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EXHIBIT 2.1
STOCK PURCHASE AGREEMENT
The Buyer
The Coca-Cola Bottling Company of the Northeast,
a Delaware corporation
The Seller
Bottling Investment Holdings, Inc.,
a Delaware corporation
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XXXXX XXXXXXXX AGREEMENT
THIS STOCK PURCHASE AGREEMENT (this "Agreement") is made and entered
into as of the 7th day of August, 1997 between and among the following parties,
regarding the sale and purchase of certain securities identified below:
The Buyer:
The Coca-Cola Bottling Company of the Northeast, a Delaware
corporation and wholly-owned subsidiary of Coca-Cola Enterprises Inc. ("Coke
Northeast")
The Seller:
Bottling Investment Holdings, Inc., a Delaware corporation ("BIH")
The Guarantors:
Coca-Cola Enterprises Inc., a Delaware corporation ("Enterprises")
The Coca-Cola Company, a Delaware corporation ("TCCC")
Securities to be Sold and Purchased:
BIH owns the following securities issued by The Coca-Cola Bottling
Company of New York, Inc., a Delaware corporation ("KONY"):
4,000 shares of Convertible Preferred Stock, par value $100 per share
191,348 shares of Class A Common Stock, par value $.01 per share
249,903 shares of Class C Common Stock, par value $.01 per share
640,000 shares of 11% Cumulative Exchangeable Redeemable First
Preferred Stock, par value $1.00 per share
(collectively, the "KONY Shares")
IN CONSIDERATION OF the mutual covenants contained herein, the parties
agree as follows:
ARTICLE I
PURCHASE AND SALE; CONSIDERATION
1.01 Purchase and Sale. At the Closing (as defined in Section 4.02)
and upon the terms and subject to the conditions of this Agreement, BIH shall
sell, assign and transfer to Coke Northeast and Coke Northeast shall purchase
from BIH all of BIH's right, title and interest in and to the KONY Shares
hereinafter described, at the following prices:
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Xxxxxxxxxxx Xxxxxxxxx Stock at US $506.80 per share Class A
Common Stock at US $280.00 per share Class C Common Stock at US
$280.00 per share
11% Cumulative Exchangeable Redeemable First Preferred Stock at
US $265.63 per share, plus an amount equal to the aggregate
amount of accrued but unpaid dividends from November 21, 1995
through the Closing Date calculated in accordance with the
Certificate of Designation creating such stock.
1.02 Purchase Price. Subject to the terms and conditions of this
Agreement, the aggregate of the prices for the KONY Shares will be paid by Coke
Northeast at the Closing by the wire transfer of immediately available funds to
an account or accounts designated at least two Business Days prior to the
Closing in writing by BIH.
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF TCCC AND BIH
TCCC and BIH hereby represent and warrant to Enterprises and Coke
Northeast as follows, with full knowledge that such representations and
warranties are a material consideration to and underlie the execution of this
Agreement by Enterprises and Coke Northeast and the consummation of the
transactions contemplated by this Agreement.
2.01 Power and Authority of TCCC and BIH
(a) Each of TCCC and BIH has the corporate power and authority to
execute and deliver this Agreement and those agreements set forth on Exhibit
2.01(a) (collectively, the "Seller Documents") to which it is a party, and to
perform its obligations hereunder and under each of the Seller Documents to
which it is a party and to consummate the transactions contemplated hereby and
by the Seller Documents to which it is a party.
(b) The execution, delivery and performance by TCCC and BIH of
this Agreement and each of the Seller Documents to which it is a party have been
duly and validly authorized by all necessary corporate action on the part of
TCCC and BIH, as appropriate.
(c) This Agreement has been duly and validly executed and
delivered by each of TCCC and BIH and constitutes, and each of the Seller
Documents to be delivered at Closing will be duly and validly executed and
delivered by TCCC and BIH, to the extent it is a party thereto, and will
constitute, the valid and binding obligation of TCCC and BIH, to the extent it
is a party thereto, enforceable against TCCC and BIH, to the extent it is a
party thereto, in accordance with its terms, except to the extent the
enforceability thereof may be limited by applicable bankruptcy, reorganization,
insolvency, moratorium or other laws affecting the enforcement of creditors'
rights generally and by general principles of equity, regardless of whether such
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enforceability is considered in a proceeding at law or in equity.
(d) The execution and delivery by each of TCCC and BIH of this
Agreement and each of the Seller Documents to which it is a party, the
consummation by TCCC and BIH of the transactions contemplated hereby and by each
of the Seller Documents to which it is a party and the compliance by each of
TCCC and BIH with the terms and provisions of this Agreement and each of the
Seller Documents to which it is a party, will not, with or without the giving of
notice or the lapse of time or both:
(i) violate any provision of law, statute, rule or
regulation to which TCCC or BIH is subject;
(ii) violate any order, ruling, injunction, judgment or
decree to which TCCC or BIH is a party or subject; or
(iii) except as set forth on Disclosure Schedule
2.01(d)(iii), conflict with, result in a breach of, constitute a default
under, result in the acceleration of, create in any party the right to
accelerate, result in the creation of a lien or security interest under, or
terminate, modify, cancel or require any notice under, any agreement,
contract, lease, license, instrument or other obligation to which TCCC or
BIH is a party, or by which TCCC or BIH is bound, or to which TCCC's or
BIH's assets are subject,
except where an event or occurrence described in clauses (i)
through (iii) would neither require the expenditure of money by Enterprises,
Coke Northeast, KONY or any of their affiliates, nor have a material adverse
effect on the KONY Shares or the business or assets of Enterprises, Coke
Northeast, KONY or their subsidiaries, nor have a material adverse effect on the
ability of TCCC or BIH to consummate the transactions in the manner contemplated
by this Agreement.
