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EXHIBIT 2.2
STOCK PURCHASE AGREEMENT
The Buyer
Enterprises KOC Acquisition Company Ltd.,
a New Brunswick company
The Seller
Coca-Cola Ltd.,
a corporation organized and existing under the
laws of Canada
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STOCK PURCHASE 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:
Enterprises KOC Acquisition Company Ltd., a New Brunswick company and
a wholly-owned subsidiary of Coca-Cola Enterprises Inc. ("KOC Acquisition")
The Seller:
Coca-Cola Ltd., a corporation organized and existing under the laws of
The Guarantors:
Coca-Cola Enterprises Inc., a Delaware corporation ("Enterprises")
The Coca-Cola Company, a Delaware corporation ("TCCC")
Securities to be Sold and Purchased:
CCL owns the following securities issued by Coca-Cola Beverages Ltd.,
a corporation organized and existing under the laws of Canada ("KOC"):
19,600,000 Common Shares (the "KOC
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, CCL shall
sell, assign and transfer to KOC Acquisition and KOC Acquisition shall purchase
from CCL all of CCL's right, title and interest in and to the KOC Shares for an
aggregate purchase price of CDN $333,200,000 (the "Purchase Price").
1.02 Purchase Price. Subject to the terms and conditions of this
Agreement, the Purchase Price for the KOC Shares will be paid by KOC Acquisition
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 CCL.
ARTICLE II
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REPRESENTATIONS AND WARRANTIES OF TCCC AND CCL
TCCC and CCL hereby represent and warrant to Enterprises and KOC
Acquisition 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 KOC Acquisition and the consummation of the
transactions contemplated by this Agreement.
2.01 Power, Authority and Status of TCCC and CCL
(a) Each of TCCC and CCL has the corporate power and authority to
execute and deliver this Agreement, to perform its obligations hereunder and to
consummate the transactions contemplated hereby.
(b) The execution, delivery and performance by TCCC and CCL of
this Agreement have been duly and validly authorized by all necessary corporate
action on the part of TCCC and CCL.
(c) This Agreement has been duly and validly executed and
delivered by TCCC and CCL and constitutes the valid and binding obligation of
TCCC and CCL enforceable against TCCC and CCL in accordance with its terms,
except to the extent the enforceability thereof may be limited by applicable
bankruptcy, reorganization, insolvency, moratorium, arrangement or other laws
affecting the enforcement of creditors' rights generally and the discretion that
a court may exercise in the granting of equitable remedies.
(d) The execution and delivery by TCCC and CCL of this Agreement,
the consummation by TCCC and CCL of the transactions contemplated hereby and the
compliance by TCCC and CCL with the terms and provisions of this Agreement, 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 CCL is subject;
(ii) violate any order, ruling, injunction, judgment or
decree to which TCCC or CCL 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 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 TCCC or
CCL is a party, or by which TCCC or CCL is bound, or to which TCCC's or
CCL's assets are subject,
except where an event or occurrence described in clauses (i) through
(iii) would neither require the expenditure of money by KOC Acquisition, KOC or
any of their affiliates, nor have a material adverse effect on the KOC Shares or
the business or assets of Enterprises, KOC Acquisition or KOC or their
subsidiaries, nor have a material adverse effect on the ability of TCCC or CCL
to consummate the transactions in the manner contemplated by this Agreement.
(e) CCL is not a non-resident of Canada for the
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xxxxxxxx xx xxx Xxxxxx Xxx Xxx (Xxxxxx).
2.02 The KOC Shares.
(a) CCL holds of record and owns beneficially at the date hereof,
and will hold of record and beneficially at the Closing, the KOC Shares, and
such shares are the only shares of KOC's capital stock owned by TCCC or its
consolidated subsidiaries.
(b) 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 KOC issued to TCCC or its consolidated subsidiaries.
(c) The sale and delivery of the KOC Shares to KOC Acquisition
pursuant to this Agreement will vest in KOC Acquisition legal and valid title to
the KOC Shares, free and clear of all liens, security interests, adverse claims
or other encumbrances of any character whatsoever (collectively,
"Encumbrances"), except for Encumbrances created by KOC Acquisition and
restrictions on sales of such shares under applicable securities laws.
(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
KOC Shares.
(e) The KOC Shares have been validly issued, fully paid and are
nonassessable.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF
ENTERPRISES AND KOC ACQUISITION
Enterprises and KOC Acquisition hereby represent and warrant to TCCC
and CCL 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 CCL and the consummation of the transactions contemplated by this
Agreement.
3.01 Power and Authority of Enterprises and KOC
Acquisition.
(a) Each of Enterprises and KOC Acquisition has the corporate
power and authority to execute and deliver this Agreement, to perform its
obligations hereunder and to consummate the transactions contemplated hereby.
