Exhibit 1.1
Coca-Cola Bottling Co. Consolidated
UNDERWRITING AGREEMENT
New York, New York
March 21, 2003
Xxxxxxx Xxxxx Xxxxxx Inc.
Wachovia Securities, Inc.
As Representatives of the several
Underwriters named in Schedule I
c/o Xxxxxxx Xxxxx Barney Inc.
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Coca-Cola Bottling Co. Consolidated, a Delaware corporation (the
"Company"), proposes to sell to the underwriters named in Schedule I hereto (the
"Underwriters"), for whom you (the "Representatives") are acting as
representatives, $100,000,000 principal amount of its 5.30% Senior Notes due
2015 (the "Securities"). The Securities are to be issued pursuant to an
indenture (the "Indenture") dated as of July 20, 1994 between the Company and
NationsBank of Georgia, National Association, as trustee (the initial
"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 effective
September 15, 1995).
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 Securities Exchange Act of 1934,
as amended (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. Certain terms used in this Agreement
are defined in Section 16 hereof.
SECTION 1. Representations and Warranties. The Company represents and
warrants to, and agrees with, each Underwriter as set forth below in this
Section 1.
(a) 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 (File No.
333-71003) 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, 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.
(b) On the Effective Date, the Registration Statement did or will, and when
the Final Prospectus is first filed 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 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) 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) Since September 29, 2002, except as otherwise stated in the
Registration Statement: (i) there has been no material adverse change in the
condition, financial or otherwise, prospects, earnings, business or properties
of the Company and its subsidiaries, including Piedmont Coca-Cola Bottling
Partnership ("Piedmont"), considered as one enterprise, whether or
2
not arising in the ordinary course of business (a "Material Adverse Change"),
(ii) there have been no transactions entered into by the Company or any of its
subsidiaries, other than those in the ordinary course of business, which are
material with respect to the Company and its subsidiaries considered as one
enterprise and (C) there has been no dividend or distribution of any kind
declared, paid or made by the Company on any class of its capital stock, other
than regular quarterly dividends declared, paid or made in the ordinary course
and consistent with past practices.
(d) Each of the Company and its consolidated subsidiaries has been duly
organized or incorporated and is validly existing as a partnership, corporation
or limited liability company in good standing under the laws of its respective
jurisdiction of organization, with full power and authority to own, lease and
operate its properties and conduct its business as described in the Final
Prospectus, and is duly qualified or registered to do business as a foreign
partnership, corporation or limited liability company and is in good standing
under the laws of each jurisdiction which requires such qualification or
registration, except where the failure to so qualify or register would not
reasonably be expected to have, individually or in the aggregate, a Material
Adverse Effect (as hereinafter defined).
(e) All of the issued and outstanding shares of capital stock, partnership
interests, limited liability company interests or other ownership interests, as
the case may be (collectively, the "Ownership Interests"), of each consolidated
subsidiary have been duly and validly authorized and issued, and, with respect
to each corporate subsidiary, are fully paid and non-assessable, and, except as
otherwise set forth in the Final Prospectus, all of the Ownership Interests of
each of the consolidated subsidiaries are owned by the Company either directly
or through wholly owned subsidiaries free and clear of any perfected security
interest or any other security interests, claims, liens or encumbrances.
(f) The Company's authorized equity capitalization is as set forth in the
Final Prospectus.
(g) 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 thereto, which is not described or filed as required.
(h) This Agreement has been duly authorized, executed and delivered by the
Company.
(i) The Indenture has been duly authorized, executed and delivered by the
Company and (assuming due authorization and execution thereof by the Trustee)
constitutes a valid and binding agreement of the Company enforceable against the
Company in accordance with its terms, subject to the effects of bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium and other similar
laws relating to or affecting creditors' rights generally; and the Securities
have been duly authorized, and, when duly executed, authenticated, issued and
delivered against payment therefor, will be duly and validly issued and
outstanding, and will constitute valid and binding obligations of the Company
entitled to the benefits of the Indenture and enforceable in accordance with
their terms, except as enforcement thereof may be limited by bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium and other similar
3
laws relating to or affecting creditors' rights generally; and the Securities,
when issued and delivered, will conform to the description thereof contained in
the Final Prospectus.
(j) The Company is not and, after giving effect to the offering and sale of
the Securities and the application of the proceeds thereof as described in the
Final Prospectus, will not be an "investment company" as defined in the
Investment Company Act of 1940, as amended.