2.02 KONY Shares.
(a) BIH holds of record and owns beneficially at the date hereof,
and will hold of record and own beneficially at the Closing, the KONY Shares,
and, except with respect to any rights or obligations being assigned to or
assumed by Coke Northeast (or for which Coke Northeast otherwise agrees to be
responsible) pursuant to this Agreement or the Buyer Documents (as defined in
Section 3.01(a)), such shares are the only shares of KONY's capital stock owned
by TCCC or its consolidated subsidiaries.
(b) Except with respect to any rights or obligations being
assigned to or assumed by Coke Northeast (or for which Coke Northeast otherwise
agrees to be responsible) hereunder or under the Buyer Documents, immediately
following the Closing, neither TCCC nor any of its consolidated subsidiaries
will have any right to have any shares of the capital stock of KONY issued to
TCCC or its consolidated subsidiaries.
(c) The sale and delivery of the KONY Shares to Enterprises
pursuant to this Agreement will vest in Coke Northeast legal and valid title to
the KONY Shares, free and clear of all liens, security interests, adverse claims
or other
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encumbrances of any character whatsoever (collectively,
"Encumbrances"), except for Encumbrances created by Coke Northeast and
restrictions on sales of such shares under applicable securities laws and except
as set forth on Disclosure Schedule 2.02(c).
(d) Except as set forth on Disclosure Schedule 2.02(d), neither
TCCC nor any of its consolidated subsidiaries is a party to any agreement or
understanding with respect to the voting of any of the KONY Shares.
(e) The KONY Shares have been validly issued, fully paid and are
nonassessable.
2.03 Capitalization.
(a) The issued and outstanding capital stock of KONY is set forth
on Disclosure Schedule 2.03(a), which also lists all stockholders of record of
KONY as shown on the books and records of KONY, showing the number and
description of securities reflected as owned of record by each.
(b) Except as disclosed on Disclosure Schedule 2.03(b), to the
Knowledge of BIH (as defined in Section 2.04(b)), KONY does not have
outstanding, nor is it bound by, any subscriptions, options, warrants, calls,
commitments or agreements to issue any additional shares of capital stock or any
other equity security of KONY or any securities representing the right to
purchase or otherwise receive any shares of any equity securities of KONY.
2.04 Undisclosed Liabilities.
(a) A copy of the audited consolidated balance sheets of KONY and
its subsidiary as of December 31, 1996 (including the notes thereto, the "1996
Balance Sheet") and December 31, 1995, respectively, and the related
consolidated statements of operations and retained earnings (deficit) and cash
flows for the years then ended, including the notes thereto, in each case
accompanied by the audit report of Ernst & Young LLP, independent public
accountants with respect to KONY, has been provided to Enterprises. To the
knowledge of BIH, neither KONY nor its subsidiary has any liability that would
have a material adverse effect on KONY, except for (i) liabilities and
obligations reflected in the 1996 Balance Sheet, (ii) liabilities and
obligations incurred since December 31, 1996 in the ordinary course of business,
and (iii) liabilities and obligations not required by generally accepted
accounting principles to be reflected or reserved against in a balance sheet
prepared in accordance with such principles.
(b) As used in Section 2.03(b) and in this Section 2.04, the term
"to the Knowledge of BIH" shall mean the actual knowledge (conscious awareness)
of any of the following individuals: Xxxxx X. Xxxxxxxx, Xxxx X. Xxxxx, and Xxxxx
X. Xxxxxxx, who have been provided a copy of this Agreement.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF
ENTERPRISES AND COKE NORTHEAST
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Enterprises and Coke Northeast hereby represent and warrant to TCCC
and BIH as follows, with full knowledge that such representations and warranties
are a material consideration to and underlie the execution of this Agreement by
TCCC and BIH and the consummation of the transactions contemplated by this
Agreement.
3.01 Power and Authority of Enterprises and Coke Northeast.
(a) Each of Enterprises and Coke Northeast has the corporate
power and authority to execute and deliver this Agreement and those agreements
set forth on Exhibit 3.01(a) (collectively, the "Buyer Documents") to which it
is a party, and to perform its obligations hereunder and under each of the Buyer
Documents to which it is a party, and to consummate the transactions
contemplated hereby and by the Buyer Documents to which it is a party.
(b) The execution, delivery and performance by Enterprises and
Coke Northeast of this Agreement and each of the Buyer Documents to which it is
a party have been duly and validly authorized by all necessary corporate action
on the part of Enterprises and Coke Northeast, as appropriate.