(b) The execution, delivery and performance of this Agreement
have been duly and validly authorized by all necessary corporate action on the
part of Enterprises and KOC Acquisition and have been approved by the board of
directors of Enterprises and the Affiliated Transaction Committee of
Enterprises.
(c) This Agreement has been duly and validly executed and
delivered by Enterprises and KOC Acquisition and constitutes the valid and
binding obligation of Enterprises and KOC Acquisition enforceable against
Enterprises and KOC Acquisition in accordance with its terms, except to the
extent the enforceability thereof may be limited by applicable bankruptcy,
reorganization, insolvency, moratorium, arrangement or other laws affecting the
enforcement of creditors' rights generally and by the discretion
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that a court may exercise in the granting of equitable remedies.
(d) The execution and delivery by Enterprises and KOC Acquisition
of this Agreement, the consummation by Enterprises and KOC Acquisition of the
transactions contemplated hereby and the compliance by Enterprises and KOC
Acquisition with the terms and provisions of this Agreement, 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 KOC Acquisition is subject;
(ii) violate any order, ruling, injunction, judgment or
decree to which Enterprises or KOC Acquisition is aparty 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 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 KOC Acquisition is a party, or by which Enterprises or KOC
Acquisition is bound, or to which Enterprises' or KOC Acquisition'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, KOC Acquisition or their subsidiaries, nor have a
material adverse effect on the ability of Enterprises or KOC Acquisition to
consummate the transactions in the manner contemplated by this Agreement.
3.02 Investment Intent. KOC Acquisition understands that none of the
KOC Shares have been registered under any securities laws of any jurisdiction.
KOC Acquisition is acquiring the KOC Shares as principal for its own account,
for investment purposes and not with a view to the resale or distribution
thereof.
ARTICLE IV
THE CLOSING
4.01 Pre-Closing Covenants. Prior to the Closing, the parties covenant
and agree as follows:
(a) CCL and KOC Acquisition will cooperate and use all reasonable
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 CCL and KOC Acquisition to effect the transactions
contemplated hereby in accordance with the terms and conditions hereof.
(b) Prior to the Closing, CCL and TCCC 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
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proposals from any person or entity other than KOC Acquisition, Enterprises or
their respective advisors relating to any transaction involving the sale
of the KOC Shares (or any of them) or the sale or transfer of substantially all
of the assets of KOC. Prior to the Closing, neither CCL nor TCCC nor any of
their consolidated subsidiaries shall purchase any additional shares in the
capital stock or other securities of KOC (whether upon a treasury issuance,
pursuant to a market purchase or otherwise) or agree to do so except with the
prior written consent of KOC Acquisition, which consent may be withheld or
granted in its sole discretion.
(c) KOC Acquisition shall promptly file or cause to be filed on
a confidential basis:
(i) an application for review pursuant to and in
compliance with the Investment Canada Act; and
(ii) a short-form pre-merger notification and/or an
application for an advance ruling certificate pursuant to and in compliance
with the Competition Act.
CCL shall provide such information and assistance as KOC
Acquisition may reasonably require in connection with the filings required under
(i) and (ii) above.
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 4.02, 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 TCCC, CCL, Enterprises and KOC
Acquisition, 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
KOC 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 KOC Shares or result in material damage or Losses (as defined below)
to any party hereto as a result of the purchase and sale of the KOC Shares.
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The pendency of an action, suit or proceeding relating to any tender offer for
shares of common stock of KOC initiated by KOC Acquisition 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 KOC Shares contemplated herein, and such challenge could not be
eliminated by a termination or withdrawal by KOC Acquisition 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, stock
exchange, board, bureau, agency, official or other regulatory, administrative or
governmental authority.
(c) The Minister of Industry Canada shall have been satisfied or
have been deemed to have been satisfied that the acquisition of the KOC Shares
by KOC Acquisition is likely to be of net benefit to Canada pursuant to the
Investment Canada Act or KOC Acquisition shall have been advised in writing by
the Minister of Industry Canada that the acquisition of the KOC Shares is not
reviewable under the provisions of the Investment Canada Act.
(d) KOC Acquisition and CCL shall each have filed all notices and
information required under Part IX of the Competition Act and shall have
satisfied any request for additional information thereunder and the applicable
waiting periods and any extensions thereof shall have expired without the threat
of restraint or challenge, or KOC Acquisition shall have received an advance
ruling certificate in form satisfactory to its counsel.
(e) All other authorizations, consents and approvals of
Governmental Authorities required to consummate the transactions contemplated
hereby shall have been received.
(f) The purchase by The Coca-Cola Bottling Company of the
Northeast of the stock of The Coca-Cola Bottling Company of New York, Inc. held
by Bottling Investment Holdings, Inc. shall have occurred simultaneously with
the purchase of the KOC Shares hereunder.
