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EXHIBIT 1.1
THE COCA-COLA COMPANY
UNDERWRITING AGREEMENT
Atlanta, Georgia
To the Representatives named in Schedule I hereto of
the Underwriters named in Schedule II hereto
Dear Ladies and Gentlemen:
The Coca-Cola Company, a Delaware corporation (the "Company"), proposes
to sell to the underwriters named in Schedule II hereto (the "Underwriters"),
for whom you are acting as representatives (the "Representatives"), certain of
its debt securities ("Purchased Debt Securities") and/or warrants to purchase
certain of its debt securities ("Debt Warrants"), as identified and in an
aggregate principal amount indicated in Schedule I hereto. The Purchased Debt
Securities, the Debt Warrants and the debt securities subject to such Debt
Warrants ("Warrant Debt Securities") are sometimes collectively referred to
herein as the "Securities." The Purchased Debt Securities and the Warrant Debt
Securities are sometimes collectively referred to herein as the "Debt
Securities." The Purchased Debt Securities and the Debt Warrants are sometimes
collectively referred to herein as the "Purchased Securities." The Debt
Securities will be issued under an amended and restated indenture dated as of
April 26, 1988, between the Company and Bankers Trust Company, as trustee (the
"Trustee"), as amended by a first supplemental indenture dated as of February
24, 1992 (as such indenture may be further amended from time to time, the
"Indenture"). The Debt Warrants will be issued under a debt warrant agreement
(the "Debt Warrant Agreement") to be entered into between the Company and a bank
or trust company, as debt warrant agent, specified in Schedule I hereto if Debt
Warrants are being issued. 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, as amended (the
"Act") and has filed with the Securities and Exchange
Commission (the "Commission") one or more
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registration statements (the file number(s) of which is set
forth in Schedule I hereto, one or both such registration
statements being hereinafter referred to as the "Registration
Statement") 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 Securities is a Delayed Offering and,
accordingly, it is not necessary that any further 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 have been included in an amendment to
such Registration Statement prior to 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
the Registration Statement (the file number(s) 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
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
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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 with 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 and the Securities
Exchange Act of 1934 (the "Exchange 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 of
1939, as amended (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) 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, warranties or
agreements as to (i) that part of the Registration Statement which
shall constitute the Statement of Eligibility (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 use in
connection with the preparation of 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, any post-effective amendment
or amendments thereto and any 462(b) Registration Statement became or
becomes effective. "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 any Preliminary Final Prospectus. "Preliminary Final
Prospectus" shall mean any preliminary prospectus supplement to the
Basic Prospectus which
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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 exhibits and financial
statements, as amended at the Execution Time and, in the event any
post-effective amendment thereto or any Rule 462(b) Registration
Statement becomes effective prior to the Closing Date (as hereinafter
defined), shall also mean such registration statement as so amended or
such Rule 462(b) Registration Statement, as the case may be. Such term
shall include any Rule 430A Information deemed to be included therein
at the Effective Date as provided by Rule 430A. "Rule 462(b)
Registration Statement" shall mean a registration statement and any
amendments thereto filed pursuant to Rule 462(b) relating to the
offering covered by the registration statement referred to in paragraph
(a) above. "Rule 415", "Rule 424", "Rule 430A", "Rule 462(b)" and
"Regulation S-K" refers 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 offering of the Securities is a Non-Delayed Offering or a
Delayed Offering shall be set forth in Schedule I hereto.
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2. PURCHASE AND SALE. 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 of the Purchased Securities set forth
opposite such Underwriter's name in Schedule II hereto, except that, if Schedule
I hereto provides for the sale of Purchased Securities pursuant to delayed
delivery arrangements, the respective principal amounts of Purchased 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.
Purchased Securities to be purchased by the Underwriters are herein sometimes
called the "Underwriters' Securities" and Purchased Securities to be purchased
pursuant to Delayed Delivery Contracts as hereinafter provided are herein called
"Contract Securities."