(c) This Agreement has been duly and validly executed and
delivered by Enterprises and Coke Northeast and constitutes, and each of the
Buyer Documents to be delivered at Closing will be duly and validly executed and
delivered by Enterprises and Coke Northeast, to the extent it is a party
thereto, and will constitute, the valid and binding obligation of Enterprises
and Coke Northeast, to the extent it is a party thereto, enforceable against
Enterprises and Coke Northeast, to the extent it is a party thereto, in
accordance with its terms, except to the extent the enforceability thereof may
be limited by applicable bankruptcy, reorganization, insolvency, moratorium or
other laws affecting the enforcement of creditors' rights generally and by
general principles of equity, regardless of whether such enforceability is
considered in a proceeding at law or in equity.
(d) The execution and delivery by each of Enterprises and Coke
Northeast of this Agreement and each of the Buyer Documents to which it is a
party, the consummation by Enterprises and Coke Northeast of the transactions
contemplated hereby and by each of the Buyer Documents to which it is a party,
and the compliance by each of Enterprises and Coke Northeast with the terms and
provisions of this Agreement and each of the Buyer Documents to which it is a
party, will not, with or without the giving of notice or the lapse of time or
both:
(i) violate any provision of law, statute, rule or
regulation to which Enterprises or Coke Northeast is subject;
(ii) violate any order, ruling, injunction, judgment or
decree to which Enterprises or Coke Northeast is a party or subject; or
(iii) conflict with, result in a breach of, constitute a
default under, result in the acceleration of, create in any party the right
to accelerate, result in
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the creation of a lien or security interest under, or terminate, modify,
cancel or require notice under, any agreement, contract, lease,
license, instrument or other obligation to which Enterprises or Coke
Northeast is a party, or by which Enterprises or Coke Northeast is bound,
or to which Enterprises' or Coke Northeast's assets are subject,
except where an event or occurrence described in clauses (i) through
(iii) would neither require the expenditure of money by TCCC or any of its
consolidated subsidiaries, nor have a material adverse effect on the business or
assets of TCCC, Enterprises, Coke Northeast, or their subsidiaries, nor have a
material adverse effect on the ability of Enterprises or Coke Northeast to
consummate the transactions in the manner contemplated by this Agreement.
3.02 Investment Intent. Coke Northeast understands that none of the
KONY Shares have been registered under the Securities Act of 1933, as amended,
or applicable United States, state, or foreign securities laws. Coke Northeast
is acquiring the KONY Shares for its own account, for investment purposes and
without a present intent to make a distribution thereof. Each certificate
representing the KONY Shares, and any other certificates issued in respect of
such shares upon any stock split, stock dividend, recapitalization or similar
event, unless no longer required in the opinion of counsel to Coke Northeast, in
addition to any other required legends, shall bear a legend substantially in the
following form:
The shares represented by this certificate have not been
registered under the Securities Act of 1933, as amended (the
"Act"), or under any other applicable securities laws of any
jurisdiction and may not be sold or otherwise transferred in the
absence of such registration or an exemption from the
registration requirements of the Act or laws of any other
applicable jurisdiction.
The shares represented by this certificate have been sold in
reliance on paragraph (13) of Code Section 10-5-9 of the Georgia
Securities Act of 1973 (the "Georgia Act"), and may not be sold
or transferred except in a transaction which is exempt under the
Georgia Act or pursuant to an effective registration under the
Georgia Act.
ARTICLE IV
THE CLOSING
4.01 Pre-Closing Covenants. Prior to the Closing, the parties
covenant and agree as follows:
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(x) XXX xxx Xxxx Xxxxxxxxx will cooperate and use their
respective good faith efforts to secure all necessary consents, approvals,
authorizations and exemptions from governmental agencies and other third
parties, and to obtain the satisfaction of all of the conditions specified in
Section 4.03, as shall be required in order to enable BIH and Coke Northeast to
effect the transactions contemplated hereby in accordance with the terms and
conditions hereof.
(b) Prior to the Closing, BIH shall not directly or indirectly
solicit, initiate or encourage any inquiries or proposals from, discuss or
negotiate with, provide any nonpublic information to, or consider the merits of
any inquiries or proposals from any person or entity other than Coke Northeast
or Enterprises relating to any transaction involving the sale of the KONY Shares
(or any of them) or the sale or transfer of substantially all of the assets of
KONY.
(c) BIH agrees to use its good faith efforts to ensure that prior
to the Closing, no earnings are distributed to the stockholders of KONY in the
form of dividends or other distributions to stockholders, except to the extent
required by the terms of any series of preferred stock.
4.02 The Closing. Except as may be otherwise agreed by the parties in
writing, the payment and deliveries contemplated by this Agreement to be made at
the Closing shall be made at the offices of Coca-Cola Enterprises Inc., 0000
Xxxxx Xxxxx Xxxxxxx, Xxxxxxx, Xxxxxxx 00000 at 10:00 a.m., Atlanta time, on the
later of the third Business Day after the satisfaction or written waiver of the
conditions set forth in Sections 4.03, 4.04 and 4.05, or August 7, 1997. The
date on which such payment and deliveries occurs is the "Closing Date", and the
events comprising such payment and deliveries are collectively, the "Closing".
