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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 (Date of earliest event reported): July 22, 1997
COCA-COLA ENTERPRISES INC.
(Exact name of registrant as specified in its charter)
Delaware 01-09300 58-0503352
(State of (Commission File No.) (IRS Employer
Incorporation) Identification No.)
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)
Page 1 of 15 pages
Exhibit Index page 4
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Item 7. Financial Statements and Exhibits
------ ---------------------------------
(c) Exhibits.
---------
3 Restated Certificate of Incorporation of Coca-Cola
Enterprises Inc. (Restated as of April 15, 1992);
and Certificate of Amendment of the Certificate of
Incorporation of Coca-Cola Enterprises Inc.
(Filed as of April 21, 1997)
Page 2 of 15 pages
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~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
SIGNATURE
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)
S/LOWRY F. KLINE
Date: July 22, 1997 By:______________________________
Lowry F. Kline
Senior Vice President and
General Counsel
Page 3 of 15 pages
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COCA-COLA ENTERPRISES INC.
EXHIBIT INDEX
Exhibit No. Page
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3 Restated Certificate of Incorporation of Coca-Cola 5
Enterprises Inc. (Restated as of April 15, 1992); and
Certificate of Amendment of the Certificate of
Incorporation of Coca-Cola Enterprises Inc.
(Filed as of April 21, 1997)
Page 4 of 15 pages
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EXHIBIT 3
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| STATE OF DELAWARE |
| SECRETARY OF STATE |
| DIVISION OF CORPORATIONS |
| FILED 10:00 AM 04/15/1992 |
| 72106041 - 388509 |
-----------------------------
RESTATED CERTIFICATE OF INCORPORATION
OF
COCA-COLA ENTERPRISES INC.
(RESTATED AS OF APRIL 15, 1992)
(Originally incorporated on January 25, 1944
under the name of The Hickory Publishing Company)
~~~~~~~~~~~~~
(Pursuant to Section 245 of the General Corporation Law
of the State of Delaware)
~~~~~~~~~~~~~
FIRST: The name of the corporation is Coca-Cola
Enterprises Inc. (hereinafter referred to as the "Corporation").
SECOND: The address of the registered office of the
Corporation in the State of Delaware is 1209 Orange Street,
Wilmington, County of New Castle, Delaware 19801. The name of
the registered agent of the Corporation at such address is The
Corporation Trust Company.
THIRD: The purpose of the Corporation is to engage in any
lawful act or activity for which corporations may be organized
under the General Corporation Law of Delaware.
FOURTH: A. The total number of shares of all classes of
stock that the Corporation shall have authority to issue is Six
Hundred Million (600,000,000) shares, consisting of Five Hundred
Million (500,000,000) shares of common stock, par value $1 per
share (hereinafter referred to as "Common Stock") and One Hundred
Million (100,000,000) shares of preferred stock, par value $1 per
share (hereinafter referred to as "Preferred Stock").
B. The board of directors of the Corporation is
authorized, subject to any limitations prescribed by law, to
provide for the issuance of the shares of Preferred Stock in
series, and by filing a certificate pursuant to the applicable
law of the State of Delaware (hereinafter referred to as a
"Preferred Stock Designation") to establish from time to time the
number of shares to be included in each such series, and to fix
the designation, powers, preferences, and rights of the shares of
each such series and any qualifications, limitations or
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restrictions thereof. The number of authorized shares of
Preferred Stock may be increased or decreased (but not below the
number of shares thereof then outstanding) by the affirmative
vote of the holders of a majority of the shares of Common Stock,
without a vote of the holders of the shares of Preferred Stock,
or of any series thereof, unless a vote of any such holders is
required pursuant to the Preferred Stock Designation or Preferred
Stock Designations establishing the series of Preferred Stock.
C. Each holder of shares of Common Stock shall
be entitled to one vote for each share of Common Stock held of
record on all matters on which the holders of shares of Common
Stock are entitled to vote.
FIFTH: A. The business and affairs of the Corporation
shall be managed by the board of directors, and the directors
need not be elected by ballot unless required by the bylaws of
the Corporation.
