SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date of Report: May 12, 1995
(Date of earliest event reported)
COCA-COLA ENTERPRISES INC.
(Exact name of Registrant as specified in its charter)
Delaware 1-9300 58-0503352
(State of (Commission File No.) (IRS Employer
incorporation) Identification No.)
Coca-Cola Plaza, N.W., Atlanta, Georgia 30313
(Address of principal executive offices, including zip code)
(404) 676-2100
(Registrant's telephone number, including area code)
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Item 7. Financial Statements and Exhibits
(c) Exhibits
1.01 Purchase Agreement dated as of May 12, 1995
relating to the offer and sale of Zero Coupon
Notes due June 20, 2020 (the "Notes").
4.01 Form of Note.
2
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SIGNATURES
Pursuant to the requirements of the Securities Exchange
Act of 1934, the Registrant has duly caused this report to be
signed on its behalf by the undersigned hereunto duly authorized.
COCA-COLA ENTERPRISES INC.
(Registrant)
LOWRY F. KLINE
Date: June 23, 1995 By:----------------------------
Name: Lowry F. Kline
Title: General Counsel
3
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COCA-COLA ENTERPRISES INC.
EXHIBIT INDEX
Exhibit No. Page
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1.01 Purchase Agreement dated as of May 12, 1995 5
relating to the offer and sale of Zero Coupon
Notes due June 20, 2020 (the "Notes").
4.01 Form of Note. 36
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EXHIBIT 1.01
COCA-COLA ENTERPRISES INC.
(a Delaware corporation)
Zero Coupon Notes Due June 20, 2020
PURCHASE AGREEMENT
May 12, 1995
Salomon Brothers Inc
Seven World Trade Center
New York, New York 10048
Dear Sirs:
1. Introduction. Coca-Cola Enterprises Inc., a
Delaware corporation (the "Company"), previously entered into a
Warrant Purchase Agreement dated as of June 13, 1990 (the
"Warrant Agreement"), pursuant to which the Company issued
warrants (the "Warrants"), each representing the right to
purchase up to $7,729,920 aggregate principal amount of Zero
Coupon Notes Due June 20, 2020 of the Company, the terms of which
are described in the Warrant Agreement (the "Debt Securities"),
at 12.937% of their principal amount. Pursuant to Section 11 of
the Warrant Agreement, the provisions of the Underwriting
Agreement (other than Section 2 thereof) attached as Exhibit B to
that Warrant Agreement (and as Exhibit A hereto) govern any
purchase and sale of Debt Securities by you contemplated by the
Warrant Agreement and are incorporated by reference into the
Warrant Agreement, in each case with such modifications as may be
appropriate to reflect the transactions contemplated by the
Warrant Agreement. In order to effectuate more fully the intent
of Section 11 of the Warrant Agreement and the incorporation of
the Underwriting Agreement, this Purchase Agreement sets forth
the modifications to the Underwriting Agreement appropriate to
reflect the transactions contemplated thereby. This Purchase
Agreement shall be governed by and construed in accordance with
the laws of the State of New York.
2. Incorporation and Modifications. In addition
to Section 2 of the Underwriting Agreement, which does not apply
in accordance with the terms of the Warrant Agreement, the
following provisions of the Underwriting Agreement will or will
not apply, as indicated, to any purchase and sale of Debt
Securities by you:
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a. The two introductory paragraphs to
the Underwriting Agreement shall not apply except that
(i) "Senior Debt Securities" and "Securities" shall
mean the Debt Securities; (ii) the Debt Securities will
be issued under the Indenture referred to in the
Prospectus Supplement dated May 9, 1995, with respect
to the Senior Debt Securities, (iii) "Agreement" shall
mean this Purchase Agreement, (iv) "Underwriter" or
"Underwriters" shall mean you and (v) "you" or "your"
shall mean you.
b. Section 1 applies as set forth in
the Underwriting Agreement except that (i)
"Representation Date" means the date hereof and
(ii) the reference to registration statement no.
33-32067 is replaced in all cases with a reference to
the registration statements of the Company filed with
the Commission on Form S-3 bearing the registration
nos. 33-41911 and 33-46675.
c. Section 3 applies as set forth in
the Underwriting Agreement except that (i) Section 3(a)
shall not apply apart from the last sentence thereto as
it relates to the requirement of the Company to furnish
copies of the Prospectus and Prospectus Supplement
reasonably requested by you, (ii) the first sentence of
Section 3(g) of the Underwriting Agreement shall not
apply and the second sentence of such Section 3(g)
shall apply in respect of the last sentence of Section
9 of the Warrant Agreement, (iii) Section 3(i) shall
not apply and (iv) Section 3(j) shall apply to the
period five years after the date hereof as opposed to
the period five years after the date of any Terms
Agreement.
d. Section 4 applies as set forth in
the Underwriting Agreement except that (i) the
reference to "Terms Agreement" in the introductory
paragraph is modified to refer to the Warrant
Agreement, (ii) the reference to "Closing Time" is
modified for purposes of Section 4 and all other
purposes to refer to the closing at 10:00 a.m., New
York time, on June 20, 1995 relating to the purchase of
the Debt Securities by you, (iii) Section 4(a)(ii)
shall not apply, (iv) Section 4(b)(1) is modified to
refer to an opinion of Lowry F. Kline, Esq., General
Counsel of the Company, and such opinion need not make
reference to the Terms Agreement, (v) the reference to
the date of any Terms Agreement in the last paragraph
of Section 4(b)(1) shall mean the date hereof; (vi)
Section 4(b)(2) shall not apply, (vii) the opinion
contemplated by Section 4(b)(3) shall be included
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within the opinion of Mr. Kline in a form reasonably
acceptable to you and your counsel but without the
assumptions contained in such Section 4(b)(3), (viii)
Section 4(b)(4) shall not apply, (ix) the letter
provided for by Section 4(d) shall not be required and
the letter provided for by Section 4(c) shall be dated
the date hereof, (x) the certification set forth in
Section 4(e)(v) shall not be required and (xii) the
last paragraph of Section 4 shall not apply.
e. Section 5 applies as set forth in
the Underwriting Agreement except that (i) references
to the Terms Agreement shall not apply, (ii) Section
5(iv) shall not apply, (iii) references in Section
5(vi) to Blue Sky Surveys shall not apply and (iv) the
last paragraph of Section 5 shall not apply.
f. Section 6 applies as set forth in
the Underwriting Agreement.
g. Section 7 applies as set forth in
the Underwriting Agreement.
h. Section 8 shall not apply.
i. Section 9 shall not apply.
j. Section 10 shall not apply.
k. Section 11 applies as set forth in
the Underwriting Agreement except that notices to you
shall be directed to you at the address set forth
above.
l. Section 12 applies as set forth in
the Underwriting Agreement.
m. Section 13 applies as set forth in
the Underwriting Agreement except that references to
the Terms Agreement shall not apply.
n. Exhibits A and B of the
Underwriting Agreement shall not apply.
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3. Miscellaneous. This Purchase Agreement may
be executed in two or more counterparts, each of which shall be
an original, but all of which together shall constitute one and
the same agreement.
COCA-COLA ENTERPRISES INC.
VICKI G. ROMAN
By:--------------------------
Name: Vicki G. Roman
Title: Vice President and
Treasurer
Confirmed and accepted as of
the date first above written:
SALOMON BROTHERS INC
By: CAESAR SWITZER
----------------------
Name: Caesar Switzer
Title: Managing Director
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EXHIBIT A
TO PURCHASE AGREEMENT
COCA-COLA ENTERPRISES INC.
(a Delaware Corporation)
Senior Debt Securities,
Debt Warrants
and
Currency Warrants
UNDERWRITING AGREEMENT
As of May 26, 1992
To the Underwriters
named in the applicable
Terms Agreement
Supplemental hereto
Ladies and Gentlemen:
In accordance with the authorization granted by the Board of Directors
of Coca-Cola Enterprises Inc. (the "Company") by resolutions adopted on
October 17, 1989, July 17, 1990 and December 17, 1991, the Company proposes
to sell from time to time, pursuant to its registration statements on Form
S-3 (No. 33-41911 and No. 33-46675), up to $2,170,600,000 aggregate
principal amount, or the equivalent of such amount based on the applicable
exchange rate at the time of offering, in domestic or such foreign
currencies or units of two or more currencies as the Company shall
designate at the time of offering, of its (a) senior debt securities (the
"Senior Debt Securities") and/or (b) warrants to purchase Senior Debt
Securities ("Debt Warrants") and/or (c) warrants to receive from the
Company the cash value in U.S. dollars of the right to purchase ("Currency
Call Warrants") and/or to receive from the Company the cash value in U.S.
dollars of the right to sell ("Currency Put Warrants" and, together with
the Currency Call Warrants, the "Currency Warrants") such foreign
currencies or units of two or more currencies as shall be designated by the
Company at the time of offering in one or more offerings on terms
determined at the time of sale. The Senior Debt Securities will be issued
under an indenture dated as of July 30, 1991, as amended by the First
Supplemental Indenture dated as of January 29, 1992 (the "Indenture"),
between the Company and Manufacturers Hanover Trust Company, as trustee
(the "Trustee"). The Debt Warrants and/or Currency Warrants (together, the
"Warrants") will be issued under one or more warrant agreements (the
warrant agreement relating to any issue of Warrants to be sold pursuant to
this Agreement will be identified in the applicable Terms Agreement (as
hereinafter defined) and is referred to herein as the "Warrant Agreement")
between the Company and the Warrant Agent identified in such Warrant
Agreement (the "Warrant Agent"). Each issue of Senior Debt Securities and
Warrants may vary where applicable, as to aggregate principal amount,
maturity, interest rate or rates and timing of payments thereof, redemption
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provisions and sinking fund requirements, if any, exercise provisions and
any other variable terms which the Indenture or any Warrant Agreement, as
the case may be, contemplates may be set forth in the Debt Securities and
Warrants as issued from time to time. The Senior Debt Securities and the
Warrants may be offered either together or separately. As used herein
Securities" shall mean the securities (whether Senior Debt Securities,
Warrants or both) covered by the applicable Terms Agreement, and "Warrant
Securities" shall mean the Senior Debt Securities issuable upon exercise of
Debt Warrants.