As used in this Agreement, a "Business Day" shall be a day other than a
Saturday, Sunday or any day on which banks are required or authorized to close
in New York, New York or Toronto, Ontario.
4.03 Conditions to Each Party's Obligations. The respective obligation
of each party to consummate the transactions contemplated by this Agreement is
subject to the satisfaction, or waiver by Enterprises, Coke Northeast, TCCC and
BIH, of the following conditions:
(a) No action, suit or proceeding shall be pending before any
court or quasi-judicial or administrative agency of any federal, national,
state, provincial, or local jurisdiction which would be reasonably expected to:
(i) prevent consummation of the purchase and sale of the
KONY Shares contemplated herein;
(ii) cause such purchase and sale to be rescinded
following its consummation; or
(iii) materially modify the terms of the purchase and sale
of the KONY Shares or result in material damage or Loss (as defined below)
to any party hereto as a result of the purchase and sale of the KONY
Shares.
The pendency of an action, suit or proceeding relating to any
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tender offer for shares of common stock of Coca-Cola Beverages Ltd. initiated
by Enterprises or its affiliates will not prevent the condition set forth in
this paragraph (a)from being satisfied unless such action, suit or
proceeding challenges the purchase and sale of the KONY Shares contemplated
herein, and such challenge could not be eliminated by a termination or
withdrawal by Enterprises or its affiliates of such tender offer.
(b) No order, injunction or decree issued by any court or agency
of competent jurisdiction or other legal restraint or prohibition preventing the
consummation of the transactions contemplated hereby shall be in effect. No
statute, rule, regulation, order, injunction or decree shall have been enacted,
entered, promulgated or enforced by any Governmental Authority (as hereinafter
defined) which prohibits, materially restricts or makes illegal consummation of
the transactions contemplated hereby. As used in this Agreement, the term
"Governmental Authority" means any national, federal, provincial, state, local,
foreign or international court, government, department, commission, board,
bureau, agency, official or other regulatory, administrative or governmental
authority.
(c) All applicable waiting periods and any extensions thereof
under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976 shall have
expired or otherwise been terminated.
(d) All other authorizations, consents and approvals of
Governmental Authorities required to consummate the transactions contemplated
hereby shall have been received.
(e) The purchase by Enterprises KOC Acquisition Company Ltd., or
another wholly-owned subsidiary of Enterprises, of all of the stock of Coca-Cola
Beverages Ltd. owned by Coca-Cola Ltd. shall have occurred simultaneously with
the purchase of the KONY Shares hereunder.
It is expressly acknowledged and agreed by each of BIH, TCCC, Enterprises and
Coke Northeast that the transactions contemplated by this Agreement are not
conditioned in any manner upon any decision by Enterprises or any of its
subsidiaries to effect a tender offer for shares of common stock of Coca-Cola
Beverages Ltd. or upon the timing or completion of any such tender offer.
However, it is further acknowledged and agreed that the immediately preceding
sentence shall not modify or amend the Closing condition established in Section
4.03(a).
4.04 Conditions to Obligations of Coke Northeast. The obligation of
Enterprises and Coke Northeast to consummate the transactions contemplated
hereby is also subject to the satisfaction (or waiver by Enterprises and Coke
Northeast) at or prior to the Closing of the following conditions:
(a) The representations and warranties of TCCC and BIH contained
in Article II shall be true and correct in all material respects at the time of
the Closing with the same effect as though such representations and warranties
had been made at such time, except (i) for representations and warranties that
speak as of a specific date or time other than the date of the Closing (which
need only be true and correct in all material respects as of such date or time),
and (ii) for changes resulting from the consummation of the transactions
contemplated by this
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Xxxxxxxxx. Xxxx Xxxxxxxxx shall have received certificates signed by an officer
of TCCC and BIH, as appropriate, to the foregoing effect.
(b) TCCC and KONY shall have executed a Marketing Support
Agreement between TCCC and KONY, in form and substance reasonably satisfactory
to TCCC, KONY, Coke Northeast and Enterprises.
(c) There shall have occurred no material adverse change in the
financial condition or business of KONY since December 31, 1996.
4.05 Conditions to Obligations of TCCC and BIH. The obligations of
TCCC and BIH to consummate the transactions contemplated hereby are also subject
to the satisfaction (or waiver by TCCC and BIH) at or prior to the Closing of
the following condition: namely, that the representations and warranties of
Enterprises and Coke Northeast contained in Article III shall be true and
correct in all material respects at the time of the Closing with the same effect
as though such representations and warranties had been made at such time, except
for (i) representations and warranties that speak as of a specific date or time
other than the date of the Closing (which need only be true and correct in all
material respects as of such date or time), and (ii) changes resulting from the
consummation of the transactions contemplated by this Agreement. TCCC and BIH
shall have received certificates signed by an officer of Enterprises and Coke
Northeast, as appropriate, to the foregoing effect.