If so provided in Schedule I hereto, the Underwriters are authorized to
solicit offers to purchase Purchased Securities from the Company pursuant to
delayed delivery contracts ("Delayed Delivery Contracts"), substantially in the
form of Schedule III 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, as a fee, the percentage
set forth in Schedule I hereto of the principal amount of the Purchased
Securities for which 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 and
educational and charitable institutions. The Company will enter into Delayed
Delivery Contracts in all cases where sales of Contract Securities arranged by
the Underwriters have been approved by the Company 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 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 Purchased 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 Purchased 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
Purchased 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 Underwriters'
Securities shall be made at the office, on the date and at the time specified in
Schedule I
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hereto (or such later date not later than three 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
Underwriters' Securities being herein called the "Closing Date"). Delivery of
the Underwriters' 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 the
Company by wire transfer payable in immediately available federal funds.
Delivery of the Underwriters' Securities shall be made through the facilities of
The Depository Trust Company unless the Representatives shall otherwise
instruct.
4. AGREEMENTS.
(a) The Company agrees with the several Underwriters that:
(i) 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 or any Rule
462(b) Registration Statement unless the Company has furnished the
Representatives a copy for their review prior to filing and will not
file any such proposed amendment, supplement or Rule 462(b)
Registration Statement to which they 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 (1) when the Final Prospectus, and any
supplement thereto, shall have been filed with the Commission pursuant
to Rule 424(b) or when any Rule 462(b) Registration Statement shall
have been filed with the Commission, (2) when, prior to termination of
the offering of the Securities, any amendment to the Registration
Statement shall have been filed or become effective, (3) of any request
by the Commission for any amendment of the Registration Statement, or
any Rule 462(b) Registration Statement, or supplement to the Final
Prospectus or for any additional information, (4) 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 (5) 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 institution 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.
(ii) 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
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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 prepare and file with the Commission, subject
to the second sentence of paragraph (a)(i) of this Section 4, an
amendment or supplement which will correct such statement or omission
or effect such compliance.
(iii) As soon as practicable, the Company will make generally
available to its security holders and to the Representatives an earning
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.
(iv) 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.
(v) The Company will arrange for the qualification of the
Securities for sale under the laws of such jurisdictions as the
Representatives may designate, will maintain such qualifications in
effect so long as required for the distribution of the Securities and
will arrange for the determination of the legality of the Securities
for purchase by institutional investors.
(vi) Until the business day following the Closing Date, the
Company will not, without the consent of the Representatives, offer,
sell or contract to sell, or announce the offering of, any debt
securities covered by the Registration Statement or any other
registration statement filed under the Act.
(b) If the Securities will be offered and sold in jurisdictions
outside the United States, each Underwriter further agrees and
hereby represents that:
(i) it has not offered or sold, and, prior to the expiration
of the period of six months from the Closing Date, will not offer or
sell any Securities to persons in the United Kingdom, except to those
persons whose ordinary activities involve them in acquiring, holding,
managing or disposing of investments, as principal or agent, for the
purposes of their businesses or otherwise in circumstances which have
not resulted and will not result in an offer to the public in the
United Kingdom within the meaning of the Public Offers of Securities
Regulations 1995, as amended;
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(ii) it has complied and will comply with all applicable
provisions of the Financial Services Xxx 0000, with respect to anything
done by it in relation to the Securities in, from or otherwise
involving the United Kingdom;
(iv) it has only issued or passed on and will only issue or pass
on in the United Kingdom any document received by it in connection with
the issue of the Securities to a person who is of a kind described in
Article 11(3) of the Financial Services Xxx 0000 (Investment
Advertisements) (Exemptions) Order 1996, as amended, or is a person to
whom the document may otherwise lawfully be issued or passed on;
(v) it will not offer or sell any Securities directly or
indirectly in Japan or to, or for the benefit of any Japanese person or
to others, for re-offering or re-sale directly or indirectly in Japan
or to any Japanese person except under circumstances which will result
in compliance with all applicable laws, regulations and guidelines
promulgated by the relevant governmental and regulatory authorities in
effect at the relevant time. For purposes of this paragraph, "Japanese
person" means any person resident in Japan, including any corporation
or other entity organized under the laws of Japan;
(vi) it is aware of the fact that no German selling prospectus
(Verkaufsprospekt) has been or will be published in respect of the sale
of the Securities and that it will comply with the Securities Selling
Prospectus Act (the "SSPA") of the Federal Republic of Germany
(Wertpapier-Verkaufsprospektgesetz). In particular, each underwriter
has undertaken not to engage in public offering (offentliche Anbieten)
in the Federal Republic of Germany with respect to any Securities
otherwise than in accordance with the SSPA and any other act replacing
or supplementing the SSPA and all the other applicable laws and
regulations;
(vii) the Securities are being issued and sold outside the
Republic of France and that, in connection with their initial
distribution, it has not offered or sold and will not offer or sell,
directly or indirectly, any Securities to the public in the Republic of
France, and that it has not distributed and will not distribute or
cause to be distributed to the public in the Republic of France the
Final Prospectus, the Basic Prospectus or any other offering material
relating to the Securities; and
(viii) it and each of its affiliates has not offered or sold,
and it will not offer or sell, the Securities by means of any document
to persons in Hong Kong other than persons whose ordinary business it
is to buy or sell shares or debentures, whether as principal or agent,
or otherwise in circumstances which do not constitute an offer to the
public within the meaning of the Hong Kong Companies Ordinance (Chapter
32 of the Laws of Hong Kong).
