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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: September 25, 1996
(Date of earliest event reported)
COCA-COLA ENTERPRISES INC.
(Exact name of Registrant as specified in its charter)
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<S> <C> <C>
DELAWARE 1-9300 58-0503352
(State of (Commission File No.) (IRS Employer
incorporation) Identification No.)
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2500 WINDY RIDGE PARKWAY, ATLANTA, GEORGIA 30339
(Address of principal executive offices, including zip code)
(770) 989-3000
(Registrant's telephone number, including area code)
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ITEM 7. FINANCIAL STATEMENTS AND EXHIBITS.
(c) Exhibits
1.01 Underwriting Agreement, dated as of September 25, 1996.
1.02 Terms Agreement, dated September 25, 1996, among the
Registrant, Lehman Brothers Inc. and Morgan Stanley &
Co. Incorporated relating to the offer and sale of
Debentures due October 1, 2026 (the "Debentures").
4.01 Form of the Debentures.
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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)
By:/s/ Lowry F. Kline
-----------------------
Name: Lowry F. Kline
Title: General Counsel
Date: September 30, 1996
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Exhibits
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Document Page. No.
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1.01 Underwriting Agreement, dated as of September 25,
1996.
1.02 Terms Agreement, dated September 25, 1996, among
the Registrant, Lehman Brothers Inc. and Morgan
Stanley & Co. Incorporated relating to the offer
and sale of Debentures due October 1, 2026 (the
"Debentures").
4.01 Form of the Debentures.
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EXHIBIT 1.01
COCA-COLA ENTERPRISES INC.
(A DELAWARE CORPORATION)
SENIOR DEBT SECURITIES,
DEBT WARRANTS
AND
CURRENCY WARRANTS
UNDERWRITING AGREEMENT
September 25, 1996
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"), the Company proposes to sell from
time to time, pursuant to its registration statements on Form S-3 (No.
33-62757, No. 33-46675 and No. ), up to $1,595,575,000 aggregate
principal amount, as such amount may be modified from time to time, 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 The Chase
Manhattan Bank, formerly known as Chemical Bank, as successor to 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
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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 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
shall 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 September
25, 1996 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.
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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 (No. 33-62757, No. 33-46675 and No.),
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 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
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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.
SECTION 2. Purchase and Sale. The several commitments of the
Underwriters to purchase Securities 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 third 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
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wire transfer in immediately available funds 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 Closing 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 two 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 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 Contact.
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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 the 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
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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 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
proceedings 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.
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(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.
(g) 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 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
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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.
(k) The Company confirms as of the date hereof that neither it nor
any of its affiliates is presently doing business with the government of
Cuba or with any person or affiliate located in Cuba and that it is in
compliance with all provisions of Section 1 of Laws of Florida, Chapter
92-198, An Act Relating to Disclosure of Doing Business with Cuba, and the
Company further agrees that if it commences engaging in business with the
government of Cuba or with any person or affiliate located in Cuba after
the date hereof, or if the information reported in the Prospectus, if any,
concerning the Company's business with Cuba or with any person or
affiliate located in Cuba changes in any material way, the Company will
provide the Florida Department of Banking and Finance (the "Department"),
notice of such business or changes, as appropriate, in a form acceptable
to the Department.
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, 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
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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 the 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
been 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
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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 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
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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 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,
such counsel 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
Cravath, Swaine & Moore, 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
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<PAGE> 14
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 Cravath, Swaine &
Moore, 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 form Ernst & Young LLP, 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;
(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 published 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 audited
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
14
<PAGE> 15
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 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
15
<PAGE> 16
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-X
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, chief operating officer or the treasurer and
the principal financial or accounting officer or a vice president 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
ordinary course of business, except as set 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
16
<PAGE> 17
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; and
(vi) 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 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
17
<PAGE> 18
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 amendments
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
18
<PAGE> 19
all of their out-of-pocket expenses, including the reasonable fees and
disbursements of counsel for the Underwriters.
SECTION 6. Indemnification Contribution.
