EXHIBIT A
AGREEMENT
AGREEMENT dated December 22, 1988 (the "Agreement") between The Coca-Cola
Company, a Delaware corporation ("KO"), and Coca-Cola Enterprises Inc., a
Delaware corporation ("CCE").
WHEREAS, the Board of Directors of CCE has determined that it is in the
best interests of CCE to purchase up to 25,000,000 outstanding shares of the
Common Stock, par value $1.00 per share, of CCE (the "CCE Common Stock") through
a share repurchase program anticipated to be completed on or before December 31,
1990, all subject to an agreement between KO and CCE to the effect that KO would
sell CCE Common Stock to CCE (the "Repurchase Program").
WHEREAS, KO and CCE deem it advisable for the benefit of KO and CCE and
their respective shareholders, that in conjunction with said Repurchase Program,
CCE repurchase shares of CCE Common Stock owned by KO and its direct and
indirect wholly owned subsidiaries (the "KO Holders") on the terms and subject
to the conditions set forth in this Agreement; and
WHEREAS, KO and CCE agree that both will benefit from the KO Holders
continuing to hold 49 percent of the outstanding shares of CCE Common Stock and
wish to provide for such; and
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WHEREAS, KO and CCE wish to provide for certain additional matters
described herein in connection with such repurchase of shares of CCE Common
Stock from the KO Holders.
NOW, THEREFORE, in consideration of the premises and the mutual covenants
set forth herein, KO and CCE, intending to be legally bound, agree as follows:
Section 1. Initial Repurchase of CCE Common Stock from KO.
(a) CCE currently intends to repurchase from such of the KO Holders as KO
shall designate on a closing date in 1988 (the "1988 Closing Date") as may be
established by CCE at its sole discretion as herein provided, and KO agrees to
sell, transfer and deliver to CCE on the fourth business day after receipt by KO
of written notice from CCE, an aggregate of up to but not more than 8,000,000
shares of CCE Common Stock as shall be set forth in such notice by CCE (the
"Initial Shares") at a price per share (the "1988 Purchase Price") equal to the
average of the high and low sales prices of CCE Common Stock on the New York
Stock Exchange ("NYSE") as reported in The Wall Street Journal, New York Stock
Exchange Composite Transactions for the five full trading days ending on the
date immediately preceding the date on which KO receives such notice from CCE.
CCE shall not be obligated to purchase any Initial Shares from the KO Holders
unless and until CCE shall have provided the notice described above.
(b) KO shall have sole discretion as to the allocation of shares to be
repurchased pursuant to this Section 1 among the KO Holders.
(c) The closing of the repurchase of the Initial Shares shall be made by
noon on the closing date at the offices of KO in Atlanta, Georgia and payment
for the Initial Shares shall be made in immediately available funds
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by wire transfer to the account of KO in accordance with KO's written
instructions upon tender by KO of certificates evidencing the number of shares
of CCE Common Stock equal to the number of Initial Shares accompanied by
executed stock powers.
(d) CCE shall prudently continue with its Rule 10b-18 share Repurchase
Program at least until the KO holders are restored to an aggregate 49 percent
ownership interest in CCE unless CCE receives advice of its counsel that it is
legally prohibited from continuing such program or unless such continuance would
violate any fiduciary duty of CCE.
(e) At no time shall CCE repurchase a number of shares from the public
which would cause the KO Holders to own, in the aggregate at any specific time,
50 percent or more of the outstanding common shares of CCE.