(k) No consent, approval, authorization, prior filing with or order of any
court or governmental agency or body is required in connection with the
transactions contemplated herein, 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 in the manner contemplated herein and in the Final Prospectus.
(l) Neither the issue and sale of the Securities nor the consummation of
any other of the transactions herein contemplated will in any material respects
conflict with, or result in a breach or violation or imposition of any lien,
charge or encumbrance upon any property or assets of the Company or any of its
subsidiaries pursuant to, (i) the charter or by-laws of the Company or any of
its subsidiaries, (ii) the terms of any indenture, contract, lease, mortgage,
deed of trust, note agreement, loan agreement or other agreement, obligation,
condition, covenant or instrument to which the Company or any of its
subsidiaries is a party or bound or to which its or their property is subject,
or (iii) any statute, law, rule, regulation, judgment, order or decree
applicable to the Company or any of its subsidiaries of any court, regulatory
body, administrative agency, governmental body, arbitrator or other authority
having jurisdiction over the Company or any of its subsidiaries or any of its or
their properties.
(m) The consolidated historical financial statements and schedules of the
Company and its consolidated subsidiaries included or incorporated by reference
in the Final Prospectus and the Registration Statement present fairly in all
material respects the financial condition, results of operations and cash flows
of the Company as of the dates and for the periods indicated, comply as to form
with the applicable accounting requirements of the Act and have been prepared in
conformity with generally accepted accounting principles applied on a consistent
basis throughout the periods involved (except as otherwise noted therein). The
pro forma financial information included in the Final Prospectus and the
Registration Statement reflects assumptions that provide a reasonable basis for
presenting the significant effects directly attributable to the transactions and
events described therein, the related pro forma adjustments give appropriate
effect to those assumptions, and the pro forma adjustments reflect the proper
application of those adjustments to the historical financial statement amounts
in the pro forma financial statements included in the Final Prospectus and the
Registration Statement. The pro forma financial information included in the
Final Prospectus and the Registration Statement complies as to form in all
material respects with the applicable accounting requirements of Regulation S-X
under the Act and the pro forma adjustments have been properly applied to the
historical amounts in the compilation of those statements.
(n) No action, suit or proceeding by or before any court or governmental
agency, authority or body or any arbitrator involving the Company or any of its
subsidiaries or its or their property is pending or, to the best knowledge of
the Company, threatened that (i) could
4
reasonably be expected to have a material adverse effect on the performance of
this Agreement or the consummation of any of the transactions contemplated
hereby or (ii) could reasonably be expected to have, individually or in the
aggregate, a material adverse effect on the condition, financial or otherwise,
prospects, earnings, business or properties of the Company and its subsidiaries,
including Piedmont, considered as one enterprise, whether or not arising in the
ordinary course of business (a "Material Adverse Effect"), except as set forth
in or contemplated in the Final Prospectus (exclusive of any supplement
thereto).
(o) To the extent such statute is applicable, the Company and each of its
subsidiaries has complied with all provisions of Section 517.075 of the Florida
Statutes (Chapter 92-198, Laws of Florida), relating to disclosure of doing
business with the government of Cuba or with any person or affiliate located in
Cuba.
(p) Neither the Company nor any subsidiary is in violation or default of
(i) any provision of its charter or bylaws, (ii) the terms of any indenture,
contract, lease, mortgage, deed of trust, note agreement, loan agreement or
other agreement, obligation, condition, covenant or instrument to which it is a
party or bound or to which its property is subject, or (iii) any statute, law,
rule, regulation, judgment, order or decree of any court, regulatory body,
administrative agency, governmental body, arbitrator or other authority having
jurisdiction over the Company or such subsidiary or any of its properties, as
applicable, which violation or default described in clauses (i), (ii) or (iii)
would reasonably be expected to have, individually or in the aggregate, a
Material Adverse Effect.
(q) PricewaterhouseCoopers LLP, who have certified certain financial
statements of the Company and its consolidated subsidiaries and delivered their
report with respect to the audited consolidated financial statements and
schedules included in the Final Prospectus, are independent public accountants
with respect to the Company within the meaning of the Act and the applicable
published rules and regulations thereunder.
