EXHIBIT 4.3
SECURITIES PURCHASE AGREEMENT
SECURITIES PURCHASE AGREEMENT (this "Agreement") dated as of
March 28, 2003, by and between Piedmont Partnership Holding Company, a Delaware
corporation ("KO Subsidiary"), and Coca-Cola Ventures, Inc., a Delaware
corporation ("Consolidated Subsidiary").
W I T N E S S E T H:
WHEREAS, KO Subsidiary owns a 45.349% general partnership
interest in Piedmont Coca-Cola Bottling Partnership, a Delaware general
partnership (the "Partnership"); and
WHEREAS, Consolidated Subsidiary owns a 54.651% general
partnership interest in the Partnership; and
WHEREAS, the Partnership was formerly known as Carolina
Coca-Cola Bottling Partnership; and
WHEREAS, the Partnership was formed pursuant to the Partnership
Agreement of Carolina Coca-Cola Bottling Partnership, dated as of July 2, 1993,
as amended by the First Amendment, dated as of August 5, 1993, the Second
Amendment, dated as of August 12, 1993, and the Master Amendment to Partnership
Agreement, Management Agreement and Definition and Adjustment Agreement, dated
as of January 2, 2002 (as amended, the "Partnership Agreement"); and
WHEREAS, KO Subsidiary desires to sell to Consolidated
Subsidiary and Consolidated Subsidiary desires to purchase from KO Subsidiary,
on the terms and subject to the conditions set forth herein, a 22.675% interest
in the capital, profits and losses of the Partnership, including, without
limitation, 50% of KO Subsidiary's Capital Account, KO Subsidiary's rights to
allocations of net profit and net loss and distributions of cash flow and
capital items of the Partnership (the "Interest").
NOW, THEREFORE, in consideration of the representations,
warranties and agreements set forth herein and for other good and valuable
consideration the receipt and adequacy of which is hereby acknowledged, the
parties hereto agree as follows.
1. Purchase and Sale. Upon the terms and subject to the
conditions set forth in this Agreement, KO Subsidiary agrees to sell to
Consolidated Subsidiary, and Consolidated Subsidiary agrees to purchase from KO
Subsidiary, the Interest (the "Sale") for an aggregate purchase price of $53.5
million (the "Purchase Price").
2. Representations and Warranties of KO Subsidiary. KO
Subsidiary hereby represents and warrants to Consolidated Subsidiary as of the
date hereof as follows:
(a) KO Subsidiary (i) is a corporation duly organized,
validly existing and in good standing under the laws of the State of
Delaware and (ii) has all requisite corporate power and authority to
execute, deliver and perform its obligations under this Agreement.
(b) The execution, delivery and performance of this
Agreement by KO Subsidiary has been duly authorized by all requisite
corporate action and no further consent or authorization of KO
Subsidiary, its Board of Directors or its stockholders is required. This
Agreement has been duly executed and delivered by KO Subsidiary and,
when duly authorized, executed and delivered by Consolidated Subsidiary,
will constitute the valid and binding obligations of KO Subsidiary
enforceable against KO Subsidiary in accordance with its terms, except
as enforceability may be limited by applicable bankruptcy, insolvency,
fraudulent conveyance or transfer, moratorium or similar laws affecting
the enforcement of creditors' rights generally and by general principles
of equity relating to enforceability (regardless of whether considered
in a proceeding at law or in equity).
(c) No consent, approval, authorization or order ("Consent")
of any court, governmental agency or other body or of any other third
party is required for execution and delivery by KO Subsidiary of this
Agreement or the performance of its obligations hereunder, other than
those that (i) may arise under the Partnership Agreement or (ii) as may
already have been received.
(d) Neither the execution and delivery by KO Subsidiary of
this Agreement nor the performance by KO Subsidiary of any of its
obligations hereunder violates, conflicts with, results in a breach of,
or constitutes a default (or an event which with the giving of notice or
the lapse of time or both would be reasonably likely to constitute a
default) under (i) the certificate of incorporation or other
organizational documents of KO Subsidiary; (ii) any decree, judgment,
order, law, rule, regulation or other restriction of any court,
governmental agency or body, or arbitrator having jurisdiction over KO
Subsidiary or any of its subsidiaries, other than the Partnership, or
any of their respective properties or, (iii) except as set forth in
paragraph (c) above, the terms of any material agreement to which KO
Subsidiary or any of its subsidiaries, other than the Partnership, is a
party, by which KO Subsidiary or any of its subsidiaries, other than the
Partnership, is bound, or to which any of the properties or assets of KO
Subsidiary or any of its subsidiaries, other than the Partnership, are
subject, other than violations, conflicts, breaches or defaults which,
individually or in the aggregate, would not have a material adverse
effect on the ability of KO Subsidiary to perform its obligations
hereunder.
(e) KO Subsidiary has good and valid title to the Interest,
free and clear of any security interests, liens, claims or other
encumbrances (other than encumbrances that may arise under the
Partnership Agreement and federal or state securities laws).
