualified and is in good standing as a
foreign corporation authorized to do business in each
jurisdiction which requires such qualification wherein
Piedmont owns or leases material properties or
conducts material business, other than jurisdictions,
except where the failure so to qualify would not have
a material adverse effect.
(iii) all the outstanding shares of capital stock
of each Subsidiary have been duly and validly
authorized and issued and are fully paid and
nonassessable, and, except as otherwise set forth in
the Final Prospectus, all outstanding shares of
capital stock of the Subsidiaries and the 50%
partnership interest in Piedmont are owned by the
Company either directly or through wholly owned
subsidiaries free and clear of any perfected security
interest and, to the knowledge of such counsel, after
due inquiry, any other security interests, claims,
liens or encumbrances;
(iv) the Company's authorized equity
capitalization is as set forth in the Final
Prospectus; the Securities conform to the
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description thereof contained in the Final Prospectus;
and, if the Securities are to be listed on any
securities exchange or automated quotation system,
authorization therefor has been given, subject to
official notice of issuance and evidence of
satisfactory distribution, or the Company has filed a
preliminary listing application and all required
supporting documents with respect to the Securities
with such securities exchange or automated quotation
system and such counsel has no reason to believe that
the Securities will not be authorized for listing,
subject to official notice of issuance and evidence of
satisfactory distribution;
(v) in the case of an offering of Debt Securities,
the Indenture has been duly authorized, executed and
delivered, and has been duly qualified under the Trust
Indenture Act; the Indenture constitutes a legal,
valid and binding instrument enforceable against the
Company in accordance with its terms (subject, as to
enforcement of remedies, to applicable bankruptcy,
reorganization, insolvency, fraudulent transfer,
moratorium or other laws relating to or affecting the
enforcement of creditors' rights generally from time
to time in effect and by general equitable principles,
including, without limitation, concepts of
materiality, reasonableness, good faith and fair
dealing, regardless of whether such enforceability is
considered in equity or at law); and the Debt
Securities have been duly authorized and, when
executed and authenticated in accordance with the
provisions of the Indenture and delivered to and paid
for by the Underwriters pursuant to this Agreement, in
the case of the Underwriters' Securities, or by the
purchasers thereof pursuant to Delayed Delivery
Contracts, in the case of any Contract Securities,
will constitute legal, valid and binding obligations
of the Company, be convertible or exercisable for
other securities of the Company in accordance with
their terms as set forth in the Final Prospectus, as
the case may be, and will be entitled to the benefits
of the Indenture; if the Debt Securities are
convertible or exercisable into Equity Securities, the
shares of Equity Securities issuable upon such
conversion
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or exercise will have been duly authorized and
reserved for issuance upon such conversion and, when
issued upon such conversion, will be validly issued,
fully paid and nonassessable; the outstanding shares
of such Equity Securities will have been duly
authorized and issued, will be fully paid and
nonassessable and will conform to the description
thereof contained in the Final Prospectus; and the
holders of outstanding capital stock of the Company
have no preemptive rights with respect to any of such
shares of Equity Securities issuable upon such
conversion, except as provided in the Stock Agreement;
(vi) in the case of an offering of Common Stock or
Class C Common Stock, the shares of Common Stock or
Class C Common Stock have been duly and validly
authorized and, when issued and delivered and paid for
by the Underwriters pursuant to this agreement, will
be fully paid and nonassessable and will conform to
the description thereof contained in the Final
Prospectus; the Common Stock has been duly authorized
for listing, subject to official notice of issuance,
on the National Association of Securities Dealers
Automated Quotation National Market System; the
certificates for the Common Stock or Class C Common
Stock are in valid and sufficient form; and the
holders of outstanding shares of capital stock of the
Company are not entitled to preemptive or other rights
to subscribe for the Common Stock or Class C Common
Stock, except as provided in the Stock Agreement.