4.06 Deliveries by the Parties. At the Closing:
(a) BIH shall:
(i) deliver to Enterprises and Coke Northeast certified
copies of the resolutions of the boards of directors of TCCC and BIH,
respectively, authorizing the execution and delivery of this Agreement and
the Seller Documents and the consummation of the transactions contemplated
by this Agreement and the Seller Documents;
(ii) deliver to Enterprises and Coke Northeast a
certificate dated as of the Closing Date executed by an officer of BIH, in
form and substance reasonably satisfactory to Enterprises and Coke
Northeast, (A) to the effect provided for in Section 4.04(a) and (B)
stating that BIH has performed and complied in all material respects with
all agreements and covenants required by this Agreement to be performed or
complied with by BIH prior to or at Closing;
(iii) deliver to Enterprises and Coke Northeast a
certificate dated as of the Closing Date executed by an officer of TCCC, in
form and substance reasonably satisfactory to Enterprises and Coke
Northeast, (A) to the effect provided for in Section 4.04(a) and (B)
stating that TCCC has performed and complied in all material respects with
all agreements and covenants required by this Agreement to be performed or
complied with by TCCC prior to or at Closing;
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(iv) deliver to Enterprises and Coke Northeast stock
certificates representing all of the KONY Shares being sold by BIH
hereunder, duly endorsed or accompanied by assignments separate from
certificate in form reasonably satisfactory to counsel for Enterprises and
Coke Northeast; and
(v) deliver to Enterprises and Coke Northeast opinions
from each of King & Spalding and F. Xxxxxx Xxxxx, Finance Counsel to TCCC,
each dated the Closing Date in substantially the form of Exhibits
4.06(a)(v)-1 and 4.06(a)(v)-2.
(b) Coke Northeast shall:
(i) deliver to TCCC and BIH certified copies of the
resolutions of the boards of directors of Enterprises and Coke Northeast,
respectively, authorizing the execution and delivery of this Agreement and
the Buyer Documents and the consummation of the transactions contemplated
by this Agreement and the Buyer Documents;
(ii) deliver to TCCC and BIH a certificate dated as of the
Closing Date executed by an officer of Coke Northeast, in form and
substance reasonably satisfactory to TCCC and BIH, (A) to the effect
provided for in Section 4.05, and (B) stating that Coke Northeast has
performed and complied in all material respects with all agreements and
covenants required by this Agreement to be performed or complied with by
Coke Northeast prior to or at Closing;
(iii) deliver to TCCC and BIH a certificate dated as of the
Closing Date executed by an officer of Enterprises, in form and substance
reasonably satisfactory to TCCC and BIH, (A) to the effect provided for in
Section 4.05, and (B) stating that Enterprises has performed and complied
in all material respects with all agreements and covenants required by this
Agreement to be performed or complied with by Enterprises prior to or at
Closing;
(iv) effect the payment to BIH provided for in Section
1.02; and
(v) deliver to TCCC and BIH an opinion from Xxxxxx &
Xxxxxx dated the Closing Date in substantially the form of Exhibit
4.06(b)(v).
(c) Coke Northeast shall deliver, and shall cause Enterprises to
deliver, to TCCC and/or Coca-Cola Financial Corporation, a Delaware corporation
and a consolidated subsidiary of TCCC ("CCFC"), and TCCC shall deliver, and
shall cause CCFC to deliver, to Coke Northeast and/or Enterprises the following
executed agreements:
(i) an Assignment and Assumption Agreement between CCFC
and Coke Northeast, in substantially the form of Exhibit 4.06(c)(i),
related to the Preferred Stock Purchase Agreement dated as of November 21,
1995, as amended, between CCFC and KONY;
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(ii) an Assignment and Assumption Agreement between CCFC
and Coke Northeast, in substantially the form of Exhibit 4.06(c)(ii),
related to the Exchange Agreement dated as of November 21, 1995 between
CCFC and KONY;
(iii) an Assignment and Assumption Agreement between CCFC
and Coke Northeast, in substantially the form of Exhibit 4.06(c)(iii),
related to the Letters of Credit issued by CCFC listed on Exhibit
4.06(c)(iii)-1;
(iv) an Assignment and Assumption Agreement between CCFC
and Coke Northeast, in substantially the form of Exhibit 4.06(c)(iv),
related to the Amended and Restated Reimbursement Agreement dated as of
November 21, 1995 between CCFC and KONY;
(v) an Assignment and Assumption Agreement between CCFC
and Coke Northeast, in substantially the form of Exhibit 4.06(c)(v);
(vi) separate Assignment and Assumption Agreements between
TCCC and Coke Northeast, in substantially the form of Exhibit 4.06(c)(vi),
related to each of the Agreements listed on Exhibit 4.06(c)(vi)-1;
(vii) a Termination Agreement between TCCC and Enterprises,
in substantially the form of Exhibit 4.06(c)(vii), related to the Right of
First Refusal Agreement dated as of January 4, 1994 between TCCC and
Enterprises; and
(viii) Cooperation Agreements between TCCC and Coke
Northeast, in substantially the form of Exhibit 4.06(c)(viii), relating to
certain transfer agreements and transfer arrangements with stockholders of
KONY (other than Enterprises and BIH).