(f) The 1988 Purchase Price shall be adjusted, up or down, based upon the
aggregate purchase price, net of commissions, paid by CCE for that number of
shares of CCE Common Stock purchased by CCE from shareholders other than KO
Holders under this Section 1 and Section 2 hereof equal to the number of Initial
Shares (the "Initial Public Shares"). KO or CCE, as the case may be, shall pay
to the other, within five (5) business days after the date upon which CCE shall
have acquired from shareholders other than the KO Holders a number of shares
equal to the number of Initial Shares, the difference between the aggregate 1988
Purchase Price for the Initial Shares and the aggregate purchase price, net of
commissions, for the Initial Public Shares (the "Adjusting Payment"). If CCE has
not purchased the Initial Public Shares by
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December 31, 1989, then the Adjusting Payment shall be calculated based
upon the weighted average purchase price, net of commissions, paid by CCE to
shareholders other than the KO Holders for the purchase of CCE Common Stock, in
December 1988 and calendar year 1989; provided that CCE shall, by December 31,
1989, have purchased sufficient shares of CCE Common Stock to restore the KO
Holders to an aggregate 49 percent ownership interest in CCE. If CCE shall not
have acquired such number of shares, then the Adjusting Payment shall be made
when CCE does purchase a sufficient number of CCE Common Stock to restore the KO
Holders to such 49 percent ownership interest and at the weighted average price
per share, net of commissions, paid by CCE for such shares. If, at any time
prior to making the Adjusting Payment, CCE shall determine in accordance with
the standards set forth in Section 1(d) hereof that it is prudent to terminate
the Repurchase Program, it shall provide written notice thereof to KO and the
Adjusting Payment shall be calculated based upon the weighted average purchase
price, net of commissions, paid by CCE to shareholders other than the KO Holders
for the purchase of CCE Common Stock; provided, however, if CCE shall have
purchased fewer than two million shares of its Common Stock from shareholders
other than KO Holders, then the Adjusting Payment shall not be made with respect
to all of the Initial Shares, but instead will be made only with respect to that
number of the Initial Shares equal to the number of shares purchased from
shareholders other than KO Holders.
(g) KO or CCE, as the case may be, shall, in addition to payment of the
Adjusting Payment, pay interest on the Adjusting Payment at the 30 day composite
AA commercial paper rate from the 1988 Closing Date
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through and including the day preceding the date on which the Adjusting
Payment shall be made. Said interest rate shall initially be the rate released
by the Federal Reserve Board on December 29, 1988, and shall be adjusted
thereafter on the first business day of each calendar month, prospectively,
based on the rate released by the Federal Reserve Board on such day.
Section 2. Obligation of CCE to Repurchase Additional Shares of CCE
Common Stock from KO in Certain Circumstances.
In the event that at any time and from time to time during the Repurchase
Program CCE repurchases from shareholders other than the KO Holders a number of
shares of CCE Common Stock that causes the KO Holders to own, in the aggregate,
more than 49 percent of the then outstanding shares of common stock of CCE, CCE
shall thereafter have an obligation to repurchase additional shares of CCE
Common Stock from the KO Holders as KO shall direct in accordance with this
Section 2 at a price to be determined in accordance with this Section 2. CCE
shall from time to time repurchase from the KO Holders and KO shall cause the KO
Holders to sell, transfer and deliver to CCE, such number of shares of CCE
Common Stock (rounded to the nearest whole share) which shall restore the KO
Holders to a 49 percent aggregate ownership interest in CCE at per share prices
equal to the weighted average price (less commissions) paid under the Repurchase
Program for the shares which cause the ownership interest of the KO Holders to
exceed 49 percent (the "Imbalance Shares"). At no time shall CCE repurchase a
number of shares from the public which would cause the KO Holders to own, in the
aggregate at any specific time, 50 percent or more of the outstanding common
shares of CCE. KO shall have sole discretion as to the allocation of shares to
be repurchased pursuant to this Section 2 among the KO Holders. Closing of any
sale by KO to CCE of
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additional shares of CCE Common Stock to CCE pursuant to this Section 2
shall be made effective as of the close of business on the last business day of
each week during the term of the Repurchase Program and on the last business
days in each of the applicable calendar years 1988, 1989 and 1990 at KO's
offices in Atlanta, Georgia. Payment for the shares shall be made by CCE in
immediately available funds by wire transfer in accordance with KO's written
instructions upon tender of certificates evidencing the number of shares of CCE
Common Stock equal to the shares to be repurchased accompanied by executed stock
powers by noon on the third business day in the week following the week in which
CCE purchased the Imbalance Shares or on the last business day of the applicable
calendar year 1988, 1989, or 1990, as the case may be.
Section 3. Notices to KO.