(a) The Company agrees to indemnify and hold harmless each Underwriter and
each person who controls any Underwriter within the meanings 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 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
19
<PAGE> 20
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 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 indemnified
party promptly after receiving the aforesaid notice from such 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
20
<PAGE> 21
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 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, warranties and agreements, 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
21
<PAGE> 22
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 county 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 Terms 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 arrangements
for
22
<PAGE> 23
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 1.165-12(c)(1)(v) of the Income Tax Regulations that
23
<PAGE> 24
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.
(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 2500 Windy Ridge
Parkway, Atlanta, Georgia 30339 (or, if by mail, Post Office Box 723040,
Atlanta, Georgia 31139- 0040), 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
24
<PAGE> 25
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.
25
<PAGE> 26
SECTION 13. Governing Law. This Agreement and each Terms 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.
Dated as of the date
first written above:
COCA-COLA ENTERPRISES INC.
By /s/ John R. Alm
---------------------------
Name: John R. Alm
Title: Senior Vice President
and Chief Financial
Officer
26
<PAGE> 27
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.
2500 Windy Ridge Parkway
Atlanta, Georgia 30339
RE: Underwriting Agreement dated September 25, 1996.
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:
<PAGE> 28
Minimum Contract:
Maximum aggregate principal amount:
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).
A-2
<PAGE> 29
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-3
<PAGE> 30
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:
A-4
<PAGE> 31
[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.]
[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.
A-5
<PAGE> 32
<TABLE>
<CAPTION>
[Principal Amount [Number of [Number of
of Senior Debt [Number of Debt Currency Call Currency Put
Name Securities Warrants Warrants Warrants
---- ---------- --------- --------- ---------
<S> <C> <C> <C> <C>
$________ $________ $________ $_______
$________] $________] $________] $_______]
By
[____________________________]
By
[____________________________]
[Acting on behalf of themselves and the other named Underwriters.]
Accepted:
COCA-COLA ENTERPRISES INC.
By______________________________
Title:
--------------------------
</TABLE>
A-6
<PAGE> 33
EXHIBIT B
COCA-COLA ENTERPRISES INC.
(a Delaware corporation)
Senior Debt Securities
DELAYED DELIVERY CONTRACT
, 19
COCA-COLA ENTERPRISES INC.
2500 Windy Ridge Parkway
Atlanta, Georgia 30339
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
B-1
<PAGE> 34
written or telegraphic communication addressed to the Company not less than
three 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.
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.
B-2
<PAGE> 35
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-3
<PAGE> 1
EXHIBIT 1.02
EXECUTION COPY
COCA-COLA ENTERPRISES INC.
(A Delaware corporation)
Senior Debt Securities
TERMS AGREEMENT
Dated: September 25, 1996
TO: COCA-COLA ENTERPRISES INC.
Coca-Cola Plaza, N.W.
2500 Windy Ridge Parkway
Atlanta, Georgia 30339
RE: Underwriting Agreement dated as of September 25, 1996
Senior Debt Securities
Title of Senior Debt Securities: 7% Debentures due October 1, 2026
Principal amount to be issued: $300,000,000
Current ratings: A3/AA-
Interest rate: 7%
Interest payment dates: Payable on April 1 and October 1 of each year,
commencing April 1, 1997
Date of maturity: October 1, 2026
Redemption provisions: October 1, 2006 at par at the option of the holder
Sinking fund requirements: None
Delayed Delivery Contracts: Not authorized
Fee: 0.650%
Public offering price: 99.765%, plus accrued interest, if any, from September
30, 1996
<PAGE> 2
Closing date and location: At 10:00 a.m., New York City time, on September 30,
1996 at the offices of Cravath, Swaine & Moore, Worldwide Plaza 825 Eighth
Avenue, New York, New York 10019
Notice to the Underwriters pursuant to Section 11 of the Underwriting Agreement
shall be given to: Lehman Brothers Inc., 3 World Trade Center, 200 Vesey
Street, New York, New York 10285, Attention: Martin J. Ragde
Place of delivery of Securities: Lehman Brothers Inc., 3 World Trade Center,
200 Vesey Street, New York, New York 10285
Modifications to the Underwriting Agreement: Section 2 Payment for all
Debentures purchased hereunder shall be made in immediately available
funds on the third business day (unless postponed in accordance with the
provisions of Section 9) following the date of this Agreement for the
account of the Company maintained at Citibank, N.A., New York, New York,
account number 38488726.