(vii) in the case of an offering of Preferred Stock,
Convertible Preferred Stock or Nonconvertible
Preferred Stock, the Company has authorized capital
stock as set forth in the Final Prospectus; the shares
of Preferred Stock, Convertible Preferred Stock, or
Nonconvertible Preferred Stock being delivered at such
Closing Date have been duly and validly authorized
and, when issued and delivered and paid for by the
Underwriters pursuant to this Agreement, will be fully
paid and nonassessable; the shares of Preferred Stock,
Convertible Preferred Stock, or Nonconvertible
Preferred Stock conform to the descriptions thereof
contained in the Final
16
Prospectus; and the stockholders of the Company have no
preemptive rights with respect to any of such shares
of Preferred Stock, Convertible Preferred Stock or
Nonconvertible Preferred Stock, except as provided in
the Stock Agreement. If the shares of Preferred Stock
or Convertible Preferred Stock being delivered at such
Closing Date are convertible or exchangeable into
Common Stock or other securities (including
Securities), such shares of Preferred Stock or
Convertible Preferred Stock are, and the Contract
Securities, when so issued, delivered and sold, will
be, convertible or exchangeable into Common Stock or
such other securities in accordance with their terms;
the shares of such Common Stock or other securities
initially issuable upon conversion or exchange of such
shares of Preferred Stock or Convertible Preferred
Stock will have been duly authorized and reserved for
issuance upon such conversion or exchange and, when
issued upon such conversion or exchange, will be duly
issued, fully paid and nonassessable; the outstanding
shares of such Common Stock have been duly authorized
and issued, are fully paid and nonassessable and
conform to the description thereof contained in the
Final Prospectus;
(viii) to the best knowledge of such counsel, there is no
pending or threatened action, suit or proceeding
before any court or governmental agency, authority or
body or any arbitrator involving the Company or any of
its subsidiaries or Piedmont, of a character required
to be disclosed in the Registration Statement which is
not adequately disclosed in the Final Prospectus, and
there is no franchise, contract or other document of a
character required to be described in the Registration
Statement or Final Prospectus, or to be filed as an
exhibit, which is not described or filed as required;
and the statements included or incorporated in the
Final Prospectus describing any legal proceedings or
material contracts or agreements relating to the
Company, its subsidiaries and Piedmont fairly
summarize such matters;
(ix) the Registration Statement has become
effective under the Act; any required filing of
17
the Basic Prospectus, any Preliminary Final Prospectus and the
Final Prospectus, and any supplements thereto,
pursuant to Rule 424(b) has been made in the manner
and within the time period required by Rule 424(b); to
the best knowledge of such counsel, no stop order
suspending the effectiveness of the Registration
Statement has been issued, no proceedings for that
purpose have been instituted or threatened, and the
Registration Statement and the Final Prospectus (other
than the financial statements and other financial and
statistical information contained therein as to which
such counsel need express no opinion) comply as to
form in all material respects with the applicable
requirements of the Act, the Exchange Act and the
Trust Indenture Act and the respective rules
thereunder; and such counsel has no reason to believe
that at the Effective Date the Registration Statement
contained any untrue statement of a material fact or
omitted to state any material fact required to be
stated therein or necessary to make the statements
therein not misleading or that the Final Prospectus
includes any untrue statement of a material fact or
omits to state a material fact necessary to make the
statements therein, in the light of the circumstances
under which they were made, not misleading;
(x) this Agreement has been duly authorized,
executed and delivered by the Company;
(ix) any Delayed Delivery Contracts have been duly
authorized, executed and delivered by the Company and
are valid and binding agreements of the Company
enforceable in accordance with their terms (subject,
as to enforcement of remedies, to applicable
bankruptcy, reorganization, insolvency, fraudulent
transfer, moratorium or other laws relating to or
affecting the enforcement of creditors' rights
generally from time to time in effect and by general
equitable principles, including, without limitation,
concepts of materiality, good faith and fair dealing,
regardless of whether such enforceability is
considered in equity or at law);
18
(xii) no consent, approval, authorization or
order of any court or governmental agency or body is
required for the consummation of the transactions
contemplated herein or in any Delayed Delivery
Contracts, except such as have been obtained under the
Act and such as may be required under the blue sky
laws of any jurisdiction in connection with the
purchase and distribution of the Securities by the
Underwriters and such other approvals (specified in
such opinion) as have been obtained;
(xiii) neither the execution and delivery of the
Indenture, the issue and sale of the Securities, nor
the consummation of any other of the transactions
herein contemplated nor the fulfillment of the terms
hereof or of any Delayed Delivery Contracts will
conflict with, result in a breach or violation of, or
constitute a default under any law or the charter or
by-laws of the Company or the terms of any indenture
or other agreement or instrument known to such counsel
and to which the Company or any of its subsidiaries or
Piedmont is a party or bound or any judgment, order or
decree known to such counsel to be applicable to the
Company or any of its subsidiaries or Piedmont of any
court, regulatory body, administrative agency,
governmental body or arbitrator having jurisdiction
over the Company or any of its subsidiaries or
Piedmont;
(xiv) the information, if any, in the Final
Prospectus under "Taxation", has been reviewed by them
and constitutes a complete and accurate summary of the
matters disclosed thereunder;
(xv) no holders of securities of the Company
have rights to the registration of such securities
under the Registration Statement; and
(xvi) such other legal opinions as are set
forth on Schedule I hereto.