B. The number of directors shall be fixed by, or
in the manner provided in, the bylaws. Commencing with the
election of directors at the annual meeting of stockholders held
in 1986, the directors shall be divided, with respect to the time
for which they severally hold office, into three classes, as
nearly equal in number as reasonably possible, with the term of
office of the first class to expire at the next annual meeting of
stockholders thereafter, the term of the office of the second
class to expire at the second annual meeting of stockholders
thereafter, and the term of office of the third class to expire
at the third annual meeting of stockholders thereafter, with each
director to hold office until his or her successor shall have
been duly elected and qualified. At each annual meeting of
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stockholders commencing with the first annual meeting after the
division of directors into classes, directors elected to succeed
those directors whose terms then expire shall be elected for a
term of office to expire at the third succeeding annual meeting
of stockholders after their election, with each director to hold
office until his or her successor shall have been duly elected
and qualified. All vacancies on the board of directors and newly
created directorships resulting from any increase in the
authorized number of directors shall be filled exclusively by a
majority of the directors then in office, although less than a
quorum, or by a sole remaining director.
C. The board of directors is expressly
authorized to adopt, amend or repeal the bylaws of the
Corporation.
SIXTH: A. A director of the Corporation shall not be
personally liable to the Corporation or its stockholders for
monetary damages for breach of fiduciary duty as a director,
except for liability (i) for any breach of the director's duty of
loyalty to the Corporation or its stockholders, (ii) for acts or
omissions not in good faith or which involve intentional
misconduct or a knowing violation of law, (iii) under Section 174
of the Delaware General Corporation Law, or (iv) for any
transaction from which the director derived any improper personal
benefit. If the Delaware General Corporation Law is amended
after this Restated Certificate of Incorporation becomes
effective to authorize corporate action further eliminating or
limiting the personal liability of directors, then the liability
of a director of the Corporation shall be eliminated or limited
to the fullest extent permitted by the Delaware General
Corporation Law, as so amended.
B. Any repeal or modification of the foregoing
Section A by the stockholders of the Corporation shall not
adversely affect any right or protection of a director or the
Corporation existing at the time of such repeal or modification.
SEVENTH: A. In anticipation that the Corporation will
cease to be a wholly owned subsidiary of The Coca-Cola Company,
but that The Coca-Cola Company will remain a substantial
stockholder of the Corporation, and in anticipation that the
Corporation and The Coca-Cola Company may engage in the same or
similar activities or lines of business and have an interest in
the same areas of corporate opportunities, and in recognition of
the benefits to be derived by the Corporation through its
continued contractual, corporate and business relations with The
Coca-Cola Company (including service of officers and directors of
The Coca-Cola Company as officers and directors of the
Corporation), the provisions of this Article SEVENTH are set
forth to regulate and define the conduct of certain affairs of
the Corporation as they may involve The Coca-Cola Company and its
officers and directors, and the powers, rights, duties and
liabilities of the Corporation and its officers, directors and
stockholders in connection therewith.
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B. The Coca-Cola Company shall have no duty to
refrain from engaging in the same or similar activities or lines
of business as the Corporation, and neither The Coca-Cola Company
nor any officer or director thereof (except as provided in
paragraph C below) shall be liable to the Corporation or its
stockholders for breach of any fiduciary duty by reason of any
such activities of The Coca-Cola Company or of such person's
participation therein. In the event that The Coca-Cola Company
acquires knowledge of a potential transaction or matter which may
be a corporate opportunity for both The Coca-Cola Company and the
Corporation, The Coca-Cola Company shall have no duty to
communicate or offer such corporate opportunity to the
Corporation and shall not be liable to the Corporation or its
stockholders for breach of any fiduciary duty as a stockholder of
the Corporation by reason of the fact that The Coca-Cola Company
pursues or acquires such corporate opportunity for itself,
directs such corporate opportunity to another person, or does not
communicate information regarding such corporate opportunity to
the Corporation.
C. In the event that a director or officer of
the Corporation who is also a director or officer of The Coca-Cola
Company acquires knowledge of a potential transaction or
matter which may be a corporate opportunity for both the
Corporation and The Coca-Cola Company, such director or officer
of the Corporation shall have fully satisfied and fulfilled the
fiduciary duty of such director or officer to the Corporation and
its stockholders with respect to such corporate opportunity and
shall not be liable to the Corporation or its stockholders for
breach of any fiduciary duty by reason of the fact that The
Coca-Cola Company pursues or acquires such corporate opportunity for
itself or directs such corporate opportunity to another person or
does not communicate information regarding such corporate
opportunity to the Corporation, if such director or officer acts
in a manner consistent with the following policy:
(i) A corporate opportunity offered to any person who
is an officer of the Corporation, and who is also a director
but not an officer of The Coca-Cola Company, shall belong to
the Corporation; (ii) a corporate opportunity offered to any
person who is a director but not an officer of the
Corporation, and who is also a director or officer of The
Coca-Cola Company shall belong to the Corporation if such
opportunity is expressly offered to such person in writing
solely in his or her capacity as a director of the
Corporation, and otherwise shall belong to The Coca Cola
Company; and (iii) a corporate opportunity offered to any
person who is an officer of both the Corporation and The
Coca-Cola Company shall belong to the Corporation.