Whenever the Company determines to make an offering of Securities
through one or more investment banking firms, it will enter into a Terms
Agreement (a "Terms Agreement") with such firm or firms providing for the
sale of such Securities to, and the purchase and offering thereof by, such
firm or firms. The Terms Agreement shall be substantially in the form of
Exhibit A hereto and shall specify such applicable information as is
indicated in such Exhibit. The Terms Agreement will incorporate by
reference the provisions of this Agreement. Each offering of Securities
will be governed by this Agreement, as supplemented by the applicable Terms
Agreement, and this Agreement and such Terms Agreement inure to the benefit
of and be binding upon each Underwriter participating in the offering of
such Securities. Unless the context otherwise requires, as used hereinafter
(a) the term "Agreement" shall refer to this Underwriting Agreement which
has been executed by the Company as of May 26, 1992 and to the Terms
Agreement supplemental hereto with respect to the offering of specific
Securities as executed by or on behalf of the Company and by or on behalf
of the Underwriter or Underwriters which are parties thereto; (b) the term
"Terms Agreement" shall refer to the Terms Agreement applicable to a
specific offering; (c) the term "Underwriter" or "Underwriters" shall each
refer to the one or more investment banking firms which are parties to the
applicable Terms Agreement; and (d) "you" or "your" shall refer to any
manager or co-managers of an underwriting syndicate so specified in the
applicable Terms Agreement, or, if none is or are so named, to the
Underwriter or Underwriters.
SECTION 1. Representations and Warranties. The Company represents and
warrants to each Underwriter, as of the date of the Terms Agreement (the
"Representation Date"), as follows:
(a) The Company meets the requirements for use of Form S-3 under
the Securities Act of 1933 (the "1933 Act"), and the Company has filed
with the Securities and Exchange Commission (the "Commission")
registration statements on Form S-3 (Nos. 33-41911 and 33-46675), such
registration statements relating to the Securities and the offering
thereof from time to time in accordance with Rule 415 under the 1933
Act, and has filed such amendments thereto as may have been required
to the date hereof. Such registration statements have been declared
effective by the Commission, and the Indenture has been qualified
under the Trust Indenture Act of 1939 (the "1939 Act"). Such
registration statements (and, if amended, as amended) and the
prospectuses relating to the sale of Securities by the Company
constituting a part thereof, including all documents incorporated
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therein by reference, as from time to time amended or supplemented
pursuant to the Securities Exchange Act of 1934 (the "1934 Act"), the
1933 Act or otherwise, are collectively referred to herein as the
"Registration Statement" and the "Prospectus", respectively; provided,
however, that a supplement to the Prospectus contemplated by Section
3(a) hereof (a "Prospectus Supplement") shall be deemed to have
supplemented the Prospectus only with respect to the offering of
Securities to which it relates.
(b) The Registration Statement, the Prospectus and the
Indenture, at the time the Registration Statement became effective and
as of the Representation Date, complied in all material respects with
the applicable requirements of the 1933 Act, the rules and regulations
thereunder (the "Regulations") and the 1939 Act. The Registration
Statement, at the time the Registration Statement became effective and
as of the Representation Date, did not, and will not, contain any
untrue statement of a material fact or omit to state any material fact
required to be stated therein or necessary to make the statements
therein not misleading. The Prospectus, at the time the Registration
Statement became effective and as of the Representation Date, did not,
and will not, contain an untrue statement of a material fact or omit
to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made,
not misleading; provided, however, that the Company makes no
representations and warranties as to information contained in or
omitted from the Registration Statement or Prospectus made in reliance
upon and in conformity with information furnished to the Company in
writing by any Underwriter through you expressly for use in the
Registration Statement or Prospectus or to that part of the
Registration Statement which shall constitute the Statement of
Eligibility and Qualification under the 1939 Act (Form T-1) of the
Trustee under the Indenture.
(c) This Agreement has been duly authorized, executed and
delivered by the Company.
(d) The documents incorporated by reference in the Prospectus,
at the time they were or hereafter are filed with the Commission,
complied or when so filed will comply in all material respects with
the requirements of the 1934 Act and the rules and regulations
thereunder and, when read together with the other information in the
Prospectus, at the time the Registration Statement and any amendments
thereto became or become effective, did not and will not contain an
untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements
therein, in the light of the circumstances under which they are made,
not misleading. Any certificate signed by any officer of the Company
and delivered to you or counsel for the Underwriters in connection
with an offering of Securities shall be deemed a representation and
warranty by the Company to each Underwriter as to the matters covered
thereby on the date of such certificate.
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SECTION 2. Purchase and Sale. The several commitments of the Underwriters
to purchase Securitiess pursuant to the Terms Agreement shall be deemed to
have been made on the basis of the representations and warranties herein
contained and shall be subject to the terms and conditions herein set
forth.
Payment of the purchase price for, and delivery of, any Securities to
be purchased by the Underwriters shall be made at such place as shall be
set forth in the Terms Agreement (which, in the case of Securities in
bearer form, shall be at a place located outside of the United States), at
10:00 A.M., New York City time, on the fifth business day (unless postponed
in accordance with the provisions of Section 9) following the date of the
Terms Agreement or such other time as shall be agreed upon by you and the
Company (such time and date being referred to as the "Closing Time").
Payment shall be made to the Company by certified or official bank check or
checks in New York Clearing House or similar next day funds payable to the
order of the Company against delivery to you for the respective accounts of
the Underwriters of the Securities to be purchased by them (unless such
Securities are issuable only in the form of a single global Security
registered in the name of a depository or a nominee of a depository, in
which event the Underwriters' interest in such global certificate shall be
noted in a manner satisfactory to the Underwriters and their counsel).
Such Securities shall be in such denominations and registered in such names
as you may request in writing at least two business days prior to the
Closing Time. Such Securities, which may be in temporary form, will be made
available for examination and packaging by you on or before the first
business day prior to Dosing Time.
If authorized by the Terms Agreement, the Underwriters may solicit
offers to purchase Senior Debt Securities from the Company pursuant to
delayed delivery contracts ("Delayed Delivery Contracts") substantially in
the form of Exhibit B hereto with such changes therein as the Company may
approve. As compensation for arranging Delayed Delivery Contracts, the
Company will pay to you at Closing Time, for the accounts of the
Underwriters, a fee relating to the principal amount of Senior Debt
Securities for which Delayed Delivery Contracts are made at Closing Time as
is specified in the Terms Agreement. Any Delayed Delivery Contracts are to
be with institutional investors, including commercial and savings banks,
insurance companies, pension funds, investment companies and educational
and charitable institutions. At Closing Time the Company will enter into
Delayed Delivery Contracts (for not less than the minimum principal amount
of Senior Debt Securities per Delayed Delivery Contract specified in the
Terms Agreement) with all purchasers proposed by the Underwriters and
previously approved by the Company as provided below, but not for an
aggregate principal amount of Senior Debt Securities in excess of that
specified in the Terms Agreement. The Underwriters will not have any
responsibility for the validity or performance of Delayed Delivery
Contracts.
You are to submit to the Company, at least three business days prior
to Closing Time, the name of any institutional investors with which it is
proposed that the Company will enter into Delayed Delivery Contracts and
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the principal amount of Senior Debt Securities to be purchased by each of
them, and the Company will advise you, at least two business days prior to
Closing Time, of the names of the institutions with which the making of
Delayed Delivery Contracts is approved by the Company and the principal
amount of Senior Debt Securities to be covered by each such Delayed
Delivery Contract.
The principal amount of Senior Debt Securities agreed to be purchased
by the respective Underwriters pursuant to the Terms Agreement shall be
reduced by the principal amount of Senior Debt Securities covered by
Delayed Delivery Contracts, as to each Underwriter as set forth in a
written notice delivered by you to the Company; provided, however, that the
total principal amount of Senior Debt Securities to be purchased by all
Underwriters shall be the total amount of Senior Debt Securities covered by
the Terms Agreement, less the principal amount of Senior Debt Securities
covered by Delayed Delivery Contracts.