In rendering such opinion, Xxxx, Xxxxxxx & Xxxxxxxx, P.C. may rely (A)
as to matters involving the application of laws of any jurisdiction
other than the States of Delaware and Tennessee or the United States,
to the extent deemed proper and specified in such
19
opinion, upon the opinion of other counsel of good standing
believed to be reliable and who are satisfactory to counsel for
the Underwriters and (B) as to matters of fact, to the extent
deemed proper, on certificates of responsible officers of the
Company and public officials. References to the Final
Prospectus in this paragraph (b) include any supplements
thereto at the Closing Date.
(c) The Representatives shall have received from
Cravath, Swaine & Xxxxx, counsel for the Underwriters, such
opinion or opinions, dated the Closing Date, with respect to
the issuance and sale of the Securities, the Indenture, any
Delayed Delivery Contracts, the Registration Statement, the
Final Prospectus (together with any supplement thereto) and
other related matters as the Representatives may reasonably
require, and the Company shall have furnished to such counsel
such documents as they may reasonably request for the purpose
of enabling them to pass upon such matters.
(d) The Company shall have furnished to the
Representatives a certificate of the Company, signed by the
Chairman of the Board or the President and the principal
financial or accounting officer of the Company, dated the
Closing Date, to the effect that the signers of such
certificate have carefully examined the Registration Statement,
the Final Prospectus, any supplement to the Final Prospectus
and this Agreement and that:
(i) the representations and warranties of the
Company in this Agreement are true and correct in all
material respects on and as of the Closing Date with
the same effect as if made on the Closing Date and the
Company has complied with all the agreements and
satisfied all the conditions on its part to be
performed or satisfied at or prior to the Closing
Date;
(ii) no stop order suspending the effectiveness
of the Registration Statement has been issued and no
proceedings for that purpose have been instituted or,
to the Company's knowledge, threatened; and
(iii) since the date of the most recent
financial statements included in the Final
20
Prospectus (exclusive of any supplement thereto), there has
been no material adverse change in the condition
(financial or other), earnings, business affairs,
properties or business prospects of the Company and
its subsidiaries or Piedmont, whether or not arising
from transactions in the ordinary course of business,
except as set forth in or contemplated in the Final
Prospectus (exclusive of any supplement thereto).
(e) At the Closing Date, Price Waterhouse shall have
furnished to the Representatives a letter or letters (which may
refer to letters previously delivered to one or more of the
Representatives), dated as of the Closing Date, in form and
substance satisfactory to the Representatives, confirming that
they are independent accountants within the meaning of the Act
and the Exchange Act and the respective applicable published
rules and regulations thereunder and that they have performed
the procedures specified by the American Institute of Certified
Public Accountants for a review of interim financial
information in accordance with, and as described in, Statement
of Auditing Standards No. 71 for the latest unaudited financial
statements in or incorporated in the Registration Statement or
the Final Prospectus and stating in effect that:
(i) in their opinion the audited financial
statements and financial statement schedules and any
pro forma financial statements of the Company and its
subsidiaries and of Piedmont included or incorporated
in the Registration Statement and the Final Prospectus
and reported on by them comply in form in all material
respects with the applicable accounting requirements
of the Act and the Exchange Act and the related
published rules and regulations;
(ii) on the basis of a reading of the latest
unaudited financial statements made available by the
Company and its subsidiaries; their limited review in
accordance with standards established by the American
Institute of Certified Public Accountants under
Statement of Auditing Standards No. 71, of the
unaudited interim financial information of the Company
and its subsidiaries; carrying out certain specified
procedures (but not
21
an examination in accordance with generally accepted
auditing standards) which would not necessarily reveal
matters of significance with respect to the comments
set forth in such letter; a reading of the minutes of
the meetings of the stockholders, directors and the
executive, finance, audit, pension and compensation
committees of the Company and the Subsidiaries and of
the partnership proceedings of Piedmont; and inquiries
of certain officials of the Company and Piedmont who
have responsibility for financial and accounting
matters of the Company and its subsidiaries and of
Piedmont as to transactions and events subsequent to
the date of the most recent audited financial
statements in or incorporated in the Final Prospectus,
nothing came to their attention which caused them to
believe that:
(1) any unaudited financial statements
included or incorporated in the Registration
Statement and the Final Prospectus do not
comply in form in all material respects with
applicable accounting requirements and with
the published rules and regulations of the
Commission with respect to financial
statements included or incorporated in
quarterly reports on Form 10-Q under the
Exchange Act; or that said unaudited
financial statements are not in conformity
with generally accepted accounting principles
applied on a basis substantially consistent
with that of the audited financial statements
included or incorporated in the Registration
Statement and the Final Prospectus;
(2) with respect to the period
subsequent to the date of the most recent
financial statements (other than any capsule
information), audited or unaudited, in or
incorporated in the Registration Statement
and the Final Prospectus, there were any
increases, at a specified date not more than
five business days prior to the date of the
letter, in the long-term debt of the Company
and its subsidiaries and of Piedmont or
capital stock of the Company, or decreases in
the stockholders' equity of the Company as
22
compared with the amounts shown on the most
recent consolidated balance sheet included or
incorporated in the Registration Statement
and the Final Prospectus, or for the period
from the date of the most recent financial
statements included or incorporated in the
Registration Statement and the Final
Prospectus to such specified date there were
any decreases, as compared with the
corresponding period in the preceding year in
net sales, gross margin, income from
operations, income before income taxes and
effect of accounting changes or in total or
per share amounts of net income applicable to
common stockholders of the Company and its
subsidiaries, except in all instances for
changes or decreases set forth in such
letter, in which case the letter shall be
accompanied by an explanation by the Company
as to the significance thereof unless said
explanation is not deemed necessary by the
Representatives;
(3) the information included in the
Registration Statement and Prospectus in
response to Regulation S-K, Item 301
(Selected Financial Data), Item 302
(Supplementary Financial Information), Item
402 (Executive Compensation) and Item 503(d)
(Ratio of Earnings to Fixed Charges) is not
in conformity with the applicable disclosure
requirements of Regulation S-K; or
(4) the amounts included in any unaudited
"capsule" information included or
incorporated in the Registration Statement
and the Final Prospectus do not agree with
the amounts set forth in the unaudited
financial statements for the same periods or
were not determined on a basis substantially
consistent with that of the corresponding
amounts in the audited financial statements
included or incorporated in the Registration
Statement and the Final Prospectus;
(iii) they have performed certain other specified
procedures as a result of which they determined that certain
information of an
23
accounting, financial or statistical nature (which is
limited to accounting, financial or statistical
information derived from the general accounting
records of the Company, its subsidiaries and Piedmont)
set forth in the Registration Statement and the Final
Prospectus and in Exhibit 12 to the Registration
Statement, including the information included or
incorporated in Items 1, 2, 6, 7 and 11 of the
Company's Annual report on Form 10-K, incorporated in
the Registration Statement and the Prospectus, and the
information included in the "Management's Discussion
and Analysis of Financial Condition and Results of
Operations" included or incorporated in the Company's
Quarterly Reports on Form 10-Q, incorporated in the
Registration Statement and the Final Prospectus,
agrees with the accounting records of the Company, its
subsidiaries and Piedmont, excluding any questions of
legal interpretation; and
(iv) if unaudited pro forma financial statements are
included or incorporated in the Registration Statement
and the Final Prospectus, on the basis of a reading of
the unaudited pro forma financial statements, carrying
out certain specified procedures, inquiries of certain
officials of the Company and the acquired company who
have responsibility for financial and accounting
matters, and proving the arithmetic accuracy of the
application of the pro forma adjustments to the
historical amounts in the pro forma financial
statements, nothing came to their attention which
caused them to believe that the pro forma financial
statements do not comply in form in all material
respects with the applicable accounting requirements
of Rule 11-02 of Regulation S-X or that the pro forma
adjustments have not been properly applied to the
historical amounts in the compilation of such
statements.
References to the Final Prospectus in this paragraph (e)
include any supplement thereto at the date of the letter.
In addition, except as provided in Schedule I hereto, at the
Execution Time, Price Waterhouse shall have furnished to the Representatives a
letter or letters, dated
24
as of the Execution Time, in form and substance satisfactory
to the Representatives, to the effect set forth above.