(r) Except in any case in which the failure so to do would not reasonably
be expected to have, individually or in the aggregate, a Material Adverse Effect
or except as set forth in or contemplated in the Final Prospectus (exclusive of
any supplement thereto), the Company has filed all foreign, federal, state and
local tax returns that are required to be filed or has requested extensions
thereof and has paid all taxes required to be paid by it and any other
assessment, fine or penalty levied against it, to the extent that any of the
foregoing is due and payable, except for any such assessment, fine or penalty
that is currently being contested in good faith.
(s) No labor problem or dispute with the employees of the Company or any of
its subsidiaries exists or is threatened or imminent, and the Company is not
aware of any existing or imminent labor disturbance by the employees of any of
its or its subsidiaries' principal suppliers, contractors or customers, that in
any such case referred to in this paragraph (s) would reasonably be expected to
have, individually or in the aggregate, a Material Adverse Effect, except as set
forth in or contemplated in the Final Prospectus (exclusive of any supplement
thereto).
(t) The Company and its subsidiaries possess all licenses, certificates,
permits and other authorizations issued by the appropriate federal, state or
foreign regulatory authorities necessary to conduct their respective businesses,
and neither the Company nor any such
5
subsidiary has received any notice of proceedings relating to the revocation or
modification of any such certificate, authorization or permit which, if the
subject of an unfavorable decision, ruling or finding, would reasonably be
expected to have, individually or in the aggregate, a Material Adverse Effect,
except as set forth in or contemplated in the Final Prospectus (exclusive of any
supplement thereto).
(u) The Company has not taken, directly or indirectly, any action designed
to or which has constituted or which might reasonably be expected to cause or
result, under the Exchange Act or otherwise, in stabilization or manipulation of
the price of any security of the Company to facilitate the sale or resale of the
Securities.
(v) The Company and its subsidiaries are (i) in compliance with any and all
applicable foreign, federal, state and local laws and regulations relating to
the protection of human health and safety, the environment or hazardous or toxic
substances or wastes, pollutants or contaminants ("Environmental Laws"), (ii)
have received and are in compliance with all permits, licenses or other
approvals required of them under applicable Environmental Laws to conduct their
respective businesses and (iii) have not received notice of any actual or
potential liability for the investigation or remediation of any disposal or
release of hazardous or toxic substances or wastes, pollutants or contaminants,
except where such non-compliance with Environmental Laws, such failure to
receive required permits, licenses or other approvals, or such liability would
not reasonably be expected to have, individually or in the aggregate, a Material
Adverse Effect, except as set forth in or contemplated in the Final Prospectus
(exclusive of any supplement thereto).
(w) In the ordinary course of its business, the Company periodically
reviews the effect of Environmental Laws on the business, operations and
properties of the Company and its subsidiaries, in the course of which it
identifies and evaluates associated costs and liabilities (including, without
limitation, any capital or operating expenditures required for clean-up, closure
of properties or compliance with Environmental Laws, or any permit, license or
approval, any related constraints on operating activities and any potential
liabilities to third parties). On the basis of such review, the Company has
reasonably concluded that such associated costs and liabilities would not
reasonably be expected to have, individually or in the aggregate, a Material
Adverse Effect, except as set forth in or contemplated in the Final Prospectus
(exclusive of any supplement thereto).
(x) The Company and its subsidiaries own, possess, license or have other
rights to use all patents, patent applications, trade and service marks, trade
and service xxxx registrations, trade names, copyrights, licenses, inventions,
trade secrets, technology, know-how and other intellectual property
(collectively, the "Intellectual Property") necessary in all material respects
for the conduct of the Company's business as now conducted or as proposed in the
Final Prospectus to be conducted.
Any certificate signed by any officer of the Company and delivered to the
Representatives or counsel for the Underwriters in connection with the offering
of the Securities shall be deemed a representation and warranty by the Company,
as to matters covered thereby, to each Underwriter.
6
SECTION 2. Purchase and Sale; Offering by the Underwriters.
(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 a purchase price of 99.236% of the principal
amount thereof, the principal amount of the Securities set forth opposite such
Underwriter's name in Schedule I hereto, with the terms of such Securities being
as described in the Final Prospectus.
(b) Upon authorization by the Representatives of the release of the
Securities, the several Underwriters propose to offer the Securities for sale to
the public upon the terms and conditions set forth in the Final Prospectus.