4.07 Additional Agreements. TCCC, BIH, Enterprises and Coke Northeast
agree that, from time to time, whether at or after the Closing Date, each of
them will execute and deliver such further instruments of conveyance and
transfer and take such other action as may be necessary to carry out the terms
of this Agreement. TCCC, BIH, Enterprises and Coke Northeast each further agrees
that it will not take any action that will prevent its performance of this
Agreement in accordance with its terms, except as may be required by applicable
law.
ARTICLE V
GUARANTEES
5.01 Guaranty of Enterprises. Enterprises, as a primary obligor, shall
and hereby does, absolutely and unconditionally and irrevocably, guarantee the
prompt payment and performance of the obligations of Coke Northeast hereunder
and under each of the Buyer Documents to which Coke Northeast is a party
(collectively, the "Coke Northeast Obligations"). No change, amendment or
modification of this Agreement or any Buyer Document or waiver of any of the
terms hereof or of any Buyer Document, or permitted assignment of this Agreement
or any Buyer Document, shall diminish, release or discharge the liability of
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Enterprises under this Section 5.01, which shall be continuing and shall be
discharged only by the full performance of the Coke Northeast Obligations.
5.02 Guaranty of TCCC. TCCC, as a primary obligor, shall and hereby
does, absolutely and unconditionally and irrevocably, guarantee the prompt
payment and performance of the obligations of BIH hereunder (the "BIH
Obligations"). No change, amendment or modification of this Agreement or waiver
of any of the terms hereof, or permitted assignment, shall diminish, release or
discharge the liability of TCCC under this Section 5.02, which shall be
continuing and shall be discharged only by the full performance of the BIH
Obligations.
ARTICLE VI
INDEMNIFICATION
6.01 Remedies. Each of BIH and Coke Northeast, as the case may be (the
"Indemnifying Party"), shall indemnify, defend and hold harmless the other party
(the "Indemnified Party") from and against any Losses (as hereinafter defined)
arising from any inaccuracy of the representations and warranties of such party
or its ultimate parent or any breach of the covenants of such party or its
ultimate parent contained herein. As used in this Agreement, the term "Loss"
means any loss, damage, liability, cost or expense including, without
limitation, any interest, fine, penalty, criminal or civil judgment or
settlement, court costs, reasonable attorneys' and expert witnesses' fees,
reasonable accountants' fees, disbursements and expenses, and any
indemnification or similar payments required to be made to officers, directors,
employees or agents under duly enacted provisions of the certificate of
incorporation or bylaws, board resolutions or undertakings, commitments or other
understandings or under applicable corporate law. The foregoing indemnification
provision shall constitute the sole remedy under this Agreement for any breach
of a representation or warranty contained in this Agreement.
6.02 Survival. The representations and warranties contained in this
Agreement and in each of the Seller Documents and Buyer Documents, as
applicable, shall not be extinguished by the Closing and shall survive without
limitation as to time; and the covenants and agreements contained herein shall
survive without limitation as to time except as may be otherwise specified
herein; provided, however, that the representation contained in Section 2.04 of
this Agreement shall only survive for a period of one year following the Closing
Date. No investigation or other examination by any party hereto or its designee
or representatives shall affect the term of survival of the representations and
warranties set forth above. With respect to the representation contained in
Section 2.04, an Indemnified Party may pursue claims under this Article VI after
the applicable survival date as provided in this Section 6.02, so long as notice
of such claims is given on or prior to such survival date.
6.03 Notice of Claim. The Indemnified Party shall promptly notify the
Indemnifying Party involved, in writing, of any claim for recovery, specifying
in reasonable detail the nature of the Loss, and, if known, the amount, or an
estimate of the amount, of the liability arising therefrom, provided that the
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failure to provide such notice shall not affect the obligations of the
Indemnifying Party hereunder except to the extent such party is materially and
actually prejudiced thereby. The Indemnified Party shall provide to the
Indemnifying Party as promptly as practicable thereafter information and
documentation reasonably requested by such Indemnifying Party to support and
verify the claim asserted, unless the Indemnified Party has been advised by
counsel that there are no reasonable grounds to assert the joint defense
privilege with respect to such information and documentation.
6.04 Defense. If the facts pertaining to a Loss arise out of the claim
of any third party, or if there is any claim against a third party available by
virtue of the circumstances of the Loss, the Indemnifying Party may assume the
defense or the prosecution thereof by written notice to the Indemnified Party,
including the employment of counsel or accountants, at its cost and expense. The
Indemnified Party shall have the right to employ counsel separate from counsel
employed by the Indemnifying Party in any such action and to participate
therein, but the fees and expenses of such counsel employed by the Indemnified
Party shall be at its expense. The Indemnifying Party shall not be liable for
any settlement of any such claim effected without its prior written consent,
which shall not be unreasonably withheld; provided that if the Indemnifying
Party does not assume the defense or prosecution of any such claim within 30
days of notice thereof, the Indemnified Party may settle such claim without the
Indemnifying Party's consent in which event the Indemnifying Party shall be
liable for such settlement. Without the Indemnified Party's prior written
consent, the Indemnifying Party shall not settle any claim in a manner which is
prejudicial (financially or otherwise) to the Indemnified Party. Whether or not
the Indemnifying Party chooses to so defend or prosecute such claim, each of the
parties hereto shall cooperate in the defense or prosecution thereof and shall
furnish such records, information and testimony, and attend such conferences,
discovery proceedings, hearings, trials and appeals, as may be reasonably
requested in connection therewith.