SECTION 3. Covenants of Company: The Company covenants with each
Underwriter as follows:
(a) Immediately following the execution of the Terms Agreement,
the Company will prepare a Prospectus Supplement setting forth the
principal amount of Senior Debt Securities and/or the number of
Warrants covered thereby and their terms not otherwise specified in
the Indenture or Warrant Agreement, as the case may be, the names of
the Underwriters participating in the offering and the principal
amount of Senior Debt Securities and/or number of Warrants which each
severally has agreed to purchase, the names of the Underwriters acting
as co-managers in connection with the offering, if any, the price at
which the Securities are to be purchased by the Underwriters from the
Company, the initial public offering price, the selling concession and
reallowance, if any, any delayed delivery arrangements, and such other
information as you and the Company deem appropriate in connection with
the offering of the Securities. The Company will promptly transmit
copies of the Prospectus Supplement to the Commission for filing
pursuant to Rule 424 of the Regulations and will furnish to the
Underwriters as many copies of the Prospectus and such Prospectus
Supplement as you shall reasonably request.
(b) If at any time when the Prospectus is required by the 1933 Act
to be delivered in connection with sales of the Securities any event
shall occur or condition exist as a result of which it is necessary,
in the view of your counsel or counsel for the Company, to further
amend or supplement the Prospectus in order that the Prospectus will
not include an untrue statement of a material fact or omit to state
any material fact necessary to make the statements therein not
misleading in the light of circumstances existing at the time it is
delivered to a purchaser or if it shall be necessary, in the view of
either such counsel, at any such time to amend or supplement the
Registration Statement or the Prospectus in order to comply with the
requirements of the 1933 Act or the Regulations, the Company will
promptly prepare and file with the Commission such amendment or
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supplement, whether by filing documents pursuant to the 1934 Act or
otherwise, as may be necessary to correct such untrue statement or
omission or to make the Registration Statement comply with such
requirements.
(c) With respect to each sale of Securities, the Company will make
generally available to its security holders as soon as practicable,
but not later than 90 days after the close of the period covered
thereby, earnings statements (in form complying with the provisions of
Rule 158 under the 1933 Act).
(d) The Company, during the period when the Prospectus is required
to be delivered under the 1933 Act, will give you notice of its
intention to file any amendment to the Registration Statement or any
amendment or supplement to the Prospectus, whether pursuant to the
1934 Act, the 1933 Act or otherwise, will furnish you with copies of
any such amendment or supplement or other documents proposed to be
filed a reasonable time in advance of filing to afford you a
reasonable opportunity to comment on such proposed amendment or
supplement, and will not file any such amendment or supplement or
other documents in a form to which you or your counsel shall
reasonably object.
(e) The Company, during the period when the Prospectus is required
to be delivered under the 1933 Act, will notify each of you
immediately, and confirm the notice in writing, (i) of the mailing or
the delivery to the Commission for filing of any supplement to the
Prospectus or any document to be filed pursuant to the 1934 Act, (ii)
of the receipt of any comments from the Commission with respect to the
Registration Statement, the Prospectus or any Prospectus Supplement,
(iii) of any request by the Commission for any amendment to the
Registration Statement or any amendment or supplement to the
Prospectus or for additional information, and (iv) of the issuance by
the Commission of any stop order suspending the effectiveness of the
Registration Statement or the initiation of any proeeding for that
purpose. The Company will make every reasonable effort to prevent the
issuance of any stop order and, if any stop order is issued, to obtain
the lifting thereof at the earliest possible moment.
(f) The Company will deliver to you one signed and as many
conformed copies of the Registration Statement (as originally filed)
and of each amendment thereto (including exhibits filed therewith or
incorporated by reference therein and documents incorporated by
reference in the Prospectus) as you may reasonably request and will
also deliver to you a conformed copy of the Registration Statement and
each amendment thereto for each of the Underwriters.
(a) The Company will endeavor, in cooperation with you, to
qualify the Securities for offering and sale under the applicable
securities laws of such states and other jurisdictions of the United
States as you may designate and will maintain such qualifications in
effect for as long as may be required for the distribution of the
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Securities; provided that in no event shall the Company be obligated
to qualify to do business in any jurisdiction where it is not now so
qualified or to take action which would subject it to general service
of process in any jurisdiction where it is not now so subject or to
conduct its business in a manner in which it is not currently so
conducting its business. The Company will file such statements and
reports as may be required by the laws of each jurisdiction in which
the Securities have been qualified as above provided.
(h) The Company, during the period when the Prospectus is
required to be delivered under the 1933 Act, will file promptly all
documents required to be filed with the Commission pursuant to Section
13 or 14 of the 1934 Act.
(i) Between the date of the Terms Agreement and the Closing
Time, the Company will not, without your prior consent, offer or sell,
or enter into any agreement to sell, any new issue of currency call
warrants, currency put warrants or debt securities of the Company with
a maturity of more than one year, including additional Senior Debt
Securities (except for any debt securities issued upon exercise of
warrants or in connection with acquisitions), or any warrants for the
purchase of debt securities of the Company with a maturity of more
than one year.
(j) During the period of five years after the date of any
Terms Agreement, the Company will furnish to the Underwriters (i) as
soon as publicly available, a copy of each Annual Report on Form 10-K,
Quarterly Report on Form 10-Q, Current Report on Form 8-K, annual
report to share owners and definitive proxy statement of the Company
filed with the Commission under the 1934 Act or mailed to share owners
and (ii) from time to time, such other information concerning the
Company as the Underwriters may reasonably request.
SECTION 4. Conditions of Underwriters' Obligations. The obligations
of the Underwriters to purchase Securities pursuant to the Terms Agreement
are subject to the accuracy of the representations and warranties on the
part of the Company herein contained, to the accuracy of the statements of
the Company's officers made in any certificate furnished pursuant to the
provisions hereof, to the performance by the Company of all of its
covenants and other obligations hereunder and to the following further
conditions:
(a) At the Closing Time (i) no stop order suspending the
effectiveness of the Registration Statement shall have been issued
under the 1933 Act, no order suspending trading or striking or
withdrawing any Securities to be listed on a national securities
exchange from listing and registration under the 1934 Act shall be in
effect, and no proceedings under the 1933 Act or 1934 Act therefor
shall have been initiated or threatened by the Commission, or, with
respect to the filing of any Form 8-A under the 1934 Act, by any
national securities exchange, (ii) the rating assigned by any
nationally recognized securities rating agency to any debt securities,
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preferred stock or other obligations of the Company as of the date of
the Terms Agreement shall not have been lowered since the execution of
the Terms Agreement, (iii) any Securities for which application has
been made to list on a national securities exchange shall have been
approved for listing, subject to official notice of issuance and (iv)
there shall not have come to your attention any facts that would cause
you to believe that the Prospectus, together with the applicable
Prospectus Supplement, at the time it was required to be delivered to
a purchaser of the Securities, contained an untrue statement of a
material fact or omitted to state a material fact necessary in order
to make the statements therein, in the light of the circumstances
existing at such time, not misleading.
(b) At the Closing Time you shall have received:
(1) The opinion, dated as of the Closing Time, of Lowry F.
Kline, Esq., General Counsel of the Company, in form and substance
satisfactory to you, to the effect that:
(i) Each of the Company and its significant subsidiaries,
as set forth in a schedule to such opinion (the "Significant
Subsidiaries"), has been duly incorporated and is validly
existing as a corporation in good standing under the laws of
the jurisdiction in which it is chartered or organized, with
corporate power and authority to own its properties and
conduct its business as described in the Registration
Statement, and, to the best of such counsel's knowledge, is
duly qualified to do business as a foreign corporation and is
in good standing under the laws of each jurisdiction in which
its ownership or lease of substantial properties or the
conduct of its business requires such qualification and in
which the failure so to qualify and be in good standing would
have a material adverse effect upon the Company and its
subsidiaries taken as a whole.
(ii) The Company's authorized equity capitalization is as
set forth in the Registration Statement, and the Securities
conform to the descriptions thereof contained in the
Prospectus.
(iii) To the best knowledge of such counsel, there is no
pending or threatened action, suit or proceeding before any
court or governmental agency, authority or body or any
arbitrator involving the Company or any of its subsidiaries of
a character required to be disclosed in the Registration
Statement which is not adequately disclosed in the
Registration Statement, and there is no franchise, contract or
other document of a character required to be described in the
Registration Statement, or to be filed as an exhibit, which is
not described or filed as required.
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(iv) The Registration Statement has become effective under
the 1933 Act; to the best knowledge of such counsel, no stop
order suspending the effectiveness of the Registration
Statement has been issued and no proceedings for that purpose
have been instituted or threatened; and the Registration
Statement, the Prospectus and each amendment thereof or
supplement thereto (other than the financial statements, other
financial and statistical information contained therein and
the Statement of Eligibility and Qualification under the 1939
Act of the Trustee, as to which such counsel need express no
opinion) comply as to form in all material respects with the
applicable requirements of the 1933 Act and the Regulations.
(v) This Agreement (including the Terms Agreement), any
Warrant Agreement, any Delayed Delivery Contracts and the
Indenture have bean duly authorized, executed and delivered by
the Company; and the Indenture has been duly qualified under
the 1939 Act, and the Securities (including the Warrant
Securities, if any) have been duly authorized for issuance and
sale by the Company.