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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) The Registration Statement, other than any 462(b)
Registration Statement, has become effective prior to the Execution
Time; if the Company has elected to rely upon Rule 462(b), the Rule
462(b) Registration Statement shall have become effective by 10:00 PM,
Washington, D.C. time, on the date of the Execution Time; 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 King & Spalding, counsel for the Company, or such other
counsel as shall be reasonably acceptable to the Representatives, dated
the Closing Date, to the effect that:
(i) The Company is a corporation validly existing and
in good standing under the laws of the State of Delaware, with
full corporate power and authority to own its properties and
conduct its business as described in the Final Prospectus,
and, to such counsel's knowledge, 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 and wherein a failure to so qualify or be in
good standing would have a material adverse effect upon the
operations or financial position of the Company;
(ii) The Company's authorized equity capitalization
is as set forth in the Final Prospectus; and the Securities
being issued and sold conform in all materials respects to the
description thereof contained in the Final Prospectus;
(iii) This Agreement, the Indenture and any Debt
Warrant Agreement have been duly authorized, executed and
delivered by the Company, the Indenture has been duly
qualified under the Trust Indenture Act, and the Indenture and
any Debt Warrant Agreement each 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, moratorium or other
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laws affecting creditors' rights generally from time to time
in effect and to general principles of equity); and the
Securities have been duly authorized and, when executed and
authenticated in accordance with the provisions of the
Indenture, in the case of the Debt Securities, and the Debt
Warrant Agreement, in the case of the Debt Warrants, 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 entitled to the
benefits of the Indenture, in the case of the Debt Securities,
and the Debt Warrant Agreement, in the case of the Debt
Warrants (subject, as to enforcement of remedies, to
applicable bankruptcy, reorganization, insolvency, moratorium
or other laws affecting creditors' rights generally from time
to time in effect and to general principles of equity);
(iv) (a) The Registration Statement has become
effective under the Act; any required filing of 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); (b) to the 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 and the Statement of Eligibility of the
Trustee as to which such counsel need express no opinion)
comply as to form in all material respects with the applicable
requirements of the Act and the Exchange Act and the
respective rules thereunder; and (c) 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.
(v) No consent, approval or authorization of any
governmental agency or body is required for the issuance and
sale of the Securities, 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 Purchased Securities by the Underwriters
in the manner contemplated by the Final Prospectus;
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(vi) Neither 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 of, or constitute a default under the certificate of
incorporation or by-laws of the Company or, to such counsel's
knowledge, the terms of any indenture or other agreement or
instrument filed or incorporated by reference as an exhibit to
the Registration Statement or to any document filed under the
Exchange Act and incorporated into the Registration Statement,
or any order or regulation known to such counsel to be
applicable to the Company or any of its subsidiaries of any
court, regulatory body, administrative agency, governmental
body or arbitrator having jurisdiction over the Company or any
of its subsidiaries; and
(vii) To such counsel's knowledge, no holders of
securities of the Company have rights to the registration of
such securities under the Registration Statement.