ARTICLE VII
TERMINATION PRIOR TO CLOSING
This Agreement may be terminated at any time prior to the Closing:
(a) By the mutual written consent of all the parties hereto;
(b) By BIH in writing, if Coke Northeast or Enterprises shall (i)
fail to perform in any material respect its agreements contained herein or in
any of the Buyer Documents required to be performed by it on or prior to the
Closing Date, or (ii) breach in any material respect any of its representations
or warranties contained herein or in any of the Buyer Documents, which failure
or breach in either case is not cured within thirty (30) days after BIH has
notified Coke Northeast and Enterprises of its intent to terminate this
Agreement pursuant to this Article VII;
(c) By Coke Northeast in writing, if BIH or TCCC shall (i) fail
to perform in any material respect its agreements
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contained herein or in any of the Seller Documents required to be performed by
it on or prior to the Closing Date, or (ii) breach in any material respect
any of its representations or warranties contained herein or in any of the
Seller Documents, which failure or breach in either case is not cured within
thirty (30) days after Coke Northeast has notified BIH and TCCC of its intent
to terminate this Agreement pursuant to this Article VII;
(d) By either BIH or Coke Northeast in writing, without
liability, if there shall be any final, non-appealable order, writ, injunction
or decree of any Governmental Authority binding on Enterprises, Coke Northeast,
BIH or TCCC, which prohibits or restrains Enterprises, Coke Northeast, BIH or
TCCC from consummating the transactions contemplated hereby; or
(e) By either BIH or Coke Northeast, in writing, without
liability, if for any reason the Closing has not occurred by the first
anniversary of the execution of this Agreement, unless the failure of the
Closing to occur by such date is due to the failure of the party seeking to
terminate this Agreement to perform or observe the covenants and agreements of
such party set forth herein.
ARTICLE VIII
OTHER MATTERS
8.01 Brokerage. Each party hereto will indemnify and hold harmless the
other against and in respect of any claim for brokerage or other commissions
relative to this Agreement or to the transactions contemplated hereby, when such
claim is based in any way on agreements, arrangements or understandings made or
claimed to have been made by the indemnifying party with any third party.
8.02 Expenses. Each party shall pay all costs and expenses incurred by
it or on its behalf in connection with this Agreement and the transactions
contemplated hereby, including fees and expenses of its own financial
consultants, accountants and counsel, regardless of whether such transactions
are consummated.
8.03 Notices. All notices or other communications hereunder shall be
in writing and shall be deemed given if delivered personally or sent prepaid by
FedEx or other recognized overnight courier or delivered by telecopy
transmission, provided that if delivered by telecopy transmission such notice
shall also be sent on the same day by recognized overnight courier, in each case
to the applicable addresses set forth below:
To Enterprises or Coke Northeast:
Xxxx X. Xxx
Senior Vice President and Chief Financial Officer
Coca-Cola Enterprises Inc.
0000 Xxxxx Xxxxx Xxxxxxx
Xxxxxxx, Xxxxxxx 00000
Telecopy No.: (000) 000-0000
with copies to:
Xxxxx X. Xxxxx
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Senior Vice President and General Counsel
Coca-Cola Enterprises Inc.
0000 Xxxxx Xxxxx Xxxxxxx
Xxxxxxx, Xxxxxxx 00000
Telecopy No.: (000) 000-0000
and
E. Xxxxxx Xxxxxx III
Xxxxxx & Xxxxxx
0000 Xxxxxxxxx Xxxxxxxx
Xxxxxxxxxxx, Xxxxxxxxx 00000-0000
Telecopy No.: (000) 000-0000
To TCCC or BIH:
The Coca-Cola Company
Xxx Xxxx-Xxxx Xxxxx
Xxxxxxx, Xxxxxxx 00000
Attention: Chief Financial Officer
Telecopy No.: (000) 000-0000
with copies to:
The Coca-Cola Company
Xxx Xxxx-Xxxx Xxxxx
Xxxxxxx, Xxxxxxx 00000
Attention: General Counsel
Telecopy No.: (000) 000-0000
or to such other address as such party shall have designated by notice given in
accordance with the above to the other parties. Any such notice shall be deemed
to have been given as of the date delivered, if delivered in person or by
telecopy transmission, or upon the next Business Day, if sent by recognized
overnight courier.
8.04 Parties in Interest. This Agreement shall be binding upon and
inure to the benefit of the parties hereto and their respective successors and
permitted assigns; provided, however, that no party hereto may assign any of its
rights, interests or obligations hereunder without the prior written consent of
all other parties hereto.
8.05 Complete Agreement. Except as otherwise provided herein, this
Agreement embodies the entire agreement and understanding between the parties
relating to the subject matter hereof and supersedes (i) all prior agreements
and understandings relating to such subject matter, whether written or oral, and
(ii) all purportedly contemporaneous oral agreements and understandings relating
to such subject matter.