(f) There are no brokerage commissions, finder's fees or
similar fees or
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commissions payable by KO Subsidiary in connection with the transactions
contemplated hereby.
3. Representations and Warranties of Consolidated Subsidiary.
Consolidated Subsidiary hereby represents and warrants to KO Subsidiary as of
the date hereof as follows:
(a) Consolidated Subsidiary (i) is a corporation duly
organized, validly existing and in good standing under the laws of the
State of Delaware and (ii) has all requisite corporate power and
authority to execute, deliver and perform its obligations under this
Agreement.
(b) The execution, delivery and performance of this
Agreement by Consolidated Subsidiary has been duly authorized by all
requisite corporate action and no further consent or authorization of
Consolidated Subsidiary, its Board of Directors or its stockholders is
required. This Agreement has been duly executed and delivered by
Consolidated Subsidiary and, when duly authorized, executed and
delivered by KO Subsidiary, will constitute the valid and binding
obligations of Consolidated Subsidiary enforceable against Consolidated
Subsidiary in accordance with its terms, except as enforceability may be
limited by applicable bankruptcy, insolvency, fraudulent conveyance or
transfer, moratorium or similar laws affecting the enforcement of
creditors' rights generally and by general principles of equity relating
to enforceability (regardless of whether considered in a proceeding at
law or in equity).
(c) No Consent of any court, governmental agency or other
body or any other third party is required for execution and delivery by
Consolidated Subsidiary of this Agreement or the performance of its
obligations hereunder other than those that (i) may arise under the
Partnership Agreement or (ii) are set forth on Schedule I hereto, which
Consents have already been received.
(d) Neither the execution and delivery by Consolidated
Subsidiary of this Agreement nor the performance by Consolidated
Subsidiary of any of its obligations hereunder violates, conflicts with,
results in a breach of, or constitutes a default (or an event which with
the giving of notice or the lapse of time or both would be reasonably
likely to constitute a default) under (i) the certificate of
incorporation or other organizational documents of Consolidated
Subsidiary, (ii) any decree, judgment, order, law, rule, regulation or
other restriction of any court, governmental agency or body, or
arbitrator having jurisdiction over Consolidated Subsidiary or any of
its subsidiaries or any of their respective properties or assets, or
(iii) the terms of any material agreement to which Consolidated
Subsidiary or any of its subsidiaries is a party, by which Consolidated
Subsidiary or any of its subsidiaries are bound, or to which any of the
properties or assets of Consolidated Subsidiary or any of its
subsidiaries are subject, other than violations, conflicts, breaches or
defaults which, individually or in the aggregate, would
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not have a material adverse effect on the ability of Consolidated
Subsidiary to perform its obligations hereunder.
(e) The Interest is being acquired by Consolidated
Subsidiary for its own account and with no intention of distributing or
reselling the Interest or any part thereof in any transaction that would
be in violation of the securities laws of the United States of America,
or any state, without prejudice, however, to the rights of Consolidated
Subsidiary at all times to sell or otherwise dispose of all or any part
of the Interest under an effective registration available under the
Securities Act of 1933, as amended (the "Securities Act"), or an
applicable exemption from registration, and subject, nevertheless, to
the disposition of Consolidated Subsidiary's property being at all times
within its control. If Consolidated Subsidiary should in the future
decide to dispose of all or any portion of the Interest, Consolidated
Subsidiary understands and agrees that it may do so only in compliance
with the Securities Act and applicable state securities laws, as then in
effect.
(f) Consolidated Subsidiary understands that the Interests
have not been and will not be registered under the Securities Act for
the reason that the sale provided for in this Agreement is exempt
pursuant to Section 4(2) of the Securities Act and that the reliance of
KO Subsidiary on such exemption is predicated in part on Consolidated
Subsidiary's representations set forth herein. Consolidated Subsidiary
represents that it is experienced in evaluating companies such as the
Partnership, has such knowledge and experience in financial and business
matters as to be capable of evaluating the merits and risks of its
investment and has the ability to suffer the total loss of its
investment.
(g) Consolidated Subsidiary is an "accredited investor"
within the meaning of Rule 501 of Regulation D under the Securities Act.
(h) There are no brokerage commissions, finder's fees or
similar fees or commissions payable by Consolidated Subsidiary in
connection with the transactions contemplated hereby.
4. Survival of the Representations, Warranties, etc. The
respective representations, warranties and agreements made in this Agreement
shall survive the date hereof.
5. Closing. The closing of the Sale (the "Closing") shall occur
on the date hereof. At the Closing, (a) KO Subsidiary shall deliver to
Consolidated Subsidiary (i) a duly executed Assignment of Interest and (ii) a
duly executed Fourth Amendment to Partnership Agreement and (b) Consolidated
Subsidiary shall deliver to KO Subsidiary: (i) the Purchase Price by wire
transfer of immediately available funds, (ii) a duly executed Assignment of
Interest and (iii) a duly executed Fourth Amendment to Partnership Agreement.