SECTION 3. Delivery and Payment. Delivery of and payment for the Securities
shall be made at the office of Mayer, Brown, Xxxx & Maw at 9:00 A.M., Chicago
time, on the fourth full business day following the date of this Agreement or at
such other date or place as shall be determined by agreement between the
Representatives and the Company (such date and time of delivery and payment for
the Securities being herein called the "Closing Date"). Delivery of the
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 wire transfer payable in same day funds to an account specified by
the Company. Delivery of the Securities shall be made through the facilities of
The Depository Trust Company unless the Representatives shall otherwise
instruct. The Company agrees to have the Securities available for inspection,
checking and packaging by the Representatives in New York, New York, not later
than 1:00 PM on the business day prior to the Closing Date.
SECTION 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
7
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 or the suspension of any such qualification
and, if issued, to obtain as soon as possible the withdrawal thereof.
(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) notify the
Representatives of such event, (ii) 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 (iii) 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 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.
(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 for
sale under the laws of such jurisdictions as the Representatives may designate
(provided, however, that in connection therewith, the Company will 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, and will pay any fee of the
National Association of Securities Dealers, Inc., in connection with its review,
if any, of the offering.
(f) Until the date immediately following the Closing Date, the Company will
not, without the prior written consent of the Representatives, offer, sell,
contract to sell or otherwise dispose of, directly or indirectly, or announce
the offering of any debt securities issued or guaranteed by the Company (other
than the Securities).
(g) The Company will not take, directly or indirectly, any action designed
to or which has constituted or which might reasonably be expected to cause or
result, under the Exchange
8
Act or otherwise, in stabilization or manipulation of the price of any security
of the Company to facilitate the sale or resale of the Securities.
SECTION 5. Conditions to the Obligations of the Underwriters. The obligations
of the Underwriters to purchase the 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) 9:30 AM New York City time 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, will be 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 written
opinion of Xxxxxxx Xxxxxxxxx Xxxxxxx & Xxxxxxx, L.L.P., counsel for the Company,
dated the Closing Date and addressed to the Underwriters, in the form attached
hereto as Exhibit A.
(c) The Representatives shall have received from Mayer, Brown, Xxxx &
Maw, counsel or the Underwriters, such opinion or opinions, dated the Closing
Date and addressed to the Representatives, with respect to the issuance and sale
of the Securities, the Indenture, 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 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;
9
(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, except as set forth in or contemplated in
the Final Prospectus (exclusive of any supplement thereto).
(e) The Company shall have requested and caused PricewaterhouseCoopers
LLP to have furnished to the Representatives, at the Execution Time and at the
Closing Date, letters, dated respectively as of the Execution Time and 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 rules and regulations adopted
by the Commission 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 described in, Statement
of Auditing Standards No. 71 for the latest unaudited financial statements
included 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, including 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, including
Piedmont; 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, including Piedmont; carrying out
certain specified procedures (but not 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 its consolidated subsidiaries and of the
partnership proceedings of Piedmont; and inquiries of certain officials of
the Company and its subsidiaries, including Piedmont, who have
responsibility for financial and accounting matters of the Company and its
subsidiaries, including 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
10
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, included 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,
including Piedmont, or capital stock of the Company, or decreases in
the stockholders' 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
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 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 accounting,
financial or statistical nature (which is limited to accounting, financial
or statistical information derived from the general accounting records of
the Company and its subsidiaries, including 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 and 7 of the Company's Annual report on Form 10-K,
incorporated in the Registration Statement and the Final 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 by reference in
the Registration Statement and the Final Prospectus, agrees with the
accounting records of the Company and its subsidiaries, including Piedmont,
excluding any questions of legal interpretation; and
11
(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 its subsidiaries, including Piedmont, 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.
(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 condition,
financial or otherwise, prospects, earnings, business or properties of the
Company and its subsidiaries, including Piedmont, whether or not arising from
transactions in the ordinary course of business, 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) 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 in order to evidence or
confirm the accuracy of the Company's representations and warranties set forth
herein, the performance by the Company of its obligations hereunder to be
performed at or before the Closing Date, and the fulfillment of the conditions
set forth herein.
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
12
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.
The documents required to be delivered by this Section 5 shall be delivered
at the office of Mayer, Brown, Xxxx & Maw, counsel for the Underwriters, at 000
Xxxxx XxXxxxx Xxxxxx, Xxxxxxx, XX 00000, on the Closing Date.
SECTION 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 one Underwriters' counsel and one local counsel in each
jurisdiction) that shall have been incurred by them in connection with the
proposed purchase and sale of the Securities.
SECTION 7. Indemnification and Contribution.