CCE shall give KO written notice at the close of the first business day
after the last business day of each week during the term of the Repurchase
Program, and at the close of business on the second day preceding the last
business day in each of the applicable calendar years 1988, 1989 and 1990, of
the number of shares of CCE Common Stock repurchased pursuant to the Repurchase
Program through such date.
Section 4. CCE to Take No Contravening Action.
CCE agrees not to take any action or omit to take any action, in connection
with the Repurchase Program or otherwise, that would result in its being
prohibited from complying or would cause it to be unable to comply with its
obligations to KO under this Agreement, or to permit any subsidiary to take or
omit to take any such action.
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Section 5. General.
(a) KO represents and warrants to CCE that the execution, delivery arid
performance of this Agreement has been duly authorized by all required corporate
action on the part of KO. CCE represents and warrants to KO that the execution,
delivery and performance of this Agreement has been duly authorized by all
required corporate action on the part of CCE.
(b) Any notice or other communication required or permitted under this
Agreement shall be effective only when it is in writing and actually delivered
either (a) by hand, (b) by facsimile transmission or telegram, or (c) by
registered or certified mail, postage-prepaid, return receipt requested,
addressed as follows:
(i) If to KO:
The Coca-Cola Company
Xxxx-Xxxx Xxxxx, X.X.
Xxxxxxx, Xxxxxxx 00000
Attn: Treasurer
with a copy to:
The Coca-Cola Company
Xxxx-Xxxx Xxxxx, X. X.
Xxxxxxx, Xxxxxxx 00000
Attn: Assistant Secretary
(ii) If to CCE:
Coca-Cola Enterprises Inc,
Xxxx-Xxxx Xxxxx, X. X.
Xxxxxxx, Xxxxxxx 00000
Attn: Treasurer
with a copy to:
Coca-Cola Enterprises Inc.
Xxxx-Xxxx Xxxxx, X.X.
Xxxxxxx, Xxxxxxx 00000
Attn: General Counsel
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or such other address or person as either party may designate by notice to the
other party, and shall be deemed to have been given as of the date received.
(c) This Agreement is binding upon and is for the benefit of the parties
hereto and their respective successors, legal representatives and assigns, and
no person not a party hereto shall have any rights or benefits under this
Agreement, either as a third-party beneficiary or otherwise. This Agreement and
the rights and obligations hereunder shall not be assignable to any person.
(d) KO and CCE recognize and hereby acknowledge that it would be impossible
to measure in money the damages that would result to a party hereto lay reason
of the failure of any of the parties hereto to perform any of the obligations
imposed on it by this Agreement. Accordingly, if any party hereto shall
institute an action or proceeding seeking specific enforcement of the provisions
hereof, the party hereto against which such action or proceeding is brought
hereby waives the claim or defense that the party instituting such action or
proceeding has an adequate remedy at law and hereby agrees not to urge in any
such action or proceeding the claim or defense that such a remedy at law exists.
(e) KO and CCE agree that time is of the essence with respect to the
obligations of each party under this Agreement.
(f) The headings in this Agreement are inserted for convenience and
reference only and are not intended to be a part of or to affect the meaning or
interpretation of this Agreement.
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(g) This Agreement may be executed in two counterparts, each of
which shall be deemed an original, but both of which shall together
constitute one and the same instrument.
(h) This Agreement constitutes the entire agreement between the parties and
supersedes any and all prior agreements and understandings, both written and
oral, between the parties with respect to the subject matter hereof and thereof.
(i) This Agreement shall be governed by the laws of the State of Georgia.
IN WITNESS WHEREOF, the undersigned have each caused this Agreement to be
executed and delivered by their respective duly authorized officers, all as of
the date first above written.
THE COCA-COLA COMPANY
By: /s Xxxxxx X. Xxxxxxxx, Xx.
-----------------------------
Xxxxxx X. Xxxxxxxx, Xx.
Vice President & Treasurer
COCA-COLA ENTERPRISES INC.
By: /s/ Xxxxxx X. Xxxxxxx
------------------------------
Xxxxxx X. Xxxxxxx
Vice President
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