(f) Subsequent to the Execution Time or, if earlier,
the dates as of which information is given in the Registration
Statement (exclusive of any amendment thereof) and the Final
Prospectus (exclusive of any supplement thereto), there shall
not have been (i) any change or decrease specified in the
letter or letters referred to in paragraph (e) of this Section
5 or (ii) any change, or any development involving a
prospective change, in or affecting the business or properties
of the Company, its subsidiaries and Piedmont the effect of
which, in any case referred to in clause (i) or (ii) above, is,
in the judgment of the Representatives, so material and adverse
as to make it impractical or inadvisable to proceed with the
offering or delivery of the Securities as contemplated by the
Registration Statement (exclusive of any amendment thereof) and
the Final Prospectus (exclusive of any supplement thereto).
(g) Subsequent to the Execution Time, there shall not
have been any decrease in the rating of any of the Company's
debt securities by any "nationally recognized statistical
rating organization" (as defined for purpose of Rule 436(g)
under the Act) or any notice given of any intended or potential
decrease in any such rating or of a possible change in any such
rating that does not indicate the direction of the possible
change.
(h) At the Execution Time, the Company shall have
furnished to the Representatives a letter from each officer and
director of the Company and certain major shareholders
specified in Schedule I hereto, addressed to the
Representatives, in which each such person agrees not to offer,
sell or contract to sell, or otherwise dispose of, directly or
indirectly, or announce an offering of, any shares of Equity
Securities beneficially owned by such person or any securities
convertible into, or exchangeable for, shares of such
Securities for a period specified in Schedule I hereto
following the Execution Time without the prior written consent
of the Representatives.
(i) Prior to the Closing Date, the Company shall have
furnished to the Representatives such further legal opinions,
information, certificates and documents as the Representatives
may reasonably request.
25
(j) The Company shall have accepted Delayed Delivery
Contracts in any case where sales of Contract Securities
arranged by the Underwriters have been approved by the Company.
If any of the conditions specified in this Section 5
shall not have been fulfilled in all material respects when and as
provided in this Agreement, or if any of the opinions and certificates
mentioned above or elsewhere in this Agreement shall not be in all
material respects reasonably satisfactory in form and substance to the
Representatives and counsel for the Underwriters, this Agreement and all
obligations of the Underwriters hereunder may be canceled at, or at any
time prior to, the Closing Date by the Representatives. Notice of such
cancellation shall be given to the Company in writing or by telephone or
telegraph confirmed in writing.
The documents required to be delivered by this Section
5 shall be delivered at the office of Cravath, Swaine & Xxxxx, counsel
for the Underwriters, at Worldwide Plaza, 000 Xxxxxx Xxxxxx, Xxx Xxxx,
Xxx Xxxx, xx the Closing Date.
6. Reimbursement of Underwriters' Expenses. If
the sale of the Securities provided for herein is not con-
summated because any condition to the obligations of the
Underwriters set forth in Section 5 hereof is not satisfied,
because of any termination pursuant to Section 9 hereof or
because of any refusal, inability or failure on the part of
the Company to perform any agreement herein or comply with
any provision hereof other than by reason of a default by
any of the Underwriters, the Company will reimburse the
Underwriters severally upon demand for all out-of-pocket
expenses (including reasonable fees and disbursements of one
Underwriters' counsel and one local counsel in each juris-
diction) that shall have been incurred by them in connection
with the proposed purchase and sale of the Securities.