In rendering such opinion, such counsel may state that in
clause (iii) with respect to the validity and enforceability of the
Indenture, any Debt Warrant Agreement and the Securities, and in clause
(v) and in clause (vi) with respect to any statute, rule, regulation or
order of any governmental agency, body or court and the power and
authority of the Company to authorize, issue and sell the Securities,
such counsel has assumed that under the laws of any country in whose
currency any Securities are denominated, if other than in U.S. dollars,
that no consent, approval, authorization or order of, or filing with,
any governmental agency, body or court is required for the consummation
of the transactions contemplated hereunder in connection with the
issuance and sale of the Securities and compliance with the terms and
provisions thereof will not result in any breach or violation of any of
the terms and provisions in any statute, rule, regulation or order of
any governmental agency or body or any court. Such counsel may note
that (a) a New York statute provides that with respect to a foreign
currency obligation a court of the State of New York shall render a
judgment or decree in such foreign currency and such judgment or decree
shall be converted into currency of the United States at the rate of
exchange prevailing on the date of entry of such judgment and (b) with
respect to a foreign currency obligation a United States court in New
York may award judgment in United States dollars, provided that such
counsel expresses no opinion as to the rate of exchange such court
would apply. Further, in rendering such opinion, such counsel may rely
(A) as to matters involving the application of laws of any jurisdiction
other than the State of Georgia, the State of New Yorkor the United
States, or the Delaware General Corporation Law, to the extent deemed
proper and specified in such 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
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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 Xxxxxx & Bird
LLP, 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 Debt Warrant Agreement, 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 or any Executive or Senior Vice 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 Prospectus (exclusive of any
supplement thereto), there has been no material adverse change
in the condition (financial or other), earnings, business or
properties of the Company and its subsidiaries, 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, Ernst & Young 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
- 12 -
13
independent accountants within the meaning of the Act and the
respective applicable published rules and regulations thereunder and
stating in effect that:
(i) In their opinion the audited financial statements
and financial statement schedules included or incorporated in
the Registration Statement and the Final Prospectus and
reported on by them comply as to 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 condensed consolidated financial statements made
available by the Company and its subsidiaries; carrying out
certain procedures specified by the American Institute of
Certified Public Accountants for a review of interim financial
information as described in Statement on Auditing Standards
No. 71 (but not an audit 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 share
owners and the board of directors of the Company; and
inquiries of certain officials of the Company who have
responsibility for financial and accounting matters of the
Company and its subsidiaries 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) the amounts included in the unaudited
"Income Statement Information", if any, included in
the Registration Statement and the Final Prospectus
do not agree with the amounts set forth in the
unaudited condensed consolidated 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; and
the amounts in the "Selected Financial Data" included
or incorporated in the Registration Statement and the
Final Prospectus do not agree with the corresponding
amounts in the unaudited or audited financial
statements from which such amounts were derived;
(2) any unaudited condensed consolidated
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; and said unaudited
- 13 -
14
condensed consolidated 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; or
(3) with respect to the period subsequent to
the date of the most recent financial statements
(other than any capsule information), audited or
unaudited, included or incorporated in the
Registration Statement and the Final Prospectus,
there were any changes, 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 (exclusive of changes due to foreign
currency exchange rates) or capital stock of the
Company (other than issuances of capital stock upon
exercise of stock options, stock swaps and stock
appreciation rights which were outstanding on the
date of the latest consolidated balance sheet
included or incorporated in the Registration
Statement and the Final Prospectus) or decreases in
the share-owners' equity of the Company as 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 operating
revenues of the Company and its subsidiaries, except
in all instances for changes or decreases that the
Registration Statement discloses have occurred or may
occur or as 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; and
(iii) On the basis of performing certain other
procedures, as determined and specified by the Underwriters,
relating to certain information of an accounting, financial or
statistical nature (which is limited to accounting, financial
or statistical information derived from the general accounting
records of and subject to the internal controls of the
accounting systems of the Company and its subsidiaries)
included or incorporated by reference in the Registration
Statement and the Final Prospectus that such information
agrees with the accounting records of the Company and its
subsidiaries, excluding any questions of legal interpretation.
- 14 -
15
References to the Final Prospectus in this paragraph (e)
include any supplement thereto at the date of the letter.
(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 and its subsidiaries 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 the
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 ratings of any of the Company's debt
securities by Xxxxx'x Investors Service, Inc. or Standard & Poor's
Corporation.