(vi) The Indenture and any Warrant Agreement constitute
valid and binding agreements enforceable against the Company
in accordance with their respective terms, except to the
extent enforcement thereof may be limited by (i) bankruptcy,
insolvency, reorganization, moratorium or other similar laws
now or hereafter in effect relating to creditors' rights
generally and (ii) general equity principles (regardless of
whether enforcement is considered in a proceeding at law or in
equity) and except further as enforcement thereof shall be
limited by (A) requirements that a claim with respect to any
Securities denominated other than in U.S. dollars (or a
foreign currency or foreign currency unit judgment in respect
of such claim) be converted into United States dollars at a
rate of exchange prevailing on a date determined pursuant to
applicable law or (B) governmental authority to limit, delay
or prohibit the making of payments in foreign currency or
currency units or payments outside the United States; and the
Securities, when executed and authenticated in accordance with
the provisions of the Indenture or the Warrant Agreement, as
the case may be, and when issued and delivered to you and paid
for by you pursuant to the Terms Agreement, including the
provisions of this Agreement, or by purchasers proposed by the
Underwriters and previously approved by the Company pursuant
to any Delayed Delivery Contracts, will be valid and binding
obligations of the Company entitled to the benefits of the
Indenture, except to the extent enforcement of the Securities
may be limited by (i) bankruptcy, insolvency, reorganization,
moratorium or other similar laws now or hereafter in effect
relating to creditors' rights generally and (ii) general
equity principles (regardless of whether enforcement is
considered in a proceeding at law or in equity) and except
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further as enforcement thereof shall be limited by (A)
requirements that a claim with respect to any Securities
denominated other than in U.S. dollars (or a foreign currency
or foreign currency unit judgment in respect of such claim) be
converted into United States dollars at a rate of exchange
prevailing on a date determined pursuant to applicable law or
(B) governmental authority to limit, delay or prohibit the
making of payments in foreign currency or currency units or
payments outside the United States.
(vii) No consent, approval, authorization or order of
any court or governmental agency or body is required for the
consummation of the transactions contemplated herein, except
such as have been obtained under the 1933 Act, the 1934 Act,
and the 1939 Act and such as may be required under the blue
sky laws of any jurisdiction in connection with the purchase
and distribution of the Securities by the Underwriters and
such other approvals (specified in such opinion) as have been
obtained.
(viii) Neither the issuance and sale of the Securities,
nor the consummation of any other of the transactions herein
contemplated nor the fulfillment of the terms hereof will
conflict with, result in a breach of, or constitute a default
under the certificate of incorporation or by-laws of the
Company or the terms of any indenture or other agreement or
instrument known to such counsel and to which the Company or
any of its subsidiaries is a party or bound and which are
material to the business, operations or financial condition of
the Company and its subsidiaries taken as a whole, or any
order or regulation known to such counsel to be applicable to
the Company or any of its subsidiaries of any court,
regulatory body, administrative agency, governmental body or
arbitrator having jurisdiction over the Company or any of its
subsidiaries.
(ix) Each document, if any, filed pursuant to the 1934 Act
(other than the financial statements and other financial and
statistical information included therein, as to which no
opinion need be rendered) and incorporated by reference in the
Prospectus complied when so filed as to form in all material
respects with the 1934 Act and the rules and regulations
thereunder.
In rendering the above opinion, such counsel shall
additionally state that, based on his examination of the
Registration Statement, the Prospectus and each amendment thereof
or supplement thereto and his discussions with officers and
representatives of the Company in the course of participating in
the preparation of such documents, although he is not passing upon
and does not assume any responsibility for the accuracy,
completeness or fairness of the statements contained in the
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Registration Statement and the Prospectus (except to the extent
provided in subsections (b)(1)(ii) and (b)(1)(iii) of this
Section), on the basis of the foregoing, nothing has come to his
attention that would lead him to believe that the Registration
Statement, at the time it became effective, and if an amendment to
the Registration Statement or an Annual Report on Form 10-K has
been filed by the Company with the Commission subsequent to the
effectiveness of the Registration Statement, then at the time such
amendment became effective or at the time of the most recent such
filing, and at the date of any Terms Agreement, contained an
untrue statement of a material fact or omitted to state a material
fact necessary in order to make the statements therein not
misleading or that the Prospectus, as amended or supplemented,
contains an untrue statement of a material fact or omits to state
a material fact necessary in order to make the statements therein,
in the light of the circumstances under which they were made, not
misleading (except that no such statement need be made by such
counsel with respect to the financial statements and other
financial and statistical data included in the Registration
Statement, the Prospectus or in any amendment or supplement
thereto, or any statement contained in or omitted from the
documents referred to therein in reliance upon and in conformity
with written information furnished by the Underwriters through you
specifically for use in the Registration Statement or Prospectus).
In rendering the opinion required by subsection (b) (1) of this
Section, Lowry F. Kline may rely (A) as to matters involving the
application of laws of any jurisdiction other than the State of
Georgia or the United States and as to any other matter to which
you consent (which consent shall not be unreasonably withheld), to
the extent specified in such opinion, upon the opinion of other
counsel of good standing whom such counsel believes to be reliable
(including Skadden, Arps, Slate, Meagher & Flom, counsel for the
Underwriters) and who are satisfactory to counsel for the
Underwriters and (B) as to matters of fact on certificates of
officers and representatives of the Company and of public
officials, and will not be required to verify independently the
accuracy or completeness of information or documents furnished to
such counsel with respect to the Registration Statement or the
Prospectus.
(2) The opinion, dated as of the Closing Time of Skadden,
Arps, Slate, Meagher & Flom, counsel to the Underwriters, in form
and substance satisfactory to you, with respect to the issuance
and sale of the Securities, the Indenture, the Registration
Statement, the Prospectus and other related matters as you may
reasonably require.
(c) You shall have received from Ernst & Young, independent
auditors for the Company, a letter to the effect that:
(i) they are independent auditors with respect to the Company
within the meaning of the 1933 Act and the Regulations;
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(ii) in their opinion the audited financial statements and
schedules of the Company and its subsidiaries incorporated by
reference into the Registration Statement and examined by them
comply in form in all material respects with the applicable
accounting requirements of the 1933 Act and the Regulations and
the 1934 Act and the related punished rules and regulations;
(iii) on the basis of a reading of the latest unaudited
financial statements made available by the Company, if any,
carrying out certain specified procedures (but not an examination
in accordance with generally accepted auditing standards) which
would not necessarily reveal matters of significance with respect
to the comments set forth in such letter; a reading of the minutes
of the meetings of the share owners and directors of the Company;
and inquiries of certain officials of the Company who have
responsibility for financial and accounting matters as to
transactions and events subsequent to the date of the latest
unaudited consolidated financial statements included in the
Registration Statement and Prospectus, nothing came to their
attention that caused them to believe that:
(1) the unaudited financial statements, if any, included
in or incorporated into the Registration Statement and
Prospectus do not comply in form in all material respects with
the applicable accounting requirements of the 1933 Act and the
1934 Act and the related published rules and regulations; and
said unaudited financial statements, if any, are not in
conformity with generally accepted accounting principles in
the United States applied on a basis substantially consistent
with that of the audited financial statements incorporated in
the Registration Statement; or
(2) with respect to the period subsequent to the date of
the latest unaudited financial statements included in or
incorporated into the Registration Statement and Prospectus
there were any changes, at a specified date not more than five
business days prior to the date of such letter, in the common
stock and paid in capital, or total debt, of the Company and
its subsidiaries or any decrease in the consolidated net
assets of the Company and its subsidiaries as compared with
the amounts shown on the most recent consolidated balance
sheet of the Company and its subsidiaries included in or
incorporated into the Registration Statement and Prospectus,
except in all instances for changes or decreases set forth in
or contemplated by the Registration Statement or Prospectus or
except for such exceptions enumerated in such letter as shall
have been agreed to by you and the Company;
(iv) they have performed certain other specified procedures as
a result of which they determined that certain information
specified by you of an accounting, financial or statistical nature
(which is limited to accounting, financial or statistical
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<PAGE>
information derived from the general accounting records of the
Company set forth in the Registration Statement and the Prospectus
and in Exhibit 12 to the Registration Statement) agrees with the
audited financial statements, the accounting records or analysis
of the Company and its subsidiaries, excluding any questions of
legal interpretation; and
(v) on the basis of a reading of any unaudited pro forma
financial information included in or incorporated into the
Registration Statement or the Prospectus (the pro forma financial
information"); carrying out certain specified procedures;
inquiries of certain officials who have responsibility for
relevant financial and accounting matters; and proving the
arithmetic accuracy of the application of any pro forma
adjustments to the historical amounts in the pro forma financial
information, nothing came to their attention which caused them to
believe that the pro forma financial information, if any, does not
comply in form in all material respects with the applicable
accounting requirements of Rule 11-02 of Regulation S-K or that
the pro forma adjustments, if any, have not been properly applied
to the historical amounts in the compilation of such statements.
(d) You shall have received from Ernst & Young or other
independent auditors acceptable to you a letter, dated as of the
Closing Time, reconfirming or updating the letter required by
subsection (c) hereof.