D. Any person purchasing or otherwise acquiring
any interest in shares of the capital stock of the Corporation
shall be deemed to have consented to the provisions of this
Article SEVENTH.
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E. For purposes of this Article SEVENTH:
(1) A director of the Corporation who is Chairman
of the board of directors of the Corporation or of a
committee thereof shall not be deemed to be an officer of
the Corporation by reason of holding such position (without
regard to whether such position is deemed an office of the
Corporation under the bylaws of the Corporation), unless
such person is a full-time employee of the Corporation; and
(2) The Coca-Cola Company shall include all
subsidiary corporations and other entities in which The
Coca-Cola Company owns (directly or indirectly) more than
50% of the outstanding voting capital stock or voting power.
EIGHTH: Any action required or permitted to be taken by
the stockholders of the Corporation shall be effected at an
annual or special meeting of stockholders of the Corporation and
may not be effected by any consent in writing of such
stockholders.
NINTH: In addition to any affirmative vote required by
law, by this Certificate of Incorporation or by any Preferred
Stock Designation:
(a) any amendment or alteration of this Certificate of
Incorporation by the stockholders;
(b) any amendment or alteration of the bylaws of the
Corporation by the stockholders;
(c) any merger or consolidation of the Corporation
with or into any other corporation other than a merger or
consolidation that does not require the vote of the stockholders
of the Corporation;
(d) any sale, lease, or exchange (in one transaction
or a series of transactions) of all or substantially all of the
property and assets of the Corporation; or
(e) the adoption of any plan or proposal for the
liquidation or dissolution of the Corporation shall require the
affirmative vote of the holders of at least 66-2/3% of the voting
power of all of the outstanding shares of the Common Stock and
any series of Preferred Stock entitled to vote generally in the
election of directors, voting together as a single class. Such
affirmative vote shall be required notwithstanding any other
provisions of this Certificate of Incorporation or any provision
of law or of any agreement with any national securities exchange
or otherwise which might otherwise permit a lesser vote or no
vote.
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TENTH: The board of directors of the Corporation, when
evaluating any offer of a person, other than the Corporation
itself, to (a) make a tender or exchange offer for any equity
security of the Corporation, (b) merge or consolidate the
Corporation with another person, or (c) purchase or otherwise
acquire all or substantially all of the properties and assets of
the Corporation shall, in connection with the exercise of its
business judgment in determining what are the best interests of
the Corporation and its stockholders, give due consideration to
all relevant factors, including without limitation (i) the
consideration being offered in relation to the current market
price, but also in relation to the current value of the
Corporation in a freely negotiated transaction and in relation to
the board of directors' current estimate of the future value of
the Corporation as an independent entity, (ii) the social and
economic effects on the employees, customers, suppliers and other
constituents of the Corporation and its subsidiaries and on the
communities in which the Corporation and its subsidiaries operate
or are located, and (iii) the desirability of maintaining
independence from any other entity.