(h) Prior to the Closing Date, the Company shall have
furnished to the Representatives such further information, certificates
and documents as the Representatives may reasonably request.
(i) 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.
(j) The Representatives shall have received from counsel,
satisfactory to the Representatives, such opinion or opinions, dated
the Closing Date, with respect to compliance with the laws of any
country, other than the United States, in whose currency Debt
Securities or Debt Warrants are denominated, the validity of the
Securities, the Prospectus and other related matters as they may
require, and the Company shall have furnished to such counsel such
documents as they request for the purpose of enabling them to pass upon
such matters.
(k) If indicated in Schedule I hereto as being applicable to
the offering of any Securities, the Representatives shall have received
an opinion from tax counsel for the Company, satisfactory to the
Representatives and dated the Closing Date, confirming their opinion as
to United States tax matters set forth in the Final Prospectus.
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
- 15 -
16
material respects reasonably satisfactory in form and substance to the
Representatives and its counsel, this Agreement and all obligations of the
Underwriters hereunder may be cancelled 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 facsimile confirmed in writing.
6. REIMBURSEMENT OF UNDERWRITERS' EXPENSES. If the sale of the
Securities provided for herein is not consummated 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 counsel) 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 Underwriter and each person who controls any
Underwriter 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 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 use in connection
with the preparation thereof, and (ii) such indemnity with respect to the Basic
Prospectus or 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 the Basic Prospectus or
- 16 -
17
any 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 and not jointly 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
Company by or on behalf of such Underwriter through the Representatives
specifically for use in the preparation of 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 regarding
delivery of the Securities and, under the heading "Underwriting" or "Plan of
Distribution", (i) the list of Underwriters and their respective participation
in the sale of the Securities, (ii) the sentences related to concessions and
reallowances and (iii) the paragraph related to stabilization, syndicate
covering transactions and penalty bids 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 omission so to notify the indemnifying party (i) will not relieve it
from any 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 which it may have to any indemnified party otherwise than
under this Section 7. In case any such action is brought against any indemnified
party, and it notifies the indemnifying party of the commencement thereof, the
indemnifying party will be entitled to appoint counsel satisfactory to such
indemnified party to represent the indemnified party in such action; provided,
however, that if the defendants in 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, the indemnified party or parties shall have the right to
select separate counsel to defend such action on behalf of such indemnified
party or parties. Upon receipt of notice from the indemnifying party to such
indemnified party of its election so to appoint counsel to defend such action
and
- 17 -
18
approval by the indemnified party of such counsel, the indemnifying party will
not be liable to such indemnified party under this Section 7 for any legal or
other expenses subsequently incurred by such indemnified party in connection
with the defense thereof unless (i) the use of counsel chosen by the
indemnifying party to represent the indemnified party would represent such
counsel with a conflict of interest, (ii) the indemnified party shall have
employed separate counsel in accordance with the proviso to the next preceding
sentence (it being understood, however, that the indemnifying party shall not be
liable for the expenses of more than one separate counsel, approved by the
Representatives in the case of paragraph (a) of this Section 7, representing the
indemnified parties under such paragraph (a) who are parties to such action),
(iii) the indemnifying party shall not have employed counsel reasonably
satisfactory to the indemnified party to represent the indemnified party within
a reasonable time after notice of commencement of the action or (iv) the
indemnifying party has authorized the employment of counsel for the indemnified
party at the expense of the indemnifying party. An indemnifying party shall 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 order to provide for just and equitable contribution in
circumstances in which the indemnification provided for in paragraph (a) or (b)
of this Section 7 is due in accordance with its terms but is for any reason held
by a court to be unavailable from the Company on grounds of policy or otherwise,
the Company and the Underwriters shall contribute to the aggregate losses,
claims, damages and liabilities (including legal or other expenses reasonably
incurred in connection with investigation 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 on the one hand and by the Underwriters on the other
from the offering of the Securities; provided, however, that in no 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 severally shall contribute in such proportion as is appropriate
to reflect not only such relative benefits but also the relative fault of the
Company on the one hand and of the Underwriters on the other in connection with
the statements or omissions which resulted in such Losses as well as any other
relevant equitable considerations. Benefits received by the Company shall be
deemed to be equal to the total net proceeds from the offering (before deducting
expenses) received by it, 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, among other
- 18 -
19
things, whether any untrue or any alleged untrue statement of a material fact or
the omission or alleged omission to state a material fact relates to information
provided by the Company on the one hand or the Underwriters on the other, the
intent of the parties and their relative knowledge, access to information and
opportunity to correct or prevent such untrue statement or omission. 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 the Act 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 preceding sentence of this paragraph (d). Any party entitled to
contribution will, promptly after receipt of notice of commencement of any
action, suit or proceeding against such party in respect of which a claim for
contribution may be made against another party or parties under this paragraph
(d), notify such party or parties from whom contribution may be sought, but the
omission to so notify such party or parties shall not relieve the party or
parties from whom contribution may be sought from any other obligation it or
they may have hereunder or otherwise than under this paragraph (d).