(e) You shall have received a certificate of the Company, signed
by the chief executive officer or the chief operating officer and the
principal financial or accounting officer of the Company, dated the
Closing Time, to the effect that the signers of such certificate have
carefully examined the Registration Statement, the Prospectus and this
Agreement and that, to the best of their knowledge after reasonable
investigation:
(i) the representations and warranties of the Company in this
Agreement are true and correct in all material respects on and as
of the Closing Time with the same effect as if made on the Closing
Time and the Company has complied with all the agreements and
satisfied all the conditions on its part to be performed or
satisfied at or prior to the Closing Time;
(ii) no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceedings for that
purpose have been instituted or, to the Company's knowledge,
threatened;
(iii) since the date of the most recent financial statements
included in or incorporated into the Prospectus, there has been no
material adverse change in the condition (financial or other),
earnings, business or business prospects of the Company and its
subsidiaries taken as a whole, whether or not arising in the
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<PAGE>
ordinary course of business, except as sat forth in or
contemplated in the Prospectus;
(iv) the Company is not and, after giving effect to the sale
of the Securities pursuant to the Terms Agreement incorporating
this Agreement and assuming the use of the net proceeds therefrom
as described in the Registration Statement, the Company will not
be in default under any instrument evidencing or relating to
indebtedness of the Company, and no event which, with lapse of
time or giving of notice or both, would constitute an event of
default thereunder has occurred or is continuing, which is
material to the business, operations, or Financial condition of
the Company and its subsidiaries taken as a whole;
(v) the aggregate amount of Debt of the Company issued and
outstanding as of the Closing Time is not, and after giving effect
to the sale of the Securities pursuant to the Terms Agreement
incorporating this Agreement and assuming the use of the net
proceeds therefrom as described in the Prospectus will not be,
more than the aggregate amount at which the Company's consolidated
Debt, net of Cash, would exceed 72% of the Company's Total Capital
(or the amount of any such Debt of the Company in excess of such
limit has been expressly authorized, approved or ratified by the
Board of Directors of the Company). As used herein, "Debt" means
long term debt and current maturities thereof, loans and notes
payable; "Cash" means cash and cash equivalents and interest
bearing assets with maturities of one year or less; "Total
Capital" means the sum of Share-Owners' Equity, Long-Term Deferred
Income Taxes and Debt less Cash; and all such terms shall be as
they appear on the Company's published consolidated financial
statements and calculated under the generally accepted accounting
principles and practices applied by the Company in the preparation
of its consolidated financial statements;
(vi) the Indemnity Agreement has not been amended or modified
since January 29, 1988; each of the First Amendment to Indemnity
Agreement dated July 9,1987 between the Company and The Coca-Cola
Company and the Second Amendment to Indemnity Agreement dated
January 29, 1988 between the Company and The Coca-Cola Company
(together, the Amendments") remains in full force and effect, and
the Company has not engaged in any conduct which would impair or
diminish the validity or enforceability of the Indemnity Agreement
or the Amendments; and
(vii) the statistical and market-related data included in or
incorporated into the Prospectus are based on or derived from
reliable sources.
(f) At the Closing Time counsel for the Underwriters shall have
been furnished with such documents and opinions as they may reasonably
require for the purpose of enabling them to pass upon the issuance and
sale of the Securities as herein contemplated and related proceedings
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<PAGE>
or in order to evidence the accuracy and completeness of any of the
representations and warranties, or the fulfillment of any of the
conditions, herein contained; and all proceedings taken by the Company
in connection with the issuance and sale of the Securities as herein
contemplated shall be satisfactory in form and substance to you.
(g) Prior to the Closing Time, the Company shall have furnished to
the Underwriters such further information, certificates and documents
as the Underwriters may reasonably request.
If any condition specified in this Section shall not have been
fulfilled when and as required to be fulfilled, the Terms Agreement may be
terminated by you by notice to the Company at any time at or prior to the
Closing Time, and such termination shall be without liability of any party
to any other party except as provided in Section 5.
SECTION 5. Payment of Expenses. The Company will pay all expenses
incident to the performance of its obligations under this Agreement,
including (i) the printing and Filing of the Registration Statement and all
amendments thereto, and the printing of this Agreement and the Terms
Agreement, (ii) the preparation, issuance and delivery of the Securities to
the Underwriters and the preparation, issuance and delivery of any Warrant
Securities upon exercise of Debt Warrants, (iii) the fees and disbursements
of the Company's counsel and accountants, (iv) the qualification of the
Securities and any Warrant Securities under state securities laws in
accordance with the provisions of Section 3(g) including filing fees and
the reasonable fees and disbursements of counsel for the Underwriters or
the Company in connection therewith and in connection with the preparation
of any Blue Sky Surveys and Legal Investment Surveys, (v) the printing and
delivery to the Underwriters in quantities as hereinabove stated of copies
of the Registration Statement and any amemdments thereto, and of the
Prospectus and any amendments or supplements thereto, (vi) the printing and
delivery to the Underwriters of copies of the Indenture, the applicable
Warrant Agreement and any Blue Sky Surveys and Legal Investment Surveys,
(vii) the fees of rating agencies, (viii) the fees and expenses, if any,
incurred in connection with the listing of the Securities and any Warrant
Securities on the New York Stock Exchange or any other national exchange,
and (ix) the fees and expenses incurred with respect to any filing with the
National Association of Securities Dealers, Inc. If the purchase of
Securities by the Underwriters pursuant to the Terms Agreement is not
consummated otherwise than by reason of a termination solely pursuant to
Sections 8 (ii), 8 (iii) and 9, the Company shall reimburse the
Underwriters for all of their out-of-pocket expenses, including the
reasonable fees and disbursements of counsel for the Underwriters.
SECTION 6. Indemnification and Contribution.
(a) The Company agrees to indemnify and hold harmless each
Underwriter and each person who controls any Underwriter within the
meaning of the 1933 Act against any and all losses, claims, damages or
liabilities, joint or several, to which they or any of them may become
subject under the 1933 Act, the 1934 Act or other Federal or state
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<PAGE>
statutory law or regulation, at common law or otherwise, insofar as
such losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon any untrue statement or
alleged untrue statement of a material fact contained in the
Registration Statement as originally filed or in any amendment
thereof, or in any preliminary prospectus or the Prospectus, or in any
amendment thereof or supplement thereto, or arise out of or are based
upon the omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements
therein not misleading, and agrees to reimburse each such indemnified
party, as incurred, for any legal or other expenses reasonably
incurred by them in connection with investigating or defending any
such loss, claim, damage, liability or action; provided, however, that
(i) the Company will not be liable in any such case to the extent that
any such loss, claim, damage or liability arises out of or is based
upon any such untrue statement or alleged untrue statement or omission
or alleged omission made therein in reliance upon and in conformity
with written information furnished to the Company by or on behalf of
any Underwriter through you specifically for use in connection with
the preparation thereof, and (ii) such indemnity with respect to any
preliminary prospectus shall not inure to the benefit of any
Underwriter (or any person controlling such Underwriter) from whom the
person assessing any such loss, claim, damage or liability purchased
the Securities which are the subject thereof if such person did not
receive a copy of the Prospectus (or the Prospectus as amended or
supplemented) at or prior to the confirmation of the sale of such
Securities to such person in any case where such delivery is required
by the 1933 Act and the untrue statement or omission of a material
fact contained in such preliminary prospectus was corrected in the
Prospectus (or the Prospectus as amended or supplemented). This
indemnity agreement will be in addition to any liability which the
Company may otherwise have.
(b) Each Underwriter severally agrees to indemnify and hold
harmless the Company, each of its directors, each of its officers who
signs the Registration Statement, and each person who controls the
Company within the meaning of the 1933 Act, to the same extent as the
foregoing indemnity from the Company to each Underwriter, but only
with reference to written information relating to such Underwriter
furnished to the Company by or on behalf of such Underwriter through
you specifically for use in the preparation of the documents referred
to in the foregoing indemnity. This indemnity agreement will be in
addition to any liability which any Underwriter may otherwise have.
(c) Promptly after receipt by an indemnified party under this
Section 6 of notice of the commencement of any action, such
indemnified party will, if a claim in respect thereof is to be made
against the indemnifying party under this Section 6, notify the
indemnifying party in writing of the commencement thereof; but the
omission so to notify the indemnifying party will not relieve it from
any liability which it may have to any indemnified party otherwise
than under this Section 6. In case any such action is brought against
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any indemnified party, and it notifies the indemnifying party of the
commencement thereof the indemnifying party will be entitled to
participate therein, and to the extent that it may elect by written
notice delivered to the indemnifed party promptly after receiving the
aforesaid notice from indemnified party, to assume the defense
thereof, with counsel satisfactory to such indemnified party;
provided, however, that if the defendants in any such action include
both the indemnified party and the indemnifying party and the
indemnified party shall have reasonably concluded that there may be
legal defenses available to it and/or other indemnified parties which
are different from or additional to those available to the
indemnifying party, the indemnified party or parties shall have the
right to select separate counsel to assert such legal defenses and to
otherwise participate in the defense of such action on behalf of such
indemnified party or parties. Upon receipt of notice from the
indemnifying party to such indemnified party under this Section 6, the
indemnifying party will not be liable to the indemnified party for any
legal or other expenses subsequently incurred by such indemnified
party in connection with the defense thereof unless (i) the
indemnified party shall have employed separate counsel in connection
with the assertion of legal defenses in accordance with the proviso to
the next preceding sentence (it being understood, however, that the
indemnifying party shall not be liable for the expenses of more than
one separate counsel, approved by you in the case of paragraph (a) of
this Section 6, representing the indemnified parties under such
paragraph (a) who are parties to such action), (ii) the indemnifying
party shall not have employed counsel satisfactory to the indemnified
party to represent the indemnified party within a reasonable time
after notice of commencement of the action or (iii) the indemnifying
party has authorized the employment of counsel for the indemnified
party at the expense of the indemnifying party; and except that, if
clause (i) or (iii) is applicable, such liability shall be only in
respect of the counsel referred to in such clause (i) or (iii).