8.06 Partial Invalidity. If any term or provision of this Agreement
not essential to the basic purpose hereof shall be held to be illegal, invalid
or unenforceable by a court of competent jurisdiction, the parties intend that
the remaining terms shall constitute the agreement with respect to the subject
matter thereof, as if the illegal, invalid or unenforceable provision had never
been a part.
8.07 Counterparts. This Agreement may be executed in one or more
counterparts, all of which shall be considered to be
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one and the same agreement, and each of which shall be deemed an original.
8.08 Governing Law. This Agreement shall be governed by and construed
in accordance with the laws of the State of Georgia, regardless of the
conflicts of laws principles thereof.
8.09 Section 338 Election. If Enterprises makes a "qualified stock
purchase" as defined in Section 338(d) of the Internal Revenue Code of 1986, as
amended ("IRC"), of the KONY Shares, and otherwise meets the applicable
requirements of that section, BIH acknowledges that Coke Northeast may make an
election under IRC Section 338(g) with respect to the purchase of the KONY
Shares. Neither TCCC nor BIH shall have any liability for any tax liabilities of
KONY arising from such election, and Enterprises agrees to indemnify and hold
harmless TCCC and BIH from any such liability.
8.10 Amendments; Waivers. This Agreement may not be altered, amended,
superseded, or renewed except in writing signed by all parties hereto. The
failure of any party at any time to require performance of any provisions hereof
shall in no manner affect the right to enforce the same. No waiver by any party
of any condition, or of the breach of any term, provision, warranty,
representation, agreement or covenant contained in this Agreement, whether by
conduct or otherwise, in any one or more instances shall be deemed or construed
to be a further or continuing waiver of any such condition or breach or a waiver
of any other condition or of the breach of any other term, provision, or
warranty, representation, agreement or covenant of this Agreement.
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IN WITNESS WHEREOF, each of the undersigned, intending to be legally
bound, has caused this Agreement to be duly executed and delivered on the date
first above written:
THE COCA-COLA BOTTLING COMPANY
OF THE NORTHEAST
By: /s/XXXX X. XXX
-----------------------------------------
Name: Xxxx X. Xxx
Title: Senior Vice President and
Chief Financial Officer
BOTTLING INVESTMENT HOLDINGS, INC.
By: /s/ XXXXX X. XXXXXXX
-----------------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Vice President
COCA-COLA ENTERPRISES INC.
By: /s/XXXX X. XXX
-----------------------------------------
Name: Xxxx X. Xxx
Title: Senior Vice President and
Chief Financial Officer
THE COCA-COLA COMPANY
By: /s/ XXXXX X. XXXXXXX
-----------------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Vice President
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SCHEDULES AND EXHIBITS TO
STOCK PURCHASE AGREEMENT
Disclosure Schedule
Exhibit 2.01(a) Seller Documents
Exhibit 3.01(a) Buyer Documents
Exhibit 4.06(a)(v)-1 Form of opinion of King & Spalding
Exhibit 4.06(a)(v)-2 Form of opinion of F. Xxxxxx Xxxxx
Exhibit 4.06(b)(v) Form of opinion of Xxxxxx & Xxxxxx
Exhibit 4.06(c)(i) Form of Assignment and Assumption Agreement between
Coca-Cola Financial Corporation and the Coca-Cola
Bottling Company of the Northeast
Exhibit 4.06(c)(ii) Form of Assignment and Assumption Agreement between
Coca-Cola Financial Corporation and The Coca-Cola
Bottling Company of the Northeast
Exhibit 4.06(c)(iii) Form of Assignment and Assumption
Agreement between Coca-Cola Financial Corporation, The
Coca-Cola Bottling Company of the Northeast and The
Coca-Cola Bottling Company of New York, Inc.
Exhibit 4.06(c)(iii)(1) Listing of letters of credit
Exhibit 4.06(c)(iv) Form of Assignment and Assumption Agreement between
Coca-Cola Financial Corporation, The Coca-ColaBottling
Coca-Cola Bottling Company of New York, Inc.
Exhibit 4.06(c)(v) Form of Assignment and Assumption Agreement between
Coca-Cola Financial Corporation and The Coca-Cola
Bottling Company of the Northeast
Exhibit 4.06(c)(vi) Form of Assignment and Assumption Agreement between The
Bottling Company of the Northeast
Exhibit 4.06(c)(vi)-1 List of option agreements
Exhibit 4.06(c)(vii) Form of Termination Agreement between The Coca-Cola
Company and Coca-Cola Enterprises Inc.
Exhibit 4.06(c)(v) Form of Assignment and Assumption Agreement between
Coca-Cola Financial Corporation and The Coca-Cola
Bottling Company of the Northeast
Exhibit 4.06(c)(viii)-1 Form of Cooperation Agreement --
relating to Transfer Agreement dated September 18, 1981
Exhibit 4.06(c)(viii)-2 Form of Cooperation Agreement -- relating to
Stockholders ( Non-Institutional Investors ) Transfer
Agreement dated September 18, 1981
Exhibit 4.06(c)(viii)-3 Form of Cooperation Agreement -- relating to
Agreement dated September 2, 1983
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