8. DEFAULT BY AN UNDERWRITER. It any one or more Underwriters shall
fail to purchase and pay for any of the Purchased 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 Purchased Securities set forth opposite their names in Schedule II hereto
bears to the aggregate amount of Purchased Securities set forth opposite the
names of all the remaining Underwriters) the Purchased Securities which the
defaulting Underwriter or Underwriters agreed but failed to purchase; provided,
however, that in the event that the aggregate amount of Purchased Securities
which the defaulting Underwriter or Underwriters agreed but failed to purchase
shall exceed 10% of the aggregate amount of Purchased Securities set forth in
Schedule II hereto, the remaining Underwriters shall have the right to purchase
all, but shall not be under any obligation to purchase any, of the Purchased
Securities, and if such nondefaulting Underwriters do not purchase all the
Purchased 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
Final Prospectus or in any other documents or arrangements may be effected. As
used in this Section 8 only, the "aggregate amount" of Purchased Securities
shall mean the aggregate
- 19 -
20
principal amount of any Purchased Debt Securities plus the public offering price
of any Debt Warrants included in the relevant offering of Purchased Securities.
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 Purchased Securities, if prior to such time
(i) trading in the Company's common stock shall have been suspended by the
Commission or the New York Stock Exchange or trading in securities generally on
the New York Stock Exchange shall have been suspended or limited or minimum
prices shall have been established on such Exchange, (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 material escalation of
hostilities or other calamity or crisis the effect of which on the financial
markets of the United States is such as to make it, in the judgment of the
Representatives, impracticable to market the Purchased Securities.
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 Purchased 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 sent by facimile and confirmed to them, at the address specified in
Schedule I hereto; or, if sent to the Company, will be mailed, delivered or sent
by facsimile and confirmed to it at Xxx Xxxx-Xxxx Xxxxx, Xxxxxxx, Xxxxxxx 00000,
to the attention of the Treasurer, with a copy to the attention of the General
Counsel of the Company at the same address.
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.
[Signatures on Following Page]
- 20 -
21
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 between the
Company and the several Underwriters.
Very truly yours,
THE COCA-COLA COMPANY
By:
--------------------------------------
Name:
------------------------------------
Title:
-----------------------------------
The foregoing Agreement is hereby
confirmed and accepted as of the date
specified in Schedule I hereto.
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
For itself/themselves and the
other several Underwriters, if
any, named in Schedule II to the
foregoing Agreement.
- 21 -
22
SCHEDULE I
Underwriting Agreement dated:
Registration Statement No(s).:
Representative(s):
PURCHASED DEBT SECURITIES
Title:
Principal amount:
Interest Rate: % per annum from
Payable:
Maturity:
Currency of Denomination:
Currency of Payment:
Form and Denomination:
Sinking fund provisions:
Redemption provisions:
Purchase price (including accrued interest or amortization, if any): %
Expected reoffering price: %
Type of Offering:
Delayed Delivery Arrangements:
Delivery Date:
Percentage Fee:
Minimum principal amount of each contract:
Maximum aggregate principal amount of all contracts:
I - 1
23
DEBT WARRANTS
Number of Debt Warrants to be issued:
Debt Warrant Agreement:
Form of Debt Warrants: Registered
Issuable jointly with Debt Securities: [Yes] [No]
[Number of Debt Warrants issued with each $ principal amount of
Debt Securities: ]
[Detachable Date.]