Section 4 - Cravath, Swaine & Moore is counsel for the Underwriters.
The Debentures will trade in The Depository Trust Company's
Same-Day Funds Settlement System until maturity, and secondary market trading
activity for the Debentures will, therefore, settle in immediately available
funds. All payments of principal and interest will be made by the Company in
immediately available funds.
The letter referred to in Section 4(c) shall be substantially in
the form of the draft dated September 20, 1996.
2
<PAGE> 3
The undersigned 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 $300,000,000 aggregate principal
amount of 7% Debentures due October 1, 2026.
LEHMAN BROTHERS INC.
MORGAN STANLEY & CO.
Incorporated
By LEHMAN BROTHERS INC.
By:
-------------------------------
Name:
Title:
Accepted
COCA-COLA ENTERPRISES INC.
By:
------------------------------
Name:
Title:
3
<PAGE> 1
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.
7% DEBENTURE DUE OCTOBER 1, 2026
R-1 $200,000,000
REGISTERED (Principal Amount)
GLOBAL SECURITY CUSIP: 191219AW4
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 TWO HUNDRED MILLION DOLLARS
($200,000,000) in such coin or 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, and to pay interest thereon, in like coin or currency, at a rate of 7%
per annum, computed on the basis of a 360-day year consisting of twelve 30-day
months, until the principal hereof is paid or duly made available for payment,
semiannually in arrears on April 1 and October 1 (each an "Interest Payment
Date") in each year commencing on April 1, 1997, to the registered holder of
this Debenture (the "Holder") as of the close of business on the Regular Record
Date for such interest payment, which shall be the March 15 and September 15
next preceding such Interest Payment Date, and on the Maturity Date shown
above. Interest on this Debenture will accrue from the most recent Interest
Payment Date to which interest has been paid or duly provided for or, if no
interest has been paid, from September 30, 1996, until the principal hereof has
been paid or duly made available for payment. If the Maturity Date, the Put
Option Exercise Date (as defined below) or an Interest Payment Date falls on a
day which is not a Business Day, as defined below, principal or interest
payable with respect to such Maturity Date, Put Option Exercise Date or
Interest Payment Date, as the case may be, will be paid on
<PAGE> 2
the next succeeding Business Day with the same force and effect as if made on
such Maturity Date, Put Option Exercise Date or Interest Payment Date, as the
case may be, and no interest shall accrue on the amount so payable for the
period from and after such Maturity Date, Put Option Exercise Date or Interest
Payment Date. The interest so payable and punctually paid or duly provided for
on any Interest Payment Date will, subject to certain exceptions provided in
the Indenture (as defined below), be paid to the Person in whose name this
Debenture (or one or more predecessor Debentures) is registered at the close of
business on the Regular Record Date for such interest payment; provided,
however, that interest payable on the Maturity Date will be payable to the
Person to whom the principal hereof is payable. Any such interest not so
punctually paid or duly provided for shall forthwith cease to be payable to the
Holder on such Regular Record Date and shall be paid to the Persons, and on the
notice, as is provided in the Indenture. As used herein, "Business Day" means
any day, other than a Saturday or Sunday, on which banks in The City of New
York are not required or authorized by law to close.
Payment of the principal of and interest on this Debenture will be
made by wire transfer in immediately available funds to an account maintained
by DTC for such purpose.