(d) In order to provide for just and equitable contribution in
circumstances in which the indemnification provided for in paragraph
(a) of this Section 6 is due in accordance with its terms but is for
any reason held by a court to be unavailable from the Company on
grounds of policy or otherwise, the Company and the Underwriters shall
contribute to the aggregate losses, claims, damages and liabilities
(including legal or other expenses reasonably incurred in connection
with investigating or defending same) to which the Company and one or
more of the Underwriters may be subject in such proportion so that the
Underwriters are responsible for that portion represented by the
percentage that the Underwriter discount appearing on the cover page
of the Prospectus bears to the public offering price appearing thereon
and the Company is responsible for the balance; provided that (y) in
no case shall any Underwriter (except as may be provided in the
agreement among underwriters relating to the offering of the
Securities, if any) be responsible for any amount in excess of the
underwriting discount applicable to the Securities purchased by such
Underwriter hereunder and (z) no person guilty of fraudulent
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misrepresentation (within the meaning of Section 11 (f) of the 1933
Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. For purposes of this
Section 6, each person who controls an Underwriter within the meaning
of the 1933 Act shall have the same rights to contribution as the
Company, subject in each case to clause (y) of this paragraph (d). Any
party entitled to contribution will notify the Company, promptly after
receipt of notice of commencement of any action, suit or proceeding
against such party in respect of which a claim for contribution may be
made against another party or parties from whom contribution may be
sought, but the omission to so notify such party or parties shall not
relieve the party or parties from whom contribution may be sought from
any other obligation it or they may have hereunder or otherwise than
under this paragraph (d).
SECTION 7. Representations, Warranties and Agreements to Survive
Delivery. All representations, including the agreement of the Company in
Section 6 hereof with respect to indemnity and contribution, contained in
this Agreement or contained in certificates of officers of the Company
submitted pursuant hereto, shall remain operative and in full force and
effect, regardless of any termination of this Agreement, or any
investigation made by or on behalf of any Underwriter or controlling
person, or by or on behalf of the Company, and shall survive delivery of
any Securities to the Underwriters.
SECTION 8. Termination. You may terminate this Agreement, immediately
upon notice to the Company, at or any time prior to the Closing Time (i) if
there has been, since the date of the Terms Agreement or since the
respective dates as of which information is given in the Registration
Statement, any material adverse change in the condition, financial or
otherwise, of the Company and its subsidiaries considered as one
enterprise, or in the earnings, business affairs or business prospects of
the Company and its subsidiaries considered as one enterprise, whether or
not arising in the ordinary course of business, or (ii) if there has
occurred any outbreak or escalation of hostilities or other calamity or
crisis the effect of which on the financial markets of the United States is
such as to make it, in your reasonable judgment, impracticable to market
the Securities or enforce contracts for the sale of the Securities, or
(iii) if trading in the Common Stock of the Company has been suspended by
the Commission or a national securities exchange, or if trading generally
on either the American Stock Exchange or the New York Stock Exchange has
been suspended, or minimum or maximum prices for trading have been fixed,
or maximum ranges for prices for securities have been required, by either
of said exchanges or by order of the Commission or any other governmental
authority, if a banking moratorium in the United States generally or in the
City or State of New York has been declared by either Federal or New York
authorities or if a banking moratorium has been declared by the relevant
authorities in the country or countries of origin of any foreign currency
or currencies underlying the Securities. In the event of any such
termination, (x) the covenants set forth in Section 3 with respect to any
offering of Securities shall remain in effect so long as any Underwriter
owns any such Securities purchased from the Company pursuant to the Term
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Agreement and (y) the covenant set forth in Section 3(c), the provisions of
Section 5, the indemnity and contribution agreement set forth in Section 6,
and the provisions of Sections 8 and 13 shall remain in effect.
SECTION 9. Default. If one or more of the Underwriters shall fail
at the Closing Time to purchase the Securities which it or they are
obligated to purchase hereunder and under the Terms Agreement (the
"Defaulted Securities"), then you shall have the right, within 36 hours
thereafter, to make arrangement for one or more of the non-defaulting
Underwriters, or any other underwriters, to purchase all, but not less than
all, of the Defaulted Securities in such amounts as may be agreed upon and
upon the terms herein set forth. If, however, during such 36 hours you
shall not have completed such arrangements for the purchase of all the
Defaulted Securities, then:
(a) if the aggregate amount of Defaulted Securities does not
exceed 10% of the aggregate amount of the Securities to be purchased
pursuant to the Terms Agreement, the non-defaulting Underwriters shall
be obligated to purchase the full amount thereof in the proportions
that their respective underwriting obligations hereunder bear to the
underwriting obligations of all such non-defaulting Underwriters, or
(b) if the aggregate amount of Defaulted Securities exceeds 10% of
the aggregate amount of the Securities to be purchased pursuant to the
Terms Agreement, this Agreement shall terminate, without any liability
on the part of any non-defaulting Underwriter or the Company. As used
in this Section only, the "aggregate amount" of Securities shall mean
the aggregate principal amount of any Senior Debt Securities plus the
public offering price of any Warrants. No action taken pursuant to
this Section shall relieve any defaulting Underwriter from liability
in respect of any default of such Underwriter under this Agreement.
In the event of a default by any Underwriter or Underwriters as set
forth in this Section, either you or the Company shall have the right to
postpone the Closing Time for a period not exceeding seven days in order
that any required changes in the Registration Statement or Prospectus or in
any other documents or arrangements may be effected.
SECTION 10. Covenants of the Underwriters. Each Underwriter severally
agrees with the Company that:
(a) It will not offer, sell, resell or deliver, directly or
indirectly, in connection with the original issuance of the
Securities, in the United States (as hereinafter defined) or to any
United States person (as hereinafter defined), other than a financial
institution (as hereinafter defined), any Securities in bearer form
(whether temporary or definitive). As used herein, "financial
institution" means a branch located outside the United States of a
qualified financial institution as defined in Section l.165-
12(c)(1)(v) of the Income Tax Regulations that agrees to comply with
the requirements of Section 165(j)(3)(A), (B) or (C) of the Internal
Revenue Code of 1986 and the regulations thereunder.
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(b) It will deliver to each purchaser from it of Securities in
bearer form (whether temporary or definitive) acquired by such
purchaser during the original issuance of the Securities a written
confirmation stating substantially the following:
"You represent under penalties of perjury that you are not a
United States person or, if you are a United States person, that
you are a financial institution as defined in Section 1.165-12(c)
(1) (v) of the Income Tax Regulations that is purchasing for its
own account or for the account of another financial institution or
exempt organization that will comply with the requirements of
Section 165(j)(3)(A), (B) or (C) of the Internal Revenue Code of
1986 and the regulations thereunder. Furthermore, if you are a
dealer, you agree that you will deliver a confirmation containing
this entire paragraph to purchasers of such Securities from you.
As used herein, "United States person" means a citizen or resident
of the United States of America, its territories, its possessions
or any area subject to its jurisdiction ("United States"), or a
corporation, partnership or other entity created or organized in
or under the laws of the United States or any political
subdivisions thereof, or an estate or trust the income of which is
subject to United States Federal income taxation regardless of its
source. If such non-United States person is not a financial
institution, documentary evidence as described in subdivision
(iii) of A-5 of Section 35a.9999-4T of the Income Tax
Regulations must be provided."
SECTION 11. Notices. All notices and other communications hereunder
shall be in writing and shall be deemed to have been duly given if mailed
or transmitted by any standard form of telecommunication. Notices to the
Underwriters shall be directed to you at the address indicated in the Terms
Agreement; notices to the Company shall be directed to it at Coca-Cola
Plaza, N.W., Atlanta, Georgia 30313, attention of the General Counsel with
a copy to the Treasurer.
SECTION 12. Parties. This Agreement shall inure to the benefit of and
be binding upon you and the Company, and their respective successors.
Nothing expressed or mentioned in this Agreement is intended or shall be
construed as given to any person, firm or corporation, other than the
parties hereto and their respective successors and the controlling persons
and officers and directors referred to in Section 6 and their heirs and
legal representatives, any legal or equitable right, remedy or claim under
or in respect of this Agreement or any provision herein contained. This
Agreement and all conditions and provisions hereof are intended to be for
the sole and exclusive benefit of the parties and their respective
successors and said controlling persons and officers and directors and
their heirs and legal representatives, and for the benefit of no other
person, firm or corporation. No purchaser of Securities from any
Underwriter shall be deemed to be a successor by reason merely of such
purchase.
-20-
<PAGE>
SECTION 13. Governing Law. This Agreement and each Terms Agreement
shall be governed by and construed in dance with the laws of the State of
New York applicable to agreements made and to be performs in such State.
Dated as of the date
first written above:
COCA COLA ENTERPRISES INC.
VICKI G. ROMAN
By:----------------------------
-21-
<PAGE>
EXHIBIT A
COCA-COLA ENTERPRISES INC.
(a Delaware corporation)
Senior Debt Securities, Debt Warrants
and Currency Warrants
TERMS AGREEMENT
Date: ----------, 19--
TO: COCA-COLA ENTERPRISES INC.
Coca-Cola Plaza, N.W.
Atlanta, Georgia 30313
RE: Underwriting Agreement dated as of March --, 1992.
SENIOR DEBT SECURITIES
Title of Senior Debt Securities:
Principal amount to be issued: $
Current ratings:
Interest Rate: %.