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6. Tax Covenants. KO Subsidiary and Consolidated Subsidiary each
covenants and agrees to cause the Partnership to timely file federal and, if
applicable, state income tax returns (including Internal Revenue Form 1065) for
the Partnership's taxable year during which the Closing occurs and, unless such
elections would already be in effect, to include with the federal return an
election under section 754 of the Internal Revenue Code of 1986, as amended, or
any successor statute thereto (the "Code") to adjust the basis of Partnership
property under section 734(b) with respect to distributions of Partnership
property and section 743(b) of the Code with respect to transfers of partnership
interests of the Partnership (and to include with such state income tax returns
any comparable election that may be applicable with respect to any state income
tax return to be filed by the Partnership) (the "Section 754 Elections"). The
Section 754 Elections shall be filed in such form and manner as determined by
Consolidated Subsidiary in its sole discretion. In addition, if requested by
Consolidated Subsidiary, KO Subsidiary shall join with Consolidated Subsidiary
to cause the Partnership to timely file protective Section 754 Elections with
any other income tax returns filed by the Partnership with respect to its 2003
fiscal year in such form and manner as Consolidated Subsidiary in its sole
discretion deems to be appropriate to be assured that the adjustments described
in section 743(b) of the Code with respect to the adjusted tax basis of the
Partnership's property are made with respect to Consolidated Subsidiary's
purchase of the Interest.
7. Notices. All notices and other communications under this
Agreement shall be in writing and shall be deemed given (a) when delivered by
hand or certified mail, return receipt requested, postage prepaid, (b) when
transmitted by telecopier, confirmation of which is mechanically received, or
(c) when received if sent by overnight courier, to the addressee at the
following addresses or telecopier numbers (or to such other address or
telecopier number as a party may specify from time to time by notice hereunder):
(i) if to KO Subsidiary:
Piedmont Partnership Holding Company
c/o The Coca-Cola Company
One Coca-Cola Plaza
Atlanta, GA 30301
Attn: Chief Financial Officer
Facsimile: (404) 676-6675
with copies to:
The Coca-Cola Company
One Coca-Cola Plaza
Atlanta, GA 30301
Attn: General Counsel
Facsimile: (404) 515-2546
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and
The Coca-Cola Company
One Coca-Cola Plaza
Atlanta, GA 30301
Attn: Parth S. Munshi, Esq.
Facsimile: (404) 676-6812
(ii) if to Consolidated Subsidiary:
Coca-Cola Ventures, Inc.
c/o Coca-Cola Bottling Co. Consolidated
Coca-Cola Corporate Center
4100 Coca-Cola Plaza (28211-3481)
P.O. Box 31487
Charlotte, North Carolina 28211-3481
Attn: Chief Financial Officer
Facsimile: (704) 557-4451
with a copy to:
Kennedy Covington Lobdell & Hickman, L.L.P.
Hearst Tower, 47th Floor
214 North Tryon Street
Charlotte, North Carolina 28202
Attn: Henry W. Flint, Esq.
Facsimile: (704) 331-7598
8. Miscellaneous
(a) This Agreement may be executed in one or more
counterparts and it is not necessary that signatures of all parties
appear on the same counterpart, but such counterparts together shall
constitute but one and the same agreement.
(b) This Agreement shall inure to the benefit of and be
binding upon the parties hereto and their respective successors and
assigns, and no other person shall have any right or obligation
hereunder. Neither party may assign this Agreement without the prior
written consent of the other party.
(d) In case any provision in or obligation under this
Agreement shall be invalid, illegal or unenforceable in any
jurisdiction, the validity, legality and
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enforceability of the remaining provisions or obligations, or of such
provision or obligation in any other jurisdiction, shall not in any way
be affected or impaired thereby.
(e) Any provision of this Agreement may be amended or waived
if, and only if, such amendment or waiver is in writing and is signed by
the parties hereto.
(f) Each party hereto shall execute any and all further
documents, agreements and instruments, and take all further action, that
may be required under applicable law or which the other party hereto may
reasonably request, in order to effectuate the transactions contemplated
hereby.
(g) The headings of the sections and subsections of this
document have been inserted for convenience of reference only, shall not
be deemed to be a part of this Agreement for any purpose and shall not
in any way define or affect the meaning, construction or scope of any
provision hereof.
(h) Each party to this Agreement shall bear its own costs
and expenses incurred in connection with the transactions contemplated
hereby.
(i) This Agreement constitutes the entire agreement and
supersedes all prior agreements and understandings, both written and
oral, between the parties hereto with respect to the subject matter of
this Agreement. This Agreement is not intended to confer upon any person
other than the parties hereto any rights or remedies hereunder.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the undersigned have caused this Securities Purchase
Agreement to be duly executed as of the date first above written.
PIEDMONT PARTNERSHIP HOLDING COMPANY
By:
---------------------------
Name:
Title:
COCA-COLA VENTURES, INC.
By:
---------------------------
David V. Singer
Vice President
SCHEDULE I
The Sale would give rise to a termination right under each License
Agreement to which the Partnership and Dr. Pepper/Seven Up, Inc. are party,
however Dr. Pepper /Seven Up, Inc. has provided its written consent to the Sale.