ELEVENTH: A. Each person who was or is made a party or is
threatened to be made a party to or is involved in any action,
suit or proceeding, whether civil, criminal, administrative or
investigative (hereinafter a "proceeding"), by reason of the fact
that he or she, or a person of whom he or she is the legal
representative, is or was a director, officer or employee of the
Corporation or is or was serving at the request of the
Corporation as a director, officer, employee or agent of another
corporation or of a partnership, joint venture, trust or other
enterprise, including service with respect to employee benefit
plans, whether the basis of such proceeding is alleged action in
an official capacity as a director, officer, employee or (if
serving for another corporation at the request of the
Corporation) agent or in any other capacity while serving as a
director, officer, employee or (if serving for another
corporation at the request of the Corporation) agent, shall be
indemnified and held harmless by the Corporation to the fullest
extent authorized by the Delaware General Corporation Law, as the
same exists or may hereafter be amended (but, in the case of any
such amendment, only to the extent that such amendment permits
the Corporation to provide broader indemnification rights than
said law permitted the Corporation to provide prior to such
amendment), against all expense, liability and loss (including
attorneys' fees, judgments, fines, ERISA, excise taxes or
penalties and amounts to be paid in settlement) reasonably
incurred or suffered by such person in connection therewith and
such indemnification shall continue as to a person who has ceased
to be a director, officer, employee or (if serving for another
corporation at the request of the Corporation) agent and shall
inure to the benefit of his or her heirs, executors and
administrators; provided, however, that except as provided in
Section B hereof with respect to proceedings seeking to enforce
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rights to indemnification, the Corporation shall indemnify any
such person seeking indemnification in connection with a
proceeding (or part thereof) initiated by such person only if
such proceeding (or part thereof) was authorized by the board of
directors of the Corporation. The right to indemnification
conferred in this Section shall be a contract right and shall
include the right to be paid by the Corporation the expenses
incurred in defending any such proceeding in advance of its final
disposition; provided, however, that, if the Delaware General
Corporation Law requires, the payment of such expenses incurred
by a director or officer in his or her capacity as a director or
officer (and not in any other capacity in which service was or is
rendered by such person while a director or officer, including,
without limitation, service to an employee benefit plan) in
advance of the final disposition of a proceeding shall be made
only upon delivery to the Corporation of an undertaking, by or on
behalf of such director or officer, to repay all amounts so
advanced if it shall ultimately be determined that such director
or officer is not entitled to be indemnified under this Article
ELEVENTH or otherwise.
B. If a claim under Section A of this Article
ELEVENTH is not paid in full by the Corporation within ninety
days after a written claim has been received by the Corporation,
the claimant may at any time thereafter bring suit against the
Corporation to recover the unpaid amount of the claim and, if
successful in whole or in part, the claimant shall be entitled to
be paid also the expense of prosecuting such claim. It shall be
a defense to any such action (other than an action brought to
enforce a claim for expenses incurred in defending any proceeding
in advance of its final disposition where the required
undertaking, if any is required, has been tendered to the
Corporation) that the claimant has not met the standards of
conduct which make it permissible under the Delaware General
Corporation Law for the Corporation to indemnify the claimant for
the amount claimed, but the burden of proving such defense shall
be on the Corporation. Neither the failure of the Corporation
(including its board of directors, independent legal counsel, or
stockholders) to have made a determination prior to the
commencement of such action that indemnification of the claimant
is proper in the circumstances because he or she has met the
applicable standard of conduct set forth in the Delaware General
Corporation Law, nor an actual determination by the Corporation
(including its board of directors, independent legal counsel, or
stockholders) that the claimant has not met such applicable
standard of conduct, shall be a defense to the action or create a
presumption that the claimant has not met the applicable standard
of conduct.
C. The right to indemnification and the payment
of expenses incurred in defending a proceeding in advance of its
final disposition conferred in this Article ELEVENTH shall not be
exclusive of any other right which any person may have or
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hereafter acquire under any statute, provision of the Certificate
of Incorporation, bylaw, agreement, vote of stockholders or
disinterested directors or otherwise.
D. The Corporation may maintain insurance, at
its expense, to protect itself and any director, officer,
employee or agent of the Corporation or another corporation,
partnership, joint venture, trust or other enterprise against any
expense, liability or loss, whether or not the Corporation would
have the power to indemnify such person against such expense,
liability or loss under the Delaware General Corporation Law.
TWELFTH: The Corporation reserves the right to amend,
alter, change or repeal any provision contained in this Restated
Certificate of Incorporation, in the manner now or hereafter
prescribed by statute, and all rights conferred upon stockholders
herein are granted subject to this reservation.
This Restated Certificate of Incorporation was duly adopted
by the board of directors pursuant to Section 245 of the General
Corporation Law of the State of Delaware. This Restated
Certificate of Incorporation only restates and integrates and
does not further amend the provisions of the Certificate of
Incorporation as amended or supplemented through April 15, 1992,
and there is no discrepancy between such provisions and the
provisions of this Restated Certificate of Incorporation.
IN WITNESS WHEREOF, this Restated Certificate of
Incorporation has been executed on this 15th day of April, 1992.
COCA-COLA ENTERPRISES INC.
S/ SUMMERFIELD K. JOHNSTON, JR.
By:--------------------------------
Summerfield K. Johnston, Jr.
Vice Chairman and Chief
Executive Officer
ATTEST:
S/ J. GUY BEATTY,JR.