Date from which Debt Warrants are exercisable:
Date on which Debt Warrants expire:
Exercise price of Debt Warrants:
Title of Warrant Debt Securities:
Principal amount of Warrant Debt Securities purchasable upon exercise of one
Debt Warrant:
Description of Debt Warrant Securities:
Interest Rate: % from 200 , payable:
Maturity:
Currency of Denomination:
Currency of Payment:
Form and Denomination:
Sinking Fund Provisions:
Redemption Provisions:
Purchase price of Debt Warrants: $
I - 2
24
Expected reoffering price of Debt Warrants: $
---------------------
Tax Opinion pursuant to Section 5(k):
The Closing will take place at 9:00 AM, New York City time, on______________, at
the offices of King & Spalding, 000 Xxxxxxxxx Xxxxxx, Xxxxxxx, Xxxxxxx.
I - 3
25
SCHEDULE II
PRINCIPAL AMOUNT OF
SECURITIES TO BE
UNDERWRITERS PURCHASED
------------ -------------------
$
Total .................................... $
================
II - 1
26
SCHEDULE III
DELAYED DELIVERY CONTRACT
__________, 20__
[Insert name and address
lead Representative]
Dear Sirs:
The undersigned hereby agrees to purchase from The Coca-Cola Company
(the "Company"), and the Company agrees to sell to the undersigned, on
__________, 20__, (the "Delivery Date"), $______________ principal amount of the
Company's _________ (the "Securities") offered by the Company's Prospectus dated
__________, 20__, receipt of a copy of which is hereby acknowledged, at a
purchase price of _____% of the principal amount thereof, plus [accrued
interest] _________ [amortization of original issue discount], if any, thereon
from __________, 20__, to the date of payment and delivery, and on the further
terms and conditions set forth in this contract.
Payment for the Securities to be purchased by the undersigned shall be
made on or before 11:00 AM, New York City time, on the Delivery Date to the
Company in immediately available federal funds, at your office or at such other
place as shall be agreed between the Company and the undersigned, upon delivery
to the undersigned of the Securities in definitive form fully registered in the
name of the undersigned and issued in a denomination equal to the aggregate
principal amount of Securities to be purchased by the undersigned on the
Delivery Date.
The obligation of the undersigned to take delivery of and make payment
for Securities on the Delivery Date, and the obligation of the Company to sell
and deliver Securities on the Delivery Date, shall be subject to the conditions
(and neither party shall incur any liability by reason of the failure thereof)
that (1) the purchase of Securities to be made by the undersigned, which
purchase the undersigned represents is not prohibited on the date hereof, shall
not on the Delivery Date be prohibited under the laws of the jurisdiction to
which the undersigned is subject, and (2) the Company, on or before the Delivery
Date, shall have sold to certain underwriters (the "Underwriters") such
principal amount of the Securities as is to be sold to them pursuant to the
Underwriting Agreement referred to in the Prospectus and Prospectus Supplement
mentioned above. Promptly after completion of such sale to the Underwriters, the
Company will mail or deliver to the undersigned at its address set forth below
notice to such effect, accompanied by a copy of the opinion of counsel for the
Company delivered to the Underwriters in connection therewith. The obligation of
the undersigned to take delivery of and make payment for the Securities, and the
obligation of the Company to cause the Securities to be sold and delivered,
shall not be affected by the failure of any purchaser to take
III - 1
27
delivery of and make payment for the Securities pursuant to other contracts
similar to this contract.
This contract will inure to the benefit of and be binding upon the
parties hereto and their respective successors, but will not be assignable by
either party hereto without the written consent of the other.
It is understood that acceptance of this contract and other similar
contracts is in the Company's sole discretion and, without limiting the
foregoing, need not be on a first come, first served basis. If this contract is
acceptable to the Company, it is required that the Company sign the form of
acceptance below and mail or deliver one of the counterparts hereof to the
undersigned at its address set forth below. This will become a binding contract
between the Company and the undersigned, as of the date first above written,
when such counterpart is so mailed or delivered.
This Agreement shall be governed by and construed in accordance with
the laws of the State of New York.
Very truly yours,
(Name of Purchaser)
By:
------------------------------------
(Signature and Title of Officer)
(Address)
Accepted:
The Coca-Cola Company
By:
-------------------------------
(Authorized Signature)
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