7. Indemnification and Contribution. (a) The
Company agrees to indemnify and hold harmless each Under-
writer, the directors, officers, employees and agents of
each Underwriter and each person who controls any Under-
writer within the meaning of either the Act or the Exchange
Act against any and all losses, claims, damages or
liabilities, joint or several, to which they or any of them
may become subject under the Act, the Exchange Act or other
Federal or state statutory law or regulation, at common law
26
or otherwise, insofar as such losses, claims, damages or liabilities (or
actions in respect thereof) arise out of or are based upon any untrue
statement or alleged untrue statement of a material fact contained in
the registration statement for the registration of the Securities as
originally filed or in any amendment thereof, or in the Basic
Prospectus, any Preliminary Final Prospectus or the Final Prospectus, or
in any amendment thereof or supplement thereto, or arise out of or are
based upon the omission or alleged omission to state therein a material
fact required to be stated therein or necessary to make the statements
therein not misleading, and agrees to reimburse each such indemnified
party, as incurred, for any legal or other expenses reasonably incurred
by them in connection with investigating or defending any such loss,
claim, damage, liability or action; provided, however, that (i) the
Company will not be liable in any such case to the extent that any such
loss, claim, damage or liability arises out of or is based upon any such
untrue statement or alleged untrue statement or omission or alleged
omission made therein in reliance upon and in conformity with written
information furnished to the Company by or on behalf of any Underwriter
through the Representatives specifically for inclusion therein, and (ii)
such indemnity with respect to any Preliminary Final Prospectus shall
not inure to the benefit of any Underwriter (or any person controlling
such Underwriter) from whom the person asserting any such loss, claim,
damage or liability purchased the Securities which are the subject
thereof if such person did not receive a copy of the Final Prospectus
(or the Final Prospectus as supplemented), excluding documents
incorporated therein by reference, at or prior to the confirmation of
the sale of such Securities to such person in any case where such
delivery is required by the Act and the untrue statement or omission of
a material fact contained in such Preliminary Final Prospectus was
corrected in the Final Prospectus (or the Final Prospectus as
supplemented). This indemnity agreement will be in addition to any
liability which the Company may otherwise have.
(b) Each Underwriter severally agrees to indemnify and
hold harmless the Company, each of its directors, each of its officers
who signs the Registration Statement, and each person who controls the
Company within the meaning of either the Act or the Exchange Act, to the
same extent as the foregoing indemnity from the Company to each
Underwriter, but only with reference to written information relating to
such Underwriter furnished to the
27
Company by or on behalf of such Underwriter through the Representatives
specifically for inclusion in the documents referred to in the foregoing
indemnity. This indemnity agreement will be in addition to any liability
which any Underwriter may otherwise have. The Company acknowledges that
the statements set forth in the last paragraph of the cover page, under
the heading "Underwriting" or "Plan of Distribution" and, if Schedule I
hereto provides for sales of Securities pursuant to delayed delivery
arrangements, in the last sentence under the heading "Delayed Delivery
Arrangements" in any Preliminary Final Prospectus or the Final
Prospectus constitute the only information furnished in writing by or on
behalf of the several Underwriters for inclusion in the documents
referred to in the foregoing indemnity, and you, as the Representatives,
confirm that such statements are correct.
(c) Promptly after receipt by an indemnified party
under this Section 7 of notice of the commencement of any action, such
indemnified party will, if a claim in respect thereof is to be made
against the indemnifying party under this Section 7, notify the
indemnifying party in writing of the commencement thereof; but the
failure so to notify the indemnifying party (i) will not relieve it from
liability under paragraph (a) or (b) above unless and to the extent it
did not otherwise learn of such action and such failure results in the
forfeiture by the indemnifying party of substantial rights and defenses
and (ii) will not, in any event, relieve the indemnifying party from any
obligations to any indemnified party other than the indemnification
obligation provided in paragraph (a) or (b) above. The indemnifying
party shall be entitled to appoint counsel of the indemnifying party's
choice at the indemnifying party's expense to represent the indemnified
party in any action for which indemnification is sought (in which case
the indemnifying party shall not thereafter be responsible for the fees
and expenses of any separate counsel retained by the indemnified party
or parties except as set forth below); provided, however, that such
counsel shall be satisfactory to the indemnified party. Notwithstanding
the indemnifying party's election to appoint counsel to represent the
indemnified party in an action, the indemnified party shall have the
right to employ one separate counsel (including local counsel), and the
indemnifying party shall bear the reasonable fees, costs and expenses of
such separate counsel if (i) the use of counsel chosen by the
indemnifying party to represent the indemnified party would present such
counsel with a conflict of interest, (ii) the actual or
28
potential defendants in, or targets of, any such action include both the
indemnified party and the indemnifying party and the indemnified party
shall have reasonably concluded that there may be legal defenses
available to it and/or other indemnified parties which are different
from or additional to those available to the indemnifying party, (iii)
the indemnifying party shall not have employed counsel satisfactory to
the indemnified party to represent the indemnified party within a
reasonable time after notice of the institution of such action or (iv)
the indemnifying party shall authorize the indemnified party to employ
separate counsel at the expense of the indemnifying party. An
indemnifying party will not, without the prior written consent of the
indemnified parties, settle or compromise or consent to the entry of any
judgment with respect to any pending or threatened claim, action, suit
or proceeding in respect of which indemnification or contribution may be
sought hereunder (whether or not the indemnified parties are actual or
potential parties to such claim or action) unless such settlement,
compromise or consent includes an unconditional release of each
indemnified party from all liability arising out of such claim, action,
suit or proceeding.