(a) The Company agrees to indemnify and hold harmless each Underwriter,
the directors, officers, employees and agents of 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 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
13
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 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, set forth
under the heading "Underwriting" in the Final Prospectus, (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
paragraphs related to stabilization, syndicate covering transactions and penalty
bids constitute the only information furnished in writing by or on behalf of the
several Underwriters for inclusion in any Preliminary Prospectus or the Final
Prospectus.
(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
reasonably 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
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 reasonably 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
14
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)
that would otherwise be subject to indemnity pursuant to paragraph (a) or (b)
above (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 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
nor shall the Company be required to contribute to any Losses for which it would
not be required to provide indemnity pursuant to paragraph (a) above. 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
things, whether any untrue or 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 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).
SECTION 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
15
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 I hereto bears to the aggregate principal amount 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 principal amount of Securities set
forth in Schedule I hereto, the remaining Underwriters shall have the right to
purchase all, 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 five business 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.
SECTION 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 at any time after the
Execution Time and prior to such time (i) there has been any Material Adverse
Change, (ii) trading in the Company's Common Stock shall have been suspended by
the Commission or the 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 such Exchange or market system, (iii) a
banking moratorium shall have been declared either by Federal or New York State
authorities or (iv) 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).
SECTION 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 Securities. The provisions of
Sections 6 and 7 hereof shall survive the termination or cancellation of this
Agreement.
SECTION 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 to the Xxxxxxx Xxxxx Barney Inc. General Counsel (fax
no.: 000.000.0000) and confirmed to the General Counsel, Xxxxxxx Xxxxx Xxxxxx
Inc., at 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx, 00000
16
Attention: General Counsel; or, if sent to the Company, will be mailed,
delivered or telecopied to the Company's Treasurer (fax no.: 000.000.0000) and
confirmed to it at Coca-Cola Corporate Center, 0000 Xxxx-Xxxx Xxxxx, Xxxxxxxxx,
XX 00000, attention of the Treasurer, with a copy sent to the Company's counsel,
Xxxxxxx Xxxxxxxxx Xxxxxxx & Xxxxxxx, L.L.P., at Hearst Tower, 000 X. Xxxxx
Xxxxxx, 00/xx/ Xxxxx, Xxxxxxxxx, XX 00000.
SECTION 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.
SECTION 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.
SECTION 14. Counterparts. This Agreement may be signed in one or more
counterparts, each of which shall constitute an original and all of which
together shall constitute one and the same agreement.
SECTION 15. Headings. The section headings used herein are for convenience only
and shall not affect the construction hereof.
SECTION 16. Definitions. The terms which follow, when used in this Agreement,
shall have the meanings indicated.
(a) "Basic Prospectus" shall mean the prospectus referred to in Section
1(a) above contained in the Registration Statement at the Effective Date.
(b) "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.
(c) "Execution Time" shall mean the date and time that this Agreement is
executed and delivered by the parties hereto.
(d) "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 included in the Registration Statement
at the Effective Date.
(e) "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.
(f) "Registration Statement" shall mean the registration statement
referred to in Section 1(a), including incorporated documents, exhibits and
financial statements, as amended at the Execution Time and, in the event any
post-effective amendment thereto becomes effective
17
prior to the Closing Date (as hereinafter defined), shall also mean such
registration statement as so amended.
(g) "Rule 415," "Rule 424" and "Regulation S-K" refer to such rules or
regulation under the Act.
18
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: /s/ Xxxxxxxx X. Deal, III
--------------------------------
Name: Xxxxxxxx X. Deal, III
Title: Vice President & Treasurer
The foregoing Agreement is hereby
confirmed and accepted as of the
date first above written.
XXXXXXX XXXXX XXXXXX INC.
WACHOVIA SECURITIES, INC.
BY: XXXXXXX XXXXX BARNEY INC.
By: /s/ Xxxxx Xxxx
----------------------
Name: Xxxxx Xxxx
Title: Vice President
For itself and the other
Underwriters named in
Schedule I attached hereto.
SCHEDULE I
Principal Amount
of Securities to
Underwriters be Purchased
Xxxxxxx Xxxxx Xxxxxx Inc. ............................. $ 52,500,000
Wachovia Securities, Inc. ............................. 30,000,000
SunTrust Capital Markets, Inc. ........................ 12,500,000
Fleet Securities, Inc. ................................ 5,000,000
Total ......................................... $100,000,000
============