Interest payment dates:
Date of maturity:
[Currency of Denomination:
Currency of Payment:
Form and Denomination:
Overseas Paying Agent: ]
Redemption provisions:
Sinking fund requirements:
Delayed Delivery Contracts: [Authorized] [Not authorized].
Delivery Dated:
Minimum Contract:
Maximum aggregate principal amount:
A-1
<PAGE>
Fee: %.
Public offering price: -----%, plus accrued interest, or amortized original
issue discount, if any, from -----------, 19--.
Purchase price: ------%, plus accrued interest, or amortized original issue
discount, if any, from ---------, 19-- (payable in next day funds).
DEBT WARRANTS
Number of Debt Warrants to be issued:
Warrant Agreement:
Form of Debt Warrants: [Registered] [Bearer]
Issuable jointly with Senior Debt Securities: [Yes] [No]
[Number of Debt Warrants issued with each $-------- principal amount
of Senior Debt Securities ---------:]
[Detachable Date: ----------------]
Date from which Debt Warrants are exercisable:
Date on which Debt Warrants expire:
Exercise price(s) of Debt Warrants:
Public offering price: $----------------
Purchase Price: $---------------------
Title of Warrant Securities:
Principal amount purchasable upon exercise of one Warrant:
Interest Rate: --------%
Interest payment dates:
Date of Maturity:
Redemption provisions:
Sinking fund requirements:
A-2
<PAGE>
CURRENCY CALL WARRANTS
OR
CURRENCY PUT WARRANTS
Title of Currency Warrants:
Number of Currency Warrants to be issued:
Warrant Agreement:
Issuable jointly with Senior Debt Securities: [Yes] [No]
[Number of Currency Warrants issued with each $------- principal
amount of Senior Debt Securities: ---------]
[Detachable Date:-----------------]
Date from which Currency Warrants are exercisable:
Date on which Currency Warrants expire:
Circumstances causing automatic exercise:
Strike price(s) of Currency Warrants:
Public offering price: $------------------
Purchase price: $-------------------
Cash Settlement Value formula:
--------------------------
Closing date and location with respect to registered Securities:
Closing date and location with respect to bearer Securities:
Notice to the Underwriter pursuant to Section 11 of the Underwriting
Agreement shall be given to:
Manager or co-managers, if any:
Place of delivery of Securities:
[Additional Termination Event: To the list of termination events included
in Section 8 of the Underwriting Agreement is added the following:
(iv) a general moratorium in foreign exchange trading, or a
moratorium in ------------- or U.S. dollar trading, by major
international banks or persons has been declared, or exchange controls
have been imposed or proposed, affecting the --------- or the U.S.
dollar by any competent governmental authority in the United States.]
A-3
<PAGE>
[Additional Agreement of the Underwriters: To the agreements of the
Underwriters included in Section 10 of the Underwriting Agreement is added
the following:
The Underwriters agree that they will not offer, sell, resell or
deliver, directly or indirectly, any Securities in or to residents of,
or to others for the reoffering, resale or delivery of any Securities
directly or indirectly in or to any resident of, ------------.]
Each Underwriter severally agrees, subject to the terms and provisions of
the above referenced Underwriting Agreement, which is incorporated herein
in its entirety and made a part hereof, to purchase [the principal amount
of Senior Debt Securities] [and] [the number of Warrants] set forth
opposite its name.
[Principal [Number of [Number of
Amount of [Number of Currency Currency
Senior Debt Debt Call Put
Name Securities Warrants Warrants Warrants
---- ------------- ------------- ------------- ------------
$____________ $____________ $____________ $___________
$___________] $___________] $___________] $__________]
By
[-----------------------------]
By
[-----------------------------]
[Acting on behalf of
themselves and the other named
Underwriters.]
Accepted:
COCA-COLA ENTERPRISES INC.
By------------------------------
Title:--------------------------
A-4
<PAGE>
EXHIBIT B
COCA-COLA ENTERPRISES INC.
(a Delaware corporation)
Senior Debt Securities
DELAYED DELIVERY CONTRACT
, 19
COCA-COLA ENTERPRISES INC.
Coca-Cola Plaza, N.W.
Atlanta, Georgia 30313
Attention:
Ladies and Gentlemen:
The undersigned hereby agrees to purchase from Coca-Cola Enterprises
Inc. (the "Company"), and the Company agrees to sell to the undersigned on
---------------, 19-- (the "Delivery Date"),------------------------------
principal amount of the Company's [insert title of security] (the
"Securities"), offered by the Company's Prospectus dated -------, 19--, as
supplemented by its Prospectus Supplement dated -------, 19--, receipt of
which is hereby acknowledged, at a purchase price of [----% of the
principal amount of Senior Debt Securities, plus accrued interest from ----
-------, 19--, to the Delivery Date] and on the further terms and
conditions set forth in this contract.
Payment for the Securities which the undersigned has agreed to
purchase on the Delivery Date shall be made to the Company or its order by
certified or official bank check in New York Clearing House funds, at the
office of ---------------------, on the Delivery Date, upon delivery to the
undersigned of the Securities to be purchased by the undersigned in
definitive form and in such denominations (consistent with the related
terms of the Prospectus Supplement) and registered in such names as the
undersigned may designate by written or telegraphic communication addressed
to the Company not less than five full business days prior to the Delivery
Date.
The obligation of the undersigned to take delivery of and make payment
for the Securities on the Delivery Date shall be subject to the conditions
that (1) the purchase of the Securities to be made by the undersigned shall
not on the Delivery Date be prohibited under the laws of the jurisdiction
to which the undersigned is subject and (2) the Company, on or before ----,
19--, shall have sold to the Underwriters of the Securities (the
"Underwriters") such principal amount of the Securities as is to be sold to
them pursuant to the Terms Agreement dated ----------, 19--, between the
Company and the Underwriters. The obligation of the undersigned to take
delivery of and make payment for the Securities shall not be affected by
the failure of any purchaser to take delivery of and make payment for the
Securities pursuant to other contracts similar to this contract. The
undersigned represents and warrants to you that its investment in the
Securities is not, as of the date hereof, prohibited under the laws of any
jurisdiction to which the undersigned is subject and which govern such
investment.
B-1
<PAGE>
Promptly after completion of the sale to the Underwriters, the Company
will mail or deliver to the undersigned at its address set forth below
notice of completion of such sale, accompanied by a copy of the opinion of
counsel for the Company delivered to the Underwriters in connection
therewith.
By the execution hereof, the undersigned represents and warrants to
the Company that all necessary corporate action for the due execution and
delivery of this contract and the payment for and purchase of the
Securities has been taken by it and no further authorization or approval of
any governmental or other regulatory authority is required for such
execution, delivery, payment or purchase, and that, upon acceptance hereof
by the Company and mailing or delivery of a copy as provided below, this
contract will constitute a valid and binding agreement of the undersigned
in accordance with its terms.
This contract will inure to the benefit of and be binding upon the
parties hereto and their respective successors, but will not be assignable
by either party hereto without the written consent of the other.
It is understood that the Company will not accept Delayed Delivery
Contracts for an aggregate amount of Securities in excess of $-----------
and that the acceptance of any Delayed Delivery Contracts is in the
Company's sole discretion and, without limiting the foregoing, need not be
on a first-come, first-served basis. If this contract is acceptable to the
Company, it is requested that the Company sign the form of acceptance on a
copy hereof and mail or deliver a signed copy hereof to the undersigned at
its address set forth below. This will become a binding contract between
the Company and the undersigned when such copy is so mailed or delivered.
This Agreement shall be governed by and construed in accordance with
the laws of the State of New York applicable to agreements made and to be
performed in such State.
Yours very truly,
------------------------------
(Name of Purchaser)
By----------------------------
(Title)
------------------------------
------------------------------
(Address)
Accepted as of the date
first above written:
COCA-COLA ENTERPRISES INC.
By ---------------------------
Title:-------------------
B-2
<PAGE>
EXHIBIT 4.01
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK
CORPORATION ("DTC"), TO THE COMPANY OR ITS AGENT FOR REGISTRATION
OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED IS
REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT
IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY
AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR
OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS
AN INTEREST HEREIN.
COCA-COLA ENTERPRISES INC.
ZERO COUPON NOTE DUE JUNE 20, 2020
R-1 $1,932,480,000
REGISTERED (Principal Amount)
GLOBAL SECURITY CUSIP: 191219AV6
COCA-COLA ENTERPRISES INC., a corporation duly
organized and existing under the laws of the State of Delaware
(the "Company"), which term includes any successor corporation
under the Indenture referred to herein), for value received,
hereby promises to pay to CEDE & CO., or registered assigns, upon
presentation, the principal sum of ONE BILLION NINE HUNDRED AND
THIRTY-TWO MILLION FOUR HUNDRED AND EIGHTY THOUSAND DOLLARS
($1,932,480,000) on June 20, 2020, in currency of the United
States of America as at the time of payment shall be legal tender
for the payment of public and private debts. The principal of
this Note was issued with an original issue discount of
approximately $870.63 for each $1,000 principal amount and shall
not bear interest.
This Note shall be nonredeemable at the option of the
Company prior to maturity.
Payment of the principal of this Note will be made by
wire transfer in immediately available funds to an account
maintained by DTC for such purpose.