(d) In the event that the indemnity provided in
paragraph (a) or (b) of this Section 7 is unavailable to or insufficient
to hold harmless an indemnified party for any reason, the Company and
the Underwriters agree to contribute to the aggregate losses, claims,
damages and liabilities (including legal or other expenses reasonably
incurred in connection with investigating or defending same)
(collectively "Losses") to which the Company and one or more of the
Underwriters may be subject in such proportion as is appropriate to
reflect the relative benefits received by the Company and by the
Underwriters from the offering of the Securities; provided, however,
that in no such case shall any Underwriter (except as may be provided in
any agreement among underwriters relating to the offering of the
Securities) be responsible for any amount in excess of the underwriting
discount or commission applicable to the Securities purchased by such
Underwriter hereunder. If the allocation provided by the immediately
preceding sentence is unavailable for any reason, the Company and the
Underwriters shall contribute in such proportion as is appropriate to
reflect not only such relative benefits but also the relative fault of
the Company and of the Underwriters in connection with the statements or
omissions which resulted in such Losses as well as any other relevant
equitable
29
considerations. Benefits received by the Company shall be deemed to be
equal to the total net proceeds from the offering (before deducting
expenses), and benefits received by the Underwriters shall be deemed to
be equal to the total underwriting discounts and commissions, in each
case as set forth on the cover page of the Final Prospectus. Relative
fault shall be determined by reference to whether any alleged untrue
statement or omission relates to information provided by the Company or
the Underwriters. The Company and the Underwriters agree that it would
not be just and equitable if contribution were determined by pro rata
allocation or any other method of allocation which does not take account
of the equitable considerations referred to above. Notwithstanding the
provisions of this paragraph (d), no person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Act) shall
be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. For purposes of this Section 7, each
person who controls an Underwriter within the meaning of either the Act
or the Exchange Act and each director, officer, employee and agent of an
Underwriter shall have the same rights to contribution as such
Underwriter, and each person who controls the Company within the meaning
of either the Act or the Exchange Act, each officer of the Company who
shall have signed the Registration Statement and each director of the
Company shall have the same rights to contribution as the Company,
subject in each case to the applicable terms and conditions of this
paragraph (d).
8. Default by an Underwriter. If any one or more
Underwriters shall fail to purchase and pay for any of the Securities
agreed to be purchased by such Underwriter or Underwriters hereunder and
such failure to purchase shall constitute a default in the performance
of its or their obligations under this Agreement, the remaining
Underwriters shall be obligated severally to take up and pay for (in the
respective proportions which the amount of Securities set forth opposite
their names in Schedule II hereto bears to the aggregate amount or
number of Securities set forth opposite the names of all the remaining
Underwriters) the Securities which the defaulting Underwriter or
Underwriters agreed but failed to purchase; provided, however, that in
the event that the aggregate amount or number of Securities which the
defaulting Underwriter or Underwriters agreed but failed to purchase
shall exceed 10% of the aggregate amount or number of Securities set
forth in Schedule II hereto, the remaining Underwriters shall have the
right to purchase all,
30
but shall not be under any obligation to purchase any, of the
Securities, and if such nondefaulting Underwriters do not purchase all
the Securities, this Agreement will terminate without liability to any
nondefaulting Underwriter or the Company. In the event of a default by
any Underwriter as set forth in this Section 8, the Closing Date shall
be postponed for such period, not exceeding seven days, as the
Representatives shall determine in order that the required changes in
the Registration Statement and the Final Prospectus or in any other
documents or arrangements may be effected. Nothing contained in this
Agreement shall relieve any defaulting Underwriter of its liability, if
any, to the Company and any nondefaulting Underwriter for damages
occasioned by its default hereunder.