The Holder of this Debenture 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 Debenture (the "Put Option") on October 1,
2006 (the "Put Option Exercise Date"). The repurchase price will equal 100% of
the aggregate principal amount of this Debenture (or portion thereof, as
appropriate) plus accrued interest thereon through the Put Option Exercise Date
and will be paid by the Company in immediately available funds, subject to
conditions contained herein (such repurchase price being a payment of principal
and interest in respect of this Debenture for purposes of the Indenture and
this Debenture). The Holder must provide the Company with notice of its
intention to exercise the Put Option during the period from and including
August 1, 2006 through and including September 1, 2006. Any notice of exercise
given by the Holder exercising the Put Option shall be irrevocable and shall
2
<PAGE> 3
state, among other things, (i) the certificate number of the Debenture to be
delivered by such Holder for purchase by the Company; (ii) the portion of the
principal amount of the Debenture to be purchased, which portion must be $1,000
or an integral multiple thereof; and (iii) that the Debenture (or a portion
thereof) is to be purchased by the Company pursuant to the terms of this
Debenture. The Company will notify the Trustee and the Paying Agent of each
notice of exercise received. Payment of the repurchase price for this
Debenture (or portion thereof) for which a notice of exercise has been
delivered is conditioned upon delivery or transfer of such Debenture (together
with necessary endorsements) to the Paying Agent on the Put Option Exercise
Date. Once so delivered or transferred, payment of the repurchase price in
respect of such Debenture (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 Debenture (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 Debenture on a day following the Put Option Exercise Date, then
immediately thereafter, such Debenture (or portion thereof) will cease to be
Outstanding and interest thereon will cease to accrue, whether or not such
Debenture is delivered to the Paying Agent, and all other rights of the Holder
in respect of the Debenture (or portion thereof), including the Holder's right
to require the Company to repurchase such Debenture (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 Debenture).
The Company covenants that no later than 11:00 a.m. (New York 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 Debentures (or portions thereof) that are to be
repurchased on the Put Option Exercise Date pursuant to exercise by the Holder
of the Put Option. Any Debenture 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 Debenture, without service
charge and at the expense of the Company, a replacement Debenture or
Debentures, of any
3
<PAGE> 4
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 Debenture so surrendered that is not purchased.
This Debenture 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 The Chase Manhattan Bank, formerly
known as 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
Debentures are, and are to be, authenticated and delivered. This Debenture is
one of the series of Securities designated as "7% Debentures due October 1,
2026", limited in aggregate principal amount to $300,000,000 (the
"Debentures"). 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 Debentures 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 affected 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
4
<PAGE> 5
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 Debenture shall
be conclusive and binding upon such Holder and upon all future Holders of this
Debenture and of any Debenture 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 Debenture.
No reference herein to the Indenture and no provision of this
Debenture 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 Debenture at the times, places, and rate, and in the coin or
currency, herein prescribed.
As provided in the Indenture, and subject to certain limitations
therein set forth, the transfer of this Debenture may be registered on the
Security Register of the Company upon surrender of this Debenture 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 Debentures of this series
having the same terms as this Debenture, 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 Debentures 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 Debenture
is exchangeable for a like aggregate principal amount of Debentures of this
series having the same terms as this Debenture of a different authorized
denomination, as requested by the Holder surrendering the same.
5
<PAGE> 6
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 Debenture 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 Debenture is registered as the owner
hereof for all purposes, whether or not this Debenture be overdue, and neither
the Company, the Trustee nor any such agent shall be affected by notice to the
contrary.
THE INDENTURE AND THE DEBENTURES, INCLUDING THIS DEBENTURE, 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 Debenture 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
Debentures.
Unless the certificate of authentication hereon has been executed
by The Chase Manhattan Bank formerly known as Chemical Bank, the Trustee under
the Indenture, or its successor thereunder, by the manual signature of one of
its authorized officers, this Debenture shall not be entitled to any benefit
under the Indenture or be valid or obligatory for any purpose.
6
<PAGE> 7
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.
By:
------------------------------
Name: Vicki G. Roman
Title: Treasurer
Attest:
By:
------------------------------
Name: E. Liston Bishop III
Title: Assistant Secretary
[SEAL]
7
<PAGE> 8
Date: September 30, 1996
TRUSTEE'S CERTIFICATE OF AUTHENTICATION:
This is one of the Securities of the series designated therein referred to in
the within-mentioned Indenture.
THE CHASE MANHATTAN BANK,
as Trustee
By:
--------------------------------
Name:
Title:
8
<PAGE> 9
ASSIGNMENT FORM
To assign this Debenture, fill in the form below:
I or we assign and transfer this Debenture 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 Debenture 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 Debenture 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.