--------------------------------
J. Guy Beatty, Jr., Secretary
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| STATE OF DELAWARE |
| SECRETARY OF STATE |
| DIVISION OF CORPORATIONS |
| FILED 11:10 AM 04/21/1997 |
| 971127667 - 0388509 |
----------------------------
Certificate of Amendment of the
-------------------------------
Certificate of Incorporation
---------------------------
of
--
Coca-Cola Enterprises Inc.
---------------------------
Under Section 242 of the General Corporation Law
of the State of Delaware
COCA-COLA ENTERPRISES INC., a corporation duly
organized and existing under the laws of the State of
Delaware,
DOES HEREBY CERTIFY:
FIRST: That on February 18, 1997, the Board of
Directors duly adopted the following resolution amending the
Certificate of Incorporation of the Corporation, and
declared its advisability and directed that the amendment be
considered at the next annual meeting of the stockholders of
the Corporation:
RESOLVED, that the Certificate of
Incorporation of the Corporation be, and
the same hereby is, amended by deleting
the current Article FOURTH thereof, and
substituting the following:
A. The total number of shares of all
classes of stock that the Corporation
shall have authority to issue is One
Billion One Hundred Million
(1,100,000,000) shares, consisting of
One Billion (1,000,000,000) shares of
common stock, par value $1 per share
(hereinafter referred to as "Common
Stock") and One Hundred Million
(100,000,000) shares of preferred stock,
par value $1 per share (hereinafter
referred to as "Preferred Stock")
B. The board of directors of the
Corporation is authorized, subject to
any limitations prescribed by law, to
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provide for the issuance of the shares
of Preferred Stock in series, and by
filing a certificate pursuant to the
applicable law of the State of Delaware
(hereinafter referred to as a "Preferred
Stock Designation") to establish from
time to time the number of shares to be
included in each such series, and to fix
the designation, powers, preferences,
and rights of the shares of each such
series and any qualifications,
limitations or restrictions thereof.
The number of authorized shares of
Preferred Stock may be increased or
decreased (but not below the number of
shares thereof then outstanding) by the
affirmative vote of the holders of a
majority of the shares of Common Stock,
without a vote of the holders of the
shares of Preferred Stock, or of any
series thereof, unless a vote of any
such holders is required pursuant to the
Preferred Stock Designation or Preferred
Stock Designations establishing the
series of Preferred Stock.
C. Each holder of shares of Common
Stock shall be entitled to one vote for
each share of Common Stock held of
record on all matters on which the
holders of shares of Common Stock are
entitled to vote.
D. Each share of Common Stock of the
Corporation issued and outstanding or
held in the treasury of the Corporation
immediately prior to the close of
business on May 1, 1997, that being the
time when the amendment of this Article
FOURTH of the Certificate of
Incorporation shall have become
effective, is changed into and
reclassified as three fully paid and
nonassessable shares of Common Stock,
par value $1 per share, and at the close
of business on such date, each holder of
record of Common Stock shall, without
further action, be and become the holder
of two additional shares of Common Stock
for each share of Common Stock held of
record immediately prior thereto.
Effective at the close of business on
such date, each certificate representing
shares of Common Stock outstanding or
held in treasury immediately prior to
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such time shall continue to represent
the same number of shares of Common
Stock and as promptly as practicable
thereafter, the Corporation shall issue
and cause to be delivered to each holder
of record of shares of Common Stock at
the close of business on such date an
additional certificate or certificates
representing two additional shares of
Common Stock for each of Common Stock
held of record immediately prior
thereto.
SECOND: That on April 21, 1997, at the
Corporation's annual meeting called and held in accordance
with the provisions of the General Corporation Law of the
State of Delaware, the amendment was duly approved and
adopted by a majority of the outstanding stock of the
Corporation entitled to vote upon the amendment.
THIRD: That the effective date of this amendment
shall be at the close of business on May 1, 1997.
IN WITNESS WHEREOF, this Certificate of Amendment
has been signed on behalf of the Corporation by its Senior
Vice President and attested by its Assistant Secretary as of
the 21st day of April, 1997.
COCA-COLA ENTERPRISES INC.
S/ LOWRY F. KLINE
------------------------------
Lowry F. Kline
Senior Vice President
Attest:
S/ E. LISTON BISHOP III
- -----------------------------
E. Liston Bishop III
Assistant Secretary
[Seal]
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