9. Termination. This Agreement shall be subject to
termination in the absolute discretion of the Representatives, by notice
given to the Company prior to delivery of and payment for the
Securities, if prior to such time (i) trading in the Company's Common
Stock or Class C Common Stock shall have been suspended by the New York
Stock Exchange or National Association of Securities Dealers Automated
Quotation National Market System or trading in securities generally on
the New York Stock Exchange or National Association of Securities
Dealers Automated Quotation National Market System shall have been
suspended or limited or minimum prices shall have been established on
[either of] such Exchange or market system, (ii) a banking moratorium
shall have been declared either by Federal or New York State authorities
or (iii) there shall have occurred any outbreak or escalation of
hostilities, declaration by the United States of a national emergency or
war or other calamity or crisis the effect of which on financial markets
is such as to make it, in the judgment of the Representatives,
impracticable or inadvisable to proceed with the offering or delivery of
the Securities as contemplated by the Final Prospectus (exclusive of any
supplement thereto).
10. Representations and Indemnities to Survive. The
respective agreements, representations, warranties, indemnities and
other statements of the Company or its officers and of the Underwriters
set forth in or made pursuant to this Agreement will remain in full
force and effect, regardless of any investigation made by or on behalf
of any Underwriter or the Company or any of the officers, directors or
controlling persons referred to in Section 7 hereof, and will survive
delivery of and payment for the
31
Securities. The provisions of Sections 6 and 7 hereof shall
survive the termination or cancellation of this Agreement.
11. Notices. All communications hereunder will be in
writing and effective only on receipt, and, if sent to the
Representatives, will be mailed, delivered or telecopied and confirmed
to them, at the address specified in Schedule I hereto; or, if sent to
the Company, will be mailed, delivered or telecopied and confirmed to it
at 0000 Xxxxxxx Xxxx, Xxxxxxxxx, XX 00000, attention of the Treasurer,
with a copy sent to the Company's counsel, Xxxx, Xxxxxxx & Xxxxxxxx,
P.C., at 0000 Xxxxxxxx Xxxxxxxx Xxxx Xxxxxxxx, Xxxxxxxxxxx, Xxxxxxxxx
00000.
12. Successors. This Agreement will inure to the benefit of
and be binding upon the parties hereto and their respective successors and the
officers and directors and controlling persons referred to in Section 7 hereof,
and no other person will have any right or obligation hereunder.
13. Applicable Law. This Agreement will be governed by
and construed in accordance with the laws of the State of New York
without reference to principles of conflicts of laws.
32
If the foregoing is in accordance with your
understanding of our agreement, please sign and return to us the
enclosed duplicate hereof, whereupon this letter and your acceptance
shall represent a binding agreement among the Company and the several
Underwriters.
Very truly yours,
Coca-Cola Bottling Co.
Consolidated,
By:
Name:
Title:
The foregoing Agreement is hereby confirmed and accepted as of the date
specified in Schedule I hereto.
Citicorp Securities, Inc.
Salomon Brothers Inc
By: Citicorp Securities, Inc.
By:
Name:
Title:
For themselves and the other several Underwriters, if any, named in
Schedule II to the foregoing Agreement.
SCHEDULE I
Underwriting Agreement dated November 1, 1995
Registration Statement No. 33-54657
Representative(s): Citicorp Securities, Inc.
Salomon Brothers Inc
Title, Purchase Price and Description of Securities:
Title: 6.85% Debentures Due 2007
Principal Amount: $100,000,000
Purchase price (include accrued
interest or amortization, if
any): $99,420,138.89 (100% of Principal Amount, less
a discount of 0.675%, plus accrued interest of
$95,138.89).
Sinking fund provisions: None
Redemption provisions: None
Other provisions: Notwithstanding Section 3, payment
will be mady by wire transfer of immediately
available funds
Closing Date, Time and Location: 10:00 a.m. New York City
Time on November 6, 1995 at the offices of Cravath, Swaine &
Xxxxx, 000 Xxxxxx Xxxxxx, Xxx
Xxxx, Xxx Xxxx 00000
Type of Offering: Delayed Offering
Delayed Delivery Arrangements: None
Fee:
Minimum principal amount of each contract: $
Maximum aggregate principal amount of all contracts: $
Date referred to in Section 4(f) after which the Company may offer or sell
debt securities issued or guaranteed by the Company without the consent
of the Representative(s): November 15, 1995
Modification of items to be covered by the letter from Price
Waterhouse LLP delivered pursuant to Section 5(e) at
the Execution Time: None
SCHEDULE II
Principal Amount
of Securities to
Underwriters be Purchased
Citicorp Securities, Inc. $ 50,000,000
Salomon Brothers Inc 50,000,000
Total.............................................................................. $100,000,000
II-1