The Holder of this Note will have the right to require
the Company to repurchase all or a portion (which portion must be
$1,000 or any integral multiple thereof) of this Note (the "Put
Option") on June 20, 2000 (the "Put Option Exercise Date") at a
purchase price equal to 19.474% of the principal amount at
maturity and will be paid by the Company in immediately available
funds, subject to conditions contained herein. The Holder must
provide the Company with notice of its intention to exercise the
Put Option during the period from and including April 20, 2000
through and including May 20, 2000. Any notice of exercise given
<PAGE>
by the Holder exercising the Put Option shall state, among other
things, (i) if applicable, the certificate number of the Note to
be delivered by such Holder for purchase by the Company; (ii) the
portion of the principal amount of the Note to be purchased,
which portion must be $1,000 or an integral multiple thereof; and
(iii) that the Note (or a portion thereof) is to be purchased by
the Company pursuant to the terms of this Note. Any such notice
may be withdrawn by the Holder by a written notice of withdrawal
delivered to the Company at or prior to 5:00 p.m. (New York City
time) on May 20, 2000 and thereafter such notice will become
irrevocable. The notice of withdrawal shall state the principal
amount and, if applicable, certificate number of the Note as to
which the withdrawal notice relates and the principal amount, if
any, which remains subject to the previously delivered notice of
exercise, each of which must be $1,000 or any integral multiple
thereof. Payment of the repurchase price for this Note (or
portion thereof) for which a notice of exercise has been
delivered and not validly withdrawn is conditioned upon delivery
of such Note (together with necessary endorsements) to the Paying
Agent on the Put Option Exercise Date or book entry transfer of
such Note on the Put Option Exercise Date. Once so delivered or
transferred, payment of the repurchase price in respect of such
Note (or portion thereof) will be made by wire transfer of
immediately available funds on the Put Option Exercise Date in an
amount equal to the repurchase price in respect of the Note (or
portion thereof) that is subject to the relevant notice of
exercise. If the Paying Agent holds immediately available funds
sufficient to pay the repurchase price in respect of the Note on
a day following a Put Option Exercise Date, then immediately
thereafter, such Note (or portion thereof) will cease to be
Outstanding, whether or not such Note is delivered to the Paying
Agent, and all rights of the Holder in respect of the Note (or
portion thereof), including the Holder's right to require the
Company to repurchase such Note (or portion thereof), shall
terminate and lapse (other than the right to receive the
repurchase price in immediately available funds by wire transfer
upon delivery of such Note). The Company covenants that no later
than 11:00 a.m. (New York City time) on the Put Option Exercise
Date, the Company shall deposit with the Paying Agent immediately
available funds in an amount sufficient to pay the aggregate
repurchase price of all the Notes (or portions thereof) that are
to be repurchased on Put Option Exercise Date pursuant to
exercise by the Holder of the Put Option. Any Note that is to be
purchased only in part shall be surrendered to the Paying Agent
at the office of the Paying Agent (with any necessary
endorsements) and the Company shall execute and the Trustee shall
authenticate and deliver to the Holder of such Note, without
service charge and at the expense of the Company, a replacement
Note or Notes, of any authorized denomination as requested by
such Holder in an aggregate principal amount equal to, and in
exchange for, the portion of the principal amount of the Note so
surrendered that is not purchased.
<PAGE>
This Note is one of a duly authorized issue of
securities (hereinafter called the "Securities") of the Company
issued and to be issued under an Indenture dated as of July 30,
1991, as amended and supplemented by the First Supplemental
Indenture dated as of January 29, 1992 (collectively, the
"Indenture"), between the Company and Chemical Bank (successor by
merger to Manufacturers Hanover Trust Company), as Trustee
(herein called the "Trustee", which term includes any successor
trustee under the Indenture), to which the Indenture and all
indentures supplemental thereto and the Officers' Certificate
setting forth the terms of this series of Securities reference is
hereby made for a statement of the respective rights, limitation
of rights, duties and immunities thereunder of the Company, the
Trustee and the Holders and the terms upon which the Notes are,
and are to be, authenticated and delivered. This Note is one of
the series of Securities designated as "Zero Coupon Notes Due
June 20, 2020", limited in aggregate principal amount at maturity
to $1,932,480,000 (the "Notes"). The Indenture does not limit
the aggregate principal amount of Securities that may be issued
thereunder.
If an Event of Default, as defined in the Indenture,
with respect to the Notes shall occur and be continuing, the
principal amount hereof may be declared, and upon such
declaration shall be, due and payable, in the manner, with the
effect and subject to the conditions provided in the Indenture.
The Indenture permits, with certain exceptions as
therein provided, the amendment thereof and the modification of
the rights and obligations of the Company and the rights of the
Holders of the Securities of each series under the Indenture to
be effected at any time by the Company and the Trustee with the
consent of the Holders of 66-2/3% in aggregate principal amount
of the Outstanding Securities of each series under the Indenture
affected thereby. The Indenture also contains provisions
permitting the Holders of a majority in aggregate principal
amount of the Outstanding Securities of each series under the
Indenture, on behalf of the Holders of all Securities of such
series, to waive compliance by the Company with certain
provisions of the Indenture or such Securities and certain past
defaults under the Indenture and their consequences. Any such
consent or waiver by the Holder of this Note shall be conclusive
and binding upon such Holder and upon all future Holders of this
Note and of any Note issued upon the registration of transfer
hereof or in exchange hereof or in lieu hereof whether or not
notation of such consent or waiver is made upon this Note.
No reference herein to the Indenture and no provision
of this Note or of the Indenture shall alter or impair the
obligation of the Company, which is absolute and unconditional,
to pay the principal of and interest on this Note at the times,
places, and rate, and in the coin or currency, herein prescribed.
<PAGE>
As provided in the Indenture, and subject to certain
limitations therein set forth, the transfer of this Note may be
registered on the Security Register of the Company upon surrender
of this Note for registration of transfer at the office or agency
of the Company in the Borough of Manhattan, The City of New York,
duly endorsed by, or accompanied by a written instrument of
transfer in form satisfactory to the Company and the Security
Registrar duly executed by, the Holder hereof or by his attorney
duly authorized in writing, and thereupon one or more new Notes
of this series having the same terms as this Note, of authorized
denominations, having the same terms and conditions and for the
same aggregate principal amount, will be issued to the designated
transferee or transferees.
The Notes are issuable only in registered form without
coupons in denominations of $1,000 and whole multiples of $1,000.
As provided in the Indenture, and subject to certain limitations
therein set forth, this Note is exchangeable for a like aggregate
principal amount of Notes of this series having the same terms as
this Note of a different authorized denomination, as requested by
the Holder surrendering the same.
No service charge will be made for any such
registration of transfer or exchange, but the Company may require
payment of a sum sufficient to cover any tax or other
governmental charge payable in connection therewith.
Prior to due presentment of this Note for registration
of transfer, the Company, the Trustee and any agent of the
Company or the Trustee may treat the Person in whose name this
Note is registered as the owner hereof for all purposes, whether
or not this Note be overdue, and neither the Company, the Trustee
nor any such agent shall be affected by notice to the contrary.
THE INDENTURE AND THE NOTES, INCLUDING THIS NOTE, SHALL
BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF NEW YORK APPLICABLE TO AGREEMENTS MADE AND TO BE
PERFORMED IN SUCH STATE.
All terms used in this Note which are defined in the
Indenture shall have the meanings assigned to them in the
Indenture and all references in the Indenture to "Security" or
"Securities" shall be deemed to include the Notes.
Unless the certificate of authentication hereon has
been executed by Chemical Bank, the Trustee under the Indenture,
or its successor thereunder, by the manual signature of one of
its authorized officers, this Note shall not be entitled to any
benefit under the Indenture or be valid or obligatory for any
purpose.
<PAGE>
IN WITNESS WHEREOF, the Company has caused this
instrument to be duly executed, manually or in facsimile, and a
facsimile of its corporate seal to be imprinted hereon.
COCA-COLA ENTERPRISES INC.,
VICKI G. ROMAN
By:--------------------------
Name: Vicki G. Roman
Title: Vice President
and Treasurer
Attest:
E. LISTON BISHOP III
By:----------------------------
Name: E. Liston Bishop III
Title: Assistant Secretary
[SEAL]
Date: June 20, 1995
TRUSTEE'S CERTIFICATE OF AUTHENTICATION:
This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
CHEMICAL BANK (successor by merger to
Manufacturers Hanover Trust Company),
as Trustee,
GLENN G. MCKEEVER
By: -------------------------
Name: Glenn G. McKeever
Title: Assistant Secretary
<PAGE>
ASSIGNMENT FORM
To assign this Note, fill in the form below:
I or we assign and transfer this Note to
--------------------------------------------------------
(Print or type assignee's name, address and zip code)
-------------------------------------------------------
-------------------------------------------------------
(Insert assignee's soc. sec. or tax I.D. no.)
and irrevocably appoint ------------------------------------
agent to transfer this Note on the books of the Company. The
agent may substitute another to act for him.
Dated:-------------------- ------------------------------
------------------------------
NOTICE: The signature to this assignment must correspond with the
name as it appears on the first page of the within Note in every
particular, without alteration or enlargement or any change
whatever and must be guaranteed by a commercial bank or trust
company having its principal office or a correspondent in the
City of New York or by a member broker of the New York, Midwest
or Pacific Stock Exchange.
<PAGE>