It is expressly acknowledged and agreed by each of CCL and KOC Acquisition that
the transactions contemplated by this Agreement are not conditioned in any
manner upon any decision by Enterprises, KOC Acquisition or their subsidiaries
to effect a tender offer for shares of common stock of KOC or upon the timing or
completion of any such tender offer. However, it is 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 KOC Acquisition. The obligation of
Enterprises and KOC Acquisition to consummate the transactions contemplated
hereby is also subject to the satisfaction (or waiver by KOC Acquisition) at or
prior to the
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Closing of the following conditions:
(a) The representations and warranties of TCCC and CCL 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 Agreement. KOC Acquisition shall have received certificates
signed by an officer of TCCC and CCL, as appropriate, to the foregoing effect.
(b) TCCC and KOC Acquisition shall have executed a Marketing
Support Agreement relating to KOC, in form and substance reasonably satisfactory
to TCCC, KOC Acquisition and Enterprises.
(c) There shall have occurred no material adverse change in the
financial condition or business of KOC since December 31, 1996.
4.05 Conditions to Obligations of TCCC and CCL. The obligations of
TCCC and CCL to consummate the transactions contemplated hereby are also subject
to the satisfaction (or waiver by TCCC and CCL) at or prior to the Closing of
the following condition: namely, that the representations and warranties of
Enterprises and KOC Acquisition 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
(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
respects as of such date or time), and (ii) for changes resulting from the
consummation of the transactions contemplated by this Agreement. TCCC and CCL
shall have received certificates signed by an officer of Enterprises and KOC
Acquisition, as appropriate, to the foregoing effect.
4.06 Deliveries by the Parties. At the Closing:
(a) CCL shall:
(i) deliver to KOC Acquisition certified copies of the
resolutions of the boards of directors of TCCC and CCL, respectively,
authorizing the execution and delivery of this Agreement and the
consummation of the transactions contemplated by this Agreement;
(ii) deliver to KOC Acquisition a certificate dated as of
the Closing Date executed by an officer of CCL, in form and substance
reasonably satisfactory to KOC Acquisition, (A) to the effect provided for
in Section 4.04(a), and (B) stating that CCL has performed and complied in
all material respects with all agreements and covenants required by this
Agreement to be performed or complied with by CCL prior to or at Closing;
(iii) deliver to KOC Acquisition a certificate dated as of
the Closing Date executed by an officer of TCCC, in form and substance
reasonably satisfactory to KOC Acquisition, (A) to the effect provided for
in Section
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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;
(iv) deliver to KOC Acquisition stock certificates
representing all of the KOC Shares being sold by CCL hereunder, duly
endorsed or accompanied by assignments separate from certificate in form
reasonably satisfactory to counsel for KOC Acquisition; and
(v) deliver to Enterprises and KOC Acquisition opinions
from each of Xxxxx X. Xxx, General Counsel to CCL, 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) KOC Acquisition shall:
(i) deliver to TCCC and CCL certified copies of the
resolutions of the boards of directors of KOC Acquisition and Enterprises,
respectively, authorizing the execution and delivery of this Agreement and
the consummation of the transactions contemplated by this Agreement;
(ii) deliver to TCCC and CCL a certificate dated as of the
Closing Date executed by an officer of KOC Acquisition, in form and
substance satisfactory to TCCC and CCL, (A) to the effect provided for in
Section 4.05, and (B) stating that KOC Acquisition has performed and
complied in all material respects with all agreements and covenants
required by this Agreement to be performed or complied with by KOC
Acquisition prior to or at Closing;
(iii) deliver to CCL a certificate dated as of the Closing
Date executed by an officer of Enterprises, in form and substance
satisfactory to CCL, (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) deliver to TCCC and CCL opinions from each of Xxxxxx &
Xxxxxx and Xxxxx, Drummie & Company each dated the Closing Date in
substantially the form of Exhibit 4.06(b)(iv)-1 and Exhibit 4.06(b)(iv)-2;
and
(v) effect the payment to CCL of the Purchase Price
provided for in Section 1.02.
4.07 Additional Agreements. TCCC, CCL, Enterprises and KOC Acquisition
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, CCL, Enterprises and KOC Acquisition each further
agrees that it will not take any action that will prevent the performance of
this Agreement in accordance with its terms, except as may be required by
applicable law.
ARTICLE V
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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 KOC Acquisition hereunder
(the "KOC Acquisition 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 Enterprises under this
Section 5.01, which shall be continuing and shall be discharged only by the full
performance of the KOC Acquisition 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 CCL hereunder (the "CCL
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 CCL
Obligations.
ARTICLE VI
INDEMNIFICATION
6.01 Remedies. Each of CCL and KOC Acquisition, 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 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. 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.
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
failure to
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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 CCL in writing, if KOC Acquisition or Enterprises shall
(i) fail to perform in any material respect its agreements contained herein
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, which failure or breach in either case is not cured within thirty (30)
days after CCL has notified KOC Acquisition and Enterprises of its intent to
terminate this Agreement pursuant to this Article VII;
(c) By KOC Acquisition in writing, if CCL or TCCC shall (i) fail
to perform in any material respect its agreements contained herein 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,
which failure or breach in either case is not cured within thirty (30) days
after
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XXX Xxxxxxxxxxx has notified CCL and TCCC of its intent to terminate this
Agreement pursuant to this Article VII;
(d) By either CCL or KOC Acquisition in writing, without
liability, if there shall be any final, non-appealable order, writ, injunction
or decree of any Governmental Authority binding on KOC Acquisition, Enterprises,
CCL or TCCC, which prohibits or restrains KOC Acquisition, Enterprises, CCL or
TCCC from consummating the transactions contemplated hereby; or
(e) By either CCL or KOC Acquisition, 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 No Participation in Tender. CCL shall not tender, nor allow to be
tendered by any other person or entity, the KOC Shares in response to any
take-over bid or offer made for any or all of the common shares of KOC.
8.02 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.
8.03 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.
8.04 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:
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
Senior Vice President and General Counsel
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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 KOC Acquisition:
Assistant Secretary
Enterprises KOC Acquisition Company Ltd.
c/o Stikeman, Xxxxxxx
Xxxxxxxx Xxxxx Xxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxx
XXXXXX
Telecopy No.: (000) 000-0000
with copies to:
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
and:
Xxxxx X. Xxxxx
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 CCL:
The Coca-Cola Company
Xxx Xxxx-Xxxx Xxxxx
Xxxxxxx, Xxxxxxx 00000
Attention: Chief Financial Officer
Telecopy No.: (000) 000-0000
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with copies to:
The Coca-Cola Company
Xxx Xxxx-Xxxx Xxxxx
Xxxxxxx, Xxxxxxx 00000
Attention: General Counsel
Telecopy No.: (000) 000-0000
and
Coca-Cola Ltd.
Xxxxx 000, 00 Xxxxxxx Xxxxxxxxx
Xxxxxxx, Xxxxxxx
XXXXXX
X0X 0X0
Attention: General Counsel
Telecopy No.: (000) 000-0000
or to such other address as any 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.
8.05 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 TCCC, CCL and Enterprises may not
assign any of their rights, interests or obligations hereunder without the prior
written consent of all other parties hereto. KOC Acquisition may assign its
rights and duties hereunder in whole or in part to one or more entities which
are, at the time of such assignment and at the time of the Closing, wholly-owned
direct or indirect subsidiaries of Enterprises, subject to the continuing
effectiveness of the guaranty of Enterprises set forth in Section 5.01, which
may not be delegated without the consent of TCCC.
8.06 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.
8.07 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.
8.08 Counterparts. This Agreement may be executed in one or more
counterparts, all of which shall be considered to be one and the same agreement,
and each of which shall be deemed an original.
8.09 Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of Georgia,
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regardless of the conflicts of laws principles thereof.
8.10 Section 338 Election. If KOC Acquisition makes a "qualified stock
purchase" as defined in Section 338(d) of the Internal Revenue Code of 1986, as
amended ("IRC"), of the KOC Shares, and otherwise meets the applicable
requirements of that section, CCL acknowledges that KOC Acquisition may make an
election under IRC Section 338(g) with respect to the purchase of the KOC
Shares. Neither TCCC nor CCL shall have any liability for any tax liabilities of
KOC or its subsidiaries arising from such election and Enterprises agrees to
indemnify and hold harmless TCCC and CCL from any such liability.
8.11 Amendments; Waivers. This Agreement may not be altered, amended,
superseded, canceled 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:
ENTERPRISES KOC ACQUISITION
COMPANY LTD.
By: /s/XXXX X. XXX
------------------------------
Name: Xxxx X. Xxx
Title: Senior Vice President and
Chief Financial Officer
COCA-COLA LTD.
By: /s/ XXXXXXX X. XXXXX
------------------------------
Name: Xxxxxxx X. Xxxxx
Title: 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
Exhibit 4.06(a)(v)-1 Form of opinion of Xxxxx X. Xxx.
Exhibit 4.06(a)(v)-2 Form of opinion of F. Xxxxxx Xxxxx
Exhibit 4.06(b)(iv)-1 Form of opinion of Xxxxxx & Xxxxxx
Exhibit 4.06(b)(iv)-2 Form of opinion of Xxxxx, Drummie &
Company
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